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EXHIBIT 10.10
BRIGHTWARE, INC.
AUTHORIZED OEM/RESELLER AGREEMENT
This Authorized OEM/Reseller Agreement (the "Agreement") is entered into as of
December 22, 1998, (the "Effective Date") by and between Brightware, Inc., a
Delaware corporation, having its principal place of business at 000 Xxxxxxx
Xxxx., Xxxxxx, XX 00000 ("Brightware"), and Quintus Corporation, a Delaware
corporation with its principal place of business at 00000 Xxxxxxx Xxxxx Xxxxx,
Xxxxxxx, XX 00000. ("Company").
In consideration of the covenants and conditions contained herein, the parties
agree as follows:
1. DEFINITIONS.
1.1 "Documentation" shall mean the related materials customarily
supplied by Brightware to end users of the Licensed Software.
1.2 "End-User" shall mean a third party to whom Company licenses the
Integrated Software or the Licensed Software solely for internal use and not for
resale. In the case of Company's internal use of the Integrated Software or
Licensed Software, Company shall be deemed the End-User.
1.3 "Integrated Software" shall mean the Company products described
in Exhibit A which are sold in conjunction with the Licensed Software.
1.4 "Licensed Software" shall mean the Brightware proprietary
computer software programs identified in Exhibit A attached hereto, in object
code form only, and any Updates provided by Brightware to Company under this
Agreement.
1.5 "Updates" shall mean any error corrections or modifications
which Brightware at its sole discretion deems to be logical improvements to the
Licensed Software previously supplied to Company under the Agreement, and which
Brightware makes generally available to other licensees, and does not separately
price or market.
2. GRANT OF RIGHTS.
2.1 Licenses. Subject to the terms and conditions of this Agreement,
Brightware, hereby grants to Company a limited, nonexclusive, nontransferable,
worldwide license during the term of this Agreement to (i) market and distribute
the Licensed Software and Documentation solely as part of the Integrated
Software in object code format for use by End-Users for their internal business
purposes only, (ii) allow Company's current resellers and distributors (as set
forth in Exhibit E attached hereto) and future resellers and distributors upon
Brightware's prior written consent, such consent not to be unreasonably
withheld, the right to market and distribute the Licensed Software and
Documentation, solely as part of the Integrated Software in object code format
for use by End Users for their internal business purposes only, provided such
reseller and/or distributor sublicenses
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the Licensed Software in accordance with terms and conditions no less
restrictive than those provided herein, and (ill) use the Licensed Software for
its own internal use. Company shall have no right to use, license, distribute or
otherwise transfer the Licensed Software or Documentation other than those
rights specifically granted hereunder.
2.2 End-User License. Company agrees to accompany each copy of the
Licensed Software and Documentation with an end-user license agreement no less
protective of Brightware than the agreement attached hereto as Exhibit B, as
modified from time to time by Brightware (the "End-User Agreement").
2.3 Diligence. Company shall use its best efforts to promote and
market the Licensed Software. Except as expressly set forth herein, Company
shall be solely responsible for all costs and expenses related to the
advertising, marketing, promotion, and distribution of the Integrated Software
and for performing its obligations hereunder.
2.4 No Competitive Products. Company shall not include in the
Integrated Software any products whose sale is competitive (i.e. email
management software and/or automated email response software) with the Licensed
Software.
2.5 Development Copy. Company may use an unlimited number of copies
of Answer Agent and Contact Center on an unlimited number of development and
test servers, at no additional charge, solely for demonstration, evaluation,
training, development and testing purposes during the term of this Agreement.
Such copies may not be deployed for operational use.
2.6 No Other Rights. All rights not expressly granted to Company
herein are retained by Brightware. Company agrees not to decompile,
reverse-engineer or otherwise attempt to derive or modify the Licensed Software
source code nor authorize or permit any third party to do so.
3. COMPENSATION.
3.1 Fees. Company agrees to pay to Brightware the license fee set
forth in Exhibit C (the "License Fee") with respect to each copy of the
Integrated Software distributed by Company.
3.2 Payment. On the eighth day of each new quarter, Company shall
submit to Brightware, a report detailing the number of copies of the Licensed
Software and maintenance licensed to End Users in conjunction with the
Integrated Software. Such report shall be in English and in reasonable detail as
mutually agreed to by both parties, showing the basis for the payment which
shall include, without limitation, a full explanation of the nature of each
Licensed Software copy made by Company during the prior quarter for which a
License Fee is not being paid. Payment for such fees shall be due and payable
[*] days from the last day of the preceding quarter.
3.3 Records; Audit Rights. Company shall maintain complete and
accurate books and records with respect to copies and distribution of Licensed
Software, or otherwise pertaining to the payment of fees hereunder until at
least three (3) years after termination of this Agreement. Brightware shall at
any time, on at least twenty (20) business days prior notice to Company, be
entitled to retain an accounting firm to audit the books and records of Company
pertaining to the payment of fees to Brightware hereunder, for the sole purpose
of confirming the accuracy of the
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
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License Fee payments. Such accounting firm shall execute a nondisclosure
agreement prior to any such audit. Any such audit shall be performed at
Brightware's expense during normal business hours. In the event of any
underpayment of License Fees, Company shall promptly remit to Brightware all
amounts due.
3.4 Taxes. All payments to Brightware hereunder shall be net of all
sales, use, and other taxes which may be imposed upon such payments.
4. LIMITED WARRANTIES.
4.1 Product Warranty. Brightware warrants to Company and End User
that, for a period of ninety (90) days from the date of delivery of the Licensed
Software (a) the media on which the Licensed Software is furnished will, under
normal use, be free from defects in material and workmanship and (b) the
Licensed Software will perform in accordance with the Documentation.
Brightware's sole obligation under this warranty, and Company's exclusive
remedy, shall be that Brightware at its sole option and expense shall use
commercially reasonable efforts to repair, so that it becomes noninfringing
while giving equivalent performance, or replace any non-conforming Licensed
Software with substantially equivalent functional software. Customer has the
right to terminate this Agreement should the Licensed Software not conform to
the then current Documentation, provided Customer has given Brightware written
notification of such nonconformance and such nonconformance has not been cured
within a sixty (60) day period, commencing upon receipt of such written
notification. In the event Brightware is unable to correct the non-conformity,
Brightware's sole liability and Customer's sole remedy shall be a refund of the
License Fees paid to Brightware. If Customer terminates this Agreement, Customer
shall immediately return to Brightware or destroy the Licensed Software and all
related Documentation at Brightware's option. Upon receipt or destruction of the
Licensed Software and related Documentation, Brightware shall refund the fees
paid by Customer relating to the specific non-conforming Licensed Software.
