EXHIBIT 10.17
XXXX INTERACTIVE SERVICES
MASTER SOFTWARE LICENSE AGREEMENT
THIS MASTER SOFTWARE LICENSE AGREEMENT ("Agreement"), together with the attached
Schedules, Exhibits or Addenda which are incorporated and made part of the
Agreement, is entered into by and between XXXX INTERACTIVE SERVICES ("Xxxx"), a
Colorado corporation with its principal offices located at 0000 Xxxxxxx Xxxxx,
Xxxxxx Xxxxxxxx, XXX 00000 and the client(s) ("Client") whose name, principal
business address, and jurisdiction of incorporation are set forth below.
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Client Name(s): VETCONNECT, INC.
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Address: 00 Xxxxxxxx Xxxxxx
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City: Portland
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State/Zip or Province/Postal Code: ME 04101
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Country: USA
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Jurisdiction of Incorporation: Delaware
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1.0 License, Hosting Services and Payment.
1.1 Subject to the terms and conditions of this Agreement, Xxxx hereby grants
to Client a perpetual and non-transferable (except as set forth in Section 15.0)
license to (i) use, copy (for Client's internal business purposes only), and
modify the Products provided that Client may use the Community Xxxx/XML only on
the Number of Sites, as designated in Schedule A and (ii) use the Documentation.
The license granted herein shall include the limited exclusive rights set forth
in Schedule E. Client may use other third-party providers to host its services
provided Client shall obtain prior consent of XXXX before allowing such third
party providers access to the Products, which consent shall not be unreasonably
denied.
1.2 Client shall pay Xxxx the License Fees as set forth in Exhibits attached
hereto, subject to any discounts therein. All fees are exclusive of Taxes. If
applicable laws require the withholding of Taxes under this Agreement, Client
shall notify Xxxx, make the applicable withholding, and remit the required Tax
to the proper governmental authority.
2.0 Delivery and Installation.
2.1 Upon receipt of an executed and completed contract and purchase order from
Client, Xxxx shall deliver the Products to Client in a reasonably appropriate
format , including one copy of the Documentation on reasonably appropriate
media.
2.2 Except as set forth in this section or unless otherwise agreed by the
Parties in a separate written agreement, Client shall, at its expense and as
described in the Professional Services Agreement that is Schedule D, be
responsible for installation of the Products, user training, data conversion,
and other services necessary to installing and using the Products.
3.0 Definitions.
3.1 "Agreement" means this Agreement, Schedules, Exhibits and any addenda
signed by the Parties.
3.2 "Confidential Information" means all rights, information, trade secrets,
know-how, processes, software, methods, designs, documentation, customer lists,
marketing plans and the like, in whatever form or medium, relating to the
Products or the operation of Xxxx or specifically to Client's Internet site, or
to any information included thereon, and which have not been previously
disclosed to the general public.
3.3 "Customer" means a Client subscriber that has set up its own business web
site through the use of functionality provided by the Products.
3.4 "Documentation" means all documentation delivered by Xxxx with the
Products, whether in machine-readable or printed form, including any updates,
revisions, new versions, and supplements to such documentation.
3.5 "Effective Date" means the date when the Parties have executed this
Agreement as indicated at the end of this Agreement in the space marked "Date"
below each Parties' signature to this Agreement.
3.6 "Intellectual Property Rights" means all copyrights, confidentiality
rights, trade secret rights, trademark rights, patent rights and other
intellectual property rights.
3.7 "License" means the license referred to in Section 1.1.
3.8 "License Fee" means the license fee payable for a Product as set forth in
the Schedule A, Exhibit 1.
3.9 "Modifications or Enhancements" means any Upgrades, modifications,
enhancements or derivative works to the Products developed
by Xxxx which contain or use any object code or source code developed by Xxxx.
3.10 "Number of Seats" means the maximum number of Customers' websites which
may have access to the functionality provided by the Products.
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3.11 "Number of Sites" means the maximum number of locations or street addresses
in the United States at which the server portion of the Products are installed.
3.12 "Parties" means Xxxx and Client. "Party" means either Xxxx or Client.
3.13 "Patent or Copyright" means the rights in any patent or copyright in the
country in which the server portion of the Products is first installed in the
United States.
3.14 "Platform Technology" means the current and future release levels of the
hosting environment designated in Exhibit A and certified by Xxxx for use with
the Products. Unless otherwise agreed upon in this Agreement, Xxxx shall not be
obligated to provide Support for any portion of the Platform Technology.
3.15 "Products" means the software products owned by Xxxx including the
functionality designated on the Schedule A to this Agreement.
3.16 "Product Warranty" means the warranty referred to in Section 4.0.
3.17 "Seat" means Customers' web sites which may have access to the
functionality provided by the Products.
3.18 "Site" means a location or street addresses in the United States at which
the server portion of the Products is installed.
3.19 "Taxes" means any sales, use, excise, value-added, withholding taxes or
other taxes based upon this Agreement, including taxes, interest and penalties
that are levied or assessed by a governmental authority, resulting from this
Agreement, excluding taxes based on Xxxx'x net income.
3.20 The singular and plural shall each include the other, and this Agreement
shall be read accordingly when required by the facts.
3.21 "Upgrades" means new features, updates, upgrades, improvements, bug
fixes, and error corrections that are provided to Xxxx customers or added to
the Products and their respective functionality as they are made generally
available by XXXX to its clients.
4.0 Warranties and Disclaimer of Warranty
As long as Client is in compliance with all aspects of this Agreement:
4.1 Xxxx warrants that at the time of installation by VetConnect of the
Products, the media containing the Products shall be free of material defects.
Client's sole and exclusive remedy for breach of the Media Warranty is
replacement of the defective media if any such defect is found within three (3)
months after installation of the defective media.
4.2 Xxxx warrants that upon delivery, the Products shall materially or
substantially perform in accordance with the Documentation provided by Xxxx and
that the Products will function on the Platform Technology.
4.3 Xxxx hereby represents and warrants to Client that Xxxx has the full right,
power, legal capacity and authority to enter into this Agreement and to carry
out its terms. Xxxx hereby represents, warrants and covenants to Client that
Xxxx is under no obligation or restriction, nor will it knowingly assume any
such obligation or restriction that does or would in any way interfere or
conflict with, or that does or would present a conflict of interest concerning
this Agreement.
4.4 Xxxx hereby represents, warrants and covenants to Client that, except only
as specifically provided otherwise in this Agreement, Xxxx has full right, title
and interest in the Products and all creative materials incorporated therein.
4.5 Xxxx hereby represents, warrants and covenants to Client that the Products
will be free from material reproducible programming errors and from defects in
workmanship and materials and will operate in conformity with the specifications
set forth in the Appendices hereto. If material programming errors are
discovered within three (3) months after installation of the Products, Xxxx
shall promptly remedy them at Xxxx'x sole expense.
4.6 Xxxx hereby represents, warrants and covenants to Client that except as
agreed to in writing by the Parties, no portion of the Products delivered
hereunder will contain any protection feature designed to prevent its use. Xxxx
further warrants that it will not impair the operation of any such Products in
any way other than by order of a court of law.
4.7 Xxxx hereby represents, warrants and covenants to Client that there are and
will be no liens, claims, encumbrances, and to Xxxx'x knowledge, no legal
proceedings, restrictions, agreements or understanding that might conflict or
interfere with, limit, or be inconsistent with or otherwise affect any of the
provisions of this Agreement or the enjoyment by Client of any rights in any of
the Products or any elements thereof.
4.8 Xxxx hereby represents, warrants and covenants to Client that, to Xxxx'x
knowledge, the Products do not infringe on any patents, copyrights, trademarks,
trade names, or other intellectual property rights (including trade secrets),
privacy or similar rights of any person or entity, nor has any claim of such
infringement been threatened or asserted, nor is such a claim pending against
Xxxx (or to the best of Xxxx'x knowledge, any entity from which Xxxx has
obtained such rights).
