Exhibit 10.2
APPLICATION SERVICE PROVIDER AGREEMENT
This Agreement made as of this 18th day of May, 2000, by and between Corel
Corporation ("COREL") having its principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx, X0X 0X0 (Tel: 000-000-0000 Fax: 000-000-0000) and C Me
Run Corp. ("ASP"), having its principal place of business at Xxx Xxxxx Xxxx,
Xxxxxx, XX 00000 (Tel: 000-000-0000, Fax: 000-000-0000).
BACKGROUND:
1. COREL desires to secure distribution of certain of its software; and
2. ASP desires to obtain certain rights to allow its customers to access
software from COREL.
NOW THEREFORE, in consideration of the mutual promises, covenants and
obligations contained herein the parties agree as follows:
1. INTERPRETATION
1.01 Definitions. As used herein:
(i) "Agreement" means this agreement and any schedules attached hereto.
(ii) "ASP Program" means the process by which Customer accesses the ASP
System to obtain use of the Software provided that such Customer has
entered into a services agreement with ASP and remains in good
standing under such agreement.
(iii) "ASP Software Package" means the software package offered by ASP to
Customers which permits use of the Software on the ASP System.
(iv) "ASP System" means the enabling technology on ASP's local area
network based server located at Xxx Xxxxx Xxxx, Xxxxxx, XX 00000 and
any other location within the Territory and used by ASP to permit
Customers who have acquired a ASP Software Package through the ASP
Program to access and use the Software via public or private access
network or communication mediums.
(v) "COREL Marks" means the trade names and trade-marks related to the
Software.
(vi) "Customer" means individuals or entities who are customers in good
standing with ASP and who purchase an ASP Software Package through
the ASP Program from ASP or Reseller.
(vii) "End User License Agreement" means COREL's end user license as
modified by COREL from time to time.
(viii) "Pilot Period" means a sixty (60) day period commencing on the date
that ASP permits a Reseller to be a software access provider.
(ix) "Reseller" means any electronic reseller authorized by ASP to
distribute the Software to Customer.
(x) "Services" means those services as described in Schedule "C" hereto.
(xi) "Software" means the object code version in any form or format of
any of the COREL software products listed in Schedule "B".
(xii) "Software Prices" means the amount payable by ASP pursuant to
Section 7 of this Agreement and according to the pricing schedule
set out in Schedule "B".
(xiii) "Territory" means worldwide subject to Section 5.04.
(xiv) "User Profile" means a single registered Customer with access to the
ASP System.
1.02 Schedules. The following Schedules are appended to and form part of this
Agreement:
Schedule "A" - Guidelines for Using Corel Trade-Marks and
Guidelines for using Corel Logos
Schedule "B" - Software and Software Prices
Schedule "C" - Reports and Services
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2. LICENSE
2.01 License and Appointment. Subject to the terms and conditions hereof, COREL
hereby grants ASP and ASP accepts from COREL:
2.01.1 Software Access. a non-exclusive right to be a software access
provider and to allow Customers to use the Software only as a part
of the ASP Software Package and only through the ASP System to
Customers participating under the ASP Program within the
Territory; and
2.01.2 Sublicense. a non-exclusive right to sublicense to Reseller the
right to be a software access provider and to allow Customers to
use the Software only as a part of the ASP Software Package and
only through the ASP System and only to Customers participating
under the ASP Program within the Territory.
ASP agrees not to distribute the Software other than in computer readable
form as part of an ASP Software Package under the ASP Program within the
Territory.
2.02 Intellectual Property. ASP acknowledges that COREL is the owner of all
intellectual property, including, without limitation, patents and
copyright, relating to the Software and the COREL Marks. ASP shall have no
rights in respect of such intellectual property, patents or copyright
other than to act as a software access provider to deliver the Software
subject to the End User License Agreements.
2.03 Master. To enable ASP to exercise those rights granted under Section 2.01,
COREL shall deliver to ASP a master copy of the Software and any updates
and upgrades if available, in accordance with the estimated availability
as determined by COREL, in COREL's sole discretion, for the Software as
set out in Schedule "B".
2.04 Reseller Agreement. ASP shall ensure that each Reseller is subject to a
binding written agreement with ASP that includes provisions consistent
with the material substance of Sections 2.02, 3, 4, 5.02, 5.04, 8, 9, 10
and 11 and such agreements must be materially no less protective of
COREL's rights in the Software than are the terms and conditions of this
Agreement.
3. TRADE-MARKS
3.01 COREL Marks. During the term of this Agreement, COREL hereby grants ASP a
license to display the COREL Marks solely in the form provided by COREL
and only in conjunction with the ASP Program.
