5.10[1] Pre-Development Marketing AgreementThis PRE-DEVELOPMENT MARKETING AGREEMENT (this Agreement) is made by and
between ______________, with a place of business at _______________ (Developer),
and ______________, with offices at _______________ (Marketer).
1. Recitals.
1.1. Developer is in the business of developing and licensing software for
electronic data interchange and would like to market certain portions of this
software and related products and services with Marketer; and
1.2. Marketer is in the business of providing messaging and electronic
data interchange services and would like to market Developer software as part of
its value-added services to customers.
2. Definitions.
2.1. "Alternate Transaction" has the meaning set forth in Section 4.12.2.
2.2. "Business Day" means a calendar day other than a Saturday, Sunday or
holiday recognized by either Developer or Marketer.
2.3. "Commercial Release Date" has the meaning set forth in Section 4.6.
2.4. "Confidential Information," with respect to a party to this
Agreement, means information (1) concerning the terms and conditions of this
Agreement; (2) media that carries a legend reasonably identifying same as
proprietary, confidential or private information; or (3) orally disclosed where
the provider of such information contemporaneously indicates the confidential
nature thereof and gives written notice to the party to this Agreement receiving
such information of the oral disclosure within thirty (30) days following the
disclosure, identifies the place of oral disclosure and the names of the
recipient's employees or agents to whom the disclosure was made (or otherwise
sufficiently identifies the meeting at which or the circumstances under which
such disclosure was made so that each employee or agent of the party to this
Agreement receiving such disclosure can be promptly identified), describes the
information disclosed and identifies such information as proprietary,
confidential or private. Notwithstanding the foregoing, Confidential Information
will not include information that (1) is previously known to the recipient
thereof without obligation of confidence, or without breach of this Agreement;
(2) is publicly disclosed through no wrongful act of the recipient; (3) is
received from a third party without obligation of confidence and without breach
of this Agreement; (4) is independently developed by the recipient without
access to information described in the previous sentence; (5) is approved for
release by written authorization of the owner thereof; or (6) is disclosed by
the owner thereof to third parties without disclosure restrictions.
2.5. "Discounted Delivery Term" has the meaning set forth in Section 4.11.
2.6. "EDI" means electronic data interchange.
2.7. "Escrow Account" has the meaning set forth in Section 4.9.
2.8. "Escrow Agreement" has the meaning set forth in Section 4.9.
2.9. "Equivalent Offer" has the meaning set forth in Section 4.12.2.
2.10. "Exclusivity Term" has the meaning set forth in Section 4.12.
2.11. "Exclusivity Termination Notice" has the meaning set forth in
Section 4.12.2.
2.12. "Fee Differential" has the meaning set forth in Section 4.6.
2.13. "Finder's Fee" has the meaning set forth in Section 3.1.
2.14. "Intermediary" has the meaning set forth in Section 4.12.2.
2.15. "Lead Notice" has the meaning set forth in Section 3.1.
2.16. "Lead Period" has the meaning set forth in Section 3.1.
2.17. "Mainframe EDI software" means software owned and commercially
licensed for mainframe computers by Developer, including (1) application
development software; (2) process management software; (3) compilers; (4)
testing tools; (5) application integration software; (6) scripting tools; and/or
(7) cross-platform enabling software.
2.18. "PC EDI software" means that software to be developed by Developer
pursuant to Section 4.1.
2.19. "Recoupment Amount" has the meaning set forth in Section 4.6.
2.20. "Recoupment Period" has the meaning set forth in Section 4.6.
2.21. "Reserve Amount" means fifteen percent (15%) of the Total Marketer
Payment.
2.22. "Scheduled Completion Date" has the meaning set forth in Section
4.3.1.
2.23. "Total Marketer Payment" means the total of payments from Marketer
to Developer called for by Section 4.3.
3. Mainframe EDI Software.
3.1. Finder's Fees. Marketer will, during the Marketing Term (as defined
below), market and identify prospective licensees of Mainframe EDI software.