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4.9 Xxxx warrants to Client that the Products provided hereunder and under any
Exhibits or Schedules attached hereto by Xxxx shall be performed by qualified
personnel in a good and workmanlike manner and that, during the term of this
Agreement, the Products shall be free from any operational defects that
materially interfere with the Client's use of the Product in accordance with
user documentation and the specifications set forth in Schedule A. The
foregoing warranty is made only to the Client and shall not be construed as
conferring any rights upon anyone not a Party to this Agreement. If, within
three (3) months after installation of the Products, Client discovers a defect
in the operation to the Products, it must promptly notify Xxxx in writing.
Within a reasonable time after such notification, Xxxx will correct at Xxxx'x
expense such failure to conform to the user Documentation or to correct any
defect in workmanship. Except as otherwise provided in this Agreement, the
remedies set forth in this Section 4.9 are Client's exclusive remedies for
breach of this warranty set forth in Section 4.4 and this Section 4.9.
4.10 Xxxx does not warrant any production components not developed or created
by Xxxx, defects caused by disasters, unauthorized use or any other abuse or
misuse by Client. Client shall be solely responsible for obtaining and
maintaining, at its expense, all equipment and software at its location
necessary to use the Products. Even if Xxxx makes recommendations to the Client
regarding any such equipment or software, Xxxx shall have no responsibility or
liability to Client for any loss, claim or damage resulting from or relating to
Client's acquisition or use of such equipment or software.
4.11 THE EXPRESS LIMITED WARRANTIES IN THIS SECTION 4.0 ARE IN LIEU OF ALL
OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, CONTRACTUAL OR STATUTORY,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY OTHER PROVISION IN THIS
AGREEMENT, XXXX DOES NOT WARRANT THAT THE USE OF THE PRODUCTS SHALL BE
UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF
BEING CORRECTED.
5.0 Intellectual Property Rights.
5.1 Client acknowledges and agrees that the Products, the ideas, methods of
operation, processes, know-how, sub-systems and modules included in the Products
are proprietary materials which contain valuable trade secrets and that all
Intellectual Property Rights to the Products are owned exclusively by Xxxx,
subject to the License.
5.2 Client acknowledges and agrees that Xxxx shall retain title to all
Intellectual Property Rights related to the Products, copies of the Products,
and Upgrades, Modifications or Enhancements. If Client makes any modifications
or enhancements, Client shall assign to Xxxx all Intellectual Property Rights to
the modifications or enhancements provided that Client shall retain a perpetual
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license to use, copy and modify any modifications for the sole purpose of
benefiting its web site. Modifications or Enhancements may be used in
conjunction with the Products only in compliance with this Agreement.
5.3 Client shall take reasonable precautions (including the precautions used
for Client's own confidential information) to prevent the unauthorized use or
disclosure of the Products, any source code provided to Client under this
Agreement or other agreement between the Parties. Except as contemplated under
the terms of this Agreement, Client shall not allow the Products to be made
available to any third party (other than an Affiliate of VetConnect (as defined
in Section 15 below) unless Xxxx approves such in writing and the third party
enters into a non-disclosure and non-use agreement with Client on terms
acceptable to Xxxx. Client shall not disassemble, decompile, decode or reverse
engineer the Software, except as expressly permitted by applicable law.
5.4 Client shall use reasonable efforts to keep the Products free and clear of
liens and security interests and may not sublicense the Products.
6.0 Inspection.
Xxxx shall have the right to inspect, with reasonable notice, during normal
business hours, no more than once per calendar year, any Site for the sole
purpose of auditing use of the Products.
7.0 Number of Seats.
Except as set forth in this Agreement, the number of Seats authorized to use any
Product shall not exceed the Number of Seats without the prior approval of Xxxx.
In the event that the Number of Seats is exceeded by the Client, Client shall
pay to Xxxx an additional license fee as follows: (a) $20 for each additional
Seat between 5001-10,000 Seats , (b) $15 for each additional Seat over between
10,000 and 20,000 Seats and (c) $10 for each additional Seat over 20,000.
8.0 Number of Sites.
Except as set forth in this Agreement, the Number of Sites upon or at which the
Product is installed shall not exceed the quantities specified in this Agreement
as stated in the attached Schedule A. In the event that Client in its sole
discretion desires to increase the Number of Sites, Client shall before such
increase pay a fee to Xxxx the then current fee charged by Xxxx for additional
site for customers reasonably similar to Client.
9.0 Upgrades
All Upgrades, Enhancements and Modifications to the Products developed by Xxxx
shall be provided by Xxxx to Client pursuant to the license granted in Section
1.1.
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10.0 Copies of Products and Documentation.
With Xxxx'x prior permission only, Client may copy the Products, in object and
source code format, only for backup, archival purposes or for Client's testing
purposes. All copies of the Products must have all of the restrictive and
proprietary notices as they appear on copies of the Products provided by Xxxx.
11.0 Source Code and Confidential Information.
11.1 The Products, in source code format, may be used only for diagnosing
problems and developing modifications or enhancements permitted by this
Agreement. Client shall ensure that only such authorized users have access to
the Products.
11.2 Xxxx and Client and each of their representatives and agents shall
maintain, and cause any third party involved in the delivery, installation or
operation of the Products to maintain the Confidential Information of the other
party in the strictest confidence and trust and shall take all reasonable
measures to prevent the unauthorized use or disclosure of such Confidential
Information except with the written consent of the owner of such Confidential
Information in each instance, provided that either party may make disclosures
required by a court of law or other governmental agency. Xxxx and Client and
each of their representatives and agents agree to use the Confidential
Information of the other party solely for the purpose of carrying out its
obligations under this Agreement.
12.0 Infringement and Indemnity.
12.1 Xxxx shall, at its expense, defend any suit, claim or action brought
against Client and shall indemnify and hold Client harmless against any and all
claims, losses, damages, and liabilities whatsoever arising out of any action or
claim asserted by a third party arising from any actual or asserted infringement
of a Patent or Copyright or trade secret as a result of Client's use or a
customer of Client's use of the Products, if Client: (a) promptly notifies Xxxx
in writing of the suit or claim after Client receives notice; (b) gives Xxxx
sole authority to defend or settle the suit or claim; (c) reasonably cooperates
and assists Xxxx with defense of the suit or claim at Xxxx'x expense.
12.2 If any Product becomes or in Xxxx'x opinion is likely to become the
subject of a suit or claim of infringement of a Patent or Copyright, Xxxx shall
at its option and expense either (a) obtain the right for Client to use the
Product; or (b) replace or modify the Product so that it becomes non-infringing.
In the event that, after good faith best efforts by Xxxx, Xxxx is unable to
obtain the right for Client to use the Product; or replace or modify the Product
so that it becomes non-infringing, Xxxx may terminate the license solely for the
infringing Product to the extent it relates to the infringing Product. If Xxxx
terminates any portion of the license for the infringing Product under this
Section 12.2, Client shall cease use of solely the infringing portion of the
Product and shall return it to Xxxx and Xxxx shall pay Client, as Client's sole
and exclusive remedy against Xxxx (other than indemnification by Xxxx under
Section 12.1) an amount equal to the license fee paid under this Agreement for
the infringing portion of the Product less any cumulative amortization or
depreciation of that portion of the Product by Client on its financial
statements as of the date when Xxxx terminates the license for the infringing
portion of the Product.
12.3 Xxxx shall have no liability to Client under this Section 12.0 if any suit
or claim of infringement is based upon the use of the Product: (a) in a modified
state not authorized by Xxxx; or (b) in a manner other than for which it was
designed, if infringement would have been avoided without such use of the
Product. Xxxx shall not be liable to Client for any infringement claim outside
the United States or Canada.
12.4 Client, at its expense, shall defend any suit, claim or action brought
against Xxxx and shall indemnify and hold Xxxx harmless against any and all
claims, losses, damages, and liabilities whatsoever arising out of any action or
claim asserted by a third party arising from Client's use of the Products in a
manner that is inconsistent with the terms of this Agreement, provided Xxxx (a)
promptly notifies Clients in writing of the suit or claim after Xxxx receives
notice; (b) gives Client sole authority to defend or settle the suit or claim;
and (c) reasonably cooperates and assists Client with defense of the suit or
claim at Xxxx'x expense.
13.0 Term and Termination.
13.1 The term of this Agreement shall begin upon the Effective Date, and shall
continue until terminated by either Party pursuant to the terms and conditions
of this Agreement.
