Exhibit 10.12
[EXCHANGE LOGO]
VALUE-ADDED RESELLER AGREEMENT
Exchange Applications, Inc. CONFIDENTIAL p. 1 OF 29 BUSDOCS:810525.5 This
Agreement, made as of December 28, 1999 (the "Effective Date"), by and between
Exchange Applications, Inc., a Delaware corporation having a principal place of
business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Exchange"), and MICROSTRATEGY INCORPORATED, a Delaware corporation having a
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Value-Added Reseller" or "VAR").
WHEREAS, Exchange has developed ceratin commercial computer software products,
including VALEX(TM) Software and eXstatic(TM) Software;
WHEREAS, VAR has developed or will develop Value-Added Products as described in
Appendix B, including ▇▇▇▇▇▇▇▇.▇▇▇, which VAR markets or plans to market to end
users in the industry; and
WHEREAS, VAR desires to obtain a license to market the Licensed Software and
otherwise to act as a Value Added Reseller thereof, but only in conjunction with
its Value-Added Products.
NOW, THEREFORE, in consideration of the mutual promises and covenants of the
parties as hereinafter set forth, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms shall have the respective
meanings set forth below:
"Designated Computer Server" means the computer hardware and operating
system designated on the relevant Order Form for use in conjunction with a
Sublicense of VALEX Software or the V Developer License.
"Developer Licenses" means the licenses granted to VAR pursuant to the
terms of Section 2.1 of this Agreement.
"End User" means any third party to whom VAR sublicenses the Licensed
Software (a "Sublicense") pursuant to the terms of this Agreement, including,
but not limited to, the specification of the minimum provisions of the
Sublicense Agreements set forth in Section 2.3.
"Fees" means any and all fees payable by VAR to Exchange hereunder in
respect of the Developer Licenses, Reseller Licenses and Service Bureau License,
including, but not limited to, all license fees, maintenance fees, and
royalties.
"Licensed Software" means the VALEX Software and eXstatic Software
(each as more specifically described in Appendix A), in object code form, which
is owned or licensed by Exchange and for which VAR is granted a license pursuant
to this Agreement; the End User guides and manuals for use of that Software
("Documentation"); and any updates, modifications or enhancements thereto
furnished to VAR by Exchange ("Updates").
"Licenses" means the Demo License, VALEX Developer License, eXstatic
Developer License, Reseller Licenses and ASP License, collectively.
"MCIF" means the aggregate number of individual customer records, and
the aggregate number of prospect records, of an End User in the database
accessed by the VALEX Software, at the time of execution of a Sublicense for
VALEX Software.
"Order Form" shall mean a written document, consistent with the
provisions of Section 4.1 of this Agreement, by which VAR orders Licensed
Software for an End User.
"Proprietary Material" shall mean Licensed Software, including, but not
limited to, all related data and Documentation (and all know-how and technology
employed or utilized in such manuals and software), and any portion thereof in
any embodiment and any other information or data received by VAR from Exchange
and identified by Exchange as proprietary or confidential, in written, graphic
or machine-readable form, including, but not limited to, designs, concepts,
ideas, improvements, know-how and technology, provided that "Proprietary
Material" shall not include information and data which:
(i) is or becomes generally available in the public domain without
the fault of VAR;
(ii) is already known to VAR prior to disclosure hereunder without
an obligation of confidentiality to Exchange;
(iii) is independently developed by VAR where VAR establishes that
such development was accomplished without access to the
ProprietarY Material; or
(iv) is disclosed to VAR by a third party without restriction and
without breach of any separate confidentiality obligation owed
to Exchange.
"Reporting Quarter" means a three (3) consecutive calendar month
period: (i) December, January and February, (ii) March, April and May, (iii)
June, July and August or (iv) September, October, November.
"Strategy Affiliate" means any contractual affiliate of VAR's
▇▇▇▇▇▇▇▇.▇▇▇ network, and "Affiliate Subscribers" are a Strategy Affiliate's
customers who have subscribed to receive ▇▇▇▇▇▇▇▇.▇▇▇ network services from VAR.
"Update" means any subsequent release of the Licensed Software which is
made generally available at no additional charge (other than shipping) to other
licensees of the Licensed Software who have contracted to receive maintenance
support. Updates shall not include any releases, options or future products
which Exchange licenses separately from the Licensed Software.
"Value-Added Product" means VAR's software product or service which
provides value-added capabilities in connection with Licensed Software, and
which VAR develops and/or sublicenses with the Licensed Software as part of a
VAR System.
"VAR System" means an integrated software bundle comprised of both a
Value-Added Product and VALEX Software or eXstatic Software.
2. GRANT OF LICENSES.
2.1 Demonstration License. Exchange hereby grants to VAR, during the term
of the Agreement, a non-exclusive, non-transferable and royalty-free right and
license (the "Demo License") to operate the Licensed Software, but only in
conjunction with Value-Added Products, for the sole purpose of demonstrating the
VAR System in a non-production environment. VAR shall take all reasonable and
prudent precautions against unauthorized disclosure or copying of any Licensed
Software while demonstrating the VAR System (including, without limitation,
making the Licensed Software reasonably inaccessible during inactive
demonstration times, and deleting copies of the Licensed Software from the
potential customer's computers after completing the demonstrations at the
customer site).
2.2 Development Licenses.
a. Authorized Uses. Exchange hereby grants to VAR, for the term
of the Agreement, a non-exclusive and non-transferable right and license to use
one (1) copy of the (a) VALEX Software on a single Designated Computer Server
(the "VALEX Developer License") and (b) eXstatic Software (the "eXstatic
Developer License"), in each case, with the applicable Documentation, in a
non-production environment and solely for the purposes of:
(i) Developing, testing and integrating Value-Added Products with
Licensed Software in a VAR System.
(ii) Providing maintenance and technical support services to VAR's
employees and End Users in respect of the Licensed Software in
a VAR System.
b. Restrictions. VAR shall not be authorized under either
Developer License to, and VAR shall not, directly or indirectly: (i) encumber,
transfer, sublicense, rent, lease, time-share or use the Licensed Software in
any service bureau arrangement; or (ii) copy (except for archival purposes),
distribute, manufacture, adapt, create derivative works of, translate, localize,
port or otherwise modify any Licensed Software; or (iii) permit any third party
to engage in any of the acts proscribed in clauses (i) through (ii).
2.3 Reseller Licenses.
a. Sublicensing. Exchange hereby grants to VAR, for the term of
this Agreement, a non-exclusive, non-transferable right and license to market,
distribute and sublicense the (i) VALEX Software (the "V Reseller License") and
(ii) the eXstatic Software (the "X Reseller License"), in each case, together
with the applicable Documentation, only in combination with Value-Added Products
as part of a VAR System, on a non-exclusive and non-transferable basis.
b. Sublicense Agreements. Every Sublicense of the Licensed
Software by VAR to an End User shall be accomplished using a written Sublicense
agreement (the "Sublicense Agreement"), executed by and between VAR and the End
User, which agreement shall specify, at a minimum, that:
(i) In the case of a VALEX Software Sublicense, the server
component of the Licensed Software will be used only on a
single Designated Computer Server.
(ii) Licensed Software shall only be used: (A) in object code form;
(B) for the End User's own internal data processing purposes;
and (C) only in combination with Value-Added Products as part
of a VAR System.
(iii) End User will not (A) use the Licensed Software or
Documentation to create any software or documentation that is
similar to any of the Licensed Software or Documentation, (B)
decompile, disassemble, reverse compile, reverse assemble,
reverse translate or otherwise reverse engineer any Licensed
Software, or use any similar means to discover the source code
of the Licensed Software or to discover the trade secrets
therein, or otherwise circumvent any technological measure
that controls access to the Licensed Software; (C) encumber,
transfer, sublicense, rent, lease, time-share or use the
Licensed Software in any service bureau arrangement; or (D)
copy (except for archival purposes), distribute, manufacture,
adapt, create derivative works of, translate, localize, port
or otherwise modify any Licensed Software; or (E) permit any
third party to engage in any of the acts proscribed in clauses
(A) through (D).
