Exhibit 99.1
MASTER LICENSE AGREEMENT
AGREEMENT NO.: BF0906
Customer Name: Bluefly, Inc.
Address: 00 Xxxx 00xx Xxxxxx, Xxxxx 0
Xxxx, Xxxxx, Xxx: Xxx Xxxx, XX 00000
This Master License Agreement is entered into by and between Art Technology
Group, Inc., a Delaware corporation, having a place of business at Xxx Xxxx
Xxxxxx, Xxxxxxxxx, XX 00000 ("ATG") and the entity identified above (together
with any future parent or subsidiary entities subject to Section 13.8 below)
("Customer"). The following Addenda (or any amendment thereof) and Order Forms,
constitute a part of Agreement:
As Applicable:
Addendum A: Maintenance and Support of Programs
Addendum B: Professional Services
Order Form: ATG Product and Support Order Form
1. DEFINITIONS.
"Agreement" means this Master License Agreement and all related Addenda,
Amendments, Order Form(s), Attachment(s), Exhibit(s) or Schedule(s), if any.
"Concurrent User" means any employee or independent contractor of Customer (or,
with certain specified Programs, Customer's end-user) who is permitted to access
and use the Programs. The maximum number of Concurrent Users is specified in the
Order Form(s).
"Customer" shall mean the entity listed above under "Customer Name".
"CPU" means a single processor incorporated as part of a single server. Each
core in a multi-core or dual core processor will be treated as a processor/CPU
for the purpose of this Agreement.
"Development License" shall mean the right and license to create a Web Site;
however, such license shall not be used for production (live) Web Sites.
"Documentation" means the user manuals and other documentation for the Programs
normally made available electronically to Customer with the Programs. Copies of
the Documentation may be found on the ATG Web Site at xxx.xxx.xxx.
"Effective Date" shall mean the date that ATG signs this Master License
Agreement.
"Enterprise-Wide License" shall mean the right and license to install and use in
a production, staging and development settings an unlimited number of licenses
of such Programs on any number of CPUs or Servers, for the duration of the ELA
Term (defined below).
"ELA Term" is defined on the applicable Order Form.
"Individual User" means any employee or individual independent contractor of
Customer to whom Customer has issued a personal user ID and password. Customer
shall ensure that only one personal ID is assigned to each Individual User and
that no more than one Individual User uses a single personal user ID and
password. Individual User does not mean a corporation, company, partnership,
association, entity or organization. The maximum number of Individual Users is
specified in the Order Form.
"Maintenance", "Support" or "Maintenance and Support" shall have the respective
meanings set forth in the Maintenance and Support Addendum.
"Order(s)" or "Order Form(s)" means the forms furnished by ATG to Customer
evidencing the purchase of a license to use a Program or to receive support
under this Agreement.
"Price List" means the publication issued from time to time by ATG describing
the Programs then available for license by ATG, and related License Fees,
Maintenance Fees and fees for professional services.
"Production License" shall mean the right and license to run a live Web Site in
a production environment.
"Program(s)" or "Licensed Program(s)" means the machine-readable, binary code
version of the computer software products listed in Order Form(s) and described
in more detail in ATG's then current Price List, and any and all modifications,
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corrections or enhancements which become part of such computer software product,
as licensed by ATG in accordance with the terms of this Agreement.
"Server" means a computer file server identified by an individual IP address and
comprised of one or more CPUs.
"Staging or Testing License" shall mean the right and license to use the
Programs for quality assurance and load testing of a Web Site. Such Licenses may
not be used for production purposes or "going live."
2. LICENSE GRANT AND RESTRICTIONS.
2.1 General.
(a) Perpetual License. Subject to the terms and limitations set
forth in this Agreement, ATG grants to Customer a worldwide, non-exclusive,
non-transferable (except as specifically set forth in this Agreement), perpetual
right and license to use the one or more Programs listed on an Order Form.
(b) Enterprise-Wide License. Subject to the terms and limitations
set forth in this Agreement, ATG grants to Customer an Enterprise-Wide License
for those Programs identified as "Enterprise" or "ELA" in the "License Type"
Column of the Order Form. Beginning on the effective date of the applicable
Order Form and ending on the termination date identified on such Order Form as
the "ELA Term", Customer shall have the right and license to install and use an
unlimited number of licenses of such Programs on any number of CPUs or Servers.
At the end of the ELA Term, Customer shall certify to ATG in writing the number
of CPUs, Servers or Concurrent Users in active production and use and Customer's
right and license to continue to use such Programs shall be perpetual, but shall
be limited to such certified CPUs and Servers.
(c) License Types. Depending on the Program identified on the Order,
unless otherwise specified in the applicable Order, a copy of the Program(s) may
be used in only one of the following ways: (1) only on the number of CPUs
associated with certain Server(s) identified in the applicable Order (or on
replacement Server(s) identified to ATG in writing); or (2) only on the number
of named Servers identified in the applicable Order; or (3) not to exceed the
number of Individual Users or Concurrent Users identified in the Order Form. The
foregoing limitations shall not apply to an Enterprise License during the ELA
Term.
