Exhibit 10.201
XcelleNet Software & Services Agreement
THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE CUSTOMER, AND XCELLENET, INC.,
("XCELLENET") AND, ALONG WITH THE ORDER FORM, IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN YOU AND XCELLENET (THE "AGREEMENT") WHICH
SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER
COMMUNICATIONS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
1. GRANT OF LICENSE. XcelleNet hereby grants you a nonexclusive and limited
license to use the software products ordered by you, including any updates and
any associated electronic or written documentation (together, the "Software"),
and you accept certain limits on you set forth in this Agreement, including:
a) You agree to use the Software for your internal use only in processing data
you have a right to process or distribute.
b) You may assign or transfer the Software and this Agreement to any
affiliated entity upon prior written consent from XcelleNet, which shall not be
unreasonably withheld, provided such entity agrees in writing to be bound by all
the terms and conditions of this Agreement. Except as provided in this Section
and Section2, you agree not to sublicense, assign, rent, sell, lease, distribute
or otherwise transfer the Software or any of the rights granted by this
Agreement, to any third party.
c) You agree to take all reasonable precautions to prevent unauthorized
persons from obtaining access to or use of the Software.
d) You agree not to disassemble, decompile or reverse engineer the Software,
except to the extent and for the express purposes authorized by applicable law.
e) You agree not to modify or alter the Software without the prior written
consent of XcelleNet. You acknowledge that XcelleNet retains all rights and
title to any modifications or enhancements to, or derivative works of, the
Software, except as otherwise agreed to by XcelleNet. Use of any features
contained within the Software to configure the Software does not constitute
modification of the Software, and XcelleNet does not claim any ownership of
applications or interfaces that were not created by XcelleNet. If you wish to
develop an interface to the Software, XcelleNet will provide you existing
information reasonably sufficient to enable interoperability.
2. CLIENT AND SERVER SOFTWARE. The Software includes "Server Software" and
"Client Software". Server Software are those modules of the Software installed
on a single network or file server computer (the "Server") that manage and
control the automated exchanges of information with Clients through various
telecommunication channels. Client Software are those modules of the Software
that run on remote computers ("Clients") and facilitate communications with the
Server Software. You agree to use each copy of the licensed Server Software on
only one Server at a time, to manage up to the number of Clients licensed for
that Server. The Client Software may be copied and distributed by you to
endusers within your organization and to third parties solely for the purpose of
connecting to the Server, but may not otherwise be further copied and
distributed. If you provide third parties with access to the Software, you agree
to be solely responsible for all claims and liabilities resulting from the use
of the Software by such third parties and for any breach of this Agreement by
such third parties.
3. OWNERSHIP & INTELLECTUAL PROPERTY. All copyright and other intellectual
property rights in and to the Software are and shall remain the exclusive
property of XcelleNet and/or its suppliers. The Software is protected by the
copyright laws of the United States and international treaty provisions. To
further protect XcelleNet's ownership rights in the Software, you agree not to:
(i) violate any of XcelleNet's copyrights or other proprietary rights related to
the Software; (ii) alter, remove or conceal any copyright notices or other
proprietary notices that may appear on or within the Software; and (iii) copy
the Server Software without the prior written consent of XcelleNet, except to
provide a backup copy (but not for "hot standby" or "test bed" purposes without
XcelleNet's prior written consent).
4. LIMITED WARRANTY/EXCLUSIVE REMEDY.
a) XcelleNet warrants that it has the right and authority to enter into and
perform this Agreement. XcelleNet further warrants that for a period of ninety
(90) days from initial delivery of the first copy of each Software product, (i)
the Software will substantially conform to the functional description in its
associated documentation and that (ii) the physical media and documentation
containing the Software will be free from defects in materials and workmanship.
The above warranties specifically exclude defects resulting from accident abuse,
unauthorized repair, modifications, or enhancements, or misapplication.
XcelleNet does not warrant that use of the Software will be uninterrupted or
error free. Delivery of additional copies of, or revisions or upgrades to, the
Software shall not restart or otherwise affect the warranty period for
previously delivered copies.
b) Your exclusive remedy for breach of this limited warranty shall be, at
XcelleNet's option, either (i) correction or replacement of the Software with
product(s) which conform to the above-stated limited warranty, or (ii) refund of
the price paid for the Software and termination of this Agreement with respect
to those copies not in compliance. To claim the benefit of this limited warranty
you must give XcelleNet written notice of any breach of the above-stated limited
warranty, not later than ninety (90) days following your receipt of the
Software.
