OneSoft Corporation has omitted from this Exhibit 10.30 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
EXHIBIT 10.30
ONESOFT LICENSE AGREEMENT
Number: **********
This License Agreement (this "License Agreement") is entered into as of
, 1999 by and between OneSoft Corporation, a Delaware corporation
---------------
having an office at 0000 Xxxx Xxxxxx Xxxxx, XxXxxx, XX 00000 ("ONESOFT"), and
Xxxxxxx.xxx, having an office at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
("CUSTOMER").
In the event of a conflict between provisions of this License Agreement (or a
Services Schedule) and those of a Product Schedule (as defined), the provisions
of this License Agreement shall govern. In the event of a conflict between
provisions of this License Agreement and those of a Services Schedule (as
defined), the provisions of this License Agreement shall govern. The provisions
of a Services Schedule shall not affect interpretation of the provisions of a
Product Schedule and the provisions of a Product Schedule shall not affect
interpretation of the provisions of a Services Schedule.
The parties hereby agree as follows:
--------------------------------------------------------------------------------
1. DEFINITIONS
(a) "Agreement" means this License Agreement together with each Product
Schedule and each Services Schedule, attached to this License Agreement and
executed by both parties' duly authorized representatives.
(b) "Product Schedule" means a document attached to this License Agreement
that specifies software products licensed under the Agreement and any additional
terms and conditions applicable to such license(s).
(c) "Services Schedule" means a Software Maintenance Services Schedule
attached to this License Agreement that specifies software maintenance services
to be provided by ONESOFT under this License Agreement and any additional terms
and conditions applicable to such services.
2. FEES AND GENERAL PAYMENT TERMS
(a) During the term of this License Agreement ONESOFT shall provide
services ("Services") in accordance with Services Schedules and shall license
software products in accordance with Product Schedules.
(b) Except as otherwise provided in a Product Schedule or Services
Schedule, CUSTOMER shall pay ONESOFT its then-current published rates for
Services provided under each Services Schedule and for licenses granted under
each Product Schedule, as such rates may be adjusted from time to time. ********
to ********** of ********* at ****** to its *******.
(c) All ONESOFT rates are exclusive of any applicable sales, use,
value-added, or other federal, state or local taxes, or any import duties or
tariffs imposed on the subject matter or transactions under this Agreement, and
CUSTOMER shall be responsible for all such taxes, duties and tariffs, except
that ONESOFT shall be responsible for any corporate franchise taxes imposed on
ONESOFT by law and for any taxes based on its net income or gross receipts.
(d) Except as otherwise provided in a Product Schedule, CUSTOMER shall pay
fees due under a Product Schedule upon execution of the Product Schedule. Except
as otherwise provided in a Product Schedule or Services Schedule, ONESOFT shall
invoice CUSTOMER for payments due under the Agreement on a monthly basis. Each
ONESOFT invoice shall be due ******** days from the date of invoice; provided,
however, that payments due with respect to Services Schedules will be invoiced
separately from payment due with respect to Product Schedules. CUSTOMER
acknowledges and agrees that under the terms of the Agreement, no CUSTOMER
purchase order ("PO") is required for the payment of ONESOFT invoices by
CUSTOMER. In the event that a PO is required by CUSTOMER for its internal
processes, (i) CUSTOMER shall issue such PO in a timely manner such that ONESOFT
invoices may be issued and paid in accordance with the provisions of the
Agreement and any failure by CUSTOMER to do so shall not excuse CUSTOMER from
its obligations under the Agreement; and (ii) any terms stated on a PO shall not
apply for purposes of the Agreement and the PO shall be deemed merely to
indicate CUSTOMER's authorization for payment in accordance solely with the
provisions of the Agreement.
(e) CUSTOMER shall pay in full all customary and reasonable travel expenses
incurred by ONESOFT that result from providing services to CUSTOMER under the
Agreement in geographic locations other than a ONESOFT facility, subject to
CUSTOMER's approval, which shall not be unreasonably withheld or delayed.
(f) CUSTOMER shall notify ONESOFT of any dispute regarding an invoice
within ******* days of the receipt of invoice. If CUSTOMER fails to notify
ONESOFT of any dispute with respect to an invoice within ******* days of
receipt, CUSTOMER shall be deemed to have accepted the invoice in its
OneSoft Confidential Information 1
entirety. CUSTOMER shall have ********* days following the payment due date to
resolve the dispute or make payment in full of all amounts so disputed. ONESOFT
shall work with CUSTOMER in good faith to resolve CUSTOMER's dispute in a timely
manner. CUSTOMER shall not have any right to withhold or setoff any amounts due
ONESOFT.
(g) Notwithstanding any other provision of the Agreement, if CUSTOMER fails
to pay any ONESOFT invoice in full by the due date, ONESOFT may, in its sole
discretion, suspend all or any part of its Services to CUSTOMER under this
Agreement until payment is received or, if such failure remains uncured fifteen
(15)days after written notice to CUSTOMER, terminate such Services. ONESOFT
shall incur no liability, due to ONESOFT's suspension or termination of its
Services pursuant to this paragraph (g). ONESOFT also reserves the right to
charge interest at the maximum rate allowed by law on all amounts past due, and
to assert appropriate liens to ensure payment.
(h) In the event that ONESOFT is substantially the prevailing party in an
action to collect any sum due under the Agreement, ONESOFT shall be entitled to
recover its related costs and expenses (including without limitation reasonable
attorneys' fees and court costs) from CUSTOMER.
3. CONFIDENTIAL INFORMATION
(a) Each party acknowledges that it may be the recipient of confidential
information ("Confidential Information") of the other party including, without
limitation, software, computer programs, object code, source code, database
schemas, specifications, flow charts, marketing plans, financial information,
business plans and procedures, the terms of the Agreement, ONESOFT's Client
Guide, employee information, and other information that the receiving party may
reasonably understand, from legends, the nature of such information or the
circumstances of its disclosure, to be confidential. Confidential Information
does not include (i) information independently developed by the recipient
without reference to the other party's Confidential Information; (ii)
information in the public domain through no wrongful act of the recipient, or
(iii) information received by the recipient from a third party who was
rightfully in possession of such information and had no obligation to refrain
from disclosing it. As such, ONESOFT has no right to any customer, order and
product data generated by the CUSTOMER's site and acknowledges that this is
property of the CUSTOMER.