Marketer will provide written notice to Developer (the Lead Notice) of
prospective licensees who in Marketer's reasonable determination (1) intend to
purchase Mainframe EDI software within six (6) months of Marketer's first
written disclosure to Developer of such lead; (2) have budgeted or otherwise
available funds adequate to purchase Mainframe EDI software; and (3) have or
plan to acquire a technical environment which can support Mainframe EDI
software. The Lead Notice will include relevant information required for
Developer to contact the prospective licensee. Developer will determine in its
sole discretion whether any prospective licensee of Mainframe EDI software of
which it is notified by Marketer meets the criteria described in this Section
3.1. If Developer and any such prospective licensee enter into a license for
Mainframe EDI software within six (6) months of Marketer's first written
disclosure to Developer of such lead (the Lead Period), Developer will pay to
Marketer fifteen percent (15%) of the total license fees paid by such licensee
with respect to licenses executed by such licensee within the Lead Period
(Finder's Fee). Developer will extend the Lead Period in its reasonable
discretion if and to the extent active negotiations take longer than six (6)
months. Finder's Fees will be paid by Developer within thirty (30) days after
Developer's receipt of the related license fees. If and to the extent Marketer
funds the license of Mainframe EDI software, Marketer may either (1) pay license
fees as may be agreed to by Marketer and Developer including the applicable
Finder's Fee, and then allocate such Finder's Fee in its sole discretion
(without application of Section 3.2); or (2) pay license fees as may be agreed
to by Marketer and Developer deducting the Finder's Fee from the license fee,
without application of Section 3.2.3.2. Application of Finder's Fees. Marketer will pay an amount equal to at
least one-fifth (1/5th) of the Finder's Fee it receives from Developer with
respect to any license of Mainframe EDI software to sales person(s) and
technical support representative(s) finding and/or servicing such licensee.
3.3. Responsibilities. Marketer will locate and verify prospective
licensees at its own expense. Developer will at its own expense be responsible
for licensing Mainframe EDI software to prospective licensees referred by
Marketer, for maintaining such software and for supporting such licensee's use
of such software, all as Developer and such licensee may agree.
3.4. Marketing Term. The Marketing Term will begin on the effective date
of this Agreement and continue for two (2) years. Thereafter, the Marketing Term
will automatically be extended for twelve- (12-) month intervals unless either
party notifies the other of its intention to terminate the Marketing Term at
least thirty (30) days prior to the date for such automatic renewal.
4. PC EDI Software.
4.1. Development. Developer will develop PC EDI software according to the
schedule set forth in Section 4.3.
Release 1.0 will support interface with Marketer's network services using
such protocols as are specified in Appendix A. Neither release will provide for
any trademark or other non-functional customization for Marketer. Functionality
of the commercial release of the software will conform to those specifications
set forth in Appendix A hereto.
Appendix A may be replaced without amendment of this Agreement by the
dating and execution of a replacement of Appendix A pursuant to Section 17.2.
4.2. Enhancements. Enhancements to PC EDI software in addition to those
specified in Appendix A will be provided for consideration and according to a
schedule as may be agreed by Developer and Marketer. If Marketer and Developer
cannot so agree, Marketer may provide personnel to access PC EDI software source
code at Developer facilities and implement such enhancements. In such event,
Marketer will (1) reimburse Developer for its expenses incurred in providing
Marketer personnel such access; and (2) pay Developer on a time and materials
basis for supervising such Marketer personnel; (3) execute such confidentiality
agreements, assignments of work product or other documents as Developer
reasonably determines are necessary to effect and maintain Developer sole
ownership of both PC EDI software and the modifications made thereto by
Marketer; and (4) be subsequently responsible for maintaining PC EDI software as
so modified by Marketer. In the unlikely event Developer subsequently markets PC
EDI software as modified by Marketer outside the scope of this Agreement,
Developer will thereupon assume maintenance responsibility for such software
under this Agreement.
4.3. Marketer Payments. Marketer will pay Developer the following amounts
within thirty (30) days following the later of (1) Developer's invoice therefor;
or (2) acceptance pursuant to Section 4.4 of the associated deliverable, if any,
according the following schedule:
Date Deliverable Amount
None $
Requirements document
Design documents $
None $
Translation test results $
None $
Communication test results
Trading partner set-up test results
Mapping test results $
Release 0.8
In basket/Out basket capability
Application interface $
Release 1.0 Test results
E-Mail capability
Professional user documents $
Payments scheduled above are payments in consideration of the next- or
currently scheduled deliverable. Acceptance of a deliverable scheduled above by
Marketer pursuant to Section 4.4 constitutes Marketer's confirmation and
ratification of the exchange of the deliverable so accepted and the
consideration therefor.