4.2 The warranty set forth above is made to and for the benefit of
Company only. The warranty will apply only if:
(a) the Licensed Software has been installed and used at all
times and in accordance with the Documentation;
(b) no modification, alteration or addition has been made to
the Licensed Software by persons other than Brightware or its authorized
representative;
(c) the media in which the Licensed Software is embedded has
not been (i) subject to accident, or misuse, or (ii) operated with other media
not meeting or not maintained in accordance with the manufacturer's
specifications.
4.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE LICENSED
SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS." BRIGHTWARE MAKES NO OTHER
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE
LICENSED SOFTWARE, THE DOCUMENTATION OR ANY SERVICES
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PROVIDED HEREUNDER, AND BRIGHTWARE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY.
4.4 Representations. Company shall not make any warranties or
representations binding on Brightware with respect to the Licensed Software, and
Company shall limit its representations regarding the Licensed Software to those
contained in this Agreement. Company shall indemnify and hold Brightware
harmless from and against warranty claims made by End-Users for warranties made
by Company that exceed the scope of the warranty expressly set forth above.
5. PROPERTY RIGHTS.
5.1 Property Rights. Company acknowledges and agrees that, as
between Company and Brightware, Brightware owns all right, title, and interest
in and to the Licensed Software and Documentation subject to this Agreement, and
in all of Brightware's patents, trademarks, trade names, inventions, copyrights,
know-how and trade secrets relating to the design, manufacture, marketing,
operation or service of the Licensed Software.
5.2 Proprietary Notices. Company will ensure that all copies of the
Licensed Software, the Documentation and the Integrated Software reproduced or
distributed by Company, as applicable, will incorporate all copyright or other
proprietary notices in the same manner that Brightware incorporates such notices
in the Licensed Software or Documentation or in any other manner reasonably
requested by Brightware. Company shall not, and shall require that its End-Users
do not, remove, alter, cover or obfuscate any copyright notices or other
proprietary rights notices placed on, or embedded in the Licensed Software or
Documentation by Brightware.
5.3 Restrictions. Company shall not alter or remove any of
Brightware's trademarks, marks or trade names (collectively "Trademarks")
affixed to the Licensed Software by Brightware. Except as set forth in this
Section 5.4, nothing contained in this Agreement shall grant or shall be deemed
to grant to Company any right, title or interest in or to Brightware's
Trademarks. At no time during or after the term of this Agreement shall Company
challenge or assist others to challenge Brightware's Trademarks (except to the
extent such restriction is expressly prohibited by applicable law) or the
registration thereof or attempt to register any trademarks, marks or trade names
confusingly similar to those of Brightware. Upon termination of this Agreement,
Company shall immediately cease to use all Brightware's Trademarks.
5.4 Goodwill. Any and all goodwill arising from Company's use of the
Brightware Trademarks shall inure solely to the benefit of Brightware when and
as, on an on-going basis, such acquisition of goodwill occurs, as well as at the
expiration or termination of this Agreement, without any separate payment or
other consideration of any kind to Company and Company agrees to take all such
actions necessary to effect such vesting.
5.5 Branding. Upon Brightware's request, Company shall place one or
more of Brightware's Trademarks on any copies of the Integrated Software and any
promotional materials or advertisements therefor.
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6. CONFIDENTIAL INFORMATION.
6.1 Definition. As used in this Agreement, the term "Confidential
Information" shall mean any information disclosed by one party to the other
pursuant to this Agreement which is in written, graphic, machine readable or
other tangible form and is marked "Confidential", "Proprietary" or in some other
manner to indicate its confidential nature. Confidential Information may also
include oral information disclosed by one party to the other pursuant to this
Agreement, provided that such information is designated as confidential at the
time of disclosure and reduced to a written summary by the disclosing party,
within a reasonable time period after its oral disclosure, which is marked in a
manner to indicate its confidential nature and delivered to the receiving party.
Notwithstanding the foregoing, the Licensed Software and Documentation shall be
deemed the Confidential Information of Brightware without the necessity of
marking.
6.2 General. During the term of this Agreement and for a period of
three (3) years thereafter, each party shall treat as confidential all
Confidential Information of the other party, shall not use such Confidential
Information except as expressly set forth herein or otherwise authorized in
writing, shall implement reasonable procedures to prohibit the disclosure,
unauthorized duplication, misuse or removal of the other party's Confidential
Information and shall not disclose such Confidential Information to any third
party except as may be necessary and required in connection with the rights and
obligations of such party under this Agreement, and subject to confidentiality
and nonuse obligations at least as protective as those set forth herein. Without
limiting the foregoing, each of the parties shall use at least the same
procedures and degree of care which it uses to prevent the disclosure of its own
confidential information of like importance to prevent the disclosure of
Confidential Information disclosed to it by the other party under this
Agreement, but in no event less than reasonable care. The parties further agree
to keep confidential the terms and conditions of this Agreement.
6.3 Exceptions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which: (i) was generally known and available in the public domain at the time it
was disclosed or becomes generally known and available in the public domain
through no fault of the receiving party; (ii) was known to the receiving party
at the time of disclosure; (iii) is disclosed with the prior written approval of
the disclosing party; (iv) was independently developed by the receiving party
without any use of the disclosing party's Confidential Information; or (v)
becomes known to the receiving party from a source other than the disclosing
party without breach of this Agreement by the receiving party and otherwise not
in violation of the disclosing party's rights. In addition, the receiving party
shall be entitled to disclose the other party's Confidential Information to the
extent such disclosure is required by order or requirement of a court,
administrative agency, or other governmental body, provided however, that the
receiving party shall provide prompt notice thereof to the disclosing party to
enable the disclosing party to seek a protective order or otherwise prevent or
restrict such disclosure.
6.4 Employee Amendments. Each party shall obtain the execution of
non-disclosure agreements with its employees, agents and consultants having
access to Confidential Information of the other party, and shall diligently
enforce such agreements.
