EXHIBIT 10.16
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DATE PREPARED:__________________ TERM:________________
DOCUMENT SCIENCES CORPORATION
VALUE
This Value ("Agreement"), made and entered into
between VAR NAME, LOCATED AT VAR ADDRESS ("VAR"), and DOCUMENT SCIENCES
CORPORATION, located at 0000 Xxxxx xxx Xxxx, Xxxxxxxx, XX 00000 ("DOCUMENT
SCIENCES").
TABLE OF CONTENTS
List of Articles:
Article Title
------- -----
ARTICLE 1 DEFINITIONS
ARTICLE 2 APPOINTMENT AND OBLIGATIONS
ARTICLE 3 ROYALTIES AND PAYMENT
ARTICLE 4 DELIVERABLES AND MODIFICATIONS
ARTICLE 5 WARRANTY DISCLAIMER, INDEMNITIES, AND PATENT AND COPYRIGHT
ARTICLE 6 CONFIDENTIAL INFORMATION
ARTICLE 7 TERM AND TERMINATION
ARTICLE 8 GENERAL PROVISIONS
List of Exhibits:
Exhibit Title
------- -----
EXHIBIT A PRODUCTS AND SERVICES FEE SCHEDULE FOR VAR
EXHIBIT B DOCUMENT SCIENCES SOFTWARE LICENSE & SOFTWARE SUPPORT AGREEMENT
EXHIBIT C TERRITORY
EXHIBIT D SOFTWARE MAINTENANCE AGREEMENT BETWEEN DOCUMENT SCIENCES AND VAR
EXHIBIT E VALUE ADDED PRODUCT DEFINITION
EXHIBIT F VAR FEES, DISCOUNTS, AND PERFORMANCE EXPECTATIONS
EXHIBIT G VAR RESOURCE REQUIREMENTS
The parties agree as follows:
ARTICLE 1 - DEFINITIONS
1.01 PROSPECTS
Companies or Entities which are not already Document Sciences licensees either
directly or indirectly.
1.02 SUBLICENSEES
Companies or entities which have previously sublicensed Document Sciences
Licensed Software products through VAR.
1.03 DOCUMENT SCIENCES LICENSORS
Persons, Companies or entities identified in the Licensed Software as having
licensed portions of the Licensed Software to DOCUMENT SCIENCES.
1.04 SOFTWARE LICENSE AND SOFTWARE SUPPORT AGREEMENT
DOCUMENT SCIENCES standard Software License and Software Support Agreement per
Exhibit B.
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1.05 LICENSED SOFTWARE
The DOCUMENT SCIENCES Licensed Software shall mean any or all of the object code
for the Document Sciences Licensed Software Products listed in Exhibit A -
Document Sciences Autograph Software List Pricing, support documentation and
other related material delivered to VAR or Sublicensees under this Agreement.
1.06 UPGRADES
New versions of Licensed Software which add functionality, enhance functionality
or increase throughput of the Licensed Software. Upgrades to the Licensed
Software will be added to this Agreement via an addendum to Exhibit A or through
replacements for Exhibit A, as they exist from time to time.
1.07 MAINTENANCE RELEASES
Licensed Software releases the purpose of which is to maintain compatibility
with the then current supported host environment or to provide VAR or
Sublicensee with Licensed Software which is free from or avoids a material
non-conformity.
1.07 VALUE ADDED PRODUCT
A VAR product which includes the Licensed Software, plus additional elements as
specified in Exhibit E - Value Added Product Definition.
1.08 TERRITORY
Geographic area or industry type as identified in Exhibit C - Territory.
THE INDIVIDUALS SIGNING BELOW ARE DULY AUTHORIZED REPRESENTATIVES OF EACH PARTY
AND VIA SIGNATURE AGREE THAT EACH PARTY WILL BE BOUND BY THE TERMS AND
CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE EFFECTIVE UNTIL
EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED HEADQUARTERS REPRESENTATIVE
OF DOCUMENT SCIENCES CORPORATION.
Executed: Accepted:
VAR NAME DOCUMENT SCIENCES CORPORATION
By: ____________________________ By: ____________________________
Name: __________________________ Name: __________________________
Title: _________________________ Title: _________________________
Date: __________________________ Date: __________________________
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ARTICLE 2 - APPOINTMENT AND OBLIGATIONS
2.01 APPOINTMENT AND SOFTWARE LICENSE
DOCUMENT SCIENCES hereby grants to VAR, during the term of this Agreement, a
non-exclusive license under any and all patents, copyrights, and other
proprietary rights licensable by DOCUMENT SCIENCES, to use and distribute by
sublicense the Licensed Software to either Prospects or Sublicensees, in whole
or in part, as a part of the Value Added Product. This grant is solely for the
Territory as defined in Exhibit C. It is a condition to the license grant set
forth in this Agreement that VAR adds value to the Licensed Software in the
manner specified in Exhibit E or as otherwise approved in advance and in writing
by DOCUMENT SCIENCES. VAR accepts this appointment, subject to the terms and
conditions of this Agreement.
DOCUMENT SCIENCES further grants to VAR a non-exclusive, non-transferable,
license to use the Licensed Software internally for demonstration, hotline
support, and training purposes only, to be ordered and used under the terms of a
separate agreement. VAR may use the Licensed Software for billable application
development, consulting services, general operations purposes or for processing
of internal administrative or customer data only pursuant to a separate
agreement executed between VAR and DOCUMENT SCIENCES, and such use will be
chargeable by Document Sciences. Notwithstanding anything else in this
Agreement, Document Sciences reserves the right to charge VAR for internal use,
consulting, and trial software upon ninety (90) days written notice.
2.02 LIMITATION UPON SUBLICENSE RIGHTS
VAR shall use its best efforts to ensure that the territorial restrictions of
the license set forth in Exhibit C are honored within its own organization.
2.03 SUBLICENSE TERMS
VAR shall distribute the Value Added Product pursuant to a sublicense agreement
which shall contain the substance of the conditions and restrictions set forth
in Exhibit B.
2.04 LIMITED RIGHTS TO LICENSED SOFTWARE
VAR may use, reproduce and distribute the Licensed Software only to the extent
expressly authorized or licensed under this Agreement. No other rights to such
Licensed Software are granted by DOCUMENT SCIENCES to VAR, or may be granted by
VAR to any third party. In particular, but not by way of limitation, except as
specifically agreed by DOCUMENT SCIENCES in writing, neither VAR nor any of its
employees, agents or representatives may create, reproduce or distribute
derivative works of any such Licensed Software. Further, neither VAR nor any of
its employees, agents or representatives will attempt to decompile or otherwise
reverse engineer any such Licensed Software in order to derive its source code.
VAR shall not rent, electronically distribute or timeshare the Licensed Software
or market the Licensed Software by interactive cable or remote processing
services. Any violation by VAR of its obligations under this Section would be
deemed an incurable material breach of this Agreement, and would enable DOCUMENT
SCIENCES to immediately terminate this Agreement under Section 7.02(b).
2.05 SUBLICENSING VIOLATIONS
Any sublicense or distribution of License Software by VAR which is not in
accordance with its appointment under this Section 2, will be deemed an
incurable material breach of this Agreement and will enable DOCUMENT SCIENCES to
immediately terminate this Agreement under Section 7.02(b).
2.06 LICENSE RECOGNITION: TRADEMARKS
VAR shall communicate to its Prospects or Sublicensees that the Licensed
Software, which is distributed pursuant to the license granted in this Section
2, is licensed to it by DOCUMENT SCIENCES by identifying it as [DOCUMENT
SCIENCES LICENSED SOFTWARE] licensed to VAR. During the term of this Agreement,
VAR may also use DOCUMENT SCIENCES name and logo in its advertising, catalogs,
exhibits, public relations materials and manuals covering the Value Added
Products. All such uses will be subject to DOCUMENT SCIENCES prior written
approval and shall not indicate the Licensed Software or any code contained in
the Licensed Software under license from DOCUMENT SCIENCES Licensors is the
proprietary product of VAR or any party other than DOCUMENT SCIENCES or the
original DOCUMENT SCIENCES Licensor, as the case may be.