(d) Restrictions.
(i) No Hosting Rights/ASP Rights. Customer may use the
Programs only to host its own Internet site(s) to which third parties may have
access and may not provide hosting, service bureau or application service
provider services to third parties.
(ii) Backup Copies. If a licensed Server is temporarily
inoperable, Customer may transfer the Programs to another Server having use of
no more than the same number of CPUs as were in the licensed inoperable Server,
but only until the inoperable Server becomes functional or is permanently
replaced. A backup copy of the Program may also be used for disaster recovery
purposes. Customer may not copy the Programs, except for the disaster recover
purposes specified above, unless specifically authorized by ATG in writing. The
foregoing limitations shall not apply to an Enterprise License during the ELA
Term.
(e) Supplemental Program Use Restrictions. Supplemental modules are
delivered with and may be required in order to run certain Programs including
the ATG Content Administration, ATG Commerce, Adaptive Customer Assistance, ATG
Forum and Adaptive Customer Outreach product modules (collectively, the
"Restricted Programs"). If Customer has purchased a Restricted Program
containing supplemental modules, it may only:
(i) access the functionality of those modules for which it
has specifically purchased a license;
(ii) where required for proper functioning of the Restricted
Programs, use the supplemental modules to run the Restricted Program(s);
(iii) use the Restricted Programs on certain designated
servers ("Designated Servers"), provided that, during the ELA Term, it may use
the Restricted Programs on any servers;
(iv) use the search engine supplied with the Restricted
Programs to index and access content managed by those Restricted Programs; and
(v) use other ATG Programs for which Customer has obtained a
Production license, on the Designated Server(s) (other than for the purpose of
running the Restricted Program(s)).
3. TITLE.
3.1 The Programs furnished under this Agreement are licensed, not
sold, to Customer. ATG and its suppliers possess all right, title and interest
in and to the Programs, trademarks, service marks, trade names, trade dress,
trade secrets and Documentation, and Customer acknowledges that it receives no
such right, title or interest except for the limited right of use described in
this Agreement.
3.2 Customer shall do nothing inconsistent with ATG's title to the
Programs, and shall not reproduce (except as specifically permitted by this
Agreement), decompile, disassemble, or reverse assemble any portion of the
Programs or otherwise derive its source code, except to the extent that such
activity is expressly permitted by applicable local law.
4. ORDERING PROGRAMS AND SERVICES.
4.1 Ordering. An Order will be binding on both parties when signed
by authorized representatives of each party. Each Order shall include the
following information: 1) each Program
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licensed or to which Maintenance shall apply, 2) the Server on which such
Program will be used, its location and IP address, 3) the number of CPUs in each
licensed Server or Enterprise-Wide License, and 4) the fees applicable to the
number of CPUs in each licensed Server and/or covered by Maintenance services.
No additional or different terms in any purchase order or similar document shall
modify the terms of this Agreement whether or not signed by ATG.
4.2 Additional Licenses. Program licenses are based on the number of
CPUs in the licensed Server or the number of seats. If Customer adds one or more
CPUs to a licensed Server or additional seats, Customer shall notify ATG
promptly (but in no event less than ten (10) days) of such addition and
immediately purchase a license based on the additions. The foregoing shall not
apply to an Enterprise License during the ELA Term, during which time Customer
may freely add CPUs, servers and/or seats.
5. PAYMENT.
5.1 Fees for Software Licenses. ATG will invoice Customer for those
amounts set forth in the Order Form upon delivery of a permanent license key for
the Programs or upon written authorization to extend the use of the Programs
(the "License Fees").
5.2 Fees for Maintenance and Support. ATG will invoice Customer and
Customer shall pay ATG annually in advance for Maintenance and Support (the
"Maintenance Fees").
5.3 Fees for Professional Services. ATG shall invoice Customer
biweekly for Services performed during the preceding two weeks (the
"Professional Services Fees").
5.4 General. Customer shall pay all amounts due under this Agreement
to ATG in U.S. dollars within thirty (30) days from the date of receipt of the
invoice, unless otherwise specified herein or in the applicable Order Form. ATG
may charge interest on overdue amounts at the rate of one and one-half percent
(1.5%) per month or the highest lawful rate, whichever is less. In the event
that ATG must institute legal proceedings to collect fees due under this
Agreement, Customer shall be liable for all reasonable attorneys fees and other
costs associated therewith. Customer shall be responsible for all taxes incurred
with respect to the delivery of ATG's products and services, except those taxes
based on ATG's income or payroll. If any foreign governmental entity imposes a
withholding tax or VAT on amounts payable to ATG under this Agreement, amounts
payable to ATG shall be grossed-up so that ATG actually receives the amounts set
forth on the Order.
6. TERM OF AGREEMENT.
This Agreement will begin on the Effective Date and will continue
unless terminated as described herein.
