XXXX INTERACTIVE SERVICES
MASTER SOFTWARE LICENSE AGREEMENT
THIS MASTER SOFTWARE LICENSE AGREEMENT ("Agreement"), together with the attached
Schedules, Exhibits or Addenda which are incorporated and made part of this
Agreement, is entered into by and between XXXX INTERACTIVE SERVICES, INC.
("Xxxx"), a Colorado corporation with its principal offices located at 0000
Xxxxxxx, Xxxxx 000, Xxxxxx Xxxxxxxx, XXX 00000 and the client(s) ("Client")
whose name, principal business address, and jurisdiction of incorporation are
set forth below. Xxxx and Client are referred to collectively as the "Parties."
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Client Name(s): (Fill in the complete and legal name(s) of Client)
SwissOnline AG
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Address: Xxxxxxxxxxxxxxxx 00
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City: Otelfingen
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State/Zip or Province/Postal Code: CH-8112
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Country: Switzerland
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Jurisdiction of Incorporation: Switzerland
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1.0 License, Hosting Services and Payment.
1.1 Xxxx hereby grants to Client and the affiliates of the Cablecom group,
Client's sole shareholder, listed on Appendix A to this Agreement (the
"Affiliates"), a non-transferable License to use the Products, as designated in
Schedule A , subject to the terms and conditions of this Agreement. At least 50%
of the capital stock (or other ownership interest in any Affiliate that is not a
corporation) of each Affiliate shall be owned, directly or indirectly, by the
Cablecom group.
1.2 Client may, at its option and expense, host or request a third party or
Xxxx to host Client's web site. If Client elects to have Xxxx host Client's web
site, Xxxx shall do so only if the Parties enter into a separate Web Site
Hosting Agreement.
1.3 Client shall pay Xxxx the License Fees and any applicable Sales Tax on
License Fees, as set forth in Schedule A, Exhibit 1 attached hereto. All fees
are exclusive of Taxes. If applicable laws require the withholding of Taxes
under this Agreement, Client shall notify Xxxx, make the applicable withholding,
and remit the required Tax to the proper governmental authority.
2.0 Delivery and Installation.
2.1 Unless otherwise agreed by the Parties in a separate written agreement, on
the Effective Date, Xxxx shall deliver the Products to Client, including one
copy of the Software and one copy of the Documentation on appropriate media.
2.2 Unless otherwise agreed by the Parties in a separate written agreement,
Client shall, at its expense, be responsible for installation of the Software,
user training, data conversion, and other services necessary to installing and
using the Products.
3.0 Definitions.
3.1 "Agreement" means this Agreement, Exhibits, Schedules and any addenda
signed by the Parties.
3.2 "Documentation" means all documentation delivered by Xxxx with the
Software, whether in machine-readable or printed form, including any updates,
revisions, new versions, and supplements to such documentation.
3.3 "Effective Date" means the date when an authorized representative of Xxxx
signs this Agreement as indicated at the end of this Agreement in the space
marked "Date" below Xxxx'x signature to this Agreement.
3.4 "Intellectual Property Rights" means all copyrights, confidentiality
rights, trade secret rights, trademark rights, patent rights and other
intellectual property rights.
3.5 "License" means the license referred to in Section 1.1.
3.6 "License Fee" means the license fee payable for a Product as set forth in
the Schedule A, Exhibit 1.
3.7 "Maintenance and Support" means the assistance, if any, provided by Xxxx to
Client pursuant to the Maintenance and Support Agreement attached to this
Agreement as Schedule B.
3.8 "Modifications or Enhancements" means any modifications, enhancements or
derivative works to the Products that contain or use any object code or source
code developed by Xxxx.
3.9 "Number of Subscribers" means the maximum number of Client's customers' web
sites that may use the licensed Products.
3.10 "Number of Sites" means the maximum number of locations or street
addresses, at which the server portion of the Products are installed.
3.11 "Platform Technology" means the current and future release levels of the
combined hardware operating system and database system designated in the
Exhibits and certified by Xxxx for use with the Products. Unless otherwise
provided in this Agreement, Xxxx shall not be obligated to provide Support for
any portion of the Platform Technology.
3.12 "Products" means the products owned by Xxxx and designated on the Schedule
A to this Agreement.
3.13 "Product Warranty" means the warranty referred to in Section 5.0.
3.14 "Software" means the software portion of the Product installed on the
Platform Technology in object code format, any updates, revisions, new versions,
supplements, and all permitted copies of the foregoing supplied by Xxxx to
Client, whether in machine readable or printed form.
3.15 "Taxes" means any sales, use, excise, value-added, withholding taxes or
other taxes based upon this Agreement, including taxes, interest and penalties
that are levied or assessed by a governmental authority, resulting from this
Agreement, excluding taxes based on Xxxx'x net income.
3.16 The singular and plural shall each include the other, and this Agreement
shall be read accordingly when required by the facts.
4.0 Maintenance and Support.
4.1 If agreed by the Parties, Xxxx shall provide Maintenance and Support to
Client pursuant to the Maintenance and Support Agreement attached hereto as
Schedule B.
5.0 Warranty
5.1 Xxxx warrants that at the time of delivery of the Products, the media
containing the Products shall be free of material defects. Client's sole and
exclusive remedy for breach of the Media Warranty is replacement of the
defective media if any such defect is found within three (3) months after
delivery of the defective media.
5.2 Xxxx warrants that upon delivery, the Products shall materially or
substantially perform in accordance with the Documentation provided by Xxxx.
Client's exclusive remedies for breach of the Product Warranty are (a) Client
may request support from Xxxx to enable the Products to comply with the Product
Warranty, and (b) if the support requested by Client does not enable the
Products to comply with the Product Warranty within a reasonable period of time,
Client may, at its option, seek a replacement of the affected Products or a
refund of the License Fee paid directly to Xxxx by Client for the affected
Products. Xxxx shall not be liable to remedy any claimed breach of the Product
Warranty due to the acts or omissions of Client or any third party.
5.3 THE EXPRESS LIMITED WARRANTIES IN THIS SECTION 5.0 ARE IN LIEU OF ALL
OTHER WARRANTIES AND CONDITIONS EXPRESSED OR IMPLIED, CONTRACTUAL OR STATUTORY,
INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANY OTHER PROVISION IN THIS
AGREEMENT, XXXX DOES NOT WARRANT THAT THE USE OF THE PRODUCTS SHALL BE
UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF
BEING CORRECTED.
6.0 Intellectual Property Rights.
6.1 Client acknowledges and agrees that the Products, the ideas, methods of
operation, processes, know-how, aesthetic aspects, sub-systems and modules
included in the Products, the graphical user interfaces for the Products, and
the look and feel of the Products are proprietary materials which contain
valuable trade secrets and that all Intellectual Property Rights to the Products
are owned exclusively by Xxxx, subject to the License. Xxxx shall not acquire
any Intellectual Property Rights in Client's trademarks, service marks or trade
dress.