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2.07 GENERAL OBLIGATIONS OF VAR
VAR will: (i) actively market, promote and solicit the license of Value Added
Products to Prospects or Sublicensees in the Territory, (ii) establish and
maintain appropriate marketing and distribution facilities and personnel within
its organization to create and meet the demand for Value Added Products among
Prospects and Sublicensees in the Territory, (iii) promote the goodwill, name
and reputation of DOCUMENT SCIENCES and all of the Licensed Software, (iv)
represent the Licensed Software accurately and fairly and at all times avoid
misleading or unethical business practices, (v) at all times comply with all
laws and regulations applicable to the conduct of its business, and (vi)
distribute all Document Sciences Licensed Software product information to
Prospects and Sublicensees who so request it.
2.08 SPECIFIC OBLIGATIONS OF VAR
VAR will have the following specific obligations:
a. Distribute the following materials to all of its locations in the Territory
as specified in Exhibit C: (i) marketing and technical brochures which
accurately describe the functions, features, operation and advantages of the
Licensed Software incorporated within the Value Added Products; and (ii)
educational material relating to the Value Added Products developed by VAR,
for training VAR's sales and support personnel.
b. Provide initial and ongoing training for a mutually agreed upon number of
its sales and customer support personnel in the marketing, features,
functions and support of the Licensed Software and Value Added Product per
Exhibit G.
c. Provide technical support to all Sublicensees as described in Exhibit D,
including: (i) on-site installation of the Value Added Products and/or
Sublicensee documentation sufficient to enable the Sublicensees to install
the Value Added Products themselves; (ii) Sublicensee training or
documentation regarding operation of the Value Added Products; (iii)
telephone hot-line support during normal business hours, and (iv) distribute
to all of VAR's active Prospects or Sublicensees all Document Sciences
product, support, marketing, sales, and technical information which Document
Sciences distributes to its direct active customers.
d. Promptly inform DOCUMENT SCIENCES about new problems or errors with any of
the Licensed Software which are reported by Sublicensees or discovered by
VAR.
e. On the date of execution of this Agreement, and thereafter at the beginning
of each calendar month, provide to DOCUMENT SCIENCES a non-binding forecast
setting forth the quantity of royalty bearing licenses it then estimates
generating during each of the succeeding three (3) calendar months.
f. Make best efforts to meet or exceed the non-binding Performance Expectations
as specified in Exhibit F.
2.09 OBLIGATIONS OF DOCUMENT SCIENCES
DOCUMENT SCIENCES will have the following obligations:
a. Make available to VAR, reasonable quantities of sales brochures, software
for demonstration, internal training, and support purposes only, and other
marketing and support materials. Notwithstanding anything else in this
Agreement, Document Sciences reserves the right to charge VAR for internal
use, consulting, and trial software upon ninety (90) days written notice.
b. Provide mutually agreed upon training to VAR on the features, functions,
operations, installation and support of the Licensed Software. The training
will be provided at DOCUMENT SCIENCES Carlsbad Office, or at other agreed
upon locations. VAR will be responsible for the travel and per diem expenses
of its personnel.
c. Use best efforts to resolve, within a reasonable period of time,
extraordinary technical problems or errors with any Licensed Software which
are identified by VAR and which VAR is unable to resolve. Each problem or
error must be identified telephonically, electronically or, when
appropriate, in writing and faxed to DOCUMENT SCIENCES designated support
person or fax number in Carlsbad, California. DOCUMENT SCIENCES does not
guarantee it will be able to resolve all identified problems or errors.
d. Provide maintenance consisting of bug fixes and minor changes in Licensed
Software, pursuant to and in accordance with the VAR Maintenance Agreement
attached as Exhibit D.
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2.10 TITLE TO LICENSED SOFTWARE
It is expressly understood and agreed that title to and all copyright and other
proprietary rights in the Licensed Software will not pass to VAR . Rather, such
title and all such rights will at all times be and remain with DOCUMENT SCIENCES
and/or the DOCUMENT SCIENCES Licensors.
ARTICLE 3 - ROYALTIES AND PAYMENT
3.01 ORDER AND PAYMENT
VAR will obtain a signed order for DOCUMENT SCIENCES Licensed Software from a
Prospect or Sublicensee, which order shall contain terms and conditions for use
of the Licensed Software by the Prospect or Sublicensee significantly similar to
those in Exhibit B (such Prospect becoming a Sublicensee at the time it signs
the terms and conditions as mentioned herein). It is VAR's responsibility to
insure that the Licensed Software is being used by the Sublicensee in a way that
is consistent with the Software License Grant, Terms and Conditions contained in
Exhibit B.
Upon signature of such order between VAR and a Sublicensee, VAR will submit a
signed Purchase Order to DOCUMENT SCIENCES for the Licensed Software being
ordered by the Sublicensee. The Purchase Order will consist of:
a. The name, release level, platform and operating system of each Licensed
Software product.
b. The serial number of the hardware component on which the Licensed Software
product will be used.
c. The Quantity of each Licensed Software product.
d. The shipping media for each Licensed Software product.
e. The Total Price in US Dollars for the order as well as the discounted amount
VAR is authorizing Document Sciences to xxxx VAR for each Licensed Software
product and in total.
f. Sublicensee - company name, company address, contact name, phone number and
e-mail address.
g. Shipping information (company name, company address, contact name, phone
number and e-mail address) as well as billing information (company name,
company address, contact name, phone number and e-mail address).
VAR AGREES THAT ANY TERMS AND CONDITIONS CONTAINED IN ANY VAR PURCHASE ORDER OR
OTHER ORDERING DOCUMENT SHALL HAVE NO BINDING EFFECT ON DOCUMENT SCIENCES AND
WILL NOT MODIFY THIS AGREEMENT OR THE SOFTWARE LICENSE AGREEMENT IN ANY WAY.
VAR agrees to pay a royalty equaling the discounted amount of the Licensed
Software License Fees to DOCUMENT SCIENCES for the Licensed Software licensed
hereunder and to also pay a royalty for 2nd and 3rd level Software Support and
Maintenance as outlined in Exhibit F provided pursuant to this Agreement. This
Article sets forth the terms and conditions under which such License Fees and
Support Fees will be determined and paid.
3.02 ROYALTY AMOUNT AND FEES
VAR shall pay to DOCUMENT SCIENCES all fees described in Exhibit F. The
royalties to be paid by VAR to DOCUMENT SCIENCES and the prices to be invoiced
by DOCUMENT SCIENCES to VAR for Licensed Software and technical support and
related materials licensed by VAR hereunder will be an amount equal to the list
price quoted in Exhibit A, less a VAR discount as set forth in Exhibit F. VAR
will solely determine the royalties and/or fees at which it sublicenses and
distributes the Value Added Products to Sublicensees in the Territory.
3.03 TAXES
VAR will furnish DOCUMENT SCIENCES with appropriate tax exemption certificates
if applicable.
3.04 REPORTS AND AUDITS
Royalties shall accrue upon the distribution of Value Added Products by DOCUMENT
SCIENCES to VAR and its Sublicensees or as the Licensed Software or Value Added
Products are distributed for royalty bearing internal use. Royalties accrued
during each calendar quarter shall be paid within thirty (30) days after
shipment.
3.05 VAR RECORDS
VAR shall keep records adequate to verify reports and payments to be made
pursuant to this Agreement for a period of three (3) years following date of the
reports pursuant to this Article 3.
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3.06 INSPECTION
DOCUMENT SCIENCES shall have the right (no more than once during any calendar
year) to inspect the records of VAR on reasonable notice and during VAR's
regular business hours to verify the reports and payments required hereunder.
The entire cost of such inspection shall be borne by DOCUMENT SCIENCES. If an
inspection reveals an error of at least 5% in favor of DOCUMENT SCIENCES, VAR
shall pay the cost of the inspection, in addition to any underpayments.
ARTICLE 4 - DELIVERABLES AND MODIFICATIONS
4.01 DELIVERY OF LICENSED SOFTWARE
DOCUMENT SCIENCES shall provide VAR with a reasonable number of copies of all
documentation and object code of the Licensed Software listed in Exhibit A for
support, training, and demonstration purposes under separate agreement.
Notwithstanding anything else in this Agreement, Document Sciences reserves the
right to charge VAR for internal use, consulting, and trial software upon ninety
(90) days written notice.