4.3.1. Completion Bond. Developer will either (1) allow Marketer to
withhold the Reserve Amount from payments otherwise due from Marketer in 20__,
pro rata according to the amount of each such payment, and pay the aggregate of
such withholding upon acceptance of Release 1.0 of PC EDI pursuant to Section
4.4; or (2) provide Marketer, at Developer's expense, a completion bond in a
face amount equal to the Reserve Amount, collectible by Marketer more than
thirty (30) days but less than sixty (60) days after the mutually agreed,
scheduled date for the completion of Release 1.0 of PC EDI software (the
Scheduled Completion Date) in the event that PC EDI software is not completed by
Developer by the Scheduled Completion Date.
4.3.2. Completion Incentive. The Total Marketer Payment will be
increased by five percent (5%) in the event Release 1.0 of PC EDI software is
delivered by Developer ninety (90) or more days prior to the date such delivery
is called for by Section 4.3 and will be decreased by five percent (5%) in the
event Release 1.0 of PC EDI software is delivered by Developer ninety (90) or
more days after the date such delivery is called for by Section 4.3.
4.4. Acceptance. Marketer and Developer will jointly determine the
acceptability of scheduled deliverables. Marketer and Developer will jointly
determine acceptance test criteria for Release 1.0 of PC EDI software no later
than ____________.4.5. Steering Committee; Subsequent Meetings. Marketer may at its own
expense participate in Developer's steering committee for PC EDI software.
Developer's steering committee for PC EDI software generally meets every thirty
(30) to sixty (60) days. After dissolution of such steering committee and during
the term of this Agreement, Developer and Marketer will meet periodically to
discuss further product enhancements, marketing efforts and other matters
relevant to each party's performance under this Agreement.
4.6. Recoupment by Marketer. As soon as practicable after receiving a
purchase order from Marketer, Developer will provide Marketer with the ordered
number of copies of its PC EDI software free of charge until the Fee
Differential equals the total of Marketer payments made to Developer pursuant to
Section 4.2 plus an amount equal to (1) fifteen percent (15%) of the total
payments made by Marketer to Developer pursuant to Section 4.3, if all of such
payments have been made as scheduled; or (2) zero, if all payments required by
Section 4.3 have not been made as scheduled (such total being referred to herein
as the Recoupment Amount). The "Fee Differential," as used in the prior
sentence, means the aggregate product of (1) the number of copies of PC EDI
software in each shipment to Marketer by Developer pursuant to this Section 4.6;
multiplied by (2) two-thirds (2/3s) of the per copy end-user license fee then-
charged by Developer. If the Fee Differential is less than the Recoupment Amount
by the date which is three (3) years after the date version 1.0 of the PC EDI
software is released (the Commercial Release Date; such period being hereinafter
referred to as the "Recoupment Period"), Marketer will have the option to
receive from Developer up to a number of copies of PC EDI software sufficient to
make the Fee Differential equal the Recoupment Amount, where such option must be
exercised through notice to Developer within thirty (30) days after the end of
the Recoupment Period. In the event that Marketer does not so opt to receive
such copies of PC EDI software within the period stated in the previous
sentence, the Recoupment Amount will be deemed to equal the Fee Differential
upon and after the end of such period and Developer's obligations pursuant to
this Section 4.6 will be deemed satisfied with no further provision of software
to Marketer pursuant to this Section 4.6.
4.7. Project Scope Verification. No later than ____________, Marketer will
estimate the cost of the development activities undertaken by Developer pursuant
to Section 4.1 using the hourly rates and other unit costs as provided Marketer
by Developer. If Marketer's estimate is either less than four thirds (4/3s) or
more than eight thirds (8/3s) of the Total Marketer Payment, Marketer and
Developer will, within thirty (30) days of the provision by Marketer to
Developer of such an estimate, agree to and execute an amendment to this
Agreement replacing Sections 4.3 and 4.6.