7. TERMINATION.
7.1 Termination for Breach. Either party (the "Terminating Party")
may immediately terminate this Agreement or suspend any rights granted hereunder
upon notice to the other in the event that: (a) the other party breaches any
material term of this Agreement including the obligation to pay amounts due
under this Agreement and such breach is not cured within thirty (30) days after
notice from the Terminating Party (provided that, to the extent that ATG
terminates this Agreement pursuant to this Section 7.1(a), it will immediately
repay to Customer a pro rata portion of any payments made in advance for time
periods extending beyond the termination date); or (b) upon the other party's
dissolution, liquidation, composition, financial reorganization or
recapitalization with creditors, assignment for the benefit of creditors, or the
appointment of a receiver, trustee, custodian, or similar agent for the party's
business or property.
7.2 Termination without Cause. Customer may terminate this Agreement
without cause by providing thirty (30) days advance written notice to ATG.
7.3 Obligations upon Termination. On expiration or termination under
section 7.1 or 7.2, each party shall promptly remit to the other all unpaid
monies due under this Agreement. Notwithstanding the foregoing, if the Agreement
is terminated, Customer shall have the right to continue to use, subject to the
terms and conditions of this Agreement, the Programs previously purchased and
paid for hereunder (although Customer shall have no right to license additional
copies of the Programs).
7.4 Survival. In addition to those provisions which by their nature
are intended to survive any termination or expiration of this Agreement or any
license granted hereunder, Sections 2 (License Grant and Restrictions), 3
(title), 5 (Payment), 7.3 (Obligations Upon Termination, 8 (Confidentiality), 9
(Right to Audit), 10 (Limitation of Warranty and Liability), 11 (Warranty,
Remedy and Restrictions), 12 (Indemnification and Infringement) and 13 (General)
of this Agreement shall specifically survive such termination or expiration. It
is expressly understood and agreed that Customer has been granted a perpetual
license to certain Programs as set forth in Section 2.1, and such license shall
survive any termination of this Agreement.
8. CONFIDENTIALITY.
The parties agree not to permit access to or to disclose the other
party's Confidential Information, except to its authorized employees and
contractors who are bound by confidentiality agreements with terms no less
restrictive than those of this Section 8 and who need to use or have access to
the other party's Confidential Information as permitted by this Agreement. A
receiving party shall use at least the same degree of care in protecting the
other party's Confidential Information as such party generally exercises in
protecting its own most valuable proprietary information and shall inform its
employees having access to the Confidential Information of its confidential
nature. In no event shall a party use less than a reasonable degree of care in
protecting Confidential Information. "Confidential Information" includes
documents, data, software
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and information which, when provided by one party to the other: a) are clearly
identified as "Confidential" or "Proprietary" or are marked with a similar
legend; b) are disclosed orally or visually, identified as Confidential
Information at the time of disclosure and confirmed as Confidential Information
in writing within 10 days; or c) a reasonable person would understand to be
confidential or proprietary at the time of disclosure. Results of benchmark and
other tests run by Customer and resulting from use of the Programs shall be
deemed ATG Confidential Information and treated in accordance with the terms of
this Section. Notwithstanding the foregoing, the receiving party shall have no
obligation of confidentiality with respect to any information which: (a) is
already known to the receiving party at the time of disclosure; (b) is or
subsequently becomes publicly available through no wrongful act of the receiving
party; (c) is disclosed or provided to the receiving party by a third party
without restriction; or (d) is developed independently by the receiving party
without use of or access to the disclosing party's Confidential Information.
9. RIGHT TO AUDIT.
Customer shall keep complete and accurate records to permit an accurate
assessment of Customer's compliance with its permitted Program usage. At any
time upon thirty days notice, but not more than once per year unless ATG has
reason to believe that a violation has occurred, ATG may audit Customer's usage
of the Programs and Maintenance services, either by reviewing Program use
on-site, by telephone or by means of a self-audit. Such audit shall take place
at a date and time calculated so as to not unreasonably interfere with
Customer's business operations. ATG will comply with all reasonable security
requirements of Customer and will furnish Customer with a copy of its audit
report upon written request. If an audit reveals that Customer has used any
Program beyond the scope of its license, or has failed to pay associated
Maintenance Fees applicable to its use of the Programs, Customer shall cure such
breach within 30 days of written notice by paying such additional License Fees
or Maintenance Fees as necessary to cure the breach in accordance with this
Agreement. ATG shall pay the costs of any third party conducted audit, unless
the audit reveals material (greater than five percent (5%)) unlicensed use of
any Program, in which case Customer will pay the reasonable costs of the audit.
10. LIMITATION OF WARRANTY AND LIABILITY.
10.1 Warranty Limitations. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN
SECTION 11, ATG MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED
WARRANTIES OF ANY KIND AND ATG SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE; IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE
OF DEALING, OR USAGE OF TRADE; OR STATUTORY REMEDY. NO STATEMENT WHETHER MADE BY
ATG'S EMPLOYEES, AGENTS OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY ATG
FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF ATG UNLESS
SPECIFICALLY CONTAINED IN THIS AGREEMENT.
