EXHIBIT 10.10
**indicates information which has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
Asterisks appear on pages 1 and 2 of Schedule A.
ASP LICENSE AGREEMENT
This ASP License Agreement (the "Agreement") is made and entered into as of the
last date set forth below (the "Effective Date") between SalesLogix Corporation,
a Delaware corporation ("SLGX"), located at 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxx Xxxxxxx, 00000, XXX, and ebaseOne Corporation, a Delaware
Corporation, located at 0000 Xxxxxxxx Xxxxx 000, Xxxxxxx, Xxxxx 00000, ("HOST").
RECITALS
WHEREAS, SLGX owns or has the right to grant licenses to certain sales
information front office software applications;
WHEREAS, HOST has established ASP offerings which it makes available to end user
customers through hosted computer systems; and
WHEREAS, SLGX and HOST wish to enter into an agreement where SLGX shall license
HOST to include SLGX software applications within HOST's ASP offerings;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties, SLGX and HOST hereby agree as
follows:
1. Definitions
-----------
Anniversary Date means October 12/th/ of each year commencing in year 2000.
Customer means an end user who is a party to a Customer Agreement, and who
cannot re-sell, lease, market, license, sublicense or otherwise distribute the
Software or Services to another party.
Customer Agreement means an agreement between HOST and a Customer under which
HOST agrees to host the Software on one or more Hosted Systems for remote access
and use by the Customer pursuant.
Documentation means the standard online documentation, manuals and other printed
materials delivered by SLGX to HOST which relate to the Software.
Hosted Systems means the computer hardware, networking equipment and associated
system software on which the Software is installed for remote Use by a Customer
in connection with HOST's provision of Services. All Hosted Systems shall be
owned or leased by HOST, and shall remain under the control of HOST throughout
the Term.
Remote Client means a full working version of the Software that both resides on
a single Customer personal computer ("PC") with a local database and allows the
Customer to synchronize with and access the Software (and the remote databases
contained in the Software) residing on the Hosted Systems.
1
Services means Software-related services offered by HOST to a Customer,
including Software hosting, training, maintenance, technical support and similar
services.
Software means the SLGX computer software products described on Schedule A, as
----------
such schedule may be amended by the parties from time to time, including
Documentation and any updated version of such products provided by SLGX to HOST.
Support shall mean those maintenance and technical support services provided by
SLGX to HOST as described in detail on Schedule B.
----------
Term shall mean the term of this Agreement (including any extensions and
renewals) as defined in Section 10.
Use shall mean the loading, utilization, storage or display of the Software to
process a Customer's information and serve Customer's computing needs.
User shall mean an individual who is permitted to have access to and use the
Software pursuant to the terms of a Customer Agreement, and shall mean
specifically a named or specified (by password, license number or other user
identification) individual authorized by Customer to use the Software,
regardless of whether the individual is actively using the Software at any given
time. The maximum number of Users that may use or access the Software shall be
specified in the Customer Agreement. Users may include the employees of Customer
or third parties; provided that such third party is limited to use of the
--------
Programs (i) only as configured and deployed by Customer, and (ii) solely in
connection with Customer's internal business. Customer may cause a User logon
to be permanently reassigned if the original individual identified as the User
leaves the employ of Customer, or otherwise ceases to need access to the
Software.
Web Client shall mean a thin version of the Software in DHTML format that
resides on a Hosted System and which may be accessed by a Customer through the
internet.
Workgroup Client shall mean a full version of the Software that resides on a
Hosted System and which may be accessed by a Customer through a Microsoft
terminal server or Citrix metaframe.
2. License
-------
2.1 Grant of Licenses. Subject to the terms and conditions of this
Agreement, SLGX hereby grants for the duration of the Term, and HOST hereby
accepts, a non-transferable, non-exclusive license (without the right to
sublicense except as provided in Section 2.7) to install, Use, execute, display
and host the Software in object code format on an unlimited number of Hosted
Systems in the United States and Canada (and in other countries to which SLGX
consents in writing), to lease use of such Software to Customers pursuant to
Customer Agreements, to distribute copies of Remote Client to Customers who
purchase leases to Remote Client, and to provide Services to Customers.
2
2.2 Territory; Non-Exclusivity. The licenses under Section 2.1 shall be
worldwide with respect to the location of Customers, and shall permit the
installation of Remote Client in any territory, subject to export law
restrictions. HOST acknowledges that its appointment as an ASP for the Software
shall be entirely non-exclusive; SLGX may increase or decrease the number of
authorized ASPs in the vicinity of HOST's locations at any time without notice
to HOST.
2.3 Private-Labeling. SLGX grants HOST a non-exclusive, nontransferable
right and license to offer the Software and Services under the following HOST
product name and logo: ebaseOne(TM), provided, however, that all SLGX
proprietary notifications are included and SLGX's authorship is emphasized with
either the tag line "Powered by SalesLogix," or similar branding mutually agreed
to by the parties.
2.4 Copying Rights. HOST may make a reasonable number of copies of the
Software and Documentation for purposes of installing and maintaining the
Software on Hosted Systems, providing copies of Remote Client to Customers, and
providing Services to Customers, provided in each case that HOST complies with
the requirements of Section 9.3.
2.5 License Restrictions and Limitations. HOST shall lease the Software
to a Customer on a per User basis pursuant to a Customer Agreement that: (i)
specifies the number of permitted Users; (ii) provides that the lease must be
pursuant to one of the configurations described on Schedule A; (iii) contain
----------
substantially the same provisions and protections that HOST uses to lease its
own software products of comparable value; and (iv) incorporate and attach the
SLGX shrinkwrap license attached as Schedule C, as it may be reasonably amended
----------
by SLGX from time to time, or such other license form or statement as the
parties may stipulate to in writing from time to time (the "XXXX").
2.6 Lease Procedure. Upon executing a Customer Agreement, HOST shall
register the following information with SLGX's Automatic Licensing System ("AL-
System"): the Customer' exact corporate name, address, the commencement date of
the Software lease, the number of permitted Users, primary contact information
for the Customer (including such contact's e-mail information), and the initial
lease terms for the relevant Users. HOST shall also follow the same procedure
to: (i) record any amendment of a Customer Agreement that increases or
decreases (consistent with Section 2.5) the prospective number of Users; (ii)
renew or extend the lease term for a User; (iii) register the cancellation of a
logon to allow a substituted User (consistent with Section 1.11); or (iv) record
the permanent expiration of any User lease. Upon the initial registration of a
Customer (and upon the recording of any transaction resulting in an increase of
Users), the AL-System shall automatically issue to HOST the necessary number of
User logons and license numbers to enable the Customer's designated Users to
access and Use the Software. HOST agrees that it will: (i) only disclose to a
Customer only those logons and license numbers that have been specifically
assigned to the Customer's Users by the AL-System; (ii) not make any other use
or disclosure of the logons and license numbers provided by the AL-System; (iii)
not seek to circumvent or bypass any logon, license number or any other security
or copy protection feature contained in the Software; (iv) adopt and implement
reasonable policies to inform and instruct its relevant employees and agents of
the restrictions imposed by this Section; and (v) immediately inform SLGX in
writing of any attempt or threat by any person to
3
crack or circumvent any SLGX or HOST security or copy protection measure
relating to the Software.