3.02 Non-alteration. ASP agrees not to alter the COREL Marks, copyright notices
or designs of any Software. ASP acknowledges and agrees that COREL retains
all of its right, title and interest in the COREL Marks, and all use of
the COREL Marks by ASP shall enure to the benefit of COREL.
3.03 Xxxx Policies and Standards. ASP shall display the COREL Marks in
accordance with COREL's Guidelines for Using COREL Trademarks and
Guidelines for Using COREL Logos as set forth in Schedule "A" or as
otherwise in effect from time to time. COREL retains the right to specify
and approve the quality and standards of all materials on which the COREL
Marks are displayed and to inspect samples of such materials from time to
time. Failure of ASP to adhere to such standards of quality shall be
grounds for COREL to terminate ASP's rights to use such COREL Marks and to
terminate this Agreement. In order to enable COREL to protect its rights
in the COREL Marks, ASP will advise COREL of every country in which it
markets or distributes the Software or uses the COREL Marks.
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3.04 Validity and Enforceability of Marks. ASP shall not at any time during or
after the term of this Agreement assert any claim or interest in or to
anything which may adversely affect the validity or enforceability of any
of the COREL Marks. ASP shall not register, seek to register, or cause to
be registered any of COREL's trademarks, logos, copyrights, including the
COREL Marks without COREL'S prior written consent. ASP shall not adopt or
use such trade-marks, trade names, logos or insignia or any confusingly
similar work or symbol, as part of the ASP Program and/or the ASP System
company or partnership name.
3.05 Infringement and Further Assurances. ASP agrees to report all infringement
or improper or unauthorized use of COREL's trade-marks, trade names,
logos or insignia, including the COREL Marks which come to the attention
of ASP. ASP further agrees to execute all documents and further assurances
required by COREL to register or protect COREL'S rights.
4. TERM OF AGREEMENT
4.01 Effective Date. This Agreement shall be effective as of the date first
written above.
4.02 Initial Term. The initial term of this Agreement shall commence upon the
date first written above and shall continue for a period of twelve (12)
months from such date, subject to Section 13.
4.03 Renewal. Subject to Section 13, this Agreement shall be renewed for
subsequent periods of twelve (12) months at the end of the prior twelve
(12) month term unless either party notifies the other thirty (30) days
prior to the expiry of the term that it does not wish to renew the
Agreement for a further twelve (12) month term.
5. RESPONSIBILITIES OF ASP
5.01 ASP System and Customer Support. ASP represents and warrants to COREL that
ASP has and will maintain a secure and fully functional ASP System which
shall only permit Customers to connect to the ASP System and which shall
not permit Customers to save the Software, Software files or programs
("Software Files") on Customer's hard disk or any other tangible media.
However, Customer shall have the ability to store and print the data
created using the Software Files onto Customer's hard disk or any other
tangible media. ASP shall provide all support for Customers utilizing the
ASP System to access ASP Software Packages. ASP shall indemnify COREL from
all losses or damages suffered by COREL as a result of any intentional or
negligent failure of ASP and/or the ASP System to restrict the saving or
printing of Software or Software Files.
5.02 Restrictions. ASP shall distribute the Software only in the form provided
by COREL as part of an ASP Software Package and shall not alter the
Software or End User License Agreement or any part thereof. COREL retains
the right to specify and approve the quality and standards of the Software
and to inspect samples of such Software from time to time. ASP shall not
rent the Software or ASP Software Packages or knowingly distribute or
resell to anyone who infringes COREL's rights. ASP shall immediately
discontinue all access to ASP System and electronic access to Software or
ASP Software Packages by Customers who infringe COREL's rights. In the
event ASP becomes aware of, or receives notice from COREL, that Resellers
have infringed COREL's rights, ASP shall immediately discontinue all
distribution of Software to said Reseller. ASP shall impose this same
restriction on all Resellers who distribute the Software.
5.03 Acceptance of XXXX. ASP shall ensure that, prior to access to or use of
the Software by Customer, the applicable End User License Agreement
("XXXX") forms part of the services agreement between ASP and Customer and
that by executing the services agreement Customer agrees to be bound by
and to comply with the terms and conditions of the XXXX. In the event
Customer rejects the XXXX, Customer shall not be permitted to access or
use the Software.
