EXHIBIT 10.10
DISTRIBUTION AND REVENUE SHARING AGREEMENT
THIS AGREEMENT is made as of this 30th day of June, 1999 (the "Effective
Date")
BETWEEN: TRELLIX CORPORATION, a corporation organized under the laws of
Delaware, having its principal place of business at 00 Xxxxxx
Xxxx, 0xx Xxxxx Xxxxxxx, XX 00000 ("TRELLIX")
AND: VIA XXX.XXXXX, INC., a company incorporated under the laws of
Delaware having its principal place of business at 00000 Xxxxxx
Xxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000, on behalf of itself and
its wholly-owned or controlled subsidiaries identified on the
attached Schedule 1, which may be supplemented and amended from
time to time by agreement of the parties (collectively, "VIA
XXX.XXXXX").
WHEREAS TRELLIX has developed the Software (as defined below), and is engaged in
the business of distributing and marketing the Software;
WHEREAS VIA XXX.XXXXX possesses sufficient technical and commercial expertise to
market and distribute effectively the Software and offer first-line support
services to End-Users and Authorized Dealers (as defined below) in accordance
with the provisions contained herein; and
WHEREAS TRELLIX wishes VIA XXX.XXXXX to actively and effectively promote the
licensing of the Software in the Territories (as defined below);
WHEREAS VIA XXX.XXXXX engages in commercial web hosting, whereby users post web
site content to a storage device and such site content becomes posted and
accessible to the World Wide Web thereby;
WHEREAS VIA XXX.XXXXX and TRELLIX desire to share revenue generated by VIA
XXX.XXXXX through the acquisition of End-Users who have created web sites using
the Software and a predesignated VIA XXX.XXXXX one-step publish feature of the
Software;
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS
1.1 "Authorized Dealer(s)" shall mean those dealers and remarketers
authorized by VIA XXX.XXXXX and TRELLIX to distribute the Software
solely to End-Users pursuant to a Dealer License Agreement.
1.2 "Confidential Information" shall have the meaning set forth in
Section 10.1 hereof.
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1.3 "Dealer License Agreement" shall mean a written agreement made
between VIA XXX.XXXXX and an Authorized Dealer that authorizes an
Authorized Dealer to distribute Software to End-Users pursuant to
Section 2.3 hereof.
1.5 "Software" shall mean computer software programs, in object code
format, proprietary to TRELLIX or its licensors, identified in
Appendix "A", including Documentation, and any Updates, Maintenance
Patches and Improvements thereto.
1.6 "Documentation" shall mean all instructional or supplementary
materials related to Software and provided by TRELLIX to VIA
XXX.XXXXX for use in connection with Software or included as `online'
help from within the Software.
1.7 "End-User" shall mean a single licensee that obtains a right to use
the Software pursuant to the terms and conditions of an End-User
License Agreement, and not for redistribution, remarketing, or third
party service use.
1.8 "End-User License Agreements" shall mean the end-user software
license agreements entered into between TRELLIX and End-Users in
substantially the forms attached hereto as Appendix "D", as such
forms may be amended by TRELLIX from time to time.
1.9 "First Tier Support" shall mean support services provided by VIA
XXX.XXXXX and Authorized Dealers to End-Users pursuant to a Support
Contract. In no event shall TRELLIX have any obligation to provide
First Tier Support.
1.10 "Hosting Fee" shall mean both the setup fee and the monthly hosting
fee actually received by VIA XXX.XXXXX from End-Users for Web
Hosting.
1.11 "Web Hosting" shall mean the hosting by VIA XXX.XXXXX on its or an
End User's storage device of an End-User Web Site created by the
Software and referred thereby by VIA XXX.XXXXX One Step Publish and
which web site continues to utilize the Software while resident on
such storage device, as determined by the Hosting Bounty Reporting
method of Schedule 1.
1.12 "VIA XXX.XXXXX One Step Publish" shall mean that feature of the
Software whereby the End-User posts the End Users Software-created
web site directly to a web hosting storage device for the Hosting
Fee.
1.13 "Revision" shall mean any correction, bug fix, modification,
improvement, enhancement, update, upgrade, new version, or new
release of the Software provided by TRELLIX at it sole discretion.
1.14 "Second Tier Support" shall mean assistance provided by (i) TRELLIX
to VIA XXX.XXXXX or (ii) VIA XXX.XXXXX to an Authorized Dealer in
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connection with VIA XXX.XXXXX or an Authorized Dealer's provision of
First Tier Support to End-Users.
1.15 "Statement of Work" shall mean the Statement of Work, if any, to be
delivered upon the determination by either party hereto that there
shall be necessary any modifications to the Software or any special
marketing or packaging requirements on the part of either party
hereto in order to fully perform this Agreement.
1.16 "Support Contract" shall mean an agreement between VIA XXX.XXXXX or
Authorized Dealer, as the case may be, and an End-User for First Tier
Support that conforms to TRELLIX's support policies and standards as
set forth in the attached Appendix "C", which agreement may be
incorporated as a part of the web-hosting services subscription
agreement between VIA XXX.XXXXX and the End-User, set out in a stand-
alone agreement between VIA XXX.XXXXX and the End-User, or form a
part of the End-User support policies generally adhered to by VIA
XXX.XXXXX and offered to End-Users as posted on the VIA XXX.XXXXX web
sites.
1.17 "Territories" shall mean the countries listed in the attached
Appendix "A".
1.18 "Third Person Assertion" shall have the meaning set forth in Section
11.2 hereof.
1.19 "Third Party Hardware" shall mean third party hardware upon which the
Software will be used and stored, as well as other hardware
peripherals manufactured by third party suppliers, which may be used
in connection with the Software.
2. LICENSE GRANTS
2.1 Subject to the terms and conditions of this Agreement, TRELLIX hereby
grants VIA XXX.XXXXX a nonexclusive, nontransferable right and
license to distribute the Software (in the form delivered to VIA
XXX.XXXXX, without modifications) to End-Users in the Territories
pursuant to the End-User License Agreement applicable to such
Software as specified in Appendix "B" attached hereto, including
distribution through web site downloads and `bundling' on media with
other software content.
2.2 Subject to the terms and conditions of this Agreement, TRELLIX hereby
grants VIA XXX.XXXXX a nonexclusive, nontransferable right and
license to use the Software product in the Territories to fulfill its
support obligations set forth in Section 8 hereof, and for
demonstrations connected with the promotion and marketing of Software
pursuant to Section 2.5 hereof.
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2.3 Subject to the terms and conditions of this Agreement, TRELLIX hereby
grants VIA XXX.XXXXX a nonexclusive, nontransferable right and
license to make a reasonable number of copies of the Software as are
necessary for VIA XXX.XXXXX to exercise its rights under Sections 2.1
and 2.2 hereof. The right to copy shall not be sublicensed by VIA
XXX.XXXXX.