2.7 HOST Affiliates. HOST shall not sublicense its rights under this
Section 2 to a subsidiary, affiliate, VAR, OEM or other sub-distributor (each, a
"HOST Affiliate"), or any class of HOST Affiliates, without the prior written
consent of SLGX, which consent shall not be withheld unreasonably. In the event
SLGX consents to such a sublicense, HOST acknowledges and agrees that it shall:
(i) cause the HOST Affiliate to comply with all material terms and restrictions
applicable to HOST under this Agreement; and (ii) remain directly and wholly
responsible to SLGX for (and to the same extent as if HOST had itself caused)
all losses, claims and damages that SLGX incurs as a result of the HOST
Affiliate's disclosure or distribution of HOST Confidential Information or
breach of any other obligations applicable to HOST under this Agreement.
3. Prices and Payments for Software Leases
---------------------------------------
3.1 License Fees. For each lease of Software to a Customer, HOST agrees
to pay SLGX the license fees set forth in Schedule A (the "License Fees"), which
----------
shall be calculated on a per User per month basis. The License Fees set forth
on Schedule A have been calculated based on the SLGX list prices now in effect
----------
for full licenses to the Software. Approximately 90 days prior to each
Anniversary Date the parties shall meet and confer to determine whether the
license fees set forth in Schedule A should be reduced for new Customer
----------
Agreements effective on the Anniversary Date to reflect any interim reductions
in the SLGX list prices for full licenses to the Software. Any such agreement
to change Schedule A shall be reduced to writing and signed by the parties as a
----------
prospective amendment to Schedule A.
----------
3.2 Minimum Guaranteed Cumulative Fees. Notwithstanding Section 3.1, HOST
hereby commits to pay SLGX, over the Term, the minimum, cumulative non-
refundable License Fees set forth in Schedule A (the "Guaranteed Cumulative
----------
Fees"). HOST shall make additional payments to SLGX, to the extent necessary as
of the end of a calendar quarter, so that the total License Fees paid to SLGX
through the relevant quarter will equal at least the Guaranteed Cumulative Fees
obligation as of such date. All additional payments made pursuant to this
Section 3.2 shall be regarded as the payment of "License Fees" under this
Section 3 and will be credited in full against HOST's License Fee obligations
under Section 3.1. If either party's exercise of a termination or non-renewal
right granted under Section 10 shall cause the Agreement to terminate effective
on a date other than the last date of a calendar quarter, the Guaranteed
Cumulative Fees applicable to the end of such quarter shall be recalculated and
reduced in direct proportion to the amount by which the quarter was shortened.
3.3 Quarterly Invoice Reports; Calculation of License Fees. By the last
date of each calendar quarter, SLGX, using information registered on the AL-
System by HOST, shall calculate the License Fees due under this Agreement for
the quarter just ending (the "Reported Quarter") and shall prepare and deliver a
License Fee invoice report (the "Quarterly Invoice Report") to HOST. The
Quarterly Invoice Report shall describe the number of Users per month for whom
HOST leased the Software during the Reported Quarter. Where a User lease
commenced other than on the first of a calendar month, the quarterly report
shall use an
4
appropriate fraction in calculating License Fees for the partial month. Also,
where a User lease first commenced in the last ten calendar days of a Reported
Quarter, SLGX shall defer invoicing the License Fees due for the relevant
one-to-ten days until the Quarterly Invoice Report for the next Reported
Quarter. Each Quarterly Invoice Report shall calculate and compare License Fees
calculated for the Reported Quarter under Section 3.1, License Fees (including
additional payments previously required under Section 3.2) paid to date, and the
Guaranteed Cumulative Fees applicable to the end of the Reported Quarter, and
shall then report the amount of License Fees due from HOST for the Reported
Quarter.
3.4 Payment Terms. HOST shall pay the License Fees set forth in the
Quarterly Invoice Report within 30 days of receipt of the Quarterly Invoice
Report. All other fees and payments due from one party to another under this
Agreement shall also be paid within 30 days of invoice. All amounts not paid
within 30 days of the relevant invoice shall bear interest at the lesser of 1.5%
per month or the highest contract rate allowed by law, from the date due until
paid. All License Fees and any other payments hereunder shall be paid in U.S.
Dollars.
3.5 Customer Prices. HOST shall remain solely responsible for determining
its own retail prices to Customer for Software leases and Services.
3.6 Taxes. HOST shall remain responsible for payment of any and all
applicable taxes, excises, duties or charges (other than taxes relating to
SLGX's net income) which may arise by virtue of the transactions contemplated by
this Agreement.
4. Support Obligations
-------------------
4.1 HOST Support of Customers. HOST will provide technical and
maintenance support to Customers and to any authorized HOST Affiliates. SLGX
will provide direct support only to HOST, as described below.
4.2 SLGX Support of HOST. During the Term, and for so long thereafter as
HOST continues to lease the Software to Customers and pay License Fees as
provided in Xxxxxxx 00, XXXX shall provide HOST with the Support described in
Schedule B. In connection with providing Support, SLGX will use its reasonable
----------
efforts to make the Software perform substantially in accordance with the
Documentation. However, HOST acknowledges that inevitably some errors may exist
in the Products, and the presence of such errors shall not be a breach of this
Section. HOST specifically acknowledges that this Agreement will involve one of
the first Uses of the Software to date through a remote access hosting structure
and that the parties may, in the first several months following the Effective
Date, encounter unanticipated problems or support issues relating to running the
Software in a large scale hosting environment.
4.3 Support of Hosted Systems. HOST shall be solely responsible, at its
own expense, for the acquisition, installation, operation and maintenance of the
Hosted Systems, including any hardware and third party software (other than
third party software products embedded in the Software) necessary or useful for
hosting or Use of the Software. HOST shall identify and promptly inform SLGX of
any design or programming errors or omissions in the
5
Software of which it becomes aware and consult with SLGX regarding necessary
corrections and or modification.
