EXHIBIT 10.1
APPLICATION SERVICE PROVIDER (ASP)
SOFTWARE LICENSE AGREEMENT
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THIS APPLICATION SERVICE PROVIDER AGREEMENT (this "Agreement") is dated this
28th day of December 2001 between Stellent, Inc. ("Stellent"), a Minnesota
corporation, having its principal offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Active IQ Technologies, Inc., a Minnesota corporation with
principal offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ #▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"ASP").
THIS AGREEMENT SUPERCEDES ANY "SHRINK-WRAP" OR OTHER FORM OF LICENSE AGREEMENT
WHICH MAY BE PACKAGED WITH THE SOFTWARE OR INCORPORATED INTO THE MEDIA ON WHICH
THE SOFTWARE IS SHIPPED.
THE SOFTWARE IS COPYRIGHTED AND LICENSED (NOT SOLD). STELLENT DOES NOT SELL OR
TRANSFER TITLE TO THE SOFTWARE TO THE ASP. THE LICENSE GRANTED TO THE ASP UNDER
THIS AGREEMENT SHALL NOT COMMENCE UNTIL THE ASP HAS EXECUTED THIS AGREEMENT AND
AN AUTHORIZED REPRESENTATIVE OF STELLENT HAS RECEIVED, APPROVED, AND EXECUTED A
COPY OF IT AS EXECUTED BY THE ASP.
1. DEFINITIONS. As used in this Agreement:
1.1. "Application" shall mean online subscription based application
services of the ASP incorporating the Software and marketed to
Customers.
1.2. "Customer" shall mean a person, corporation or similar entity which
has entered into a subscription agreement for the Application and
may grant to Subscribers access rights to the Application.
1.3. "Software" means the object code version of Stellent's software
program(s) listed on Attachment A, together with any fixes, updates,
modifications, enhancements, and new versions (if any) as may, from
time to time, be provided as part of Stellent's support service(s).
The term "Software" also includes the documentation and other
written materials packaged with this Agreement, together with such
additional documentation and materials as may, from time to time, be
provided by Stellent for use in connection with the Software
(collectively, the "Documentation").
1.4. "Subscriber" shall mean a person authorized by a Customer to access
the Application incorporating the Software for purposes of
submitting and editing managed content, and has authority to perform
standard end-user functions, including, but not limited to,
searching, viewing and printing managed content.
2. GRANT OF LICENSE. In consideration of payment of the applicable fees as
discussed below, Stellent hereby grants to the ASP an exclusive,
sublicensable license to host the Software for itself and third parties on
the servers in its host computer system located its principal place of
business for the sole purpose of managing documents on internal and
external Web sites in accordance with the Documentation. If the ASP hosts
more than thirty (30) instances of the Software, it hereby agrees that it
will provide written notice to Stellent and shall pay to Stellent any and
all fees payable by Stellent to licensors of third party software or
applications included within the Software.
The ASP may use the services of third party agents to market the
Applications to potential Customers provided however that the Applications
shall only be hosted by the ASP or its authorized outsourcers as permitted
herein.
As used herein, "exclusive license" means that so long as the ASP meets the
minimum royalty commitments as described on Attachment D, Stellent shall
not, nor shall Stellent grant to another third party the right to, provide
a for profit application service provider offering during the term of this
Agreement. If a third party requests that Stellent grant to such third
party the right to provide a for profit application service provider
offering, Stellent shall refer such third party to the ASP and the ASP and
Stellent shall negotiate in good faith the amount of compensation due and
owing to Stellent for such referral. Further, Stellent agrees that during
the term of this Agreement, Stellent shall not directly solicit the
Customers with the sole intent of inducing such Customers to terminate its
use of the Applications by purchasing the software products of Stellent.
However, the foregoing shall not prevent Stellent from engaging in its
normal business practices and any such activities shall not be deemed to be
a breach of this Agreement nor entitle the ASP to any compensation
therefor.
