Exhibit 10.57
SOFTWARE DISTRIBUTION AGREEMENT
SOFTWARE DISTRIBUTION AGREEMENT Dated as of January 3, 2006 ("Agreement")
between Xxxxx Global Turnkey, Ltd. ("we" or "us"), a Texas limited partnership,
and SPSS Inc. ("you"), a corporation organized under the laws of the State of
Delaware.
We are in the business of providing a variety of services to manufacturers of
computer software programs, including without limitation replication and
distributing copies of Programs, Products and Publications (as those terms are
defined below): and
You are a manufacturer of computer software programs who wishes to have us
perform such services for you.
In consideration of these premises and the agreements set out below, we and you
agree as follows:
1. DEFINITIONS. When used in this Agreement, the capitalized terms listed
below will have the following meanings:
a. "ENTERPRISE" -- means any legal entity (such as a corporation)
and the subsidiaries it owns by more than fifty percent (50%).
b. "PRODUCT" -- means both the Program and Basic Publications.
c. "PROGRAM" -- means the computer programming code in
machine-readable format that is licensed to an end user on a
variety of Media by you.
d. "PUBLICATIONS" -- means printed material. It can consist of
Publications that are included with the Program (Basic
Publications), and publications that are ordered and shipped
separately (Optional Publications).
e. "MASTER" -- means the unique Program and Program format for
your Program that we will create in order to be able to build
production copies of your Program for shipment.
f. "MEDIA" -- means either open reel tape, tape cartridge,
diskette, CD-Rom, DVD or electronic transmission of data.
Media also may mean other media (for example, magneto-optical)
as mutually agreed between us.
2. STATEMENT OF WORK. The services we are to provide will be described in
one or more statements of work which will be mutually agreed to by you
and us from time to time during the term of this Agreement. Each
Statement of Work will be attached to this Agreement.
3. PURCHASE ORDERS. You will issue a purchase order to us each time
services are to be performed under this Agreement. Purchase orders may
be issued in paper or electronic form for material and/or printing
services. Each purchase order issued to us shall include:
a. Product description, part number (if applicable);
b. Quantity being produced;
c. Price per the price list attached to the applicable Statement
of Work, or the price stated in our proposal to you (if
applicable);
d. Requested shipment dates;
e. Requested shipping destinations.
4. Purchase orders issued by you are subject to the terms and conditions
of this Agreement and no other terms or conditions, including your
purchase order terms and conditions, shall be part of this Agreement or
apply to any work we perform for you. All communications will be
directed to the project manager.
5. PROJECT MANAGER.
a. Upon the execution of a Statement of Work, each of us shall
submit to the other the name, business address and telephone
number of a project manager who shall be responsible for all
business and technical issues pertaining to that Statement of
Work and any services described therein that we perform for
you. All communications will be directed to the project
manager.
b. We or you may replace its project manager by delivery of
written notice of such change. Such notice shall set forth the
name, business address and telephone number of the
replacement.
6. CHANGES TO A STATEMENT OF WORK. When both of us agree to change a
Statement of Work, we will prepare a written description of the change.
The change authorization becomes effective when we provide it to you.
It need not be signed, unless either of us requests signature. Any
change in the Statement of Work may affect the charges, estimated
schedule, or other terms. Depending on the scope of the requested
change, we may charge you for our effort to analyze it. We will then
give you a written estimate of the charges for the analysis. We will
perform the analysis only on your written authorization.
7. EXPORT.
a. You will comply with all U.S. export laws and will cooperate
with us as specified below to enable us to comply. If we have
reason to believe that the classification export documents
provided by you, or any other aspect of the export is
incorrect, we will suspend shipment without liability or
further obligation to you until you correct the problem to our
satisfaction.
b. EACH PURCHASE ORDER YOU PLACE WITH US WILL CONSTITUTE YOUR
CERTIFICATION THAT the recipients (whether a company or
individual identified by you) of the Products, Optional
Publications and any other materials distributed by us
pursuant to that purchase order are not:
i. Residents or nationals of embargoed countries; or
ii. Embargoed or proscribed Controlled-in-Fact (CIF)
customers; or
iii. Residents or nationals or Coordinating Committee
(COCOM) proscribed countries; or
iv. Engaged in proscribed nuclear, chemical, biological
or missile technology uses or applications; or
v. Listed on the U.S. Department of Commerce Table of
Denial Orders at the time of exportation; or
vi. Listed as a specially designated national by the U.S.
