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EXHIBIT 10.13
SILVERSTREAM SOFTWARE, INC.
BUSINESS PARTNER AGREEMENT
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Partner
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Partner Address
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Incorporated in the State of:
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Telephone
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Fax
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e-Mail: URL:
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This Agreement and the Exhibits which form part of it set forth the terms
applicable to you as a SilverStream Business Partner. By signing this Agreement
Partner agrees to the General Terms and the Exhibits applicable to each category
selected below.
Partner Category:
[ ] SilverStream Independent Software Vendor (ISV) Partner
This Agreement takes effect as of the last date written below.
SilverStream Software, Inc. Partner
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Signature Signature
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Name (please print) Name (please print)
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Title Title
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Date Date
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SILVERSTREAM SOFTWARE, INC. XXX XXXXXXXXXX XXXXX XXXXX, XXXXXXXXXX,
XX 00000, XXX. TEL (000) 000 0000, FAX (000) 000 0000
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Business Partner Agreement
SilverStream ISV Partners
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1. APPOINTMENT
SilverStream appoints Partner as a non-exclusive member of the SilverStream
Business Partner Program in the Territory for the category (s) selected
(individually a "Category") on the face page of this Agreement. SilverStream and
Partner acknowledge their respective benefits and obligations as outlined in the
Exhibits attached hereto. SilverStream may in all Categories (but not in the ISV
Category) from time to time change the terms and conditions as outlined in
Exhibits by giving the Partner 30 days notice. Partner represents that it meets
or will meet within 60 days of the date hereof the program requirements
specified in Exhibit B and agrees to maintain such qualification during the
period of this Agreement.
2. TERM
This Agreement shall be for an initial term of One (1) years ("Initial Term")
commencing on the date hereof and this Agreement shall automatically renew for
subsequent one (1) year periods unless terminated as elsewhere herein provided.
3. GRANT OF LICENSES
3.1. Subject to the terms and conditions of the Agreement, SilverStream hereby
grants to the Partner, and the Partner hereby accepts, the license set
forth in Exhibit A for the Products as designated in Exhibit A. To the
extent permitted herein, the distribution of any Product by Partner shall
be subject to the terms and conditions of SilverStream's shrink-wrap
sublicense agreements under which each sublicensee agrees: (i) to operate
and process the Product for its own business purposes only, without the
right to further sublicense; (ii) not to copy or reproduce the Product, in
whole or in part, except as permitted in writing; (iii) not to modify,
adapt, translate, decompile, disassemble or reverse engineer (except to the
extent SilverStream is required by applicable law to allow you to reverse
engineer the software) the Product in any manner, and (iv) that the
sublicense agreement inures to the benefit of SilverStream, and that
SilverStream may directly enforce the terms of the sublicense agreement in
order to protect its interest in the Products.
3.2. Neither Partner nor any persons or entities who directly or indirectly
purchase or license Products from, or who have the Products marketed to
them by, the Partner in accordance with this Agreement ("Customers") shall
have any right to merge or embed the Products into any other computer
program or work or create derivative works of the Products.
3.3. Title to and ownership of the Products, including all patents, copyrights
and property rights applicable thereto, shall at all times remain solely
and exclusively with SilverStream or its licensors, and neither the Partner
nor any Customer shall take any action inconsistent with such title and
ownership.
3.4. SilverStream, may at its option, make available to Partner certain
software, media and/or related documentation for products or versions of
products not generally commercially available ("Pre-released Software).
Partner agrees to use Pre-released Software for testing and evaluation
purposes only, and to treat Pre-released Software as Confidential
Information and trade secrets subject to the provisions of this Agreement.
Partner agrees to abide by the terms of the shrink-wrap license associated
with such Pre-released Software.
4. PRICES, PAYMENT AND AUDIT
4.1. Partner agrees to pay the "Partner Price" as a license fee for each Product
ordered hereunder. The Partner Price shall equal SilverStream's suggested
MSRP ("Base Price") for Products ordered, less the applicable discount (the
"Discount"), set forth on the North American Price List ("Price List") in
Exhibit C. All Base Prices and Partner Prices are in U.S. Dollars and
F.O.B. SilverStream's point of shipment. All payments from Partner to
SilverStream shall be made in U.S. Dollars. Payments from Canadian Partners
may be made in
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Canadian Dollars if the SilverStream invoice to the Partner is prepared by
SilverStream in Canadian Dollars.