6.2 Client acknowledges and agrees that Xxxx shall retain title to all
Intellectual Property Rights related to the Products, copies of the Products,
and Modifications or Enhancements. If Client makes any Modifications or
Enhancements, Client shall assign to Xxxx all Intellectual Property Rights to
the Modifications or Enhancements. In this event, Client shall have a non-
exclusive royalty-free worldwide license to use the Modifications or
Enhancements. Modifications or Enhancements may be used in conjunction with the
Products only in accordance with the terms of this Agreement. Any enhancements
to the Products made by Client that do not use any of the object or source code
for the Products shall be owned by Client.
6.3 Client shall take reasonable precautions (including the precautions used
for Client's own confidential information) to prevent the unauthorized use or
disclosure of the Products, any code provided to Client under this Agreement, or
the results of any performance or benchmark tests of the Products. Client shall
not allow the Products or any such test results to be made available to any
third party who is not an authorized user, unless Xxxx approves such in writing
and the third party enters into a non-disclosure and non-use agreement with
Client on terms acceptable to Xxxx. Client shall not disassemble, decompile,
decode or reverse engineer the Products, except as expressly permitted by
applicable law.
6.4 Client shall keep the Products free and clear of all liens and security
interests and may not sublicense the Products.
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7.0 Inspection.
Xxxx shall have the right to inspect, with reasonable notice, during normal
business hours, any location where the Products are being used and to run the
Products for the purpose of auditing its use.
8.0 Number of Subscribers.
The number of Subscribers authorized to use any Product with the Platform
Technology shall not exceed the quantities of Subscribers, as specified for the
Products. Client shall take reasonable precautions to ensure that the number
and locations of Subscribers are not exceeded, including periodic audits of use
of the Products.
9.0 Number of Sites.
The Number of Sites upon or at which the Product is installed shall not exceed
the quantities specified in this Agreement as stated in the Attached Schedule A.
10.0 Other Products.
10.1 If Client desires to obtain other or additional available products from
Xxxx that do not have pricing, features and functionality similar to the
Products, those products shall be licensed for use by Client only by entering
into a separate Product License Agreement with Xxxx at Xxxx'x then current
license fees.
10.2 All future products, upgrades or enhancements shall be developed and made
available by Xxxx at its sole discretion.
11.0 Copies of Software and Documentation.
11.1 Client may copy the Software, in object code format, only for backup and
archival purposes. All copies of the Software must have all of the restrictive
and proprietary notices as they appear on copies of the Software provided by
Xxxx.
11.2 Client may copy Documentation of the Products only on a limited basis
related to the number of Subscribers. All copies of the Documentation shall
have all of the restrictive and proprietary notices as they appear on copies of
the Documentation provided by Xxxx.
12.0 Object Code.
The Software, in object code format, may be used only for diagnosing problems
and developing Modifications or Enhancements permitted by this Agreement.
Client shall ensure that only such authorized users have access to the object
code.
13.0 Infringement.
13.1 Xxxx shall, at its expense, defend any suit or claim brought against
Client and shall indemnify Client against an award of damages and costs against
Client by a final court judgment based on a claim that Client's use of a Product
infringes a Patent or Copyright, if Client: (a) notifies Xxxx in writing of the
suit or claim within ten (10) days after Client receives notice; (b) gives Xxxx
sole authority to defend or settle the suit or claim; (c) gives Xxxx all
information in Client's control concerning the suit or claim; and (d) reasonably
cooperates and assists Xxxx with defense of the suit or claim.
13.2 If any Product becomes or in Xxxx'x opinion is likely to become the
subject of a suit or claim of infringement of a Patent or Copyright, Xxxx shall
at its option and expense (a) obtain the right for Client to use the Product;
(b) replace or modify the Product so that it becomes non-infringing; or (c)
terminate the License for the infringing Product and this Agreement to the
extent it relates to the infringing Product. If Xxxx terminates the License for
the infringing Product: under this Section 13.2 (a) Client shall cease to use
the infringing Product and shall return it to Xxxx; and (b) Xxxx shall pay
Client, as Client's sole and exclusive remedy against Xxxx (other than
indemnification by Xxxx under Section 12.1) an amount equal to the License Fee
paid under this Agreement for the infringing Product less any cumulative
amortization or depreciation of that Product by Client on its financial
statements as of the date when Xxxx terminates the License for the infringing
Product.
13.3 Xxxx shall have no liability to Client under this Section 13.0 if any suit
or claim of infringement is based upon the use of the Product: (a) in
combination, operation or use with any product not furnished by Xxxx; (b) in a
modified state not authorized by Xxxx; or (c) in a manner other than for which
it was designed, if infringement would have been avoided without such use of the
Product.
14.0 Term and Termination.
14.1 The term of this Agreement shall begin upon the Effective Date, and shall
continue until terminated by either Party pursuant to the terms and conditions
of this Agreement.
14.2 Xxxx may terminate this Agreement and the License granted to Client if Xxxx
is in compliance with this Agreement and either (a) Client fails to pay Xxxx any
amounts when due Xxxx or, (b) Client is in material default of any other
provision of this Agreement and such default has not been cured within thirty
(30) days after Xxxx gives Client written notice describing the default. Upon
termination in accordance with this Section 14.2, Xxxx may:
(i) declare all amounts owed to Xxxx by Client to be immediately due and
payable;
(ii) require that Client cease any further use of the Products and
immediately return the Products and any copies to Xxxx; provided that
Client's customers ("Subscribers") who have had web sites created
using the Products may continue to use the
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web sites so long as, in the case of those Subscribers for whom Xxxx was
being paid a monthly fee ("Monthly Subscribers"), Xxxx is paid a one-time
fee for each such Subscriber's web site equal to USD 36_and, for all
Subscribers, there is no further use of the Products in connection with
their web sites; and
(iii) cease performance of all of Xxxx'x obligations under this Agreement
without liability to Client.
14.3 Client may terminate this Agreement and the License granted to Client if
Client is in compliance with this Agreement and either (a) Xxxx is in material
default of any provision of this Agreement and such default has not been cured
within thirty (30) days after Client gives Xxxx written notice describing the
default or (b) at any time after December 31, 2002, by giving Xxxx ninety (90)
days written notice thereof. Upon such termination:
(i) Client shall pay Xxxx'x outstanding invoices that do not pertain to
Xxxx'x default, but Client shall have no further payment obligations to Xxxx
under this Agreement; and
(ii) Xxxx may require that Client cease any further use of the Products and
immediately return the Products and any copies to Xxxx; provided that
Subscribers who have had web sites created using the Products may continue to
use the web sites so long as, in the case of Monthly Subscribers, Xxxx is
paid a one-time fee for each such Subscriber's web site equal to USD 36 and,
for all Subscribers, there is no further use of the Products in connection
with their web sites.