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6.5 Remedies. If either party breaches any of its obligations with
respect to confidentiality and unauthorized use of Confidential Information
hereunder, the other party shall be entitled to equitable relief to protect its
interest therein, including but not limited to injunctive relief, as well as
money damages.
7. INTELLECTUAL PROPERTY INDEMNITY.
7.1 Indemnification. Brightware shall defend, or at its option
settle, at its own expense, any claim, suit or proceeding brought against
Company, its officers, employees, directors and agents and Brightware agrees to
pay, subject to the limitations hereinafter set forth, all reasonable damages
and costs (including reasonable attorney's fees), finally awarded against
Company, as a result of any such claim or any settlement entered into in good
faith on such issue in any such suit or proceeding, alleging that use of the
Licensed Software or distribution of the Licensed Software as part of the
Integrated Software as contemplated hereunder infringes any patent, copyright or
trade secret of any third party (collectively, "Intellectual Property Rights"),
subject to the limitations hereinafter set forth. Company shall (i) notify
Brightware promptly of such claim, suit or proceeding, (ii) provide Brightware
with sole control of any such action or settlement negotiations (it being
understood that Company may participate in such action at Company expense with
counsel of its own choosing), and (iii) give Brightware authority to proceed as
contemplated herein, and, at Brightware's expense, give Brightware proper and
full information and assistance to settle and/or defend any such claim, suit or
proceeding. If it is adjudicatively determined, or if Brightware believes it may
be determined, that the Licensed Software infringes any Intellectual Property
Right, then Brightware may, at its sole option and expense, and in a reasonable
time frame, either (a) procure for Company the right under such Intellectual
Property Right to use or distribute such Licensed Software as contemplated
herein; (b) replace or modify the Licensed Software with other functionally
equivalent software; or (c) if (a) and (b) are not practicable, as determined in
Brightware's sole discretion, terminate this Agreement with respect to such
Licensed Software and refund to Company all license fees paid by Company for the
terminated Licensed Software, less an amount equal to one sixtieth (1/60th) of
such license fees for each month or any portion thereof which has elapsed since
the commencement of the applicable license. Brightware will not be liable for
any costs or expenses incurred without its prior written authorization.
7.2 Limitation. Notwithstanding the provisions of Section 7.1 above,
Brightware assumes no liability to the extent such claims are based on (i) the
use of the Licensed Software other than as set forth in the Documentation; (ii)
the use of other than the most recent version and prior sequential version of
the Licensed Software; (iii) combination or use of the Licensed Software with
software not provided by Brightware if the infringement would have been avoided
by use of the Licensed Software alone; (iv) any marking or branding not applied
by Brightware or applied at the request of an authorized employee of Company; or
(v) any modification of the Licensed Software, or any part thereof, unless such
modification was made by or authorized by Brightware, if the infringement would
have been avoided in the absence of such modification.
7.3 Entire Liability. THE FOREGOING PROVISIONS OF THIS SECTION 7
STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF BRIGHTWARE, AND THE EXCLUSIVE
REMEDY OF COMPANY, WITH RESPECT TO THE INFRINGEMENT OF ANY PATENT,
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COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE LICENSED
SOFTWARE.
8. LIMITED LIABILITY.
8.1 EXCEPT FOR LIABILITY UNDER SECTIONS 6 AND 7, IN NO EVENT SHALL
EITHER PARTY'S LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF
THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY RECEIVED BY BRIGHTWARE. IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY
SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR THE LOSS OF USE, LOSS OF PROFITS AND/OR FOR THE LOSS OF DATA OR
INFORMATION OF ANY KIND UNDER ANY CAUSE OF ACTION, WHETHER FOR BREACH OF
CONTRACT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY OR
ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTHING IN THIS
SECTION 8 IS INTENDED TO EXCLUDE OR RESTRICT EITHER PARTY'S LIABILITY FOR DEATH
OR PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY THE GROSS NEGLIGENCE OF SUCH
PARTY OR ITS EMPLOYEES OR AGENTS.
9. TERM AND TERMINATION.
9.1 Term. This Agreement shall commence upon the Effective Date and
shall continue in force for an initial term of one (1) year unless terminated
earlier under the terms of this Section 9. Thereafter, this Agreement may be
renewed for successive one (1) year terms unless terminated by either party as
set forth herein.
9.2 Termination. This Agreement may be terminated by either party
upon sixty (60) days written notice for no cause or if the other party (i)
breaches any material term or condition of this Agreement and fails to remedy
the breach within thirty (30) days after being given notice thereof, or (ii)
ceases to function as a going concern or to conduct operations in the normal
course of business, (iii) has a petition filed by or against it under any state
or federal bankruptcy or insolvency laws which petition has not been dismissed
or set aside within sixty (60) days of filing.
9.3 Effect of Termination. In the event this Agreement is
terminated, Company rights under this Agreement shall terminate, provided,
however, that Company shall have the right to distribute its inventory of
Integrated Software in existence as of the date of termination, and each
End-User's right to use the Integrated Software previously licensed to it by
Company shall survive. All Licensed Software and other Brightware materials
provided hereunder will remain the property of Brightware. Within thirty (30)
days after the termination of this Agreement, Company will prepare all such
items in its possession or control for shipment, or destroy such materials as
Brightware may direct. Upon termination of this Agreement, neither party will
retain any copies of Confidential Information which may have been entrusted to
it by the other party, and within thirty (30) days of a written request by the
other party, an authorized representative of each party shall certify to the
other party that all copies of Confidential Information of the other party
received hereunder have been returned or destroyed. Notwithstanding the
foregoing, Company may retain one (1) copy of the Licensed Software and one (1)
copy of any related Documentation and may use
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such materials internally as is necessary to support its installed End-User
base. Company may honor any outstanding quotes for potential End Users for a
period of sixty (60) days commencing with the termination of this Agreement.
9.4 Limitation. In the event of termination by either party in
accordance with any of the provisions of this Agreement, neither party shall be
liable to the other because of such termination, for compensation, reimbursement
or damages on account of the loss of prospective profits or anticipated sales or
on account of expenditures, inventory, investment, leases or commitments in
connection with the business or goodwill of Brightware or Company. Termination
shall not, however, relieve either party of obligations incurred prior to the
termination.