10.2 Exclusion of Consequential and Related Damages. EXCEPT FOR A
PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 AND ANY
LIABILITY FOR INDEMNIFICATION ARISING UNDER SECTION 12, IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR OTHERWISE FOR ANY
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF
DATA OR USE OF DATA OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY OR ITS
REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
10.3 Limitation of Liability. EXCEPT FOR A PARTY'S INDEMNIFICATION
OBLIGATIONS UNDER SECTION 12 AND AMOUNTS OWED HEREUNDER, IN NO EVENT WILL EITHER
PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER
IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES
PAID BY CUSTOMER TO ATG UNDER THIS AGREEMENT.
11. WARRANTY, REMEDY AND RESTRICTIONS.
11.1 ATG Warranty. ATG represents and warrants to Customer that: (i)
ATG has the legal power and authority to enter into this Agreement; (ii) ATG
shall comply with all laws and legal requirements relating to this Agreement and
its activities and contributions hereunder; (iii) ATG will provide the
Maintenance and Services in a competent and professional manner; (iv) the
Programs do not infringe any patent, copyright or other intellectual property
right of a third party; (v) the media on which the Programs are delivered will
be free from defects in materials and workmanship for a period of ninety (90)
days beginning on the date of delivery; and (vi) the Programs, as delivered by
ATG to Customer and installed in accordance with the Documentation and operated
on the computer systems which are supported by ATG, will perform substantially
as described in its then current Documentation for ninety (90) days from the
date of delivery (the "Product Warranty").
11.2 Customer Warranty. Customer warrants to ATG that: (i) it has the
legal power and authority to enter into this Agreement; and (ii) Customer shall
comply with all laws and legal requirements relating to this Agreement and its
activities and contributions hereunder
11.3 Warranty Remedies. Except for its right to be indemnified
pursuant to Section 12, Customer's sole and exclusive remedy for any breach of
the Product Warranty shall be, at the option of ATG: (a) to repair, modify or
replace on a timely basis the Program or (b) to refund the amounts paid in
respect of the defective Program, together with any unused,
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prepaid Maintenance Fees paid to ATG for such defective Program.
11.4 Warranty Exclusions. ATG shall not be obligated to remedy any
Program defect that cannot be adequately repeated. The Product Warranty does not
apply to any Programs which (i) have been altered, except by ATG or in
accordance with its instructions evidenced by writing, facsimile or email, (ii)
have been used in conjunction with another vendor's product resulting in the
defect, except under circumstances in which such other vendor's product was
recommended by ATG in writing, (iii) were other than a supported version (under
Section 1.1(a) of Addendum A of the Agreement) of the Programs (to the extent
that any failure of the Programs would have been avoided by the use of a
currently supported version), (iv) have been damaged by improper environment,
abuse, misuse, accident or negligence or (v) the Programs have not been properly
installed and operated in accordance with the Documentation, except under
circumstances in which such Programs were installed by ATG or in reliance on
ATG's written advice. Because the Programs are complex, ATG does not warrant
that they are error-free or that their use will be uninterrupted.
12. INDEMNIFICATION AND INFRINGEMENT.
12.1 INDEMNIFICATION.
(a) ATG Indemnity. ATG shall indemnify Customer and its affiliates
from any third party claim (the "Claim") (i) relating to a breach of its
representations, warranties and covenants contained in this Agreement; and (ii)
alleging that the Programs infringe any patent, copyright or other intellectual
property right of a third party.
(b) Customer Indemnity. Customer shall indemnify ATG and its
affiliates from any Claim (i) relating to a breach of its representations,
warranties and covenants contained in this Agreement, and (ii) in the event that
ATG is hosting any of Customer's Programs, from any Claim based upon Customer's
data or content or ATG's use, copying or display thereof.
(c) Further Infringement Obligations. Should any Program become, or
in ATG's opinion be likely to become, the subject of a claim of infringement or
trade secret misappropriation as set forth above, ATG shall, at its option and
expense either: (i) procure for Customer the right to continue to use the
infringing Program, or (ii) replace or modify the infringing Program to make its
use non-infringing without loss of substantial functionality. Notwithstanding
the foregoing, if ATG, in its sole discretion, determines that neither of the
said options is reasonably available to it, ATG, at its option, may terminate
Customer's license for the infringing Program, in which event ATG shall refund
to Customer the unused portion of the License Fees paid in respect of the
Program (determined by depreciating the applicable License Fees paid on a
straight-line basis over three years) and any corresponding unused Maintenance
Fees.