14.4 Upon termination of this Agreement by Xxxx or Client, Sections 3.0, 5.0,
6.0, and 13.0 through 26.0 of this Agreement shall survive.
15.0 Limitations of Liability.
15.1 AFTER THE PARTIES HAVE SIGNED THIS AGREEMENT, CLIENT'S EXCLUSIVE REMEDIES
FOR PRODUCT RELATED MATTERS SHALL BE AS DESCRIBED IN THIS AGREEMENT, SUBJECT TO
THE LIMITATIONS OF SECTION 14.0.
15.2 XXXX SHALL NOT BE LIABLE FOR ANY EXPENSE OR DAMAGE ARISING OUT OF ANY
ERASURE, DAMAGE OR DESTRUCTION OF FILES, DATA OR PROGRAMS. CLIENT SHALL BE
RESPONSIBLE FOR MAKING BACKUP COPIES OF FILES, DATA, AND PROGRAMS.
15.3 IN NO EVENT SHALL XXXX OR ITS THIRD PARTIES BE LIABLE FOR SPECIAL,
INDIRECT, THIRD PARTY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS.
NEITHER PARTY SHALL SEEK, OR OTHERWISE APPLY FOR, ANY PUNITIVE OR EXEMPLARY
DAMAGES. IN THE CASE OF ANY DAMAGES TO FILES, SOFTWARE OR HARDWARE CAUSED BY A
VIRUS IN THE PRODUCTS AS ORIGINALLY DELIVERED TO CLIENT, XXXX SHALL, AT ITS
EXPENSE, DEFEND ANY SUIT OR CLAIM BROUGHT AGAINST CLIENT BASED ON SUCH DAMAGE
AND, SUBJECT TO THE TERMS OF THIS AGREEMENT, SHALL INDEMNIFY CLIENT AGAINST AN
AWARD OF DAMAGES AND COSTS AGAINST CLIENT BY A FINAL COURT JUDGEMENT BASED ON
SUCH A CLAIM.
15.4 EXCEPT ONLY FOR INDEMNIFICATION BY XXXX UNDER SECTION 13.1 ABOVE, XXXX'X
MAXIMUM AGGREGATE LIABILITY FOR DAMAGES TO CLIENT OR OTHERS SHALL BE LIMITED TO
ACTUAL DIRECT MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED (A) THE INITIAL LICENSE
FEE PAID BY CLIENT FOR THE PRODUCTS SUBJECT TO THE DAMAGE CLAIM IF THE CLAIM
AROSE WITHIN ONE (1) YEAR AFTER THE EFFECTIVE DATE AND (B) THE MOST RECENT
ANNUAL MAINTENANCE AND SUPPORT FEES PAID BY CLIENT SUBJECT TO THE DAMAGE CLAIM
IF THE CLAIM AROSE MORE THAN ONE (1) YEAR AFTER THE EFFECTIVE DATE.
15.5 CLIENT ACKNOWLEDGES THAT THE LIMITATIONS ON LIABILITY IN THIS SECTION 15
ARE REASONABLE. THE REMEDIES PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE. EXCEPT
ONLY FOR ACTIONS BY XXXX TO PROTECT INTELLECTUAL PROPERTY RIGHTS OR FOR BREACH
OF SECTION 16.0, NEITHER PARTY SHALL SEEK, OR OTHERWISE APPLY FOR, ANY EQUITABLE
REMEDIES.
16.0 Assignment.
Client shall not assign this Agreement or transfer, by operation of law or
otherwise, any of its respective rights or obligations under this
Agreement (including, without limitation, by a change in the majority ownership
or control of Client) without the prior written consent of Xxxx, such consent to
not be unreasonably withheld. Any assignment or transfer in violation of this
Section 16.0 shall be void.
17.0 Waiver.
No term or provision of this Agreement shall be deemed waived and no breach
shall be deemed excused, unless such waiver is in writing and signed by the
Party claimed to have waived.
18.0 Export.
Clientunderstands that the Products may be subject to the Export Administration
Regulations of the United States Department of Commerce and other United States
government regulations related to the export of technical data and equipment and
products produced therefrom. Client agrees to comply with all applicable export
and import control laws and regulations, including any future modifications
thereof, in connection with any export of Products, including to Affiliates.
Client agrees to defend and indemnify Xxxx from any breach of this Section by
Client or by any of its agents, officers, directors or employees.
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19.0 Excusable Delay.
Neither Xxxx nor Client shall be deemed to be in default of any provision of
this Agreement or for any failure in performance, resulting from acts or events
beyond the reasonable control of Xxxx or Client, as the case may be. For
purposes of this Agreement, such acts shall include, but not be limited to, acts
of God, civil or military authority, civil disturbance, war, strikes, fires,
other catastrophes, or other such major events beyond Xxxx'x or Client's
reasonable control. This Section 19.0 shall not delay or excuse Client's
payment obligations.
20.0 Governing Law and Dispute Resolution.
Any dispute, claim or controversy between the parties arising out of or relating
to this Agreement (excluding claims for injunctive relief or claims in equity)
shall be finally resolved by arbitration, in accordance with the Rules of
Arbitration and Conciliation of the International Chamber of Commerce, using a
single arbitrator selected in accordance with the applicable rules. The
arbitration shall be in the English language. The arbitrator shall assume the
powers of amiable compositeur. Arbitration fees and attorneys fees may be
allocated between the parties, at the arbitrator's discretion. The judgement
rendered by the arbitrator shall be final and binding on the parties and may be
entered in any court of competent jurisdiction.
21.0 Relationship
The relationship of Xxxx and Client under this Agreement will at all times
remain independent. Client is not an agent, franchisee, partner or joint
venture of Xxxx. Client is not authorized to enter into or execute any contract
on behalf of or otherwise obligate Xxxx in any matter.
22.0 Severance and Interpretation.
If any provision of this Agreement is found to be unenforceable, such provision
shall be deemed to be deleted or narrowly construed to such extent as is
necessary to make it enforceable and this Agreement shall otherwise remain in
full force and effect. If an ambiguity or question of intent arises, this
Agreement shall be construed as if drafted jointly by the Parties and no
presumption or burden of proof shall arise favoring or disfavoring either Party
by virtue of authorship of any of the provisions of this Agreement.
23.0 Time Limitation.
Except for actions for non-payment or for breach of Xxxx'x or its Third Parties'
Intellectual Property Rights, no action arising out of or relating to this
Agreement may be brought later than two (2) years after the cause of action
became known to the injured Party.
24.0 Notices.
All notices required or permitted under this Agreement and all requests for
approvals, consents, and waivers must be delivered by a method providing for
proof of delivery. A confirmed facsimile transmission shall be deemed to
provide proof of delivery. Any notice or request shall be deemed to have been
given on the date of delivery. Notices and requests must be delivered to the
Parties at the addresses on the first page of this Agreement until a different
address has been designated by notice to the other Party.