4.8. Distribution by Marketer. Marketer or its agents will distribute
copies of PC EDI software only to persons using or intending to use other
Marketer services, either directly or through EDI hubs using Marketer services.
Marketer will only distribute copies of PC EDI software to those persons who
have properly completed and executed a license agreement in the form of Exhibit
A hereto. Marketer will send at least one (1) original, properly completed and
executed license agreement to Developer as soon as practicable after the
completion and execution of same to a person as Developer will from time to time
designate through written notice to Marketer, or in the absence of such
designation, to the Developer address for notice pursuant to Section 17.10.
Marketer or its agents will only distribute PC EDI software in object code form.
Marketer hereby indemnifies Developer and holds Developer harmless from any and
all failures of Marketer and/or Marketer's agents to comply with the
requirements of this Section 4.8.4.8.1. Private Label Option. Marketer will have the option of
private labeling PC EDI software on terms as Marketer and Developer may agree.
4.9. Source Code Escrow. By the later of (1) thirty (30) days after the
execution of a Technology Escrow Agreement in the form of Exhibit B hereto, or
another agreement of substantially similar form and substance (the Escrow
Agreement); or (2) ninety (90) days after the Commercial Release Date, Developer
will deposit into the escrow account established pursuant to the Escrow
Agreement (the Escrow Account) the source code and related documentation for
Release 1.0 of PC EDI software. Developer will subsequently deposit into the
Escrow Account updates to Release 1.0 within sixty (60) days of the commercial
release thereof. The deposit in the Escrow Account will be released to Marketer
upon the failure of Developer to support PC EDI Software as required by this
Agreement for sixty (60) days after notice to Developer from Marketer of such
failure and of Marketer's intention to exercise its rights under this Section
4.9. In the event of a release of the deposit in the Escrow Account, Marketer
will use the materials in such deposit only to provide substitute performance of
Developer's obligations under this Agreement, which substitute performance, by
itself, will neither reduce Developer's liability for breach nor reduce or
restrict its rights under this Agreement. Notwithstanding any contrary provision
of this Agreement, Marketer will maintain the confidentiality and trade secret
status of all the materials in such deposit so long as Marketer holds such
materials or any copies or derivatives thereof. Developer's obligation with
respect to this Section 4.9 is contingent on Marketer's payment of all fees
charged by the escrow agent under the Escrow Agreement.
4.10. Training Copies. Developer will provide free of charge to Marketer
twenty (20) copies of its PC EDI software for internal training use only
pursuant to Developer standard license agreement therefor. Software provided
pursuant to this Section 4.10 will not be subject to Section 4.6.
4.11. Discounted Delivery. After the termination of the Recoupment Period
pursuant to Section 4.6, Marketer may from time to time purchase PC EDI software
from Developer for no more than two-thirds (2/3s) of the then-current licensee
fee offered by Developer to end-users. Marketer's right to purchase such
software will continue until Developer ceases selling such software, but in no
event will such right terminate less than five (5) years after the Commercial
Release Date (the term of such right is herein referred to as the "Discounted
Delivery Term").
4.12. Marketer Exclusivity. Developer will not enter into a marketing
relationship with respect to the PC EDI software contemplated by this Section 4
with those entities listed in Appendix B hereto for one (1) year after the
Commercial Release Date (the Exclusivity Term) unless pursuant to Section 4.12.2.
4.12.1. Products Subject to Exclusivity. PC EDI software, all
updates thereto and all enhancements thereto undertaken pursuant to this
Agreement or undertaken at Developer's sole expense will be subject to this
Section 4.12. This Agreement will in no way prohibit or restrict Developer from
developing similar products to those subject to this Section 4.12.
4.12.2. Right of First Refusal. During the Exclusivity Period,
Developer may provide notice to Marketer of its intent to exercise its right to
terminate the Exclusivity Period pursuant to this Section 4.12.2 (the
Exclusivity Termination Notice). The Exclusivity Termination Notice will
disclose whether Developer is then pursuing a transaction which would, if
consummated, breach the provisions of Section 4.12 (an Alternate Transaction).