9.5 Survival of Provisions. The provisions of Sections 3, 4, 5, 6,
7, 8, 9.3, 9.4 and 10 of this Agreement shall survive the termination of this
Agreement for any reason. All other rights and obligations of the parties shall
cease upon termination of this Agreement.
10. MAINTENANCE AND ENHANCEMENT
10.1 Maintenance. Provided the Licensed Software is used in
accordance with the terms and conditions of the Agreement, and provided Company
pays the applicable maintenance fee for each copy of the Licensed Software
distributed as set forth herein, Brightware will provide technical support,
upgrades and enhancements to the Company as indicated herein for the current,
unaltered version of the Licensed Software.
10.2 Updates & Enhancements. Brightware shall provide Updates and
enhancements (which may include the relevant Documentation) which Brightware at
its sole discretion deems to be logical improvements to the Licensed Software
previously supplied to Company under the Agreement, and which Brightware makes
generally available to other licensees, and does not separately price or market.
Any Updates or enhancements that are provided to Company shall be deemed part of
the Licensed Software and shall be used in accordance with the requirements and
obligations set forth in the Agreement. Company shall be responsible for
distributing such Updates and enhancements of the Licensed Software directly to
End Users who are then receiving maintenance services from the Company. This
Section 10 shall not pertain to any new products, which Brightware separately
prices.
10.3 End User Support. Company shall provide first level of support
for the Licensed Software directly to End Users and shall be responsible for
receiving and responding to all calls for maintenance and support from the End
Users and for performing initial problem analysis and diagnosis. Brightware
shall have no obligation to accept any calls from End Users.
10.4 Company Support. In the event the Company is unable to resolve a
given problem, the Company may request Brightware to assist with the diagnosis
and resolution of such problem and will provide Brightware with all data and
information requested by Brightware for such purposes. Brightware shall supply
technical support to Company for the Licensed Software via Brightware's standard
Maintenance Plan attached hereto as Exhibit D. Company will designate two
primary and two secondary representatives as points of contact to Brightware.
Company shall provide technical support to Company's End Users for the Licensed
Software. If reasonably
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required, Brightware will provide on-site support to Company for the Licensed
Software at Brightware's then-current fees for such services.
11. MISCELLANEOUS.
11.1 Assignment. Neither this Agreement nor any rights under this
Agreement may be assigned or otherwise transferred by Company, in whole or in
part, without the prior written consent of Brightware, which consent shall not
be unreasonably withheld, or whether voluntary or by operation of law, including
by way of sale of assets, merger or consolidation, without prior written
notification to Brightware. Notwithstanding the foregoing, this Agreement shall
be binding upon and inure to the benefit of each party's successors and assigns.
11.2 Notices. All notices, demands or consents required or permitted
under this Agreement shall be in writing. Notice shall be considered delivered
and effective (a) when personally delivered; (b) the day following transmission
if sent by telex, telegram or facsimile followed by written confirmation by
registered overnight carrier or certified United States mail; (c) one (1) day
after posting when sent by registered private overnight carrier (e.g., DHL,
Federal Express, etc.); or (d) five (5) days after posting when sent by
certified United States mail. Notices shall be sent to the parties at the
addresses set forth on the first page of this Agreement or at such other address
as shall be given by either party to the other in writing.
11.3 Publicity. Neither party will issue a press release or any other
announcement regarding this Agreement, or the relationship contemplated herein
unless both parties consent in writing, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing, each party shall have the ability to
list the other party as a customer in its product literature and marketing
materials, including without limitation, on each party's website. In addition,
the parties agree to cooperate in issuing jointly approved press releases
concerning this Agreement, including without limitation an initial such release
within thirty (30) days after the Effective Date of this Agreement.
11.4 Partial Invalidity. If any paragraph, provision, or clause in
this Agreement shall be found or be held to be invalid or unenforceable in any
jurisdiction in which this Agreement is being performed, the remainder of this
Agreement shall be valid and enforceable and the parties shall negotiate, in
good faith, a substitute, valid and enforceable provision which most nearly
effects the parties' intent in entering into this Agreement.
11.5 Counterparts. This Agreement may be executed in two (2) or more
counterparts, all of which, taken together, shall be regarded as one and the
same instrument.
11.6 Waiver and Amendment. No modification, amendment or waiver of
any provision of this Agreement shall be effective unless in writing and signed
by the party to be charged. The failure of either party to enforce at any time
the provisions of this Agreement shall in no way constitute a present or future
waiver of such provisions, nor in any way affect the right of either party to
enforce each and every such provision thereafter.
11.7 Independent Contractors. The relationship of Brightware and
Company established by this Agreement is that of independent contractors, and
nothing contained in this Agreement shall
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be construed to constitute the parties as partners, joint venturers, co-owners
or otherwise as participants in a joint or common undertaking, or allow either
party to create or assume any obligation on behalf of the other party. All
financial obligations associated with a party's business are the sole
responsibility of such party.
11.8 Governmental Approvals. Company represents and warrants that it
will obtain all required approvals of the government of any country outside the
United States in which it markets or distributes the Licensed Software in
connection with this Agreement.
11.9 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California without
reference to its conflict of law principles and excluding the 1980 United
Nations Convention on Contracts for the International Sale of Goods.
11.10 Jurisdiction; Venue. Any disputes under this Agreement shall be
subject to the exclusive jurisdiction and venue of the California State courts
and the Federal courts located in San Francisco County, California and the
parties hereby consent to the personal and exclusive jurisdiction and venue of
these courts.
11.11 Force Majeure. Nonperformance of either party, except the
payment of money, shall be excused to the extent that performance is rendered
impossible by strike, fire, acts of God, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure to perform
is beyond the reasonable control of and is not caused by the negligence of the
nonperforming party.
11.12 Source Code. Brightware agrees to maintain the source code for
the Licensed Software (including all updates thereof) in both human and
machine-readable form in escrow for the benefit of Company. In the event that
Brightware becomes subject to any bankruptcy proceedings, whether voluntary or
involuntary, or ceases its business operations, then Company shall be entitled
to access the source code for the sole purpose of maintaining and updating the
Licensed Software. To the extent that Company receives access to source code as
set forth herein, Brightware grants Company a non-exclusive, non-transferable
license without right of sublicense, to install and use, execute, display,
modify and perform the source code solely for the purposes of maintaining,
operating, upgrading and enhancing the Licensed Software for use by Company in
an object code format solely pursuant to the license granted in Section 2 of the
Agreement.