(iv) End User shall not obtain any right, title and interest in or
to the Licensed Software, except as specifically authorized by
this Agreement.
(v) Exchange (and its third party licensors) shall have no
liability for any damages to End Users arising out of or in
connection with use or performance of the Licensed Software,
regardless of the form of any claim or action, or whether the
damages are direct, indirect, incidental, special, punitive or
consequential.
(vi) The warranty in respect of the Licensed Software, and VAR's
obligations to correct or replace any materially non-compliant
Licensed Software, are not in excess of the warranty and
disclaimers of warranty provided in this Agreement.
(vii) Upon any termination of the Sublicense, the End User will: (A)
discontinue use of the Licensed Software; (B) return the
Licensed Software, Documentation and all archival or other
copies thereof to VAR (or, at Exchange's sole option, destroy
all of the same); and (C) have an officer of End User certify
in writing that all such copies have been returned or
destroyed, as the case may be, and that all use thereof has
been discontinued.
(viii) End User shall not publish or otherwise disclose any results
of evaluations or benchmark tests of the Licensed Software,
except to Exchange.
(ix) End User shall comply in all material respects with all
relevant export control laws and regulations of the United
States and any applicable foreign jurisdictions to assure that
neither the Licensed Software and any direct, indirect or
derivative product thereof, are not exported, directly or
indirectly, in violation of United States law;
(x) Exchange is a third party beneficiary of the Sublicense
Agreement.
(xi) The Licensed Software shall be provided with "Restricted
Rights" to the U.S. Government or to any federal contractor.
Each Sublicense Agreement shall specifically state that the
Licensed Software was developed at private expense and is
licensed with Restricted Rights in accordance with DFARS
52.227.7013. (VAR will place an effective restricted rights
legend, in addition to applicable copyright notices, on any
media containing the Licensed Software or Documentation.)
(xii) The Sublicense Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, or of the United States of
America.
(xiii) Prohibit the use and disclosure of the Exchange's Proprietary
Materials in a manner consistent with the provisons of this
Agreement.
2.4 Service Bureau License.
a. Authorized Use. Exchange hereby grants to VAR, for the term of
this Agreement, a non-exclusive, non-transferable right and license (the
"Service Bureau License") to host on VAR's computer server and use one (1) copy
of the eXstatic Software for the purpose of operating an electronic mail,
marketing and messaging service bureau (also commonaly known as being an
application service provider, the "Service Bureau"), but such service shall only
be provided to and for the benefit of Strategy Affiliates and solely for the
purpose of marketing ▇▇▇▇▇▇▇▇.▇▇▇ services to Affiliate Subscribers. In
connection with operation of this Service Bureau, VAR shall not provide,
disclose or sublicense the Licensed Software to any Strategy Affiliate.
b. Restrictions. VAR shall not be authorized under the Service
Bureau License to, and VAR shall not, directly or indirectly: (i) encumber,
transfer, sublicense, rent, lease, time-share or use the Licensed Software in
any service bureau arrangement (except as expressly provided for in Section
2.4(a)); or (ii) copy (except for archival purposes), distribute, manufacture,
adapt, create derivative works of, translate, localize, port or otherwise modify
any Licensed Software; or (iii) permit any third party to engage in any of the
acts proscribed in clauses (i) through (ii).
c. Service Agreements. Provision of the service bureau services
by VAR to every Strategy Affiliate shall be accomplished using a written service
agreement (the "Service Bureau Agreement"), executed by and between VAR and the
Strategy Affiliate, which agreement shall specify, at a minimum, that:
(i) Strategy Affiliate shall not use or disclose the Licensed
Software, except in connection with receipt of services from
VAR.
(ii) Strategy Affiliate shall not, directly or indirectly: (A)
access the Licensed Software; (B) decompile, disassemble,
reverse compile, reverse assemble, reverse translate or
otherwise reverse engineer any Licensed Software, or use any
similar means to discover the source code of the Licensed
Software or to discover the trade secrets therein, or
otherwise circumvent any technological measure that controls
access to the Licensed Software; or (C) copy, distribute,
manufacture, adapt, create derivative works of, translate,
localize, port or otherwise modify any Licensed Software.
(iii) Strategy Affiliate shall not obtain any right, title and
interest in or to the Licensed Software.
(iv) Exchange (and its third party licensors) shall have no
liability for any damages to Strategy Affiliate arising out of
or in connection with use or performance of the Licensed
Software or VAR's services, regardless of the form of any
claim or action, or whether the damages are direct, indirect,
incidental, special, punitive or consequential.
(v) VAR's services shall not be warranted in any respect with
reference to the Licensed Software.
(vi) Upon any termination of the Service Bureau License, the
Strategy Affiliate shall no longer have any right to the
provision of services by VAR that depend or rely on, in any
mannter VAR's use of Licensed Software.
3. SERVICES.
3.1 Maintenance and Support Services.
a. Developer Licenses. In connection with the Developer Licenses,
Exchange shall provide maintenance and support services for the Licensed
Software in accordance with Appendix C. Such services will be provided to VAR on
an annual basis, commencing on the Effective Date, provided that maintenance and
support services for years after the first year will only be provided (and fees
will only be payable hereunder) if such services are requested by VAR. VAR shall
pay to Exchange the applicable maintenance Fees specified in Exhibit A, for each
of the VALEX Developer License and eXstatic Developer License, within thirty
(30) days of the first anniversary of the Effective Date and every anniversary
thereafter during the term of this Agreement for which maintenance and support
services are requested by VAR. VAR shall designate no more than one (1) System
Manager, and one (1) designated alternate in the event the System Manager is not
available, for receipt of maintenance and support services from Exchange.
b. Reseller Licenses. In connection with each Sublicense granted
pursuant to the Reseller Licenses, Exchange shall provide maintenance and
support services for the Licensed Software in accordance with Appendix D. Such
services will be provided directly to VAR (not to any End User) on an annual
basis, commencing on the effective date of each Sublicense. VAR shall pay to
Exchange the applicable Fees specified in Exhibit A within thirty (30) days of
the Sublicense effective date and within thirty (30) days of each anniversary
thereafter. VAR shall designate no more than one (1) System Manager, and one (1)
designated alternate in the event the System Manager is not available, for
receipt of maintenance and support services from Exchange.
c. Service Bureau License. In connection with the Service Bureau
License, Exchange shall provide maintenance and support services for the
Licensed Software in accordance with Appendix E. Such services will be provided
only to VAR (not to any Strategy Affiliate) on an annual basis, commencing on
the Effective Date, provided that maintenance and support services for years
after the first year will only be provided (and fees will only be payable
hereunder) if such services are requested by VAR. VAR shall pay to Exchange the
applicable Fees specified in Exhibit A within thirty (30) days of the Effective
Date and within thirty (30) days of each anniversary thereafter. VAR shall
designate no more than one (1) system manager, and one (1) designated alternate
in the event the System Manager is not available, for receipt of maintenance and
support services from Exchange.
d. Support for End Users and Strategy Affiliates. VAR is
responsible for providing complete support to End Users and Strategy Affiliates,
as the case may be, for its Value-Added Products, each VAR System and the
Service Bureau. VAR shall be responsible for providing first line support,
skilled instructors and technical assistance to End Users and Strategy
Affiliates. First line support shall include, but not be limited to, answering
questions about using the Licensed Software or service, ensuring that the
Licensed Software or service is used by End Users or Strategy Affiliates in
accordance with the Documentation, and determining the origin of problems.