If there is no Alternate Transaction, Developer may terminate the Exclusivity
Period upon payment to Marketer of an amount based on the following schedule: DateAmount
Up to three months before the Commercial Release Date $ More than three but less than six months after the
Commercial Release Date $
More than six but less than nine months after the
Commercial Release Date $
More than nine but less than twelve months after the
Commercial Release Date $
Twelve months or more after the Commercial Release Date $ If there is an Alternate Transaction, Developer may terminate the
Exclusivity Period upon payment to Marketer of an amount based on the schedule
above unless the following takes place:
(1) Marketer and Developer agree, within five (5) days of the date
of the Exclusivity Termination Notice, on a certified public accountant or a
certified public accounting firm (the Intermediary) to develop with Developer an
offer equivalent to the Alternate Transaction (the Equivalent Offer) for
Marketer's acceptance or rejection pursuant to this Section 4.12.2. (2) The Intermediary develops the Equivalent Offer within two (2)
weeks of the date of the Exclusivity Termination Notice. (3) Marketer either accepts and signs a written agreement effecting
the Equivalent Offer or rejects the Equivalent Offer within thirty (30) days
after the date of the Exclusivity Termination Notice.
The Intermediary will base the Equivalent Offer on information provided by
Developer, including, without limitation, sales projections for the Alternate
Transaction, sales history under this Agreement, the economic terms of the
Alternate Transaction, relative market position of the parties involved in the
Alternate Transaction, Developer and Marketer and other information Developer
deems relevant. The Intermediary will have no access to the names or
confidential information of parties other than Developer involved in the
Alternate Transaction unless disclosed with the consent of Developer and such
other parties. The Intermediary will execute such agreements as Developer
reasonably deems necessary to protect the confidentiality of information
disclosed to the Intermediary pursuant to this Section 4.12.2. The Intermediary
will accept projections and statements as to fact as presented to it by
Developer and will have no liability for the inaccuracy thereof as so presented
by Developer. The Equivalent Offer will be presented to Marketer after agreed to
by the Intermediary and Developer and will consist of those terms which, if
agreed to by Marketer, would have an economic impact for Developer equivalent to
consummation of Alternate Transaction. If Marketer accepts the Equivalent Offer
and executes an agreement effecting same as required by this Section 4.12.2,
Developer will terminate negotiations with respect to the Alternate Transaction.
4.13. Service. Marketer will answer all initial service calls from
licensees of PC EDI software receiving such software pursuant to this Section 4.
Marketer will at its own expense and in its reasonable discretion provide
sufficient staff, adequately trained, to provide problem determination and
resolution for such users of PC EDI software. Developer will provide reasonable
secondary technical support to such Marketer personnel without charge to Marketer.
4.14. Training. Developer will provide Marketer with twenty (20) Business
Days of training. This training will be provided at Developer's ____________
facility or at other locations as Marketer notifies Developer. Marketer will
reimburse Developer for all reasonable travel expenses incurred in providing
such training at sites other than Developer's ____________ facility within
thirty (30) days of Developer's invoice therefor.
5. Finder's Fee to Developer. Marketer will pay to Developer finder's fees for
referrals of purchasers of network services from Marketer in amounts and on
terms to be agreed upon by Marketer and Developer on or before ____________.
6. No Transfer of Title or License. In no event will this Agreement be construed
to license or otherwise convey or transfer any of Developer's title or interest
in and to any of its software to Marketer except for the grant to Marketer of
rights to market Mainframe EDI software pursuant to Section 3 and to market and
distribute PC EDI software pursuant to Section 4.
7. Trading Partner Program Services. Developer will provide training and
consulting services to Marketer as Marketer's subcontractor as reasonably
required to support Marketer's Trading Partner Program. Marketer will pay
Developer for such services at Developer's standard rates, and will reimburse
Developer for all reasonable out-of-pocket expenses incurred by Developer in
providing such services. Any charges for such services will be due and payable
by Marketer within thirty (30) days of Developer's invoice therefor.
8. Market Communications. The parties will agree on the timing and content of
press releases and market communications concerning this Agreement, including,
but not limited to, a press release to be issued as soon as practicable after
execution of this Agreement. Marketer will not make any claims of functionality
for Developer EDI software that are inconsistent with the specifications
therefor and will not misrepresent the terms of the standard license agreements
therefor as offered by Developer and as disclosed by Developer to Marketer.