(b) Except as expressly authorized in the Agreement, or as required by law,
the party that is the recipient of Confidential Information of the other party
agrees that during the term hereof, and at all times thereafter, it shall not
use, commercialize or disclose such Confidential Information to any person or
entity, except to its own employees having a need to know and to such other
recipients as the other party may approve in writing. Each party shall use at
least the same degree of care in safeguarding the other party's Confidential
Information as it uses in safeguarding its own Confidential Information, but in
no event shall less than reasonable care be exercised.
(c) All Confidential Information of ONESOFT disclosed to CUSTOMER shall
remain the exclusive property of ONESOFT. All Confidential Information of
CUSTOMER disclosed to ONESOFT shall remain the exclusive property of CUSTOMER.
(d) Each party agrees that it will not remove any proprietary, trademark,
copyright, confidentiality, patent or other intellectual property notice or
marking from an original or any copy of any software, documentation, display,
media or other materials or Confidential Information, delivered or disclosed to
such party by the other party or under the Agreement.
(e) CUSTOMER agrees that is shall not (nor shall it permit anyone else to)
reverse engineer decompile, disassemble, or modify any software delivered or
disclosed to CUSTOMER by ONESOFT or separate any such software into components
or its component files, or recreate, or attempt to determine the makeup of any
such software. CUSTOMER agrees that all information discovered through any
failure to comply with the next preceding sentence is and shall at all times
remain the exclusive property and Confidential Information of ONESOFT.
(f) In the event that a party is required by law or judicial or
administrative process to disclose Confidential Information of the other party,
such party shall use all reasonable efforts to promptly notify the other party
and allow the party a reasonable opportunity to oppose disclosure. In addition,
a party shall furnish only the portion of the Confidential Information that it
is legally required to disclose and shall use all reasonable efforts to obtain
reliable assurances that confidential treatment will be accorded the
Confidential Information.
4. INTELLECTUAL PROPERTY
(a) Except as expressly set forth in a Product Schedule, nothing in the
Agreement shall be deemed to authorize the CUSTOMER to use any copyright, name,
trademark, service xxxx, or patent or other intellectual property right of
ONESOFT.
(b) CUSTOMER acknowledges that any underlying technology, techniques,
algorithms, methods or know-how, or process used in the design, development,
programming, or coding of ONESOFT's software products, tools, or objects, is
exclusively the intellectual property of ONESOFT(unless such technology,
techniques, algorithms, methods or know-how are in the public domain), and
certain of the same are protected by patents or patents pending.
5. PUBLIC RELATIONS
(a) (a) ONESOFT may disclose its relationship with CUSTOMER in ONESOFT's
promotional, advertising, and marketing materials and may use CUSTOMER's
standard graphics, logos, imagery, and its name and URL in ONESOFT's
promotional, advertising and marketing materials with prior CUSTOMER consent,
such consent not to be unreasonably withheld given the circumstances. At its
discretion, CUSTOMER may agree to serve as a reference for potential press,
analysts and prospective customers when requested by ONESOFT.
(b) Subject to the approval of CUSTOMER, such approval not to be
unreasonably withheld given the circumstances, ONESOFT may provide CUSTOMER with
ownership graphics and any associated hypertext links, to be placed on the web
pages (collectively, the "Web Site") that include functionality of a ONESOFT
software product.
(c) ONESOFT may from time to time submit or otherwise identify to third
parties the Web Site so that the Web Site may be
OneSoft Confidential Information 2
considered for and become eligible to receive awards and other similar forms of
recognition.
6. LIMITATIONS ON LIABILITY
(a) UNDER NO CIRCUMSTANCES SHALL ONESOFT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES,
OF ANY KIND WHATSOEVER, OR FOR ANY LOST PROFITS, BUSINESS OR REVENUE, LOSS OF
USE OR GOODWILL, OR OTHER LOST ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATED TO
THE AGREEMENT OR THE BREACH HEREOF, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF
CONTRACT, STRICT LIABILITY, TORT, ANY FEDERAL OR STATE STATUTORY CLAIM, OR ANY
OTHER LEGAL THEORY, EVEN IF ONESOFT KNEW, SHOULD HAVE KNOWN, OR HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION SHALL SURVIVE AND
APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS DETERMINED TO
HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(b) EXCEPT FOR ONESOFT'S LIABILITY FOR INFRINGEMENT CLAIMS UNDER SECTION
8(a)(iv) OR FOR THE BREACH OF ITS OBLIGATIONS UNDER SECTION 3, THE TOTAL
AGGREGATE LIABILITY OF ONESOFT FOR DAMAGES UNDER THE AGREEMENT SHALL BE LIMITED
TO *************** UNDER THE AGREEMENT; PROVIDED HOWEVER THAT, IN ANY EVENT
ONESOFT'S LIABILITY FOR DAMAGES RELATING TO ANY ONESOFT ********** SHALL BE
*********** FOR THE ************ TO THE ******* AND ONESOFT'S LIABILITY FOR
DAMAGES RELATING TO ONESOFT ******** SHALL BE LIMITED TO THE ****** OF: THE
************* FOR *******THE ********* THE **********, OR THE ************ FROM
********* FOR ********WITH RESPECT TO THE ************ UNDER WHICH THE
CUSTOMER'S CLAIM AROSE, DURING THE ************** THE TIME CUSTOMER'S CLAIM
AROSE.
7. AUDIT
(a) CUSTOMER agrees to maintain complete and accurate records containing
all data reasonably required for verification of its compliance with the terms
of the Agreement.
(b) ONESOFT agrees to maintain complete and accurate records and
documentation containing all data reasonably required for verification of its
compliance with the terms of the Agreement.
(c) CUSTOMER also agrees that ONESOFT may conduct remote license auditing
of CUSTOMER's web site to verify CUSTOMER's compliance with the terms of the
Agreement and the licenses granted under the Agreement.
8. INDEMNIFICATION
(a) Except to the extent ONESOFT has acted at CUSTOMER's direction or in
accordance with CUSTOMER's specifications, ONESOFT will indemnify, defend and
hold harmless CUSTOMER from all costs and expenses (including reasonable
attorneys' fees and court costs) arising from a third party claim against
CUSTOMER based on an actual or alleged:
(i) Breach of ONESOFT's representations and warranties;
(ii) Acts or omissions constituting gross negligence or willful
misconduct, committed by ONESOFT;
(iii) Failure by ONESOFT to comply with applicable governmental laws
and regulations; or
(iv) Subject to Section 8(c), infringement by ONESOFT of any United
States patent, United States copyright, United States trademark,
United States trade secret or other United States intellectual
property right.
This Section 8(a) shall not apply to claims arising as a result of CUSTOMER's
improper use of ONESOFT's products or services.