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5.04 Compliance with Laws. ASP shall comply with all laws, rules, regulations
and industry standards existing with respect to the Software and the
performance by the ASP of its obligations hereunder existing in the
jurisdictions where the ASP carries on activities under this Agreement and
where the Software is accessed by Customers from time to time. ASP shall
not export the Software unless such export complies with any applicable
export laws and regulations as they apply to the Software. In particular,
ASP shall not export or re-export the Software, either directly or
indirectly, to countries to which the United States has prohibited export,
including, but not limited to, Cuba, Iran, Iraq, Libya, North Korea,
Serbia, Syria, Sudan and Taliban-controlled areas of Afghanistan. COREL
reserves the right to withhold its consent to the distribution of the
Software to any country if the laws of the target country do not
adequately protect the intellectual property rights of COREL in the
Software.
5.05 Press Releases. ASP agrees that all information released to the media or
the general public regarding this Agreement or the relationship between
the parties including, but not limited to press releases, shall require
prior written approval of COREL. Within a reasonable period of time
following execution of this Agreement, the parties agree to jointly issue
a press release announcing the relationship between the parties.
5.06 Reports and Services. ASP shall provide COREL with reports and Services as
further described in Schedule "C" hereto.
5.07 Audits. ASP agrees to maintain complete and accurate records relating to
its promotion, marketing, use and distribution of the Software. COREL
shall have the right no more often than once each twelve (12) month period
to appoint an independent third party to examine ASP's books and records
in order to verify ASP's compliance with the terms of this Agreement. Any
such audit shall be at the expense of COREL unless the audit reveals an
underpayment by ASP of greater than five percent (5%) in which case the
audit shall be at the expense of ASP.
5.08 Service Packs. ASP agrees to install up to a maximum of three (3) service
packs for the Software provided to ASP by COREL in each calendar quarter.
6. RESPONSIBILITIES OF COREL
6.01 Software Support. Customers shall be entitled only to COREL's electronic
support for the Software in accordance with COREL's standard policies and
procedures as they may be in effect from time to time. Such Customer
Software support shall in no way apply to Customers access to or use of
the ASP Software Package, the ASP Program or ASP System.
7. PAYMENTS
7.01 Amounts Payable. ASP shall pay COREL the amount or amounts described in
Schedule "B" in accordance with the terms and conditions of Schedule "B"
within thirty (30) days of the end of each month.
7.02 Notice of Changes. COREL shall be entitled to discontinue any Software at
any time upon thirty (30) days prior written notice to ASP. In such cases,
COREL shall provide ASP with the revised Schedule "B". In the event COREL
discontinues any Software, ASP shall immediately remove all discontinued
Software from the ASP System and ASP Program and erase or destroy any
Software contained on ASP computers and/or computer diskettes in its
possession or under its control.
7.03 Taxes. ASP shall pay, in addition to all amounts specified in this
Agreement, all duties and foreign, federal, state, provincial, county or
local income taxes, value added taxes, use, personal, property, sales
taxes and other taxes whatsoever, or amounts in lieu thereof, and interest
thereon, paid or payable or collectible by COREL
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(exclusive of taxes based on COREL's net income) and levied or based on
amounts chargeable to or payable by ASP pursuant to this Agreement. In the
event any payments required to be made by ASP under this Agreement are
subject to applicable withholding tax that ASP is required to deduct from
such payments, ASP shall promptly deliver to COREL receipts issued by
appropriate government authorities for all such taxes withheld or paid by
ASP and ASP shall fully and promptly cooperate with COREL to provide such
information and records as COREL may require in connection with any
application by COREL to obtain available tax credits.
7.04 Late Payment. If ASP is in arrears under this Agreement, COREL will give
written notice to ASP that ASP is responsible for payment of all
outstanding amounts and finance charges. If the outstanding amounts are
not paid within ten (10) days of such notice, COREL has the right to
terminate this Agreement. Late payments will be assessed a 1% finance
charge per month (12% per annum) or the highest finance charge permitted
by applicable law, whichever is less. All such finance charges shall
automatically begin to accrue on overdue amounts starting on the
thirty-first (31st) day after payment of such amounts was due. ASP shall
pay all costs including reasonable attorney's fees, incurred by COREL in
collecting overdue amounts.
7.05 US Currency. All payments to COREL pursuant to this Agreement shall be
made in the lawful currency of the United States of America and all
amounts referred to in this Agreement are in the lawful currency of the
United States of America.