13.2 Xxxx may terminate this Agreement and the license granted to Client if Xxxx
is in compliance with this Agreement and either (a) Client fails to pay Xxxx the
one-time license fee set forth in Section 1.2 (and specifically excluding any
fees due from Client to Xxxx pursuant to Exhibits B, C, and D) and such failure
to pay has not been cured within thirty (30) days after Xxxx gives Client
written notice describing the failure to pay, (b) Client is in material default
of any other provision of this Agreement and such default has not been cured
within thirty (30) days after Xxxx gives Client written notice describing the
default. Upon termination in accordance with this Section 13.2, Xxxx may:
(i) declare all amounts owed to Xxxx by Client to be immediately due and
payable;
(ii) require that Client cease any further use of the Products and
immediately return the Products and any copies to Xxxx; and
(iii) cease performance of all of Xxxx'x obligations under this Agreement
without liability to Client.
13.3 Client may terminate this Agreement if Client is in compliance with this
Agreement and Xxxx is in material default of any provision of this Agreement and
such default has not been cured within thirty (30) days after Client gives Xxxx
written notice describing the default. Upon such termination:
(i) Client shall pay Xxxx'x outstanding invoices that do not pertain to
Xxxx'x default, but Client shall have no further payment
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obligations to Xxxx under this Agreement; and
(ii) Xxxx may require that Client cease any further use of the Products and
immediately return the Products and any copies to Xxxx.
13.4 Upon termination of this Agreement by Xxxx or Client, Sections 3.0, 5.0,
6.0, 9.2, 12.0 through 25.0 of this Agreement shall survive.
14.0 Limitations of Liability.
14.1 CLIENT'S EXCLUSIVE REMEDIES FOR PRODUCT RELATED MATTERS SHALL BE AS
DESCRIBED IN THIS AGREEMENT, SUBJECT TO THE LIMITATIONS OF SECTION 14.0.
14.2 XXXX SHALL NOT BE LIABLE FOR ANY EXPENSE OR DAMAGE ARISING OUT OF ANY
ERASURE, DAMAGE OR DESTRUCTION OF FILES, DATA OR PROGRAMS. CLIENT SHALL BE
RESPONSIBLE FOR MAKING BACKUP COPIES OF FILES, DATA, AND PROGRAMS.
14.3 IN NO EVENT SHALL XXXX OR ITS THIRD PARTIES BE LIABLE FOR SPECIAL,
INDIRECT, THIRD PARTY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS.
NEITHER PARTY SHALL SEEK, OR OTHERWISE APPLY FOR, ANY PUNITIVE OR EXEMPLARY
DAMAGES.
14.4 EXCEPT ONLY FOR INDEMNIFICATION BY XXXX UNDER SECTION 12.1 ABOVE, XXXX'X
MAXIMUM AGGREGATE LIABILITY FOR DAMAGES TO CLIENT OR OTHERS SHALL BE LIMITED TO
ACTUAL DIRECT MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE INITIAL LICENSE FEE
PAID BY CLIENT TO XXXX FOR THE PRODUCT IF THE CLAIM AROSE WITHIN THREE YEARS
AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.
14.5 CLIENT ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION 14
ARE REASONABLE. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE.
15.0 Assignment.
Xxxx may not assign or subcontract its rights or obligations under this
Agreement, either in whole or in part, without the prior written consent of
Client, which shall not be unreasonably withheld, except that, without the
consent of Client, Xxxx may assign the entirety of its rights and obligations
hereunder to an acquirer of substantially all of the business or assets of Xxxx.
Client may not assign or subcontract its rights or obligations under this
Agreement, either in whole or in part, without the prior written consent of the
Xxxx, which shall not be unreasonably withheld, except that, without the consent
of Xxxx, Client may assign the entirety of its rights and obligations hereunder
to a) an acquirer of substantially all of the business and assets of Client or
b) an Affiliate of Client. "Affiliate" means with respect to any Party, an
individual or entity that, directly or indirectly, owns or controls, is owned or
controlled by, or is under common ownership or control with such Party.
16.0 Waiver.
No term or provision of this Agreement shall be deemed waived and no breach
shall be deemed excused, unless such waiver is in writing and signed by the
Party claimed to have waived or consented. A waiver by either of the parties of
any of the covenants, conditions or agreements to be performed by the other
hereunder shall not be construed to be a waiver of any succeeding breach
thereof.
17.0 Export.
Client shall not export the Products from the United States. If at anytime
Client desires to deploy the Products at a location outside the United States,
Client pay to Xxxx the then current published license fee for foreign deployment
of the Products. If the foregoing does not reasonably apply to the then current
situation at the time that Client desires to deploy the Products outside of the
United States, the Parties shall negotiate in good faith until an acceptable
license fee is mutually agreed upon by the Parties in writing.
18.0 Excusable Delay.
Neither Xxxx nor Client shall be deemed to be in default of any provision of
this Agreement or for any failure in performance, resulting from acts or events
beyond the reasonable control of Xxxx or Client, as the case may be. For
purposes of this Agreement, such acts shall include, but not be limited to, acts
of God, civil or military authority, civil disturbance, war, strikes, fires,
other catastrophes, or other such major events beyond Xxxx'x or Client's
reasonable control. This Section 18.0 shall not delay or excuse Client's
payment obligations.
19.0 Governing Law and Dispute Resolution.
This Agreement is governed by and construed in all respects in accordance with
the laws of the State of Colorado, USA. (without regard to conflicts of laws
principles), excluding the United Nations Convention on Contracts for the
International Sale of Goods.
20.0 Relationship
The relationship of Xxxx and Client under this Agreement will at all times
remain independent. Neither Party is an agent, franchisee, partner or joint
venturer of the other Party. Neither Party is authorized to enter into or
execute any contract on behalf of or otherwise obligate the other Party in any
matter.
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21.0 Severance and Interpretation.
If any provision of this Agreement is found to be unenforceable, such provision
shall be deemed to be deleted or narrowly construed to such extent as is
necessary to make it enforceable and this Agreement shall otherwise remain in
full force and effect. If an ambiguity or question of intent arises, this
Agreement shall be construed as if drafted jointly by the Parties and no
presumption or burden of proof shall arise favoring or disfavoring either Party
by virtue of authorship of any of the provisions of this Agreement.
22.0 Notices.
All notices required or permitted under this Agreement and all requests for
approvals, consents, and waivers must be delivered in writing by a reasonably
acceptable method providing for proof of delivery. Any notice or request shall
be deemed to have been given on the date of delivery. Notices and requests must
be delivered to the Parties at the addresses on the first page of this Agreement
until a different address has been designated in writing by notice to the other
Party.
23.0 Non-Solicitation of Employees.
Neither Party shall directly solicit the services or employment of any employee
or agent of the other Party for a period beginning at the Effective Date and
ending twelve (12) months after the last date of initial delivery of any of the
Products as set forth in the Exhibits (as of the Effective Date).
24.0 Entire Agreement.
This Agreement and the Schedules and Exhibits listed below and referred to
herein, together with any written addenda signed by the Parties (collectively,
the "Agreement"), constitute the entire agreement between Xxxx and Client with
respect to the Products Services, and other subject matter of this Agreement,
and may only be modified by a written amendment or addendum signed by both Xxxx
and Client. No employee, agent, or other representative of either Xxxx or
Client has authority to bind the other with regard to any statement,
representation, warranty, or other expression unless it is specifically included
within the express terms of this Agreement or a written addendum signed by both
Xxxx and Client. All purchase orders, prior agreements, representations,
statements, proposals, negotiations, understandings, and undertakings with
respect to the subject matter of this Agreement are superseded by this
Agreement.
25.0 Publicity
Except as may be required by law or in a legal or administrative proceedings,
neither Party shall make any announcement regarding the existence of this
Agreement and any Exhibits or Schedules attached hereto, the relationship
between the parties or any terms of this Agreement to any third party or to the
public in general without the express, written consent of the other party, such
consent not be unreasonably withheld, provided that Client may withhold consent
in its discretion prior to the first day that Client makes the Products
functionality available to its subscribers.
26.0 Headings
The headings in this Agreement are for reference purposes only and shall not be
construed as a part of this Agreement.