11.13 Entire Agreement. The terms and conditions herein contained,
including all Exhibits which are incorporated herein by reference, constitute
the entire agreement between the parties and supersede all previous agreements
and understandings, whether oral or written, between the parties hereto with
respect to the subject matter hereof, and no agreement or understanding varying
or extending the same shall be binding upon either party hereto unless in a
written document signed by the party to be bound thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the date first above
written.
BRIGHTWARE, INC. COMPANY
By: /s/ XXXXX XXXXXXXX By: /s/ XXXX X. XXXXXXXX
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Name: Xxxxx Xxxxxxxx Name: Xxxx X. Xxxxxxxx
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Title: CEO Title: VP & Corporate Controller
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EXHIBIT A
LICENSED SOFTWARE AND
INTEGRATED SOFTWARE
1. LICENSED SOFTWARE:
The Licensed Software includes the current releases of Answer Agent and Contact
Center.
2. INTEGRATED SOFTWARE:
The Integrated Software is the combination of the Licensed Software and any of
the following Company proprietary software that adds value for the End-User when
sold as a combined unit:
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EXHIBIT B
END-USER LICENSE AGREEMENT
(Attached)
LICENSE AND MAINTENANCE CONDITIONS
1. LICENSE
Brightware grants and Licensee accepts a nonassignable, nontransferable,
non-exclusive perpetual license to use the Brightware(R) software product(s)
("Product(s)") and associated documentation and reference ("Technical Reference
Material") specifically identified in one or more mutually agreed upon schedules
hereto ("Product Schedule(s)"), which upon execution shall be attached hereto
and incorporated herein by reference. The Parties agree that the license granted
hereunder may pertain to more than one Product. Accordingly, the rights granted
to Licensee with respect to a particular Product shall be referred to herein as
a "Product License."
For annual licenses, the license granted hereunder shall be automatically
renewed for successive one year terms Licensee provides Brightware written
request to not renew the license, provided that such request is received by
Brightware at least sixty (60) days prior to the expiration of the then-current
license term. The license fee for each one year term renewal shall be as set
forth on the applicable Schedule C-2 attached hereto and shall remain at the
same price for each successive renewal of the license.
Licensee understands and agrees that any consulting service agreement and
associated statement of work that may be signed are separate and independent
contractual obligations from any schedule relating to software licenses.
Licensee shall not withhold payments that are due and payable under a schedule
relating to a software license because of the status of work performed under any
consulting service agreement that may be signed. In addition, the ability to
provide such services is not exclusive or specific to Brightware and is
commercially available from third party service providers. The types of services
to be provided under a consulting order are standard implementation assistance
which does not include complex interfaces, custom interfaces, custom
modifications and the like.
2. USE
The Products and Technical Reference Materials shall be used by Licensee solely
for Licensee's own internal use and subject to the rights and requirements
specified in the applicable Product Schedule(s) and this Agreement.
Licensee may make one archival/back-up copy of each Product to perform
site-specific backup, provided that such archival/backup copy is not used in a
production mode. Licensee acknowledges and agrees that such archival/backup copy
shall be the sole property of Brightware. Licensee further
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agrees to reproduce and include on such archival/backup copy all proprietary
and copyright notices appearing on the original Product.
3. WARRANTIES
Brightware warrants and represents that it has the full right, power and
authority to enter into this Agreement and to grant to Licensee the rights
herein granted.
Brightware warrants that upon delivery of each Product supplied to Licensee
hereunder and for a period of thirty (30) days thereafter (the "Warranty
Period"), the Product will perform in substantial conformance with the
specifications contained in the Technical Reference Material provided by
Brightware with the Product. Licensee shall immediately notify Brightware in
writing of any alleged nonconformance which occurs during the Warranty Period
("Notice of Nonconformance"). To the extent that a current unaltered release of
the Product fails to substantially conform with the specifications contained in
the Technical Reference Material (hereafter a "Substantial Nonconformance"), and
provided the alleged Substantial Nonconformance can be replicated by Brightware,
Brightware's liability under this warranty shall be limited to, at Brightware's
election, either: (i) using its best efforts to correct any Substantial
Nonconformance in the Product; or (ii) as Brightware may reasonably deem
necessary, replacing all or any part of the Product causing such Substantial
Nonconformance; provided in each case, however, that written notice of such
Substantial Nonconformance must be received by Brightware during the Warranty
Period. If such correction or replacement cannot be accomplished within thirty
days of Brightware's receipt of the Notice of Nonconformance, Licensee may, as
its sole remedy, terminate the Product License for the nonconforming Product. If
Licensee, terminates any Product License in accordance with this Section 3,
Licensee shall immediately return to Brightware the Product and all related
Technical Reference Material and shall provide to Brightware the certification
required under Schedule B, Section 6. Upon receipt of the Product, related
Technical Reference Material and required certification, Brightware shall refund
the license fees paid by Licensee for such Product. Upon licensee's receipt of
the Product, maintenance for the Product shall commence as set forth under the
Maintenance and Enhancement Plan, which is attached hereto and incorporated
herein by reference.
WITH THE EXCEPTION OF THE EXPRESS WARRANTIES CONTAINED IN SECTION 3 ABOVE,
BRIGHTWARE HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED (IN FACT OR IN LAW)
WARRANTIES FOR THE PRODUCT(S) AND TECHNICAL REFERENCE MATERIAL PROVIDED BY
BRIGHTWARE IN ACCORDANCE WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES AS TO THE ACCURACY, COMPLETENESS AND NON-INFRINGEMENT OF THE
PRODUCT(S) AND TECHNICAL REFERENCE MATERIAL, AS WELL AS THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. BRIGHTWARE ALSO
EXPRESSLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF
THE PRODUCT(S) WILL BE ERROR-FREE.
4. MAINTENANCE AND ENHANCEMENT
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Provided the Product specified in Schedule C ("Covered Product") is used in
accordance with the terms and conditions of the Agreement, and provided Licensee
pays the applicable maintenance fee set forth in Schedule C, Brightware will
provide technical support, upgrades and enhancements as indicated herein for the
current, unaltered version of the Covered Product.