(b) CUSTOMER will indemnify, defend and hold harmless ONESOFT from all
costs and expenses (including reasonable attorneys' fees and court costs)
arising from a third party claim against ONESOFT based on an actual or alleged:
(i) Failure by CUSTOMER to perform its obligations under the
Agreement;
(ii) Breach of CUSTOMER's representations and warranties;
(iii) Act or omission constituting negligence or willful misconduct,
committed by CUSTOMER;
(iv) Failure by CUSTOMER to comply with applicable governmental laws
and regulations; or
(v) Infringement by CUSTOMER (or any property or data provided by
CUSTOMER) of any patent, copyright, trademark, trade secret or other
intellectual property right.
(c) If a claim covered under this Section 8 appears likely or is made, the
party against whom the claim is made will promptly provide the other party with
notice of such claim.
9. INJUNCTIVE RELIEF
The parties acknowledge that monetary damages will not be an adequate
remedy if a party breaches its obligations under Sections 3 or 4 or 7 or 10(b)
of this License Agreement, or Sections 2 or 4 or 6 of any Product Schedule, and
such breach will result in irreparable harm. The parties therefore agree that,
in the event of any such breach, the non-breaching party shall be entitled to
appropriate mandatory or prohibitory injunctive relief against the breaching
party, in addition to any other remedies at law, in equity or under the
Agreement. A party substantially prevailing in an action for injunctive relief
under this Section 9 shall be entitled to recover its costs and expenses for
obtaining such relief (including without limitation reasonable attorneys' fees
and court costs) from the other party.
10. TERMINATION
(a) Except as otherwise provided in the Agreement, either party may
terminate the Agreement or any Product Schedule or Services Schedule, and/or any
related licenses granted hereunder or thereunder, by giving the other party
written notice to that effect, effective on the date of receipt of such notice,
if:
(i) The other party enters into liquidation, whether or not
voluntarily, or a receiver is appointed to all or any material part of
its assets, or the other party
OneSoft Confidential Information 3
becomes bankrupt or insolvent or enters into any arrangement with its
creditors, or takes or suffers any similar action in consequence of
debt or becomes unable to pay its debts as they become due; or
(ii) The other party materially breaches the Agreement and fails to
cure such breach within ********** days of delivery to the breaching
party of written notice of such breach.
(b) If a license granted by ONESOFT to CUSTOMER is terminated for any
reason, CUSTOMER shall after a reasonable transition period given the
circumstances of the termination, cease using any and all of the subject matter
of the license and CUSTOMER shall promptly deliver to ONESOFT all originals and
all copies of any and all of such subject matter and any related documentation.
11. FORCE MAJEURE
A party shall be relieved from an obligation (other than the obligation to
make payments or an obligation under Section 3 or 10(b)) while a cause, outside
of its reasonable control, and that it cannot reasonably circumvent, prevents
the performance of such obligation.
12. RELATIONSHIP OF THE PARTIES; CONTENT
(a) Nothing in the Agreement shall be construed as making either party an
agent of the other party, and neither party shall have the power to bind the
other party or to contract in the name of, or create a liability against, the
other party. Neither party shall be responsible for the acts or defaults of the
other party or any of the other party's employees or agents. The parties are
independent contractors with respect to all matters arising under the Agreement.
Nothing in the Agreement shall be deemed to establish a partnership, joint
venture, association or employment relationship between the parties. With
respect to its employees, a party shall remain responsible, and shall indemnify
and hold harmless the other party, for the withholding and payment of all
federal, state and local personal income, wage, earnings, occupation, social
security, worker's compensation, unemployment, sickness and disability insurance
taxes, payroll levies, or employee benefit obligations.
(b) The parties acknowledge that the Internet is neither owned nor
controlled by any one entity and that one or more third parties may gain access
to ONESOFT software. Electronic mail and other transmissions passing through
ONESOFT systems or over the Internet are not secure, and ONESOFT cannot
guarantee the security or privacy of any of the information or communications
passing through ONESOFT software. IN NO EVENT HOWEVER, WILL ONESOFT BE LIABLE
FOR ANY LOSS OR DAMAGE CAUSED BY A BREACH OF SECURITY, UNLESS SUCH BREACH IS
DIRECTLY CAUSED BY ONESOFT'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO EVENT
WILL ONESOFT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER'S RELIANCE ON ANY
DATA OR OTHER CONTENT OBTAINED THROUGH ONESOFT SOFTWARE.
13. FURTHER ASSURANCES
The parties agree to do all such things and to execute such further
documents as may reasonably be required to give full effect to the Agreement.
14. WAIVER
No waiver of any part of the Agreement shall be effective unless made in
writing by the waiving party. No waiver of any breach of the Agreement shall
constitute a waiver of any other breach of the same, or any other provision, of
the Agreement.
15. ENTIRE AGREEMENT AND CONSTRUCTION
The Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all POs (whether or not
prior) and all prior oral and written understandings, arrangements and
agreements between the parties relating to such subject matter. The parties
agree that there are no other representations or warranties relating to the
subject matter of the Agreement. Headings are included in the Agreement for
convenience only and shall not affect the meaning or construction of the
Agreement's provisions.
16. AMENDMENT
The Agreement may be modified or amended only by means of a writing
executed by both parties (but not by means of a PO).
17. ASSIGNIBILITY AND RESALE
Rights under the Agreement shall not be assigned, sublicensed, encumbered
by security interest, or otherwise transferred or resold by CUSTOMER (whether by
operation of law or otherwise) without the prior written consent of ONESOFT, and
any purported assignment, sublicense, encumbrance or other transfer of such
rights, in violation of the Agreement, shall be void. An amalgamation,
acquisition, or merger of CUSTOMER by or with any person or entity who is not a
party to the Agreement shall be treated as an assignment of the Agreement that
is subject to the provisions of the preceding sentence if ONESOFT determines in
its sole discretion, that such person or entity (a) is a competitor of ONESOFT
or (b) has a financial condition that is materially inferior to CUSTOMER's.
18. COMPLIANCE WITH LAWS
CUSTOMER shall carry out the obligations contemplated by the Agreement and
shall otherwise deal with the subject matter hereof in compliance with all
applicable laws, rules and regulations, of all governmental authorities,
including, without limitation, any applicable legal restrictions on exports, and
shall, at its own expense, obtain all permits and licenses required in
connection with the subject matter hereof. Without limiting the foregoing,
CUSTOMER agrees that it shall comply fully with all applicable export and import
laws, rules and regulations of the United States and other jurisdictions so that
nothing provided by ONESOFT under the Agreement is either (a) exported or
imported, whether directly or indirectly, in violation of such laws, rules or
regulations; or (b) used for any illegal purpose, including without limitation
the proliferation of nuclear, chemical or biological weapons.