4.2. SilverStream in its sole discretion, shall have the right from time to
time, to change the Base Prices and Discounts and/or add or delete products
to or from the Price List by giving 30 days prior written notice to the
Partner. Orders accepted by SilverStream prior to the effective date of any
such change and scheduled for delivery within 30 days following receipt by
SilverStream shall be processed at the lower of (i) the Base Prices and/or
Partner Prices in effect on the date of acceptance of the order or (ii) the
Base Prices and/or Partner Prices in effect on the scheduled shipment date.
4.3. The payment terms for Product ordered shall be net thirty (30) days and if
Partner fails to pay any amounts when due, the Partner shall pay
SilverStream a late payment charge equal to 1.5% per month or if lesser the
maximum amount permitted by law. SilverStream reserves the right to require
full or partial payment in advance, or to revoke any credit previously
extended, if, in SilverStream's judgment, the Partner's financial condition
does not warrant proceeding on the terms specified.
4.4. SilverStream shall have the right, subject to reasonable advance notice, to
have an independent auditor acceptable to Partner (which acceptance shall
not be unreasonably withheld) inspect such books and records of Partner, at
Partner's principal place of business, as are necessary to verify the
reports provided by Partner to SilverStream. Any such audit shall be at the
expense of SilverStream, unless such audit discloses an underpayment by the
Partner in excess of five percent (5%) in any three-month period, in which
case Partner shall reimburse SilverStream for such expenses. Any
underpayment by Partner shall be promptly paid to SilverStream together
with interest as provided in this Section.
5. TAXES AND IMPORT DUTIES
Base Prices and Partner Prices are exclusive of all federal, state, municipal,
excise, sales, use, value added, property or other similar taxes and import
duties, now in force or enacted in the future by any community of nations or any
nation or political subdivision, all of which shall be paid by the Partner,
except for such taxes as are imposed on SilverStream's income, which shall be
paid by SilverStream. The Partner is responsible for obtaining and providing to
SilverStream any certificate of exemption or similar document required to exempt
any sale from sales, use or similar tax liability.
6. MASTER DISKS AND AUTHORIZED LICENSE CODES
Master Disks and authorized license codes. Partner is authorized to distribute
Application Deployment Servers and is authorized to make Evaluation Copies and
Demonstrations Copies of the Software and copies of the Software to be licensed
as Application Deployment Servers from the Master Disks ("Master Disks") and
authorized license codes that SilverStream will make available to Partner.
Partner may make a reasonable number of Evaluation and Demonstration copies that
may be distributed without Royalties provided that the partner receives no
revenue associated with the Evaluation and Demonstration Copies and the
Evaluation and Demonstration Copies contain a license code, as provided by
SilverStream, that causes the Software to cease functioning 60 days after
installation.
Partner must maintain adequate security over Master Disks and authorized license
codes and shall allow only a limited number of employees to make copies from
Master Disks. Partner shall fully account for all copies of the Software.
Partner shall not modify or alter and proprietary rights notices contained
within the Software. Partner is strictly prohibited from providing access or
transferring the Masters Disks or license codes to any third party.
7. OBLIGATIONS OF THE PARTNER
Partner shall undertake all obligations set forth as Program Requirements on
Exhibit B.
8. WARRANTIES
SILVERSTREAM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR
ORAL, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
SILVERSTREAM'S LIABILITY FOR DAMAGES TO THE PARTNER FOR ANY CAUSE WHATSOEVER
REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED THE AGGREGATE
PAID FOR PRODUCTS UNDER THIS AGREEMENT. SILVERSTREAM SHALL IN NO EVENT BE LIABLE
FOR ANY LOSS OF DATA, PROFITS OR USE OF THE PRODUCTS, OR FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSS DAMAGES ARISING HEREUNDER
EVEN IF
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SILVERSTREAM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
WILL SILVERSTREAM BE LIABLE TO CUSTOMERS OR OTHER THIRD PARTIES FOR ANY DAMAGES,
INCLUDING BUT NOT LIMITED TO: (i) DAMAGES CAUSED BY THE PARTNER'S FAILURE TO
PERFORM COVENANTS AND RESPONSIBILITIES, BY REASON OF SILVERSTREAM'S NEGLIGENCE
OR OTHERWISE; (ii) DAMAGES CAUSED BY REPAIRS OR MODIFICATIONS DONE WITHOUT
SILVERSTREAM'S WRITTEN APPROVAL; OR (iii) LOSS OF DATA, PROFITS OR USE OF THE
PRODUCTS OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSS
DAMAGES IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS. THE PARTNER
SHALL INDEMNIFY SILVERSTREAM AGAINST ALL SUCH CLAIMS ASSERTED BY ITS CUSTOMERS
OR OTHER THIRD PARTIES AGAINST SILVERSTREAM.