4.02 DOCUMENTATION
VAR may modify and reproduce the contents of the documentation provided by
DOCUMENT SCIENCES, but DOCUMENT SCIENCES reserves the right to monitor any
modifications made to the documentation by VAR. VAR agrees to abide by any
request by DOCUMENT SCIENCES to withdraw or change any such modification that
DOCUMENT SCIENCES reasonably deems undesirable to the interest of DOCUMENT
SCIENCES.
4.03 MODIFICATIONS
All bug fixes and minor changes in Licensed Software made by DOCUMENT SCIENCES
that it intends to release shall be offered to VAR pursuant to DOCUMENT SCIENCES
Maintenance Agreement attached as Exhibit D.
ARTICLE 5 - WARRANTY DISCLAIMER, INDEMNITIES, AND PATENT AND COPYRIGHT
5.01 WARRANTY AND DISCLAIMER
Document Sciences shall offer VAR the same warranty as it offers its direct
customers, as listed directly below:
a. Document Sciences warrants the physical media on which the Licensed Software
is embedded or resident will be free from material defects for a period of
thirty (30) days from the date of delivery. Document Sciences shall replace
the physical media on which the Licensed Software is resident, or incomplete
or illegible documentation upon receipt of notification of defect. The sole
remedy shall be for Document Sciences to replace the defective media.
b. Document Sciences warrants that for a period of ninety (90) days from the
date of delivery of the Licensed Software, the Licensed Software will
perform in material conformity with its published Document Sciences
specifications. Document Sciences does not, however, warrant that the
operation of the Licensed Software will be uninterrupted or error-free.
Document Sciences must be notified in writing of such material
non-conformity within the ninety (90) day warranty period.
Document Sciences, at its option, may either provide Licensed Software which
is free from, or a workaround which avoids, the material non-conformity; or
accept return of the Licensed Software and refund the license fees paid for
such Licensed Software. Document Sciences shall provide the replacement
Licensed Software or workaround; or refund the license fees within a
reasonable time after receiving the notice of a material non-conformity. If
Document Sciences does not, within a reasonable time after notification,
provide the replacement Licensed Software or workaround, the sole remedy
shall be to rescind the License agreement.
c. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY EXPRESS
WARRANTIES. DOCUMENT SCIENCES DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DOCUMENT SCIENCES
DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE BY PERSONS OTHER
THAN DOCUMENT SCIENCES INCLUDING, BUT NOT LIMITED TO, DISTRIBUTORS OF ANY
DOCUMENT SCIENCES LICENSED SOFTWARE.
d. The express warranties set forth above shall be void if the Licensed
Software is used incorrectly and in the appropriate environment as specified
in the support documentation.
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5.02 GENERAL INDEMNITY
VAR agrees, at its expense, to defend, indemnify and hold DOCUMENT SCIENCES
harmless from and against all liabilities, damages, costs, fees and expenses,
including reasonable attorney's fees, arising out of suits, claims, actions or
proceedings brought by or on behalf of any person on account of injury or damage
proximately caused by VAR, its agents, representatives, Distributors or
employees, in the course of performing VAR's obligations under this Agreement,
provided DOCUMENT SCIENCES will promptly notify VAR of any such suit, claim,
action or proceeding, and VAR will have control of the defense and all
negotiations for its settlement or compromise. DOCUMENT SCIENCES agrees to fully
cooperate with VAR in the defense conduct and negotiations.
5.03 INTELLECTUAL PROPERTY INDEMNITY
DOCUMENT SCIENCES will, at its expense, defend, indemnify and hold harmless VAR
from all liabilities, damages, costs, fees and expenses, including reasonable
attorney's fees, arising out of suits, claims, actions or proceedings charging
infringement in the Territory of any patents, copyrights, trade secrets or other
intellectual property rights owned or controlled by any third party as a result
of the exercise by VAR of its rights under this Agreement, provided VAR promptly
notifies DOCUMENT SCIENCES in writing of any such suit, claim, action or
proceeding, and DOCUMENT SCIENCES will have control of the defense and all
negotiations for its settlement or compromise. VAR agrees to fully cooperate
with DOCUMENT SCIENCES in the conduct of such defense and negotiations.
5.04 LIMITATION
The indemnity of Section 5.03 will not apply, and VAR will indemnify DOCUMENT
SCIENCES in a manner fully equivalent to such indemnity, in any suit, claim or
proceeding brought against DOCUMENT SCIENCES for any infringement due to the
Licensed Software being modified (by DOCUMENT SCIENCES or others, including VAR)
to VAR's specifications, or being used or sold in combination with equipment,
software, or supplies not provided by DOCUMENT SCIENCES. DOCUMENT SCIENCES has
no other expressed or implied warranty of non-infringement or liability for
infringement or any damages therefrom.
5.05 COPYRIGHTS
It is expressly understood by VAR that the Licensed Software in the form of
object code on physical media and in the form of manuals is copyrighted by
DOCUMENT SCIENCES. VAR agrees to maintain and reproduce all copyright notices of
DOCUMENT SCIENCES and any DOCUMENT SCIENCES Licensors contained in the object
code of the Licensed Software and on the manuals. VAR further agrees to have
copyright notices as provided by DOCUMENT SCIENCES appear on media labels.
5.06 ENFORCEMENT OF SUBLICENSES
VAR shall enforce the terms of its sublicenses with all Sublicensees and shall
inform DOCUMENT SCIENCES of any known breach of such terms.
ARTICLE 6 - CONFIDENTIAL INFORMATION
6.01 CONFIDENTIALITY
VAR acknowledges that the Licensed Software contains confidential information of
Document Sciences and its licensors. VAR agrees to disclose such confidential
information only to its employees and consultants having a clear need for such
information to enable VAR to exercise its rights under this Agreement.
Document Sciences and VAR also acknowledge that from time to time, certain
information may be communicated by either party to the other to enable the other
party to exercise it rights under this Agreement. Both parties shall treat all
such information as confidential, whether or not so identified, and shall not
disclose any part thereof without the prior written consent of the disclosing
party. Both parties agree to disclose such confidential information only to
their employees and consultants having a clear need for such information to
enable either party to exercise their rights under this Agreement
The foregoing obligations, however, shall not apply to any part of the
information that: (i) has been disclosed in publicly available sources of
information; (ii) is, through no fault of either party, hereafter disclosed in
publicly available sources of information; (iii) is now in the possession of the
other party without any obligation of confidentiality; or (iv) has been or is
hereafter rightfully disclosed to the other party by a third party, but only to
the extent that the use or disclosure thereof has been or is rightfully
authorized by that third party.
6.02 EXPIRATION OR TERMINATION
Promptly following the expiration or any termination of this Agreement, VAR will
return to DOCUMENT SCIENCES, at DOCUMENT SCIENCES expense, all DOCUMENT SCIENCES
confidential and proprietary information then in its possession, and all copies
thereof.
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ARTICLE 7 - TERM AND TERMINATION
7.01 TERM
Unless sooner terminated in accordance with Section 7.02, the term of this
Agreement will be for an initial period of ___________________ from the date
Document Sciences accepts it. This Agreement will be subject to automatic annual
renewal thereafter for successive one year terms unless sooner terminated in
accordance with Section 7.02.
7.02 TERMINATION
Either party may terminate this Agreement for convenience upon thirty (30) days
prior written notice. Either party may also terminate this Agreement in any of
the following events:
a. the other party materially breaches this Agreement in a manner which can be
cured, and such breach remains uncured for thirty (30) days following
written notice of breach by the terminating party; or
b. the other party materially breaches this Agreement in a manner which cannot
be cured;
Document Sciences may also terminate this Agreement if VAR enters into any
composition or arrangement with or for the benefit of its creditors, becomes
bankrupt has a receiver and/or manager appointed to manage its assets, or goes
into liquidation, voluntarily or under supervision.