19. SUCCESSORS AND ASSIGNS
The Agreement shall inure to the benefit of, and be binding upon the
parties, their successors and permitted assigns.
20. SEVERABILITY
OneSoft Confidential Information 4
If any provision of the Agreement is held to be unenforceable, all
remaining provisions shall remain in full force and effect.
21. GENERAL PROVISIONS
(a) A party shall not directly or indirectly solicit or offer employment
to, or directly or indirectly accept services, by an employee of the other
party, during the term of the Agreement and for one (1) year thereafter, without
the prior written consent of the other party. For purposes of the Agreement, use
of general employment advertising and independent employment agencies, if not
directed at one or more of the other party's employees, shall not constitute
solicitation.
(b) Each party (i) agrees to inform the other party of any information made
available to the other party that is classified or restricted data, (ii) if
given such information and so informed, agrees to comply with the security
requirements imposed by any state or local government, or by the United States
Government, and (iii) if given such information and so informed, agrees return
all copies of such information upon request.
(c) Each party warrants and represents that its entering into and
performing its obligations under the Agreement does not conflict with any
contractual or other obligation of such party or create any conflict of interest
prohibited by the U.S. Government or any other governmental authority, and that
it shall promptly notify the other party if any such conflict arises during the
term of the Agreement.
(d) Each party shall maintain commercially reasonable and adequate
insurance protection covering its respective activities hereunder, including
coverage for statutory workers' compensation, comprehensive general liability
for bodily injury and tangible property damage, as well as adequate coverage for
vehicles. Each party shall indemnify and hold the other harmless from and
against any and all liability for bodily injury, death and tangible property
damage resulting from the acts or omissions of the indemnifying party (or its
officers, agents, employees or representatives acting within the scope of their
work).
(e) Sections 2(b) through (h), 3, 4, and 6 through 23 shall survive the
expiration or termination of the Agreement.
22. ENFORCEMENT
(a) The Agreement shall be governed by and construed in accordance with the
law of the Commonwealth of Virginia, applied without regard to its law of
conflicts.
(b) Subject to Section 22(c), any controversy or claim arising out of or
relating to the Agreement for which the value of the claim at issue is
***********, shall be resolved by arbitration on accordance with the Commercial
Arbitration Rules and supplementary procedures for international commerce
arbitrations of the American Arbitration Association, except that (i) the
parties shall be entitled to reasonable document and deposition discovery from
each other limited to the matters in dispute and (ii) the arbitrator shall
prepare a statement of findings of fact and conclusions of law and deliver the
statement to the Parties with respect to which the Parties shall be bound by the
findings of fact, but a Party may appeal issues of law (or application of law to
the facts) to any court of competent jurisdiction. Otherwise, judgment upon the
award rendered by the arbitrator may be entered in any court of competent
jurisdiction. The arbitration panel shall consist of three arbitrators. CUSTOMER
may name one arbitrator and ONESOFT shall name one arbitrator; each such
arbitrator shall be named within ten (10) days after the date of the date of
notification of the need for arbitration. The two arbitrators named by CUSTOMER
and ONESOFT may have prior relationships with the such naming party, which in a
judicial setting would be considered a conflict of interest. The third
arbitrator, selected by the first two, should be a neutral participant, with no
prior working relationship with any party. If the two arbitrators are unable to
select a third arbitrator within five (5) days, a third neutral arbitrator will
be appointed by the AAA from the panel of commercial arbitrators of any of the
AAA Large and Complex Resolution Programs. If a vacancy in the arbitration panel
occurs after the hearings have commenced the remaining arbitrator or arbitrators
may not continue with the hearing and determination of the controversy, unless
the parties agree otherwise. The arbitration shall be held in the Washington,
D.C. metropolitan area.
(c) Either party may seek from any court of competent jurisdiction,
injunctive and other equitable relief as appropriate.
23. NOTICES
(a) Any notice or other communication to the parties shall be sent to the
contact points identified below or at such other places as they may from time to
time specify by notice in writing to the other party. Any such notice or other
communication shall be in writing and shall be given by delivery to the
designated party of the addressee by pre-paid courier or facsimile with
confirmation. Any such notice or other communication shall be deemed to have
been given when the designated party of the addressee receives such notice.
(b) Point of Contact addresses are as follows:
For ONESOFT: (Technical)
Xxxxxxx X. XxxXxxxxx
OneSoft Corporation
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Telephone: (000) 000-0000
For ONESOFT: (Contractual and Admin.)
Xxxx X. Xxxxxxxx, Esq.
OneSoft Corporation
0000 Xxxx Xxxxxx Xxxxx
XxXxxx, XX 00000
Telephone: (000) 000-0000
For CUSTOMER: (Technical)
--------------------------------
OneSoft Confidential Information 5
------------------------------------ --------------------------
------------------------------------ --------------------------
For CUSTOMER: (Contractual and Admin.) --------------------------
IN WITNESS WHEREOF, the parties have caused this License Agreement to be
executed by their duly authorized representatives as of the date first written
above.
OneSoft Corporation Xxxxxxx.xxx
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx Xxxxxxxx
-------------------------------- -----------------------------------
Name: Xxxx Xxxxxxxx Name: Xxxx Xxxxxx Xxxxxxxx
------------------------------ ---------------------------------
Title: Corporate Counsel Title: Vice President Operations
---------------------------- --------------------------------
OneSoft Confidential Information 6
TRADOCS:1287035.1(RL2Z01!.DOC)
OneSoft Confidential Information 7
OneSoft Corporation has omitted from this Exhibit 10.30 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
EXHIBIT 10.30
ONESOFT SOFTWARE MAINTENANCE SCHEDULE #1
UNDER
LICENSE AGREEMENT
Number: *********
THIS SOFTWARE MAINTENANCE SCHEDULE is entered into as of __________ ___,
1999 under License Agreement Number ******* (the "License Agreement") by and
between OneSoft Corporation, a Delaware corporation having an office at 0000
Xxxx Xxxxxx Xxxxx, XxXxxx, XX 00000 ("ONESOFT"), and Xxxxxxx.xxx, having an
office at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("CUSTOMER").