Department of Treasury; or
vii. Listed as a debarred party by the U.S. Department of
State; or
viii. In any other way prohibited from receiving your
Products, Optional Publications or other materials.
c. You will be the exporter for shipments from the United States
to non-U.S. locations, and we will be acting as your
forwarding agent solely for export purposes. In order for us
to perform our obligations under this Agreement, you grant to
us a power of attorney to sign air bills and invoices on your
behalf using information supplied by you.
d. THE FOLLOWING ARE YOUR RESPONSIBILITIES AS THEY APPLY TO
EXPORTING YOUR PRODUCTS OUTSIDE OF THE UNITED STATES:
8. RECIPIENT ELIGIBILITY: You will provide a recipient list to us with
complete recipient name and address. You will ensure that no recipients
are prohibited from receiving Products, Optional Publications or other
materials under this Agreement for any reason set forth in Section 6.b.
9. DOCUMENTATION:
a. You will provide us with all export license information and
other necessary information before shipment occurs including:
i. a description of the Products, Optional Publications
or other materials;
ii. the Export control Classifications Number (ECCN) for
the Products, Optional Publications or other
materials; and
iii. the U.S. Schedule B or Harmonized Tariff Schedule
number (HTS) for the Products, Optional Publications
or other materials.
b. You will obtain export licenses for the Products and provide
to us copies of all applicable documents required for
exportation including but not limited to:
i. a GTDR written assurance from each recipient if the
Products, Optional Publications or other materials
are to be exported under a General License General
Technical Data Restricted-with assurance (GTDR-with
assurance). These written assurances will be provided
in advance of any shipment; and updated as needed,
but in any event all assurances will be updated at
least annually.
ii. An individual validated export license if required;
iii. U.S. Department of State Export License, U.C.
Department of State Commodity Jurisdiction Decision
or ECCN if the Products, Optional Publications or
other materials incorporate a cryptographic
algorithm,
c. In the event that content addition or changes to Products,
Optional Publications or other materials require export
reclassification, you will provide undated export
documentation.
d. THE FOLLOWING ARE ADDITIONAL RESPONSIBILITIES AS THEY APPLY TO
ORDERS DISTRIBUTED FROM OUR FACILITY IN CORK, IRELAND ("CORK
FACILITY") WITH REGARD TO CONTROLLED SOFTWARE:
i. In addition to the requirements set forth above, in
order to comply with the Irish requirements, you must
complete the Cork Facility's classification
questionnaire for each controlled Software Product
and return it to the appropriate agency of the Irish
government. The appropriate agency of the Irish
government will classify the Software Product and
keep the questionnaire. In the event that content
addition or changes to Products, Optional
Publications or other materials require export
reclassification, you will notify us and provide an
updated questionnaire to the appropriate agency of
the Irish government. The Cork Facility will obtain
any necessary Irish export licenses.
10. PAYMENTS AND BILLING. We will xxxx you for fees as specified in the
price lists attached to the Statements of Work or, when applicable, our
proposal to you and payment is due at payment terms of Net 45 days.
a. Fees specified in the Statement of Work or our proposal do not
include transportation charges (unless otherwise stated in the
applicable price list) or any taxes, duties or other charges
imposed by any governmental authority that may be due. You
will be responsible for payment of any such transportation
charges, taxes, duties or other charges. Prior to any
Products, Optional Publications or other materials being
distributed to an end user, you will provide us with an
appropriate resale certificate, and instruct us not to charge
sales tax since you will charge any sales tax due on your
transaction with your end user customer.
b. Below are the parameters under which prices can change for
each Statement of Work implemented during the term of this
Agreement:
i. Prices quoted in the initial Statement of Work,
except Publications, will be frozen for 12 months
from signing the initial Statement of Work.
ii. Any change in Media volumes after implementation of a
Statement of Work, will be priced from the applicable
price list or our proposal to you, if volumes
warrant.
iii. After the initial 12-month period that this Agreement
is in effect, we may increase prices in a Statement
of Work, other than Publications which are covered in
Section 7.d) below. However, except as provided
below, prices initially applicable to any Statement
of Work, other than Publications, will not increase
during the second 12-month period that this Agreement
is in effect by more than the actual increase of the
Manufacturing Index found within the Employment Cost
Indexes and Levels, as published by the U.S.