2.4 VIA XXX.XXXXX may sublicense the rights granted to it pursuant to
Sections 2.1, 2.2, and 2.3 hereof to Authorized Dealers who have been
previously identified to TRELLIX by VIA XXX.XXXXX, provided that each
such sublicense is made pursuant to a Dealer License Agreement, which
shall be subject to the consent and approval of TRELLIX (which shall
not be unreasonably withheld,) and which shall contain terms no less
favorable to TRELLIX as this Agreement (including, but not limited
to, the End User License Agreement of TRELLIX). VIA XXX.XXXXX shall
promptly provide TRELLIX with a copy of each Dealer License Agreement
proposed to be entered into between VIA XXX.XXXXX and an Authorized
Dealer.
2.5 The licenses granted to VIA XXX.XXXXX pursuant to this Section 2
shall include rights under any applicable patents, copyrights, and
trade secrets owned by TRELLIX, but only to the extent necessary to
give effect to such limited licenses. Except as specifically provided
for in this Agreement, VIA XXX.XXXXX shall not sublicense or permit
the sublicense of any of the rights granted to VIA XXX.XXXXX
hereunder. Without limiting the generality of the foregoing, in no
event may an Authorized Dealer distribute Software to any third party
other than an End-User as provided for in Section 2.1 hereof.
2.6 TRELLIX grants the rights set forth in this Section 2 to VIA
XXX.XXXXX on the express condition that VIA XXX.XXXXX undertakes to
use its commercially reasonable, consistent with good business
practice, to market and distribute the Software in the Territory.
2.7 VIA XXX.XXXXX understands and agrees that the operation of the
Software may require operating system software owned by third
parties, and that in certain instances it may be necessary for the
VIA XXX.XXXXX, Authorized Dealer, or End-User to enter into license
agreements with third parties with regard to such operating system
software in order to make use of the Software. Software of any third
party suppliers shall remain the property of their respective owners.
2.8 Whenever the term "sale" or "purchase" of the Software is referred to
in this Agreement, such reference shall be deemed to include the
purchase of an applicable license with respect to the Software, and
not be deemed to include the actual sale of the intellectual property
rights underlying the Software.
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2.9 VIA XXX.XXXXX agrees that in the event of any breach of this Section
2, TRELLIX shall have no adequate remedy at law and therefore shall
be entitled to seek injunctive and/or other equitable relief, in
addition to any other remedies afforded by law.
3. RELATIONSHIP OF THE PARTIES
3.1 The relationship of TRELLIX and VIA XXX.XXXXX is that of independent
contractors, and it is expressly agreed that nothing contained herein
shall be construed to constitute the parties as a company , joint
ventures, co-owners, or participants in a joint or common
undertaking, or otherwise to create a relationship of principal and
agent, it being intended that each shall remain independent
contractors responsible for their own actions. Neither party shall
have the right to enter into contracts or pledge the credit of or
incur expenses or liabilities on behalf of the other party.
3.2 VIA XXX.XXXXX is not authorized to make any warranties or
representations with respect to the specifications, features, or
capabilities of the Software which are inconsistent with the
published literature distributed by TRELLIX and the terms and
conditions of this Agreement. In addition, VIA XXX.XXXXX is not
authorized to create any obligations or representations of
responsibility, express or implied, on behalf of TRELLIX or its
subsidiaries and affiliates.
3.3 TRELLIX is not authorized to make any warranties or representations
with respect to the specifications, features, or capabilities of the
Web Hosting which are inconsistent with the published literature
distributed by VIA XXX.XXXXX and the terms and conditions of this
Agreement. In addition, TRELLIX is not authorized to create any
obligations or representations of responsibility, express or implied,
on behalf of VIA XXX.XXXXX or its subsidiaries and affiliates.
3.4 Except as specifically provided for in this Agreement, VIA XXX.XXXXX
agrees that the rights and obligations granted herein do not extend
to its subsidiaries and affiliates, or any other third party.
3.5 VIA XXX.XXXXX shall in all marketing and promotion materials relating
to the Software clearly indicate that it is acting as an authorized
distributor of TRELLIX and shall not indicate that it is an author or
developer of the Software.
4. OBLIGATIONS OF VIA XXX.XXXXX
4.1 Except as set forth on Schedule I, VIA XXX.XXXXX shall assume all of
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its own costs associated with the marketing and distribution of the
Software.
4.2 VIA XXX.XXXXX agrees to use commercially reasonable efforts to
include the Software and reference to the Software capabilities in
its
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efforts to market web-hosting services and to distribute the Software
in the Territories in accordance with the terms and conditions of
this Agreement.
4.3 VIA XXX.XXXXX shall not loan or lease the Software, except as
authorized in writing by TRELLIX. In addition, VIA XXX.XXXXX agrees
that it shall not make or have made any copies of the Software or
portions thereof, except as expressly provided for herein.
4.4 VIA XXX.XXXXX and its affiliates agrees that it shall not
disassemble, decompile, or reverse engineer any portion of the
Software, or permit any third party to do so, except as permitted by
applicable law and then solely to the extent that TRELLIX is not
permitted by such applicable law to exclude or limit such rights.
TRELLIX may provide to VIA XXX.XXXXX, upon written request, technical
information, including but not limited to Software interfaces and
API's, that is required to install or operate and maintain third
party software products which are functionally interconnectable with
the Software.
4.5 VIA XXX.XXXXX shall use the Software solely for the purposes set
forth in this Agreement, and shall allow access to the Software by
its employees and affiliates solely on a need to know basis. VIA
XXX.XXXXX agrees to notify TRELLIX promptly after it becomes aware of
any unauthorized access, disclosure, distribution, possession,
alteration, transfer, reproduction or other unauthorized use of the
Software or any portion thereof.
4.6 VIA XXX.XXXXX shall promptly inform TRELLIX of any use of TRELLIX's
trade names, trademarks or brand identification in violation of this
Agreement or violation of TRELLIX's intellectual property rights of
which VIA XXX.XXXXX becomes aware, and agrees to safeguard the
intellectual property rights and interests of TRELLIX at least to the
same extent it safeguards its own intellectual property rights and
interests.
4.7 VIA XXX.XXXXX shall be entitled to license the Software to its
Authorized Dealers and End-Users at such prices as it may determine
and, at the request of TRELLIX, agrees to provide TRELLIX with its
up-to-date price list for the Software.
4.8 VIA XXX.XXXXX shall not use in relation to the Software any
advertising, promotional and selling materials except as approved in
writing by TRELLIX, which such approval shall be deemed to have been
given if no objection in writing has been received by VIA XXX.XXXXX
within 5 business days of TRELLIX receipt of such information, and,
at the request of TRELLIX, agrees to provide TRELLIX with copies of
any such sales aids, including but not limited to catalogues, sales
brochures and sales manuals used in relation to the marketing and
distribution of the Software. Without limiting the generality of the
foregoing, in no event shall VIA XXX.XXXXX use or permit the use of
any trademarks or
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tradenames of TRELLIX without the prior written consent of TRELLIX.
Any such use shall be subject to TRELLIX's trademark and tradename
VIA XXX.XXXXX guidelines, as such guidelines may be amended by
TRELLIX from time to time.