This Software Maintenance Schedule describes the maintenance to be supplied for
the Software Products (as defined) at the fees described in the Software
Maintenance Addendum #1 attached hereto ("Maintenance Addendum"), which is
hereby incorporated by reference as if fully set forth herein, subject to the
provisions of this Software Maintenance Schedule and the License Agreement. In
the event of a conflict between provisions of the License Agreement and those of
this Software Maintenance Schedule, the provisions of the License Agreement
shall govern.
1.1 Subject to the terms and conditions herein and those of the Agreement,
ONESOFT will provide Software Maintenance Services ("Services") to the CUSTOMER
for the Software Product(s) licensed under the Agreement. "Services," for the
purpose of the Software Product(s) licensed under the Agreement shall include
the provision of Error fixes and Point Releases as generally released by ONESOFT
for a Software Product, as well as Version Releases if new functionality is not
required. These Services shall also include knowledge base and software issue
reporting as defined is Section 1.2 below.
1.1.1. ONESOFT will provide an 800 number for support with a 7x24x365
system to assist CUSTOMER. OneSoft agrees to maintain a log of all
calls from the CUSTOMER to this 1-800 number and provide the
CUSTOMER a monthly copy of said log with appropriate time stamps and
resolution statuses. ONESOFT shall respond to CUSTOMER's calls for
telephone support within two (2) hours, shall classify the severity
level of the incident report and provide the following support:
1.1.2 Critical Severity Level. An incident report is critical if
CUSTOMER'S system is unable to process data through the Software
Product as a result of a catastrophicmajor event in the system
database or Software, or a major application failure in a critical
processing period. In such situations, ONESOFT will use reasonable
commercial efforts to provide a resolution plan or workaround within
********.
1.1.3 High Severity Level. An incident report is high if there is a
serious disruption of a business function that limits CUSTOMER's
ability to conduct some portion of production business. In such
situations, ONESOFT will use reasonable commercial efforts to
provide a resolution plan or workaround within *********.
1.1.4 Low Severity Level. An incident report is low if there is a minor
application issue, including but not limited to inquiries and
requests for information on use or implementation of the Software.
In such situations, ONESOFT will respond to CUSTOMER within
**********.
OneSoft Confidential Information 1
1.2 Notwithstanding the foregoing, ONESOFT shall provide support to
Software point releases for ********* or ********, whichever is longer.
ONESOFT shall not be responsible for repairing defects in a version of the
Software Product that is no longer being supported. As a result, CUSTOMER
may be required to upgrade the Software Product in order to have a software
defect repaired. ONESOFT will notify CUSTOMER prior to the end of the
support period for the Software so that CUSTOMER has an opportunity to
upgrade the Software Product in a timely manner. In the event a CUSTOMER
chooses not to upgrade the Software to a supported Software Product,
ONESOFT may, in its sole discretion, provide the requisite support at such
additional fees as may be mutually agreed upon by the parties.
1.3 ONESOFT, upon receipt of a written request from CUSTOMER, may
provide on-site support at a mutually agreed upon time. CUSTOMER agrees to
pay ONESOFT at it's standard Professional Services rates, as well as all
costs associated with the provision of on-site support, including
reasonable charges for ONESOFT's personnel, travel, lodging and
miscellaneous charges.
1.4 Fees. Upon execution of this Software Maintenance Schedule, CUSTOMER
shall remit payment to ONESOFT for the Software Maintenance Services Fee
equal to ******** (***%) of the fees for the perpetual licenses purchased
by the CUSTOMER for each Software Product, such fees are listed on
Maintenance Addendum attached hereto. Such Maintenance Fee shall cover
Services extended for ************ from the date of execution of this
Maintenance Schedule. The Maintenance Fee shall be automatically renewed at
the then current fee for successive one-year periods unless terminated by
CUSTOMER in writing within thirty (30) days prior to the renewal date.
Notwithstanding the forgoing, CUSTOMER will be afforded a thirty (30) day
period after the renewal date to cancel the automatic renewal and be
refunded any Maintenance Fees paid toward the coming one-year period for
Maintenance Services. In the event CUSTOMER does not renew the Maintenance
Services and then desires to do so in the future, CUSTOMER shall remit to
ONESOFT the ********** of ********** which ********* had it ********* a
********* to ****** percent (**%) of the *********.
1.5 OneSoft warrants that the Services to be provided hereunder will be
provided in a workmanlike manner, consistent with industry standards.
IN WITNESS WHEREOF, the parties have caused this Software
Maintenance Schedule to be executed by their duly authorized representatives as
of the date first written above.
OneSoft Corporation Xxxxxxx.xxx
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx Xxxxxxxx
------------------------------- -------------------------
Name: Xxxx Xxxxxxxx Name: Xxxx Xxxxxx Xxxxxxxx
------------------------------- -------------------------
Title: Corporate Counsel Title: Vice President Operations
------------------------------- -------------------------
OneSoft Confidential Information 2
OneSoft Confidential Information 3
OneSoft Corporation has omitted from this Exhibit 10.30 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
1.
EXHIBIT 10.30
ONESOFT PRODUCT SCHEDULE #1
UNDER
LICENSE AGREEMENT
Number: ********
THIS PRODUCT SCHEDULE is entered into as of __________ ___, 1999 under
License Agreement Number ********* (the "License Agreement") by and between
OneSoft Corporation, a Delaware corporation having an office at 0000 Xxxx Xxxxxx
Xxxxx, XxXxxx, XX 00000 ("ONESOFT"), and Xxxxxxx.xxx, having an office at 00
Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("CUSTOMER").
This Product Schedule licenses the Software Products (as defined) identified in
the attached Product Addendum #1 (the "Product Addendum"), which is hereby
incorporated by reference as if fully set forth herein, subject to the
provisions of this Product Schedule and the License Agreement. In the event of a
conflict between provisions of the License Agreement and those of this Product
Schedule, the provisions of the License Agreement shall govern.
--------------------------------------------------------------------------------
1. DEFINITIONS
Capitalized terms used but not otherwise defined in this Product Schedule shall
have the meanings given to them in the License Agreement.
(a) "Error" means any malfunction in a Software Product that prevents it
from performing substantially in accordance with its specifications.
(b) "Processor" means one (1) Intel standard processor installed in a
Server that operates a Software Product.
(c) "Point Release" means a modification to a Software Product identified
by the numeral(s) one or more places to the right of the first decimal point
from the left of the designation for such Release, with the newer Release having
the larger numeric value (e.g. X.1 to X.2).
(d) "Server" means a server that meets the requirements set forth in
technical documentation for the Software Product.
(e) "Site" means a World Wide Web site with one or multiple domain name(s)
mapped to one Internet Protocol address and supported by a single instance of a
database schema.