7.03 EFFECT OF TERMINATION OR EXPIRATION
In the event of the expiration or any termination of this Agreement:
a. VAR shall: (i) discontinue distribution of the Value Added Product; (ii)
either deliver to DOCUMENT SCIENCES or destroy all Licensed Software and
related materials in VAR's possession furnished by DOCUMENT SCIENCES
together with all copies thereof (including that in memory or data storage
apparatus); and (iii) warrant in writing to DOCUMENT SCIENCES within thirty
(30) days of termination the Licensed Software, related materials and all
copies thereof (except for the one copy) have been either returned to
DOCUMENT SCIENCES and/or destroyed.
b. Neither party will be liable to the other for any damage, expenditures, loss
of profits or prospective profits of any kind or nature sustained or arising
out of, or alleged to have arisen out of, such termination or expiration.
Termination or expiration of this Agreement will not relieve or release
either party from making payments which may be owing to the other party
under the terms of this Agreement.
c. VAR will immediately cease representing itself as a DOCUMENT SCIENCES
remarketer, and promptly return to DOCUMENT SCIENCES or destroy, at DOCUMENT
SCIENCES sole option, any advertising and other materials furnished to it by
DOCUMENT SCIENCES.
d. VAR will remove and not thereafter use any signs containing the name or
trademark of DOCUMENT SCIENCES, and will immediately destroy all of its
stationery, advertising matter and other preprinted matter remaining in its
possession or under its control containing the word "DOCUMENT SCIENCES" and
related DOCUMENT SCIENCES trade names or trademarks.
e. Termination of this Agreement shall not affect Sublicensees rights to use
the Value Added Product, provided that such Sublicensees have been licensed
prior to such termination and agree to the terms and conditions of DOCUMENT
SCIENCES then current Software License and Support License Agreement.
f. All of VAR's rights to market, reproduce, sublicense and use the Licensed
Programs shall cease.
DOCUMENT SCIENCES shall, in its sole discretion, either: (i) continue providing
second line support to VAR in accordance with this Agreement, or (ii) assume
second and first line support of Sublicensees to the extent support is required
for the DOCUMENT SCIENCES Licensed Software included the VAR product hereunder,
provided that DOCUMENT SCIENCES shall be entitled to require such Sublicensees
to agree to DOCUMENT SCIENCES then current terms and conditions for such
Licensed Software support.
7.04 SURVIVAL
The provisions of this Agreement will, to the extent applicable, survive the
expiration or any termination.
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ARTICLE 8 - GENERAL PROVISIONS
8.01 FORCE MAJEURE
Except for the payment of money, neither party will be liable to the other for
any failure to perform or delay in the performance of its obligations caused by
circumstances beyond its reasonable control.
8.02 NOTICES
Any notice which may be or is required to be given under this Agreement will be
written or by facsimile, unless otherwise indicated. Any written notices will be
sent by registered mail or certified mail, postage prepaid, return receipt
requested. Any facsimile notice should be followed within three (3) working days
by written notice. Notices will be deemed to have been given when received,
properly addressed. All notices to VAR will be addressed as shown below. All
notices to DOCUMENT SCIENCES should be addressed to:
Notice to Document Sciences: Notice to VAR
Document Sciences Corporation ________________________________
0000 Xxxxx xxx Xxxx ________________________________
Xxxxxxxx, XX 00000 ________________________________
Either party may change its address by giving notice to the other party pursuant
to this Section.
8.03 PUBLICITY
Neither party will issue a press release or other similar publicity of any
nature regarding this Agreement without the other party's written approval,
which will not be unreasonably withheld. Approval will be deemed to have been
given to the extent that the disclosure is required in order to comply with
governmental rules, regulations or requirements. In this event, the publishing
party will review the text of the disclosure with the other party prior to
disclosure.
8.04 HEADINGS
Except for Article 1, Definitions, headings and titles of the Articles and
Sections of this Agreement are inserted for convenience only and do not affect
the construction or interpretation of any provision.
8.05 AMENDMENT
This Agreement may be amended only by written amendment duly signed by
authorized representatives of both parties.
8.06 ASSIGNMENT
DOCUMENT SCIENCES entered into this Agreement based on the personal
representations of VAR's principals as to their knowledge and expertise, ability
to add value to the Licensed Software and market the Value Added Products, and
financial status. VAR shall not, therefore assign, transfer, or sell any of its
rights, or delegate any of its responsibilities under this Agreement without
DOCUMENT SCIENCES prior written consent. Any material change in ownership of VAR
shall be cause for termination of this Agreement, unless DOCUMENT SCIENCES'
gives prior written consent to transfer this Agreement, which shall not be
unreasonably withheld. DOCUMENT SCIENCES may assign this Agreement only to a
parent, subsidiary or affiliated firm, to a third party in connection with a
consolidation or merger, or to a third party upon a sale or transfer of
substantially all of DOCUMENT SCIENCES business assets.
8.07 SEVERABILITY
If any provision of this Agreement is held invalid by any law, rule, order or
regulation of any government, or by the final determination of any court, such
invalidity will not affect the enforceability of any other provisions not held
to be invalid.
8.08 OMISSIONS
Any delay or omission by either party to exercise any right or remedy under this
Agreement will not be construed to be a waiver of any such right or remedy or
any other right or remedy. All of the rights of either party under this
Agreement will be cumulative and may be exercised separately or concurrently.
PAGE 10 OF 24
8.09 LIMITATION OF LIABILITY
Subject to Sections 5.02, 5.03 and 5.04:
a. in no event will either party be liable to the other for any special,
indirect, incidental or consequential damages in any way arising out of or
relating to this Agreement; and
b. the maximum liability of DOCUMENT SCIENCES to VAR for direct damages in any
way arising out of or relating to this Agreement shall in no event exceed
the total amount of money actually paid by VAR to DOCUMENT SCIENCES under
this Agreement, during the most recently ended twelve (12) month period
during the term hereof which precedes the time of fixing of such liability
or $100,000, whichever is less.
8.10 GOVERNING LAW
This Agreement will be governed in accordance with the laws of the State of
California.
8.11 DISPUTE RESOLUTION
The parties will first endeavor to informally resolve all disputes between them
prior to resorting to arbitration under this Section. In the event the parties
are unable to informally resolve any material dispute, it will be decided
through arbitration pursuant to the rules of the American Arbitration
Association then in effect. The arbitration, which will be held in Carlsbad,
California, will be binding upon the parties and may be entered by any court of
competent jurisdiction.
8.12 EXPORT
VAR hereby agrees that VAR will not export, directly or indirectly, any U.S.
source Licensed Software or other technical information acquired from DOCUMENT
SCIENCES or any products utilizing any such Licensed Software or other technical
information, to any country for which the U.S. Government or any agency thereof
at the time of export requires an export license or other governmental approval,
without first obtaining the written consent to do so from:
a. the United States Department of Commerce or other agency of the United
States Government when required by an applicable statute or regulation, and
b. DOCUMENT SCIENCES, which consent DOCUMENT SCIENCES may withhold if such
export would, in the reasonable business judgment of DOCUMENT SCIENCES, be
detrimental to the interests of DOCUMENT SCIENCES.
8.13 NO AGENCY
It is agreed and understood that neither DOCUMENT SCIENCES nor VAR has any
authority to bind the other with respect to any matter hereunder. Under no
circumstances shall either DOCUMENT SCIENCES or VAR have the right to act or
make any commitment of any kind to any third party on behalf of the other or to
represent the other in any way as an agent. VAR is, and shall perform its
obligations hereunder as, an independent contractor and is not, and shall not be
considered to be, an agent or representative of DOCUMENT SCIENCES.
8.14 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties as to the subject
matter hereof, and supersedes any and all prior oral and written understandings
and agreements as to such subject matter.
PAGE 11 OF 24
EXHIBIT A
DOCUMENT SCIENCES AUTOGRAPH SOFTWARE LIST PRICING
PAGE 12 OF 24
EXHIBIT B
DATE PREPARED:___________________
DOCUMENT SCIENCES CORPORATION
SOFTWARE LICENSE & SOFTWARE SUPPORT AGREEMENT
SHIP TO: XXXX TO:
CUSTOMER: _________________________ CUSTOMER: _____________________________
ATTENTION: ________________________ ATTENTION: ____________________________
TITLE: ____________________________ TITLE: ________________________________
DEPARTMENT: _______________________ DEPARTMENT: ___________________________
ADDRESS: __________________________ ADDRESS: ______________________________
___________________________________ _______________________________________
CITY: ____________ STATE: ________ CITY: ____________ STATE: ____________
ZIP: _____________ COUNTRY: ______ ZIP: _____________ COUNTRY: __________
PHONE: ___________ FAX: __________ PHONE: ___________ FAX: ______________
E-MAIL ADDRESS: ___________________ E-MAIL ADDRESS: _______________________
SOFTWARE SCHEDULE
SECTION 1: - LICENSED SOFTWARE
Software Platform Operating System Quantity Initial License Fee Annual License Fee*
-------- -------- ---------------- -------- ------------------- -------------------
PRICE QUOTE GOOD FOR 30 DAYS
* Beginning first year of Licensed Software usage.