27.0 Counterparts
This Agreement may be executed, either through original copies or by facsimile,
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. An executed
copy of this Agreement delivered by facsimile will constitute valid execution
and delivery of this Agreement.
For XXXX INTERACTIVE SERVICES, INC. For CLIENT (VETCONNECT)
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(Authorized Signature) (Authorized Signature)
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(Printed Name) (Printed Name)
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(Title) (Title)
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(Date) (Date)
SCHEDULES and EXHIBITS : Attached
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1. Schedule A Product Sites and Information
Exhibit 1 License Fee and Other Charges
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2. Schedule B Maintenance and Support Agreement
Schedule C Web Site Hosting Agreement
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Schedule A
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Product Information
The following describes the Product suites, that Xxxx Interactive is licensing
to VetConnect:
Number of Seats: AccelX CRM = 5000; XML Publish = 5000
Number of Sites: CommunityWare/XML = 1
Location of Each Site: (1) ______xxxx://xxx.xxxxxxxxxx.xxx or such other site
reasonably determined by Client pursuant to the terms
hereof.
(2) ______TBD____________________
Generally Available Product Functionality
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AccelX CRM
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The suite currently known as AcceIX CRM suite is designed for small businesses
to enhance e-communications with online customers, and may be used by small
businesses to receive requests for information from customers and to send
outbound responses, promotional information or other e-marketing communication
to customers. AcceIX uses communications templates that may be tailored to a
variety of vertical industry needs. AcceIX is built to leverage a platform that
enables data structures for capturing, storing and analyzing messages.
Building and Formatting of Customer Information Templates
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. Predefined notification templates, or business can create own
. Page formatting and design
. Subscriber uploading, downloading, and automated list maintenance
. Demographic field modifications
. Automated email responds message modifications for subscriber
confirmation, profile change, and subscriber removal
. Text modification including error messages
Tracking Options
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. Subscriber Interests
. Email response rates
. General Subscriber activity
. Subscriber demographic and psychgraphic information
Reporting Options
-----------------
. Send updates to individuals
. Send updates to whole interest group fields
. Send updates to specific queried groups that you create
. Set up auto-responders for confirmations of subscribing, unsubscribing,
and profile editing
. notifications can be delivered as text only email or HTML email and can
include attachments
Host Administration
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Quick Administration of Global Values For Accounts
--------------------------------------------------
. Predefine your pricing packages
. Set up different pricing packages with different system limits
. Set maximums for demographics and listings
. Set maximum number of subscribers for an account
. Set bandwidth limits
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. Select email attachment options
. Set pricing options
Account Management
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. Quickly add new accounts
. Control account logins
. Disable delinquent accounts
. Update general information for individual accounts
CommunityWare/XML (as currently known)
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. CommunityWare/XML is a robust messaging engine based on integrated messaging
technologies.
Release 4.0
General Features
. Messages
. Post structured messages
. Post a message with HTML in the contents
. Spellchecking for posting messages
. Profanity filter for posting messages
. Messages marked as read/unread
. Erase your own posted messages
. Create a new topic (on or off--depending on moderator setup of discussion)
. Sort topics by number, name, date of last post, number of unread posts
. Hide topics from your view(e.g., not relevant to you)
. Online help
. Security
. Seamless login authentication from customer's site to Xxxx discussions
. User Permissions
. Moderator access
. Registered user access
. Anonymous users who can only view discussions, topics, and messages--cannot
post a message or add a topic
Administration/Moderator-exclusive Features
. Remote administration via a web browser
.
. Create, add, edit and delete public discussions
. Create message templates for discussions and topics
. Message templates are used to structure the content of message postings in a
discussion or topic
. Create, add, edit and delete moderated discussions
. In moderated discussions, all posted messages must be pre-approved by the
moderator before viewable in the discussion
. Turn on/off profanity checking
. Delete any messages
. Archive discussions
. Create, edit, delete FAQs associated with discussions
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Jabber Instant Messaging - Applet
Release 1.1
. Java Applet running within a browser
. User registration and sign-in via browser
. Create, edit and delete user profile information
. Contact list: 4 default/fixed groups-all, friends, family and work
. Send and reply to messages
. Create, delete and search on Jabber and ICQ users via the browser
. User searching on Jabber user profile information via browser
XML Publish (as currently known)
--------------------------------
Release 2.0
. Simple online Web publishing editor that can be used via a Web browser and
integrated with your call center for Web Site Creation and Editing
. Web Site Creation and Editing includes customer information, site
characteristics, site design and page types
. Site preview: the site can be previewed at any point during the session
. Online help
. Multipage Ad Sites
. Home page, About Us, Products, Services, Special Offers (specials and
coupons)
. Published information: store hours, product and service availability, type of
payment accepted, etc.
. Xxxx image libraries provide a selection of images to choose from in specific
categories.
. Company logos and images can be added to the Web site
. Web site templates
. Full range of templates to find the look consistent with the business image
. XML architecture
The following describes XXXX'x hosting environment as it serves many customers.
While XXXX cannot predict the capacity needs for VetConnect at the time that
VetConnect hosts the Products, it is generally recommended that the Client have
the following or similar components in their environment in order to host the
Products:
XML/Publish, CommunityWare/XML and AccelX CRMapplication servers
BEA WebLogic 4.5.1
ProLiant 5500
Windows NT
(We are moving to Solaris over the next few months)
4 Pentium II Xeon/450Mhz processors
~2 GB RAM
~8 GB hard drive space for SML/Publish server; ~18GB hard drive space for
CommunityWare/XML and AccelX CRM servers
11
Oracle DB server
Sun Enterprise 3500
4 SPARC Ultra 400Mhz processors
4 GB RAM
6 9GB hard drives
Small business sites usually require (less than) 500K each; recommend about 10
GB storage space for the databases..
12
EXHIBIT A-1: Business Terms
----------------------------
Software License
----------------
CommunityWare/XML
AccelX CRM
XML Publish
License fees = $400,000
Additional Terms
----------------
Product is to be used solely within the online animal health services industry
under the name of VetConnect or the domain name reasonably determined by
VetConnect.
13
Schedule B
----------
Maintenance and Support Agreement
THIS MAINTENANCE AND SUPPORT AGREEMENT ("Agreement") between XXXX
Interactive Services, Inc. ("XXXX"), a Colorado corporation with principal
offices located at 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 and VetConnect,
Inc. ("Client") identified in the attached Master Software License Agreement
(the "Master Agreement") dated as of ________, 2000 is effective as of ________
2000 ("Effective Date"). XXXX and Client are referred to collectively as the
"Parties".
Background
----------
WHEREAS, Client has licensed the certain Products from XXXX and Client
desires to have XXXX maintain and support the Products during the term of the
Master Agreement.
WHEREAS, XXXX is willing to offer maintenance and support for the Product
during the term of the Master Agreement, subject to the terms of this Agreement.
In consideration of the foregoing, the Parties agree as follows:
1. Definitions
-----------
Capitalized terms used but not defined in this Agreement shall have the
meanings ascribed to them in the Master Agreement.
2. XXXX'x Obligations
------------------
Subject to payment by Client of the Support Fee identified in Exhibit B-1,
-----------
XXXX shall use reasonable commercial efforts to provide the following
Maintenance and Support Services for the Products.
(a) Problem reporting, tracking and monitoring and communications to
Client by electronic mail via the Internet;
(b) Maintenance of accessibility for XXXX hosted products for a minimum of
95.5% of a calendar year.
(c) Telephone support on business days (excluding observed State or
Federal holidays) for problem determination, verification and resolution on a
call-back basis during the hours of 7:00 a.m. to 4:00 p.m. Mountain Time; and
(d) Periodic Product Modifications and Upgrades or new releases publicly
offered by XXXX.
(e) Problem resolution in which Xxxx shall work diligently during normal
business hours (subject to Section 2(c)) above) to promptly resolve defects and
errors that have been replicated (except for Error Priority A specified below)
by or for XXXX in the Products and Documentation in accordance with the
following schedule, it being understood that the closure periods commence when
the problem has been mutually verified:
ERROR PRIORITY (1) RESPONSE (2) CLOSURE (3)
Emergency (A) 24 hours 7 days
Critical (B) 2 days 14 days
Non-Critical (C) 30 days Next Update
(1) Error Priority:
-A- Catastrophic product or module failures that do not have a
viable detour or work around available. Catastrophic failure shall be deemed to
include failures which cause an interruption of service or seriously impair the
functionality of the Products.