4.10 VIA XXX.XXXXX shall cause those subsidiaries of VIA XXX.XXXXX listed
in Schedule I attached hereto to display on their world wide web site
a hyperlink (in form mutually acceptable to the parties hereto) to be
utilized for Software download or referring web users directly to the
web site of the TRELLIX. Such web link shall contain TRELLIX's
tradename and trademark and shall be displayed on such web site's
homepage.
4.11 VIA XXX.XXXXX and its affiliates shall display or cause to be
displayed prominently TRELLIX's trademark and tradename as it appears
on Schedule I in all advertising and marketing VIA XXX.XXXXX or its
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affiliates undertakes to promote and co-market the Software.
4.12 VIA XXX.XXXXX shall, to the extent permitted under VIA's policies
relating to the protection of user privacy and relevant laws,
including, but not limited to, the EU Directive on Data Protection
and the Electronic Communication Privacy Act, provide to TRELLIX (a)
the information relating to VIA XXX.XXXXX Web-Hosting End-Users
contained in the Schedule I, Section 1.1 and (b) such other
information relating to VIA XXX.XXXXX Web-Hosting End-Users as the
parties may from agree, including but not limited to name and e-mail
address; provided that no such information may be provided except
with respect to VIA XXX.XXXXX Web-Hosting End-Users who have agreed
that such information may be released by the VIA XXX.XXXXX subsidiary
to VIA XXX.XXXXX (U.S.) and to TRELLIX. TRELLIX agrees that all
information provided by VIA XXX.XXXXX or its subsidiaries pursuant to
this Section 4.12 shall be considered "Confidential Information" of
VIA XXX.XXXXX under Section 10 below. Under no circumstances shall
TRELLIX disclose any such information to any third party, nor shall
TRELLIX use any such information for any purpose other than to verify
and validate the billing information provided by VIA XXX.XXXXX to
TRELLIX, or such other purposes and under such conditions as may have
been expressly approved by the VIA XXX.XXXXX Web-Hosting End-Users in
granting consent to the use of the information. The parties
contemplate that VIA XXX.XXXXX will obtain approval from each End-
User for the information described in (a) above in the course of the
End-User's agreement to abide by the terms and conditions of service
provided by VIA XXX.XXXXX. Consent to use any additional information
such as that described in (b) above shall be obtained by specific
"check the box" approval by the End-User obtained during the process
of registering as a Web-Hosting End-User of XXX XXX.XXXXX.
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0. XXXXXXXXXXX XX XXXXXXX
5.1 Within ten (10) days from the Effective Date of this Agreement,
TRELLIX shall provide VIA XXX.XXXXX with (10) copies of technical
literature in the language prevailing in each of the VIA XXX.XXXXX
subsidiaries listed from time to time in Schedule I, to support VIA
XXX.XXXXX in marketing the Software hereunder. A reasonable number of
additional copies of TRELLIX marketing materials shall be provided at
no charge to VIA XXX.XXXXX by TRELLIX.
5.2 During the term of this Agreement, TRELLIX will:
(i) provide such assistance, including supplying maintenance patches or
code corrections, as necessary, to cause the Software to perform in
accordance with the applicable specifications for the most current
version of the Software ("Maintenance Patches") as set forth in the
Documentation provided to VIA XXX.XXXXX and as updated by TRELLIX
from time to time;
(ii) provide such improvements, enhancements, extensions, upgrades and
other changes to the Software which TRELLIX generally provides to
other licensees of the product ("Improvements");
(iii) supply, when necessary and as long as technically feasible, updated
software required to cause the Software to operate under new versions
or releases of the operating system or other system software on which
the Software operates ("Updates") so long as such Updates are made
generally available to TRELLIX's other customers; and
(iv) provide telephone support to VIA XXX.XXXXX in order to assist VIA
XXX.XXXXX to locate and correct functional or operational problems
with the Software.
(v) To the extent that TRELLIX, in its discretion, plans on issuing an
Update or Improvement which relates to the one-step publish feature
of the Software, TRELLIX shall provide VIA XXX.XXXXX with product
enhancement information together with a schedule of planned
availability dates, 7 days prior to the planned release of such
Update or Improvement to the Public; provided, however, that TRELLIX
may release to the public and to other partners any Maintenance
Patches at the same time such Maintenance Patches are released to VIA
XXX.XXXXX.
5.3 TRELLIX shall not by virtue of this Agreement be restricted or
otherwise precluded from making sales to End-Users, either directly
or through other resellers, distributors, OEMs and the like
representing TRELLIX.
5.4 At VIA XXX.XXXXX request and if required, TRELLIX may assist VIA
XXX.XXXXX in its sales activities. Any and all out-of-pocket and
travel
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expenses incurred by TRELLIX for such assistance shall be borne by
VIA XXX.XXXXX.
5.5 TRELLIX shall make reasonable modifications to the Software as may be
required for the Software to effectively achieve the VIA XXX.XXXXX
One Step Publish, such as extensions and the like.
5.6 TRELLIX shall cause to be displayed prominently on TRELLIX's world
wide web site a `hot link' (in form mutually acceptable to the
parties hereto) referring web users directly to the web site of the
VIA XXX.XXXXX.
5.7 TRELLIX will use its reasonable efforts to make functional
enhancements reasonably requested by VIA XXX.XXXXX and which the
parties hereto agree would be enhance the Software in a beneficial,
efficient and inexpensive manner
5.8 TRELLIX agrees that it shall inform all prospective Original
Equipment Manufacturers ("OEMs") who sell, distribute or market Third
party Hardware in the Territories or in any other countries other
than the U.S. that VIA XXX.XXXXX has operations and with respect to
which TRELLIX determines to initiate marketing and distribution of
the Software, of the web hosting services of VIA XXX.XXXXX and this
agreement between the parties hereto (but only to the extent
necessary to provide such OEM with information regarding VIA
XXX.XXXXX One Step Publish and other beneficial features of the
Software, if any, resulting from this Agreement). VIA XXX.XXXXX will
be identified as a premier personal web hosting companies and,
subject to the completion of an agreement between TRELLIX and such
OEM, will be given the opportunity to be a preferred `one-step
publishing' web hosting company for any bundled copies of the
Software or other web building product of TRELLIX to be bundled with
such OEMs product.
TRELLIX shall provide this information and such opportunity to such
OEM in the same manner as TRELLIX provides identical information to
such OEM for any other web hosting company of TRELLIX. It is
understood that TRELLIX is under no obligation to require such OEM to
agree to VIA XXX.XXXXX or any other web hosting company of TRELLIX.
It is further understood that TRELLIX shall have multiple web hosting
company and that the decision by an OEM to agree to one or another of
such company as the preferred `one-button' publishing' web hosting
company may be based on factors solely within the discretion of such
OEM and TRELLIX as they may mutually agree upon.
TRELLIX shall not make to any OEM any warranties or representations
with respect to VIA XXX.XXXXX or the specifications, features, or
capabilities of the VIA XXX.XXXXX web hosting. TRELLIX shall, at VIA
XXX.XXXXX request, deliver to any OEM on whose machines the
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Software will be bundled, the end user terms of service which
contains VIA XXX.XXXXX disclaimer of warranty and shall request that
any such OEM acknowledge such end user terms of service.