(f) "Software Product" means a ONESOFT software product that is identified
in the Product Addendum #1, attached hereto.
(g) "User" means a single named individual accessing or using the Software
Product.
(h) "Version Release" means a new version of a Software Product that is
identified by the numeral(s) to the left of the first decimal point from the
left in the designation, with the newer Version having the larger numeric value
(e.g. 1.X to 2.0).
2. LICENSE GRANT
(a) Subject to: (i) the terms, conditions, restrictions, limitations and
other provisions of the Agreement and (ii) the terms, conditions, restrictions,
limitations and other provisions of this Product Schedule and (iii) the terms,
conditions, restrictions, limitations and other provisions of the Product
Addendum #1. ONESOFT grants to CUSTOMER, and CUSTOMER accepts, a non-exclusive,
limited, nontransferable, license to use for its internal purposes, on one or
more Servers located in the United States only, or offshore if in compliance
with Section 18 of the License Agreement, each Software Product.
(b) CUSTOMER acknowledges receiving, and agrees to comply with, all the
terms and conditions, restrictions, limitations and other provisions, which are
hereby incorporated by reference as if fully set forth herein, of the third
party software sublicenses attached hereto, that apply to CUSTOMER's use of
ONESOFT's Software Products.
(c) Licenses under this Product Schedule do not include any right to, and
CUSTOMER agrees that it shall not (nor shall it permit anyone else to):
(i) Copy any Software Product for any purpose other than for
archival or emergency restart purposes or program error verification;
OneSoft Confidential Information 1
Xxxxxxx.xxx Version 1.0
(ii) Sublicense, rent or otherwise make a Software Product available
to any third party, for a fee or otherwise, whether in a service
bureau environment or as an application service provider or otherwise;
or
(iii) Reverse engineer, replicate, decompile, disassemble, or modify
any software delivered or disclosed to CUSTOMER by ONESOFT or separate
any such software into components or its component files, or recreate
the source code of, or attempt to determine the makeup of any such
software. CUSTOMER agrees that all information discovered through any
failure to comply with this paragraph (iii) is and shall at all times
remain the exclusive property and Confidential Information of ONESOFT.
3. DELIVERY
ONESOFT shall deliver to CUSTOMER a copy of each Software Product and
released current versions that is to be run on a non-ONESOFT server. Delivery
shall be made in an electronic medium or by direct loading onto a designated
Server over the Internet.
4. LICENSE TERM; TERMINATION
(a) Each license for a Software Product granted under this Product Schedule
shall continue in full force and effect for its term as specified in Product
Addendum #1 for the licensed Software Product, unless such license is earlier
terminated in accordance with the Agreement.
(b) Either party may terminate this Product Schedule (including all of the
licenses granted hereunder) or any or all of the license(s) granted hereunder,
if the other party materially breaches this Product Schedule and/or the Product
Addendum #1 and/or the Agreement, and fails to cure such material breach within
********** days after receipt of written notice specifying the material breach.
(c) Upon termination of a license, CUSTOMER shall (i) cease using the
applicable Software Product(s) and related documentation, materials and
Confidential Information of ONESOFT, and (ii) certify to ONESOFT within
************after termination that CUSTOMER has destroyed, or has returned to
ONESOFT, such Software Products and related documentation, materials and
Confidential Information of ONESOFT, and all copies thereof, whether or not
modified or included in other materials.
(d) Sections 4(b) through (d), 6, 7 and 8 shall survive the termination of
the Agreement and/or this Product Schedule.
5. SOFTWARE PRODUCT MAINTENANCE
Subject to the terms and conditions of the Agreement, ONESOFT will provide
Software Maintenance Services to CUSTOMER in accordance with the provisions of
Software Maintenance Services Schedule, if any, attached to the License
Agreement.
6. RESERVATION OF RIGHTS
CUSTOMER acknowledges and agrees that the Software Products, and related
documentation, manuals and/or instructional materials provided by ONESOFT under
this Product Schedule, are the exclusive property of ONESOFT, and that CUSTOMER
obtains no rights in such Software Productsor related documentation, manuals
and/or instructional materials except the rights expressly granted in this
Product Schedule.
7. LIMITED WARRANTY, LIMITATIONS ON WARRANTIES AND LIMITATIONS ON LIABILITY
Limitations on warranties and liability in this Product Schedule shall apply in
addition to (and shall further limit) the limitations on warranties and
liability in the License Agreement.
(a) ONESOFT warrants only that each Software Product, at the time of
initial deployment on the internet and for *********** days thereafter, when
used in conjunction with hardware and software recommended by ONESOFT, is
capable of performing substantially in accordance with its specifications;
provided, however, that (i) each Software Product is otherwise accepted by
CUSTOMER "as is" and (ii) ONESOFT does not warrant that the operation of any
Software Product will be uninterrupted or error free. If CUSTOMER notifies
ONESOFT in writing, within such ******** day period of an Error in a Software
Product, ONESOFT shall use reasonable efforts to promptly correct such Error.
(b) ONESOFT warrants that each Software Product shall not, at the time of
execution of this Product Schedule, infringe any valid United States Copyright,
United States Patent or United States Trademark. In the event such warranty is
breached, ONESOFT agrees to defend any and all actions alleging any such
infringement that may be brought against CUSTOMER during the term of this
Product Schedule, and to pay all damages and costs finally awarded against
CUSTOMER in such actions or suits on account of such infringement provided that:
(i) ONESOFT shall have received from CUSTOMER prompt notice of the
commencement of any such action;
(ii) CUSTOMER, CUSTOMER's employees, CUSTOMER's agents, CUSTOMER's
subcontractors, and where applicable, those for whom CUSTOMER is in law
responsible, all shall have cooperated fully with ONESOFT in defense of the
action;
(iii) The action shall not have resulted from the use of any Software
Product for purposes other than those for which it was authorized and designed,
or the use of any Software Product in combination with software or other
products not supplied by ONESOFT, or where the infringement would have been
avoided by use of the then current Version of any of the Software Products; and
(iv) ONESOFT in its sole discretion instead of defending such action
may procure for CUSTOMER the right to continue the use of a Software Products
subject to such action, or it may replace or modify such Software Products
(provided that such modification is functionally equivalent to the original
software product functionality) so to become non-infringing or it may refund a
portion of the license fees for such Software Products based ***** (A) *********
to *******, the ****** of ********* to the ******** of the ********, or
(B) ******** to ********, a ********* of *******.