Brightware shall provide updates and enhancements (which may include the
relevant Technical Reference Material) which Brightware at its sole discretion
deems to be logical improvements to the Covered Product previously supplied to
Licensee under the Agreement, and which Brightware makes generally available to
other licensees, and does not separately price or market. Any updates or
enhancements that are provided to Licensee shall be deemed part of the Covered
Product and shall be used in accordance with the requirements and obligations
set forth in the Agreement. This Section 4 shall not pertain to any new products
which Brightware separately prices.
Brightware shall supply telephone support to Licensee for the Covered Product
via Brightware's "Support Hotline" in accordance with the terms of Schedule E.
If reasonably required, Brightware will provide on-site support to Licensee for
the Covered Product at Brightware's then-current fees for such services.
GENERAL TERMS AND CONDITIONS
1. PROPRIETARY INFORMATION
(a) OWNERSHIP: The Product(s) and Technical Reference Material, and all
tangible and intangible information related in any manner to the Product(s) and
Technical Reference Materials (whether or not protectible by patent, copyright
or trade secret rights), including without limitation works of authorship,
inventions, discoveries, patentable subject matter, patents, patent
applications, industrial models, industrial designs, trade secrets, trade secret
rights, software, copyrighted works, copyrightable subject matter, copyright
rights and registrations, know-how and show-how, trademarks, trade names,
service marks, emblems, logos, insignias and related marks and registrations,
specifications, technical manuals and data, libraries, blueprints, drawings,
proprietary processes, customer information, marketing information, product
information and development work-in-process (collectively, "Proprietary
Information") are and shall remain the sole property of Brightware and/or the
third party licensors from whom Brightware obtained rights in such Proprietary
Information ("Third Party Licensors"), and nothing in this Agreement shall be
construed to convey to Licensee any title or ownership right in any of the
Proprietary Information.
In the course of performing the Services, Brightware may employ, use and refine
knowledge, techniques, programs, processes and methodologies owned by Brightware
as of the Effective Date and used by Brightware in providing like or similar
services to its other clients (the "Brightware Technology"). Brightware owns and
shall retain all rights, title and interest in and to the Brightware Technology
and nothing in this Agreement shall be construed to restrict Brightware from
using any Brightware Technology in the course of its work for any other person
or entity either during or after the term of this Agreement.
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(b) CONFIDENTIALITY: Licensee agrees to hold the Proprietary Information in
confidence and thus not to furnish, sell, give, assign, disclose, distribute or
otherwise make the Proprietary Information available to any other person, party,
firm, corporation or entity without the prior written consent of Brightware.
Notwithstanding the foregoing, Licensee may (i) disclose certain Proprietary
Information to consultants, agents or contractors under contract with Licensee
as required in connection with their duties for and on behalf of Licensee and
who have agreed in writing prior to Licensee's disclosure not to perform any act
in violation of this Section 1 and (ii) publicly discuss the merits and benefits
of the Product(s), and give recommendations and testimonials about the
Product(s).
(c) TRADEMARKS: Licensee recognizes the exclusive right of Brightware to all
trademarks and trade names owned and/or used by Brightware in connection with
the Product(s) and agrees not to use such trademarks or trade names in any
manner or for any reason without the prior written consent of Brightware.
(d) RESTRICTIONS: Unless otherwise permitted under the terms of this
Agreement, Licensee shall not make, sell, reproduce, prepare derivative works
based on, distribute copies of, or publicly display any Product(s) or Technical
Reference Material. Further, Licensee shall not reverse engineer, decompile,
disassemble or apply any process, technique, procedure or make any attempt to
ascertain or derive the source code of any Product.
(e) REMEDIES: Licensee acknowledges and agrees that any breach of its
obligations under this Section 1 may cause irreparable harm to Brightware and/or
its Third Party Licensors and that Brightware and each of its Third Party
Licensors shall have the right to take all reasonable steps to protect their
proprietary interests, including but not limited to seeking injunctive relief
and any other remedy as may be available at law or in equity in the event
Licensee does not fulfill its obligations under this Section 1.
(f) SCOPE: The provisions of this Section 1 shall apply to (i) the
Product(s) as delivered or subsequently modified by Brightware and (ii) all
Proprietary Information given to Licensee prior to the Effective Date of this
Agreement.
(g) LICENSEE'S CONFIDENTIAL BUSINESS INFORMATION: Brightware agrees to
maintain the confidentiality of certain materials and data relating to the
Licensee's business which are made available to Brightware in connection with
this Agreement, and which are not publicly known or available from other
sources, and which Licensee indicates in writing are confidential prior to
disclosure to Brightware.
(h) RETURN OF CONFIDENTIAL INFORMATION: Upon expiration or termination of
this Agreement for any reason or no reason, each party shall return to that
other party all tangible materials embodying the other party's confidential
information, including any documentation, records, listings, notes, data,
sketches, drawings, memoranda, models, accounts, reference materials, samples,
machine-readable media and equipment which in any way relate to the confidential
information. The Parties agree not to retain any copies (in any form) of any of
the above materials containing the other party's
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confidential information. The provisions of this Section 1 shall survive
termination or expiration of this Agreement and any Schedule(s) hereunder.
2. RECORDS
Licensee shall keep and maintain at each of the Licensee Locations complete and
accurate books of account relating to use, relocation (as provided herein) and
creation by Licensee of all archival/backup copies of the Product(s) made
pursuant to Schedule A Section 2, and, upon Brightware's request, shall provide
such records to Brightware.
Licensee agrees to allow Brightware, with reasonable prior notice, to enter
Licensee's facility during regular business hours to (i) audit the number of
archival/backup copies of Product(s) made in accordance with Schedule A Section
2, and (ii) review Licensee's overall compliance with the other provisions of
this Agreement. The obligations and rights set forth in this Section 2 shall
remain in effect for six (6) months after the termination or expiration of this
Agreement.
3. PROPRIETARY RIGHTS INDEMNIFICATION
Brightware will defend at its expense any action brought against Licensee which
is based on a claim that a Product, as used within the scope of the license
granted hereunder, infringes a United States patent, copyright or trade secret
of a third party, and will pay (i) any settlement agreed to by Brightware, or
(ii) the costs and damages finally awarded to such third party; provided,
however, that in either case that Licensee notifies Brightware promptly in
writing of the claim, and allows Brightware to fully control the defense and
settlement of such claim.