Notwithstanding anything contained in this Agreement to the contrary, the
ASP acknowledges that Stellent is a party to application service provider
agreements with third parties that may provide for profit application
service provider offerings to end users and the existence of such
agreements shall constitute neither a transgression of the exclusive
license granted to the ASP herein nor entitle the ASP to receive any
compensation therefor.
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The ASP may make thirty (30) copies of the Software to be used only for
backup purposes and for providing redundancy to Customers and Subscribers.
The ASP shall provide all equipment and services necessary for operation
and maintenance of the Application. The ASP shall be solely responsible for
providing bandwidth for web communication for the Application as well as
information regarding data back-up procedures, security and other functions
as reasonably requested by the Customers or the Subscribers.
3. SUBSCRIPTION AGREEMENTS. The ASP may grant to Subscribers access to the
Software via an Internet connection but solely as part of the Applications.
Any and all access to the Applications shall be accomplished under a
written subscription agreement between each Customer and the ASP. The ASP
shall obtain the prior written consent of Stellent as to the form of the
subscription agreement. The ASP agrees that it will not make any changes,
modifications or additions to the subscription agreement that could impair
or harm Stellent's interests or intellectual property rights in the
Software. Without limitation of the foregoing, no subscription agreement
shall include any term that purports to expand any indemnity, warranty,
maintenance or other obligation or liability of Stellent under this
Agreement. The ASP shall promptly notify Stellent of any violation of a
subscription agreement of which it becomes aware, and will take
commercially reasonable efforts to enforce each subscription agreement with
at least the same degree of diligence that is uses in enforcing similar
agreements governing use of its own products. The ASP agrees that all
subscription agreements shall name Stellent as a third party beneficiary of
such agreements with respect to provisions relating to the Software and
that such provisions are also enforceable by Stellent.
4. OWNERSHIP. This Agreement does not grant to the ASP or any third party any
right to use the Software except as expressly set forth herein, nor does it
grant to the ASP or any third party any ownership right, title or interest
in or to the Software. All right, title and interest in and to the
copyrights, trademarks, patents, trade secrets and other intellectual
property rights in the Software are and shall remain with Stellent and/or
Stellent's suppliers. The ASP hereby agrees to reproduce the copyright and
other notices relating to the rights of Stellent and its suppliers on every
copy or partial copy of the Software that it makes. The ASP shall not
remove, obscure, or modify any such notices without Stellent's prior
written consent. The Application shall display to Subscribers certain
notices notifying the Subscribers that the Application contains Software of
Stellent. The placement and content of such notices shall be mutually
agreed upon in writing by Stellent and the ASP.
5. PROTECTION OF INTELLECTUAL PROPERTY. The ASP acknowledges that the Software
contains confidential and proprietary information and substantial and
valuable trade secrets of Stellent and its third party suppliers. The ASP
shall use the same care to protect the Software against any use, copying,
disclosure or dissemination not expressly authorized by this Agreement that
it uses to protect its own most valuable proprietary information and
materials, but in no event less than the care a reasonable business person
would use under similar circumstances. Without limiting the foregoing, the
ASP may not give any third party access to the Software other than as
explicitly set forth herein (other than as Customers or Subscribers),
except third-party contractors who need access to the Software to perform
services for the ASP and who have signed a non-disclosure agreement
agreeing to protect the confidentiality of the Software.
6. RESTRICTIONS. The ASP shall not, and shall not authorize or permit third
parties to (a) use, copy, modify, or prepare derivative works of the
Software or any part thereof, except as expressly authorized in this
Agreement; (b) distribute, lease, sublicense, lend, give, transfer, assign
or otherwise make all or any portion of the Software available to any third
party, except as expressly authorized in this Agreement; or (c) reverse
engineer, decompile or disassemble the Software or cause or allow discovery
of the source code of the Software or attempt to do so, except to the
extent the foregoing restriction is expressly prohibited by applicable law.
7. PRICE AND PAYMENT. In consideration for the license granted in this
Agreement, the ASP hereby agrees to pay the fees as set forth on Attachment
C attached hereto. The ASP also agrees to pay directly or to reimburse
Stellent for all sales, use or other taxes resulting from the transaction
covered by this Agreement, except taxes based on Stellent's net income.