Marketer will communicate to all licensees of PC EDI software pursuant to
Section 4 that it is responsible for all associated customer interface and
first-tier customer technical support.
9. Trademarks. Marketer agrees to include in all its promotional literature and
other advertising in which Mainframe EDI software, PC EDI software are
explicitly or implicitly mentioned or referred to a phrase indicating by product
name that such items are proprietary products of Developer and that the product
names are trademarks of Developer. Marketer and Developer each agree to obtain
the other's prior approval to all usage of the other's trademarks or trade names.
10. Compliance with Laws. Marketer will not export or otherwise remove Products,
Joint Technology or any portion of either from the United States of America or
Puerto Rico, either directly or indirectly, without first obtaining any licenses
or approvals as may be required from the U.S. Department of Commerce and any
other applicable agency or department of the United States Government.
11. Confidential Information. 11.1. Generally. Developer and Marketer each agree that the Confidential
Information received from the other will be received and held by it in strict
confidence, will be used only for purposes of this Agreement and that no
Confidential Information will be disclosed by the recipient thereof, or by its
agents or employees (collectively, Recipient), without the prior written consent
of the provider of same (Owner), except (1) as otherwise allowed by this
Agreement; or (2) in response to a valid order of a court or other governmental
body of the United States or any political subdivision thereof, provided,
however, that Recipient will promptly give advance notice to Owner in order that
Owner may obtain a protective order requiring that the information or documents
so requested be used only for the purpose for which the order was issued.
11.2. Precautions. Recipient will use the same degree of care to avoid
unauthorized disclosure or use of Confidential Information as Recipient employs
with respect to its own proprietary information of like importance, but at least
a reasonable degree of care. Disclosure will be limited to Recipient's
employees, agents and contractors who have a "need to know" the Confidential
Information and who have agreed in writing with Recipient to protect the
Confidential Information.
11.3. Term. This Section 11 will survive the expiration or termination of
the Agreement for three (3) years, unless and to the extent earlier released
under Section 11.1.
11.4. Destruction. All media containing Confidential Information delivered
by Owner will remain the property of Owner, and such media, and any copies
thereof, will upon the written request of Owner be promptly returned to Owner or
destroyed, at Owner's option.
11.5. Similar Information. Owner understands that Recipient may currently
or in the future develop information internally, or receive information from
other parties, that may be similar to Owner's information.
12. Representations and Warranties. Developer hereby represents and warrants to
Marketer as follows:
12.1. Services Warranty. Services will be performed by competent personnel
and will be of professional quality within generally accepted industry standards
for the performance of such services.
12.2. WARRANTY LIMITATIONS. DEVELOPER MAKES NO WARRANTY FOR ANY PRODUCTS
OR SERVICES OTHER THAN AS SPECIFICALLY PROVIDED IN THIS SECTION 12. DEVELOPER
WILL PROVIDE WARRANTIES WITH RESPECT TO SOFTWARE IN THE LICENSE THEREFOR. THE
WARRANTIES IN THIS SECTION 12 ARE INSTEAD OF ALL OTHER WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY
OBLIGATION OF DEVELOPER.
13. Remedies. For claims concerning breach of this Agreement, the party showing
such breach will be entitled to recover damages to the limits set forth in
Section 13.4 to the extent not excluded by Section 13.5.
13.1. Software License Indemnification. Developer will indemnify Marketer
from any action brought against Marketer to the extent that it is based on a
claim that Developer breached a license agreement for Mainframe EDI software or
PC EDI software executed by Developer subject to or pursuant to this Agreement.13.2. Method. Developer will pay all damages and costs attributable to an
action and finally awarded against Marketer, provided that Developer is promptly
informed in writing and furnished a copy of each communication, notice or other
action relating to the alleged breach and is given authority, information and
assistance (at Developer's expense) necessary to defend or settle such claim.