8. CONFIDENTIALITY
8.01 Confidentiality. Each of the parties hereto agrees to keep confidential
any and all information with respect to the other party which it has
received or may in the future receive in connection with this Agreement
which is not otherwise available to the general public without
restriction. Notwithstanding the foregoing, each of the parties shall be
entitled to disclose such information (i) to its agents, employees or
representatives who have a need to know such information for the purpose
of performance under this Agreement and exercising the rights granted
under this Agreement, or (ii) to the extent required by applicable law, or
(iii) during the course of or in connection with any litigation,
arbitration or other proceeding based upon or in connection with the
subject matter of this Agreement provided that ASP shall give COREL
reasonable notice prior to such disclosure and shall comply with any
applicable protective order or equivalent. ASP shall not disassemble,
decompile, reverse engineer or attempt to disassemble, decompile, reverse
engineer the Software, except to the extent this restriction is not
permitted by applicable law. Confidential Information shall not include
that information defined as Confidential Information which the receiving
party can conclusively establish (i) was in the possession of the
receiving party at the time of disclosure; (ii) prior to or after the time
of disclosure became part of the public domain without the act or omission
of the party to whom it was disclosed; (iii) was disclosed to the
receiving party by a third party under no legal obligation to maintain the
confidentiality of such information; (iv) was independently developed by
the receiving party.
9. WARRANTIES AND OTHER REPRESENTATIONS
9.01 Warranty. The storage medium for the gold master for the Software is
warranted against defects in workmanship and materials for a period of
ninety (90) days from the date it is delivered to ASP. In the event that
the storage medium for the gold master for the Software is defective COREL
will replace it free of charge with another copy of the gold master for
the Software. Replacement of the storage medium for the gold master for
the Software shall be COREL'S sole obligation and ASP'S sole remedy for a
breach of the warranty in this section.
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9.02 Limitation. OTHER THAN AS PROVIDED IN SECTION 9.01, THE SOFTWARE, AND
STORAGE MEDIA ARE PROVIDED AND LICENSED BY COREL ON AN "AS IS" BASIS AND
THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR
IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF
DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT
OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH BY COREL. COREL
DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY,
SATISFACTORY QUALITY, MERCHANTABILITY, DURABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT,
INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING PERFORMANCE OF THE
SOFTWARE, OR STORAGE MEDIA, WHICH IS NOT CONTAINED IN THIS AGREEMENT,
SHALL BE DEEMED TO BE A WARRANTY, CONDITION OR REPRESENTATION BY COREL.
9.03 No Variation. NO AGREEMENTS VARYING OR EXTENDING THE TERMS OF SECTION 9.01
OR 9.02 WILL BE BINDING ON COREL UNLESS IN WRITING AND SIGNED BY AN
AUTHORIZED SIGNING OFFICER OF COREL.
9.04 ASP not to Bind. ASP will give and make no warranties or representations
on behalf of COREL as to quality, merchantable quality, satisfactory
quality, merchantability, fitness for a particular use or purpose or any
other features of the Software; and ASP shall not incur any liabilities,
obligations or commitments on behalf of COREL, including, without
limitation, a variation of the End User License Agreement.
10. INFRINGEMENT
10.01 Defense and Settlement. If notified promptly in writing of any action (and
all prior related claims) brought against ASP alleging that ASP'S right to
allow its Customers to access and use the Software under this Agreement
infringes any copyright, COREL will defend that action at its expense and
will pay the costs and damages finally awarded against ASP, if any, in the
action, provided: that ASP provides COREL with prompt written notice of
such claim(s); that COREL shall have sole control of the defense of any
such action and all negotiations for its settlement or compromise; that
ASP, and where applicable, those for whom ASP is in law responsible,
cooperate fully with COREL in its defense of the action; and that COREL
shall have no liability if (a) the action results from (i) the use of the
Software for purposes or in an environment for which it was not designed;
(ii) modification of the Software by anyone other than COREL; (iii)
distribution of any Software or display or use of any COREL Xxxx after
COREL's notice to ASP that it should cease distribution or use of such
Software and/or COREL Xxxx due to a possible infringement; or (b) ASP is
otherwise in material breach of the terms and conditions of this
Agreement.
10.02 Options Where Claim. If a final injunction is obtained in such action
against ASP's distribution of the Software or if in COREL's opinion the
Software is likely to become the subject of a claim of infringement, COREL
may at its sole option and expense either procure for ASP the right to
distribute the Software or replace or modify the Software so that it
becomes non-infringing or terminate this Agreement in accordance with
Section 13.01.6.
10.03 Entire Liability. The foregoing states the entire liability of COREL and
exclusive remedy of ASP with respect to any intellectual or industrial
property infringement.
11. LIMITATION OF LIABILITY
11.01 Limitation. IN NO EVENT WILL COREL BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER RESULTING FROM
LOSS
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OF USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE OR STORAGE MEDIA,
OTHER COREL PROVIDED MATERIAL OR THE PERFORMANCE OF COREL WHETHER SUCH
ACTION IS BASED IN CONTRACT OR IN TORT INCLUDING BUT NOT LIMITED TO
NEGLIGENCE AND WHETHER OR NOT COREL HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
11.02 Aggregate Liability. Other than as provided in Section 10, COREL'S
aggregate liability to ASP whether for negligence, breach of contract,
misrepresentation or otherwise shall, in respect of a single occurrence or
a series of occurrences, in no circumstances exceed the Software Prices
paid by ASP to COREL over the twelve (12) month period immediately
preceding the claim by ASP.