TRAINING AND INSTALLATION ARE NOT INCLUDED IN THE PRICE LISTED ABOVE.
SECTION 2 - HOST COMPUTER SYSTEM
The Licensed Software listed herein is licensed for use only on the following
CPU host computer system.
Model Operating System Serial Number Location
----- ---------------- ------------- --------
----- ---------------- ------------- --------
THE INDIVIDUALS SIGNING BELOW ARE DULY AUTHORIZED REPRESENTATIVES OF EACH PARTY
AND VIA SIGNATURE AGREE THAT EACH PARTY WILL BE BOUND BY THE TERMS AND
CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE EFFECTIVE UNTIL
EXECUTED BY CUSTOMER AND ACCEPTED BY AN AUTHORIZED HEADQUARTERS REPRESENTATIVE
OF DOCUMENT SCIENCES CORPORATION.
Executed: Accepted:
DOCUMENT SCIENCES CORPORATION
Signature: ________________________ Signature: ________________________
Printed Name: _____________________ Printed Name: _____________________
Title: ____________________________ Title: ____________________________
Date: _____________________________ Date: _____________________________
PAGE 13 OF 24
SOFTWARE LICENSE GRANT, TERMS AND CONDITIONS
This Agreement is made and entered into between DOCUMENT SCIENCES CORPORATION
("Document Sciences"), a corporation, with its principal place of business at
0000 XXXXX XXX XXXX; XXXXXXXX, XX 00000 and ("Customer"), a corporation, with
its principal place of business at (address).
1. LICENSED SOFTWARE
The term "Licensed Software" shall mean any or all of the object code for the
Document Sciences Licensed Software Products listed in the Software Schedule(s)
attached hereto, support documentation and other related material delivered to
Customer under this Agreement.
2. LICENSE GRANT
a. Subject to the payment of the Initial License Fee(s) and Annual License
Fee(s) set forth on the Software Schedule(s) and Addendums thereto, and
subject to the terms and conditions of this Agreement, Document Sciences
grants to the Customer a non-transferable, non-assignable (by operation of
law or otherwise), non-exclusive license to use the Licensed Software solely
for Customer's own internal business purposes on the size, type, and number
of central processing units ("CPU") specified on the Software Schedule(s).
b. Customer expressly acknowledges and agrees that Software Schedule(s) shall
be required for all CPU's on which Customer uses the Licensed Software.
Customer may license additional Licensed Software for operation on
additional CPU's at Document Sciences' then-current charges and subject to
Document Sciences' then prevailing terms and conditions, by and through
Customer's execution of and Document Sciences' acceptance of Software
Schedule(s) which shall become effective upon such acceptance.
c. Title and full ownership rights to the Licensed Software and any copies
thereof, shall at all times reside exclusively with Document Sciences and/or
its licensors.
3. PAYMENT
Following the Customer's receipt of the Licensed Software, Document Sciences
shall invoice the Customer per the Payment Terms listed on the Software
Schedule(s) for the amount owed under this Agreement. All invoices are payable
upon receipt and are considered delinquent if not paid within thirty (30) days.
Amounts not paid when due shall bear interest at the rate of 1% per month (12%
per annum) until the overdue amount plus interest is paid in full. License keys
will be issued for an initial period of ninety (90) days and will be extended as
soon as the first payment is received.
4. REDESIGNATION OF HOST COMPUTER SYSTEM
If Customer desires to transfer use of the Licensed Software, either temporarily
or permanently, to a different CPU, or if Customer desires to change the CPU's
physical location, Customer shall notify Document Sciences in writing at least
sixty (60) days prior to such proposed transfer or relocation and specifically
designate the new CPU and/or location. In the event that such prior notice is
not possible when the CPU becomes inoperative due to malfunction, Customer may
temporarily transfer use of the Licensed Software to a back-up system and
promptly notify Document Sciences in writing of such transfer. With respect to
any transfer of the Licensed Software to a new CPU and/or location, Customer:
(a) assumes full responsibility for all operational changes thereto and (b)
shall bear all costs associated with such transfer and/or relocation, including
but not limited to, any and all additional Initial License Fee(s) and Annual
License Fee(s) which may be payable to Document Sciences in accordance with
Document Sciences' then-current charges.
5. CUSTOMER'S RESPONSIBILITIES
In addition to the other obligations set forth in this Agreement, Customer
shall: (a) be solely responsible for and bear all costs associated with
determining and maintaining the configuration and operation of the CPU and all
associated operating system software and (b) install and operate the Licensed
Software on the CPU in accordance with this Agreement and Document Sciences'
support documentation.
PAGE 14 OF 24
6. CONFIDENTIALITY
Customer acknowledges that the Licensed Software contains confidential
information of Document Sciences and its licensors. Customer agrees to disclose
such confidential information only to its employees and consultants having a
clear need for such information to enable Customer to exercise its rights under
this Agreement. This obligation shall not apply to any portion of the
confidential information to the extent that it: (a) is or becomes part of the
public domain through no fault of Customer or its employees or consultants (b)
was rightfully communicated to Customer free of any obligation of confidence
subsequent to the time of receipt, (c) was developed by Customer independently
of and without reference to the confidential information, (d) is communicated by
Document Sciences to a third party free of any obligation of confidence, or (e)
is more than five (5) years after termination of this Agreement.
7. COPYING RESTRICTIONS
Customer may copy the Licensed Software, in whole or in part, only for backup,
disaster recovery testing or archive purposes consistent with the license grant
in Paragraph 2. Each copy shall include in readable format any and all
confidential, proprietary, and copyright notices or markings contained on the
original provided by Document Sciences.
8. UNAUTHORIZED USE AND CUSTOMER COMPLIANCE
Customer agrees to use all reasonable efforts to ensure that persons employed by
Customer or under Customer's direction and control (including consultants) abide
by the terms and conditions of this Agreement including, without limitation, not
knowingly permitting anyone to use any portion of the Licensed Software for the
purpose of deriving its source code. In the event the Customer becomes aware
that the Licensed Software is being used by such persons in a manner not
authorized by this Agreement, Customer shall immediately use all reasonable
efforts to have such unauthorized use of such Licensed Software immediately
cease and shall immediately notify Document Sciences in writing of the
unauthorized use.
9. THIRD PARTY SOFTWARE
The Licensed Software is protected by Copyright and other proprietary rights of
Document Sciences and/or its licensors from which Document Sciences may
sublicense source code for inclusion in Document Sciences Licensed Software.
Customer may be held directly responsible by such third party licensor for acts
relating to the Licensed Software which are not authorized by this Agreement.
10. TERM OF LICENSE AGREEMENT AND RENEWAL OF LICENSE AGREEMENT
The term of the Agreement shall be twelve (12) months commencing on the date
Document Sciences accepts this Agreement and shall be subject to automatic
renewal at Document Sciences' then current Annual License Fee(s) applicable to
the Licensed Software for additional one year terms unless either party notifies
the other of cancellation at least thirty (30) days prior to the end of an
annual term. The Annual License Fee(s) shall be due and payable in full on the
first day of such one year term.
11. SOFTWARE SUPPORT
a. Subject to the payment of the Annual License Fee(s) set forth on the
Software Schedule(s), and all other applicable fees, if any, and subject to
the terms and conditions of this Agreement, Document Sciences will provide
the following Software Support:
1. Document Sciences sending to Customer from time to time, if and when
available, Licensed Software releases the purpose of which is to
maintain compatibility with the then current supported host environment
or to provide Customer with Licensed Software which is free from or
avoids a material non-conformity. New versions of the Licensed Software
which contain changes to the source code which add functionality,
enhance functionality or increase throughput are subject to a separate
license fee and will be added to this Agreement via Software
Schedule(s).