6. TRADE SHOWS; MARKETING EFFORTS
6.1 TRELLIX and VIA XXX.XXXXX agree to consult each other regarding the
desirability of joint participation in trade shows and demonstration
seminars.
6.2 VIA XXX.XXXXX and TRELLIX shall each be responsible for their own
out-of-pocket and travel expenses associated with such participation.
6.3 TRELLIX may provide a demonstration artist or technician to assist at
trade shows and demonstration seminars.
6.4 TRELLIX and VIA XXX.XXXXX agree to use commercially reasonable
efforts to engage in marketing efforts for the Software, which may
include web site coordination and other Internet efforts.
6.5 Upon signing of this Agreement, or at a time mutually agreed upon by
the parties hereto, TRELLIX and VIA XXX.XXXXX shall cooperate on the
drafting and issuance of a mutual press release relating to this
Agreement, such press release to be in form and substance mutually
acceptable to the parties hereto.
7. SUPPORT SERVICES
7.1 TRAINING
7.1.1 TRELLIX shall provide technical training for up to (6)
technical personnel of VIA XXX.XXXXX to help enable VIA
XXX.XXXXX to provide First Tier Support to End-Users and
Second Tier Support to Authorized Dealers. Such training shall
consist of not more than (2) days duration, shall be conducted
for no charge at the executive offices of TRELLIX, and shall
be held in accordance with a mutually agreed upon schedule.
VIA XXX.XXXXX shall be required to complete such training
within thirty (30) days after the receipt by VIA XXX.XXXXX of
the Software (provided that such period shall not run during
any time the Software requires any Maintenance Patches or
Updates). Training shall be provided at any other reasonable
location requested by VIA XXX.XXXXX for two days at a cost
payable to TRELLIX of $1,000 plus TRELLIX's reasonable out-of-
pocket and travel expenses associated therewith.
7.1.2 Any additional training requested by VIA XXX.XXXXX shall be
provided by TRELLIX at TRELLIX's sole discretion, and at
TRELLIX'S then prevailing charges, in accordance with a
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schedule mutually agreed to between TRELLIX and VIA XXX.XXXXX.
7.1.3 VIA XXX.XXXXX shall in its sole discretion train each Authorized
Dealer on the use of the Software so that such Authorized Dealer
is enabled to provide First Tier Support to End-Users.
7.2 FIRST TIER SUPPORT
7.2.1 VIA XXX.XXXXX and/or its Authorized Dealers shall be responsible
for providing First Tier Support to End-Users with respect to
Software distributed pursuant to this Agreement or a Dealer
License Agreement. Any intentional failure to provide such
support shall be deemed to be a material breach of this
Agreement. In no event shall TRELLIX have responsibility to
provide First Tier Support.
7.2.2 VIA XXX.XXXXX shall take reasonable steps to insure that End-
Users are aware that any End-User support for Software
distributed pursuant to this Agreement or a Dealer License
Agreement shall be provided by either VIA XXX.XXXXX or an
Authorized Dealer.
7.3 SECOND TIER SUPPORT
7.3.1 TRELLIX shall provide Second Tier Support (which shall not
include TRELLIX support as described under Section 5.2 above) to
VIA XXX.XXXXX during the term of this Agreement, provided,
however, that TRELLIX's provision of Second Tier Support shall be
limited to reasonable telephone, E-mail, and/or facsimile
communication with VIA XXX.XXXXX during weekdays and TRELLIX's
normal business hours and during the normal business hours of
those subsidiaries of VIA XXX.XXXXX offering Web Hosting. If such
efforts are inadequate due to no fault of VIA XXX.XXXXX, TRELLIX
will then communicate directly with End-Users.
7.3.2 VIA XXX.XXXXX shall be responsible for any Second Tier Support
of Authorized Dealers, provided, however, that between the
Effective Date of this Agreement and the earlier of: (i) the
date that VIA XXX.XXXXX completes its training pursuant to
Section 7.1.1 hereof, or (ii) thirty (30) days after the
Effective Date, TRELLIX shall have the right, but no obligation,
to provide Second Tier Support to Authorized Dealers. To the
extent TRELLIX provides such Second Tier Support, it shall be
limited to reasonable telephone, E-mail, and/or facsimile
communication with an Authorized Dealer during weekdays and
TRELLIX's normal business hours.
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7.4 Any support services other than as provided for in Sections 7.2 and
7.3 hereof may be provided at TRELLIX's sole discretion, and at
TRELLIX's then prevailing charges, in accordance with a schedule
mutually agreed to between TRELLIX and VIA XXX.XXXXX.
7.5 Any and all reasonable out-of-pocket expenses related to travel and
incurred by TRELLIX for the purpose of providing training or support
pursuant to this Section 7 shall be borne by VIA XXX.XXXXX.
8. PRICES, PAYMENT & AUDIT
8.1 For each copy of the Software VIA XXX.XXXXX or its subsidiaries
distributes, VIA XXX.XXXXX shall pay TRELLIX the royalty fee (the
"Product Royalty"), if any, as provided on Schedule I. VIA XXX.XXXXX
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shall pay to TRELLIX the "TRELLIX Hosting Bounty" set forth on
Schedule I. VIA XXX.XXXXX shall pay to TRELLIX within 30 days from
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the date hereof the participation fee (the "Participation Fee") set
forth on Schedule I.
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8.4 All prices for the Software distributed by VIA XXX.XXXXX hereunder
exclude sales, use, and VAT taxes, as well as other taxes, duties, or
charges which may be imposed upon VIA XXX.XXXXX by any governmental
agency.
8.5 For so long as VIA XXX.XXXXX shall be contractually obligated to make
payments pursuant to Section 8 hereof and for a period of six months
thereafter, VIA XXX.XXXXX and its subsidiaries shall keep at their
respective principal place of business adequate records for the
accurate determination of all payments due pursuant to this Agreement.
All the records books and server devices on which End-Users have
posted web sites of VIA XXX.XXXXX or its affiliates necessary for the
determination of such payments (subject to applicable privacy laws)
shall be made available during normal business hours upon no less than
three (3) business days notice during the term hereof and for a period
of six months thereafter for examination, inspection, and audit by
TRELLIX or duly authorized independent chartered accountants
designated by TRELLIX. No more frequently than once each 12 months
during the term of this Agreement and any extensions thereof, TRELLIX
and its chartered accountants shall be entitled to examine, inspect,
and audit the records and books of VIA XXX.XXXXX or its subsidiaries
which relate to the use by End-Users of the Software and server
devices on which End-Users have posted web sites to investigate all
business transactions that relate to the required payments hereunder.
VIA XXX.XXXXX hereby agrees to conduct its business (as it relates to
VIA XXX.XXXXX performance of this Agreement) in such a manner as to
reasonably facilitate the tracking
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and record keeping necessary to properly determine in an orderly and
efficient manner all payments required hereunder.