(d) Infringement Exclusions. Regardless of the foregoing, ATG shall
have no liability or obligation to Customer with respect to any claim if such a
claim is based on (i) Customer's use of any altered version of the Programs
(except for any alteration performed by, or in accordance with written
instructions from, ATG), to the extent that Customer's liability for such claim
would have been avoided by the use of an unaltered version of the Programs which
had been made available by ATG to Customer, (ii) Customer's use of any version
of the Programs that is not a supported version (pursuant to Section 1.1(a) of
Addendum A of the Agreement), to the extent that Customer's liability for such
claim would have been avoided by the use of a more recent and unaltered version
of the Programs which had been made available by ATG to Customer, or (iii) the
combination, operation, or use of the Programs with other business processes,
products, devices, software, hardware or data which was not provided by ATG, to
the extent that Customer's liability for such claim would have been avoided in
the absence of such combination, operation, or use.
12.2 Indemnification Process. The foregoing indemnification
obligations of each indemnifying party will be dependant on the indemnified
party: (i) providing the indemnifying party with prompt written notice of a
Claim; (ii) permitting the indemnifying party to control the defense and
settlement of the Claim; (iii) refraining from entering into any settlement or
compromise of any such Claim; (iv) providing the indemnifying party with
reasonable information and assistance for the defense or settlement of the
action; and (v) using all commercially reasonable efforts to mitigate any loss,
damage or costs related to the Claim.
12.3 Entire Liability. THIS SECTION 12 STATES THE ENTIRE LIABILITY OF
BOTH PARTIES WITH RESPECT TO THE INFRINGEMENT OF ANY COPYRIGHTS, PATENTS, OR
OTHER INTELLECTUAL PROPERTY RIGHTS RELATED TO THE PROGRAMS OR THEIR USE.
13. GENERAL.
13.1 Governing Law. This Agreement shall be governed in all respects
by the internal laws of The State of New York, USA, without giving effect to
principles of conflict of laws. The United Nations Convention for the
International Sale of Goods shall not apply to this Agreement.
13.2 Notices. All notices or reports shall be in writing and shall be
delivered by personal delivery, facsimile transmission, overnight mail or by
certified or registered mail, return receipt requested, and shall be deemed
given upon personal delivery, five days after deposit in the mail, or upon
acknowledgment of receipt of electronic transmission. Notices shall be sent to
the addresses set forth on the first page of this Agreement, with a copy to the
General Counsel of each party, or to such other address as either party may
specify in advance in writing.
13.3 No Agency. Nothing contained in this Agreement shall be
construed as creating any agency, partnership, or other form of joint enterprise
between the parties.
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13.4 Injunctive Relief. Each party acknowledges that its breach of
this Agreement may cause the other party immediate and irreparable damage for
which recovery of money damages would be inadequate. Therefore, each party
agrees that the other party shall be entitled to seek injunctive relief to
protect its rights under this Agreement in addition to any other remedies
available to said party.
13.5 Force Majeure. Neither party shall be liable to the other,
following notice thereof, for any failure or delay in the performance of its
obligations (except for required payments pursuant to Section 5 and
confidentiality obligations pursuant to Section 8 for any cause that is beyond
the reasonable control of such party).
13.6 Waiver. If one party fails to enforce a provision of this
Agreement, it shall not be precluded from enforcing the same provision at
another time.
13.7 Severability. If any provision of this Agreement is deemed
unenforceable or invalid by law or by a court decision, the provision shall be
changed and interpreted if possible to accomplish the intent of the provision
within the constraints of the law. Only that provision that is deemed
unenforceable or invalid, and not the entire agreement, shall be invalidated.
13.8 Assignment.
(a) Neither party may assign this Agreement, in whole or in part to
any third party without the prior written consent of the other; provided,
however, such party may assign this Agreement to an entity that acquires all or
substantially all of its assets (by merger, asset acquisition, or otherwise).
(b) ATG retains the right to prohibit any assignment to an ATG
Competitor. "ATG Competitor" means those competitors of ATG specifically
identified in the Company's most recent Form 10K and/or 10Q filed with the
Securities and Exchange Commission,
(c) With respect to any Enterprise-Wide License rights granted to
Customer, in the event of an acquisition or change of control of Customer (by
asset sale, stock sale, merger or otherwise), then the Enterprise-Wide License
right may only be exercised by the Bluefly business unit of such acquired
entity. However, in the event that Customer acquires another entity and Customer
is the surviving entity in such acquisition, the acquired entity shall be
entitled to use any Programs licensed under this Agreement (including under an
Enterprise-Wide License), subject to the terms of this Agreement.
13.9 No Conflicting Terms. ATG shall not accept, and this Agreement
does not operate as an acceptance of, any different or additional terms and
conditions, and this Agreement shall prevail over any such different or
additional provisions, of any Customer order or any other Customer originated
instruments, or any shrink-wrap or click-wrap license.
13.10 Entire Agreement. This Agreement supersedes all previous
agreements, whether oral or written, with respect to its subject matter. This
Agreement may only be changed in a writing signed by authorized representatives
of each party with a copy sent to the General Counsel of each party as specified
in Section 13.2 (Notices).