5. Start-Up Obligations
--------------------
5.1 Delivery of Master Disks. Upon execution of this Agreement and the
Non-disclosure agreement, SLGX shall promptly deliver to HOST master disks
containing the Software in object code format.
5.2 Training. SLGX shall provide HOST with the "Start-Up" training on the
terms and conditions described in Schedule A. HOST shall develop an internal
training course for its employees regarding the Use and support of the Software,
which will be consistent with SLGX's then-current training policies for the
Software.
6. Continuing Obligations
----------------------
6.1 Product Managers. Each party shall appoint at least one appropriately
qualified full-time product manager, whose sole responsibility shall be to
define and market the Services and monitor its party's performance under this
Agreement.
6.2 Joint Promotions. During the Term, HOST and SLGX will jointly promote
and market their respective products and service offerings, including but not
limited to providing for mutual customer reference sites, mutual brand awareness
promotions, joint sales efforts, presentations and/or demonstrations, all as
agreed to between the parties from time to time.
6.3 Safety and Security. HOST shall at all times maintain and enforce at
the site of all Hosted Systems safety and security procedures that are at least:
(a) equal to industry standards for such locations; (b) as rigorous as those
procedures which are in effect for other similar locations then owned or
controlled by HOST; and (c) compliant with any reasonable safety and security
requirements requested by SLGX during the Term.
6.4 Customer License Enforcement. HOST shall use its best efforts to
assist SLGX in the protection of SLGX's legal rights and to enforce the XXXX.
HOST shall cooperate fully with SLGX in any action by SLGX in the event of an
actual or threatened violation of SLGX's proprietary rights by a Customer.
6.5 Marketing Practices. Each party shall (a) perform its obligations in
a manner that will preserve the reputation and promote the goodwill, name, and
interests of the other party and its products and service offerings; (b) avoid
deceptive, misleading, or unethical practices that are or might be detrimental
to the other party, its products or service offerings, or the public, including
but not limited to disparagement of the other party or its products or service
offerings; (c) make no false or misleading representation with respect to the
other party's products or service offerings; (d) not publish or use any
misleading or deceptive advertising material; and (e) make no representations
with respect to the other party's products or service offerings that are
inconsistent with the literature distributed by the other party, including all
warranties and disclaimers contained in such literature.
6
7. Warranties; Limitations on Liability
------------------------------------
7.1 SLGX Limited Warranties. SLGX represents and warrants to HOST that
SLGX has sufficient right, title and interest in and to the Software to enter
into this Agreement; and that all Software distributed to HOST is and shall be
free and clear of all liens.
7.2 Limitation of Warranties. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND
DOCUMENTATION PROVIDED BY SLGX INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
7.3 Limitation on SLGX Liability. EXCEPT IN THE EVENT OF MISUSE OR
APPROPRIATION OF HOST'S CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY, AND
EXCEPT FOR ITS INFRINGEMENT INDEMNIFICATION OBLIGATIONS, SLGX'S CUMULATIVE
LIABILITY UNDER THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION IN CONTRACT, TORT
OR STRICT LIABILITY, SHALL BE LIMITED TO THE LICENSE FEES PAID BY HOST DURING
THE 12 MONTHS PRIOR TO SUCH EVENT.
7.4 No Consequential Damages. EXCEPT IN THE EVENT OF ONE PARTY'S MISUSE
OR APPROPRIATION OF ANOTHER PARTY'S CONFIDENTIAL INFORMATION OR INTELLECTUAL
PROPERTY, AND EXCEPT FOR THE PARTIES' RESPECTIVE INFRINGEMENT INDEMNIFICATION
OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT,
CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE
LIKE) ARISING OUT OF THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
7.5 HOST Actions. SLGX shall have no obligation to Customers arising from
any warranty given by HOST, HOST Affiliates, or their agents or employees.
8. Indemnification
---------------
8.1 SLGX Indemnification. SLGX agrees, for as long as the Software is
leased by Customers from HOST, at SLGX's expense to defend or settle and hold
harmless HOST from, any third party claim that the leasing of the Software (but
not including any other goods, Services or other parts of the Hosted Systems
provided by HOST) infringes any patent, copyright, trade secret, trademark, or
proprietary right existing under the laws of the United States or Canada or any
state or territory thereof. The indemnification obligation in this Section
shall be effective only if HOST is not in default of its License Fee payment
obligations to SLGX. To reduce or mitigate damages, SLGX may at its own expense
procure the right for HOST to continue leasing and distributing the Software or
replace it with a non-infringing product with substantially equivalent
functionality. If SLGX supplies a non-infringing update or version of the
Software, HOST shall promptly supply the same to its Customers and install the
same on it
7
Hosted Systems. SLGX's indemnification obligations under this Section shall not
apply to an infringement claim that occurs because of and would not have
occurred but for: (i) modifications made to the Software by a party other than
SLGX; (ii) HOST or a Customer's failure to implement a Software enhancement as
required by SLGX; or (iii) use of the Software in combination with programs,
equipment or devices not of SLGX origin or design.
8.2 HOST Indemnification. HOST agrees, for as long as the Software is
leased by Customers from HOST, at HOST's expense to defend or settle and hold
harmless SLGX from, any third party claim: (i) that HOST's provision of Hosted
Systems, goods or Services (other than the Software in the form provided by
SLGX) infringes any patent, copyright, trade secret, trademark, or proprietary
right existing under the laws of the United States or Canada or any state or
territory thereof; or (ii) otherwise resulting from any improper acts or
omissions by HOST relating to its provision of Services, or any
misrepresentations by HOST or its employees or agents relating to the Software.
8.3 Exclusive Remedies. SECTIONS 8.1 AND 8.2 CONSTITUTE THE PARTIES'
RESPECTIVE ENTIRE LIABILITY AND EXCLUSIVE REMEDIES FOR THIRD PARTY CLAIMS
RELATING TO THE SOFTWARE AND HOST GOODS AND SERVICES.
8.4 Procedure. Each party seeking indemnification under this Section 8
(the "Indemnified Party") shall give the other party (the "Indemnifying Party")
prompt written notice of the relevant claim, and shall cooperate with the
Indemnifying Party in the defense of any such claim as reasonably requested by
the Indemnifying Party. The Indemnifying Party shall control the defense of the
claim, however, the Indemnified Party, at its own costs and expense, may
participate in the defense of the claim and be represented by its own counsel.