12. ASP INDEMNIFICATION
12.01 Indemnification. Except as set forth in Section 10, ASP agrees to
indemnify and save COREL harmless from and against any and all claims,
demands, costs and liabilities (including all reasonable legal and
attorney fees and expenses) of any kind whatsoever, arising directly or
indirectly out of claims by ASP's Customers or any third party relating
to: (i) ASP's performance or non-performance of its obligation under this
Agreement; (ii) Customers use of the Software and/or the maintenance,
performance, non-performance or functionality of the ASP's System; or
(iii) breach of Section 5.01 warranties.
13. TERMINATION
13.01 Termination. This Agreement will terminate in the event of any of the
following:
13.01.1 immediately in the event of termination of the ASP Program;
13.01.2 written notice of termination from COREL, effective immediately,
under Section 7.04;
13.01.3 on the thirtieth (30th) day after one party gives the other
written notice of breach by the other of any material term or
condition of this Agreement unless the breach is cured before that
day;
13.01.4 written notice of termination by one party, effective immediately,
after a receiver has been appointed in respect of the whole or a
substantial part of the other's assets or a petition in bankruptcy
or for liquidation is filed by or against that other, or if the
other has been dissolved or liquidated or is insolvent;
13.01.5 written notice of termination, effective immediately, by the
non-defaulting party; if ASP or COREL has breached its obligations
under Section 8; or
13.01.6 upon the expiry of thirty (30) days following receipt by either
party of written notice from the other party terminating this
Agreement for convenience.
13.02 No Compensation. The parties acknowledge and agree that they have no
expectation that their business relationship with the other will continue
for any minimum period of years or that neither party shall obtain any
anticipated amount of profits by virtue of this Agreement. However, ASP
acknowledges and agrees that this Section 13.02 shall not apply to amounts
owed or owing by ASP to COREL pursuant to this Agreement. The parties
agree that the termination provisions herein, in terms of both notice and
default events are reasonable and agree not to contest same by way of
wrongful termination proceedings or otherwise. COREL shall not be
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liable, by reason of any termination of this Agreement, for compensation,
reimbursement or damages on account of the loss of prospective profits on
anticipated orders or on account of expenditures, investments, leases or
commitments whatsoever in connection with the business or goodwill of ASP.
14. EFFECT OF TERMINATION
14.01 ASP. In the event of termination ASP shall:
14.01.1 perform with respect to COREL all payment and other obligations of
ASP arising under this Agreement within thirty (30) days of
termination;
14.01.2 immediately cease to use the COREL Marks in any manner whatsoever
and immediately cease to act as a Software access provider and to
represent itself as such; and
14.01.3 immediately remove all Software provided pursuant to this
Agreement from ASP System and ASP's server and erase or destroy
any such Software contained on ASP computers and/or computer
diskettes in possession or under its control.
14.02 Survival. Sections 2.02, 3.02, 3.04, 5.07, 7, 8, 9, 10, 11, 12, 13.02, 14
and 15 shall survive the termination of this Agreement.
14.03 No Prejudice. Except as provided in Section 13.02, termination hereunder
shall be without prejudice to any other right or remedy to which either
party may be entitled hereunder in law.
14.04 Destroy or Deliver Up. At termination, COREL shall have the option to
require ASP to destroy and certify that it has destroyed or to deliver to
COREL any property of COREL, including the gold masters for the Software,
then in its possession or under its control.
15. MISCELLANEOUS
15.01 Entire Agreement. This Agreement constitutes the entire agreement between
the parties concerning the subject matter hereof and supersedes all prior
statements, representations, discussions, negotiations and agreements,
both oral and written, including all pre-printed terms and conditions
appearing on ASP's order forms, COREL's acknowledgment of order forms and
COREL's invoice forms.
15.02 Amendment or Waiver. COREL expressly reserves the right to modify
Schedules "A" and "B" from time to time upon notice to ASP. Except as
specifically provided for herein, all other modifications and/or
amendments require a mutual written agreement signed by authorized signing
officers of both parties. No order, invoice or similar document will
affect this Agreement even if accepted by the receiving party.
15.03 Illegal or Unenforceable Provisions. If any one or more of the provisions
of this Agreement shall be found to be illegal or unenforceable, this
Agreement shall nevertheless remain in full force and effect, and such
term or provision shall be deemed severed.
