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EXHIBIT 10.29
ONYX VAR VERSION 2
ONYX SOFTWARE LICENSE AGREEMENT
The License Agreement (the "Agreement") is made between ONYX Software
Corporation, a Washington corporation with its principal place of business at
000 000xx Xxxxxx XX, Xxxxxxx, Xxxxxxxxxx 00000 ("ONYX"), and FUTURELINK
DISTRIBUTION CORP. ("Licensee"). This Agreement establishes the terms under
which ONYX will license its software to Licensee.
1. DEFINITIONS.
"Authorized User(s)": Any employee of Licensee, together with authorized agents
or subcontractors of Licensee who use the Licensed Software solely in
connection with the business activities of the Licensee.
"Concurrent User License": A license permitting a specified number of
Authorized Users to log on to ONYX Customer Center simultaneously or be
connected to the ONYX Customer Center Server simultaneously ("Concurrent
Users").
"Confidential Information": All information designated in writing as
confidential by each party, or which under the circumstances of disclosure
reasonably ought to be treated as confidential. Confidential Information shall
also include the Licensed Software, including all source and object code,
Documentation related to such software, and the terms and pricing under this
Agreement.
"Client License": A license to install and use ONYX Customer Center Unplugged
on one self-contained micro computing unit ("Client") which is owned or leased
by Licensee for the exclusive use of Licensee's Authorized Users.
"Documentation": The ONYX created and supplied (i) user and system
administrator guides and manuals; and (ii) on line help for use by Licensee and
Authorized Users in connection with the Licensed Software.
"Licensed Software": The series of computer software programs commercially
licensed by ONYX, as well as any Updates or Upgrades to such programs.
"Named User License": A license permitting one individual (as identified by a
specific user identification number) to log on to the ONYX Customer Center
Database, or otherwise be connected to the ONYX Customer Center Database, at a
given moment. Named User Licenses are applicable for products which may be
released from time to time.
"Network": Multiple, interactive Clients connected to a single-processing or
multi-processing file-Server and/or database Server, in which two or more users
have common access to software or data.
"Server License": A license to install and use ONYX's Licensed Software on one
production database located on one personal computer which is accessed through
a Network ("Server"). ONYX Insight and the ONYX Customer Center Server, if
licensed, each require individual Server Licenses.
"SQL Server Running": The limited functionality version of Microsoft's SQL
Server product, with which, if acquired by Licensee, the Licensed Software may
operate.
"Updates": Periodically released versions of the Licensed Software and
Documentation which include updates, modifications, and corrections to the
Licensed Software.
"Upgrades": Periodically released versions of the Licensed Software and
Documentation which include significant function and feature enhancements to
the Licensed Software.
2. LICENSE GRANT.
Subject to the terms of this Agreement, ONYX grants to Licensee, non-exclusive
and non-transferable Concurrent User Licenses, Client Licenses, Named User
Licenses and Server Licenses as defined above, and in the quantity as paid for
by Licensee to: (1) install and use the Licensed Software on one Network in
support of the Business Activities of Licensee; and (ii) use the Documentation
in conjunction with the use of the Licensed Software. This license shall be a
license to use the machine-readable object code only, excluding any source
code. The term of this license grant shall be from the execution date of this
Agreement until terminated by either party as provided herein.
3. INSTALLATION AND ADDITIONAL SERVICES.
(a) Licensee is responsible for the purchase or licensing of all additional
equipment and software necessary to install and properly operate the Licensed
Software as detailed in the then current Documentation. Future versions of the
Licensed Software and new ONYX products may require additional equipment and/or
software, as well as updated versions of the equipment and software. Purchase
or licensing of these items, if required, is solely the responsibility of
Licensee.
(b) Licensee is responsible for the installation of the Licensed Software.
4. UPDATES, UPGRADES, AND SUPPLEMENTS.
(a) Licensee shall receive any Updates and/or Upgrades to the Licensed Software
in accord with the provisions of the maintenance agreements it has entered into
with the relevant ONYX distributor who provides such services.