Exchange shall provide to VAR one (1) copy of each Update, error correction, or
modification to the Licensed Software (in object code format), and to the
corresponding Documentation, if any. VAR shall be responsible for copying and
distributing Updates and other maintenance to End Users; provided, that (A) such
recipient End User has a valid Sublicense and maintenance agreement with VAR;
and (B) VAR has paid to Exchange all Sublicense and maintenance Fees due with
respect to the End User. In the event that Exchange performs maintenance
services with respect to the VAR System or Service Bureau that, pursuant to
Appendix D or Appendix E, as the case may be, should have been performed by VAR,
then VAR will reimburse Exchange for such services at Exchange's then current
rates. VAR will also reimburse Exchange for all actual and reasonable expenses
incurred in the performance of such services.
e. Remote Access. VAR shall install and maintain for the duration
of this Agreement, a 28.8K baud or higher modem and associated dial-up telephone
line. VAR shall pay for installation, maintenance and use of such equipment and
associated telephone line use charges. Exchange, with VAR's consent, may use
this modem and telephone line in connection with error diagnosis and correction.
f. Source Code Escrow. Promptly after the Effective Date,
Exchange shall cooperate with VAR in order that VAR shall become a preferred
beneficiary (at VAR's sole expense) and upon terms with respect to trigger
events to be mutually agreed under that certain Master Preferred Escrow
Agreement, effective as of 4 February 1997, by and between Exchange and Data
Securities International, Inc., upon and after which VAR shall have the rights
and obligations of a beneficiary in accordance with and subject to such escrow
agreement.
3.2 Training. Exchange will provide training services under the
Developer License, in accordance with the terms, if any, of this Agreement. For
any on site services requested by VAR, VAR shall reimburse Exchange for actual,
reasonable travel and out-of-pocket expenses incurred. VAR may participate in
additional training relative to the Licensed Software subject to Exchange's then
current policies and prices.
3.3 Professional Services. VAR may contract with Exchange for other
professional services which Exchange makes available. All such services will be
provided in accordance with the Master Agreement for Professional Services,
attached hereto as Exhibit C.
4. ORDERS; SHIPMENTS.
4.1 Orders. Upon the initial execution of each Sublicense Agreement (and any
later amendment for additional copies of the Licensed Software or to upgrade or
transfer the Licensed Software), VAR shall provide to Exchange an Order Form
consistent with the terms of this Agreement. Each Order Form shall contain at
least the following information:
a. End User's legal name, address, contact name and phone number.
b. Sublicense effective date.
c. Identification of Licensed Software components.
d. For VALEX Sublicenses, the MCIF, Designated Computer Server
and number of named users.
e. Sublicense royalty
f. Maintenance royalty
g. Installation date
4.2 Shipments. No order shall be binding upon Exchange until accepted by an
authorized representative or agent of Exchange at its principal place of
business, which acceptance shall not be unreasonably withheld. Within five (5)
business days after acceptance, Exchange will ship the ordered Licensed Software
to VAR, for VAR's subsequent distribution to the End User.
5. FEES; REPORTS; PAYMENTS.
5.1 Developer Licenses. Upon execution of this Agreement, VAR shall pay to
Exchange the license fees set forth for each of the VALEX Developer License and
eXstatic Developer License set forth in Exhibit A. VAR shall pay to Exchange the
annual maintenance fees specified in Exhibit A, for each of the VALEX Developer
License and eXstatic Developer License, within thirty (30) days of each
anniversary of the Effective Date during the term of this Agreement.
5.2 Reseller Licenses. Within thirty (30) days after execution of each
Sublicense Agreement, VAR shall pay to Exchange the applicable Sublicense
royalty and the first year's annual maintenance royalty set forth in Exhibit B.
Within thirty (30) days of every anniversary of the Sublicense effective date
during the term of this Agreement, VAR shall pay to Exchange the annual
maintenance royalty specified in Exhibit B. In the case of any eXstatic
Sublicense, VAR shall pay to Exchange monthly in arrears, the recurring
Sublicense royalty within thirty (30) days after the end of each calendar month,
based on the End User's actual email volume as set forth in Exhibit B. In the
event that an End User desires to upgrade VALEX Sublicense to a larger MCIF
capacity, or transfer the Licensed Software to another operating system, VAR
will pay transfer fee royalties to Exchange based on Exchange's transfer
policies and rates in effect at the time of reference thereto. All such transfer
fee royalties shall be due and payable within thirty (30) days of the effective
date of such transfer. Exchange reserves the right, from time to time and at any
time, to revise the published list price for any Licensed Software, which new
price shall become effective for the purposes of VAR's royalty payments
hereunder upon ninety (90) days prior written notice to VAR.
5.3 Service Bureau License. Within fifteen (15) days after the end of each
Reporting Quarter during the term of this Agreement, VAR shall report the number
of Strategy Affiliates designated by VAR for purposes of the Service Bureau
during such quarter, and pay to Exchange the applicable license fee and first
year's annual maintenance fee set forth in Exhibit B in respect of such new
Strategy Affiliates; provided, however, during the initial term of this
Agreement, VAR shall not be obligated to pay any license fees under this Section
5.3 in excess of eight million dollars ($8,000,000). At the time of such
quarterly payments, VAR shall pay the annual maintenance fee set forth in
Exhibit B in respect of each Strategy Affiliate, the anniversary of whose
designation by VAR occurred during such quarter.
5.4 Payments. All Fees are due and payable in US Dollars at Exchange's
address. All shipments by Exchange shall be FOB origin.
5.5 Taxes. All payments required by this Agreement are exclusive of
federal, state, local and foreign taxes, duties, tariffs, levies and similar
assessments and VAR agrees to bear and be responsible for the payment of all
such charges imposed upon the Licensed Software and Documentation used, copied
or distributed by VAR hereunder, excluding taxes based upon Exchange's net
income, corporate franchise, personal property or employee-related taxes.
5.6 Records and Audits. VAR shall maintain compete and accurate records
concerning all shipments of Licensed Software, Sublicense Agreements, Service
Bureau Agreements, and Fees payable to Exchange, including the number of
Strategy Affiliates. During the term of this Agreement and for five (5) years
after the year in which any payments are made to VAR hereunder, Exchange shall
have the right upon reasonable advance written notice, to have an independent
auditor verify VAR's marketing efforts, compliance with this Agreement and the
notices, reports and payments provided by VAR to Exchange. VAR shall make its
processors and all applicable books and records available for such inspection
during normal business hours at VAR's principal place of business, and Exchange
shall make all reasonable efforts not to disrupt VAR's business during the
audit. Any such audit shall be at the expense of Exchange, unless such audit
discloses an underpayment by the VAR for the audited period in excess of five
percent (5%), in which case VAR shall reimburse Exchange for such expenses. If
the audit discloses any underpayment by VAR, VAR shall promptly make payment to
Exchange of such underpayment, together with interest thereon at the rate of
1.5% per month or, if lesser, the maximum amount permitted by law. Exchange's
rights under this Section 5.6 shall survive any expiration or termination of
this Agreement.