In the event that TRELLIX conducts or has conducted an examination,
audit or inspection of records and, as a result of such examination,
audit, or inspection of records, it is determined that there are
unreported amounts payable to TRELLIX, such amounts shall be deemed to
be payable when due and VIA XXX.XXXXX shall immediately pay to TRELLIX
such payments and any interest due thereon. In addition, if the
unreported payments exceed fifteen percent (15%) of the amounts
actually due, VIA XXX.XXXXX shall reimburse TRELLIX for its costs and
expenses in conducting such examination, audit, inspection of records.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 VIA XXX.XXXXX acknowledges that all right, title, and interest in and
to the Software and any extensions or modifications created pursuant
to this Agreement (including, without limitation, all rights under any
applicable patents, copyrights, trademarks, trade secrets, and mask
works) belongs to and shall remain the exclusive property of TRELLIX
or its subsidiaries, affiliates or licensors. To the extent permitted
by applicable law, VIA XXX.XXXXX agrees that it shall not, either
directly or indirectly, dispute or challenge the ownership or any such
rights of TRELLIX, during or at any time after expiration or
termination of this Agreement.
9.2 VIA XXX.XXXXX agrees that it shall not alter, remove or conceal any
copyright, trademark, trade name, or other proprietary rights or
commercial markings which may appear on any copies of the Software.
9.3 VIA XXX.XXXXX shall not, during or at any time after the expiration or
termination of this Agreement, use or adopt any trademark, trade name
or commercial designation that may be mistaken for or confused with
the trademarks, trade names, and other proprietary rights or
commercial markings of TRELLIX.
9.4 VIA XXX.XXXXX shall not, either directly or indirectly, deposit or
register the Software with any governmental agency or entity for any
purpose or make any claim, whether in TRELLIX's name or otherwise,
with any governmental agency or entity for copyright, trademark,
patent, or any other form of intellectual property protection.
9.5 VIA XXX.XXXXX at the expense of TRELLIX, use commercially reasonable
effort to TRELLIX in maintaining the validity and enforceability of
the intellectual property of TRELLIX during the term of this
Agreement.
9.6 VIA XXX.XXXXX and its affiliates shall not use any of the trademarks
of TRELLIX in any manner that will prejudice their distinctiveness or
validity, or otherwise affect the goodwill of any TRELLIX trademark.
13
10. CONFIDENTIALITY AND NON-DISCLOSURE
10.1 As used in this Section 10, the term "Confidential Information" shall
mean any information disclosed by one party to the other pursuant to
this Agreement which is in written, graphic, machine readable or
other tangible form and is marked "Confidential", "Proprietary" or in
some other manner to indicate its confidential nature. Confidential
Information may also include oral information disclosed by one party
to the other pursuant to this Agreement, provided that such
information is designated as confidential at the time of disclosure
and is reduced to writing by the disclosing party within a reasonable
time (not to exceed thirty (30) days) after its oral disclosure, and
such writing is marked in a manner to indicate its confidential
nature and delivered to the receiving party. Notwithstanding the
foregoing designation requirements, the source code underlying the
Software shall be deemed to be Confidential Information of TRELLIX.
VIA XXX.XXXXX and its affiliates shall also protect the
confidentiality of any third party software contained in the Software
in the same fashion that it is required to protect the Software
itself.
10.2 Each party shall treat as confidential all Confidential Information
of the other party, shall not use such Confidential Information
except as set forth herein, and shall not disclose such Confidential
Information to any third party. Without limiting the foregoing, each
of the parties shall use at least the same degree of care which it
uses to prevent the disclosure of its own confidential information of
like importance to prevent the disclosure of Confidential Information
disclosed to it by the other party under this Agreement, provided,
however, that in no event shall such degree of care be less than
reasonable in light of general industry practice.
10.3 Notwithstanding the foregoing, neither party shall have liability to
the other with regard to any Confidential Information of the other
which:
(i) was in the public domain at the time it was disclosed or
becomes in the public domain through no fault of the
receiver;
(ii) was known to the receiver, without restriction, at the time of
disclosure as shown by the files of the receiver in
existence at the time of disclosure;
(iii) is disclosed with the prior written approval of the disclosure;
(iv) was independently developed by the receiver without any use of
the Confidential Information;
(v) becomes known to the receiver, without restriction, from a
source other than the discloser without breach of this
Agreement by the receiver; or
14
(vi) is disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body, provided,
however, that the receiver shall provide prompt notice
thereof to enable the discloser to seek a protective order
to otherwise prevent such disclosure.
10.4 Each party shall use all reasonable efforts, including, but not
limited to, the execution of proprietary non-disclosure agreements
with employees to enforce compliance with the provisions of this
Section 10 by its directors, officers, employees, and any third party
having access to the other party's Confidential Information.
10.5 VIA XXX.XXXXX and its affiliates agree to notify TRELLIX promptly in
writing of the existence of any circumstances surrounding unauthorized
access, disclosure, distribution, possession, alteration, transfer,
reproduction or use of the Software or any portions thereof.
10.6 Each party agrees that in the event of any breach of this Section 10
by the other party hereto, there shall be no adequate remedy at law
and therefore such party shall be entitled to seek injunctive and/or
other equitable relief, in addition to any other remedies afforded by
law.
11. INDEMNIFICATION
11.1 TRELLIX shall defend, at its expense, VIA XXX.XXXXX and its affiliates
from and against claims brought by third parties alleging that
the Software infringes any (i) patent issued on or before the
Effective Date, (ii) trademark issued on or before the Effective Date,
(iii) copyright, or (iv) trade secret, and shall indemnify VIA
XXX.XXXXX against all damages assessed against VIA XXX.XXXXX as part
of a final judgment or settlement thereof. In addition, should the
Software become, or in TRELLIX's opinion be likely to become, the
subject of a claim of infringement, TRELLIX shall (a) obtain for VIA
XXX.XXXXX the right to continue using the Software pursuant to the
terms and conditions of this Agreement, (b) replace or modify the
Software so that it becomes noninfringing but functionally equivalent,
or if TRELLIX determines that neither of the foregoing is commercially
reasonable, (c) provide for the return to VIA XXX.XXXXX of an amount
equal to the fees paid by VIA XXX.XXXXX to TRELLIX for all copies of
the Software subject to the claim of infringement, provided that VIA
XXX.XXXXX and its affiliates returns to TRELLIX all such copies in its
possession, upon which the licenses granted for the Software in this
Agreement in the infringing jurisdiction shall terminate. Such
indemnification obligation shall not apply to any claim based on (A)
software not claimed to be owned or developed by or on behalf of
TRELLIX, (B) the combination of the Software with other products not
claimed to be owned or developed by or on behalf of TRELLIX, (C)
software supplied by TRELLIX in accordance
15
with VIA XXX.XXXXX designs, specifications, or instructions, or (D)
arising from the failure of VIA XXX.XXXXX and its affiliates to use
updated Software provided by TRELLIX for avoiding such infringement.