9. Confidentiality; Proprietary Rights; Trademarks
-----------------------------------------------
9.1 Confidential Information. Each party acknowledges that it may receive
or have access to information that is confidential to the other ("Confidential
Information"). Each party's Confidential Information shall include, but not be
limited to, its software programs and related documentation, formulas, methods,
know-how, processes, designs, new products, developmental work, marketing
requirements, marketing plans, customer names, prospective customer names, and
all information clearly identified by it in writing at the time of disclosure as
confidential. Confidential Information also includes all information received
from third parties that either party is obligated to treat as confidential and
oral information that is identified by either party as confidential. A party's
Confidential Information shall not include information that (i) is or becomes a
part of the public domain through no act or omission of the other party; (ii)
was in the other party's lawful possession prior to the disclosure and had not
been 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; (iv) is independently developed by the
other party without use of or reference to the other party's Confidential
Information; or (v) the other party is required to disclose by law or valid
order of a court or other governmental authority; provided, however, that the
--------
other party shall first have given notice to the owning party and shall have
made a reasonable effort to obtain a protective order requiring that the
Confidential Information so disclosed be used only for the purposes for which
the order was
8
issued. The parties agree, unless required by law, not to make each other's
Confidential Information available in any form to any third party or to use each
other's Confidential Information for any purpose, other than in connection with
the performance of this Agreement. Each party agrees to take all reasonable
steps to ensure that the other party's Confidential Information is not disclosed
or distributed by its employees or agents in breach of this Agreement. The
parties agree to hold each other's Confidential Information in confidence during
the Term and for a period of three (3) years thereafter; provided, however, that
--------
with respect to software code and other highly sensitive confidential
information clearly identified as such at the time of disclosure by either
party, the nondisclosure obligations set forth herein shall continue
indefinitely. This Section 9.1 constitutes the entire understanding of the
parties and supersedes all prior or contemporaneous agreements, representations
or negotiations, whether oral or written, with respect to Confidential
Information.
9.2 Customer Information. HOST agrees that any sales leads concerning
potential Customers provided to it by SLGX shall be deemed Confidential
Information and used by HOST solely for the purposes of this Agreement, except
as SLGX may otherwise consent in writing. SLGX agrees that any information
concerning Customers provided to the AL-System by HOST under Section 2.6 shall
be deemed Confidential Information and used by SLGX solely for the purposes of
this Agreement, except as HOST may otherwise consent in writing.
9.3 Proprietary Rights. Without limiting the application of Section 9.1,
HOST acknowledges that title in and ownership of the Software and Documentation,
as well as SLGX Trademarks and all intellectual property rights therein, shall
remain at all times vested in SLGX and its licensors. HOST acknowledges that
the Software contains valuable trade secrets and Confidential information of
SLGX and is protected by domestic and international patent and copyright laws
and other forms of proprietary rights. HOST agrees not to copy or otherwise
reproduce (except as permitted herein), or to modify, adapt, translate, reverse
engineer, decompile, disassemble or create derivative works based on, the
Software or the Documentation. HOST agrees to reproduce (and not remove) on all
copies of the Software and Documentation any patent, copyright, trademark, trade
secret or other proprietary notices included by SLGX.
9.4 Trademarks. SLGX grants HOST the right to use any SLGX trademarks,
trade names, logos and service marks that describe the Software (as now existing
or hereafter developed (the "SLGX Marks")), but only for the purpose of leasing
and marketing the Software, and on the condition that HOST: (i) uses the
appropriate SLGX Marks for the corresponding Software; (ii) includes in such use
appropriate registration and other information to identify the SLGX Marks as
belonging to "SalesLogix Corporation"; (iii) takes reasonable steps to modify
all objectionable uses of the SLGX Marks; and (iv) complies with the then
current written SLGX policies relating to SLGX Marks as they may be delivered by
SLGX to HOST from time to time. HOST grants SLGX the right to use any HOST
trademarks, trade names, logos and service marks that describe HOST's offering
of the Software and related Services (as now existing or hereafter developed
(the "HOST Marks")), but only for the purpose of advertising and marketing such
offerings, and on the condition that SLGX: (i) uses the appropriate HOST Marks
for the corresponding HOST offering or Services; (ii) includes in such use
appropriate registration and other information to identify the HOST Marks as
belonging to ebaseOne Corporation (iii) takes reasonable steps to modify all
objectionable uses of the HOST Marks; and (iv) complies with the
9
then current written HOST policies relating to HOST Marks as they may be
delivered by HOST to SLGX from time to time. Except as expressly stated in this
Section 9, nothing in this Agreement or elsewhere shall give either party any
rights to the trademarks, logos, trade names and service marks of the other.
10. Term and Termination
--------------------
10.1 Initial Term and Renewal. Unless earlier terminated pursuant to this
Section 10, the term of this Agreement shall commence on the Effective Date and
expire on the Anniversary Date occurring in 200_, following which the Agreement
shall automatically renew and the term be extended for successive one year
periods unless either party provides the other with written notice, at least 60
days prior to the relevant Anniversary Date, of its election not to renew.
10.2 Termination for Breach. If either party shall breach a material
obligation under this Agreement, the other party may give written notice of its
intention to terminate this Agreement, describing in reasonable detail the
breach. If the party charged with breach fails to cure the breach within 30
days following such notice, or if such breach (other than one to pay money) is
not capable of cure within 30 days and the party charged with breach fails to
commence cure procedures within such 30 day period and diligently prosecute such
procedures until the breach is cured, which cure shall be completed no later
than 90 days following the notice, then the noticing party may, while such
failure continues and in addition to all other remedies available at law or in
equity, terminate this Agreement upon written notice.
10.3 Effect of Expiration or Termination. Upon any expiration or
termination of this Agreement: (i) HOST shall immediately pay all amounts then
due to SLGX and shall discontinue marketing of the Software and the related
Services to new Customers; and (ii) each party shall cease use of the other
parties' Marks in connection with advertising and marketing activities. In
addition, the following provisions shall apply:
10.3.1 Expiration or Termination Other Than Because of HOST Uncured
Breach. If the Agreement expires or is terminated for any reason other
than an uncured breach by HOST, then notwithstanding any provision of this
Agreement to the contrary: (i) the expiration or termination shall not
affect the rights of Customers to continue to lease the Software (including
the right to obtain lease extensions or add new Users) pursuant to existing
Customer Agreements; and (ii) the Agreement, including but not limited to
License Fee and Support obligations and the right of HOST to retain and use
copies of the Software and related support and training materials delivered
for the purpose of providing support and maintenance to Customers, shall
continue in full force and effect with respect to existing Customers until
lease of Software under all Customer Agreements has terminated. After the
last Customer Agreement has terminated, HOST shall return or destroy, at
SLGX's option, all remaining copies of the Software and other materials
containing SLGX confidential information. Notwithstanding the provisions
of this Section 10.3.1, should HOST commit an additional uncured breach of
the Agreement following the initial expiration or termination, Section
10.4.2 shall become operative upon the expiration of the relevant cure
period.