Terms of payment are net thirty (30) days from date of invoice, unless
other terms have been agreed upon and made in writing and signed by a duly
authorized representative of Stellent.
8. TERM AND TERMINATION. The license granted under this Agreement will
commence upon execution of this Agreement and shall continue in force for a
term of 3 YEARS (subject to the provisions of Attachment D). Other than as
set forth in Attachment D, this Agreement shall be renewed upon the mutual
written agreement of both parties. This Agreement may be immediately
terminated by either party after thirty (30) days written notice of
material breach and failure to correct such material breach . Upon the
termination of this Agreement, the ASP must (a) cease all use of the
Software, (b) destroy or return to Stellent all copies of the Software in
the ASP's possession or under its control, and (c) deliver to Stellent a
certificate signed by an officer of the ASP verifying compliance with this
Paragraph 8.
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9. WARRANTIES. Stellent warrants, for the benefit of the ASP alone (a) that it
has the right to grant the license granted in this Agreement; and (b) to
the best of its knowledge, the Software does not violate any U.S. patent,
trademark, copyright, trade secret, privacy right or other third party
intellectual property rights; and (c) that for a period of thirty (30) days
after shipment of the Software, the Software, when operated with the
equipment configuration and in the operating environment specified in the
Documentation, will perform substantially in accordance with the technical
specifications included or referred to in the Documentation. ALL THIRD
PARTY SOFTWARE IS PROVIDED WITHOUT WARRANTY OF ANY KIND AND THE ASP IS
RESPONSIBLE FOR THE ENTIRE RISK WITH RESPECT TO ITS QUALITY AND
PERFORMANCE.
10. REMEDIES. As the sole and exclusive remedy of the ASP for any breach of
warranty set forth in Paragraph 9(c) above, and as Stellent's entire
liability in contract, tort, or otherwise for a breach of section 9(c),
Stellent shall use commercially reasonable efforts to correct or cure such
defect in a reasonably timely manner by issuing corrected instructions, a
fix or a bypass, and if Stellent cannot correct or cure such defect in a
reasonably timely manner), Stellent shall refund all prepaid royalties to
ASP set forth in Section 2.2 of Attachment C. If Stellent has not corrected
such defect or error after it has had a reasonable opportunity to do so,
the ASP shall have the right to terminate this license with respect to the
defective or nonconforming module(s) of the Software, and Stellent shall
refund the amount paid by the ASP as the license fee for the defective or
nonconforming module(s) of the Software. These remedies are provided on the
condition that (a) the ASP reports the defect or error within the warranty
period and provide Stellent with information sufficient to allow Stellent
to reproduce the defect or error; (b) the ASP has not modified, misused or
damaged the Software; and (c) Stellent's examination of the Software
discloses that the defect or error actually existed. Ongoing Software
support and maintenance is available from Stellent at additional cost as
set forth on Attachment C attached hereto.
11. DISCLAIMER OF WARRANTIES. THE WARRANTIES SET FORTH IN PARAGRAPH 9 ARE IN
LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES ON THE PART OF STELLENT AND
ITS SUPPLIERS WITH RESPECT TO THE SOFTWARE. EXCEPT AS EXPRESSLY STATED IN
PARAGRAPH 9, STELLENT MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE
SOFTWARE. WITHOUT LIMITING THE FOREGOING, STELLENT DOES NOT WARRANT THAT
THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET THE ASP'S REQUIREMENTS OR
THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. ALL
THIRD PARTY SOFTWARE IS PROVIDED WITHOUT WARRANTY OF ANY KIND, AND THE ASP
IS RESPONSIBLE FOR THE ENTIRE RISK WITH RESPECT TO ITS QUALITY AND
PERFORMANCE.
12. LIMITATION ON LIABILITY. Except for claims arising out of the ASP's
indemnification obligations to Stellent or for violations of Stellent's
intellectual property rights in and to the Software, the cumulative
liability of either party for all claims relating to the Software or
arising under this Agreement, whether in contract, tort, or otherwise,
shall not exceed the total amount of all pre-paid royalty and license fees
paid by the ASP to Stellent for the Software licensed under this Agreement.