11.2 If VIA XXX.XXXXX seeks indemnification pursuant to this Section 11
from or against the assertion of any claim by a third person (a "Third
Person Assertion"), it shall give prompt notice to TRELLIX, provided,
--------
however, that failure to give prompt notice will not relieve TRELLIX
-------
of any liability hereunder (except to the extent that TRELLIX has
suffered actual material prejudice by such failure).
11.3 Within ten (10) business days of receipt of notice from VIA XXX.XXXXX
or its affiliates pursuant to Section 11.2 hereof, TRELLIX shall have
the right, exercisable by written notice to VIA XXX.XXXXX, to assume
the defense of a Third Person Assertion. If TRELLIX assumes such
defense, TRELLIX may select counsel, which shall be reasonably
acceptable to VIA XXX.XXXXX.
11.4 If TRELLIX (a) does not assume the defense of any Third Person
Assertion in accordance with Section 11.3 hereof; (b) having so
assumed such defense, unreasonably fails to defend against such Third
Person Assertion; or (c) has been advised by the written opinion of
counsel to VIA XXX.XXXXX that the use of the same counsel to represent
both TRELLIX and VIA XXX.XXXXX would present a conflict of interest,
then, upon ten (10) days' written notice to TRELLIX, VIA XXX.XXXXX may
assume the defense of such Third Person Assertion. In such event, VIA
XXX.XXXXX shall be entitled under this Section 11 as part of its
damages to indemnification for the costs of such defense.
11.5 The party controlling the defense of a Third Person Assertion, will
have the right to consent to the entry of judgment with respect to, or
otherwise settle, such Third Person Assertion with the prior written
consent of the other party, which consent shall not be unreasonably
withheld.
11.6 TRELLIX and VIA XXX.XXXXX (and each of its affiliates, as applicable)
shall cooperate in the defense or prosecution of any Third Person
Assertion. TRELLIX or VIA XXX.XXXXX, as the case may be, shall have
the right to participate, at its own expense, in the defense or
settlement of any Third Person Assertion.
11.7 THE FOREGOING STATES THE ENTIRE LIABILITY OF TRELLIX TO VIA XXX.XXXXX
OR ANY OF ITS AFFILIATES AND ANY AND ALL THIRD PARTIES, WHETHER FOR
DAMAGES OR OTHERWISE, FOR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT,
PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHT.
11.8 If a claim has been made that the Software infringes any (i) patent,
(ii) trademark, (iii) copyright, or (iv) trade secret, and to the
extent that
16
TRELLIX is exposed to liability therefrom arising from VIA XXX.XXXXX
continued use or distribution of the Software, TRELLIX may in its
discretion terminate the rights and licenses granted hereunder with
respect to the Software.
12. VIA XXX.XXXXX WARRANTY
12.1 VIA XXX.XXXXX represents and warrants that it has full power and
authority to enter into this Agreement and to bind each of its
subsidiaries hereunder, and that it and each of its subsidiaries to
whom it sub-licenses the Software hereunder shall perform its
respective obligations hereunder in compliance with all applicable
laws and in a manner so as not to violate this Agreement or the rights
of any third party. VIA XXX.XXXXX shall indemnify, defend, and hold
TRELLIX and its subsidiaries and affiliates harmless from and against
any and all liability, loss, or claim (including reasonable legal
fees) resulting from any suit or proceeding that may be brought
against TRELLIX or its subsidiaries and affiliates to the extent that
such claims relate to the VIA XXX.XXXXX breach of this warranty or its
obligations under this Agreement and shall indemnify TRELLIX against
any loss or damage arising out of or in connection with any breach of
the terms of this Agreement or any sublicense hereunder by any
subsidiary of XXX XXX.XXXXX.
00. XXXXXXX XXXXXXXX
13.1 SOFTWARE WARRANTY: FOR A PERIOD OF 90 DAYSAFTERRECEIPT BY VIA
XXX.XXXXX OF THE SOFTWARE (PROVIDED THAT SUCH PERIOD SHALL NOT RUN
DURING ANY TIME THE SOFTWARE REQUIRES ANY MAINTENANCE PATCHES OR
UPDATES) FOLLOWING THE DATE OF THIS AGREEMENT, THE SOFTWARE WILL
ACHIEVE THE FUNCTIONALITY DESCRIBED IN THE DOCUMENTATION, OTHERWISE
TRELLIX AND ITS SUPPLIERS MAKE NO WARRANTIES WHATSOEVER. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, TRELLIX SPECIFICALLY DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A
PARTICULAR PURPOSE. NO EMPLOYEE, AGENT, DEALER, OR RESELLER IS
AUTHORIZED TO MAKE ANY ADDITIONAL WARRANTIES OR MODIFY THE FOREGOING
LIMITED WARRANTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
TRELLIX DOES NOT WARRANT THAT THE SOFTWARE WILL MEET ALL OF VIA
XXX.XXXXX OR ITS AUTHORIZED DEALERS' OR END-USERS' REQUIREMENTS; WILL
OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY
THE VIA XXX.XXXXX OR ITS AUTHORIZED DEALERS OR END-
17
USERS; OR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR
UNINTERRUPTEDVIA XXX.XXXXX HEREBY WAIVES ALL WARRANTIES OR CONDITIONS
NOT SPECIFICALLY SET FORTH HEREIN.
The Software is Year 2000 compliant.
Year 2000 compliance means that the product, when used in
accordance with its documentation, will be capable upon installation
of accurately processing, providing and/or receiving date data from,
into and between the 20th and 21st centuries, including the years 1999
and 2000 and leap year calculations, through 2035. This Year 2000
compliance definition does not apply to the extent that the Software
interoperates or exchange date-related data with other software,
hardware, firmware, or data that is not Year 2000 compliant.
13.2 THIRD PARTY HARDWARE WARRANTY: Any Third Party Hardware is subject to
the Third Party Hardware manufacturer's warranty terms and conditions.
TRELLIX is not responsible for and makes no warranties with respect to
any Third Party Hardware.
13.3 TRELLIX represents and warrants that it has full power and authority
to enter into this Agreement, and that it shall perform its
obligations hereunder in compliance with all applicable laws and in a
manner so as not to violate the rights of any third party. TRELLIX
shall indemnify, defend, and hold VIA XXX.XXXXX and its subsidiaries
and affiliates harmless from and against any and all liability, loss,
or claim (including reasonable legal fees) resulting from any suit or
proceeding that may be brought against VIA XXX.XXXXX or its
subsidiaries and affiliates to the extent that such claims relate to
the TRELLIX breach of this warranty or its obligations under this
Agreement.
13.4 TRELLIX warrants that it owns all rights and interest in and to the
Software (including but not limited to all intellectual property and
marketing and distributing rights) as is necessary to provide VIA
XXX.XXXXX with the license rights set forth herein.