13.11 Export Compliance. Regardless of whether Customer is a US-based
entity, Customer shall not export or re-export any of the Programs (in whole or
in part) to any country without ensuring that such export complies with the
Export Administration Regulations of the U.S. Department of Commerce, or any
other agency of the U.S. Government, or similar laws governing the export of
software or products of any other government having jurisdiction over such
export, re-export, or use, pursuant to any applicable statute, regulation, or
governmental order. Customer must remain at all times in full compliance with
U.S. Government export policy and regulations and failure of such compliance
shall constitute a material breach of this Agreement.
13.12 U.S. Government Restricted Rights. If used by or provided to the
U.S. Government, the U.S. Government acknowledges that (a) the Software
constitutes "commercial computer software" or "commercial computer software
documentation" for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1(a)
through 3, as applicable, and (b) the U.S. Government's rights are limited to
those specifically granted pursuant to this Agreement. In the event the Programs
are first provided to the U.S. Government prior to December 1, 1995, the
Software is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR
52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. The
contractor/manufacturer is Art Technology Group, Inc., Xxx Xxxx Xxxxxx,
Xxxxxxxxx, XX 00000.
13.13 Software Escrow. Customer's ability to utilize the Program(s)
will be jeopardized if ATG ceases to maintain or support such Program (and fails
to engage a third party to provide such support and maintenance) unless complete
Program source code and related Documentation is made available to Customer for
Customer's use in satisfying Customer's maintenance and support requirements.
Therefore, ATG agrees that if an "Event of Default" occurs, then ATG will
provide to Customer one copy of the most current version of the source code for
the affected Program and associated Documentation in accordance with the
following:
(a) An Event of Default shall be deemed to have occurred if ATG: (i)
ceases to make available, either directly or through a third party, maintenance
or support Services for the Program during a period in which Customer has paid
for and is entitled to receive such maintenance and support and ATG has not
promptly cured such failure despite Customer's demand that ATG make available or
perform such maintenance and support, (ii) becomes insolvent, executes an
assignment for the benefit of creditors, or becomes subject to bankruptcy or
receivership proceedings, which proceedings are not dismissed within 60 days
after filing, or (iii) has transferred all or substantially all of its assets or
obligations set forth in this Agreement to a third party which has not assumed
all of the maintenance and support obligations of ATG set forth in this
Agreement.
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(b) ATG will promptly and continuously update and supplement the
source code as necessary with all revisions, Corrections, enhancements, and
other changes developed for the Program and Documentation. Such source code
shall be in a form suitable for reproduction and use by computer and photocopy
equipment, and shall consist of a full source language statement of the program
or programs comprising the Program and complete program maintenance
Documentation which comprise the pre-coding detail design specifications, and
all other material necessary to allow a reasonably skilled programmer or analyst
to maintain and enhance the Program without the assistance of ATG or reference
to any other materials.
(c) The governing License for the Program includes the right to use
source code received under this Section as necessary solely to maintain the
Program upon the occurrence of an Event of Default.
(d) ATG has deposited in escrow with Iron Mountain Intellectual
Property Management, Inc. (previously known as Data Securities International,
Inc.) a copy of the source code, which corresponds to the most current version
of the Program. Customer shall pay all fees of the escrow agent for services
provided (currently, the fee is less than US$100 per year). ATG shall include
Customer as a third party beneficiary of such escrow agreement upon payment by
Customer of the applicable fee. In such case, the existing escrow agreement
shall be considered a supplemental agreement to this Agreement. ATG's entry
into, or failure to enter into, an agreement with an escrow agent or to deposit
the described materials in escrow shall not relieve ATG of its obligations to
Customer described in this Section.
(e) Customer shall obtain no additional rights to the Program(s) as
a result of a release of the source code from escrow. By way of example but not
of limitation, Customer may not modify the source code except to the extent
necessary to support the Programs in accordance with this section.
(f) Customer's rights to the source code shall cease immediately,
and Customer shall return all such source code and documentation to ATG, if ATG,
a third party, or a successor in interest to ATG, begins to support and maintain
the Programs in accordance with the Maintenance provisions of this Agreement.
Each party represents that the individual signing below is authorized to enter
into this Agreement and to create a legally binding agreement.
ART TECHNOLOGY GROUP, INC. CUSTOMER
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxx Xxxxx
Printed Name: Xxxxx Xxxxxxx Printed Name: Xxx Xxxxx
Title: CFO Title: COO/CFO
Date: 9/28/06 Date: September 28, 2006
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ADDENDUM A
MAINTENANCE AND SUPPORT OF PROGRAMS
This Addendum A, along with the terms of this Agreement into which it is
incorporated by reference, addresses ATG's Maintenance and Support obligations
to Customer.