15.04 Independent Contractors. The parties to this Agreement are independent
contractors. No relationship of principal to agent, master to servant,
employer to employee or franchisor to franchisee is established between
the parties. Neither party has the authority to bind the other or incur
any obligation on its behalf.
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15.05 Force Majeure. Unless continuing for a period of ninety (90) consecutive
days, or unless involving the payment of amounts due under this Agreement,
no default, delay or failure to perform on the part of either party shall
be considered a breach of the Agreement if such default, delay or failure
to perform is shown to be due entirely to an event of force majeure, or to
causes beyond the reasonable control of the defaulting party including
without limitation, strikes, riots, civil disturbances, actions or
inactions concerning governmental authorities, epidemics, war, embargoes,
severe weather, fire, earthquakes, acts of God or the public enemy or
default of a common carrier, always provided that the party so relieved of
its obligations shall take reasonable steps to prevent, correct or amend
such act or event which renders such obligations impossible.
15.06 No Waiver. Neither of the party's rights to enforce provisions of this
Agreement shall be affected by any prior course of dealing, waiver, delay,
omission or forbearance.
15.07 Assignment. This Agreement and the rights granted hereunder shall not be
assigned, encumbered by security interest or otherwise transferred by ASP
without the prior written consent of COREL which consent shall not be
unreasonably withheld. An amalgamation or merger of ASP or COREL with any
person who is not a party to this Agreement shall be deemed to result in
an assignment of this Agreement. COREL may assign this Agreement at any
time upon notice to this effect to ASP.
15.08 Enurement. This Agreement shall enure to the benefit of and be binding
upon the parties and their respective successors and permitted assigns.
15.09 Notices. Any notice or other communication to the parties shall be sent to
the addresses set out above, or such other places as they may from time to
time specify by notice in writing to the other party. Notices to COREL
shall be sent to the attention of the legal department. Any such notice or
other communication shall be in writing, and, unless delivered to a
responsible officer of the addressee, shall be given by registered mail,
facsimile or telex and shall be deemed to have been given when such notice
should have reached the addressee in the ordinary course, provided there
is no strike by postal employees in effect or other circumstances delaying
mail delivery, in which case notice shall be delivered or given by
facsimile or telex.
15.10 Further Assurances. The parties agree to do all such things and to execute
such further documents as may reasonably be required to give full effect
to this Agreement.
15.11 Time. Time shall be of the essence.
15.12 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario, Canada, excluding
that body of law applicable to choice of law and excluding the United
Nations Convention on Contracts for the International Sale of Goods and
any legislation implementing such Convention, if otherwise applicable. ASP
hereby consents and attorns to the jurisdiction of the courts of such
province. If either party employs attorneys to enforce any rights arising
out of or relating to this Agreement, the prevailing party shall be
entitled to recover reasonable attorney's fees. Each party waives any
right, and agrees not to apply to have any disputes under this Agreement
tried or otherwise determined by a jury, except where required by law.
15.13 Non-Conflict. No director or officer of Corel Corporation (and/or its
subsidiaries and affiliates) shall be admitted to any share or part of
this Agreement or to any benefit arising therefrom.
15.14 Language. The original of this Agreement has been written in English and
ASP waives any right it may have under the laws of ASP'S Territory to have
this Agreement written in any other language. ASP represents that it has
the ability to read and write in English and has read and understands this
Agreement. If this Agreement
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is translated into a language other than English, the English version and
interpretation shall govern and prevail. All communications between the
parties hereunder shall be in English.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
C Me Run Corp.
PER: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: VP Business Development
Corel Corporation
PER: /s/ [Illegible]
-----------------------------------
Name:
Title:
/s/ [Illegible initials]
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SCHEDULE "A"
GUIDELINES FOR USING COREL TRADE-MARKS AND GUIDELINES FOR USING COREL LOGOS
Corel permits you to use its logos and trademarks in both plain word and
stylized form (the "Marks") for the purpose of promoting and advertising Corel
products or services, provided you comply with the following guidelines:
o The Marks may only be used in relation to Corel products or
services. This means that you may not display the Marks on any
non-Corel product or service including any associated packaging,
documentation, advertising or other materials in a manner that
suggests that such product or service is a Corel product or service,
that Corel or any of the Marks are associated with such product or
service or that Corel is affiliated with, endorses or sponsors you
or any of such products or services. Use of Corel partner program
logos and trademarks, such as the Corel Solutions Partner and Corel
Training Partner logos, are subject to the terms and conditions of
the respective partner program and no permission to use such logos
is granted herein. Please contact a Corel representative or visit
xxxxx.xxx for further details.