10
10.3.2 Termination Because of HOST Uncured Breach. If the Agreement
is terminated because of an uncured breach by HOST, then SLGX shall have
its choice of the following: (A) proceeding under the approach set forth
in Section 10.3.1; or (B) proceeding as follows: (i) the expiration or
termination shall terminate the rights of Customers to continue to lease
the Software from HOST effective upon the end of the 90 day period
commencing with the effective date of termination of this Agreement - the
"Transition Period" -- and a Customer may not obtain lease extensions or
add new Users during such Transition Period; (ii) the Agreement, including
but not limited to License Fee and Support obligations and the right of
HOST to retain and use copies of the Software and related support and
training materials delivered for the purpose of providing support and
maintenance of such Customers, shall continue in full force and effect with
respect to existing Customers, but only through the end of the Transition
Period or implementation of a transition solution as described in the next
subsection (iii), whichever is earlier; (iii) During the Transition Period,
the parties will attempt to arrive at a "transition solution" that will
allow the existing Customers to continue to use the Software, including but
not limited to use of the Software through the services of another ASP or
through non-hosted use by the Customer on its own computer systems, and
HOST shall cooperate fully with SLGX in effecting the orderly transfer of
the Software, database information and related materials to one or more
third parties in connection with implementing the transition solution, as
directed by SLGX; (iv) following the earlier of the termination of the
Transition Period or the implementation of a transition solution, HOST
shall return or destroy, at SLGX's option, all remaining copies of the
Software and other materials containing SLGX confidential information.
10.4 Survival of Certain Provisions. All relevant Sections of this
Agreement (except Section 3.2's application of Guaranteed Cumulative Fees) shall
survive expiration or termination of this Agreement for the specific purposes
described in Section 10.3. In addition, Sections 3.1, 3.3, 3.4, 3.6, 4.2, 4.3,
6.4, 6.5, 6.6, 7.2, 7.3, 7.4, 7.5, 8, 9, 10, 11 and 12 shall survive expiration
or termination of this Agreement including post-termination transition periods
described in Section 10.3. Neither expiration nor termination shall relieve
either party of the obligation to pay License Fees or other amounts due, or
which may become due following expiration or termination, to the other.
10.5 Cumulative Remedies. Termination of this Agreement or exercise of
any other rights described in this Section shall be in addition to and not in
lieu of any other legal or equitable remedies available to the parties.
11. Audit Rights
------------
11.1 Records. At all times during the Term, and for three (3) years
thereafter, each party shall keep written books and records documenting the
pertinent aspects of its performance hereunder for the prior three years,
including without limitation, billing and payment records, data used for
calculations of License Fees, description of Services for each Customer,
security and access records, maintenance records and travel and expense records
(collectively, "Records"), according to Generally Accepted Accounting
Principles. At a maximum of once
11
every six (6) months during the Term, each party agrees to provide copies of
such Records to the other promptly following the receipt of a reasonable request
therefor.
11.2 Audits. At a maximum of once every six (6) months during the Term,
and upon reasonable notice from SLGX, HOST shall provide, and shall cause its
employees and agents to provide, SLGX auditors and inspectors, as SLGX may from
time to time designate, with access to the sites containing the Hosted Systems
and all Records during HOST's normal business hours for the purpose of
performing audits or inspections of the Services (including without limitation
data processing, security procedures, disaster recovery, maintenance and
support, and the systems and physical environments in or in which the Services
are performed). SLGX shall bear its own expenses and costs in performing any
such audit. HOST shall provide such auditors and inspectors any assistance as
they may reasonably require. Any information disclosed by HOST to such auditors
and inspectors shall be protected by the confidentiality provisions set forth in
Section 9.
12. General Provisions
------------------
12.1 Publicity. Except as permitted under Section 9.4 or as otherwise
required by law or regulation, neither party shall use the other party's name or
Marks or refer to the other party directly or indirectly in any media release,
public announcement, or public disclosure relating to this Agreement or its
subject matter, without obtaining the prior written consent from the other party
for each such use or release.
12.2 Compliance With Export Laws. HOST shall not export, ship, transmit
or re-export the Software of Documentation in violation of any applicable law or
regulation including, without limitations, the Export Administration Regulations
issued by the United States Department of Commerce.
12.3 Relationship of Parties. This Agreement does not make either party
the employee, agent or local representative of the other for any purpose
whatsoever. Neither party is granted any right or authority to assume or to
create any obligation or responsibility, expressed or implied, on behalf of or
in the name of the other party. In fulfilling its obligations pursuant to this
Agreement, each party shall be acting as an independent contractor.
12.4 Entire Agreement. This Agreement states the entire agreement between
the parties on the subject matter hereof and supersedes all prior negotiations,
understandings and agreements between the parties concerning the subject matter.
No amendment or modification of this Agreement shall be made except by a writing
signed by both parties.
12.5 No Waiver. The failure of either party to exercise any right or the
waiver by either party of any breach, shall not prevent a subsequent exercise of
such right or be deemed a waiver of any subsequent breach of the same of any
other term of the Agreement.
12.6 Notice. Any notice required or permitted to be sent hereunder shall
be in writing and shall be sent in a manner requiring a signed receipt, such as
Federal Express, courier delivery, or if mailed, registered or certified mail,
return receipt requested. Notice is effective
12
upon receipt. Notice shall be addressed as set forth below or to such other
person or address as a party may designate: (1) if to SLGX to if to SalesLogix
Corporation, 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
XXX, Attn: Xxx Xxxxxxxxxx; and (2) if to HOST to ebaseOne Corporation, 0000
Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, Attn: Xxxx Xxxxxxx.
12.7 Partial Invalidity. Should any provision of this Agreement be held
to be void, invalid, or inoperative, the remaining provisions of this Agreement
shall not be affected and shall continue in effect as though such provisions
were deleted.
12.8 Force Majeure. Neither party shall be deemed in default of this
Agreement to the extent that performance of its obligations (other than an
obligation to pay money) is delayed or prevented by reason of any act of God,
fire, natural disaster, accident, act of government, shortages of materials or
supplies, or any other cause beyond the control of such party ("Force Majeure"),
provided that such party gives the other party written notice thereof promptly
and, in any event, within fifteen (15) days of discovery thereof and uses its
best efforts to cure the delay.