Department of Labor during that period. As an
exception to this increase limit, we may increase
prices in a Statement of Work to reflect labor cost
increases imposed on us by federal or state law or
regulation. Any such price increase will become
effective on the same date that the mandated labor
cost increase first affects us.
11. PUBLICATIONS.
a. Pricing for Publications is based on original Publication
specifications provided by you. However,
i. paper prices may be readjusted quarterly;
ii. other charges for printing and binding are fixed
annually, but labor costs may be increased more
frequently as stated in Section 7.c); and
iii. prices may be adjusted any time there are changes in
Publication specifications.
b. The foregoing price parameters assume manufacturing and
distribution work to be done in the United States.
12. LICENSE. You grant to us a no-charge, royalty-free, non-transferable,
non-exclusive license to reproduce and distribute copies of your
Programs, Publications and other materials to the extent necessary for
us to perform our obligations under this Agreement.
13. WARRANTY.
a. GENERAL. You represent and warrant the following:
i. That you are under no obligation or restriction which
would in any way interfere with or be inconsistent
with your obligations under this Agreement;
ii. that you have or that third parties have licensed to
you the intellectual property rights, including but
not limited to patients, trademarks, copyrights and
trade secrets to the Products, Optional Publications
and other materials to perform your obligations under
this Agreement and to grant the license to us herein;
and
iii. That the Products, Optional Publications or other
materials do not infringe any intellectual property
rights; including but not limited to patents,
trademarks, copyrights and trade secrets of any third
party and that no claims or notice of claim of
infringement have been received by you.
b. HARMFUL CODE. You also represent and warrant that each copy of
the Programs or updates or error correction code, as provided
to us, does not contain any code, programming instruction or
set of instructions that is intentionally constructed with the
ability to damage, interfere with or otherwise adversely
affect computer programming code, data files, or hardware
without the consent of the computer user. You shall establish
and enforce procedures, which shall be reviewed with us, at
our request, to prevent any such code, programming instruction
or set of instructions from being incorporated into the
Programs and shall promptly notify us of any knowledge or
suspicion that any such elements have been incorporated.
c. OUR WARRANTY.
i. The Programs and Publications, produced by Xxxxx
and/or Xxxxx suppliers, will be free from defect in
material and workmanship.
ii. Xxxxx and its suppliers further warrant that they
will not introduce any routine, device, code or
instructions (including any code or instructions
provided by third parties) or other undisclosed
feature, including, without limitation, a time bomb,
virus, software lock, drop-dead device, malicious
logic, worm, Trojan horse, bug, error, defect or trap
door, that is capable of accessing, modifying,
deleting, damaging, disabling, deactivating,
interfering with, or otherwise harming the software
program or the equipment or hardware of any potential
user of the software program.
iii. We will replace at no charge any Program or
Publication due to defective media or manufacture.
This shall be your sole remedy for defects. WE
DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
14. INDEMNIFICATION. You will indemnify, defend, and hold us harmless
against any claims, losses, and expenses, including attorney fees and
other costs of litigation, based on or arising out of any third party
claim that any Product, Optional Publication or other material
infringes any third party intellectual property rights or for any
breach by your of your warranties in this Agreement.
x. XXXXX will indemnify, defend, and hold you harmless against
any claims, losses, and expenses, including attorney fees and
other costs of litigation, based on or arising out of any
third party claim that Xxxxx has introduced any routine,
device, code or instructions (including any code or
instructions provided by third parties) or other undisclosed
feature, including, without limitation, a time bomb, virus,
software lock, drop-dead device, malicious logic, worm, Trojan
horse, bug, error, defect or trap door, that is capable of
accessing, modifying, deleting, damaging, disabling,
deactivating, interfering with, or otherwise harming the
software program.
b. These indemnities are conditioned upon prompt written notice
to you of the claim or proceeding subject to indemnification;
cooperation by us at your expense in the defense and
settlement of any such claim; and mutual consent to settlement
or resolution of any such claim, which consent shall not
unreasonably be withheld.