If any Product becomes, or in Brightware's opinion is likely to become, the
subject of a claim of infringement of any United States patent, copyright or
trade secret owned by any third party, Brightware may, at its election, either:
(i) procure for the Licensee the right to continue using the Product; (ii)
replace or modify the Product to make it non-infringing; or (iii) terminate the
Product License for the Product. Upon termination of the Product License in
accordance with Section 6, Licensee shall immediately return to Brightware all
copies and all versions of the Product and all related documentation, in
accordance with the obligations set forth in Section 6(b) of this Agreement and
shall provide to Brightware the certificate required under Section 6(b).
Brightware shall thereafter refund to Licensee all license fees paid by Licensee
for the terminated Product License, less an amount equal to one sixtieth
(1/60th) of such license fees for each month or any portion thereof which has
elapsed since the commencement of the applicable Product License. Brightware
shall have no liability for any claim of infringement by a Product based upon
Licensee's: (i) use of any version of the Product other than the latest
unmodified release; (ii) use or combination of the Product with non-Brightware
programs or data if such infringement would not have occurred without such use
or combination; or (iii) use of the Product after receiving notice that the
Product infringes a patent, copyright or trade secret of a third party.
This Section 3 states the entire liability of Brightware and the sole and
exclusive remedies of Licensee with respect to any Product's infringement of any
patent, copyright or trade secret of any
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third party, and Brightware shall have no liability with respect to any other
proprietary rights, including without limitation any non-U.S. proprietary
rights.
4. INDEMNIFICATION
Licensee shall indemnify Brightware and hold it harmless for and against any and
all claims, damages, losses, costs, expenses, obligations, liabilities, actions,
suits, including without limitation, interest and penalties, attorney's fees and
costs and all amounts paid in settlement of any claim, action or suit which may
be asserted against Brightware or which Brightware shall incur or suffer which
arise out of, result from or are related to: (i) the non-fulfillment of any
covenant or obligation of Licensee in connection with this Agreement; (ii) the
breach of any representation made by Licensee under this Agreement; (iii) the
results obtained or decisions made by users of any Product; (iv) any claim of
any nature whatsoever brought by any third person or entity who may suffer
damages of any sort as a direct or indirect result of Licensee's activities
relating to or in connection with any Product; or (v) any claims of infringement
of any copyright, patent or trade secret or other proprietary rights arising
from any unauthorized modification, enhancement or misuse of any Product by
Licensee.
5. LIMITATION OF LIABILITY
NEITHER BRIGHTWARE NOR ANY THIRD PARTY LICENSOR SHALL BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR THE LOSS OF USE, LOSS OF PROFITS AND/OR FOR THE
LOSS OF DATA OR INFORMATION OF ANY KIND, ARISING OUT OF OR RELATED IN ANY MANNER
TO THIS AGREEMENT, THE PRODUCT(S) OR TECHNICAL REFERENCE MATERIAL SUPPLIED
HEREUNDER OR THE USE OF SUCH PRODUCT(S) OR TECHNICAL REFERENCE MATERIAL, EVEN IF
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, NEITHER BRIGHTWARE NOR
ANY THIRD PARTY LICENSOR SHALL BE LIABLE FOR ANY LOSS OR DAMAGE RELATED TO ANY
RESULTS OBTAINED OR DECISIONS MADE BY LICENSEE IN CONNECTION WITH THE USE OF THE
PRODUCT(S) OR TECHNICAL REFERENCE MATERIAL.
EXCEPT AS OTHERWISE SPECIFIED IN SECTION 6 OF THIS AGREEMENT, BRIGHTWARE'S
LIABILITY, IF ANY, TO LICENSEE, WHETHER IN CONTRACT OR IN TORT (AND WHETHER OR
NOT BASED ON NEGLIGENCE OR STRICT LIABILITY), FOR DAMAGES OR LOSSES OF ANY
NATURE, SHALL NOT EXCEED THE LICENSE FEE PAID BY LICENSEE UNDER THIS AGREEMENT
FOR THE SPECIFIC PRODUCT WHICH CAUSED SUCH DAMAGE OR LOSS.
BRIGHTWARE SHALL NOT BE LIABLE FOR DELAYS IN THE PERFORMANCE OF ITS OBLIGATIONS
UNDER THIS AGREEMENT DUE TO CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, BUT
NOT LIMITED TO, ACTS OF GOD, STRIKES OR INABILITY TO OBTAIN LABOR OR MATERIALS.
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6. TERMINATION
(a) BY BRIGHTWARE: In addition to the termination rights set forth under
Schedule A Section 3, and Section 3 above, if Licensee fails to fulfill any of
its obligations under this Agreement, Brightware may upon its election and in
addition to any other remedies it may have, upon written notice to Licensee of
the breach and failure of Licensee to cure such breach within two (2) weeks
thereof (unless such breach cannot be cured by its very nature), terminate all
of the rights granted to Licensee by Brightware under this License Agreement,
including without limitation all Product Licenses created hereunder.
(b) LICENSEE RESPONSIBILITIES: Upon termination of either this entire
Agreement or a particular Product License granted under the Agreement, Licensee
shall, within two (2) weeks of such termination, return to Brightware all copies
of the terminated Product(s) and all related Technical Reference Material in
Licensee's possession or control. Licensee shall further certify to Brightware,
in a writing signed by an officer of Licensee, that it has ceased using the
terminated Product(s) and has retained no copies of such terminated Product(s).
The provisions of Section 3 shall survive termination of this License Agreement
and any Product Licenses created hereunder.
7. EXPORT OF PRODUCTS
Licensee acknowledges and agrees that export or re-export of the Product(s) may
be subject to Licensee obtaining specific approvals as may be required by United
States export laws and regulations. Licensee shall at all times comply with
United States export control laws and regulations in connection with matters
relating to this Agreement. Distribution of the Product(s) in any foreign
country where the proprietary rights of Brightware in the Product(s) would not
be recognized and protected under the laws of such country is prohibited.