1. SERVICES.
1.1 GENERAL.
(a) ATG agrees to provide Maintenance and Support services for the
then-current Major Release (defined below) of the Programs (most recent Point
Version) ("n") plus the immediate prior Major Release of the Programs (most
recent Point Version) ("n-1") licensed by Customer. ATG shall continue to
provide Maintenance and Support for the next prior Major Release of the Programs
(most recent Point Version) ("n-2") until the official end-of-life period (as
hereinafter defined) has been reached for such Major Release n-2, at which time
all telephone and e-mail support shall end for Major Release n-2. ATG shall
continue to provide assisted self-service support ("e-Services") to Customer
during the term of this Addendum A for any Major Release. A "Major Release" is a
Program identified by a change in the number immediately to the left of the
decimal point, e.g., ATG Application Server Version 5.1 or 6.1 and a Point
Version is a Program identified by a change in the number immediately to the
right of the decimal point, e.g. ATG Application Server Version 6.1 to 6.2 or
6.2.1.
(b) The "End-of-Life Period" for a Major Release shall be the later
of (a) 12 months after the second subsequent Major Release or (b) 12 months
after written notice from ATG, which notice shall also describe the release
schedule of any remaining patches and information regarding migration to the
then-current Major Release. For illustrative purposes, the end-of-life period of
Major Release n-2 will not occur until at least 12 months after the release of
Major Release n. Specific Maintenance and Support services are described in the
ATG Product Support User's Guide available at the ATG customer support site.
1.2 SUPPORT HOURS.
(a) ATG Premium Support coverage is available via all contact
channels Monday through Friday, excluding holidays, from 9 A.M. to 5 P.M.,
Customer's local time. Coverage is available on these days outside of business
hours via email. Coverage over weekends and holidays is available via pager for
critical and high priority cases.
(b) ATG Standard Support coverage is available Monday through
Friday, excluding holidays, from 9 A.M. to 5 P.M. Customer's local time.
Telephone and/or e-mail Support services for Standard Support will be available
during ATG's normal business hours: Monday through Friday, 9:00 a.m. to 5:00
p.m., Customer's local time, excluding national holidays observed by ATG, unless
Customer has purchased Premium Support.
1.3 Error Correction. Support shall be provided for the purpose of
investigating Program errors that have been reported and documented in writing
by Customer. ATG will acknowledge to Customer receipt of a reported error and
will attempt to recreate Customer-detected errors, provided that the error can
be recreated with an unmodified release of the Programs. ATG will use
commercially reasonable efforts to develop a work-around for the error. To
report an error, Customer shall submit to ATG a listing of output code, a clear
description of the problem and error message(s), information regarding the
equipment and operating system on which the Programs is loaded, and any other
data that ATG may reasonably request in order to attempt to reproduce the
conditions under which the error occurred.
1.4 Designated Contacts. Telephone and e-mail Support will be
limited to Customer's designated contact(s) identified on the Order. Such
individuals will be responsible for reporting any detected errors in the
Programs to ATG. No other individual(s) shall be authorized to report any error
on behalf of Customer. ATG shall not be obligated to respond to any unauthorized
reports, which shall include reports provided by any means other than via the
toll-free telephone number, the applicable fax number, ATG's support Web Site,
or email to the designated email address. Customer may change its designated
representative at any time, and from time to time, upon one (1) business days
advance written notice to ATG.
1.5 Updates, Upgrades and Bug Fixes. During the Term of this
Addendum, ATG shall provide Customer with all updates, upgrades and bug fixes
for the licensed Programs as and when they are made generally commercially
available by ATG.
2. MAINTENANCE AND SUPPORT TERM.
The initial term of this Addendum shall be for a period of twelve (12)
months beginning on the date of delivery of the Programs ("Initial Maintenance
Term") and shall automatically renew for additional twelve (12) month terms
annually on the successive anniversary of the Initial Maintenance Term, unless
Customer provides at least thirty (30) days prior written notice of non-renewal
to ATG. Maintenance may be renewed only for an annual term and only for all
Programs licensed by Customer; partial renewals will not be accepted.
3. FEES.
3.1 General. The Maintenance Fees for the Initial Maintenance Term
shall be as set forth in the Order Form. The Maintenance Fees for each renewal
term shall be in accordance with ATG's rates in effect at the commencement of
such term, which ATG shall make available in writing to Customer before the
expiration of the Initial Maintenance Term or any renewal term. Such rates shall
not, for the originally supported Programs, exceed a percentage of the previous
annual fee that is the greater of (a) five percent (5%), or (b) the percentage
increase in the All Cities Average United States Consumer Price Index (all
items, base period 1982-84=100) for the one year period preceding the notice, as
published by the US Department of Labor.
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3.2 Termination. Except as the result of any material breach by ATG,
upon any termination of this Addendum or the Agreement, ATG shall not be
obligated to return or reimburse any paid Maintenance Fees or any other charges
invoiced prior to the date of termination, except as otherwise set forth in this
Addendum or the Agreement.