13.3. Developer Abandonment. If, prior to Release 1.0 of PC EDI software,
through no fault of Marketer, Developer abandons the development undertaken
pursuant to Section 4.1, Developer, as Marketer's sole remedy, will (1) provide
the materials and source code generated by Developer pursuant to Section 4.1 for
Marketer's use in conformance with this Section 13.3; and (2) return to Marketer
all amounts paid to Developer by Marketer pursuant to Section 4.3 in excess of
one half (1/2) of the Total Marketer Payment. Marketer will use the materials
provided to it pursuant to this Section 13.3 only to provide substitute
performance of Developer's obligations under this Agreement. Notwithstanding any
contrary provision of this Agreement, Marketer will maintain the confidentiality
and trade secret status of all the materials and source code provided to it
pursuant to this Section 13.3 so long as Marketer holds such materials or any
copies or derivatives thereof.
13.4. Remedy Limitations. 13.4.1. Developer. Developer's cumulative liability for actual
damages from any cause whatsoever will be limited to the consideration received
by Developer from Marketer under this Agreement.
13.4.2. Marketer. Marketer's cumulative liability for actual damages
from any cause whatsoever will be limited to amounts owed Developer under this
Agreement.
13.4.3. Property and Casualty Liability. Representatives and
personnel of each party, during the time they are present on the premises of the
other party, will be subject to all rules and regulations prevailing on such
premises. Each party will be responsible for the payment of all compensation and
expense of its respective representatives and personnel. None of the
representatives or personnel of either party will be considered, for any reason,
to be an employee of the other. Each party agrees that if any person connected with it, or assigned
by it to work hereunder, or such person's legal representative, will present any
claim or institute any suit or action against the other party, or their
directors, officers, agents or employees, for any property damage or personal
injury, including death, connected with, related to, or arising out of the
performance of this Agreement, the party associated with such person will defend
and indemnify the other party and their directors, officers, agents and
employees, against any and all such claims, suits or actions, except that no
indemnification is given for claims of gross negligence or for punitive damages,
unless such claims are included within the coverage of the general liability
insurance of the indemnifying party.
13.5. Liability Exclusions. Neither party will be liable to the other if
and to the extent the other party fails to perform under the Agreement. Neither
Developer nor Marketer will be liable to the other for any loss of profits, loss
of data, loss of business or indirect, incidental, consequential or special
damages, or punitive damages, even if the liable party or person has been
advised of the possibility of such damages. Neither Developer nor Marketer will
be liable for any damages claimed by the other based on any third party claim.13.6. Adequate Consideration. Each party hereby agrees and acknowledges
that (1) the bargain contemplated by this Agreement would not be made on such
terms but for the limitations of remedies contained in this Section 13; (2) this
bargain is fair and reasonable to the parties; and (3) each party made this
bargain without coercion or the threat thereof from any person; and (4) each
party intends to make the bargain stated herein including the limitation of
remedies, even if the result is to deprive it of an effective remedy in the
event of breach.
13.7. Injunctive Relief. Each party understands and agrees that (1)
violation in any material respect of any of the provisions of this Agreement by
it may cause immediate and irreversible harm to the other party; (2) the other
party in such event may have an adequate remedy at law; and (3) the harmed party
in such event may be entitled to immediate restraint, and preliminary and other
injunctive relief, with proper bonds being filed, against any serious violation
of this Agreement by the other party, depending on the facts of each individual
circumstance. Any injunctive relief sought by a party will be in addition to and
not as a limitation of any other remedies or rights that such party may have at
law or in equity for the enforcement of this Agreement, in accordance with this
Section 13.
14. Termination.
14.1. Expiration. This Agreement will terminate at the expiration of the
later to expire of the Marketing Term or the Discounted Delivery Term.
14.2. Breach. Either party may terminate this Agreement for the material
breach by the other of the terms and conditions of this Agreement if the
breaching party has not remedied its breach within sixty (60) days after the
party seeking to terminate this Agreement provides notice of such breach to the
breaching party.
14.3. Survival. Notwithstanding any contrary provision of this Agreement,
Sections 10, 11 and 13 of this Agreement will survive any termination or
expiration of this Agreement. The expiration or termination of this Agreement
will not serve to terminate either the License Agreement or Maintenance
Agreement.
15. Force Majeure. Neither party will be responsible for failure to fulfill its
obligations under this Agreement due to causes beyond its reasonable control.