6. RESPONSIBILITIES OF VAR. VAR represents that within two (2) months
after the Effective Date, it will have the personnel, knowledge and skill
necessary to market (a) the Licensed Software as part of VAR Systems, (b) the
Service Bureau. VAR agrees that it shall, at its sole expense:
a. Provide installation support as well as reasonable training of
End Users and Strategy Affiliates in the day to day use and
application of the VAR System and Service Bureau,
respectively.
b. Operate a maintenance and support service to provide End Users
and Strategy Affiliates with answers to questions and other
assistance in using the VAR System or Service Bureau.
c. Serve as the sole point of contact with End Users and Strategy
Affiliates to respond to requests for maintenance services,
and to process claims for correction or replacement of any
portions of the Licensed Software incorporated in the VAR
System to the extent that such claim may involve Exchange's
warranty obligations under this Agreement.
d. Keep complete and accurate records of warranty claims and
requests for maintenance services or other assistance and of
actions taken in response thereto, and promptly make available
all such records to Exchange upon request.
e. Use commercially reasonable efforts to promote, advertise and
market the VAR Systems and Service Bureau.
f. Refrain from deceptive, misleading, illegal, or unethical
practices that may be detrimental to Exchange or Licensed
Software.
g. Not make any representations, warranties or guarantees to End
Users or Strategy Affiliates concerning the Licensed Software
that are inconsistent with or in addition to those made in
this Agreement.
h. Comply with all applicable federal, state, and local laws and
regulations in performing its duties with respect to the
Licensed Software and the Service Bureau.
i. Ensure that Value-Added Products comprise a significant
portion of every VAR System.
j. Establish its own pricing for the VAR System and Service
Bureau services, and acknowledge that Exchange is free to
establish its own prices for the Licensed Software.
k. Indemnify Exchange and hold it harmless from any loss, claim
or damage to any person arising out of VAR's unauthorized use
of the Licensed Software; provided, that (i) Exchange shall
have promptly provided VAR written notice thereof and
reasonable cooperation, information, and assistance (at VAR's
expense) in connection therewith, and (ii) VAR shall have sole
control and authority with respect to the defense, settlement,
or compromise thereof. Any failure by Exchange to promptly
notify VAR of a claim for which indemnification is sought
under this Section 6(k), or to cooperate in such claim, shall
only relieve VAR of its indemnity obligations hereunder to the
extent that it is prejudiced by such delay or failure to
cooperate.
7. TRADEMARKS
7.1 Use of Marks. VAR shall use the Exchange's trademarks (including, but
not limited to, "VALEX(TM)" and "eXstatic(TM)"), service marks, the Exchange
design and logo, and the trade name "Exchange" (collectively, the "Marks") in
connection with the marketing of the Licensed Software, VAR Systems and Service
Bureau in accordance with the terms of this Agreement. Any use of the Marks by
VAR shall remain the sole property of Exchange and shall inure to the benefit of
Exchange. All right, titel and interest in and to the Marks adopted by Exchange
to identify the Licensed Software and other Exchange products and services
remain with Exchange, and VAR will have no rights in such Marks except as
expressly set forth herein. VAR's use of the Marks shall be under Exchange's
trademark policies and procedures then in effect.
7.2 No Confusion. VAR agrees not to use the trademark "Exchange", "VALEX"
or "eXstatic" or any ▇▇▇▇ beginning with the letters "EXC", B+"Val", or "Exc" or
any other ▇▇▇▇ likely to cause confusion with the trademark "Exchange", as any
part of VAR's trade name, trademark for any Value-Added Product or other product
of VAR. VAR shall have the right to use the Marks solely to refer to Exchange's
products and services. VAR shall not market the Licensed Software in any way
which could reasonably be deemed to imply that the Licensed Software is the
proprietary product of VAR or of any party other than Exchange.
7.3 Notices. With respect to Exchange's registered trademarks, VAR shall
include in each advertisement, brochure, or other such use, the trademark symbol
"(R)" and the following statement:
__________(R) is a registered trademark of Exchange Applications Inc.,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Unless notified otherwise in writing by Exchange, with respect to Exchange's
other trademarks, VAR shall include in each advertisement, brochure, or other
such use, the symbol "TM" and the applicable statement:
VALEX(TM)is a trademark of Exchange Applications, Inc., ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ eXstatic(TM)is a trademark of Exchange
Applications, Inc., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ __________(TM)is a
trademark of Exchange Applications, Inc., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
8. WARRANTY; WARRANTY DISCLAIMERS; LIMITAITON OF LIABILITY.
8.1 Licensed Software Warranty. Exchange warrants to VAR (and not to any
End User or Strategy Affiliate) that, during the first ninety (90) days
following the delivery (in respect of the Developer Licenses, the Service Bureau
License, and each Sublicense granted under the Reseller Licenses) of the
Licensed Software (the "Warranty Period"), the Licensed Software will conform in
all material respects to the specifications contained in the Documentation.
Exchange's sole responsibility under this warranty shall be to correct or
replace that portion of the Licensed Software which fails to conform to said
warranty; provided, that VAR has reported in writing to Exchange any defect or
error claimed to be a breach of warranty within the Warranty Period. If Exchange
is unable to correct or replace the nonconforming Licensed Software within
thirty (30) days of written notification to Exchange during the 90-day warranty
period, Exchange shall reimburse VAR for the amount of license fees paid for the
nonconforming Licensed Software, and the license for that nonconforming Licensed
Software shall be immediately terminated.
8.2 Exclusions. Exchange will have no liability under the foregoing
warranty if (i) the Licensed Software is modified by any party other than
Exchange or without Exchange's prior written consent, (ii) VAR fails to give
Exchange written notice of the claimed breach of warranty within the Warranty
Period, (iii) the failure to conform is caused in whole or part by persons other
than Exchange, or by products, equipment, databases, inputs or computer programs
not furnished by Exchange (including, but not limited to, any Value-Added
Products or any other VAR System or Service Bureau component); (iv) the Licensed
Software is used other than in accordance with the terms of this Agreement or
exposed to environmental or operating conditions beyond those specified in
writing by Exchange; or (v) the Licensed Software is damaged, altered or
affected in any material respect by accident, neglect, misuse or other abuse
other than by Exchange's employees or agents. All Documentation and Updates are
provided without warranty, on an "AS IS" basis. Exchange does not represent or
warrant that all errors can, or will be, corrected.
8.3 No Warranty for Services. EXCHANGE MAKES NO WARRANTY OF ANY KIND,
WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MAINTENANCE,
SUPPORT OR OTHER SERVICE PROVIDED HEREUNDER (INCLUDING THE FIXING OF ERRORS THAT
MAY BE CONTAINED IN THE LICENSED SOFTWARE).
8.4 Warranty Disclaimers. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION
8, THE LICENSED SOFTWARE IS NOT ERROR-FREE AND IS BEING PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND. EXCHANGE HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED SOFTWARE
INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL
WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. EXCHANGE'S
EXPRESS WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO
OBLIGATION OR LIABILITY SHALL ARISE OUT OF, EXCHANGE'S RENDERING OF TECHNICAL OR
OTHER ADVICE OR SERVICE IN CONNECTION WITH LICENSED SOFTWARE. ALL THIRD PARTY
LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE USE OF
THEIR MATERIALS IN CONNECTION WITH THE LICENSED SOFTWARE, INCLUDING (WITHOUT
LIMITATION) ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8.5 VAR Responsibilities. VAR shall make no representation or warranty
concerning the quality, performance or other characteristics of the Licensed
Software, or Exchange's obligations with respect thereto, other than those which
are consistent in all respects with, and do not expand the scope of, the
warranties set forth herein.