(c) A medium on which a Software Product is furnished (if any) is warranted
to be free of defects in materials and workmanship under normal use for a period
of thirty (30) days
OneSoft Confidential Information 2
from the date of delivery of the Software Product and if such medium is or
becomes defective during such period then ONESOFT will provide replacement
media.
(d) ONESOFT warrants that each Software Product is designed to be used in
connection with dates in the range of *******through ******** [the 20th and 21st
centuries] and that the Software Product will operate without an Error arising
solely from use of date data within such range; provided, however, that this
warranty does not apply to a Software Product used in combination with software,
or other products, not supplied by ONESOFT. In the event that such an Error
occurs within ninety (90) days of the date a Software Product is initially
deployed on the Internet, ONESOFT shall use reasonable efforts to promptly
correct such Error.
(e) EXCLUSIVE REMEDIES:
THE REMEDIES IN THIS SECTION 7, ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR
ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES RELATED TO ANY SOFTWARE PRODUCT.
THE WARRANTIES SET FORTH IN THIS SECTION 7 CONSTITUTE THE ONLY WARRANTIES OF
ONESOFT WITH RESPECT TO ANY SOFTWARE PRODUCT. SUCH WARRANTIES ARE IN LIEU OF,
AND ONESOFT HEREBY DISCLAIMS, ALL OTHER WARRANTIES, STATUTORY OR OTHERWISE,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES OF CUSTOMER
WITH RESPECT TO SOFTWARE PRODUCTS SHALL BE LIMITED TO THOSE PROVIDED IN THIS
SECTION 7 TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES OF ANY KIND WHATSOEVER.
8. AUDIT
In addition to the audit rights available to it under the License
Agreement, ONESOFT, or its authorized representative, shall have the right,
during normal business hours, and upon at least ******** days prior notice, to
physically inspect any Server upon which any Software Product is installed, and
to audit and analyze the relevant records of the CUSTOMER, in order to verify
compliance with the terms of this Product Schedule.
o0o
---
IN WITNESS WHEREOF, the parties have caused this Product Schedule to be
executed by their duly authorized representatives as of the date first written
above.
OneSoft Corporation Customer
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx Xxxxxxxx
---------------------------- -------------------------
Name: Xxxx Xxxxxxxx Name: Xxxx Xxxxxx Xxxxxxxx
---------------------------- -------------------------
Title: Corporate Counsel Title: Vice President Operations
---------------------------- -------------------------
OneSoft Confidential Information 3
OneSoft Confidential Information 4
OneSoft Corporation has omitted from this Exhibit 10.30 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
1.
EXHIBIT 10.30
ONESOFT PRODUCT SCHEDULE #2
UNDER
LICENSE AGREEMENT
Number: ********
THIS PRODUCT SCHEDULE is entered into as of __________ ___, 1999 under
License Agreement Number ******* (the "License Agreement") by and between
OneSoft Corporation, a Delaware corporation having an office at 0000 Xxxx Xxxxxx
Xxxxx, XxXxxx, XX 00000 ("ONESOFT"), and Xxxxxxx.xxx, having an office at 00
Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 ("CUSTOMER").
This Product Schedule licenses the Software Products (as defined) identified in
the attached Product Addendum #2 (the "Product Addendum"), which is hereby
incorporated by reference as if fully set forth herein, subject to the
provisions of this Product Schedule and the License Agreement. In the event of a
conflict between provisions of the License Agreement and those of this Product
Schedule, the provisions of the License Agreement shall govern.
--------------------------------------------------------------------------------
1. DEFINITIONS
Capitalized terms used but not otherwise defined in this Product Schedule shall
have the meanings given to them in the License Agreement.
(a) "Error" means any malfunction in a Software Product that prevents it
from performing substantially in accordance with its specifications.
(b) "Processor" means one (1) Intel standard processor installed in a
Server that operates a Software Product.
(c) "Point Release" means a modification to a Software Product identified
by the numeral(s) one or more places to the right of the first decimal point
from the left of the designation for such Release, with the newer Release having
the larger numeric value (e.g. X.1 to X.2).
(d) "Server" means a server that meets the requirements set forth in
technical documentation for the Software Product.
(e) "Site" means a World Wide Web site with one or multiple domain name(s)
mapped to one Internet Protocol address and supported by a single instance of a
database schema.
(f) "Software Product" means a ONESOFT software product that is identified
in the Product Addendum #1, attached hereto.
(g) "User" means a single named individual accessing or using the Software
Product.
(h) "Version Release" means a new version of a Software Product that is
identified by the numeral(s) to the left of the first decimal point from the
left in the designation, with the newer Version having the larger numeric value
(e.g. 1.X to 2.0).
2. LICENSE GRANT
(a) Subject to: (i) the terms, conditions, restrictions, limitations and
other provisions of the Agreement and (ii) the terms, conditions, restrictions,
limitations and other provisions of this Product Schedule and (iii) the terms,
conditions, restrictions, limitations and other provisions of the Product
Addendum #1. ONESOFT grants to CUSTOMER, and CUSTOMER accepts, a non-exclusive,
limited, nontransferable, license to use for its internal purposes, on one or
more Servers located in the United States only, or offshore if in compliance
with Section 18 of the License Agreement, each Software Product.
(b) CUSTOMER acknowledges receiving, and agrees to comply with, all the
terms and conditions, restrictions, limitations and other provisions, which are
hereby incorporated by reference as if fully set forth herein, of the third
party software sublicenses attached hereto, that apply to CUSTOMER's use of
ONESOFT's Software Products.
(c) Licenses under this Product Schedule do not include any right to, and
CUSTOMER agrees that it shall not (nor shall it permit anyone else to):
(i) Copy any Software Product for any purpose other than for
archival or emergency restart purposes or program error verification;
OneSoft Confidential Information 1
(ii) Sublicense, rent or otherwise make a Software Product available
to any third party, for a fee or otherwise, whether in a service
bureau environment or as an application service provider or otherwise;
or
(iii) Reverse engineer, replicate, decompile, disassemble, or modify
any software delivered or disclosed to CUSTOMER by ONESOFT or separate
any such software into components or its component files, or recreate
the source code of, or attempt to determine the makeup of any such
software. CUSTOMER agrees that all information discovered through any
failure to comply with this paragraph (iii) is and shall at all times
remain the exclusive property and Confidential Information of ONESOFT.
3. DELIVERY
ONESOFT shall deliver to CUSTOMER a copy of each Software Product and
released current versions that is to be run on a non-ONESOFT server. Delivery
shall be made in an electronic medium or by direct loading onto a designated
Server over the Internet.