25.0 Non-Solicitation of Employees.
Neither Party shall directly solicit the services or employment of any employee
or agent of the other Party for a period beginning at the Effective Date and
ending twelve (12) months after the last date of initial delivery of any of the
Products as set forth in the Exhibits (as of the Effective Date).
26.0 Entire Agreement.
This Agreement and the Schedules and Exhibits listed below and referred to
herein, together with any addenda signed by the Parties (collectively, the
"Agreement"), constitute the entire agreement between Xxxx and Client with
respect to the Products, Support, and other subject matter of this Agreement,
and may only be modified by a written amendment or addendum signed by both Xxxx
and Client. No employee, agent, or other representative of either Xxxx or
Client has authority to bind the other with regard to any statement,
representation, warranty, or other expression unless it is specifically included
within the express terms of this Agreement or a written addendum signed by both
Xxxx and Client. All purchase orders, prior agreements, representations,
statements, proposals, negotiations, understandings, and undertakings with
respect to the subject matter of this Agreement are superseded by this
Agreement.
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For XXXX INTERACTIVE SERVICES, INC. For CLIENT: SWISSONLINE AG
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(Authorized Signature) (Authorized Signature)
Oskar Geisshuesler
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(Printed Name) (Printed Name)
CEO
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(Title) (Title)
February 23rd 2001
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(Date) (Date)
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(Authorized Signature)
Xxxxx Xxxxx
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(Printed Name)
Head of Business Unit Internet Services
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(Title)
February 23rd 2001
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(Date)
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SCHEDULES and EXHIBITS: Attached
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1. SCHEDULE A Product Sites and Information
Exhibit 1 License Fee and Other Charges
2. SCHEDULE B Maintenance and Support Agreement
3. SCHEDULE C Professional Services Agreement
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Schedule A
Product Sites and Information
Products: AccelX Product Suite, consisting of SiteBuilder 3.0 ("SiteBuilder"),
Request 1.0 ("Request") and Connect ( formerly referred to as "eMarketer") 2.0
("eMarketer).
Xxxx will provide a list of Product features and functionality within thirty
(30) days fo the execution of this agreement.
Number of Subscribers: Unlimited.
Number of Sites Unlimited
Location of Use: Switzerland.
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EXHIBIT 1
Pricing and Business Terms
On the Effective Date, Client shall pay Xxxx USD400,000 for the license to use
the Products with up to 5,000 Subscribers. A Subscriber shall count as one
Subscriber for each of the Products it uses. For example, one of Client's
customers who uses all three of SiteBuilder, Request and eMarketer, shall be
deemed to be three Subscribers for the purpose of this provision.
During the period from the Effective Date through December 31, 2002, for
Subscribers in excess of the 5,000 Subscribers, Client shall pay Xxxx USD 10.00
per month for each Subscriber using any one of SiteBuilder, Request or
eMarketer; USD 16.00 per month for each Subscriber using any two of SiteBuilder,
Request and eMarketer; and USD 20.00 per month for each Subscriber using all of
the three components of the AccelX Product Suite. Payments shall be made
monthly by the fifteenth (15th) day of the month following the month for which
the payment is being made. The Parties shall negotiate in good faith to
establish a per Subscriber fee for Subscribers in excess of the 5,000
Subscribers for periods after December 31, 2002. The foregoing fee schedule for
the Subscribers in excess of the 5,000 Subscribers shall remain as set forth
herein until the Parties have agreed to a new schedule.
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Schedule B
XXXX INTERACTIVE SERVICES
MAINTENANCE AND SUPPORT AGREEMENT
XxxxxXxxxxx XX, XX 0000 Xxxxxxxxxx/Xxxxxxxxxxx
THIS MAINTENANCE AND SUPPORT AGREEMENT ("Agreement") between XXXX Interactive
Services, Inc. ("XXXX"), a Colorado corporation with principal offices located
at 0000 Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 and "Client" identified in
the attached Master Software License Agreement (the "Master Agreement") dated as
of February ___, 2001 is effective as of February ___, 2001 ("Effective Date").
XXXX and Client are referred to collectively as the Parties").
Background
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WHEREAS, Client has licensed the certain Products from XXXX and Client
desires to have XXXX maintain and support the Products during the term of the
Master Agreement.
WHEREAS, XXXX is willing to offer maintenance and support for the Product
during the term of the Master Agreement, subject to the terms of this Agreement.
In consideration of the foregoing, the Parties agree as follows:
1.0 Definitions
Capitalized terms used but not defined in this Agreement shall have the meanings
ascribed to them in the Master Agreement.
1.2 "Response time" is the intended maximum time between the submission by
Client of a support incident and XXXX'x initial meaningful response to
Client.
1.3 "Initial or Call Back Response": An initial response consists of an
acknowledgement of the problem and /or request for more information to
complete analysis of the problem.
1.4 "Target Response": A target response consists of providing one of the
following items to Client:
A. An existing correction
B. A new correction
C. A viable detour or work around. A work around may consist of a
method, procedure or process as well as a modification to the
software code.
D. A request for more information to complete analysis of the problem
E. A plan on how the problem will be corrected.
1.5 "Closure / Resolution" will consist of providing a final correction or work
around of the problem including modifications to the software and where
appropriate and to the extent reasonably possible, revised or new
documentation. A resolution may also include instructions for the client to
make modifications to code on the client site.
Xxxx will work diligently to meet the times stated for Closure / Resolution
within this document but it will be understood those times may vary with the
complexity of an issue or problem that has been reported and will not be
considered a guaranteed service.
1.6 "Normal Business Hours" will be defined as 8:00 a.m. to 5:00 p.m. Central
European Time, , Monday through Friday with the exception of Holiday
Closures as defined herein.
B-1
1.7 "After Hours" support shall be provided at any time period outside of the
normal business hours described herein for severity 1 and 2 issues only.
1.8 "Holiday Closures," XXXX shall be closed on the following holidays in the
USA:
. New Years Day
. Memorial Day
. Independence Day
. Labor Day
. Thanksgiving
. Day After Thanksgiving
. Christmas Day
Specific dates for all holiday and any additional holiday related closures
will be listed in the Technical Support area of the XXXX corporate web
site, xxxx://xxx.xxxx.xxx. In the case of holidays that are not customary
in Central Europe (e.g. Independence Day, Thanksgiving, etc.), XXXX will
otherwise secure support in accordance with this Agreement.
2.0 XXXX'x Obligations
Subject to payment by Client of the Support Fee identified in Exhibit B-1, XXXX
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shall provide the following Maintenance and Support Services for the Products.
2.1 Problem reporting, tracking and monitoring and communications to Client by
electronic mail via the Internet;
2.2 Reasonable telephone support on business days (excluding Holiday Closures)
for problem determination, verification and resolution on a call-back basis
during the hours of 8 a.m. to 5 p.m. Central European Time,; and
2.3 Periodic software Modifications and Upgrades or new releases publicly
offered by XXXX.