o Corel will provide you with the artwork for the Marks. This artwork
may not be altered in any way.
o When displayed, the Marks must be substantially less prominent than
your trademark, trade name, logo or product name. The Marks may not
be used as, or as part of, a company name.
o When displayed, the Marks must stand alone. A minimum amount of
empty space must be left between the Marks and any other object such
as type, photography, borders, edges, etc. The required border of
empty space around the Marks must be 1/2x wide where x is the height
of the Xxxx.
o You may not combine the Marks with any other feature including, but
not limited to, other logos, words, graphics, photos, slogans,
numbers, design features, or symbols. Further, you may not display
your own logos or marks or other text or graphics in the same or
similar get-up, graphics, look, or trade-dress as the Marks.
o The Marks must not be used in a manner that, in Corel's judgment,
may diminish or otherwise damage Corel's goodwill in the Marks,
including but not limited to uses which could be deemed to be
obscene, pornographic, or otherwise in poor taste or unlawful, or
which purpose or objective is to encourage unlawful activities.
o You must place an asterisk (*) or similar notation xxxx beside the
first use of a Xxxx and include the following attribution statement
on the materials in which the Marks are featured.
"* Trademark(s) of Corel Corporation or Corel Corporation Limited"
12
------------------------------------------------------------------------------------------------------------------------------------
SCHEDULE "B"
SOFTWARE AND SOFTWARE PRICES
=================================================================
Daily Rate Monthly Rate Annual Rate
====================================================================================================================================
ASP For User Profile For User Profile For User Profile
Software Part Number Software Price ($US) Software Price ($US) Software Price ($US)
------------------------------------------------------------------------------------------------------------------------------------
Corel Business Applications
====================================================================================================================================
Corel(R) WordPerfect(R) Office 2000 ASPWPO2K $3.50 $8.50 $102.00
====================================================================================================================================
Corel(R) Print Office 2000(TM) ASPPO2K $1.85 $5.10 $61.20
====================================================================================================================================
====================================================================================================================================
Corel Graphics Applications
====================================================================================================================================
CorelDRAW(TM) 9 ASPDRAW9O $3.75 $10.25 $123.00
====================================================================================================================================
CorelDRAW(TM) 9 Office Edition ASPDRAW90OE $3.50 $8.50 $102.00
====================================================================================================================================
Corel(R) Custom Photo ASPCP1O $1.15 $3.40 $40.80
====================================================================================================================================
Corel(R) Print House(TM) Magic 4 Classic ASPPH4O $1.15 $3.40 $40.80
====================================================================================================================================
Corel(R) 110,000 On-line Content ASPOC110 N/A $2.00 $24.00
====================================================================================================================================
====================================================================================================================================
Corel Bundled Applications
====================================================================================================================================
Basic Package*
====================================================================================================================================
Corel(R) Custom Photo ASPCP10BP N/A $2.55 $30.60
====================================================================================================================================
Corel(R) Print House(TM) Magic 4 Classic ASPPH40BP N/A $2.55 $30.60
====================================================================================================================================
Corel(R) 110.000 On-line Content ASPOC110BP N/A $0.90 $10.80
====================================================================================================================================
Total Package $6.00 $72.00
====================================================================================================================================
====================================================================================================================================
Enhanced Package*
====================================================================================================================================
Corel(R) WordPerfect(R) Office 2000 ASPWPO2KEP N/A $7.65 $91.80
====================================================================================================================================
Corel(R) Print Office 2000(TM) ASPPO2KEP N/A $2.55 $30.60
====================================================================================================================================
Total Package $10.20 $122.40
====================================================================================================================================
====================================================================================================================================
Premium Package*
====================================================================================================================================
Corel WordPerfect(R) Office 2000 ASPWPO2KPP N/A $7.65 $91.80
====================================================================================================================================
CorelDRAW(TM) 9 ASPDRAW9OPP N/A $8.50 $102.00
====================================================================================================================================
Total Package $16.15 $193.80
====================================================================================================================================
*PLEASE NOTE: Each Bundled Package must be sold as a complete offering.
N/A: Not Available Pricing In $U.S. Dollars
COREL agrees that for the Pilot Period, ASP shall not he required to pay any
Software Prices to COREL.
--------------------------------------------------------------------------------
13
SCHEDULE "C"
REPORTS AND SERVICES
A. ASP REPORTS:
ASP shall provide to COREL within thirty (30) days of the end of each month,
monthly sales data and Customer information reports which shall be submitted to
COREL in electronic formant as provided by COREL from time to time and shall
contain all of the following information or other information as is reasonably
requested by COREL from time to time. COREL shall be entitled to change to
format of reporting upon thirty (30) days prior notice. All reports shall be
submitted to XXX@xxxxx.xxx in two (2) electronic files; File 1 - POS Sales Data
and File 2 - Customer Information.