(b) From time to time, ONYX may make available computer programs which are
compatible with and supplement the Licensed Software, but which (i) contain
material new features, (ii) may be priced and offered separately as optional
additions to the Licensed Software and (iii) are not made generally available
to Licensee's similarly situated customers without separate charges
("Supplements" herein). ONYX shall determine, at its sole discretion, what
constitutes a Supplement. SUPPLEMENTS MAY INCLUDE LICENSE AND MAINTENANCE TERMS
ADDITIONAL TO THOSE OF THIS AGREEMENT.
5. OWNERSHIP; COPIES.
(a) All rights, title and interest in and to the Licensed Software and
Documentation and all copyrights, patents, trademarks, service marks or other
intellectual property or property rights relating thereto, and the media on
which same are furnished to Licensee, belong exclusively to ONYX or their
respective suppliers. Licensee acknowledges that no such right, title or
interest in these items is granted under this Agreement, except as specifically
provided for in this Agreement.
(b) Except as provided in Section 13(e) below, Licensee is prohibited from
distributing, transferring possession of, or otherwise making available the
Licensed Software or Documentation to any person other than Authorized Users
under the terms of this Agreement.
(c) If Licensee creates interfaces to the Licensed Software which increases the
number of Concurrent User Licenses, Client Licenses, Named User Licenses or
Server Licenses above the number paid for by Licensee, Licensee must acquire
additional licenses. ONYX reserves the right to independently develop, use and
distribute interfaces and products even if such products or interfaces may be
similar to products or interfaces created by Licensee or its agents. Licensee
irrevocably waives any claims it may have in connection with such development,
use or distribution. Licensee accepts that such a waiver is reasonable under
the circumstances and will not take any contrary or inconsistent position.
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(d) Licensee shall be allowed to make copies of the Documentation for each
Authorized User for internal use only. Licensee may also make two (2) copies of
the Licensed Software for back-up, testing or archival purposes. All authorized
copies of the Licensed Software shall contain all copyright notices or
proprietary legends specified by ONYX.
6. CONFIDENTIALITY.
(a) Each party agrees to use commercially reasonable efforts to prevent any
unauthorized copying, use, distribution, installation or transfer of possession
of Confidential Information. At a minimum, each party shall maintain at least
the same procedures regarding the other party's Confidential Information that
it maintains with respect to its own. A party's Confidential Information shall
not include any information which (i) becomes part of the public domain through
no act or omission of the other party; (ii) is lawfully acquired by the other
party from a third party without any breach of confidentiality; (iii) is
disclosed by a party to a third party without any obligation of
confidentiality; (iv) is independently developed; or (v) is disclosed in
accordance with judicial or other governmental order, provided that receiving
party shall give disclosing party reasonable notice prior to such disclosure.
Without limiting the generality of the foregoing, Licensee shall take reasonable
steps to prevent any personnel or Authorized User from removing any proprietary
or other legend or restrictive notice contained or included in any material
provided by ONYX.
(b) Both parties acknowledge that any use or disclosure of the other party's
Confidential Information in a manner inconsistent with the provisions of this
Agreement may cause the non-disclosing party irreparable damage for which
remedies other than injunctive relief may be inadequate. Both parties further
agree that the non-disclosing party shall be entitled to attempt to receive
from a court of competent jurisdiction injunctive or other equitable relief to
restrain such use or disclosure in addition to other appropriate remedies.
(c) License and/or its Authorized Users shall not reverse engineer the
Licensed Software, or disassemble, decompile, or apply any procedure or
process to the Licensed Software in order to ascertain, derive, and/or
appropriate for any reason or purpose, the source code or source listings for
the Licensed Software or any trade secret information or process contained in
the Licensed Software, except as explicitly permitted by the national
legislation implementing the EC Council Directive of 14 May 1991 on the legal
protection of computer programs. In particular, Licensee agrees that Licensee
shall not be entitled for any purpose to transmit the Licensed Software or to
display the Licensed Software's object code on any computer screen or to make
any hard copy memory dumps of the Licensed Software object code. If Licensee
believes that Licensee requires information related to the interoperability of
the Licensed Software with other programs, Licensee shall not decompile the
program to obtain such information and Licensee agrees to request such
information from ONYX. Upon receiving such a request from Licensee, ONYX shall
determine whether Licensee requires such information for a legitimate purpose,
and if so, ONYX will either produce such information to Licensee within a
reasonable time and on reasonable conditions or itself implement such
interoperability information as part of its maintenance obligations, if
applicable.