2. The provision by Document Sciences of a Customer Support Center Hot-Line
number for the resolution of user problems and questions relating to the
Licensed Software. The Hot-Line shall be available for live
communication during normal business hours, Monday through Friday. For
the remaining periods, Document Sciences shall provide a telephone
message recording device which will record Customer's reports.
Document Sciences, in its sole discretion, reserves the right to
determine if Software Support requests from Customer are outside of the
scope of this Agreement, to decline such Software Support requests and
refer Customer to the Training and/or Professional Services Departments.
3. The ability for Customer to register Licensed Software problems via
phone, fax or e-mail.
4. Document Sciences will use reasonable efforts to resolve coding errors
or provide workarounds or patches, provided Customer reports problems in
a manner specified by Document Sciences. Document Sciences does not,
however, guarantee the correction of any Licensed Software problem.
PAGE 15 OF 24
b. The implementation of all Licensed Software maintenance releases is
mandatory and the previous release of Licensed Software will only be
supported for six (6) months following the general availability of the
current release as determined by Document Sciences. If Customer fails to
implement the most current maintenance release of the Licensed Software
product for any reason whatsoever within this six (6) month time frame,
Document Sciences may discontinue providing Software Support for any
affected Licensed Software product without further liability to Customer.
c. Title and full ownership rights to the Licensed Software, releases, upgrades
or patches and any copies thereof, shall at all times reside exclusively
with Document Sciences and/or its licensors.
d. Document Sciences reserves the right to discontinue Software Support for any
Licensed Software product at any time after the first anniversary of this
Agreement. Document Sciences shall give the Customer at least thirty (30)
days prior written notice of the effective date of such discontinuance and
shall reimburse Customer the pro rata portion of any prepaid Annual License
Fee(s) for Software Support provided that Customer is in full compliance
with the terms of this Agreement.
12. TERMINATION OF AGREEMENT
a. This Agreement shall terminate immediately: (i) upon expiration of its
annual term, with written notification or non-payment of Annual License
Fee(s) (see Paragraph 10 above); (ii) if, upon expiration of thirty (30)
days from the date of written notice by Document Sciences of a material
curable default under this Agreement is sent to Customer, such default has
not been cured; (iii) immediately upon notice in the event of a material
default which by its nature cannot be cured; (iv) if Document Sciences
elects to accept return of the Licensed Software under Paragraphs 12 or 13
of this Agreement; or (v) to the extent permitted by applicable law, if
Customer enters into any composition or arrangement with or for the benefit
of its creditors, becomes bankrupt has a receiver and/or manager appointed
to manage its assets, or goes into liquidation, voluntarily or under
supervision.
b. Following termination Customer shall: (i) promptly discontinue use of the
Licensed Software and shall either deliver to Document Sciences and/or
destroy all Licensed Software and related materials furnished by Document
Sciences, together with all copies of the Licensed Software (including
erasing Licensed Software from memory or data storage apparatus under the
control of Customer) and (ii) submit in writing to Document Sciences within
thirty (30) days of termination that the Licensed Software, related
materials and all copies thereof have been either returned to Document
Sciences and/or destroyed and erased from such memory and/or data storage
apparatus.
c. The obligations of Customer under Paragraph 6 relating to confidential
information shall survive termination of this Agreement.
GENERAL PROVISIONS
13. WARRANTY AND DISCLAIMER
a. Document Sciences warrants the physical media on which the Licensed Software
is embedded or resident will be free from material defects for a period of
thirty (30) days from the date of delivery to Customer. Document Sciences
shall replace the physical media on which the Licensed Software is resident,
or incomplete or illegible documentation upon receipt of notification of
defect. Customer's sole remedy shall be for Document Sciences to replace the
defective media.
b. Document Sciences warrants that for a period of ninety (90) days from the
date of delivery to Customer of the Licensed Software, the Licensed Software
will perform in material conformity with its published Document Sciences
specifications. Document Sciences does not, however, warrant that the
operation of the Licensed Software will be uninterrupted or error-free.
Customer must notify Document Sciences in writing of such material
non-conformity within the ninety (90) day warranty period.
Document Sciences, at its option, may either provide Customer with Licensed
Software which is free from, or a workaround which avoids, the material
non-conformity; or accept return of the Licensed Software and refund the
Customer the license fees paid for such Licensed Software. Document Sciences
shall provide the replacement Licensed Software or workaround; or refund the
license fees within a reasonable time after receiving the notice of a
material non-conformity from Customer. If Document Sciences does not, within
a reasonable time after notification, provide the replacement Licensed
Software or workaround, Customer's sole remedy shall be to rescind this
Agreement.
c. THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY EXPRESS
WARRANTIES. DOCUMENT SCIENCES DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DOCUMENT SCIENCES
DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE BY PERSONS OTHER
THAN DOCUMENT SCIENCES INCLUDING, BUT NOT LIMITED TO, DISTRIBUTORS OF ANY
DOCUMENT SCIENCES LICENSED SOFTWARE.
PAGE 16 OF 24
d. The express warranties set forth above shall be void if Customer fails to
properly use the Licensed Software in the appropriate environment as
specified in the support documentation.
14. PATENT AND COPYRIGHT INDEMNIFICATION
Document Sciences will defend Customer from and pay any ultimate judgment for
infringement by the Licensed Software of any patent, trade secret or copyright
in the United States. Customer agrees to promptly notify Document Sciences in
writing of any alleged infringement, allow Document Sciences to defend against
the alleged infringement and cooperate with Document Sciences in its defense of
such allegation. Document Sciences is not responsible for any non-Document
Sciences litigation expenses unless Document Sciences agrees to them in writing.
To avoid infringement, even if not alleged, Document Sciences may at its option,
and at no charge to Customer, choose one or more of the following: (i) obtain a
license of the infringing software for Customer's use from the party claiming
infringement; (ii) modify the existing Licensed Software so that it does not
contain the infringing software; (iii) substitute an equivalent of the Licensed
Software which does not contain the infringing software; or (iv) remove the
Licensed Software. If the Licensed Software is removed by Document Sciences for
this reason, a pro rata portion of any prepaid Initial License Fee(s) or Annual
License Fee(s) will be refunded to Customer.
Document Sciences is not liable for any infringement due to the Licensed
Software being made or modified by parties other than Document Sciences, or
being used or sold in combination with other software, equipment or supplies not
provided by Document Sciences. DOCUMENT SCIENCES HAS NO OTHER EXPRESS OR IMPLIED
WARRANTY OF NONINFRINGEMENT OR LIABILITY FOR INFRINGEMENT OR ANY DAMAGES
THEREFROM.
15. LIMITATION OF LIABILITY
EXCEPT AS TO INDEMNIFIED MATTERS UNDER 14 ABOVE, IN NO EVENT SHALL DOCUMENT
SCIENCES BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
IN ADDITION, DOCUMENT SCIENCES' LIABILITY TO CUSTOMER FOR DIRECT DAMAGES SHALL
IN NO EVENT EXCEED THE TOTAL AMOUNT OF MONEY ACTUALLY PAID BY CUSTOMER TO
DOCUMENT SCIENCES UNDER THIS AGREEMENT.
16. MISCELLANEOUS
a. No delay or failure of Document Sciences to exercise any right or remedy
will operate as a waiver of such right or remedy.
b. This Agreement shall be construed in accordance with and be governed by the
laws of the State of California.
c. Any notice given under this Agreement shall be in writing and sent by
prepaid registered mail or certified airmail, or commercial courier service,
return receipt requested. All such notices shall be deemed to have been
given when received, addressed in the manner indicated below or at such
other addresses as the parties may from time to time notify each other of.