2.4 Shall furnish the maintenance and technical support described within this
document, for the current release level of the Products and the previous
release level thereof for a period up to 6 months past its date of
discontinuation.
2.5 XXXX shall have the right to outsource its obligations under this Agreement
to a third party, provided that XXXX shall remain responsible for its
obligations under this Agreement that are performed by such third party.
2.6 Upon initiation of a Client problem report a XXXX Technical Support
Specialist will respond to the Client within the time specified in the
table below. The Technical support specialist will work with the Client to
define the severity level of the reported problem and to determine if the
problem reported is reproducible within a XXXX environment. The response
times reflected below are the maximum time it will take to respond to a
request for support of a reproducible problem. The support specialist will
keep the Client informed of the status of the problem report.
B-2
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Severity Description Initial Target Response Closure /
Level Response Resolution
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1 Client's production use of the software is stopped or so 1 hour 16 hours 7 days
severely impacted that the Client cannot reasonably
continue work. Client is willing and able to work with
XXXX to resolve the problem, continuously around the
clock if necessary.
No Client work around exists.
Examples:
. No access to the database.
. Inability to logon to the system.
. A software defect that is causing data corruption.
. Memory leaks or performance degradation which causes a
need for server restarts.
. System hangs indefinitely causing unacceptable or
indefinite delays.
. System crashes repeatedly after restart attempts.
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2 Important software features are unavailable. Client's 8 hours 24 hours 14 days
production use of the software is continuing, however,
there is a serious impact on the Client's productivity or
service levels.
No acceptable Client work around exists.
Examples:
. Unable to correct mistakes made while using the
software.
. Software partially or completely fails to update data
files.
. Mandatory fields allowing exit without requisite data.
. Loss of data while using the software.
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3 Less significant software features are unavailable or the 48 hours 15 days XXXX scheduled
software documentation is misleading. Client's work, update
regardless of the environment or product usage, has minor
loss of operational functionality or implementation
resources.
An acceptable Client work around exists.
Examples:
. Single product feature broken (i.e. navigation button
not working)
. Graphic image or display unclear or not aligned.
. Use of language and text unclear
---------------------------------------------------------------------------------------------------------------------------
4 Client requests information, an enhancement, or 3 days 30 days XXXX scheduled
documentation clarification regarding the software. update
Client is able to use of the software with no loss of
operational functionality.
Examples:
. Request for information
. Cosmetic changes
. Changes to documentation
---------------------------------------------------------------------------------------------------------------------------
B-3
2.7 Escalation Procedures
2.7.1 XXXX communicates escalations via telephone according to the applicable
product description and internal procedures established solely at the
discretion of and modifiable at any time with or without notice. If a
permanent repair cannot be made, a temporary resolution (bypass and
recovery or workaround) is implemented to the extent possible. Although
XXXX shall use its best efforts to meet the notification and resolution
times set forth herein, such times are targets and are not guaranteed.
2.7.2 In all cases, it is the intention of XXXX to notify Client and resolve
problems as quickly as is reasonably practical. In the event of multiple
problems or requests, Technical resources will be allocated in accordance
with the level of the problem or request as outlined herein.
2.7.3 Escalations should only be made after the response times described herein
have been exceeded. Only Severity level one (1) and two (2) problem
reports should be escalated.
2.7.4 Any escalation communicated and/or resolved by phone requires a written
confirmation by e-mail not later than one (1) Business Day after the
telephone conversation.
Business Hours - System Issue or Severity 1 and 2 Issues Only
-----------------------------------------------------------------------------------------
Escalation Level Contact Notes
-----------------------------------------------------------------------------------------
1 Xxxx Primary On-Call Contact/1/ 8:00 a.m. - 5:00 p.m.
Central European Time
-----------------------------------------------------------------------------------------
2 Xxxx Secondary On-Call Contact 8:00 a.m. - 5:00 p.m.
Central European Time
-----------------------------------------------------------------------------------------
3 Manager Technical Support
-----------------------------------------------------------------------------------------
4 Project Manager
-----------------------------------------------------------------------------------------
5 V. P. Professional Services
-----------------------------------------------------------------------------------------
After Hours - System Issue or Severity 1 and 2 Issues Only
-----------------------------------------------------------------------------------------
Escalation Level Contact Notes
-----------------------------------------------------------------------------------------
1 Xxxx Answering Service/2/ Primary On Call
-----------------------------------------------------------------------------------------
2 Xxxx Answering Service Secondary On Call
-----------------------------------------------------------------------------------------
3 Xxxx Answering Service Manager, Application
Hosting Services
-----------------------------------------------------------------------------------------
/1/ Escalation Levels 1 & 2 (Business Hours) can also be placed through the
Answering Service (303.231.6692).
/2/ In most cases, only one call needs to be placed to the Answering Service. If
necessary, they will contact Escalation Levels 2 & 3. The Answering Service is
expected to call the client back after 15 minutes has elapsed.
B-4
3.0 Client Obligations
3.1 Client agrees:
3.1.1 that the Designated Contact person(s) identified in Exhibit B-1 (or such
-----------
other replacement individual as Client may designate) shall be the sole contact
for the coordination and receipt of the Maintenance and Support Services set
forth in Section 2 of this Agreement, which person shall be knowledgeable and
---------
trained in the Products;
3.1.1 to maintain for the term of this Agreement, an electronic mail link-up
with XXXX via the Internet;
3.1.2 to provide reasonable supporting data to and aid in the identification of
reported problems;
3.1.3 to treat all periodic software Modifications delivered under this
Agreement in accordance with the terms of the Master Agreement between XXXX and
Client under which Client obtained rights to the Products.
4. Term and Termination
--------------------
4.1 For each Product covered by this Agreement, the Maintenance and Support
Services will begin on the Effective Date and will apply to such Product for an
initial term of fifteen (15) months unless an alternative period is agreed to in
writing. The initial term may be extended or renewed at Client's option for a
one-year increment. Client shall give XXXX at least 60 days written notice if,
during the initial term or any renewed period, Client decides not to renew
Maintenance and Support.
4.2 If either party is in default of its obligations hereunder and such default
continues for thirty (30) days following receipt of written notice from the
other party, the non-breaching party, in addition to any other remedies it may
have, may terminate this Agreement. In such case, the non-prevailing party will
pay the prevailing party all costs and expenses including reasonable attorneys'
fees incurred by the prevailing party in exercising any of its rights or
remedies.
4.3 This Agreement shall automatically terminate upon the termination of the
Master Agreement. If this Agreement is terminated pursuant to this Section 4.3,
the Parties will be obligated to comply with all post-termination obligations
under the Master Agreement and any outstanding Support Fees and other charges,
if any, shall become immediately due and payable.
5. Charges, Taxes and Payments
---------------------------
5.1 The Support Fee set forth on Exhibit B-1 is payable 90 days after the
-----------
execution of this Agreement or prior to the commencement of any additional one-
year extension term.