INDEMNIFICATION BY THE PARTNER. To the extent a claim or action is brought
against SilverStream based on or related to the Partner's failure to observe or
perform its obligations under this Agreement, including its obligation to notify
customers of limitations and disclaimers of warranties and liabilities, the
Partner shall defend and hold SilverStream harmless from and against any and all
damages, costs and expenses, including reasonable attorneys' fees, suffered by
or awarded against SilverStream.
9. PATENTS AND TRADEMARKS
9.1. Infringement Indemnification by SilverStream. If notified promptly in
writing of any action brought against the Partner based on a claim that the
Products infringe any valid United States patent or copyright, SilverStream
shall defend such action at its expense and pay all costs and damages
finally awarded in such action or settlement which are attributable to such
claim. SilverStream shall have sole control of the defense of any such
action and all negotiations for its settlement or compromise. The Partner
shall cooperate fully with SilverStream in the defense, settlement or
compromise of any such action. In the event that a final injunction is
obtained against the Partner's use of the Product by reason of infringement
of a valid patent, copyright, trade secret or other intellectual property
right, or if in the opinion of SilverStream the Product is likely to become
the subject of a successful claim of such infringement, SilverStream may,
at its option and expense, (i) procure for the Partner and its Customers
the right to continue using the Product, (ii) replace or modify the Product
so that it becomes non-infringing so long as its functionality is
essentially unchanged, or (iii) if neither (i) and (ii) are reasonably
available to SilverStream, terminate the license for the Product.
9.2. Notwithstanding the foregoing, SilverStream shall have no liability to the
Partner to the extent that any infringement or claim thereof is based upon
(i) use of any Product in combination with equipment or software not
supplied by SilverStream where the Product would not itself be infringing,
(ii) compliance with designs, specifications or instructions of the Partner
or any of its Customers, (iii) use of any Product in an application or
environment for which it was not designed or contemplated hereunder, (iv)
modifications of the Products by anyone other than SilverStream, or (v) any
claims of infringement of any patent, copyright or trade secret in which
the Partner or any affiliate of the Partner has an interest or license.
9.3. The Partner shall not bring any suit or action against SilverStream for any
reason whatsoever more than one year after the related cause of action has
occurred.
9.4. THE FOREGOING INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY OF
SILVERSTREAM WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF
PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS AND OTHER INTELLECTUAL
PROPERTY OR PROPRIETARY RIGHTS BY THE PRODUCTS.
9.5. Infringement, Indemnification by the Partner. The Partner shall indemnify,
defend and hold harmless SilverStream against all claims, liabilities,
damages, expenses, judgments and losses (including reasonable attorneys'
fees) arising from (i) infringement or alleged infringement of any patent,
copyright, trade secret, trademark or other intellectual property or
proprietary right as a result of compliance by SilverStream with the
designs, specifications or instructions of the Partner or any of its
Customers, (ii) the Partner's breach of any of its obligations hereunder,
and (iii) the Partner's misuse of the Products.
9.6. Ownership of Patents and Trademarks. All patents, trademarks, trade names,
copyrights, domain names and designs in relation to the Products and the
literature supplied in connection therewith shall be and remain the
property of SilverStream, or the owner of such as applicable and no rights
to duplicate such property shall accrue to the Partner unless expressly
provided herein or unless written permission is granted by SilverStream.
9.7. Use of SilverStream's Trade Name and Trademarks. The Partner shall include
and shall not alter, obscure or remove any trademark or trade name used or
claimed by SilverStream, or any markings, colors, logos or other
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insignia which are contained on or in or affixed to Products at the time of
shipment (collectively, with any domain name including the word
SilverStream, the "SilverStream Marks").
9.7.1. Subject to the terms and conditions of this Agreement,
SilverStream hereby grants to Partner during the term of this
Agreement a non-assignable and non-transferable right and license
to use the SilverStream Marks in the conduct of its business in a
style and manner approved by SilverStream in writing prior to
such use. Partner may, in advertising, promotional materials,
letterheads, invoices, and other appropriate documents, describe
itself as an "Authorized Partner for SilverStream Software
Products." Partner shall forward to SilverStream for its prompt
review and approval any and all forms of proposed advertising or
promotional materials of Partner which include a SilverStream
Xxxx.
9.7.2. Partner agrees it is not authorized under this Agreement to use
any SilverStream Marks in connection with any business conducted
by the Partner other than the business of reselling Products in
accordance with the terms of this Agreement.