16. Limitations on Actions. No party may bring an action, regardless of form,
arising out of this Agreement more than one (1) year after termination of this
Agreement.
17. Miscellaneous.
17.1. Effectiveness. Upon execution, this Agreement will be effective as
of execution. Other documents contemplated by this Agreement will be effective
when executed pursuant to Section 17.2, unless otherwise provided in such
documents.
17.2. Execution. This Agreement will be executed at such time as (1) all
parties hereto have signed a counterpart hereof; and (2) each party hereto has
received from each of the other parties hereto an originally signed counterpart
or a facsimile transmission or other replication of an originally signed
counterpart. Each party hereto agrees that (1) any sending of a facsimile
transmission or other replication of an originally signed counterpart will be
either preceded or followed as soon as practicable by the sending of an
originally signed counterpart; and (2) until the giving of such originally
signed counterpart such facsimile transmission or other replication of an
originally signed counterpart will constitute conclusive evidence of the signing
of said counterpart.17.3. Assignment. Neither party may assign, sublicense or otherwise
transfer its rights and obligations under this Agreement, or any portion hereof,
to any person or entity other than an affiliate, by operation of law, by merger
or otherwise, without the consent of the other party, which consent will not be
unreasonably withheld. Any attempt to do so without such consent will be void
from inception. "Affiliate," as used in the first sentence of this Section 17.3,
means, with respect to a party to this Agreement, any person or entity that,
directly or indirectly, is in control of, is controlled by or is under common
control with such party. As used in the previous sentence, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a person or entity, whether through
the ownership of voting securities, by contract or otherwise.
17.4. Third Party Beneficiaries. Developer subcontractors, if any,
involved in the development of EDI software on Developer's behalf are the only
intended third party beneficiaries of this Agreement.
17.5. Waiver. No waiver of any breach of this Agreement will be deemed to
constitute a waiver of any subsequent breach of the same or any other provision.
17.6. Severability. If any provision of this Agreement is declared or
found illegal, unenforceable or void, then all parties will be relieved of all
obligations arising under such provision, but only to the extent that such
provision is illegal, unenforceable or void, it being the intent and agreement
of the parties that this Agreement will be deemed amended by modifying the
provision to the minimum extent necessary to make it legal and enforceable while
preserving its intent or, if that is not possible, by substituting therefor
another provision that is legal and enforceable and achieves the same objective.
If the remainder of this Agreement will not be affected by the declaration or
finding and can be substantially performed, then each provision not so affected
will be enforced to the extent permitted by law.
17.7. Entire Agreement. This Agreement, with the exhibits and appendices
attached to it, if any, constitutes the entire agreement of the parties
concerning the subject matter hereof, superseding in all respects all prior
proposals, negotiations, understandings and other agreements, oral or written,
between the parties.
17.8. Amendment. This Agreement may be amended only by a written
instrument duly executed by the parties.
17.9. Controlling Text. If there is a conflict between this Agreement and
any purchase order, order acknowledgment or invoice, this Agreement will prevail.
17.10. Notices. Any notice given by Marketer to Developer pursuant to this
Agreement will refer to the contract number assigned by Developer to this
Agreement and listed on the first page hereof and will be valid and sufficient
if dispatched by certified or registered mail, return receipt requested, postage
prepaid, in any post office in the United States, of in case of international
delivery, dispatched by a delivery service providing a receipt of delivery,
addressed as follows:If to Developer, to: If to Marketer, to:[Name] [Name]
[Address] [Address]
Notices given as herein provided will be deemed given seven (7) days after
the mailing thereof. Either party may change its address by a notice given to
the other party in the manner set forth above.
17.11. Interpretation. Headings used in this Agreement are for convenience
only and will not be deemed to be operative text. Terms of gender will be deemed
interchangeable, as will singular and plural terms, in each case unless the
context otherwise requires. All monetary amounts used herein will be deemed to
refer to current U.S. dollars, unless the context otherwise requires.
17.12. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL LAW
OF THE STATE OF _________.
Developer and Marketer have executed this Agreement by the signature of
their duly authorized representatives below.
Developer Marketer Signed: _________________ Signed: ________________
Printed Name: ___________ Printed Name: __________Title: __________________ Title: _________________ Date: ___________________ Date: __________________