14. LIMITATION OF LIABILITY
14.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR DAMAGES
ARISING OUT OF EITHER PARTY'S BREACH OF SECTIONS 2, 4.4, 4.5, 4.6, 9
and 10 OF THIS AGREEMENT, IT IS EXPRESSLY AGREED THAT EACH PARTY'S
MAXIMUM LIABILITY FOR DAMAGES HEREUNDER, REGARDLESS OF THE FORM OF
LEGAL ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE,
SHALL IN
18
NO EVENT EXCEED THE UNPAID LICENSE OR OTHER FEES ACCUMULATED
HEREUNDER, THE ACTUAL PAYMENTS RECEIVED BY TRELLIX OR THE SOFTWARE AND
ANY SERVICES PROVIDED BY TRELLIX TO VIA XXX.XXXXX HEREUNDER. IN
ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW EXCEPT FOR DAMAGES
ARISING OUT OF EITHER PARTY'S BREACH OF SECTIONS 2, 4.4, 4.5, 4.6, 9
and 10 OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
(I) ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR
MULTIPLE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS
OF REVENUE, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY
THEREOF, (II) ANY CLAIM AGAINST VIA XXX.XXXXX BY ANY THIRD PARTY,
EXCEPT AS PROVIDED IN SECTION 11 ABOVE, OR (III) ANY DAMAGES
WHATSOEVER RESULTING FROM A FORCE MAJEURE, AN ACT OF A THIRD PARTY, OR
CIRCUMSTANCES INVOLVING NO FAULT ON EITHER PARTIES BEHALF.
THE FOREGOING SHALL NOT IN ANY WAY LIMIT THE LIABILITY OF EITHER PARTY
HERETO RELATING TO DAMAGES ARISING OUT OF EITHER PARTY'S BREACH OF
SECTIONS 2, 4.4, 4.5, 4.6, 9 and 10 OF THIS AGREEMENT.
15. TERMINATION
15.1 This Agreement shall continue in full force and effect for twelve (12)
months from the Effective Date unless earlier terminated in accordance
with this Section 15. Thereafter, this Agreement shall renew
automatically for additional one year term(s) unless written notice of
nonrenewal is given by a party hereto at least thirty (30) days prior
to the expiration of the initial or any renewal term.
15.2 Either party may terminate this Agreement in the event of a material
breach of this Agreement by the other party, which breach is not cured
within thirty (30) days after written notice by the non-breaching
party. Notwithstanding the foregoing, the Company may terminate this
Agreement immediately without a cure period in the event that VIA
XXX.XXXXX or any of its affiliates breaches Sections 4.4, 9.1 and 10
hereof.
15.3 Subject to Section 15.7 hereof, upon any expiration or termination of
this Agreement, VIA XXX.XXXXX and each of its affiliates shall
promptly (i) discontinue all use of the Software; (ii) erase or
destroy any Software contained in any software cartridge, computer
memory or data storage apparatus under the control of VIA XXX.XXXXX
and its affiliates; (iii) return to TRELLIX all tangible copies of the
Software in VIA
19
XXX.XXXXX and its affiliates possession; (iv) cease to use the
trademarks, trade names, and commercial markings of TRELLIX; (v)
advise any customers who seek to obtain the Software from VIA XXX.XXXX
that VIA XXX.XXXXX is no longer authorized to market and distribute or
support the Software; and (vi) at the request of TRELLIX certify in
writing to TRELLIX, within thirty (30) days after receipt of such
notice that VIA XXX.XXXXX and its affiliates have complied with the
foregoing.
15.4 The expiration or termination of this Agreement shall be without
prejudice to the rights of End-Users to continue to use the Software
in accordance with the terms of the End-User License Agreements with
TRELLIX.
15.5 Sections 1, 9, 10, 13, 16, and 17, hereof shall survive any expiration
or termination of this Agreement. In addition, any payment obligations
of a party hereto outstanding as of the date of any expiration or
termination of this Agreement shall survive such expiration or
termination.
15.6 Notwithstanding anything contained herein to the contrary, the license
granted to VIA XXX.XXXXX pursuant to Section 2.2 hereof shall survive
so long as any End-User of VIA XXX.XXXXX continues to use the Software
and VIA XXX.XXXXX continues to pay the Hosting Bounty with respect to
such End User. Thereafter VIA XXX.XXXXX shall be required to fully
comply with Section 15.3 hereof.
16. MISCELLANEOUS
16.1 The parties agree that any notice which is required to be given
hereunder shall be in writing in the English language and shall be
delivered by courier service or mailed by prepaid registered post
addressed to the parties at their respective addresses as provided
herein.
16.2 Any waiver of any term or condition of this Agreement shall only be
deemed to have been made if expressed in writing by the party granting
such waiver. The failure or neglect by either party to enforce, in
any one or more instances, any of the terms and conditions of this
Agreement shall not be construed as a waiver of the future performance
of any such term or condition, or any other terms or conditions of
this Agreement.
16.3 In the event that a particular provision of this Agreement is held by
a court of competent jurisdiction to be invalid, such provision shall
be severed from the Agreement and shall not affect the validity of
this Agreement as a whole or any of its other provisions. The parties
hereto agree to replace such invalid provision with a new provision
that has the most nearly similar permissible, economic, or other
effect.
16.4 Except for payment obligations, neither party shall be liable or
deemed to be in default for any delay or failure in performance under
this Agreement or interruption of services resulting directly or
indirectly from acts of God,
20
civil or military authority, war, riots, civil disturbances,
accidents, fire, earthquakes, flood, strikes, lockouts, labor
disturbances, court or governmental order, or any other cause beyond
the reasonable control of such party. Each party agrees to provide
the other with notice upon becoming aware of an event of force
majeure, such notice to contain details of the circumstances giving
rise to the event of force majeure. If a default due to an event of
force majeure shall continue for more than twelve (12) consecutive
weeks, then the party not in default shall be entitled to terminate
this Agreement. Except for payment obligations, neither party shall
have any liability whatsoever to the other in respect to the
termination of this Agreement as a result of an event of force
majeure.
16.5 This Agreement shall be construed in accordance with and governed by
the laws of the Commonwealth of Massachusetts without regard to
conflict of law rules which would cause the laws of any other
jurisdiction to apply The parties hereto expressly exclude the
application of the United Nations Convention on Contracts for the
International Sale of Goods from this Agreement and any transaction
that may be entered into between the parties in connection with this
Agreement.
17. ASSIGNMENT
17.1 This Agreement is for the benefit of and shall bind the parties
hereto and their respective successors and assigns, provided,
however, that neither this Agreement nor any rights or obligations
hereunder may be assigned or otherwise transferred, in whole or in
part, by either party hereto or to any third party without prior
written consent.
18. ENTIRE AGREEMENT
18.1 This Agreement and each Appendix attached hereto (each of which is
incorporated herein by reference) constitutes the entire
understanding between the parties, and supersedes all prior
discussions, representations, understandings or agreements whether
oral or in writing between the parties with respect to the subject-
matter of this Agreement. In the event of any inconsistency between
the main body of this Agreement and any Appendix, the terms and
conditions of the main body shall prevail. Any modification or
amendment to this Agreement must be in writing signed by and on
behalf of both parties, provided, however, that the forms of End-User
License Agreements may be amended solely by TRELLIX.