B-5
5.2 The charges specified in this Agreement are exclusive of all federal,
state, local and foreign taxes, levies and assessments. Client agrees to bear
and be responsible for the payment of all such taxes, levies and assessments
imposed on Client or XXXX arising out of this Agreement excluding any income tax
imposed on XXXX by a governmental entity.
5.3 Client agrees that XXXX will have the right to charge in accordance with
XXXX then current policies for any services resulting from Client's modification
of the Products or Client's failure to utilize the current release of the
Products provided by XXXX.
6. Warranty, Limitation of Liability and Indemnification
-----------------------------------------------------
6.1 EXCEPT AS STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES RESPECTING THIS MAINTENANCE AND SUPPORT AGREEMENT OR THE SERVICES
PROVIDED HEREUNDER (INCLUDING THE FIXING OF ERRORS THAT MAY BE CONTAINED IN THE
APPLICABLE SOFTWARE), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES SET FORTH
IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT
TO SUCH SERVICES WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED.
6.2 XXXX WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE IN
WHOLE OR IN PART TO ANY CAUSE BEYOND XXXX'X REASONABLE CONTROL. IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR OTHERS FOR (A) ANY SPECIAL,
INDIRECT, INCIDENT OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES RESULTING FROM LOSS
OF USE, DATA OR PROFITS OR (C) ANY CLAIM THAT AROSE MORE THAN ONE YEAR PRIOR TO
INSTITUTION OF SUIT THEREON, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL
THEORY. IN THE CASE OF ANY DAMAGE TO FILES, SOFTWARE OR HARDWARE CAUSED BY A
VIRUS IN ANY SOFTWARE AS ORIGINALLY DELIVERED TO CLIENT, XXXX SHALL, AT ITS
EXPENSE, DEFEND ANY SUIT OR CLAIM BROUGHT AGAINST CLIENT BASED ON SUCH DAMAGE
AND SHALL, SUBJECT TO THE TERMS OF THIS AGREEMENT, INDEMNIFY CLIENT AGAINST ANY
AWARD OF DAMAGES AND COSTS AGAINST CLIENT BY A FINAL COURT JUDGEMENT BASED ON
SUCH A CLAIM.
6.3 Client will hold XXXX and its directors, officers, employees,
representatives and agents, (collectively, "Xxxx Representatives") harmless
from, and defend and indemnify XXXX and Xxxx Representatives against, any and
all claims, losses, damages and expenses, including reasonable attorneys' fees,
arising from a third party claim against XXXX or Xxxx Representatives to
B-6
the extent that such third party claim is based on the negligence or willful
misconduct of Client or its agents or representatives.
6.4 XXXX will hold Client and its directors, officers, employees,
representatives and agents (collectively, "Client Representatives") harmless
from, and defend and indemnify Client and Client Representatives against, any
and all claims, losses, damages and expenses, including reasonable attorneys'
fees, arising from a third party claim against Client or Client Representatives
to the extent that such third party claim is based on: (a) the negligence or
willful misconduct of XXXX or its Xxxx Representatives or (b) claims of
infringement of Intellectual Property Rights against Client or Client
Representatives for the authorized use of the Products.
6.5 If a third party asserts a claim that is eligible for
indemnification under Sections 6.3 or 6.4: (a) the indemnified party will
promptly notify the indemnifying party of the suit or claim; (b) the indemnified
party will give the indemnifying party sole authority to defend or settle the
suit or claim, provided that the indemnifying party does not agree to a
settlement of the suit or claim unless the settlement is reasonably acceptable
to the indemnified party; (c) the indemnified party will provide to the
indemnifying party all information in its control concerning the suit or claim;
and (d) the indemnified party will reasonably cooperate with the defense of the
suit or claim. The indemnification obligations under Sections 6.3 and 6.4 are
subject to and conditioned upon compliance with this Section 6.5 by the
indemnified party.
7. General
-------
7.1 The waiver by either party of a breach of or a default under any provision
of this Agreement by the other party shall not be construed as a waiver of any
subsequent breach of the same or any other provision of this Agreement nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right or remedy it has or may have hereunder operate as a waiver of any
right or remedy by such party.
7.2 This Agreement contains the full understanding of the parties with respect
to the maintenance and support of the Products and supersedes all prior
understandings and writings relating thereto. No waiver, consent modification,
amendment or change of the terms of this Support Agreement shall be binding
unless in writing and signed by XXXX and Client. If the terms and conditions of
this Agreement are inconsistent with, or contrary to, the terms and conditions
of the Client License Agreement, the terms and conditions of the License
Agreement shall be controlling.
7.3 Any dispute, claim or controversy between the parties arising out of or
relating to this Agreement (excluding claims for injunctive relief or claims in
equity) shall be finally resolved by arbitration in accordance with the Rules of
Arbitration and Conciliation of the International Chamber of Commerce, using a
B-7
single arbitrator selected in accordance with the applicable rules. The
arbitration shall be in the English language. The arbitrator shall assume the
powers of amiable compositeur. Arbitration fees and attorneys fees may be
allocated between the parties, at the arbitrator's discretion. The judgement
rendered by the arbitrator shall be final and binding on the parties and may be
entered in any court of competent jurisdiction.
7.4 Any notice or other communication in connection with this Maintenance and
Support Agreement shall be furnished in writing and shall be effective upon
receipt.
7.5 Neither Client nor XXXX will be deemed to be in default of any provision of
this Agreement or for any failure in performance, resulting from acts or events
beyond the reasonable control of Client or XXXX, as the case may be including,
without limitation, acts of God, civil or military authority, civil disturbance,
war, strikes, fires, other catastrophes, telecommunication outages, equipment
malfunctions or other such major events beyond Client's or XXXX'x reasonable
control.
B-8
XXXX Interactive Services, Inc. Client: Swiss Online AG
By:___________________________ By:___________________________
Name:_________________________ Name:_________________________
Title:________________________ Title:________________________
Date:_________________________ Date:_________________________
B-9
EXHIBIT B-1
MAINTENANCE AND SUPPORT ATTACHMENT
Support Fee(s): The Client will pay XXXX the following Support Fee: USD 80,000,
--------------
irrespective of the number of Subscribers.
Commencement Date: _____________________.
-----------------
Client Designated Contacts:
Primary Contact:_________________________
Phone number:____________________________
E-Mail address:__________________________
Secondary Contact:_______________________
Phone number:____________________________
E-Mail address:__________________________
B-10
Schedule C
XXXX INTERACTIVE SERVICES INC.
PROFESSIONAL SERVICES AGREEMENT
XXXXXXXXXXX XX, XX-0000 XXXXXXXXXX/XXXXXXXXXXX
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") between XXXX Interactive
Services, Inc. ("XXXX"), a Colorado corporation with principal offices located
at 0000 Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 and "Client" identified in
the attached Master Software License Agreement (the "Master Agreement") dated as
of February ___, 2001, is effective as of February ___, 2001 ("Effective Date").