(d) The obligations under this Section 6 shall apply to the authorized
subcontractors and agents of each party.
7. WARRANTIES.
(a) ONYX warrants that it is the lawful owner or licensee of the Licensed
Software and has the full right and authority to grant the licenses hereunder.
(b) ONYX warrants that for a period of ninety (90) days from the date it is
delivered, the media on which the Licensed Software is furnished will be free
from any material defect in workmanship and material.
(c) ONYX warrants that the Licensed Software will perform substantially in
accordance with the specifications set forth in the Documentation for a period
of ninety (90) days from the date it is delivered. This warranty does not
cover, however, any copy of the Licensed Software which has been altered or
changed in any way by the Licensee or any Authorized User, provided such
alteration or change gave rise to the breach of warranty claim.
(d) ONYX does not warrant that the functions contained in the Licensed
Software will meet the requirements of Licensee or Authorized Users or that the
operation of the Licensed Software, Updates or Upgrades will be uninterrupted
or error-free. ONYX is not responsible for problems caused by changes in, or
modifications to, the operating characteristics of any computer hardware or
operating system for which the Licensed Software is procured, nor is ONYX
responsible for problems which result from the use of the Licensed Software in
conjunction with software of third parties or with hardware which is
incompatible with the operating system for which the Licensed Software is being
procured.
(e) Only an authorized officer of ONYX may grant additional warranties which
may be binding on ONYX. Such additional warranties must be in writing.
8. WARRANTY DISCLAIMER.
ONYX, ON BEHALF OF ITSELF, ITS SUPPLIERS, AND ITS REPRESENTATIVES EXPRESSLY
DISCLAIMS ALL WARRANTIES OTHER THAN THOSE LISTED IN SECTION 7 OF THIS AGREEMENT,
EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ACCEPTS THAT
THIS DISCLAIMER IS REASONABLE AND THAT LICENSEE HAS HAD ADEQUATE PRIOR
OPPORTUNITY TO ASSESS FULLY THE OPERATION AND PERFORMANCE OF THE LICENSED
SOFTWARE. LICENSEE SHALL NOT TAKE ANY CONTRARY OR INCONSISTENT POSITION.
9. LIMITATION OF REMEDIES.
(a) The entire liability of ONYX, its suppliers, and its representatives, and
Licensee's sole and exclusive remedy for the breach of the warranty obligations
in Section 7 shall be the following: ONYX or its representatives shall, at
their option, use commercially reasonable efforts to provide maintenance
modifications or fixes with respect to any error in the Licensed Software in a
timely manner, replace the Licensed Software or refund to Licensee the amount
it paid in license fees for the Licensed Software which gave rise to such
claim. ONYX and its representatives, however, shall not be obligated to
correct, cure or otherwise remedy any error or defect in the Licensed Software
resulting from any (i) modification of the Licensed Software made by Licensee
or Authorized Users, (ii) misuse or damage of the Licensed Software by Licensee
or Authorized Users, (iii) failure of Licensee to notify ONYX or its
representatives of the existence and nature of such nonconformity or defect
promptly upon its discovery; or (iv) use of Licensed Software in an operating
environment not compatible with the requirements listed in the Documentation.
(b) TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ONYX, ON BEHALF OF
ITSELF, ITS SUPPLIERS, AND ITS REPRESENTATIVES DISCLAIMS ANY AND ALL LIABILITY
FOR SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS)
RELATED TO OR ARISING OUT OF THIS AGREEMENT, OR WITH RESPECT TO THE
INSTALLATION, IMPLEMENTATION, CUSTOMIZATION, USE, OPERATION OR SUPPORT OF THE
LICENSED SOFTWARE, EVEN IF ONYX, ITS SUPPLIERS, OR ITS REPRESENTATIVES HAVE
BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
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(c) To the maximum extent permissible under applicable law, Licensee agrees
that any liability on the part of ONYX, its suppliers, and its representatives,
related to or arising out of this Agreement, or with respect with the
installation, implementation, customization, use, operation or support of the
Licensed Software based upon any legal theory, including but not limited to
breach of warranty, breach of contract, negligence, other tort claims or strict
liability shall not exceed the amount paid by Licensee in license fees for the
Licensed Software which gave rise to such claim.
