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EXHIBIT 10.14
SILVERSTREAM SOFTWARE, INC.
CONSULTING PARTNER AGREEMENT
1. APPOINTMENT
SilverStream appoints Partner as a non-exclusive member of the SilverStream
Consulting Partner Program in the Territory as listed on Exhibit A. Consulting
Partner represents that it meets or will meet within sixty (60) days the program
enrollment requirements specified in Exhibit B and agrees to maintain such
qualification during the Term of this Agreement.
2. TERM
This Agreement shall be for an initial term of one (1) year ("Initial Term")
commencing on the date hereof and shall automatically renew for subsequent one
(1) year periods unless terminated as elsewhere herein provided.
3. GRANT OF LICENSES
Subject to the terms and conditions of the Agreement, SilverStream hereby grants
to the Consulting Partner, and the Consulting Partner hereby accepts a
non-exclusive and non-transferable license to:
3.1. provide consulting services relating to SilverStream's software
products ("SilverStream Products");
3.2. use SilverStream documentation ("Documentation") in connection with
providing consulting services; and
3.3. Utilize applicable SilverStream Products, purchased by Consulting
Partner under this Agreement, only in connection with the provision of
consulting services. This Agreement does not provide Consulting
Partner with any right to sell SilverStream Products to its customers
or any third party. In addition, Consulting Partner shall pay
SilverStream the applicable license fee for each SilverStream Product
purchased by Consulting Partner.
4. ANNUAL FEE
For each year of this Agreement, Consulting Partner shall pay SilverStream an
initial enrollment fee or annual renewal fee ("Enrollment Fee") as set forth in
Exhibit B, as such fees may be changed from time to time by SilverStream upon
thirty (30) days prior written notice to Consulting Partner. The initial
Enrollment Fee is due upon execution of this Agreement and renewal fee's are due
upon renewal. All fees stated are payable in US Dollars.
5. TAXES
Enrollment Fees are exclusive of all federal, state, municipal, excise, sales,
use, value added, property or other similar taxes and import duties, all of
which shall be paid by Consulting Partner, except for such taxes as are imposed
on SilverStream's net income, which shall be paid by SilverStream. Consulting
Partner is responsible for obtaining and providing to SilverStream any
certificate of exemption or similar document required to exempt any sale from
sales, use or similar tax liability.
6. OBLIGATIONS OF THE CONSULTING PARTNER
Consulting Partner shall undertake all obligations set forth as Program
Requirements on Exhibit B, including but not limited to:
6.1. Consulting Partner shall arrange for one or more of its employees to
complete a designated training course offered by SilverStream or a
SilverStream Training Partner within sixty (60) days after entering
into this Agreement. Upon completion of the training course, the
employee shall become certified by submitting a certification
application and passing a certification examination. In order to
retain certification status, certified personnel must be re-certified
based upon new versions of SilverStream Products.
6.2. Consulting Partner shall provide, at its own expense, appropriate
computer equipment for the consulting services.
6.3. SilverStream may publish Consulting Partner's name in any directory
SilverStream publishes from time to time.
7. PROTECTION OF PROPRIETARY MATERIAL
7.1. As used herein, "SilverStream Proprietary Material" shall mean any
information or material received by Consulting Partner from
SilverStream and identified by SilverStream as proprietary or
confidential, whether in oral, written, graphic or machine-readable
form, including, but not limited to, manuals, overhead transparencies,
examples, concepts, ideas, know-how and technology, provided that
"SilverStream Proprietary Material" shall not include information and
data which (a) is now or later becomes available in the public domain
without the fault of Consulting Partner; (b) is disclosed or made
available to Consulting Partner by a third party without restrictions
and without breach of any relationship of confidentiality; or (c) is
independently developed by Consulting Partner without access for
reference to SilverStream Proprietary Material. Consulting Partner
shall not disclose any SilverStream Proprietary Material to any third
party except as authorized by this Agreement or by SilverStream in
writing or as required by judicial or governmental process or
procedure.
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7.2. Consulting Partner acknowledges that SilverStream retains all title,
copyright and other proprietary rights in and to the SilverStream
Products and Documentation including any and all copies, modifications
and translations thereof and derivative works based thereon.
7.3. Consulting Partner shall not make copies of any of the SilverStream
Products and Documentation without the written permission of
SilverStream. Consulting Partner shall not remove any copyright or
proprietary rights notice included in or on any of the SilverStream
Products and Documentation, and shall reproduce all such notices in or
on all copies made by Consulting Partner.