Notice to Customer: Notice to Document Sciences:
___________________________ Xxxx XxXxxxxx, Contracts Manager
___________________________ Document Sciences Corporation
___________________________ 0000 Xxxxx xxx Xxxx
___________________________ Xxxxxxxx, XX 00000
d. This Agreement is the entire agreement between Customer and Document
Sciences pertaining to the Licensed Software and supersedes all proposals or
prior and contemporaneous agreements or understandings of Customer and
Document Sciences regarding the Licensed Software. CUSTOMER AGREES THAT ANY
TERMS AND CONDITIONS CONTAINED IN ANY CUSTOMER PURCHASE ORDER OR OTHER
ORDERING DOCUMENT SHALL HAVE NO BINDING EFFECT ON DOCUMENT SCIENCES AND WILL
NOT MODIFY THIS AGREEMENT IN ANY WAY. Modification of this Agreement shall
not be valid unless in writing and signed by duly authorized representative
of both parties.
e. This Agreement may be executed in two or more counterparts, each of which
when so executed and delivered, shall constitute a single agreement.
f. If any provision of this Agreement is held invalid, such invalidity shall
not effect the validity or enforceability of the other provisions of this
Agreement or of the Agreement as a whole.
PAGE 17 OF 24
g. Customer shall be responsible for the payment of any and all taxes on the
Initial License Fee(s) and Annual License Fee(s),other than taxes based on
Document Sciences' net income or Document Sciences' business privilege
taxes.
PAGE 18 OF 24
EXHIBIT C
TERRITORY
--------------
PAGE 19 OF 24
EXHIBIT D
SOFTWARE MAINTENANCE AGREEMENT BETWEEN DOCUMENT SCIENCES AND VAR
1) VAR'S RESPONSIBILITIES:
a. VAR shall: (i) be solely responsible for and bear all costs associated
with determining and maintaining the configuration and operation of the
Value Added Product and all associated software, and (ii) integrating any
and all software of VAR's or third party licensors other than DOCUMENT
SCIENCES included in or proposed to be included in the Value Added Product
with and into the Licensed Software. VAR shall provide all first level
support, training, and maintenance for the Value Added Product. First
level support means collecting problem information from the Sublicensee,
making efforts to duplicate the problem symptoms, and supplying
information to the Sublicensee regarding problem resolutions, corrections,
patches and workarounds where these exist.
b. VAR understands that DOCUMENT SCIENCES' Licensed Software is equipped with
security features that require the annual submission of license keys to
keep the DOCUMENT SCIENCES Licensed Software operational. As such, VAR
shall set-up processes to ensure that license keys are received from
DOCUMENT SCIENCES and shipped to Sublicensees in sufficient time to avoid
service disruption.
2) DOCUMENT SCIENCES' RESPONSIBILITIES
a. Second and third level support for DOCUMENT SCIENCES Licensed Software
shall be included in the Support Fee VAR charges to the Sublicensee, of
which VAR shall pay DOCUMENT SCIENCES as specified in Exhibit A, and as
discounted in Exhibit F. Second level support means conducting problem
research to determine the nature of problems that have not been previously
identified to VAR and developing workarounds to allow Sublicensees to
avoid problems; third level support means the correction of Licensed
Software to resolve reported problems and the creation of patch releases
to correct such problems. For purposes of this Agreement, Software Support
shall consist of the following:
i. DOCUMENT SCIENCES sending to VAR from time to time, as DOCUMENT
SCIENCES deems appropriate, Licensed Software releases or minor
upgrades made generally available by DOCUMENT SCIENCES to its
customers, the primary purpose of which is to maintain compatibility
with the then current supported host environments and/or add or
enhance Licensed Software features and capabilities. Major upgrades
and new releases shall be added to the Price List and shall require
additional payment.
ii. The provision by DOCUMENT SCIENCES of a VAR Support Center Hot-Line
number and email addresses for the resolution of problems and
questions relating to the DOCUMENT SCIENCES Licensed Software. The
Hot-Line shall be available to VAR for live communication from 6am to
5pm Pacific Time, Monday through Friday. Outside of these hours,
DOCUMENT SCIENCES shall provide a telephone message recording device
which shall record VAR's reports. DOCUMENT SCIENCES shall use best
efforts to resolve technical problems or errors with the Licensed
Software which are identified by VAR and which VAR is unable to
resolve based on the following Severity Levels and timeframes:
SEVERITY LEVEL DEFINITIONS:
- Severity Level 1 -- A production system is down and / or the user
has no production capability
- Severity Level 2 -- The system is up but production capability is
seriously degraded, OR, the End-User is developing an application
and under urgent time constraints
- Severity Level 3 -- The system is up but production capability is
reduced, OR, the End-User is developing an application but can
work on other elements while awaiting a fix, OR, VAR is
conducting a customer trial or customer acceptance test to enable
a new Product sale
- Severity Level 4 -- The system is up with no significant impact
to production
PAGE 20 OF 24
TARGET PROBLEM RESOLUTION TIMEFRAMES:
----------------------------------------------------------------------------------------------------------------------------
XXXXX 0 XXXXX 0 XXXXX 0 XXXXX 0
Per Task Elapsed Per Task Elapsed Task Per Elapsed Task Per Elapsed
Business Business Business Business Business Business Business Business
Days Days Days Days Days Days Days Days
----------------------------------------------------------------------------------------------------------------------------
Receipt of incident info will 1 hour 1 hour 2 hours 2 hours 8 hours 8 hours 1 day 1 day
be acknowledged to VAR within:
----------------------------------------------------------------------------------------------------------------------------
Support Action Plan 1/2 day 1/2 day 1 day 1 day 2 days 3 days 5 days 6 days
communicated to VAR within:
----------------------------------------------------------------------------------------------------------------------------
IF NO DEVELOPMENT AR REQUIRED:
----------------------------------------------------------------------------------------------------------------------------
Frequency of VAR Daily 2 days 5 days 10 days
communications:
----------------------------------------------------------------------------------------------------------------------------
Solution given to VAR within: 2 days 2 1/2 days 6 days 7 days 8 days 11 days 10 days 16 days
----------------------------------------------------------------------------------------------------------------------------
Incident solution verified by 1/2 day 3 days 2 days 9 days 5 days 16 days 10 days 26 days
VAR and incident log closed
within:
----------------------------------------------------------------------------------------------------------------------------
IF DEVELOPMENT AR REQUIRED:
----------------------------------------------------------------------------------------------------------------------------
Frequency of VAR Daily 5 days 10 days 60 days
communications:
----------------------------------------------------------------------------------------------------------------------------
Incident communicated to 1 day 1 1/2 days 3 days 4 days 5 days 8 days 10 days 16 days
development within:
----------------------------------------------------------------------------------------------------------------------------
Development Action Plan 3 days 4 1/2 days 7 days 11 days 10 days 18 days 20 days 36 days
created and communicated to
VAR by:
----------------------------------------------------------------------------------------------------------------------------
Solution, workaround or Determined Determined Determined Determined
alternative given to VAR in Develop. in Develop. in Develop. in Develop.
within: Action Plan Action Plan Action Plan Action Plan
----------------------------------------------------------------------------------------------------------------------------
After solution, workaround or 1 day 2 days 8 days 10 days
alternative delivered to VAR,
incident solution verified by
VAR and incident log closed
within:
----------------------------------------------------------------------------------------------------------------------------
iii. The submission of Licensed Software problems to DOCUMENT SCIENCES
via a Problem Report. DOCUMENT SCIENCES does not, however, guarantee
the correction of any Licensed Software Problem. However, should the
Licensed Software contain an error which is in material
nonconformity to its published DOCUMENT SCIENCES specifications,
DOCUMENT SCIENCES, at its option, may either provide Customer with
Licensed Software which is free from the error, a workaround which
avoids the error, or a refund of the License Fees paid for such
Licensed Software.
b. The implementation of all Licensed Software releases/minor upgrades that
are included with the payment of Annual License Fees is mandatory and the
previous release of Licensed Software will only be supported for six (6)
months following the "general availability" of the current release/minor
upgrade as determined by DOCUMENT SCIENCES.
c. If VAR fails to implement the most current release or minor upgrade of the
Licensed Software for any reason whatsoever, DOCUMENT SCIENCES may
discontinue providing Licensed Software Support for any affected Licensed
Software without further liability to VAR.
d. DOCUMENT SCIENCES Licensed Software shall be delivered to VAR with license
keys that expire ninety (90) days after installation anniversary date.
Upon receipt of Support Fees, DOCUMENT SCIENCES shall ship VAR renewal
license strings within 10 business days.
e. DOCUMENT SCIENCES reserves the right to discontinue Licensed Software
Support for any Licensed Software at any time after the first anniversary
of this Agreement. DOCUMENT SCIENCES shall give VAR at least ninety (90)
days prior written notice of the effective date of such discontinuance and
shall reimburse VAR the pro rata portion of any prepaid Support Fees for
Licensed Software Support provided that VAR is in full compliance with the
terms of this Agreement. Should such a discontinuance occur, VAR's
Sublicensees may retain their right to use the Licensed Software for an
indefinite period of time.