8.6 Limitation of Liability. EXCEPT FOR (i) EITHER PARTY'S OBLIGATIONS IN
RESPECT OF THIRD PARTY CLAIMS UNDER SECTION 9 (INFRINGEMENT INDEMNITIES) AND
(ii) EITHER PARTY'S BREACH OF ITS OBLIGATIONS UNDER SECTION 10 (PROTECTION OF
PROPRIETARY RIGHTS), IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY FOR
ALL DAMAGES TO THE OTHER PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM
OF ANY CLAIM OR ACTION, EXCEED THE License FEES OR SUBLICENSE ROYALTIES (A) IN
THE CASE OF EXCHANGE, PAID BY VAR OR (B) IN THE CASE OF VAR, THAT SHOULD HAVE
BEEN PAID BY VAR, FOR THE COPY OF THE LICENSED SOFTWARE THAT GAVE RISE TO THE
CLAIM. EXCEPT FOR (III) EITHER PARTY'S OBLIGATIONS IN RESPECT OF THIRD PARTY
CLAIMS UNDER SECTION 9 (INFRINGEMENT INDEMNITIES) AND (iV) EITHER PARTY'S BREACH
OF ITS OBLIGATIONS UNDER SECTION 10 (PROTECTION OF PROPRIETARY RIGHTS), IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF DATA,
BUSINESS, PROFITS OR USE OF THE LICENSED SOFTWARE, OR FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THE USE OR PERFORMANCE OF THE LICENSED SOFTWARE OR OTHERWISE
UNDER THIS AGREEMENT, WITHOUT REGARD TO WHETHER SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL
OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE
OF ANY REMEDY PROVIDED HEREIN.
9. INFRINGEMENT INDEMNITIES.
9.1 Exchange's Indemnity.
a. Indemnity. Except as provided below, Exchange shall defend
and indemnify VAR from and against any damages, liabilities, costs and expenses
(including reasonable attorneys' fees) finally awarded against VAR and arising
out of any claim that the Licensed Software infringes a valid United States
patent or copyright or misappropriates a trade secret of a third party;
provided, that (i) VAR shall have promptly provided Exchange written notice
thereof and reasonable cooperation, information, and assistance (at Exchange's
expense) in connection therewith, and (ii) Exchange shall have sole control and
authority with respect to the defense, settlement, or compromise thereof. If any
Licensed Software becomes or, in Exchange's opinion, is likely to become the
subject of any injunction preventing its use as contemplated herein, Exchange
may, at its option, (1) procure for the VAR (and End Users and Strategy
Affiliates) the right to continue using such Licensed Software, (2) replace or
modify such Licensed Software so that it becomes non-infringing without
substantially compromising its functionality, or, if (1) and (2) are not
reasonably available to Exchange, then (3) terminate VAR's Licenses and the
Sublicenses in respect of the allegedly infringing Licensed Software and pay to
VAR an amount not to exceed the depreciated value of the Licensed Software equal
to the license Fee paid by VAR for such Licensed Software depreciated on a
straight line basis over a three and one-half (3 1/2) year period. Exchange
shall have no obligation for any costs incurred by Licensee without Exchanges's
prior written authorization.
b. Exclusions. Exchange shall have no liability or obligation to
VAR hereunder with respect to any patent, copyright or trade secret infringement
claim based upon (i) use of the Licensed Software in an application or
environment or on a platform or with devices for which the Licensed Software was
not designed or contemplated, (ii) modifications, alterations, combinations or
enhancements of the Licensed Software not created or authorized by Exchange or
its authorized contractors or agents, (iii) use of a superseded version of the
Licensed Software if the infringement would have been avoided by using an Update
that Exchange provided to VAR; or (iv) any patent, copyright or trade secret in
which VAR (or any of its affiliates), or any End User or Strategy Affiliate, has
an interest. In accordance with Section 9.2, VAR shall indemnify and hold
Exchange harmless from all costs, damages and expenses (including reasonable
attorneys' fees) arising from any claim enumerated in clauses (i) through (iv)
above.
c. Entire Liability. The foregoing states the entire liability of
Exchange, and the sole and exclusive remedy of VAR, with respect to any claim of
infringement of patents, copyrights and trade secrets by the Licensed Software,
or any part thereof, or by its operation.
9.2 VAR's Indemnity.
a. Indemnity. VAR shall defend and indemnify Exchange from and
against any damages, liabilities, costs and expenses (including reasonable
attorneys' fees) arising out of any claim that any software, product or service
(including, but not limited to, any Value-Added Product) provided in connection
with any VAR System or the Service Bureau infringes a valid United States patent
or copyright or misappropriates a trade secret of a third party; provided, that
(i) Exchange shall have promptly provided VAR written notice thereof and
reasonable cooperation, information, and assistance (at VAR's expense) in
connection therewith, and (ii) VAR shall have sole control and authority with
respect to the defense, settlement, or compromise thereof.
b. Entire Liability. The foregoing states the entire liability of
VAR, and the sole and exclusive remedy of Exchange, with respect to any claim of
infringement of patents, copyrights and trade secrets by VAR's software,
products and services, or any part thereof, or by their operation.
9.3 Prompt Notice. The party seeking indemnification under this Section 9
will immediately inform the indemnifying party as soon as it becomes aware of
any threatened or actual liability claim by a third party. Any failure by the
party seeking indemnification under this Section 9 to promptly notify the
indemnifying party of a claim for which indemnification is sought, or to
cooperate in such claim, shall only relieve the indemnifying party of its
indemnity obligations hereunder to the extent that it is prejudiced by such
delay or failure to cooperate.
10. PROTECTION OF PROPRIETARY RIGHTS.
10. Definition. "Proprietary Materials" shall mean, with respect to
Exchange, all Licensed Software, Updates and enhancements, modifications and
translations thereof , with respect to VAR, all Value-Added Products, and with
repsect to both parties, any other information or data disclosed by either party
to the other, in written, graphic or machine readable form which by its nature
or type should reasonably be considered proprietary or confidential or which the
disclosing party labels as being proprietary or confidential. Each party
acknowledges that the other's Proprietary Materials are confidential and
constitute valuable assets of the discolosing party (or its third party
licensors). Proprietary Material does not include:
(i) Information which is or becomes available in the public domain
other than through disclosure by the receiving party (the
"Recipient") in breach of this Agreement);
(ii) Information disclosed or made available at any time to the
Recipient by a third party without breach of any relationship
of confidentiality to the disclosing party (the "Discloser");
(iii) Information independently developed by the Recipient without
use of the Proprietary Material of the Discloser;
(iv) Information which was already known to the Recipient, without
an obligation of confidentiality to the Discloser, at the time
of disclosure hereunder.
10.2 Confidentiality. Except for the specific rights granted by this
Agreement, Recipient shall not use, copy or disclose any Proprietary Material
without the written consent of the Discloser. Recipient shall hold all
Proprietary Materials in confidence, and use the highest commercially reasonable
degree of care to protect the Proprietary Materials, including at a minimum,
those precautions Recipient employs to protect its own confidential information,
but not less than a reasonable degree of care. Recipient shall not disclose the
Proprietary Materials except to its employees that have a need to know in
connection with Recipient's authorized uses under this Agreement and who have
agreed in writing not to disclose the Proprietary Materials. Recipient shall
bear the responsibility for any breaches of confidentiality by its employees.
Within ten (10) days after Discloser's request, and in its sole discretion,
Recipient shall either return to Discloser all originals and copies of any
Proprietary Materials and all information, records and materials developed
therefrom by Recipient, or destroy the same, other than such Proprietary
Materials as to which this Agreement expressly provides a continuing right to
Recipient to retain at the time of the request.
10.3 Proprietary Rights. Discloser (or its third party licensors) shall
retain all rights, title and interest in the Proprietary Materials, and
Recipient shall not take any action inconsistent with such title and ownership.
VAR, End Users and Strategy Affiliates shall not acquire any rights in
Exchange's Proprietary Materials, and Exchange shall not acquire any rights in
VAR's Proprietary Materials, except as express in this Agreement. VAR will keep
records of the number and location of all copies of Proprietary Materials and
make such records available to Exchange. Recipient shall not remove any
copyright or legal notices or proprietary rights notice included in any
Proprietary Material and shall reproduce all such notices on any copies of
Proprietary Material.