19. FURTHER ASSURANCES
20.1 Each party hereto shall execute, acknowledge, and deliver, or cause
to be executed, acknowledged, and delivered, such instruments and
take such other action as may be necessary or advisable to carry out
its obligations hereunder and to implement the terms and conditions
of this Agreement.
20. HEADINGS
21
21.1 The headings in this Agreement are for convenience of reference only
and shall have no bearing on the construction or interpretation of
this Agreement.
21. COUNTERPARTS
21.1 This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
22
IN WITNESS WHEREOF the parties have executed this Agreement by their duly
authorized representatives as of the Effective Date.
TRELLIX CORPORATION VIA XXX.XXXXX, INC.
/s/ Xxx Xxxxxx /s/ Xxxx Xxxxxx
----------------------- -------------------------------
(Authorized Signature) (Authorized Signature)
Xxx Xxxxxx Xxxx Xxxxxx
----------------------- -------------------------------
(Name in Print) (Name in Print)
President and Chief Vice Pres., General Counsel
Executive Officer and Secretary
----------------------- -------------------------------
(Title) (Title)
June 30, 1999 June 30, 1999
----------------------- -------------------------------
(Date) (Date)
23
Appendix A
----------
Territory - Worldwide
Software - Trellix Web for XXX XXX.XXXXX
00
Xxxxxxxx X
----------
End User License Agreement
25
Appendix C
----------
[Support policy and Standards]
26
Schedule I
----------
Section
Reference Item Description
================================================================================
1.11 Hosting Bounty VIA XXX.XXXXX will provide TRELLIX a monthly
Reporting report containing that information described
in Attachment A. The report will identify the
location of all web sites hosted by VIA
XXX.XXXXX that, at such time qualify for
bounty payments. VIA XXX.XXXXX may from time
to time update the report to reflect accounts
with discontinued service as long as an audit
trail is maintained for verification by
TRELLIX or a third party. Discontinued service
includes but is not limited to web sites
discontinued by the End-User, web sites
discontinued by VIA XXX.XXXXX for non-payment,
or web sites not then maintained using the
TRELLIX software.
4.1 Marketing Costs To be furnished under separate cover
4.10 Trellix Trademark To be furnished under separate cover
and Tradenames
4.11 Trellix Trademark To be furnished under separate cover
and Tradenames
8.1 Product Royalty The Product Royalty shall be $0.00 for so long
as VIA XXX.XXXXX distributes the Software for
free; thereafter, the Product Royalty shall be
90% of the license fee for the Software
charged by VIA XXX.XXXXX. If VIA XXX.XXXXX
`bundles' the Software with other software and
VIA XXX.XXXXX charges for such bundled
software product, the Product Royalty shall be
agreed between TRELLIX and VIA XXX.XXXXX prior
to distribution.
8.2 TRELLIX The Trellix Hosting Bounty shall be due and
Hosting Bounty payable to TRELLIX every other month beginning
with the first day of the second month after
the effective date of this Agreement. Except
for the first payment which shall cover the
first month
27
after the effective date, each bi-monthly
payment will cover the two month period
beginning three months prior to the due date.
For each site created with Trellix Web VNE, in
whole or in part, or with other versions of
TRELLIX that has one-step publish to VIA
XXX.XXXXX companies, VIA XXX.XXXXX will pay
TRELLIX for as long as the site is hosted on
VIA XXX.XXXXX hosting service a commission as
follows:
[See attached]
8.3 Participation Fee If, within 30 days of the date of this
Agreement, VIA XXX.XXXXX is selected by
Hewlett Packard as the preferred Trellix Web
Hosting Partner for versions of the Software
to be bundled on Hewlett Packard machines, VIA
XXX.XXXXX shall pay to Trellix $50,000.
$10,000 of this Participation Fee shall be
credited against the TRELLIX Hosting Bounty as
it becomes due and payable.
8.4 VIA XXX.XXXXX U-NET Limited; Artinternet S.A., GTN mBH
Subsidiaries
28
FEE SCHEDULE
As of the date of this Agreement, the Interbank exchange rate for Dollars to
Euros is .9681
As of the date of this Agreement, the Interbank exchange rate for GBP ((Pounds))
to Euros is 1.5389
As of the date of this Agreement, the Interbank exchange rate for to GBP
((Pounds)) to US$ is 1.5885
For each package of Web-hosting services offered by a VIA XXX.XXXXX subsidiary
to End-Users, VIA XXX.XXXXX shall pay TRELLIX as follows:
--------------------------------------------------------------------------------
Web-Hosting Bounty Fee (monthly)
--------------------------------------------------------------------------------
One Year/ Annual End-User US$ Euro GBP ((Pounds))
charge equivalent equivalent equivalent
--------------------------------------------------------------------------------
*(Pounds)250/Euro 307.78 15% annual 15% annual 15% annual
charge charge charge
--------------------------------------------------------------------------------
(Pounds)$200-250/Euro 307.78- 5 4.8405 3.147
-384.725________
--------------------------------------------------------------------------------
**(Pounds)200/Euro307.78 4 3.8724 2.518
--------------------------------------------------------------------------------
* More than
** Less than
The Euro equivalent for charges and Web-Hosting Bounty fee shall be applicable
for Euro compliant countries, GBP equivalent for the UK, and US$ equivalent for
all others.
The Web-Hosting Bounty Fee shall be payable by VIA XXX.XXXXX to TRELLIX as noted
above in US$ only. The amount payable shall be determined by calculating the
aggregate monthly fees payable by VIA XXX.XXXXX subsidiaries in the appropriate
currencies as noted in the chart above and applying the Euro to Dollar and GBP
to Dollar Interbank exchange rate (as applicable) in effect as of five (5)
business days prior to each date the Web-Hosting Bounty Fee is due and payable
to TRELLIX. VIA XXX.XXXXX shall make payment to TRELLIX by wire transfer to the
TRELLIX bank with the following wire instructions:
--------
--------
At the request of either party, the US Dollar/Euro/GBP exchange rate will be
reviewed on a quarterly basis to determine whether any adjustments to the above
table should be made to account for material changes in currency equivalencies
in order to ensure that the economics of this Agreement do not materially change
for either party.
29
Attachment A
Trellix Web WPP Provisioning Information
----------------------------------------
This document outlines the data that is required to be sent to Trellix on a
monthly basis to record sites created by the software hosted on VIA companies
Servers.
. WPP must provide a Web site for the user to sign-up. This is a Trellix
branded Web site
. WPP must also give us a Publish URL: Used to publish end user site
. WPP must also provide us a URL where we can go to review the usage log
Usage Log
Any user interaction needs to be logged. This includes both Sign-up and
Publish. Publish will be logged twice, once at the beginning of Publish and
once at the end. The log is used for accounting or audit purposes, and is also
a place that we can identify possible technical problems. The log should be a
comma delimited format that is acceptable to MS Access.
The log format should be as follows:
. Date/time stamp: date and time transaction completed
. Site name: end user or WPP assigned domain name
. Event: 0 = register, 1 = start publish, 2 = end publish
. SKU: Trellix SKU identifying version and language
30