7.4. Consulting Partner agrees that it will not use the SilverStream
Products and Documentation, any portion thereof, or any works derived
therefrom for any purpose other than providing consulting services as
authorized hereunder.
8. LIMITATION OF LIABILITY
Consulting Partner is solely responsible for the proper conduct of the
consulting services by qualified personnel, and all other matters under its
control. In no event shall SilverStream be liable for special, incidental or
consequential damages, including any damages resulting from loss of use, loss of
data, loss of profits or loss of business, even if SilverStream has been advised
of the possibility of such damages. Consulting Partner agrees to indemnify and
hold SilverStream harmless from and against any and all claims, demands, costs
and liabilities (including attorneys' fees) of any kind whatsoever, arising
directly or indirectly out of Consulting Partner's conduct of consulting
services or other actions or omissions of Consulting Partner in connection with
this Agreement
9. PATENTS AND TRADEMARKS
9.1. Ownership of Patents and Trademarks. All patents, trademarks,
tradenames, domain names, copyrights, logos and designs used by
SilverStream in connection with its business shall be and remain the
property of SilverStream, or the owner of such as applicable, and no
rights to duplicate such property shall accrue to Consulting Partner
unless expressly provided herein or unless written permission is
granted by SilverStream.
9.2. Use of SilverStream's Tradenames and Trademarks. Consulting Partner
shall include and shall not alter, obscure or remove any trademark or
tradename used or claimed by SilverStream, or any markings, logos,
colors or other insignia which are contained on or in or affixed to
any Consulting Materials (collectively with any domain name including
the word "SilverStream", the "SilverStream Marks").
9.2.1. Subject to the terms and conditions of this Agreement,
SilverStream hereby grants to Consulting Partner during the
term of this Agreement a non-exclusive, non-assignable and
non-transferable right and license to use the SilverStream
Marks in the conduct of its business in a style and manner
approved by SilverStream in writing prior to such use.
Consulting Partner shall forward to SilverStream for its
prompt review and approval any and all forms of proposed
advertising or promotional materials of Consulting Partner,
which include a SilverStream Xxxx. Consulting Partner may,
in advertising, promotional materials, letterheads,
invoices, and other appropriate documents, describe itself
as a "Authorized Consulting Partner of SilverStream
Software, Inc."
9.2.2. Consulting Partner agrees it is not authorized under this
Agreement to use any SilverStream Marks in connection with
any business conducted by Consulting Partner other than the
conduct of consulting services in accordance with the terms
of this Agreement.
9.2.3. Consulting Partner will not, during or after the term of
this Agreement, claim any ownership or similar interest in
any of the SilverStream Marks.
9.2.4. Nothing herein shall give Consulting Partner any right,
title, or interest in the SilverStream Marks except the
right to use the same during the term of this Agreement and
in accordance with its terms. Any use of the SilverStream
Marks by or with the authority of Consulting Partner shall
inure to the benefit of SilverStream.
9.2.5. Consulting Partner agrees it shall not, and it shall not
cause or assist any third party to, register or attempt to
register, in its own name or otherwise, any of the
SilverStream Marks or any other trademarks, service marks,
or slogans owned by or associated with SilverStream or any
derivative of any of these. In the event that Consulting
Partner secures or has secured in any jurisdiction any
rights to any of the SilverStream Marks or any of such other
marks or slogans which are prior to or greater than the
rights owned by SilverStream, then Consulting Partner shall
immediately notify SilverStream of same, and, upon written
request from SilverStream, assign all Consulting Partner's
right, title, and interest therein to SilverStream (or its
designee).
9.2.6. Consulting Partner agrees to notify SilverStream in writing
of any apparent infringement of any of the SilverStream
Marks, which comes to the attention of Consulting Partner.
9.2.7. Upon termination of this Agreement for any reason, all
rights and licenses granted to Consulting Partner hereunder
shall terminate and revert immediately to SilverStream and
Consulting Partner shall immediately cease using the
SilverStream Marks.
9.2.8. Consulting Partner acknowledges and agrees that the
SilverStream Marks have a unique character giving them a
peculiar value, the loss of which cannot reasonably or
adequately be compensated for by monetary damages, and that
the violation by Consulting Partner of the provisions hereof
concerning the same or of SilverStream's rights therein are
likely to cause irreparable damage and injury. Consulting
Partner hereby expressly agrees that SilverStream will be
entitled to equitable relief to prevent or cure any
violation or infringement or threatened violation or
infringement of
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SilverStream's rights in the SilverStream Marks.