PAGE 21 OF 24
EXHIBIT E
VALUE ADDED PRODUCT DEFINITION
VAR shall add value to the DOCUMENT SCIENCES Licensed Software through
performing the following functions:
1. Pre- and post-sales technical support.
2. Assisting the customer with fee based application development.
3. Providing first level hot-line and installation support.
4. Providing initial customer training on Licensed Software.
PAGE 22 OF 24
EXHIBIT F
VAR FEES, DISCOUNTS, AND PERFORMANCE EXPECTATIONS
PROGRAM FEES:
Upon acceptance of this agreement, VAR shall pay a one-time, non-refundable
program fee to DOCUMENT SCIENCES of ________. In addition, VAR shall pay an
Annual Fee of __________ USD to DOCUMENT SCIENCES, which will be
refunded/credited back to VAR if annual revenues exceed $300,000 USD net to
Document Sciences in Initial License Fees (ILF).
LICENSED SOFTWARE USE FEES:
Licensed Software for the purposes of conducting pre-sale demonstrations,
internal training, and hotline support shall be provided in reasonable
quantities at no charge under separate agreement. Licensed Software for the
purposes of conducting application development or any form of billable customer
services, other than hotline support, shall be charged per the Consultancy
License price quoted in Exhibit A on a per PC per year basis. VAR shall use the
Licensed Software for general operations purposes or for processing of internal
administrative or customer data only pursuant to a separate End User License
executed between VAR and DOCUMENT SCIENCES. . Notwithstanding anything else in
this Agreement, Document Sciences reserves the right to charge VAR for internal
use, consulting, and trial software upon ninety (90) days written notice.
DISCOUNTS:
LICENSED SOFTWARE DISCOUNTS:
The amount which DOCUMENT SCIENCES invoices VAR for the DOCUMENT SCIENCES
Licensed Software shall be reduced from the list price contained in Exhibit A by
the VAR Discount indicated below:
Annual Net To DOCUMENT SCIENCES Initial License Fee Revenue VAR Discount
----------------------------------------------------------- ------------
$______ - $__________ __%
$______ - $__________ __%
$______ + __%
The VAR Discount shall be adjusted throughout the calendar year to reflect
year-to-date revenues and shall be set at the beginning of each subsequent
calendar year based on the previous year's total Net Initial License Fees
Revenue to DOCUMENT SCIENCES. This VAR Discount will apply to all License Fees,
after any Volume Discounts are taken into account, and will also apply to
Support Fees chargeable to VAR as a result of Sublicensing and supporting
DOCUMENT SCIENCES Licensed Software to End-Use Customers in the Territory.
PERFORMANCE EXPECTATIONS: NET INITIAL LICENSE FEES REVENUE TO DOCUMENT SCIENCES.
YEAR 1 $________________
YEAR 2 $________________
YEAR 3 $________________
PAGE 23 OF 24
EXHIBIT G
VAR RESOURCE REQUIREMENTS
Participation in DOCUMENT SCIENCES training programs are mandatory based on the
Licensed Software that VAR is authorized to sublicense.
TRAINING REQUIRED FOR FIRST LEVEL SUPPORT
-------------------------------------------------------------------------------------------------------------
INITIAL
CERTIFICATION PROGRAM COMPONENTS INDIVIDUALS TRAINED TRAINING FEE SCHEDULE
-------------------------------------------------------------------------------------------------------------
Sales Training 1.5 Days @ your Field Sales Staff $2,500 Scheduled upon
location. Minimum of 2 signature of this
required agreement
-------------------------------------------------------------------------------------------------------------
Product Demo Training 1.5 Days @ your Field Analysts $2,500 Scheduled upon
location. Minimum of 2 signature of this
required agreement
-------------------------------------------------------------------------------------------------------------
1st Level Support Customer Support Support Staff None if taken To be taken within 2
Certification Primer Course Minimum of 2 with SDP months of signing
1 day @ your location required Training this contract or
Standard Product Maximum of 8 otherwise - prior to the first
Course(s)** $2,500 sale of Document
Sciences Licensed
Software
(Whichever comes
first)
-------------------------------------------------------------------------------------------------------------
Solution Delivery Solution Delivery Consulting Staff $7,500 To be taken 1 month
Certification Process Course Field Staff and prior to the start of
2 - 2.5 days @ your Support Staff are the first solution
location optional engagement
Minimum of 2
Standard Product required
Course(s)** Maximum of 8
-------------------------------------------------------------------------------------------------------------
** Please see the Product Training Table for fees and information about the
Standard Product Courses and Advanced Product Courses.
TRAINING REQUIRED FOR TRAINING CERTIFICATION
------------------------------------------------------------------------------------------------------------
CERTIFICATION PROGRAM COMPONENTS INDIVIDUALS TRAINED TRAINING FEE SCHEDULE
------------------------------------------------------------------------------------------------------------
Training Certification Each VAR Instructor Training Staff $3,500 for Optional & not
must attend a 1 to 3 Maximum of 4 each Train the required for 2nd
day Train the Instructors in any Trainer Level Support
Trainer session for Train the Trainer Session
each Product Course Session. Applicable
they wish to be fees apply for
certified to teach. the Product
Standard Product Courses
Course(s)**
Advanced Product
Course(s)**
------------------------------------------------------------------------------------------------------------
** Please see the Product Training Table for fees and information about the
Standard Product Courses and Advanced Product Courses.
1. All prices are in addition to any program fees and are for on-site
training at VAR location. A separate signed training agreement will be
required to secure the delivery dates. Optionally, VAR may choose to
send students to the regional training centers by completing a
registration form. Additional discounts for regional training are not
available.
2. Payment will be made to DOCUMENT SCIENCES within 30 days of completion
of each training segment.
3. Instructor's travel and expenses are additional for all training
conducted at VAR facilities.
PAGE 24 OF 24
DOCUMENT SCIENCES PRODUCT COURSE TRAINING REQUIREMENTS AND DISCOUNTS
Participation in DOCUMENT SCIENCES Product Courses is required. The Product
Courses required are based on the Licensed Software that VAR is authorized to
sell and are listed in the Product Training Table below. Fees for Product
Training will be based on the Document Sciences course fee schedule at the time
of the course less the applicable discount listed for VAR or their End User. VAR
must schedule all End Users' Courses to receive the listed discount. All travel
costs will be the responsibility of the VAR or their End User.
PRODUCT TRAINING TABLE
-------------------------------------------------------------------------------------------------------------------
STANDARD PRODUCT COURSE NAMES ADVANCED COURSE NAMES
REQUIRED FOR 1ST REQUIRED FOR 2ND LEVEL VAR END USER
PRODUCT LEVEL SUPPORT SUPPORT VAR DISCOUNT DISCOUNT
-------------------------------------------------------------------------------------------------------------------
DLS EXPRESS Fundamentals of DLS (Publish Advanced DLS 50% off 25% off
to Word)
-------------------------------------------------------------------------------------------------------------------
DLS ENTERPRISE MS Word Self Study Guide Advanced DLS 50% off 25% off
Fundamentals of DLS
CompuSet Command Language
with Visual CompuSet
System Administrator Course
OUTPUT PROCESSING -
Output Processing Self Study
Guides for CompuSet and DLS
or - optionally
Output Processing for DLS
Course
-------------------------------------------------------------------------------------------------------------------
DLS eCOR Self Study Guide/Developer Kit N/A N/A N/A
-------------------------------------------------------------------------------------------------------------------
VISUAL COMPUSET Fundamentals of VC Pro Fundamentals of Data 50% off 25% off
PROFESSIONAL (VC PRO) CompuSet Command Language Prep
System Administrator Course Tool
-------------------------------------------------------------------------------------------------------------------
VC PRO WEB DESIGNER VC Pro Web Designer Self N/A N/A N/A
Study Guide
-------------------------------------------------------------------------------------------------------------------
Self Study Guides are provided at No Charge on the eBooks CD.