Except for claims arising out of the ASP's indemnification obligations to
Stellent or for violations of Stellent's intellectual property rights in
and to the Software, in no event shall either party or their suppliers be
liable for any indirect, special, incidental, consequential, or exemplary
damages, including without limitation, damages for lost profits or
revenues, loss of use of any software or hardware, loss of data, or
interruption of business, whether claimed in contract, tort, or otherwise,
even if Stellent is informed of the possibility of such loss or damage. The
limitations of liability set forth in this Paragraph 12 are intended to
apply without regard to whether other provisions of this Agreement have
been breached or proved ineffective and without regard to the success or
effectiveness of other remedies.
13. INDEMNIFICATION FOR INFRINGEMENT. If a third party claims that the Software
infringes any copyright, U.S. patent, U.S. trade secret or similar U.S.
intellectual property right, and provided that the ASP is not in default
under this Agreement, Stellent shall defend the ASP against such claim at
Stellent's expense and pay all damages against the ASP; provided, however,
that the ASP shall promptly notify Stellent in writing of the claim, and
allow Stellent to control, and cooperate with Stellent in, the defense or
settlement of the claim. If such a claim is made or appears possible,
Stellent may, at its option, secure for the ASP the right to continue to
use the Software, modify or replace the Software so that it is
non-infringing but retains substantially the same functionality, or, if
neither of the foregoing options is reasonably available, require the ASP
to return the infringing module(s) of the Software for a refund equal to
the amortized value of the remaining prepaid royalties set forth in Section
2.2 of Attachment C (using a straight line sixty (60) month amortization
schedule). The foregoing notwithstanding, Stellent shall have no obligation
to indemnify the ASP for any claim (a) based on a modification or misuse of
the Software, or (b) based on the combination, operation or use of the
Software with any product, data or apparatus not specified or provided by
Stellent, if the claim would have been avoided had the Software not been
combined, operated or used with such product, data or apparatus. THIS
PARAGRAPH STATES STELLENT'S ENTIRE OBLIGATION TO THE ASP AND THE SOLE
REMEDY OF THE ASP FOR CLAIMS OF
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INFRINGEMENT OR BREACH OF THE WARRANTY SET FORTH IN PARAGRAPH 9 ABOVE.
14. INDEMNIFICATION FOR INFRINGEMENT BY THE ASP. The ASP hereby agrees to
defend, indemnify, and hold harmless Stellent and its third-party suppliers
from and against any claims, loss, liability, or damages (including, but
not limited to, reasonable attorneys' fees) arising out of the operation or
use of the Software and any third-party content accessed using the
Software, which is not covered by Stellent's warranty and indemnity
obligations hereunder . THE ASP'S USE OF ANY MATERIALS OBTAINED BY USE OF
THE SOFTWARE IS SUBJECT TO APPLICABLE COPYRIGHT LAWS AND NEITHER STELLENT
NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INFRINGEMENT.
15. INJUNCTIVE RELIEF. The ASP acknowledges that the use, copying, disclosure
or dissemination of the Software, or the trade secrets embodied therein, in
a manner not authorized by this Agreement would cause irreparable harm to
Stellent that could not be fully remedied by monetary damages. The ASP
therefore agrees that Stellent shall be entitled, in addition to any other
remedies available to it at law or in equity, to such injunctive or other
equitable relief as may be necessary or appropriate to prevent such
unauthorized use or disclosure without the necessity of proving actual or
irreparable damage by reason of any such unauthorized use, disclosure,
dissemination or copying.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the State of
Minnesota and the ASP consents to personal jurisdiction and venue in
Minnesota. The United Nations Convention on Contracts for the International
Sales of Goods is specifically excluded from application to this Agreement.
The ASP will comply with all foreign and domestic laws and will not export
or re-export the Software without the Stellent's prior written
authorization and without appropriate United States or foreign government
licenses and approvals.