8. GENERAL
(a) ATTORNEYS' FEES: In the event that litigation or arbitration arises to
resolve differences or disputes in connection with the interpretation or
enforcement of this Agreement, reasonable attorneys' fees, costs and expenses
shall be awarded to the prevailing party.
(b) ASSIGNMENT: Licensee may not, without the prior written consent of
Brightware, assign or transfer this Agreement or any obligation hereunder. Any
attempt to do so in contravention of this paragraph shall be void and of no
force and effect. Further, nothing contained in this Agreement, expressed or
implied, is intended to confer upon any person or entity other than the Parties
and their successors in interest and permitted assignees, any rights or remedies
resulting from this Agreement.
(c) FORCE MAJEURE: Brightware shall not be liable for any delay,
nonperformance, or related damages, if such delay or nonperformance was due to
causes beyond its reasonable control, including, but not limited to, acts of
God, electrical power failure, loss of communications, or the delay of Licensee
to provide items as set forth herein.
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(d) COUNTERPARTS: This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
(e) ENTIRE AGREEMENT: This Agreement, including its Schedule(s), constitutes
the entire understanding between Brightware and Licensee relating to the terms
and conditions of the Products provided and Services to be performed. This
Agreement supersedes all prior understandings, agreements and documents relating
to the subject matter hereof and shall not be amended except in writing signed
by both Parties.
(f) GOVERNING LAW: This Agreement shall be construed and enforced in
accordance with the laws of the state of California.
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EXHIBIT C
LICENSE FEES
1. First Copy Special Pricing Offer.
THE FOLLOWING PRICE FOR THE INITIAL COPY OF LICENSED SOFTWARE IS SUBJECT TO THE
EXECUTION OF THIS AGREEMENT BY DECEMBER 30, 1998:
ITEM QUANTITY FEES
---- -------- ----
Answer Agent (for Resale) 2
Contact Center (for Resale) 2
Answer Agent (internal production use) 1
Contact Center (internal production use 1
with unlimited seats)
Answer Agent (for development and testing) Unlimited
Contact Center (for development and testing) Unlimited
TOTAL LICENSE FEE [*]
ON SITE TRAINING [*] days for up to
[*]
[*] employees
FIRST YEAR'S MAINTENANCE FOR INTERNAL USE LICENSES [*]
TOTAL FEES DUE: [*]
PAYMENT TERMS:
[*] shall be due and payable March 31, 1999
[*] shall be due and payable June 30, 1999
2. SUBSEQUENT ANNUAL PRICING
Company shall receive a [*] discount off the then current list price for all
future licenses sold.
Company shall receive one additional copy of Answer Agent and Contact Center
should Brightware reduce its price [*] percent [*] below the net license fees
set forth herein for a period of [*] days commencing on the Effective Date of
this Agreement.
LICENSED SOFTWARE LIST PRICE DISCOUNT COMPANY PRICE
----------------- ---------- -------- -------------
Answer Agent [*] [*]% [*]
-----------------------------------------------------------------------
Contact Center (includes [*] [*]% [*]
[*] Named User Licenses)
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
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LICENSED SOFTWARE LIST PRICE DISCOUNT COMPANY PRICE
----------------- ---------- -------- -------------
Additional Contact Center [*] [*]% [*]
[*] Named User Licenses*
-----------------------------------------------------------------------
Additional Contact Center [*] [*]% [*]
[*] Concurrent User
Licenses
* Additional Contact Center Licenses are only sold in allotments of 10
Licenses. Company shall receive a discounted rate of [*]/hour on
Brightware Consulting Services.
3. Maintenance Fee for Resale Licenses Maintenance fee for Resale Licenses
shall be [*] percent [*] of the net license fee Company charges it's
End-Users.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
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SCHEDULE D
MAINTENANCE PLAN
Terms and Conditions
Company shall, as soon as it is reasonably able to do so, inform Brightware of
any defect in the Licensed Software of which it becomes aware and provide to
Brightware such further information relating to the defect as is available to
Company and which Brightware may reasonably request in order to enable it to
provide maintenance for the Licensed Software.
STANDARD SUPPORT PLAN PROVIDES THE FOLLOWING:
o Extended - hours unlimited phone support, 5:30 AM to 5:30 PM Pacific
Time, Monday through Friday.
o After hours calls on a [*] fee per call basis.
o Right to receive technical support, upgrades and enhancements for the
current unaltered version of the Licensed Software.
o Service levels: one (1) hour response, regular status updates, and queue
priority.
MAINTENANCE SUPPORT MINIMUM RESPONSE GUARANTEES ARE:
o Inquiries received via phone call will open a trouble ticket, if the
issue is not solved during the initial call, an analyst will follow-up
within 24 hours with the current status.
o Problems that are not resolved within 48 hours will be escalated first
to the Support Manager, second to Development and third to Executive
management.
o Inquiries received via e-mail will be acknowledged within one hour, and
updates and escalation will be identical to inquiries received via
phone.
EXCLUSIONS:
Brightware shall not be responsible for the correction of defects in the
Licensed Software attributable to:
o Alterations, adaptations or changes to the Licensed Software not made by
or under the supervision or direction of Brightware.
o Use of, connection or installation of the Licensed Software with any
other software or equipment not supplied by or authorized by Brightware.
[*] Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
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o Any breach of any of the Company's obligations under this Agreement.
o Accidental or deliberate damage to the Licensed Software.
COMPANY RESPONSIBILITIES:
o Company shall keep and operate the Licensed Software in accordance with:
(i) this Agreement; and (ii) Brightware's reasonable instructions given
from time to time and shall ensure that only competent trained employees
(or persons under their supervision) are allowed to use and operate the
Licensed Software (provided that anyone trained by Brightware shall be
treated as being competent and trained).
o Company shall provide to Brightware all facilities and services
reasonably required by Brightware to enable it to perform its
obligations under this Agreement including computer runs, printouts,
data preparation, telephone and fax facilities, photocopying and modem
links.
o Company shall keep such records, as Brightware reasonably requires of
the maintenance history of the Licensed Software and allow Brightware to
inspect and take copies of such records upon reasonable notice to the
Company.
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EXHIBIT E
LIST OF COMPANY'S RESELLERS AND DISTRIBUTORS
(WHICH ARE SUBJECT TO CHANGE FROM TIME TO TIME)
25