12.9 Assignment. This Agreement may not be assigned by HOST, nor any duty
hereunder delegated by HOST, without the prior written consent of SLGX.
12.10 Injunctive Relief. The parties recognize that a remedy at law for a
breach of the provisions of this Agreement relating to Confidential Information,
or use of a party's Marks, copyrights and other intellectual property rights,
will not be adequate for protection, and accordingly each party shall have the
right to obtain, in addition to any other relief and remedies available to it,
injunctive relief to enforce the provisions of this Agreement.
12.11 Governing Law. This Agreement shall be governed and interpreted in
accordance with the substantive law of the State of Arizona, without regard to
choice of law principles.
12.12 Dispute Resolution. Except as a result of a violation of Section 9
(Confidentiality, Proprietary Rights; Trademarks) or Section 8
(Indemnification), the parties expressly agree to submit any dispute between
them arising out of or relating to this Agreement or their relationship under
this Agreement ("Dispute") to negotiation, mediation and binding arbitration,
pursuant to the terms and procedures set forth in Schedule D, which shall be
----------
deemed incorporated by reference into this Agreement.
12.13 Counterparts. The Agreement may be executed in any number of
counterparts with the same effect as if all parties had signed the same
document. All counterparts shall be construed together and shall constitute one
Agreement.
13
EXECUTED BY THE PARTIES AS PROVIDED BELOW:
Effective Date: October 12, 1999
SLGX: HOST:
SalesLogix Corporation ebaseOne Corporation
By: /s/ [ILLEGIBLE]^^ By: /s/ [ILLEGIBLE]^^
------------------------- -------------------------
Title: [ILLEGIBLE]^^ President & Chief Executive Officer
----------------------
Date: 10/14/99 Date: October 12, 1999
-----------------------
14
Schedule A
A. Software
Software licensed under this Agreement includes the following: SalesLogix Sales
Information System ("SIS"), current version __, consisting of SIS-Remote Client,
Workgroup Client and Web Client versions in the configuration mixes described in
Section B below.
B. License Fees
-------------------------------------------------------------------------------
Software Product License Fees Per Month Per One User
---------------- -----------------------------------
-------------------------------------------------------------------------------
Months 1-24* Months 25 36* Months 37-
forward*
-------------------------------------------------------------------------------
SIS-Remote Client Plus
----
Workgroup Client Plus ** ** $**
----
Web Client
--------------------------------------------------------------------------------
* As used, "Months" refers to the number of months the Customer has leased the
Software in connection with the original set of Users. Thus, if Customer signs a
36-month Customer Agreement for 50 Users and then, six months later, adds 10
Users, HOST will be charged for the 10 added Users, on a going forward basis,
the same as if those 10 Users were part of the original set of Users (i.e, the
price reductions for months 25-36 will kick in for all 60 Users at the same
time, even though Customer has only made 18 months worth of payments for the 10
added Users).
C. Minimum Guaranteed Cumulative Fees
HOST hereby commits to pay SLGX, over the Term, the following minimum,
cumulative non-refundable License Fees as of the calendar quarter and dates
described below (the "Guaranteed Cumulative Fees"):
1999: Effective Date - December 31: $____________
2000: January 1 - March 31: $____________
April 1 - June 30: $____________
July 1 - September 30: $____________
October 1 - December 31: $____________
2001: January 1 - March 31: $____________
April 1 - June 30: $____________
July 1 - September 30: $____________
October 1 - December 31: $____________
2002: each quarter onward: continue to add $_______ to
prior quarter cumulative
D. Training
1
During the first 90 days following the Effective Date, SLGX shall provide HOST
with the following Start-Up certification training. Training shall occur in
Scottsdale and SLGX will, at its own cost and expense, assign a minimum of one
trainer for this program and provide the training facilities. Up to a maximum of
two HOST employees may attend each training session. Following Start-Up
training, HOST may purchase additional training from SLGX for a service fee of
$** per training course, plus travel and living expenses (in accordance with
HOST's standard reimbursement policies) if the additional training sessions will
be held outside Scottsdale.
2
Schedule B
This Schedule describes the terms and conditions relating to Support that SLGX
will provide to HOST for as long as HOST leases Software to Customers under the
Agreement. The Support services described in this Schedule do not expand on or
change the Software warranty provisions set forth in the Agreement. For each
Hosted System, HOST shall designate in writing to SLGX no more than three
"System Managers" who will be the primary contact persons for SLGX's provision
of Support as described below.
A. Maintenance Support
SLGX shall provide HOST with the following maintenance Support for the Software:
1. SLGX Updates and Upgrades: From time to time SLGX may develop
permanent fixes or solutions to known problems or bugs in the Software and
incorporate them into a formal "Update" to the Software, or may release to its
current licensees a major revision to the Software which adds new and different
functions or capabilities to the Software ("Upgrade"). SLGX will provide HOST,
at the same time it provides its Business Partners, with any Updates, Upgrades
and related Documentation, both at no additional charge to HOST.
2. Additional Maintenance Support: SLGX shall provide HOST with the
following additional ASP maintenance Support: (i) any support benefits made
available to other SLGX ASPs; (ii) receipt of all SLGX channel communications
concerning Software product issues, including planned Updates, Upgrades, other
releases, ets.; and (iii) access to online password enabled status updates on
Support issues, service requests, problem reports and enhancement requests.
B. Base Technical Support
SLGX shall provide HOST with technical Support as described below:
1. Telephone and Electronic Mail Assistance: HOST's System Managers will
be given the telephone number for SLGX's support line and will be entitled to
contact the support line during normal operating hours (between 8:00 a.m. and
5:00 p.m. U.S. Mountain Standard Time) on regular business days, excluding SLGX
holidays, to consult with SLGX technical analysts concerning problem resolution,
bug reporting, documentation clarification, and general technical guidance. HOST
may also contact SLGX through electronic mail. SLGX will assist the System
Managers in utilizing the Software and in identifying and providing workarounds,
if possible, for standard component product problems. Assistance may include
communicating via modem from SLGX's facilities or through an electronic bulletin
board.
2. Web Site Support: Online support is available 24 hours a day, offering
HOST the ability to resolve its own problems with access to SLGX's most
current information. HOST will need to enter its designated user name and key
number to gain access to the technical support areas on SLGX's web site. SLGX's
technical support areas allow the HOST to: (i) search an up-to-date knowledge
base of technical support information, technical tips and featured functions;
(ii) access answers to FAQs; (iii) send e-mail inquiries to SLGX (current
response
1
time is between 3-5 days); and (iv) access a BBS monitored by SLGX technical
representatives which serves as an interactive user forum for users to exchange
ideas and solutions, list current hot topics, post inquiries to SLGX technical
analysts, and share experiences.