c) EXCEPT AS SET FORTH IN TIES SECTION 4, XCELLENET AND ITS DISTRIBUTORS AND
SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES, EITHER EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE
AND ANY SERVICES COVERED BY OR FURNISHED PURSUANT TO THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION (I) OF MERCHANTABILITY,
(II) OF SATISFACTORY QUALITY, (III) OF FITNESS FOR A PARTICULAR PURPOSE, OR (IV)
ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
5. LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN SECTION 6, IN NO EVENT WILL
XCELLENET OR ITS OFFICERS, EMPLOYEES, DISTRIBUTORS, SUPPLIERS OR AFFILIATES BE
LIABLE FOR; (I) COSTS OF SUBSTITUTE GOODS OR SERVICES; (II) SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, WHETHER IN AN ACTION OF
CONTRACT OR TORT, EVEN IF XCELLENET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; (III) ANY CLAIM AGAINST YOU BY ANY THIRD PARTY; AND (IV) ANY DAMAGES,
LOSSES OR INJURIES TO YOU, OR THOSE CLAIMING THROUGH YOU, IN EXCESS OF THE FEES
PAID BY YOU FOR THE SOFTWARE OR SERVICES DIRECTLY CAUSING THE LIABILITY.
6. INFRINGEMENT INDEMNITY.
a) If an action is brought against you claiming that the Software infringes
any United States patent or worldwide copyright or trade secret rights of a
third party, XcelleNet shall indemnify you and hold you harmless against all
damages and costs awarded against you, or settlements entered into by XcelleNet
on your behalf, in the action, subject to Section 6(b) but only if. (i) You
notify XcelleNet promptly and in writing upon learning that the claim might be
asserted: (ii) XcelleNet is given sole control of any proceedings or
negotiations in connection with the claim; (iii) you take no action that in
XcelleNet's judgment, materially impairs XcelleNet's defense of the claim; and
(iv) you cooperate and assist in the defense or settlement of the claim, as
reasonably requested by XcelleNet.
b) In performing its indemnity obligations in Section 6(a), XcelleNet may, at
its option and expense, either (i) substitute a substantially equivalent non-
infringing item for the infringing item (ii) modify the infringing item so that
it no longer infringes but remains functionally equivalent, or (iii) obtain for
you the right to continue using such item. If none of the foregoing is
commercially practicable in XcelleNet's reasonable opinion, Xcellenet may
terminate this Agreement and will accept a return of the infringing Software and
refund to you the license fees applicable thereto less 1/60" of such amount for
each month in which this Agreement has been in effect. The indemnity in Section
6(a) will not apply if and to the extent that the infringement claim results
from (i) a correction or modification of the Software not provided by XcelleNet,
(ii) a failure to promptly install an update, or (iii) the combination of the
Software with items not provided by XcelleNet.
c) NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE FOREGOING
STATES THE ENTIRE LIABILITY AND OBLIGATION OF XCELLENET OR ANY DISTRIBUTOR.
SUPPLIER OR AFFILIATE WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF
ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY
RIGHT BY THE SOFTWARE.
7. TERMINATION. This Agreement is effective until terminated. You may terminate
this Agreement at any time by returning the Software and all copies to XcelleNet
or by destroying them. However, you shall receive a refund of your license fee
only if this Agreement is terminated in compliance with Section 4. This
Agreement may be terminated by XcelleNet if (i) you fail to pay the license fees
and other charges, or (ii) you fail to comply with any of the terms and
conditions of this Agreement and do not remedy such failure within thirty (30)
days after receiving notice. Upon any termination of this Agreement, you agree
to (i) immediately cease all use of the Software, (ii) either return the
Software and all copies to XcelleNet or destroy them, and (iii) notify all third
parties using the Software through you to do the same.
8. EXPORT CONTROLS. None of the Software or underlying information or technology
may be downloaded or otherwise exported or re-exported in violation of the laws
and administrative regulations of the United States or any other applicable
jurisdiction.
9. GENERAL. (i) This Agreement shall be governed in accordance with the laws of
the State of Georgia, U.S.A., without reference to conflict of laws principles
and without regard to the United Nations 1980 Convention on Contracts for the
International Sale of Goods and any amendments thereto. (ii) XcelleNet's
suppliers are the intended third party beneficiaries of this Agreement and have
the express right to rely upon and directly enforce the terms set forth herein.
(iii) All sales, use or other taxes arising out of this Agreement or your use of
the Software is your sole responsibility, except for income or franchise taxes
payable by XcelleNet. (iv) If any provision of this Agreement is held to be
unenforceable, such provision shall be reformed only to the extent necessary to
make it enforceable. (v) All terms of any purchase order or other ordering
document submitted by you shall be superseded by this Agreement. (vi) This
Agreement may only be amended in writing and only if signed by XcelleNet and
you. (vii) All notices shall be in writing and shall be sent by mail to the
parties at the business addresses on the accompanying order form or at such
other addresses of which either party may give notice.