-B- Problems that have been substantiated as a serious
inconvenience to Client or its customers. This includes any priority A failure
for which a reasonable and viable detour or work around is available to Client.
-C- All other problems which Client or its customers can easily
avoid or detour for which there is no urgency for a resolution.
(2) Response: Response consists of providing, as appropriate, one of
the following to Client: an existing correction; a new correction; a reasonable
and viable detour or work around ; a reasonable request for more information to
complete analysis of the problem, or a reasonable plan on how the problem will
be corrected.
14
(3) Closure: Closure consists of providing a final correction or
work around of the problem including Modifications of the Products and, to the
extent reasonably possible, revised or new documentation as necessary, it being
understood that documentation may, to the extent reasonable, be completed after
the applicable closure date.
(f) Shall furnish the maintenance and technical support described above,
for the current release level of the Products and the previous release level
thereof for a period up to 6 months past its date of discontinuation.
(g) XXXX shall have the right to outsource its obligations under this
Agreement to a third party, provided that XXXX shall remain responsible for its
obligations under this Agreement that are performed by such third party.
3. Client Obligations
------------------
Client agrees:
(a) that the Designated Contact person(s) identified in Exhibit B-1 (or
-----------
such other replacement individual as Client may designate) shall be the sole
contact for the coordination and receipt of the Maintenance and Support Services
set forth in Section 2 of this Agreement, which person shall be knowledgeable
---------
and trained in the Products;
(b) to maintain for the term of this Agreement, an electronic mail link-up
with XXXX via the Internet;
(c) to provide reasonable supporting data to and aid in the identification
of reported problems;
(d) to treat all periodic software Modifications created or developed by
Xxxx and delivered under this Agreement in accordance with the terms of the
Master Agreement between XXXX and Client under which Client obtained rights to
the Products.
4. Term and Termination
--------------------
4.1 For each Product covered by this Agreement, the Maintenance and
Support Services will begin on the Effective Date and will apply to such Product
for an initial term of twelve (12) months unless an alternative period is agreed
to in writing. The initial term or any renewal term may be extended or renewed
at Client's option for a one-year increment. Client shall give XXXX at least
60 days written notice if, during the initial term or any renewed period, Client
decides not to renew Maintenance and Support.
4.2 If either party is in default of its obligations hereunder and such
default continues for thirty (30) days following receipt of written notice from
the other party, the non-breaching party, in addition to any other remedies it
may have, may terminate this Agreement (but not the Master Agreement).
4.3 This Agreement shall automatically terminate upon the termination of
the Master Agreement. If this Agreement is terminated pursuant to this Section
4.3, the Parties will be obligated to comply with all post-termination
obligations under the Master Agreement and any outstanding Support Fees and
other charges, if any, shall become immediately due and payable, provided that
if Xxxx terminates this Agreement, Xxxx shall refund to Client a pro rata
portion of the most current annual maintenance and support fees paid by Client
to Xxxx under this Agreement. Client will not be entitled to any refund if
Client terminates this Agreement.
5. Charges, Taxes and Payments
---------------------------
5.1 The Support Fee set forth on Exhibit B-1 is payable upon the execution
-----------
of this Agreement or prior to the commencement of any additional one year
extension term.
5.2 The charges specified in this Agreement are exclusive of all federal,
state, local and foreign taxes, levies and assessments. Client agrees to bear
and be responsible for the payment of all such taxes, levies and assessments
imposed on Client or XXXX arising out of this Support Agreement excluding any
income tax imposed on XXXX by a governmental entity of the United States.
5.3 Client agrees that XXXX will have the right to charge in accordance
with XXXX then current policies for any services resulting from Client's
modification of the Products or Client's failure to utilize the current release
of the Products provided by XXXX.
6. Warranty, Limitation of Liability and Indemnification
-----------------------------------------------------
6.1 EXCEPT AS STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES RESPECTING THIS MAINTENANCE AND SUPPORT AGREEMENT OR THE SERVICES
PROVIDED HEREUNDER (INCLUDING THE FIXING OF ERRORS THAT MAY BE CONTAINED IN THE
APPLICABLE SOFTWARE), INCLUDING
15
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND
IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO SUCH SERVICES WHETHER ORAL OR
WRITTEN, EXPRESS OR IMPLIED.
6.2 XXXX WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE IN
WHOLE OR IN PART TO ANY CAUSE BEYOND XXXX'X REASONABLE CONTROL. IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (A) ANY SPECIAL, INDIRECT,
INCIDENT OR CONSEQUENTIAL DAMAGES, OR (B) ANY DAMAGES RESULTING FROM LOSS OF
USE, DATA OR PROFITS.
6.3 Client will hold XXXX and its directors, officers, employees,
representatives and agents, (collectively, "Xxxx Representatives") harmless
from, and defend and indemnify XXXX and Xxxx Representatives against, any and
all claims, losses, damages and expenses, including reasonable attorneys' fees,
arising from a third party claim against XXXX or Xxxx Representatives to the
extent that such third party claim is based solely on the negligence or willful
misconduct of Client or its agents or representatives.
6.4 XXXX will hold Client and its directors, officers, employees,
representatives and agents (collectively, "Client Representatives") harmless
from, and defend and indemnify Client and Client Representatives against, any
and all claims, losses, damages and expenses, including reasonable attorneys'
fees, arising from a third party claim against Client or Client Representatives
to the extent that such third party claim is based on: (a) the negligence or
willful misconduct of XXXX or its Xxxx Representatives or (b) claims of
infringement of Intellectual Property Rights against Client or Client
Representatives for the authorized use of the Products.
6.5 Any indemnification obligations set forth in this Agreement shall be
subject to the following conditions: (i) the indemnified party shall notify the
indemnifying party in writing promptly upon learning of any claim or suit for
which indemnification is sought; (ii) the indemnifying party shall have control
of the defense or settlement, provided that the indemnified party shall have the
-------------
right to participate in such defense or settlement with counsel at its selection
and at its sole expense; and (iii) the indemnified party shall reasonably
cooperate with the defense, at the indemnifying party's expense. The
indemnification obligations under Sections 6.3 and 6.4 are subject to and
conditioned upon compliance with this Section 6.5 by the indemnified party.
7. General
-------
7.1 The waiver by either party of a breach of or a default under any
provision of this Agreement by the other party shall not be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy it has or may have hereunder
operate as a waiver of any right or remedy by such party.
7.2 This Agreement contains the full understanding of the parties with
respect to the maintenance and support of the Products and supersedes all prior
understandings and writings relating thereto. No waiver, consent modification,
amendment or change of the terms of this Support Agreement shall be binding
unless in writing and signed by XXXX and Client. If the terms and conditions of
this Agreement are inconsistent with, or contrary to, the terms and conditions
of the Client License Agreement, the terms and conditions of the License
Agreement shall be controlling.
7.3 This Agreement shall be governed by the laws of the State of Colorado.
7.4 Any notice or other communication in connection with this Maintenance
and Support Agreement shall be furnished in writing and shall be effective upon
receipt.
7.5 Neither Client nor XXXX will be deemed to be in default of any
provision of this Agreement or for any failure in performance, resulting from
acts or events beyond the reasonable control of Client or XXXX, as the case may
be including, without limitation, acts of God, civil or military authority,
civil disturbance, war, strikes, fires, other catastrophes, telecommunication
outages, equipment malfunctions or other such major events beyond Client's or
XXXX'x reasonable control.
XXXX Interactive Services, Inc: Client:______________________________
By:__________________________________ By:__________________________________
Name:________________________________ Name:________________________________
Title:_______________________________ Title:_______________________________
Date:________________________________ Date:________________________________
16
EXHIBIT B-1
MAINTENANCE AND SUPPORT ATTACHMENT
Support Fee(s): The Client will pay XXXX the following Support Fee:
--------------
Annual Renewable Maintenance = $72,500 payable pursuant to Section 5.1.