XXXX and Client are referred to collectively as the "Parties."
Background
----------
WHEREAS, Client has licensed certain Products from XXXX and Client desires
to have XXXX provide professional services related to the Products during the
term of the Master Agreement.
WHEREAS, XXXX is willing to offer professional services related to the
Products during the term of the Master Agreement, subject to the terms of this
Agreement.
Agreement
---------
In consideration of the foregoing, the Parties agree as follows:
1. Definitions. Capitalized terms used but not defined in this Agreement
-----------
shall have the meanings ascribed to them in the Master Agreement.
2. XXXX'x Obligations
------------------
2.1 XXXX shall perform for Client the professional services (the
"Services") specified in one or more Exhibits (in the form of Statement of Work
signed by both parties), each of which will be made a part of this Agreement.
In the event of a conflict between any term of this Agreement and an Exhibit,
the terms of the Exhibit shall prevail.
2.2 Changes within the scope of the Services shall be made only in a
writing executed by authorized representatives of both parties. XXXX shall have
no obligation to commence work in connection with any change until the fee
and/or schedule impact of the change is agreed upon by the parties in writing.
2.3 XXXX reserves the right to determine which of its personnel shall be
assigned to perform the Services, and to replace or reassign such personnel
during the term hereof; provided, however, that it will, subject to scheduling
and staffing considerations, attempt to honor Client's request for specific
individuals. During the design and adaptation period in the year 2001, Client
reserves the right to accept or refuse personnel assigned by XXXX, which
acceptance shall not be unreasonably withheld.
2.4 XXXX shall have the right to outsource its obligations under this
Agreement to a third party, provided that XXXX shall remain responsible for its
obligations under this Agreement that are performed by such third party.
3. Client Obligations
------------------
3.1 In connection with XXXX'x provision of the Services, Client shall
perform all tasks and assume all responsibilities not expressly described as the
Services and, in particular,
C-1
shall perform those tasks and assume those responsibilities specified in the
applicable Exhibit ("Client Responsibilities"). The Exhibit shall also contain
any assumptions related to the Services. Client understands that XXXX'x
performance is dependent on Client's timely and effective satisfaction of Client
Responsibilities hereunder and timely decisions and approvals by Client. XXXX
shall be entitled to rely on all decisions and approvals of the Client in
connection with the Services. Changes in decisions and approvals are subject to
the provisions of Section 2.2, above.
3.2 In addition to any particular items which may be specified in the
Exhibit, when required by XXXX, Client shall supply on-site XXXX personnel with
suitable office space, desks, storage, furniture, and other normal office
equipment support, including adequate telephone service, postage, copying,
typing, and general office supplies which may be necessary in connection with
XXXX'x performance of the Services.
4. Term and Termination
--------------------
4.1 Either party may at any time terminate this Agreement by giving thirty
(30) days' written notice of termination to the other party; provided that XXXX
may not terminate this Agreement pursuant to this Section 4.1 prior to the
completion of the items to be delivered by XXXX in accordance with Exhibit C-1
hereto. In the event of such termination, Client shall pay XXXX for all
Services rendered and expenses incurred by XXXX prior to the date of
termination.
4.2 If either party is in default of its obligations hereunder and such
default continues for thirty (30) days following receipt of written notice from
the other party, the non-breaching party may terminate this Agreement
immediately, in addition to any other remedies it may have. In such case, the
non-prevailing party will pay the prevailing party (as determined by a court or
in arbitration) all costs and expenses including reasonable attorneys' fees
incurred by the prevailing party in exercising any of its rights or remedies.
4.3 This Agreement shall automatically terminate upon the termination of
the Master Agreement. If this Agreement is terminated pursuant to this Section
4.3, the Parties will be obligated to comply with all post-termination
obligations under the Master Agreement and any outstanding fees and other
charges, if any, shall become immediately due and payable.
5. Charges, Taxes and Payments
---------------------------
5.1 Unless the Parties agree otherwise in writing, Client shall pay XXXX
for the Services as defined in the applicable Exhibit at mutually agreed rates
for professional services.
5.2 Unless the Parties agree otherwise in writing, Client shall pay the
amounts payable to XXXX hereunder within thirty (30) days of receipt of invoices
submitted by XXXX. Any invoice remaining unpaid for more than thirty (30) days
from receipt shall accrue interest at a rate of the lesser of one and one-half
(1.5%) percent per month or the highest rate allowed by law.
5.3 Unless provided otherwise in an Exhibit, XXXX shall be reimbursed by
Client for all reasonable expenses incurred by XXXX in the performance of the
Services, including, but not limited to, travel and lodging expenses,
communications charges and supplies.
5.4 The charges specified in this Agreement are exclusive of all federal,
state, local and foreign taxes, levies and assessments. Client agrees to bear
and be responsible for the payment of all such taxes, levies and assessments
imposed on Client or XXXX arising out of this Agreement excluding any income tax
imposed on XXXX by a governmental entity.
6. Confidential Information.
------------------------
C-2
6.1 "Confidential Information" means any trade secret or other information
or data of a proprietary or confidential nature belonging to either party,
including but not limited to: (a) technical or developmental information
(including associated documentation); (b) marketing or pricing information; (c)
business practices or relationships; (d) performance results or benchmark test
results of all or any portion of the Products; (e) designs, ideas, concepts,
inventions, technical know how, software programs, program flow charts, file
layouts, and all record bearing media containing or disclosing such information.
Confidential Information shall not include information of one party that: (i) is
or becomes lawfully available to the public through no act or omission of the
other party; (ii) is in the other party's lawful possession prior to the
disclosure and was not obtained by the other party either directly or indirectly
from the disclosing party; (iii) is lawfully disclosed to the other party by a
third party without restriction on disclosure or (iv) is independently developed
by the other party.
6.2 Neither party shall use or disclose to any person, either during the
term or after the termination of this Agreement, any Confidential Information
owned by the other party, except as expressly permitted pursuant to the terms of
this Agreement or as required in response to a valid order or requirement of a
court or other governmental body having competent jurisdiction provided,
however, that the party proposing to so disclose first gives prior written
notice of such proposed disclosure to the other party.
7. Non-Solicitation.
----------------
Neither party shall solicit for employment, whether directly or indirectly
through an associated or affiliated company or subsidiary or otherwise, employ,
engage or contract from the date of this Agreement or any Exhibit and for a
period of six (6) months thereafter, any person who the Party knows is or was
employed or contracted by the other party during the term of this Agreement. .