3. Software Problem Reporting: HOST may submit to SLGX requests
identifying potential problems in the Software. Requests should be in writing
and directed to SLGX by mail, courier, e-mail or by FAX. SLGX retains the right
to determine the final disposition of all requests, and will inform HOST of the
disposition of each request. If SLGX decides in its sole judgment to act upon a
request, it will do so by providing an Update.
4. Correction of Errors: SLGX will use reasonable efforts to provide an
avoidance procedure for and a correction of each material defect in the
Software that causes the Software not to conform in all material respects with
the SLGX Documentation.
5. Designated System Managers. HOST's designated System Managers shall be
responsible for maintaining the integrity of the hardware and software
comprising the Hosted Systems. Requests for telephone assistance or for on-site
assistance may come only from designated System Managers. In the event HOST
needs to replace a System Manager HOST shall notify SLGX via e-mail of the
change in System Manager prior to the new System Manager contacting SLGX.
6. Remote Support. To the extent feasible, technical Support shall be
provided using remote data links from SLGX to the site where the relevant Hosted
Systems are located.
7. Exclusions. SLGX shall have no Support obligations with respect to any
hardware or software product other than the Software ("Nonqualified Products").
If SLGX provides Support services for a problem caused by a Nonqualified
Product, or if SLGX's service efforts are increased as a result of a
Nonqualified Product, SLGX may charge time and materials for such extra services
at its then current published rates for custom software services. If, in SLGX's
opinion, performance of Technical Support services is or will be made more
difficult or impaired because of Nonqualified Products, SLGX shall so notify
HOST, and HOST will immediately remove the Nonqualified Product at its own risk
and expense during any efforts to render Technical Support services under this
Agreement. HOST shall remain solely responsible for the compatibility and
functioning of Nonqualified Products with the Software.
8. HOST Responsibilities. In connection with the provision of technical
Support, HOST shall have the following responsibilities: (1) maintain Hosted
Systems and associated peripheral equipment in good working order in accordance
with the manufacturers' specifications, and insure that any problems reported to
SLGX are not due to hardware or operating system malfunction; (2) supply SLGX
with access to and use of all information and facilities determined to be
necessary by SLGX to render the technical Support described in this Schedule;
(3) perform any tests or procedures recommended by SLGX for the purpose of
identifying and/or resolving any problems; (4) maintain a procedure external to
the Software for reconstruction of lost or altered files, data, or programs; (5)
at all times follow routine operator procedures as specified in the
Documentation; and (6) ensure that the Hosted Systems are isolated from any
process links or anything else that could cause harm before requesting or
2
receiving remote support assistance.
C. Additional ASP Technical Support
SLGX shall provide HOST with the following additional ASP technical Support
services:
1. Quarterly Inspections. On a quarterly basis, as requested by HOST, an
SLGX technical representative specializing in hosting issues will visit a
U.S.-based Hosted System site to discuss with HOST representatives: (i)
Software/hardware configuration issues; (ii) and Hosted System assessments,
including recommendations and updates for hosting the Software.
2. Premium Technical Support. HOST's System Managers shall have access to
unlimited technical support provided by a defined group of SLGX ASP Support
Engineers in accordance with SLGX's standard Technical Support policies.
3. Priority Support Response. HOST's System Managers shall be given
priority status on all incoming Support calls.
3
Schedule C
SLGX XXXX for use with ASP Leases:
Sales Information System(TM)
MULTI-USER LICENSE AGREEMENT - FOR USE WITH ASP LEASES OF SOFTWARE
IMPORTANT - READ CAREFULLY: This Multi-User License and Warranty Agreement (the
"Agreement") is a legal agreement between you and SalesLogix Corporation for the
software product identified above (the "Software"), which includes computer
software and associated media and printed materials (the printed materials are
hereafter referred to as the "Documentation"). By downloading, installing,
copying or otherwise using or leasing the Software, you agree to be bound by the
terms of this Agreement. The Software is the property of SalesLogix and its
licensors and is protected by copyright law. While SalesLogix continues to own
the Software, you will have certain rights to use the Software after your
acceptance of this Agreement. Except as may be modified by a separate printed or
signed license agreement which accompanies the Software, your rights and
obligations with respect to the use of the Software are as follows.
1. GRANT OF LICENSE. SalesLogix grants to you, and you accept by
downloading, installing or using or leasing the software or opening a sealed
media package, a non-exclusive license to use the Software and the Documentation
on the following terms.
. Software. Your rights to install and/or access and use the Software will be
determined by whether you have purchased rights to access and use the
Remote Client, Web Client and Workgroup Client versions of the Software, or
have only purchased the rights to access and use the Web Client version of
the Software.
. Remote Client Software. Remote Client Software. Remote Client means a full
working version of the Software that resides on your personal computer with
a local database and allows you to synchronize with and access the Software
(and the remote databases contained in the Software) residing on a hosted
server system (consisting of computer hardware, networking equipment and
associated system software ("Hosted System")) maintained by your
application service provider ("ASP"). If you have purchased lease licenses
to the Remote Client version of the Software you may install the Remote
Client on the number of personal computers for which you have purchased
licenses, and for each license purchased you may make one copy of the
software solely for back-up purposes.
. Workgroup Client Software. Workgroup Client means a full working version of
the Software that resides on a Hosted System maintained by your ASP and
which may be accessed by you through a Microsoft Terminal Server or Citrix
Metaframe connection via direct dial or via the Internet. If you have
purchased lease licenses to the Workgroup Client version of the Software
you may access and use such Software pursuant to the terms of this license
and your separate agreement with your ASP.
. Web Client Software. Web Client shall mean a thin version of the Software
in DHTML format that resides on a Hosted System maintained by your ASP and
which may be accessed by you through the internet. If you have purchased
lease licenses to the Web Client version of the Software you may access and
use such Software pursuant to the terms of this license and your separate
agreement with your ASP.
. License Numbers. Upon executing an agreement with your ASP for the
Software, you may receive a set of license numbers which, when entered on
the Software, will allow you to access the Software to the extent of the
number and types of Software licenses for which you have purchased lease
licenses. You agree not to disclose these key numbers to third parties or
attempt to make any use of the key numbers to expand the number of users
who may access the Software in excess of the lease licenses purchased by
you.