15. INFORMATION. Terms for exchange of confidential information will be
handled according to the Confidential Non-Disclosure Agreement which
you and we will sign at the same time as this Agreement is signed.
a. For all information which does not meet the definition of
"Confidential Information" under the Confidential
Non-Disclosure Agreement, no obligation of confidentiality of
any kind is assumed by, or shall be implied against, either
party with respect thereto regardless of whether the
non-confidential information is received in the Programs,
Publications or some other form and whenever received from the
other party under this Agreement or in activities related
hereto. Either party shall be free to use or disclose any
information concepts, ideas, know-how, or techniques contained
in non-confidential information received under this Agreement,
subject only to valid copyrights and patents owned or licensed
by the party providing such information.
16. TERMS AND TERMINATION. Unless otherwise terminated as provided herein,
this Agreement shall be in effect from the date first written above and
shall remain in force for three (3) years. This Agreement shall
automatically renew thereafter for successive periods of one (1) year
each unless either of us give notice of its intent to terminate this
Agreement not less than one hundred eighty (180) days prior to the
expiration of the initial term or any renewal term. Not less than sixty
(60) days prior to the end of the initial term or the renewal term then
in effect, we will propose to you the pricing to be applicable to each
Statement of Work during the next renewal term. Unless you object to
our proposed pricing within ten (10) days after receipt, the proposed
pricing will become effective as of the beginning of the next renewal
term. If you do object within the ten (10) day period, we will
negotiate
mutually acceptable pricing with you, but if prices have not been
agreed to by the date on which notice of termination must be given, we
will either agree to terminate the Agreement or continue the Agreement
on a day-to-day basis while price negotiations continue.
17. TERMINATION.
a. TERMINATION FOR CONVENIENCE. You may terminate this Agreement
for convenience or for any other reason upon 180 days' prior
written notice to us. We may terminate this Agreement for
convenience or for any other reason upon 180 days' prior
written notice to you. If we terminate this Agreement for any
reason other than as specified in Section 12.b), then during
the 180-day notice period we will assist you in finding a new
vendor and will make every reasonable effort to make the
transition from us to your new vendor a smooth one.
b. TERMINATION FOR CAUSE. Either party may terminate this
Agreement by written notice if the other materially breaches
its obligations under this Agreement. Such a termination
notice must specifically identify the breach (or breaches)
upon which it is based and will become effective 180 days
after the notice is received by the other party, unless the
breach(es) is (are) corrected during the 180 days.
c. TERMINATION OF STATEMENTS OF WORK AND PURCHASE ORDERS. You may
terminate a Statement of Work on 180 days' written notice to
us or an individual purchase order on 30 days' written notice
to us. We may terminate a Statement of Work on 180 days'
written notice to you or an individual purchase order on 30
days' written notice to you if you do not meet your
obligations. Upon termination, we will stop our work in an
orderly manner as soon as practical.
18. SURVIVAL.
a. Neither termination or expiration of this Agreement, any
Statement of Work or any purchase order shall have any effect
upon the respective rights and liabilities of the parties in
connection with any work we previously performed or that were
in process on the date termination became effective. In
particular, you agree to pay us for all services we provide,
all costs incurred, in connection with services or Products,
Optional Publications or other materials we provide, and any
Products, Optional Publications or other materials we deliver
through the termination of the Agreement, Statement of Work,
or purchase order, as the case may be. Payment includes any
charges we incur in terminating subcontracts or orders for raw
materials.
b. Any terms or this Agreement which by their nature extend
beyond its termination, including the provisions of Sections
9, 10, 11, and 13, will remain in effect until fulfilled, and
apply to respective successors and assignees.