(d) No action, regardless of form, arising out of this Agreement may be brought
by either party more than two years after the cause of action has arisen.
(e) Licensee has carefully considered the risk and rewards associated with the
entirety of this Agreement, accepts the limitations and disclaimers of this
Section 9 and will not take any contrary position.
10. TAXES AND TARIFFS.
Licensee shall, besides other amounts payable under this Agreement, pay all
local, state, federal, national, use, excise, and value added taxes (except for
taxes imposed on ONYX's income generally), as well as customs duties or tariffs,
levied or imposed by reason of the transactions contemplated in this Agreement,
including any new taxes introduced during the term of this Agreement. Licensee
shall promptly pay to ONYX any such taxes actually paid or required to be
collected or paid by ONYX.
11. TERM, DEFAULT AND TERMINATION.
(a) This Agreement is effective from the date of its execution until terminated
by either party as provided below. In the event either party defaults in any
material obligation in this Agreement, the other party shall give written
notice of such default, and, if the party in default has not cured the default
within thirty (30) days of the notice (or as soon thereafter as commercially
practicable if the default cannot be cured within thirty (30) days), the other
party shall have the right to terminate this Agreement.
(b) Upon termination of this Agreement, regardless of the cause, the license
granted under this Agreement is immediately revoked. Within ten (10) business
days after the termination of this Agreement, Licensee shall return to ONYX all
copies of the Licensed Software and Documentation in Licensee's possession.
TERMINATION SHALL NOT RELIEVE EITHER PARTY OF THEIR CONFIDENTIALITY OBLIGATIONS
UNDER THIS AGREEMENT. In the event of termination as a result of Licensee's
failure to comply with any of its obligations under this Agreement, Licensee
shall continue to be obligated for any payments due as of the date of
termination. Termination of the Agreement shall be in addition to, and not in
lieu of, any other remedies available to either party.
12. INFRINGEMENT INDEMNITY.
ONYX, at its own expense, will indemnify, defend, and hold harmless any claim or
award of costs and damages brought against Licensee to the extent that it is
based on a claim that the Licensed Software used within the scope of this
Agreement infringes any patent, copyright, trademark, or other intellectual
property right in any country where ONYX has authorized the distribution of the
Licensed Software, provided that ONYX is promptly notified in writing of such
claim. ONYX shall have the right to control the defense of all such claims,
lawsuits and other proceedings. In no event shall Licensee settle any such
claim, lawsuit, or proceeding without ONYX's prior written approval, and ONYX
shall have no liability for any settlement or compromise made without its
consent. ONYX shall have no liability for any claim under this section if said
infringement claim is based on the use of a superseded or altered version of the
Licensed Software or in the event such claim is based upon any modification or
enhancement to the Licensed Software made by Licensee or Authorized Users. In
the event a third party infringement claim is sustained in a final judgment from
which no further appeal is taken or possible, or if Licensee's use of the
Licensed Software is enjoined by a court, then ONYX shall, in its sole election
and at its expense either (i) procure for Licensee the right to continue to use
the Licensed Software pursuant to this Agreement; (ii) replace or modify the
Licensed Software to make it non-infringing, provided that such replacement or
modification does not materially decrease the functionality of the Licensed
software; or (iii) terminate this Agreement and refund to Licensee the amount
paid by Licensee in license fees for the Licensed Software which gave rise to
such claim. ONYX agrees to use option (iii) above only in the event that options
(i) and (ii) are commercially impracticable. ONYX shall have no other liability
or obligation to Licensee except as expressly set forth above.
13. MISCELLANEOUS.
(a) Each party acknowledges that it has read and understands this Agreement and
the attached schedules, and further agrees that it is the complete and exclusive
statement of the agreement between the parties which supersedes and merges all
prior proposals, understandings, and all other agreements, oral and written,
between the parties relating to the subject matter of this Agreement. This
Agreement may not be modified or altered except by written instrument duly
executed by both parties.
(b) Any notice or other communication required or permitted in this Agreement
shall be in writing and shall be deemed to have been duly given on the day of
service if served personally or by facsimile transmission with confirmation, or
three (3) days after mailing if mailed by registered or certified mail and
addressed to the respective parties at their respective corporate headquarters.