. Restrictions. You may not: use, copy, or transfer copies of the Software
except as provided for in this Agreement; reverse engineer, modify,
decompile or disassemble the Software: or rent, lease, sublicense or assign
the Software or any copy thereof, including any related Documentation
except only to the extent expressly permitted by law. If notwithstanding
the foregoing applicable law grants you the right to decompile the Software
to the extent necessary to obtain information to achieve interoperability
with an independently created computer program, you may exercise such right
if SalesLogix shall fail, upon your prior written request, to provide the
relevant interoperability information within a reasonable amount of time.
2. LIMITED MEDIA WARRANTY. SalesLogix warrants the diskettes, if any, on
which the Software is
1
furnished to you shall be free from defects in material and workmanship under
normal use for a period of sixty (60) days (the "warranty period") from the date
of the Software's delivery to you. Any replacement Software will be warranted
for the remainder of the original warranty period or thirty (30) days, whichever
is longer.
3. LIMITATIONS OF REMEDIES. The remedy described in Section 2 shall be your
sole and exclusive remedy from SalesLogix for errors in the Software and EXCEPT
FOR THE LIMITED WARRANTY DESCRIBED IN SECTION 2. SALESLOGIX DISCLAIMS ALL OTHER
WARRANTIES CONCERNING THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SALESLOGIX
OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT,
INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR
THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF SALESLOGIX HAD BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
4. EXPORT XXXXXXX.Xxx may not export, ship, transmit or reexport the Software
or Documentation in violation of any applicable law or regulation including,
without limitations, the Export Administration Regulations issued by the United
States Department of Commerce.
5. UNITED STATES GOVERNMENT RESTRICTED RIGHTS. The Software and Documentation
are provided with restricted rights. If you are purchasing this product for use
by the United States government or any of its agencies, you need to enter into a
separate restricted rights agreement with Saleslogix. Use, duplication or
disclosure by the United States government is subject to restricted rights as
set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and
Computer Software clause of DFARS at 252.227-7013 and in the Federal Acquisition
Regulations, 48 C.F.R. (S)(S) sections 12.212 and 52.227-19.
6. GOVERNING LAW. The validity, construction and performance of this Agreement
and legal relations between the parties to this Agreement shall be governed and
construed in accordance with the laws of the State of Arizona. United States of
America, excluding that body of law applicable to conflicts of law and excluding
the United Nations Convention on Contracts for the International Sale of Goods,
if applicable.
7. ASP AGREEMENT; TERMINATION RIGHTS. This Agreement sets forth only the
Agreement between you and SalesLogix. Your Agreement with your ASP will provide
for additional terms and conditions which govern your lease of the Software
described in this Agreement. SalesLogix or your ASP may terminate your licenses
under this Agreement or your separate ASP Agreement if you fail to comply with
the terms and conditions of this Agreement or if your rights to use the Software
expire pursuant to the terms of your agreement with your ASP. Upon such
expiration or termination, you agree to destroy all your copies of the Software.
Should you have any questions concerning this Agreement, write to SalesLogix
Corporation, 0000 Xxxxx Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx
00000, X.X.X.
SalesLogix Multi-User License Agreement - for use with ASP Leases
Revision Date: July 1, 1999
2
Schedule D
Dispute Resolution Procedures:
The parties hereto deem it to be in their respective best interests to
settle any dispute as expeditiously and economically as possible. Therefore, the
parties expressly agree to submit any dispute between them arising out of or
relating to this Agreement ("Dispute") to mediation as set forth below. The
dispute resolution proceedings shall be conducted in Phoenix, Arizona, in the
English language. The parties agree to use the following procedure in good faith
to resolve any Dispute:
A. A meeting shall be held among the parties within ten (10) days after any
party gives written notice of the Dispute to each other party ( the "Dispute
Notice") attended by a representative of each party having decision-making
authority regarding the Dispute (subject to board of directors or equivalent
approval, if required), to attempt in good faith to negotiate a resolution of
the Dispute.
B. If, within twenty (20) days after the Dispute Notice, the parties have not
succeeded in negotiating a written resolution of the Dispute, upon written
request by any party to each other party all parties will promptly negotiate in
good faith to jointly appoint a mutually acceptable neutral person not
affiliated with any of the parties (the "Neutral"). If all parties so agree in
writing, a panel of two or more individuals (such panel also being referred to
as the "Neutral") may be selected by the parties. The parties shall seek
assistance in such regard from the American Arbitration Association (the "AAA")
if they have been unable to agree upon such appointment within thirty (30) days
after the Dispute Notice. The fees and costs of the Neutral and of any such
assistance shall be shared equally among the parties.
C. In consultation with the Neutral, the parties will negotiate in good faith
to select or devise a nonbinding alternative dispute resolution procedure
("Mediation") by which they will attempt to resolve the Dispute, and a time and
place for the Mediation to be held, with the Neutral (at the written request of
any party to each other party) making the decision as to the procedure if the
parties have been unable to agree on any of such matters in writing within
ten (10) days after selection of the Neutral.
D. The parties agree to participate in good faith in the Mediation to its
conclusion; provided, however, that no party shall be obligated to continue to
participate in the Mediation if the parties have not resolved the Dispute in
writing within ninety (90) days after the Dispute Notice and any party shall
have terminated the Mediation by delivery of written notice of termination to
each other party following expiration of said 90-day period. Following any such
termination notice after selection of the Neutral, and if any party so requests
in writing to the Neutral (with a copy to each other party), then the Neutral
shall make a recommended resolution of the Dispute in writing to each party,
which recommendation shall not be binding upon the parties; provided, however,
that the parties shall give good faith consideration to the settlement of the
Dispute on the basis of such recommendation, and if the parties are unable to
resolve the Dispute on the basis of such recommendation, then either party may
seek to resolve the Dispute through other means, including litigation. In the
event of litigation or arbitration, the party seeking further
1
resolution shall pay the reasonable attorneys' fees, costs and other expenses
(including expert witness fees) of the other party incurred in connection with
the pursuit of (and defense against) such litigation arbitration, if the result
thereof is less favorable to the party pursuing the litigation or arbitration
than the recommendation of the Neutral.
E. Notwithstanding anything herein to the contrary, nothing in these
procedures shall preclude any party from seeking interim or provisional relief,
in the form of a temporary restraining order, preliminary injunction or other
interim equitable relief concerning the Dispute (or to prevent or enjoin any
unauthorized use, disclosure, misappropriation or infringement of intellectual
property or other confidential information), either prior to or during the
Mediation, and in any court of competent jurisdiction, if necessary to protect
the interests of such party. Further, this paragraph shall be specifically
enforceable.
2