3.3 Reinstatement. If Customer terminates Maintenance and Support
services for any reason but subsequently wishes to reinstate such services,
Customer shall pay all fees that would have been due as if there had been no
break in service or, if a new Major Release of the Program has been commercially
released since the date of the termination of such services, then Customer shall
pay the fees applicable to licensing the new Major Release, whichever is
greater.
4. DUTIES OF CUSTOMER.
Customer agrees to cooperate with ATG to the extent reasonably necessary
for ATG to perform its Support services. Such cooperation shall include, but not
be limited to, providing ATG with all information reasonably requested by ATG
personnel.
5. LIMITATIONS.
ATG will be responsible only for supporting the Programs and not for
supporting Customer's own software or any third party software (except as
otherwise set forth in the Order).
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ADDENDUM B
PROFESSIONAL SERVICES
This Addendum B, along with the terms of this Agreement into which it is
incorporated by reference, will govern all professional services engagements by
which ATG agrees to undertake one or more projects for Customer as identified in
separate Statements of Work. Each Statement of Work will be deemed to
incorporate all the terms and conditions of this Addendum and the Agreement and
must be signed by an authorized representative of each party in order to be
valid.
1. THE SERVICES.
1.1 General. ATG will provide the professional services ("Services")
described in statements of work ("Statements of Work"), or program descriptions
attached to an Order Form.
1.2 Statements of Work. Each Statement of Work shall include, at a
minimum, a description of Services to be performed, an estimate of time and
materials to be charged, and any additional terms to which the parties agree. If
a provision contained in a Statement of Work or Order Form is different from a
provision in this Addendum or the Agreement, the provision in the Statement of
Work shall govern, but only as it relates to the details of the Services to be
performed pursuant to that Statement of Work or Order Form. Although ATG
believes that the total estimate of fees and expenses set forth in each
Statement of Work is an accurate estimate, Customer acknowledges that actual
fees and expenses may vary.
2. WARRANTY.
ATG will provide the Services in a professional and workmanlike manner
in accordance with generally accepted industry standards applicable to said
Services. In performing such Services, ATG will not violate any applicable law
or any intellectual property rights of any third party. Except for indemnity
obligations under Section 12, ATG's entire liability and Customer's sole remedy
for any non-conformance with the foregoing warranty shall be ATG's
re-performance of the non-conforming work.
3. CUSTOMER RESPONSIBILITIES.
Customer agrees to provide a suitable working environment for ATG's
staff when they are required to work at the Customer site. Customer also agrees
that its personnel will respond in a timely manner to inquiries from ATG staff
relative to the Services to be performed under any Statement of Work. Customer
acknowledges and agrees that ATG's performance of any Services hereunder is
dependent, in part, on Customer's assistance and actions. Accordingly, any dates
or time periods relevant to the performance of any Services by ATG shall be
extended to account for any delays due to Customer.
4. CHARGES; PAYMENT.
4.1 Charges; Expenses. Charges for the Services will be on a time
and materials basis unless otherwise specified in the Statement of Work. ATG
charges by the day in accordance with the rates in its then-current Price List.
The Customer shall reimburse ATG for all reasonable out-of-pocket expenses
incurred by ATG in connection with the performance of the Services.
4.2 Invoices; Payment. ATG will invoice Customer for charges and
expenses on a regular basis as specified in the Statement of Work, and Customer
shall pay all such invoiced amounts within thirty (30) days of the invoice date.
If Customer fails to make payments when due, ATG, in addition to its other
rights and remedies, will have the right to terminate Services immediately and
to recover its reasonable costs and expenses, including reasonable attorneys
fees, expended in collection of such payments.
5. INTELLECTUAL PROPERTY.
5.1 Ownership. ATG and/or its licensors retain exclusive ownership
of all copyright, patent, trade secret and other proprietary rights in and to
the Programs and any derivative versions ATG creates hereunder, including,
without limitation, the techniques, concepts, algorithms and processes contained
therein. All such information shall be treated as Confidential Information of
ATG in accordance with Section 8 of the Agreement. ATG grants to Customer a
nonexclusive, nontransferable (subject to the assignment provisions contained in
the Agreement), worldwide, royalty-free, perpetual right and license to use any
deliverables produced hereunder solely in conjunction with, and consistent in
scope with, Customer's permitted use of the Program under this Agreement,
subject to the terms of this Agreement.
5.2 Authorship Credits. To the extent that portions of the Programs
or pre-existing ATG code are incorporated in deliverables, all such
deliverables, as used by Customer, shall display appropriate copyright and
authorship credits in software program code and associated documentation.
5.3 Education and Training. If the Services include education and
training, then ATG and its suppliers retain all right, title and interest in and
to the courseware (software and documentation) provided in conjunction with such
training.
6. NO SOLICITATION OF EMPLOYEES.
Until one year after the date ATG has completed any Services, each party
agrees that it will not, directly or indirectly, solicit, interfere with or try
to entice away any employee of the other party. This provision shall not apply
to newspaper, Internet, or similar employment solicitations directed to the
public at large.
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