Commencement Date: _____________________.
-----------------
Client Designated Contacts:
Primary Contact: Xxx Xxxxxx
----------
Phone number: 000-000-0000
------------
E-Mail address: Xxxxxxx@Xxxxxxxxxx.xxx
----------------------
Secondary Contact: Xxx Xxxxxxxx
------------
Phone number: 000-000-0000
------------
E-Mail address: Xxx.Xxxxxxxx@xxxxx.xxx
----------------------
17
Schedule C
----------
WEB SITE HOSTING AGREEMENT
THIS WEB SITE HOSTING AGREEMENT ("Agreement") between XXXX Interactive
Services, Inc. ("XXXX"), a Colorado corporation with principal offices located
at 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 and VetConnect, Inc. ("Client")
identified in the attached Master Software License Agreement (the "Master
Agreement") dated as of March 31, 2000, is effective as of March 31, 2000
("Effective Date"). XXXX and Client are referred to collectively as the
Parties."
Background
----------
WHEREAS, Client has licensed the certain Products from XXXX and Client
desires to have XXXX host a portion of Client's web site (the "Web Site") under
the terms of this Agreement.
WHEREAS, XXXX is willing to host the Web Site under the terms of this
Agreement.
In consideration of the foregoing, the Parties agree as follows:
1. Definitions
Capitalized terms used but not defined in this Agreement shall have the
meanings ascribed to them in the Master Agreement.
2 Hosting Services
2.1 Hosting Term by XXXX. Commencing on a date specified by Client, which date
--------------------
shall be no earlier than May 15, 2000, through November 14, 2000__(Initial
Term), and subject to the terms of this Agreement and the Master Agreement, XXXX
will host on XXXX servers, operate, and allow continuing access to the XXXX
Hosting Platform (as defined in Section 2.7 below) and licensed Products by and
for the benefit of Client and Client Customers until the earlier of (a) the
expiration or termination of this Agreement or (b) the termination of the Master
Agreement. XXXX may at any time after November 14, 2000 require Client to take
over the hosting and operation of the Web Site, provided that XXXX gives Client
at least 90 days advance written notice.
2.2 Third Party Costs. Client will be responsible for the costs paid to third
-----------------
parties for third party content, technology and services that Client
specifically requests be integrated into Client's Web Site.
2.3 Optional Hosting by Client. At any time after the Initial Term, Client may
--------------------------
elect to take over the hosting of its Web Site. Promptly after making that
election, XXXX will provide Client one copy of the Object Code to the Xxxx
Hosing Platform to enable Client to commence and continue, at its expense, the
hosting and operation of the Web Site for use in accordance with the License
granted under the Master Agreement.
2.4 Maintenance and Support., Provided Client is in compliance with the terms
-----------------------
of this and all other agreements with Xxxx, upon Client's request, XXXX may
provide maintenance and support services to Client pursuant to the terms of the
Maintenance and Support Agreement attached hereto as Exhibit B.
VetConnect Post-Launch Support
------------------------------
After the system is accepted and live, VetConnect and Xxxx should
follow the following problem-reporting procedures.
Functionality Issues
--------------------
Issues and bugs should be reported to the Project Manager.
C-18
--------------------------------------------------------------------------------------------------------------
Escalation Response
Level Time/1/ Contact Contact Number Notes
--------------------------------------------------------------------------------------------------------------
1 2 hours Project Manager 303.296.9200
--------------------------------------------------------------------------------------------------------------
2 Manager of Project 303.296.9200
Services
--------------------------------------------------------------------------------------------------------------
System Issues
-------------
Catastrophic failures or system outages (see Emergency Priority definition
below) should be directed to the first escalation level in the table below.
Business Hours - System Issue
--------------------------------------------------------------------------------------------------------------
Escalation Response
Level Time/1/ Contact Contact Number Notes
--------------------------------------------------------------------------------------------------------------
1 20 minutes Xxxx Primary On-Call 000.000.0000 8:30am -
Netops Contact/2/ 5:30 PM MT
--------------------------------------------------------------------------------------------------------------
2 20 minutes Xxxx Secondary On-Call 000.000.0000 8:30am -
Netops Contact/2/ 5:30 PM MT
--------------------------------------------------------------------------------------------------------------
3 20 minutes Project Manager 303.296.9200
--------------------------------------------------------------------------------------------------------------
4 Manager of Project 303.296.9200
Services
--------------------------------------------------------------------------------------------------------------
After Hours - System Issue
--------------------------------------------------------------------------------------------------------------
Escalation Response
Level Time/1/ Contact Contact Number Notes
--------------------------------------------------------------------------------------------------------------
1 20 minutes Xxxx Answering 303.231.6692 Primary On
Service/3/ Call
--------------------------------------------------------------------------------------------------------------
2 20 minutes Xxxx Answering 303.231.6692 Secondary On
Service Call
--------------------------------------------------------------------------------------------------------------
3 Xxxx Answering 303.231.6692 Ray
Service Xxxxxxxx
--------------------------------------------------------------------------------------------------------------
Xxxx Response and Closure
-------------------------
Functionality and system issues will be handled according to the following
timeline:
------------------------------
/1/ Refers to the time elapsed before escalating the issue to the next contact.
/1/ Refers to the time elapsed before escalating the issue to the next contact.
/2/ Escalation Levels 1 & 2 (Business Hours) can also be placed through the
Answering Service (303.231.6692).
/3/ In most cases, only one call needs to be placed to the Answering Service. If
necessary, they will contact Escalation Levels 2 & 3.
C-19
Issue Priority Initial Response Target Closure Plan Target Closure
Emergency 1 hour 24 hours 0-7 days
Critical 12 hours 2 days 0-14 days
Non-Critical 3 days 15 days Next Update
Issue Priority
. Emergency: Catastrophic product or module failures that do not have a
viable detour or work around available. Catastrophic failures shall be
deemed to include failures which cause an interruption of service or
seriously impair the functionality. Includes severity 1 bugs/issues.
. Critical: Problems that have been substantiated as a serious
inconvenience to the client or the client's customers. Includes
severity 2 bugs/issues.
. Non-Critical: All other problems which the client or the client's
customers can easily avoid or detour for which there is no urgency for
a resolution. Includes severity 3 and 4 bugs/issues.
Initial Response
The initial response will consist of an acknowledgement of the problem
and/or request for more information to complete analysis of the problem.
Target Closure Plan
The closure plan will consist of providing one of the following items to the
client:
A. An existing correction
B. A new correction
C. A viable detour or work around
D. A plan on how the problem will be corrected.
Target Closure
All reasonable efforts will be made to resolve the reported problem within the
designated time frame. This process will consist of providing a final correction
or work around of the problem, including modifications of the software and,
where appropriate and to the extent reasonably possible, revised or new
documentation.
2.5 Hosting Fee. During the term of this Agreement, Client shall pay XXXX
------------
the hosting fees described in Exhibit C-1 attached hereto. Client shall be
responsible for all fixed and cumulative charges. In addition to XXXX'x other
remedies, if Client fails to pay XXXX any amounts when due under this Agreement,
Client will pay interest on that amount at the rate of 1.5 % per month or such
lesser maximum rate of interest permitted under applicable law.
C-20
2.6 Reference to "Powered by" XXXX. So long as either XXXX or Client or its
------------------------------
partner is hosting and operating the XXXX Hosting Platform for the benefit of
Client or Client's Customers, (a) Client shall include a reference in the
management interfaces for Client customers that the web site management tools
are "powered by" XXXX or other mutually agreed XXXX branding; and (b) Client
shall include a XXXX icon in the area of the Client site where Client business
partners are listed.
3. Warranty and Disclaimer
Except as set forth in this Agreement or the Documentation, XXXX provides
no warranty regarding the bandwith or any information, services or products
provided through, in connection with, or located on its server or computer
systems. XXXX HEREBY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT
LIMITATION, (A) ANY WARRANTY AS TO BANDWITH, AVAILABILITY, ACCURACY OR CONTENT
INFORMATION; AND (B) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. .