4. LICENSE TERM; TERMINATION
(a) Each license for a Software Product granted under this Product Schedule
shall continue in full force and effect for its term as specified in Product
Addendum #1 for the licensed Software Product, unless such license is earlier
terminated in accordance with the Agreement.
(b) Either party may terminate this Product Schedule (including all of the
licenses granted hereunder) or any or all of the license(s) granted hereunder,
if the other party materially breaches this Product Schedule and/or the Product
Addendum #2 and/or the Agreement., and fails to cure such material breach within
******* days after receipt of written notice specifying the material breach.
(c) Upon termination of a license, CUSTOMER shall (i) cease using the
applicable Software Product(s) and related documentation, materials and
Confidential Information of ONESOFT, and (ii) certify to ONESOFT within thirty
(30) days after termination that CUSTOMER has destroyed, or has returned to
ONESOFT, such Software Products and related documentation, materials and
Confidential Information of ONESOFT, and all copies thereof, whether or not
modified or included in other materials.
(d) Sections 4(b) through (d), 6, 7 and 8 shall survive the termination of
the Agreement and/or this Product Schedule.
5. SOFTWARE PRODUCT MAINTENANCE
Subject to the terms and conditions of the Agreement, ONESOFT will provide
Software Maintenance Services to CUSTOMER in accordance with the provisions of
Software Maintenance Services Schedule, if any, attached to the License
Agreement.
6. RESERVATION OF RIGHTS
CUSTOMER acknowledges and agrees that the Software Products, and related
documentation, manuals and/or instructional materials provided by ONESOFT under
this Product Schedule, are the exclusive property of ONESOFT, and that CUSTOMER
obtains no rights in such Software Productsor related documentation, manuals
and/or instructional materials except the rights expressly granted in this
Product Schedule.
7. LIMITED WARRANTY, LIMITATIONS ON WARRANTIES AND LIMITATIONS ON LIABILITY
Limitations on warranties and liability in this Product Schedule shall apply in
addition to (and shall further limit) the limitations on warranties and
liability in the License Agreement.
(a) ONESOFT warrants only that each Software Product, at the time of
initial deployment on the internet and for ******** days thereafter, when used
in conjunction with hardware and software recommended by ONESOFT, is capable of
performing substantially in accordance with its specifications; provided,
however, that (i) each Software Product is otherwise accepted by CUSTOMER "as
is" and (ii) ONESOFT does not warrant that the operation of any Software Product
will be uninterrupted or error free. If CUSTOMER notifies ONESOFT in writing,
within such ******* day period of an Error in a Software Product, ONESOFT shall
use reasonable efforts to promptly correct such Error.
(b) ONESOFT warrants that each Software Product shall not, at the time of
execution of this Product Schedule, infringe any valid United States Copyright,
United States Patent or United States Trademark. In the event such warranty is
breached, ONESOFT agrees to defend any and all actions alleging any such
infringement that may be brought against CUSTOMER during the term of this
Product Schedule, and to pay all damages and costs finally awarded against
CUSTOMER in such actions or suits on account of such infringement provided that:
(i) ONESOFT shall have received from CUSTOMER prompt notice of the
commencement of any such action;
(ii) CUSTOMER, CUSTOMER's employees, CUSTOMER's agents, CUSTOMER's
subcontractors, and where applicable, those for whom CUSTOMER is in law
responsible, all shall have cooperated fully with ONESOFT in defense of the
action;
(iii) The action shall not have resulted from the use of any Software
Product for purposes other than those for which it was authorized and designed,
or the use of any Software Product in combination with software or other
products not supplied by ONESOFT, or where the infringement would have been
avoided by use of the then current Version of any of the Software Products; and
(iv) ONESOFT in its sole discretion instead of defending such action
may procure for CUSTOMER the right to continue the use of a Software Products
subject to such action, or it may replace or modify such Software Products
(provided that such modification is functionally equivalent to the original
software product functionality) so to become non-infringing or it may refund a
portion of the license fees for such Software Products based upon (A) **********
to ********, the ************** to the ********** of the **************, or
(B) ******** to ***********, a ***************.
(c) A medium on which a Software Product is furnished (if any) is warranted
to be free of defects in materials and workmanship under normal use for a period
of ********* days
OneSoft Confidential Information 2
from the date of delivery of the Software Product and if such medium is or
becomes defective during such period then ONESOFT will provide replacement
media.
(d) ONESOFT warrants that each Software Product is designed to be used in
connection with dates in the range of **** through ****** [the 20th and 21st
centuries] and that the Software Product will operate without an Error arising
solely from use of date data within such range; provided, however, that this
warranty does not apply to a Software Product used in combination with software,
or other products, not supplied by ONESOFT. In the event that such an Error
occurs within ********** days of the date a Software Product is initially
deployed on the Internet, ONESOFT shall use reasonable efforts to promptly
correct such Error.
(e) EXCLUSIVE REMEDIES:
THE REMEDIES IN THIS SECTION 7, ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES FOR
ANY BREACH OF ANY EXPRESS OR IMPLIED WARRANTIES RELATED TO ANY SOFTWARE PRODUCT.
THE WARRANTIES SET FORTH IN THIS SECTION 7 CONSTITUTE THE ONLY WARRANTIES OF
ONESOFT WITH RESPECT TO ANY SOFTWARE PRODUCT. SUCH WARRANTIES ARE IN LIEU OF,
AND ONESOFT HEREBY DISCLAIMS, ALL OTHER WARRANTIES, STATUTORY OR OTHERWISE,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES OF CUSTOMER
WITH RESPECT TO SOFTWARE PRODUCTS SHALL BE LIMITED TO THOSE PROVIDED IN THIS
SECTION 7 TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES OF ANY KIND WHATSOEVER.
8. AUDIT
In addition to the audit rights available to it under the License
Agreement, ONESOFT, or its authorized representative, shall have the right,
during normal business hours, and upon at least **** business days prior
notice, to physically inspect any Server upon which any Software Product is
installed, and to audit and analyze the relevant records of the CUSTOMER, in
order to verify compliance with the terms of this Product Schedule.
o0o
---
IN WITNESS WHEREOF, the parties have caused this Product Schedule to be
executed by their duly authorized representatives as of the date first written
above.
OneSoft Corporation Customer
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx Xxxxxx Xxxxxxxx
---------------------------- -------------------------
Name: Xxxx Xxxxxxxx Name: Xxxx Xxxxxx Xxxxxxxx
---------------------------- -------------------------
Title: Corporate Counsel Title: Vice President Operations
---------------------------- -------------------------
OneSoft Confidential Information 3
OneSoft Confidential Information 4