File 1- POS Sales Data
1. ASP_NAME ASP Name - Fill in your company name
2. DATE If your system is capable of reporting transaction data on a
daily basis, report dates of transactions in "International
Date Format". If you are only able to provide monthly
summarized data, use the first day of the month as the date.
COREL uses calendar months for reporting dates. Identify
exceptions such as the usage of fiscal months to COREL.
3. VENDOR_SKU means COREL's ASP part numbers as they appear on COREL price
lists.
COREL's ASP part numbers must be used. Capital/block letters
must also be used.
4. SUB_TYPE means the subscription type chosen by Customer (daily,
monthly or annual).
5. SOFTWARE means the name of the Software. (Recommended).
6. UNI_SOLD means the number of units sold to Resellers and Customer.
7. UNI_COST means COREL's selling price, or your buying price in U.S.
Dollars. COREL will only accept unit prices reported in U.S.
Dollars.
8. RESELL_ID means your internal customer ID for your Resellers (required
where available)
9. RESELL_NAME means the Reseller name - who you sold the Software to.
File 2 - Customer Information
1. NAME means the Customer name.
2. ADDRESS means the Customer address..
3. CITY means the Customer city.
4. PROV./STATE means the Customer province or state.
5. PHONE means the Customer phone number.
6. EMAIL means the Customer email.
All sales transactions must be included. Any unreportable transactions must be
identified to your designated Corel representative.
To ensure proper processing of any rebates, orders, and inventory information,
the usage of Corel part numbers is mandatory.
Naming conventions are to be applied to your files. Examples are shown below:
POS Sales Data - year/month/Sales.
97_12_Sales. Or
9712S. (If not using Windows 95)
14
B. SERVICES
Security Requirements
Upon transfer of the Software by COREL to ASP, ASP shall be responsible
for the security of the Software while it is stored with ASP and during
electronic access by Customers. ASP shall use cryptographic methods to
authenticate the Software and ensure integrity and confidentiality of the
Software during any transmission. The ASP System shall contain the
following security controls:
1) Physical security controls which isolate the ASP System from
physical access by anyone not directly authorised to manage the ASP
System;
2) Logical access controls that enforce positive control over access to
the Software, the applications, and operating systems functions that
interact with the Software;
3) Code integrity controls that verify the integrity of the Software
immediately prior to any electronic access of the Software;
4) Connectivity controls that ensure that all network connections to
the ASP System are under the positive control of those personnel
with direct responsibility for the security of the Software;
5) All security controls over Software generate effective audit trails
that are secure from modification; and
6) All cryptographic keys that support security functionally for
Software are stored and used operationally completely within secure
dedicated software.
Miscellaneous
1) ASP shall not present, nor authorize others to present, non-COREL
Software as COREL Software.
2) ASP shall always provide the most current Software version as
provided by COREL, unless otherwise requested by COREL.
Corel Corporation
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx
Xxxxxx X0X 0X0 [LOGO] COREL FAX
--------------------------------------------------------------------------------
The information contained in this facsimile message is privileged and
confidential information intended only for the use of the individual or entity
named below or their designee. If the reader of this message is not the intended
recipient, you are hereby notified that any use, dissemination, distribution or
copy of this facsimile is strictly prohibited. If you have received this
facsimile in error, please immediately notify the sender by telephone and return
the original message by mail to Corel Corporation, 0000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxx, Xxxxxx, X0X 0X0.
Date: July 31, 2000
To: Xxxxxx Xxxxxx From: Xxxx Xxxxxx
Phone: 000.000.0000 Phone: 613.728.0826 x1248
Fax: 000.000.0000 Fax: 000.000.0000
Re: ASP Contract CC:
Number of pages including cover sheet: 2
--------------------------------------------------------------------------------
Comments:
Following is a copy of the signed agreement between Corel Corporation and C Me
Run Corp. Once we get the originals back from my finance team, I will send an
original copy to you. Please let me know if you need any further information.
Regards,
Xxxx Xxxxxx
Manager, e-Business Programs
Corel Corporation
613-728-0826 ext. 1248
xxxxx@xxxxx.xxx
10
is translated into a language other than English, the English version and
interpretation shall govern and prevail. All communications between the
parties hereunder shall be in English.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the date first above written.
C Me Run Corp.
PER: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: VP of Business Development
Corel Corporation
PER: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Executive Vice President Finance
CFO and Treasurer
/s/ [Illegible initials]