9.7.3. Partner will not, during or after the term of this Agreement,
claim any ownership or similar interest in any of the
SilverStream Marks.
9.7.4. Nothing herein shall give Partner any right, title, or interest
in the SilverStream Marks except the right to use the same during
the term of this Agreement and in accordance with its terms. Any
use of the SilverStream Marks by or with the authority of Partner
shall inure to the benefit of SilverStream.
9.7.5. Partner agrees it shall not, and it shall not cause or assist any
third party to, register or attempt to register, in its own name
or otherwise, any of the SilverStream Marks or any other
trademarks, service marks, or slogans owned by or associated with
SilverStream or any derivative of any of these. In the event that
Partner secures or has secured in any jurisdiction any rights to
any of the SilverStream Marks or any of such other marks or
slogans which are prior to or greater than the rights owned by
SilverStream, then Partner shall immediately notify SilverStream
of same, and, upon written request from SilverStream, hereby
assigns all Partner's right, title, and interest therein to
SilverStream (or its designee).
9.7.6. Partner agrees to notify SilverStream in writing of any apparent
infringement of any of the SilverStream Marks which comes to the
attention of Partner.
9.7.7. Upon termination of this Agreement for any reason, all rights and
licenses granted to Partner hereunder shall terminate and revert
immediately to SilverStream and Partner shall immediately cease
using the SilverStream Marks.
9.7.8. Partner acknowledges and agrees that the SilverStream Marks have
a unique character giving them a peculiar value, the loss of
which cannot reasonably or adequately be compensated for by
monetary damages, and that the violation by Partner of the
provisions hereof concerning the same or of SilverStream's rights
therein are likely to cause SilverStream irreparable damage and
injury. Partner hereby expressly agrees that SilverStream will be
entitled to equitable relief to prevent or cure any violation or
infringement or threatened violation or infringement of
SilverStream's rights in the SilverStream Marks.
9.8. SilverStream shall be entitled to review the Partner's operation from time
to time, and, upon reasonable notice to Partner, conduct periodic quality
reviews of Partner's operation. Partner shall comply with all SilverStream
quality standards established from time to time by SilverStream. This
Agreement may be terminated by SilverStream upon 30 days' written notice in
the event Partner fails to comply with SilverStream's quality standards,
which failure remains uncured for thirty (30) days after notice thereof
from SilverStream.
10. TERMINATION, DEFAULT AND REMEDIES
10.1. After the Initial Term, this Agreement may be terminated by either party,
without cause, upon written notice to the other party giving 90 days
notice, at any time during the term of this agreement
10.2. Upon the occurrence of any of the following acts or events ("Events of
Default"), the Partner shall be in default and breach of this Agreement.
10.2.1. Where applicable, the failure to meet the financial requirements as
set forth on Exhibit B.
10.2.2. Failure to make any payment when due hereunder which failure
remains uncured for fourteen days (14) days after notice thereof
from SilverStream.
10.2.3. Failure to comply with the terms hereof or to perform any of its
covenants, obligations or
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responsibilities under this Agreement which failure remains
uncured for fourteen (14) days after notice thereof from
SilverStream.
10.2.4. Dissolution, termination of existence, liquidation, insolvency or
business failure of the Partner or the institution of any
bankruptcy proceeding against or by the Partner, or the
appointment of a custodian or receiver for the Partner or any
part of its property if such bankruptcy proceeding or appointment
is not terminated or dismissed within thirty (30) days.
10.2.5. Assignment or attempted assignment of this Agreement by Partner in
violation of Section 11.3 hereof.
10.3. Upon the occurrence of an Event of Default, SilverStream, in its sole
discretion, shall have the right to (i) immediately terminate, by written
notice, this Agreement and/or any software license granted to the Partner,
(ii) cancel any or all unfilled orders for Products submitted by the
Partner, and (iii) exercise any other remedy which may be available at law
or in equity.
10.4. Upon the termination of this Agreement, the Partner shall (i) cease
immediately from acting as a Partner of SilverStream and abstain from
making further distribution of Products, (ii) pay to SilverStream, in
full within 30 days of such termination, all amounts owed to
SilverStream, (iii) cooperate with SilverStream in completing all
outstanding obligations to Customers, and (iv) cease making use of any
printed material, trademarks, trade name or domain name identified
with SilverStream without the express written consent of SilverStream.
Th provisions set forth in Sections 8, 9.7.7., 9.7.8., 10 and 11 shall
survive the termination of this Agreement.