9.3. SilverStream shall be entitled to review the Consulting Partner's
operation from time to time, and, upon reasonable notice to Consulting
Partner, conduct periodic quality reviews of Consulting Partner's
operation. Consulting Partner shall comply with all SilverStream
quality standards established from time to time by SilverStream. This
Agreement may be terminated by SilverStream upon thirty (30) days'
written notice in the event Consulting Partner fails to comply with
SilverStream's quality standards, which failure remains uncured for
thirty (30) days after notice thereof from SilverStream.
10. TERMINATION, DEFAULT AND REMEDIES
10.1. After the Initial Term, this Agreement may be terminated by either
party, without cause, upon written notice to the other party giving
ninety (90) days notice at any time during the term of this Agreement.
10.2. Upon the occurrence of any of the following acts or events ("Events of
Default"), Consulting Partner shall be in default and breach of this
Agreement.
10.2.1. Failure to make any payment when due hereunder which failure
remains uncured for fourteen days (14) days after notice
thereof from SilverStream.
10.2.2. Failure to perform any of its covenants, obligations or
responsibilities under this Agreement which failure remains
uncured for fourteen (14) days after notice thereof from
SilverStream.
10.2.3. Dissolution, termination of existence, liquidation,
insolvency or business failure of Consulting Partner or the
institution of any bankruptcy proceeding against or by
Consulting Partner, or the appointment of a custodian or
receiver for Consulting Partner or any part of its property
if such bankruptcy proceeding or appointment is not
terminated or dismissed within thirty (30) days.
10.2.4. Assignment or attempted assignment of this Agreement by
Consulting Partner.
10.3. Upon the occurrence of an Event of Default, SilverStream, in its sole
discretion, shall have the right to immediately terminate this
Agreement by written notice to Consulting Partner.
10.4. Upon the termination of this Agreement, Consulting Partner shall (i)
cease immediately from acting as a Consulting Partner of SilverStream
and return all SilverStream Products used for consulting purposes to
SilverStream, (ii) pay to SilverStream, in full within thirty (30)
days of such termination, all amounts owed to SilverStream, (iii)
cooperate with SilverStream in completing all outstanding obligations
to its customers, and (iv) cease making use of any printed material,
trademarks, trade name or domain name identified with SilverStream
without the express written consent of SilverStream The provisions set
forth in Sections 7, 8, 9, 10, 11, and 12 shall survive the
termination of this Agreement.
10.5. SilverStream shall have no liability to Consulting Partner for damages
of any kind, including indirect, incidental or consequential damages,
on account of the termination of this Agreement. Without limiting the
generality of the foregoing, SilverStream shall not be liable to
Consulting Partner for reimbursement or damages for the loss of
goodwill, prospective profits or anticipated sales, or on account of
any expenditures, investment, leases or commitments made by Consulting
Partner or for any other reason whatsoever based upon, or growing out
of, such termination or expiration.
11. NOTICES
Notices shall be deemed delivered when delivered personally or by telecopier,
three (3) business days after dispatch by overnight delivery services, or five
(5) business days after mailing addressed to the respective party at the address
shown below, or such other address as such party may specify by notice given as
provided herein.
12. GENERAL
This Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter hereof and supercedes any and all prior oral and
written agreements, understandings and quotations relating thereto, provided,
however, that SilverStream shall also provide to Consulting Partner the benefits
described in Exhibit A if Consulting Partner meets the requirements and performs
its obligations as set forth herein and therein. No waiver, alteration,
modification, or cancellation of any of the provisions of this Agreement shall
be binding unless made in writing and signed by the parties. This Agreement will
be governed by, construed and enforced in accordance with the substantive law of
The Commonwealth of Massachusetts and the courts located in Massachusetts shall
have exclusive jurisdiction to resolve any disputes arising out of or relating
to this Agreement. Each of the parties hereby consents to the jurisdiction of
such courts and waives any defense of inconvenient or improper forum. The
parties hereto shall be considered independent contractors and neither party
shall have any right or authority to act in the name or on behalf of the other
party.
IN WITNESS WHEREOF, the parties have duly executed this Agreement under seal as
of the date first above written.
SilverStream Software, Inc. Consulting Partner
By: By:
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Title: Title:
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Date: Date:
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CONFIDENTIAL 1999