8. Proprietary Materials and Work Product.
--------------------------------------
8.1 The parties acknowledge and agree that all work product (the "Work")
developed in providing the Services or resulting from providing the Services
shall become and remain the exclusive property of XXXX. In addition to the
license granted to Client pursuant to the Master Agreement Client shall have a
non-exclusive royalty-free world-wide license to use the Work. Other than such
licenses, no right, title or interest in all or any portion of the Work, is
conveyed or assigned to Client either expressly or by implication by virtue of
this Agreement including any patents, copyrights, trade secrets, trademarks,
trade names or other intellectual property (collectively, the "Intellectual
Property Rights"). Upon written request by XXXX, Client shall properly execute
such assignments, bills of sale or other documents necessary to confirm, assign
or transfer in favor of XXXX, any Intellectual Property Rights in the Work
created, developed or discovered by Client, its employees or consultants in
assisting XXXX in the provision of the Services. XXXX shall not acquire any
Intellectual Property Rights in Client's trademarks, service marks or trade
dress.
8.2 Nothing in this Agreement shall preclude XXXX from developing for
itself, or for others, materials which are competitive with those produced as a
result of the Services provided hereunder, irrespective of their similarity to
items which may be delivered to Client pursuant to this Agreement.
9. Warranty, Limitation of Liability and Indemnification
-----------------------------------------------------
9.1 EXCEPT AS STATED IN THIS AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES RESPECTING THIS PROFESSIONAL SERVICES AGREEMENT OR THE SERVICES
PROVIDED HEREUNDER (INCLUDING THE FIXING OF ERRORS THAT MAY BE CONTAINED IN THE
APPLICABLE SOFTWARE), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
C-3
PURPOSE. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES WITH RESPECT TO SUCH SERVICES WHETHER ORAL OR WRITTEN,
EXPRESS OR IMPLIED.
9.2 XXXX WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMANCE DUE IN
WHOLE OR IN PART TO ANY CAUSE BEYOND XXXX'X REASONABLE CONTROL. IN NO EVENT
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR OTHERS FOR (A) ANY SPECIAL,
INDIRECT, INCIDENT OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES RESULTING FROM LOSS
OF USE, DATA OR PROFITS OR (C) ANY CLAIM THAT AROSE MORE THAN ONE YEAR PRIOR TO
INSTITUTION OF SUIT THEREON, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL
THEORY. IN THE CASE OF ANY DAMAGES TO FILES, SOFTWARE OR HARDWARE CAUSED BY A
VIRUS IN THE SOFTWARE ORIGINALLY DELIVERED TO CLIENT PURSUANT TO THIS AGREEMENT,
XXXX SHALL, AT ITS EXPENSE, DEFEND ANY SUIT OR CLAIM BROUGHT AGAINST CLIENT
BASED ON SUCH DAMAGE AND, SUBJECT TO THE TERMS OF THIS AGRTEEMENT, SHALL
INDEMNIFY CLIENT AGAINST ANY AWARD OF DAMAGES AND COSTS AGAINST CLIENT BY A
FINAL COURT JUDGEMENT BASED ON SUCH A CLAIM.
9.3 Client will hold XXXX and its directors, officers, employees,
representatives and agents, (collectively, "Xxxx Representatives") harmless
from, and defend and indemnify XXXX and Xxxx Representatives against, any and
all claims, losses, damages and expenses, including reasonable attorneys' fees,
arising from a third party claim against XXXX or Xxxx Representatives to the
extent that such third party claim is based on the negligence or willful
misconduct of Client or its agents or representatives.
9.4 XXXX will hold Client and its directors, officers, employees,
representatives and agents (collectively, "Client Representatives") harmless
from, and defend and indemnify Client and Client Representatives against, any
and all claims, losses, damages and expenses, including reasonable attorneys'
fees, arising from a third party claim against Client or Client Representatives
to the extent that such third party claim is based on: (a) the negligence or
willful misconduct of XXXX or Xxxx Representatives or (b) claims of infringement
of Intellectual Property Rights against Client or Client Representatives for the
authorized use of the Products and the Work.
9.5 If a third party asserts a claim that is eligible for indemnification
under Sections 9.2, 9.3 or 9.4: (a) the indemnified party will promptly notify
the indemnifying party of the suit or claim; (b) the indemnified party will give
the indemnifying party sole authority to defend or settle the suit or claim,
provided that the indemnifying party does not agree to a settlement of the suit
or claim unless the settlement is reasonably acceptable to the indemnified
party; (c) the indemnified party will provide to the indemnifying party all
information in its control concerning the suit or claim; and (d) the indemnified
party will reasonably cooperate with the defense of the suit or claim. The
indemnification obligations under Sections 9.3 and 9.4 are subject to and
conditioned upon compliance with this Section 9.5 by the indemnified party.
10. General
-------
10.1 In connection with this Agreement each party is an independent
contractor and as such will not have any authority to bind or commit the other.
Nothing herein shall be deemed or construed to create a joint venture,
partnership or agency relationship between the parties for any purpose.
10.2 The waiver by either party of a breach of or a default under any
provision of this Agreement by the other party shall not be construed as a
waiver of any subsequent breach of the same or any other provision of this
Agreement nor shall any delay or omission on the part of either party to
exercise or avail itself of any right or remedy it has or may have hereunder
operate as a waiver of any right or remedy by such party.
C-4
10.3 This Agreement and any Exhibits attached hereto contains the full
understanding of the parties with respect to the professional services related
to the Products and supersedes all prior understandings and writings relating
thereto. No waiver, consent modification, amendment or change of the terms of
this Agreement shall be binding unless in writing and signed by XXXX and Client.
If the terms and conditions of this Agreement are inconsistent with, or contrary
to, the terms and conditions of the Master Agreement, the terms and conditions
of the Master Agreement shall be controlling.
10.4 Any dispute, claim or controversy between the parties arising out of
or relating to this Agreement (excluding claims for injunctive relief or claims
in equity) shall be finally resolved by arbitration in accordance with the Rules
of Arbitration and Conciliation of the International Chamber of Commerce, using
a single arbitrator selected in accordance with the applicable rules. The
arbitration shall be in the English language. The arbitrator shall assume the
powers of amiable compositeur. Arbitration fees and attorneys fees may be
allocated between the parties at the arbitrator's discretion. The judgement
rendered by the arbitrator shall be final and binding on the parties and may be
entered in any court of competent jurisdiction.
10.5 Any notice or other communication in connection with this Agreement
shall be furnished in writing and shall be effective upon receipt.
10.6 Except for Client's payment obligations for professional services
already completed by XXXX, neither Client nor XXXX will be deemed to be in
default of any provision of this Agreement or for any failure in performance,
resulting from acts or events beyond the reasonable control of Client or XXXX,
as the case may be including, without limitation, acts of God, civil or military
authority, civil disturbance, war, strikes, fires, other catastrophes,
telecommunication outages, equipment malfunctions or other such major events
beyond Client's or XXXX'x reasonable control.
XXXX Interactive Services, Inc: Client: SwissOnline AG
By:____________________________ By:______________________________
Name:__________________________ Name: Oskar Geisshuesler
Title:_________________________ Title: CEO
Date:__________________________ Date: February, 23/rd/ 2001
By:______________________________
Name: Xxxxx Xxxxx
Title: Head of Business Unit IS
Date: February, 23/rd/ 2001
C-5