19. GENERAL.
a. FREEDOM OF ACTION. Nothing in this Agreement shall prohibit or
strict either party from independently developing, acquiring,
and marketing products, services, and other materials which
are competitive with the products, services, or materials of
the other party.
b. LIMITATIONS. We shall have no liability to you:
i. For any third party actions which violate your
intellectual property rights, or
ii. For non-payment of license fees or service charges by
others.
c. Notwithstanding anything herein to the contrary, in no event
shall either party be liable to the other for any indirect,
incidental, special, punitive, or consequential damages,
including lost profits, regardless of the form of the action,
whether in contract or tort (including negligence), provided
however that Xxxxx agrees to pay SPSS for any incidental,
consequential, special or other indirect damages sustained by
SPSS during the period from January 3, 2006 to the expiration
or termination of this agreement, including any applicable
renewal terms, as a result of Xxxxx'x or its subcontractor's
breach of Section 13.c.ii of this Agreement up to a limit of
$1,000,000 in aggregate during such period. No action,
regardless of form, arising out of this Agreement may be
brought by either party more than two years after the cause of
action has accrued.
d. CHOICE OF LAW. This Agreement will be governed by the
substantive laws of the State of Illinois.
e. ENTIRE AGREEMENT. This Agreement, together with any Statements
of Work entered into by the parties from time to time during
the term hereof, and purchase orders issued to us hereunder,
all of which are incorporated into this Agreement by this
reference, are the complete agreement regarding these
transactions, and replace any prior oral or written
communication between us. If there is a conflict between terms
in this Agreement and those in a Statement of Work, the terms
in the Statement of Work shall prevail over the terms of this
Agreement; provided, however, that all shipments of Products,
Optional Publications or other materials shall be subject to
Section 6 unless we agree to the contrary in a written
document which specifically states that Section 6 does not
apply to a particular shipment described therein and which is
signed by our authorized representative.
f. SEVERABILITY. If any provision of this Agreement is held to be
illegal, unenforceable, or in conflict with any law of any
governmental entity with jurisdiction over this Agreement, the
other portions shall remain valid and enforceable.
g. AMENDMENTS IN WRITING. No amendment, modification or waiver of
any provision of this Agreement shall be effective unless it
is in a writing executed by authorized representatives of both
parties. No failure or delay by either party in exercising any
right, power or remedy will operate as a waiver of any such
right, power or remedy.
h. NOTICE. Any notices required or permitted under this Agreement
shall be made by fax, email, express overnight courier
service, charges paid by shipper, or certified or registered
mail, postage prepaid and return receipt requested, provided
that the same is addressed to the party to be notified at the
following address (or such other address, or to the attention
of such other person, as may be hereinafter designated in
writing by the party to be notified):
i. In the case of notices to us:
Xxxxx Global Turnkey
0000 Xxxx Xxxxx
X.X. Xxx 000
Xxxxxx, XX 00000-0000
ATTN: SPSS Contact Administrator
Fax Number: (000) 000-0000
ii. In the case of notices to you:
SPSS Inc.
000 X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
ATTN: Xxxxx Xxxxxx
Fax Number: (000) 000-0000
i. FORCE MAJEURE. Neither party shall be held liable for failure
to fulfill its obligations under this Agreement, if such
failure is caused by flood, extreme weather, fire, or other
natural calamity, acts of governmental agency, or similar
causes beyond the control of such party.
j. CAPTIONS. The designation of a title, or a caption or a
heading for any provision of the Agreement is for the purpose
of convenience only and shall not limit or construe the
contents of this Agreement in any way.
IN WITNESS WHEREOF, you and we have caused this Agreement to be signed by our
authorized representatives to execute this Agreement as of the date first
written above.
XXXXX GLOBAL TURNKEY, Ltd. SPSS Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Authorized Signature Authorized Signature
Name (type or print): Xxxxxx X. Xxxxxxx Name (type or print): Xxxxxxx X. Xxxxx
Title: VP General Counsel and Secretary Title: EVP, Corporate Operations,
CFO and Secretary