10.4 No Reverse Engineering. VAR shall not: (i) use any Licensed Software or
Documentation to create any software or documentation that is similar to or
competitive with any of the Licensed Software or Documentation; (ii) decompile,
disassemble, reverse compile, reverse assemble, reverse translate or otherwise
reverse engineer any Licensed Software, or use any similar means to discover the
source code of the Licensed Software or to discover the trade secrets therein,
or otherwise circumvent any technological measure that controls access to the
Licensed Software; or (iii) permit any third party to engage in any of the acts
proscribed in clauses (i) through (ii).
10.5 Notice. Recipient shall notify Discloser promptly of any unauthorized
possession, disclosure, or use of Proprietary Material or, in the case of VAR,
any violation of the confidentiality provisions included in any Sublicense
Agreement or Service Bureau Agreement of which VAR is aware. Recipient will take
such actions as Discloser may reasonably request (including instituting
appropriate legal proceedings) to enforce the confidentiality provisions of such
agreements and to prevent or remedy any further unauthorized possession,
disclosure or use of Proprietary Materials.
10.6 Remedies. Money damages will not be an adequate remedy if this Section
10 is breached and, therefore, Discloser shall, in addition to any other legal
or equitable remedies, be entitled to seek an injunction or similar equitable
relief against such breach or threatened breach without the necessity of posting
any bond.
11. TERM; TERMINATION
11.1 Term. This Agreement shall commence on the Effective Date and continue
for a period of three and one-half (3 1/2) years thereafter. This Agreement may
be renewed for an additional term of equal duration, upon the mutual written
consent of the parties.
11.2 Termination. Notwithstanding the foregoing, this Agreement may be
terminated:
a. Material Breach. By either party, in the event the other party
materially breaches a provision of this Agreement and the breaching party fails
to cure such breach within thirty (30) days of the receipt of notice of such
breach from the non-breaching party.
b. Bankruptcy. By either party, immediately in the event any assignment
is made by the other party for the benefit of creditors, the party admits in
writing its inability to pay debts as they come due, or if a receiver, trustee
in bankruptcy or similar officer shall be appointed to take charge of any or all
of the other party's property, or if the other party files a voluntary petition
under federal bankruptcy laws or similar state statutes or such a petition is
filed against the other party and is not dismissed within sixty (60) days.
11.3 Effects of Termination. Upon termination of this Agreement for any
reason, all rights, obligations and licenses of the parties hereunder shall
cease, except for the following obligations:
a. Payments. VAR's liability for any Fee, charges, payments or expenses
due to Exchange that accrued prior to the termination date shall not be
extinguished by termination, and such amounts (if not otherwise due on an
earlier date) shall be immediately due and payable on the termination date.
b. Termination of Licenses. VAR shall have no further right to copy or
use any Licensed Software (except to fulfill Sublicense orders outstanding as of
the termination date) and immediately after the termination or expiration date
hereof, VAR shall deliver to Exchange, at VAR's expense, all originals and
copies of the (i) Licensed Software, (ii) Documentation, (iii) other Proprietary
Materials in the possession or under the control of VAR and (iv) render unusable
all intangible data and information. VAR shall certify in writing to Exchange
within ten (10) days following termination that it has complied with this
Section 11.3.b.
c. Survival. The provisions of Sections 5.5 (Taxes), 5.6 (Records and
Audits), 8 (Warranty; Warranty Disclaimers; Limitation of Liability), 9
(Infringement Indemnities), 10 (Protection of Proprietary Materials), 12
(Nondisclosure), 13 (Compliance with Laws), 14 (General) and this Section 11
shall survive any termination or expiration of this Agreement.
11.4 Sublicenses. Notwithstanding any of the foregoing, any expiration
or termination of this Agreement shall not have an impact on those Sublicense
Agreements issued under this Agreement, and all terms and conditions of such
Sublicense Agreements shall continue in full force and effect.
12. NONDISCLOSURE. Without first obtaining the written consent of the other
party, neither party shall disclose the terms and conditions of this Agreement,
except as may be required to implement and enforce the terms of this Agreement,
or as may be required by legal procedures or by law. No other information
exchanged between the parties shall be deemed confidential unless the parties
otherwise agree in writing. VAR shall not disclose the results of benchmark
tests or the statistical performance results of any other evaluation of the
Licensed Software to any third party without Exchange's prior written approval.
13. Compliance with Laws.
13.1 Export. VAR shall not export or re-export, directly or indirectly
(including via remote access), Licensed Software, Documentation or other
information or materials provided by Exchange hereunder, to any country for
which the United States or any other relevant jurisdiction requires any export
license or other governmental approval at the time of export without first
obtaining such license or approval. It shall be VAR's responsibility to comply
with the latest United States export regulations, and VAR shall defend and
indemnify Exchange from and against any damages, fines, penalties, assessments,
liabilities, costs and expenses (including reasonable attorneys' fees and court
costs) arising out of any claim that Licensed Software, Documentation, or other
information or materials provided by Exchange hereunder were exported or
otherwise accessed, shipped or transported in violation of applicable laws and
regulations.
13.2 Compliance with Laws of Other Jurisdictions. VAR shall comply in all
material respects with all laws, legislation, rules, regulations, and
governmental requirements with respect to the Licensed Software, and the
performance by VAR of its obligations hereunder, of any jurisdiction in or from
which VAR directly or indirectly causes the Licensed Software to be used or
accessed. In the event that this Agreement is required to be registered with any
governmental authority, VAR shall cause such registration to be made and shall
bear any expense or tax payable in respect thereof.
14. GENERAL
14.1 Force Majeure. In the event that either party is prevented from
performing, or is unable to perform, any of its obligations under this Agreement
due to any cause beyond the reasonable control of the party invoking this
provision, the affected party's performance shall be extended for the period of
delay or inability to perform due to such occurrence.
14.2 Waiver. The waiver by either party of a breach or a default of any
provision of this Agreement by the other party shall not be construed as a
waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail itself of
any right, power or privilege that it has, or may have hereunder, operate as a
waiver of any right, power or privilege by such party. No remedy referred to in
this Agreement is intended to be exclusive, but each shall be cumulative and in
addition to any other remedy referred to herein or otherwise available at law or
in equity.
14.3 No Agency; Independent Contractors. Nothing contained in this Agreement
shall be deemed to constitute either party as the agent or representative of the
other party, or both parties as joint venturers or partners for any purpose. VAR
shall have no authority to vary, alter or enlarge any of Exchange's obligations
hereunder or to make representations, warranties or guarantees on behalf of
Exchange. VAR shall make all agreements with End Users and Strategy Affiliates
in its own name and for its own account and risk, and shall establish its own
prices.
14.4 Governing Law; Jurisdiction & Venue. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, USA,
without regard to its choice of law provisions. In the event of any conflict
between foreign laws, rules and regulations and those of the United States, the
laws, rules and regulations of the United States shall govern. The United
Nations Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement.
14.5 Entire Agreement; Amendment. This Agreement and the Appendices and
Exhibits attached hereto constitute the entire agreement between the parties
with regard to the subject matter hereof. No representation, promise, inducement
or statement of intention has been made by either party which is not set forth
in this Agreement and neither shall be bound by or liable for any alleged
representation, promise, inducement or statement of intention not so set forth.
No waiver, consent, modification or change of terms of this Agreement shall bind
either party unless in writing signed by both parties, and then such waiver,
consent, modification or change shall be effective only in the specific instance
and for the specific purpose given. Terms set forth in any purchase order of VAR
(or other similar document) that are in addition to or at variance with the
terms of this Agreement are specifically waived by VAR. All such terms are
considered by Exchange to be proposed material alterations of this Agreement and
are rejected. VAR's purchase order is only effective as VAR's unqualified
commitment to pay for a license to the Licensed Software upon the terms (and
only the terms) set forth herein.