4. Limited Liability
Any liability of XXXX, including without limitation, any liability for
damages caused or allegedly caused by failure of performance, error, omission,
interruption, deletion, defect, delay in operation or transmission,
communication, theft or destruction of, or unauthorized access to, alteration or
use of records, whether for breach of contract, tortuous behavior, negligence,
or under any other cause of action, shall be limited to the amount paid by or on
behalf of Client to XXXX. IN NO EVENT XXXX XXXX BE LIABLE FOR INDIRECT DAMAGES,
INCLUDING WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES OR LOST PROFITS.
5. General
5.1 The waiver by either party of a breach of or a default under any
provision of this Agreement by the other party shall not be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy it has or may have hereunder
operate as a waiver of any right or remedy by such party.
5.2 This Agreement contains the full understanding of the parties with
respect to the maintenance and support of the Products and supersedes all prior
understandings and writings relating thereto. No waiver, consent modification,
amendment or change of the terms of this Support Agreement shall be binding
unless in writing and signed by XXXX and Client. If the terms and conditions of
this Agreement are inconsistent with, or contrary to, the terms and conditions
of the Client License Agreement, the terms and conditions of the License
Agreement shall be controlling.
5.3 This Agreement shall be governed by the laws of the State of Colorado.
5.4 Any notice or other communication in connection with this Hosting
Agreement shall be furnished in writing and shall be effective upon receipt.
5.5 Neither Client nor XXXX will be deemed to be in default of any
provision of this Agreement or for any failure in performance, resulting from
acts or events beyond the reasonable control of Client or XXXX, as the case may
be including, without limitation, acts of God, civil or military authority,
civil disturbance, war, strikes, fires, other catastrophes, telecommunication
outages, equipment malfunctions or other such major events beyond Client's or
XXXX'x reasonable control.
C-21
XXXX Interactive Services, Inc: Client:______________________________
By:__________________________________ By:__________________________________
Name:________________________________ Name:________________________________
Title:_______________________________ Title:_______________________________
Date:________________________________ Date:________________________________
C-22
EXHIBIT C-1
HOSTING FEES AND CHARGES
Hosting
-------
Xxxx agrees to host the CommunityWare/XML, AccelX, XML Publish software and
web sites created by Client for a period of six months (May 15, 2000 through
November 14, 2000) at Xxxx'x standard, six months hosting fee of $21,5000
("Hosting Fee"). As a concession to Client under this Agreement, Xxxx has
agreed to waive, and hereby waives, the Hosting Fee for Client. Client shall
pay no fee for the hosting services to be performed by Xxxx during the six month
period ending on November 14, 2000. If Client desires Xxxx to continue to host
the CommunityWare/XML, AccelX, XML Publish software and web sites created by
Client beyond the November 14, 2000 date, Xxxx and Client shall negotiate the
terms under which Xxxx will continue to host the services in a separate
agreement prior to that date.
C-23
Schedule D
----------
Professional Services Agreement
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") between XXXX Interactive
Services, Inc. ("XXXX"), a Colorado corporation with principal offices located
at 0000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 and VetConnect ("Client")
identified in the attached Master Software License Agreement (the "Master
Agreement") dated as of March 31, 2000, is effective as of March 31, 2000
("Effective Date"). XXXX and Client are referred to collectively as the
"Parties."
Background
----------
WHEREAS, Client has licensed certain Products from XXXX and Client desires
to have XXXX provide professional services related to the Products during the
term of the Master Agreement.
WHEREAS, XXXX is willing to offer professional services related to the
Products during the term of the Master Agreement, subject to the terms of this
Agreement.
Agreement
---------
In consideration of the foregoing, the Parties agree as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement
-----------
shall have the meanings ascribed to them in the Master Agreement.
2. XXXX'x Obligations
------------------
2.1 XXXX shall perform for Client the professional services (the
"Services") specified in Exhibit D-1, in the form of Statement of Work, as same
may be revised in writing from time to time by mutual agreement of the Parties,
each of which will be made a part of this Agreement. In the event of a conflict
between any term of this Agreement and an Exhibit, the terms of the Exhibit
shall prevail.
2.2 Changes within the scope of the Services shall be made only in a
writing executed by authorized representatives of both parties. XXXX shall have
no obligation to commence work in connection with any change until the fee
and/or schedule impact of the change is agreed upon by the parties in writing.
2.3 XXXX reserves the right to determine which of its personnel shall be
assigned to perform the Services, and to replace or reassign such personnel
during the term hereof; provided, however, that it will, subject to scheduling
and staffing considerations, use reasonable efforts to attempt to honor Client's
request for specific individuals.
2.4 XXXX shall have the right to outsource its obligations under this
Agreement to a third party, provided that XXXX shall remain responsible for its
obligations under this Agreement that are performed by such third party.
3. Client Obligations
------------------
3.1 In connection with XXXX'x provision of the Services, Client shall
perform all tasks and assume all responsibilities not expressly described as the
Services and, in particular, shall perform those tasks and assume those
responsibilities specified in the applicable Exhibit ("Client
Responsibilities"). The Exhibit shall also contain any assumptions related to
the Services. Client understands that XXXX'x performance is dependent on
Client's timely and effective satisfaction of Client Responsibilities hereunder
and timely decisions and approvals by Client. XXXX shall be entitled to rely on
all decisions and approvals of the Client in connection with the Services.
Changes in decisions and approvals are subject to the provisions of Section 2.2,
above.
3.2 In addition to any particular items which may be specified in the
Exhibit, when required by XXXX, Client shall supply on-site XXXX personnel with
reasonably suitable office space, desks, storage, furniture, and other normal
office equipment support, including adequate telephone service, postage,
copying, typing, and general office supplies which are necessary in connection
with XXXX'x performance of the Services.
4. Term and Termination
--------------------
4.1 Either party may at any time terminate this Agreement by giving thirty
(30) days' written notice of termination to Xxxx. In the event of such
termination, Client shall pay XXXX the lesser of 1) the amount specified in the
applicable Exhibit or 2) the amount incurred by Xxxx for all Services rendered
and expenses incurred by XXXX prior to the date of termination.
C-24
4.2 If either party is in material default of its obligations hereunder
and such material default continues for thirty (30) days following receipt of
written notice from the other party, the non-breaching party may terminate this
Agreement immediately, in addition to any other remedies it may have. In such
case, the non-prevailing party will pay the prevailing party (as determined by a
court or in arbitration) all costs and expenses including reasonable attorneys'
fees incurred by the prevailing party in exercising any of its rights or
remedies.
4.3 This Agreement shall automatically terminate upon the termination of
the Master Agreement. If this Agreement is terminated pursuant to this Section
4.3, the Parties will be obligated to comply with all post-termination
obligations under the Master Agreement and any outstanding fees and other
charges, if any, shall become immediately due and payable.
5. Charges, Taxes and Payments
---------------------------
5.1 Client shall pay XXXX for the Services as defined in the applicable
Exhibit at XXXX'x then current rates for professional services, unless otherwise
specified in the applicable Exhibit.
5.2 Unless the Parties agree otherwise in writing, Client shall pay the
amounts payable to XXXX hereunder within thirty (30) days of receipt of invoices
submitted by XXXX. Any invoice remaining unpaid for more than thirty (30) days
from receipt shall accrue interest at a rate of the lesser of one and one-half
(1.5%) percent per month or the highest rate allowed by law.
5.3 Unless provided otherwise in an Exhibit, XXXX shall be reimbursed by
Client for all reasonable and necessary expenses incurred by XXXX in the
performance of the Services, including, but not necessarily limited to, travel
and lodging expenses, communications charges and supplies.
5.4 The charges specified in this Agreement are exclusive of all federal,
state, local and foreign taxes, levies and assessments. Client agrees to bear
and be responsible for the payment of all such taxes, levies and assessments
imposed on Client or XXXX arising out of this Agreement excluding any income tax
imposed on XXXX by a governmental entity of the United States.
6. Confidential Information.
------------------------
6.1 "Confidential Information" means any trade secret or other information
or data of a proprietary or confidential nature belonging to either party,
including but not limited to: (a) technical or developmental information
(including associated documentation); (b) marketing or pricing information; (c)
business practices or relationships; (d) performance results or benchmark test
results of all or any portion of the Products; (e) designs, ideas, concepts,
inventions, technical know how, software programs, program flow charts, file
layouts, and all record bearing media containing or disclosing such information.