(c) This Agreement and performance under this Agreement shall be governed by
the laws of the State of Washington. Jurisdiction and venue under this Agreement
shall lie in the State of Washington. Subject to Section 13(j), the parties
irrevocably submit to the jurisdiction of the courts of the State of Washington
and waive any objection to proceedings in any such court on the ground of venue
or on the ground that the proceedings have been brought in an inconvenient
forum. The United Nations Convention on Contracts for the International Sale of
Goods shall not apply.
(d) If any provision of this Agreement is invalid under any applicable statute
or rule of law, it is to that extent to be deemed omitted. The remainder of the
Agreement shall be valid and enforceable to the maximum extent possible.
(e) Licensee may not assign or sub-license, without the prior written consent
of ONYX, its rights, duties, or obligations under this Agreement to any person
or entity, in whole or in part, provided however, that this Agreement may be
assigned by Licensee without the consent of ONYX to a purchaser of all or
substantially all of the assets or outstanding capital stock of Licensee,
whether by merger, consolidation or otherwise. Any authorized transferee or
assignee of the Licensed Software or this Agreement shall be bound by and
subject to all of the terms and provisions of this Agreement.
(f) The waiver or failure of either party to exercise in any respect any right
provided for in this Agreement shall not be deemed a waiver of any further right
under this Agreement.
(g) Both parties agree to comply with all export and re-export restrictions
and regulations ("Export Restrictions") imposed by the government of the United
States, as well as any similar regulations imposed in any nation where Licensee
uses Licensed Software.
(h) Nothing in this Agreement shall be construed to create an agency, joint
venture, partnership, or other relationship between the parties. No agent,
employee, or representative of either party has the authority to bind the other
party in any manner. The parties are independent contractors with respect to
each other under this Agreement.
(i) Neither party shall be responsible for failure to perform in a timely
manner under this Agreement when its failure results from
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any of the following causes; Acts of God or public enemies, civil war,
insurrection or riot, fire, flood, explosion, earthquake or serious accident,
strike, labor trouble or work interruption or any cause beyond its reasonable
control.
(j) Any claim between the parties, under this agreement or otherwise, shall be
determined by arbitration in the State of Washington under the American
Arbitration Association (AAA) Commercial Arbitration Rules with Expedited
Procedures in effect on the date hereof, as modified by this Agreement.
Arbitration shall be conducted in the English language. Any issue about whether
a claim is covered by this Agreement shall be determined by the arbitrator.
There shall be no substantive motions or discovery, except the arbitrator shall
authorize such discovery as may be necessary to ensure a fair private hearing,
which shall be held within one hundred twenty (120) days of the demand and
concluded within three (3) days. These time limits are not jurisdictional. The
arbitrator shall apply substantive law and may award injunctive relief or any
other remedy available from a judge, including reasonable attorney fees and
costs to the prevailing party, but shall not have the power to award punitive
damages. In addition, any award shall be subject to the limitations of
warranties and remedies set forth in Sections 8 & 9. Notwithstanding the
foregoing, either party may seek preliminary, interim, or permanent injunctive
relief from any court having jurisdiction in the event of a breach of this
Agreement, or may seek to enforce an arbitration award under this Agreement
from same.
(k) On ONYX's request, no more frequently than annually, Licensee shall
furnish ONYX with a signed certification (i) verifying that the Licensed
Software is being used pursuant to the terms of this Agreement, including any
user limitations and (ii) listing the locations where the Licensed Software is
being used. Licensee agrees to grant ONYX reasonable access to Licensee's site,
upon prior notice during normal business hours, to audit the use of the
Licensed Software.
(l) This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, and each of which together shall constitute
a single instrument.
(m) Except to the extent otherwise prohibited by applicable law, the terms of
Sections 1, 5, 6, 7, 8, 9, 10, 12 and 13 shall survive termination of this
Agreement by whatever reason.
Each party has caused this Agreement to be executed by its duly authorized
representative.
ONYX: LICENSEE:
By: /s/ XXXXX XXXXXX By:
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Name: Xxxxx Xxxxxx Name:
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Title: Controller Title:
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Executed as of: November 12, 1998 Executed as of:
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