14.6 Costs, Expenses and Attorneys' Fees. VAR shall reimburse Exchange for
all reasonable costs (including attorneys' fees) incurred by Exchange in
collecting late payments from VAR. If either party commences any action or
proceeding against the other party to enforce or interpret this Agreement, the
prevailing party in such action or proceeding shall be entitled to recover from
the other party the actual costs, expenses and attorneys' fees (including all
related costs and expenses), incurred by such prevailing party in connection
with such action or proceeding and in connection with obtaining and enforcing
any judgment or order thereby obtained.
14.7 Assignment. This Agreement, the Licenses and all of the other rights
and obligations hereunder, may not be assigned, in whole or in part by VAR,
without the prior written consent of Exchange. Any attempt by VAR to do so
without such consent shall be null and void ab initio. In the case of any
permitted assignment or transfer of or under this Agreement, this Agreement or
the relevant provisions shall be binding upon, and inure to the benefit of, the
successors, executors, heirs, representatives, administrators and assigns of the
parties hereto.
14.8 Notices. Any notice or communication from one party to the other shall
be in writing and either personally delivered or sent certified mail, postage
prepaid, return receipt requested, addressed to such other party at the address
specified in the first paragraph of this Agreement, or at such other address as
such party may from time to time designate in a notice to the other party. All
notices shall be in English and shall be effective upon receipt.
14.9 Non Solicitation. For the term of this Agreement and for a period of
twelve months after any expiration or termination of this Agreement, the parties
hereto do agree and affirm to refrain from any and all attempts to solicit or
recruit the employees of the other without the prior written approval of the
party whose employee is being considered for employment. This shall in no way,
however, be construed to restrict, limit or encumber the rights of any employee
granted by law.
14.10 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. In making proof of this Agreement, it
shall not be necessary to produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives as of the date
first written above.
Exchange Applications, Inc. MicroStrategy Incorporated
By: [illegible] By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------- --------------------------------
Name:______________________________ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title:_____________________________ Title: COO
-----------------------------
Date:______________________________ Date:_______________________________
APPENDIX A-1
VALEX(TM) Software Product Description
VALEX software transforms raw customer data into usable marketing information.
It integrates with other decision support software to leverage the customer
information in a customer's data warehouse.
VALEX Delivers:
o A full-function suite of database marketing tools for segmentation,
campaign planning, campaign management, campaign data extraction, and
back-end reporting and analysis.
o Integrated capabilities to define, refine, and reuse segmentation schemes,
profile segments, and reuse campaign criteria over time and across.
o An Open systems architecture which maximizes data access throughout the
organization, minimizes investment costs, and supports flexible, extendible
capabilities.
o A multi-tier End User interfaces which supports direct access to data by
staff with differing technical skills levels and database knowledge.
VALEX Modules
VALEX Segment
Segment is a powerful data access tool which allows the customer to define and
count sets of customers using a point-and-click End User interface or with the
full capabilities of native SQL.
VALEX Profile
Profile creates three-dimensional profiles or cross-tabulations of the database.
A wide variety of mathematical functions are available as well as advanced tools
for grouping and manipulating the dimensions of the profile. Results can be
displayed, stored, and integrated with client tools such as Excel.
VALEX Campaign
Campaign completely automates the definition and management of targeted
marketing campaigns. Mutually exclusive and collectively exhaustive customer
sets are created automatically through Campaign's de-duplication utility.
Facilities are provided to manage audience splits and quantity limits. Campaign
performs the data manipulation necessary to format the data for direct mail,
telemarketing, and other targeted customer communication programs and generates
the files to execute these processes.
VALEX Extract
Extract performs the actual data extraction for the customer sets identified by
Segment and Campaign. Extract generates flat files or RDBMS database tables in
flexible formats defined by the system manager or end-End User. Extract has the
ability to create computed fields and summary tables. These files or tables can
provide the direct input to the systems which manage customer touch points,
including direct mail, telemarketing, sales management, and customer service, or
as input for modeling tools. Extract specifications can be stored and re-used
throughout the VALEX environment.
Optional Software
VALEX Eval
VALEX Eval provides the ability to establish a set of consistent performance
metrics to monitor the performance of marketing investment plans and campaigns
over time. It supports the evaluation of behavior change related to segments of
customers, investment plans, campaigns, and specific value propositions.
VALEX Designer
VALEX Designer is a powerful analysis environment that allows VALEX customers to
build their own customized, multidimensional analysis views of their database.
VALEX Designer includes a visual development environment that allows the End
User to quickly create sophisticated multi-dimensional analysis applications.
Designer supports development of reports, charts, graphs, drill downs, pivot
tables, exception reports and other sophisticated analysis techniques. The VALEX
Designer also includes a powerful multi-dimensional database allowing for rapid
retrieval and analysis of key dimensions of the database.
Appendix A-2
eXstatic(TM) Software Product Description
Exchange's e-mail marketing tool that enables personalized communications
with customers of the end users.
APPENDIX B
DESCRIPTIONS OF VALUE-ADDED PRODUCTS
1. VAR's ▇▇▇▇▇▇▇▇.▇▇▇ with eXstatic(TM) Software (Service Bureau), to provide
Strategy Affiliates with email marketing services (in respect of the
▇▇▇▇▇▇▇▇.▇▇▇ network services) to Affiliate Subscribers.
2. VAR's other products with eXstatic(TM) Software
[EXCHANGE LOGO]
APPENDIX C
DEVELOPER LICENSES
MAINTENANCE AND SUPPORT DELIVERY MODEL
Support Description Responsible Party
1. Isolates problem to Licensed Software code. VAR
2. Checks known fixes, updates, error corrections and,
if known, applies such fix, update or error correction
to the VAR System. VAR
3. If problem is isolated to the Licensed Software code,
and 2 above does not fix the problem, System
Manager calls Exchange to report the problem. VAR
4. Exchange is provided with problem description, and
any necessary code, reports, supporting technical data,
dumps, etc., as may be required for Exchange to reproduce
the problem. VAR
5. Provide error correction or workaround for problem. Exchange
[EXCHANGE LOGO]
APPENDIX D
END USER SUBLICENSES
MAINTENANCE AND SUPPORT DELIVERY MODEL
Support Description Responsible Party
1. Takes call from End User reporting the problem. VAR
2. Isolates problem to Licensed Software code. VAR
3. Checks known fixes, updates, error corrections and,
if known, applies such fix, update or error correction
to the System. Provides such fix, Update, or error correction,
to End User. VAR
4. If problem is isolated to the Licensed Software code,
and 3 above does not fix the problem, VAR System
Manager calls Exchange to report the problem. VAR
5. Collects all necessary technical data (i.e., code,
reports, supporting technical data, dumps, etc., from
End User. VAR
6. Exchange is provided with problem description, and
any necessary code, reports, supporting technical data,
dumps, etc., as may be required for Exchange to reproduce
the problem. VAR
7. Provide error correction or workaround for problem
to VAR. Exchange
8. Provides error correction or workaround to End User. VAR
[EXCHANGE LOGO]
APPENDIX E
SERVICE BUREAU LICENSE
MAINTENANCE AND SUPPORT DELIVERY MODEL
Support Description Responsible Party
1. Takes call from Strategy Affiliate reporting the problem. VAR
2. Isolates problem to Licensed Software code. VAR
3. If problem is isolated to the Licensed Software code,
System Manager calls Exchange to report the problem. VAR
4. Collects all necessary technical data (i.e., code,
reports, supporting technical data, dumps, etc.) VAR
5. Exchange is provided with problem description, and
any necessary code, reports, supporting technical data,
dumps, etc., as may be required for Exchange to reproduce
the problem. VAR
6. Provide error correction or workaround for problem
to VAR. Exchange
7. Introduces error correction or workaround into
Service Bureau operations and services. VAR
[EXCHANGE LOGO]
EXHIBIT A
SCHEDULE OF DEVELOPER FEES
Description Fees Payable*
----------- -------------
1. VALEX Developer License
A. License Fees
$500,000
Object Code Format
1 copy Server Software Module
10 copies Client Software Module
B. Annual Maintenance Fees
First Year Not separately priced
Subsequent years (optional) $100,000
2. eXstatic Developer License
A. License Fees
Object Code Format $500,000
B. Annual Maintenance Fees
First Year Not separately priced
subsequent years (optional) $100,000
Payment Terms: The fees described on this Exhibit A are payable to Exchange upon
execution of this Agreement.