Confidential Information shall not include information of one party that: (i) is
or becomes lawfully available to the public through no act or omission of the
other party; (ii) is in the other party's lawful possession prior to the
disclosure and was not obtained by the other party either directly or indirectly
from the disclosing party; (iii) is lawfully disclosed to the other party by a
third party without restriction on disclosure or (iv) is independently developed
by the other party.
6.2 Neither party shall use or disclose to any person, either during the
term or after the termination of this Agreement, any Confidential Information
owned by the other party, except as expressly permitted pursuant to the terms of
this Agreement or as required in response to a valid order or requirement of a
court or other governmental body having competent jurisdiction provided,
however, that the party proposing to so disclose first gives prior written
notice of such proposed disclosure to the other party.
7. Non-Solicitation.
----------------
Neither party shall solicit for employment, whether directly or indirectly
through an associated or affiliated company or subsidiary or otherwise, employ,
engage or contract from the date of this Agreement or any Exhibit and for a
period of two (2) years thereafter, any person who is employed or contracted by
the other party during the duration of this Agreement. .
8. Proprietary Materials and Work Product.
--------------------------------------
8.1 Unless the parties agree otherwise in writing, the parties acknowledge
and agree that all work product (the "Work") developed in providing the Services
or resulting from providing the Services shall become and remain the exclusive
property of XXXX. Other than the license granted to Client pursuant to the
Master Agreement, no right, title or interest in all or any portion of the
Work, is conveyed or assigned to Client either expressly or by implication by
virtue of this Agreement including any patents, copyrights, trade secrets,
trademarks, trade names or other intellectual property (collectively, the
"Intellectual Property Rights"). Upon written request by XXXX, Client shall
properly execute such assignments, bills of sale or other documents necessary to
confirm, assign or transfer in favor of XXXX, any Intellectual Property Rights
in the Work created, developed or discovered by Client, its employees or
consultants in assisting XXXX in the provision of the Services, provided that
the Client shall retain a perpetual license to use, copy and modify any such
Intellectual Property Rights created, developed or discovered by Client subject
to the terms and
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conditions of this Agreement.
8.2 Nothing in this Agreement shall preclude XXXX from developing for
itself, or for others, materials which are competitive with those produced as a
result of the Services provided hereunder, irrespective of their similarity to
items which may be delivered to Client pursuant to this Agreement.
9. Warranty, Limitation of Liability and Indemnification
-----------------------------------------------------
9.1 EXCEPT AS STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES RESPECTING THIS MAINTENANCE AND SUPPORT AGREEMENT OR THE SERVICES
PROVIDED HEREUNDER (INCLUDING THE FIXING OF ERRORS THAT MAY BE CONTAINED IN THE
APPLICABLE SOFTWARE), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES SET FORTH
IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT
TO SUCH SERVICES WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED.
9.2 XXXX WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE IN
WHOLE OR IN PART TO ANY CAUSE BEYOND XXXX'X REASONABLE CONTROL. IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR (A) ANY SPECIAL, INDIRECT,
INCIDENT OR CONSEQUENTIAL DAMAGES, OR (B) ANY DAMAGES RESULTING FROM LOSS OF
USE, DATA OR PROFITS, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY.
9.3 Client will hold XXXX and its directors, officers, employees,
representatives and agents, (collectively, "Xxxx Representatives") harmless
from, and defend and indemnify XXXX and Xxxx Representatives against, any and
all claims, losses, damages and expenses, including reasonable attorneys' fees,
arising from a third party claim against XXXX or Xxxx Representatives to the
extent that such third party claim is based on the negligence or willful
misconduct of Client or its agents or representatives.
9.4 XXXX will hold Client and its directors, officers, employees,
representatives and agents (collectively, "Client Representatives") harmless
from, and defend and indemnify Client and Client Representatives against, any
and all claims, losses, damages and expenses, including reasonable attorneys'
fees, arising from a third party claim against Client or Client Representatives
to the extent that such third party claim is based on: (a) the negligence or
willful misconduct of XXXX or Xxxx Representatives or (b) claims of infringement
of Intellectual Property Rights against Client or Client Representatives for the
authorized use of the Products.
9.5 If a third party asserts a claim that is eligible for indemnification
under Sections 9.3 or 9.4: (a) the indemnified party will promptly notify the
indemnifying party of the suit or claim; (b) the indemnified party will give the
indemnifying party sole authority to defend or settle the suit or claim,
provided that the indemnifying party does not agree to a settlement of the suit
or claim unless the settlement is reasonably acceptable to the indemnified
party; (c) the indemnified party will provide to the indemnifying party all
information in its control concerning the suit or claim; and (d) the indemnified
party will reasonably cooperate with the defense of the suit or claim. The
indemnification obligations under Sections 9.3 and 9.4 are subject to and
conditioned upon compliance with this Section 9.5 by the indemnified party.
10. General
-------
10.1 In connection with this Agreement each party is an independent
contractor and as such will not have any authority to bind or commit the other.
Nothing herein shall be deemed or construed to create a joint venture,
partnership or agency relationship between the parties for any purpose.
10.2 The waiver by either party of a breach of or a default under any
provision of this Agreement by the other party shall not be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy it has or may have hereunder
operate as a waiver of any right or remedy by such party.
10.3 This Agreement and any Exhibits attached hereto contains the full
understanding of the parties with respect to the professional services related
to the Products and supersedes all prior understandings and writings relating
thereto. No waiver, consent modification, amendment or change of the terms of
this Agreement shall be binding unless in writing and signed by XXXX and Client.
If the terms and conditions of this Agreement are inconsistent with, or contrary
to, the terms and conditions of the Master Agreement, the terms and conditions
of the Master Agreement shall be controlling.
10.4 This Agreement shall be governed by the laws of the State of
Colorado.
10.5 Any notice or other communication in connection with this Agreement
shall be furnished in writing and shall be effective upon receipt.
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10.6 Except for Client's payment obligations for professional services
already completed by XXXX, neither Client nor XXXX will be deemed to be in
default of any provision of this Agreement or for any failure in performance,
resulting from acts or events beyond the reasonable control of Client or XXXX,
as the case may be including, without limitation, acts of God, civil or military
authority, civil disturbance, war, strikes, fires, other catastrophes,
telecommunication outages, equipment malfunctions or other such major events
beyond Client's or XXXX'x reasonable control.
XXXX Interactive Services, Inc: Client:______________________________
By:__________________________________ By:__________________________________
Name:________________________________ Name:________________________________
Title:_______________________________ Title:_______________________________
Date:________________________________ Date:________________________________
X-00
XXXXXXX X-0
XXXXXXXXX XX XXXX
The installation tasks are expected to be:
a. VC & Xxxx: develop migration plan. (Process and plans for deployment, data
migration, backup & disaster recovery, testing, and maintenance.)
b. VC: order hardware and software licenses
c. VC: install ordered hardware and software
x. Xxxx & VC: create and load SiteBuilder database
x. Xxxx & VC: install SB software
x. Xxxx & VC: system administration training
x. Xxxx & VC or VC: system testing (functionality & backups/disaster recovery)
x. Xxxx & VC: data migration
x. Xxxx & VC: launch
Steps a, b, and c can be done before Xxxx makes a trip to VC's hosting location
X-00
XXXXXXX X-0
FEES AND CHARGES
Installation of software at the VetConnect location is expected to take 5 days
effort at the rate of a Software Engineer for which Xxxx Interactive services
will charge $1800/day. In the event installation requires additional time,
Client will be billed at an additional hourly rate of $300 per hour. Reasonable
travel related and other necessary out-of-pocket expenses will be paid by
Client.
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Schedule E
Terms of Limited Exclusive Rights to Products
Xxxx Interactive Services grants to VetConnect the exclusive right to use the
AccelX CRM Product solely within the online animal health services industry
under the name of VetConnect or the domain name reasonably determined by
VetConnect according to the terms of this Agreement for a period of six (6)
months from the Effective Date. This exclusive right may be renewed for up to
two additional consecutive terms for a fee of $50,000 per term.
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