17. ASSIGNMENT. The ASP may not transfer or assign its rights or obligations
under this Agreement without Stellent's prior written consent, except that
it may assign its rights and obligations under this Agreement to its
successor in interest by merger, operation of law or otherwise, or to any
individual or entity that purchases the ASP's entire business, provided
such successor assumes in writing all of the ASP's obligations under this
Agreement.
18. U.S. GOVERNMENT. If the Software is being provided to the Department of
Defense, the Government's rights to use, modify, reproduce, release,
perform, display, or disclose shall be specified in the license customarily
provided to the public (DFARS 227.7202-4). RESTRICTED RIGHTS---In all other
cases, the Government's rights to use, duplicate, or disclose this
commercial software and related documentation is subject to the
restrictions as set forth in subparagraphs (c) (1) and (2) of Commercial
Computer Software--Restricted Rights at 48 CFR 52.227-19, as applicable.
Manufacturer is Stellent, Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
NOTICE. All notices, demands and requests required or permitted to be given
under this Agreement or shall be in writing and delivered (a) personally or
by local courier, (b) by a nationally recognized overnight courier or (c)
sent by United States certified mail, return receipt requested, postage
prepaid and addressed to the parties at their respective addresses set
forth above. Notices shall be effective upon receipt if delivered
personally, by local courier or by certified mail and on the next business
day if sent by overnight courier.
19. MISCELLANEOUS. No amendment to this Agreement shall be binding unless made
in writing and signed by a duly authorized representative of the party
against whom enforcement is sought. Whenever the consent of a party is
required, such consent may be withheld in that party's sole and absolute
discretion. The failure of either party at any time to require performance
of any provision of this Agreement or to exercise any right provided for
herein shall not be deemed a waiver of such provision or such right. All
waivers must be in writing. Unless the written waiver contains an express
statement to the contrary, no waiver by either party of any breach of any
provision of this Agreement or of any right provided for herein shall be
construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself, or a waiver of any right under
this Agreement. All remedies provided for in this Agreement shall be
cumulative and in addition to and not in lieu of any other remedies
available to either party at law, in equity or otherwise. This Agreement
contains the entire understanding and agreement between the parties with
respect to the subject matter hereof and supersedes all previous
communications, negotiations and agreements, whether oral or written,
between the parties with respect to such subject matter. Any obligations
that by their nature continue after the expiration of this Agreement shall
remain binding upon the parties.
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Accepted:
STELLENT, INC. ACTIVE IQ TECHNOLOGIES, INC.
By: s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: s/ D. ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: D. ▇▇▇▇▇▇ ▇▇▇▇
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Title: CEO/President Title: CEO/President
-------------------------------- --------------------------
Date: 12/28/01 Date: 12/28/01
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ATTACHMENT A
SOFTWARE
Stellent Content Server
Stellent Content Publisher
Stellent Dynamic Converter
Stellent Site Builder
Stellent PDF Converter*
Stellent XML Converter
Stellent Content Categorizer
Stellent Content Tracker
Stellent Report Parser
Stellent Compression
Stellent InterCAD
Stellent Tiff Conversion
Stellent PDF Watermark
Stellent PDF Interchange
Stellent PDF Merge
Stellent Enterprise Search
*The ASP hereby agrees that for each transfer of an Application utilizing PDF
Converter, it shall comply with the applicable terms and conditions of Amendment
No. 2 to the Adobe Software Single Tier Reproduction and License Agreement among
Stellent, Adobe Systems Inc. and Adobe Systems Benelux, B.V. attached hereto as
Attachment E (the "Adobe Agreement"). The ASP hereby agrees to indemnify
Stellent from and against any and all damages, costs arising out of the ASP's
failure to so comply.
Stellent hereby agrees that it shall not modify the license fee rates set forth
in Amendment No. 2 to the Adobe Agreement without first consulting with the ASP.
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Pursuant to Item 601(b)(2) of Regulation S-K, certain Attachments, Schedules and
Exhibits have been omitted from this Agreement. The Registrant will furnish a
copy of any omitted Attachment, Schedule or Exhibit to the Commission upon
request.
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