* VAR shall reimburse Exchange for actual, reasonable travel and out-of -pocket
expenses incurred.
[EXCHANGE LOGO]
Exhibit B
Sublicense and Service Bureau Fees
1. Sublicense - VALEX(TM)software bundled with the Value-Added Product:
A. Sublicense Royalty 50% of Exchange's then-current
list price for the Licensed
Software, based on VAR's End
User's customer database
configuration or MCIF
For each Sublicense issued by VAR to an End User, VAR shall pay to
Exchange a Sublicense Royalty equal to 50% of Exchange's then current
list license fee for the Licensed Software configuration. A copy of
Exchange's current price list is attached, and Exchange reserves the
right to change its price list at upon ninety (90) days' prior written
notice to VAR. All Sublicense Royalties are due and payable within
thirty (30) days from the execution date of the particular Sublicense
Agreement out of which such payment arises.
B. Annual Maintenance Royalty 10% of the Sublicense Royalty
For each Sublicense issued by VAR to a End User, VAR shall pay to
Exchange a Maintenance Royalty equal to 10% of the Sublicense Royalty.
All Maintenance Royalty fees are due and payable within thirty (30)
days from the execution date of the particular Sublicense Agreement out
of which such payment arises. Subsequent annual Maintenance Royalty
fees are due and payable on or before the beginning of the annual
period to which such payment applies.
2. Sublicense - eXstatic(TM) Software bundled with the Value-Added
Product:
A. Sublicense Royalty Currently, $97,500 (that is,
50% of Exchange's then-current
list price for the Licensed
Software) plus 50% of the per
email fee based on the
following list price schedule
(monthly flat fee + incremental
monthly usage fee)
Monthly Flat Fee, based on number of email messages sent during the
month:
----------------- ---------------------- ----------------------- ---------------------- --------------------------- ---------------
1-200K messages greater than 200-400K greater than 400-600K greater than 600-800K greater than 800K-1 million 1-10 million
----------------- ---------------------- ----------------------- ---------------------- --------------------------- ---------------
$5,000 $5,000 $9,000 $12,000 $14,000 $15,000
----------------- ---------------------- ----------------------- ---------------------- --------------------------- ---------------
Incremental Monthly Usage Fee, based on number of email messages sent
during the month:
---------------- ---------------------- ----------------------- ---------------------- --------------------------- -----------------
1-200K messages greater than 200-400K greater than 400-600K greater than 600-800K greater than 800K-1 million 1-10 million
---------------- ---------------------- ----------------------- ---------------------- --------------------------- -----------------
0 $.02 per email $.015 per email $.01 per email $.005 per email $.0025 per email
---------------- ---------------------- ------------------------ --------------------- --------------------------- -----------------
For each Sublicense issued by VAR to an End User, VAR shall pay to
Exchange a Sublicense Royalty equal to 50% of Exchange's then current
list license and usage fees for the Licensed Software. Exchange
reserves the right to change its price list upon ninety (90) days'
prior written notice to VAR. All Sublicense Royalties for the Licensed
Software are due and payable within thirty (30) days from the execution
date of the particular Sublicense Agreement out of which such payment
[EXCHANGE LOGO]
arises. All Sublicense Royalties for the per email usage are due and
payable within thirty (30) days of the end of the month.
B. Annual Maintenance Royalty 10% of the Sublicense Royalty
for the Licensed Software
For each Sublicense issued by VAR to a End User, VAR shall pay to
Exchange a Maintenance Royalty equal to 10% of the Sublicense Royalty
for the Licensed Software. All Maintenance Royalty fees are due and
payable within thirty (30) days from the execution date of the
particular Sublicense Agreement out of which such payment arises.
Subsequent annual Maintenance Royalty fees are due and payable on or
before the beginning of the annual period to which such payment
applies.
All royalty fees are payable in US Dollars, and are exclusive of taxes.
VAR will reimburse Exchange for all taxes levied against the Agreement
and the licenses and/or services rendered hereunder, excluding any
taxes based on Exchange's net income, corporate franchise or personal
property ownership or employee related tax.
3. Service Bureau - eXstatic Software on a hosted basis with VAR acting as
an Application Service Provider for Strategy Affiliates
A. License fee: $100,000 per Strategy Affiliate registered
with ▇▇▇▇▇▇▇▇.▇▇▇ and designated by VAR
B. Annual Maintenance Fee $10,000
The fees described for this Item 3 are due and payable (a) on the Effective
Date, in respect of all then current Strategy Affiliates registered with
▇▇▇▇▇▇▇▇.▇▇▇ and designated by VAR, and (b) quarterly thereafter, beginning
March 15, 2000, in respect of new Strategy Affiliates added during the
applicable Reporting Quarter. With each payment, VAR shall provide Exchange a
report of the total number of Strategy Affiliates registered with ▇▇▇▇▇▇▇▇.▇▇▇
and designated by VAR for purposes of the Service Bureau, and the number of new
Strategy Affiliates.
[EXCHANGE LOGO]
EXHIBIT C
MASTER AGREEMENT FOR PROFESSIONAL SERVICES
(already provided by Exchange)
[MicroStrategy Letterhead] ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇.▇▇▇.▇▇▇▇
▇▇▇.▇▇▇.▇▇▇▇ Fax
▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
December 30, 1999
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Executive Officer
Exchange Applications, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Designation of Strategy Affiliates in accordance with the Value-Added
Reseller Agreement between MicroStrategy Incorporated (MSI) and
Exchange Applications, Inc. dated December 30, 1999 (the "Agreement")
Dear Andy:
We would like to designate the following Strategy Affiliates as being registered
with the MSI Service Bureau for eXstatic Software.
WSJ Interactive ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ Bank ICOA, Inc.
American Mobile Satellite Corp. Sundial Marketplace Corporation
Belo Interactive ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
NCR Aquis IP Communications
Ameritrade ▇▇▇▇▇▇▇▇▇▇.▇▇▇
Nasdaq Blue Stone Capital Partners, L.P. (▇▇▇▇▇.▇▇▇)
▇▇▇.▇▇▇ CSG Media, LLC (▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇)
Cendex Corporation Protavolori
▇▇▇▇▇▇▇▇.▇▇▇ Green Mountain Asset Management
EarthLink Network, Inc. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Community of Science, Inc. All As One
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Open Designer Ltd.
Metrocall Inc. Wireless Enabled, LLC
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Aquis Communications
SMAC Data Systems, Inc. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ▇▇▇▇▇▇▇▇.▇▇▇
The Market Radar Avid Trading Company
Marble Management (The Daytrader Toad) Phone Center
Investor Educ Svcs, Inc. (VPA Forum) ▇▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Buy Sell or Hold Company
DayTrade Alerts, Inc. ▇▇▇▇▇▇▇.▇▇▇, LLC
▇▇▇▇▇▇▇▇.▇▇▇
In accordance with the terms of the Agreement, please invoice MSI $4,500,000 for
the designation of the above list of Strategy Affiliates and $450,000 for the
first year of maintenance for the Strategy Affiliates.
Regards,
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