10.5. SilverStream shall have no liability to the Partner for damages of any
kind, including indirect, incidental or consequential damages, on
account of the termination or expiration of this Agreement. Without
limiting the generality of the foregoing, SilverStream shall not be
liable to the Partner for reimbursement or damages for the loss of
goodwill, prospective profits or anticipated sales, or on account of
any expenditures, investment, leases or commitments made by the Partner
or for any other reason whatsoever based upon, or growing out of, such
termination or expiration.
11. GENERAL
11.1. Proprietary Information. No proprietary information disclosed by either
party to the other in connection with this Agreement shall be disclosed to
any person or entity other than the recipient party's employees directly
involved with the recipient party's use of such information (in accordance
with the terms hereof) who are bound by written agreement to protect the
confidentiality of such information, and such information shall otherwise
be protected by the recipient party from disclosure to others. Information
will not be subject to this provision if it is or becomes a matter of
public knowledge without the fault of the recipient party, if it was a
matter of written record in the recipient party's files prior to
disclosure to it by the other party, or if it was or is received by
the recipient party from a third person under circumstances permitting
its unrestricted disclosure by the recipient party. Upon termination
of this Agreement, each party shall promptly deliver to the other all
proprietary information of the other party in the possession or
control of such party and all copies thereof. The obligations under
this Section shall continue for a period of five (5) years after the
termination of this Agreement.
11.2. Force Majeure. In the event that either party fails to perform any of its
obligations under this Agreement due to any act of God, fire, casualty,
flood, war, strike, lock out, failure of public utilities, injunction or
any act, exercise, intervention of governmental authority, epidemic,
insurrection, or any other cause beyond the reasonable control of the
party invoking this provision, then, except for Partner's obligation to
make payments to SilverStream hereunder, the affected party's performance
shall be excused and the time for performance shall be extended for the
period of delay or inability to perform due to such occurrence.
11.3. Assignment and Corporate Reorganization. The rights granted to the Partner
under this Agreement are personal in character. Neither this Agreement nor
any rights granted hereby may be assigned by the Partner voluntarily or by
operation of law without SilverStream's prior written consent and any such
attempted assignment shall be null and void. For purposes of this
Agreement, "assignment" shall be deemed to include the transfer of all or
substantially all of the assets of, or a majority interest in the Partner
or the voting stock of the Partner, or the merger of the Partner with one
or more entities. This Agreement shall inure to the benefit of and be
binding upon any successor or assign of SilverStream.
11.4. Compliance with U.S. Government Regulations. The parties agree to comply
with all U.S. state and federal laws, regulations or orders pertaining to
the fulfillment of this Agreement including but not limited to export
control laws, anti-boycott laws, and the Foreign Corrupt Practices Act,
which prohibits certain payments to
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parties who are not the Partner.
11.5. Applicable Law and Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of
Massachusetts.
11.6. Relationship of the Parties. The Partner acknowledges that both parties
hereto are independent contractors and that the Partner will, on its
own behalf, solicit orders for Products only as an independent
contractor. The Partner shall not represent itself as a partner, joint
venture, agent, employee or general representative of SilverStream. The
Partner acknowledges that it shall have no right, power or authority to
in any way obligate SilverStream to any contract or other obligation.
11.7. Entire Agreement. This Agreement constitutes the entire agreement
between SilverStream and the Partner with respect to the subject matter
hereof and shall not be amended, altered or changed except by a written
agreement signed by the parties hereto.
11.8. Waivers. No delay or omission on the part of either party to this
Agreement in requiring performance by the other party or in exercising
any right hereunder shall operate as a waiver of any provision hereof
or of any right or rights hereunder; and the waiver, omission or delay
in requiring performance or exercising any right hereunder on any one
occasion shall not be construed as a bar to or waiver of such
performance or right, or of any right or remedy under this Agreement,
on any future occasion.
11.9. Notices. For purposes of this Agreement, and for all notices and
correspondence hereunder, the addresses of the respective parties have
been set out at the beginning of this Agreement, and no change of
address shall be binding upon the other party until written notice
thereof is received by such party at the address shown herein. All
notices shall be effective upon receipt if delivered by courier service
and five days after mailing if sent by registered mail.
11.10. Severability. If any provision of this Agreement shall for any reason
be held illegal or unenforceable, such provision shall be deemed
separable from the remaining provisions of this Agreement and shall in
no way affect or impair the validity or enforceability of the remaining
provisions of this Agreement.
11.11. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which shall constitute one
and the same instrument.
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