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THIS IS A COMPLEX SAMPLE DOCUMENT- MODIFY TO SUIT YOUR SPECIFIC NEEDS
AGREEMENT BETWEEN _________________ AND _________________ This agreement is dated May _________, 19___ between _________________, a Delaware
corporation ("_________________"), and _________________ ("_________________") and sets forth
the understandings and agreements between _________________ and _________________ regarding
the marketing by _________________ of a private labeled version of _________________'s electronic
_______________ product known as ____________________________ (including the desktop, LAN,
WAN and WEB versions thereof, the "_________________ _______________ Product", as more fully
described on Schedule A hereto.
1. Introduction.
_________________ is the creator of the ____________________________ Software. On or
about _________ 19___, the parties entered into a Term Sheet Understanding wherein
_________________ modified, at the direction of _________________, the
____________________________ Software into an _________________ “Private Label
Version.” _________________ is interested in granting to _________________ the right, to sell,
license and distribute the “Private Label Version” of the Software, subject to the terms and
conditions of this Agreement. _________________ is interested in having and exploiting such
rights.
A. The Private Label Version of the Product.
1. The name to be used for the _________________ private label version of the _________________ _______________ Product to be marketed by
_________________ pursuant to this Agreement shall be "______________
_______________ _______________" (the "Private Label Version"). ____________ will
provide _______________ with _________________ brand identity elements, such as
logos, taglines and supporting art. _________________ will develop and generate the
Private Label Version, reflecting such _________________ brand identity elements, in
cooperation with _________________, and each party shall bear its own expenses in
connection with such development.
2. _________________ will supply _________________ with an electronic copy, in media to be mutually agreed upon, of all documentation, instructions and other product
related materials for the Private Label Version, (the "Documentation") and the Private
Label Version product itself on a CD-ROM or such other media as _________________
shall reasonably request. _________________ will be solely responsible for all aspects
of the sales and marketing and the delivering (i.e. reproduction, printing, packaging,
shipping, etc.) of the Private Label Version to end-users. In the event _______________
requires and requests a replacement copy of any of the foregoing, in the same or
different media as originally delivered, _________________ shall promptly provide same
and _________________ shall reimburse _________________ it's actual cost for any
media (e.g. user manuals and/or product CD-ROMs). This Agreement relates to desktop,
LAN, WAN and Web versions of the _________________ _______________ Product.
B. Training/Support/Update Obligations.
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1. _________________ shall be responsible for all-marketing, sales implementation and direct on-going service for the Private Label Version. _________________ will, however;
at no additional cost to _________________, provide training to, and/or assist in the
training of, the _________________ project team applicable to this Agreement and the
Private Label Version. The _________________ project team will, in turn, be
responsible for training the members of its field organization. In addition,
_________________ will provide up to 40 hours per month of off-site "Level Two"
support to _________________ with respect to the Private Label Version, at no
additional cost to _________________. In the event _________________ requires
"Level Two" support in excess of 40 hours per month, _________________ shall provide
such additional support and _________________ shall compensate
_________________ at _________________'s then standard rates for any such
additional support in excess of 40 hours per week. Such support time provided by
_________________ shall include time spent on the phone as well as reasonable
amounts of time spent on research and debugging as shall be needed to provide such
support. The general procedures are as follows:
a. Clients of _________________ using the Private Label Version ("PLV Clients") will be instructed to contact their designated _________________ Customer
Service Representative ("CSR") with any questions, problems or other difficulties
they may have or be experiencing with respect to the Private Label Version. The
designated CSRs will field the calls and handle the "Level One" issues of such
PLV Clients. CSRs will be instructed to contact dedicated _________________
Roseland Technical Support representatives who will, in turn, (if necessary)
contact designated _________________ employees for "Level Two" assistance
on issues related to any non-_________________ developed portion of the
Private Label Version. The parties hereto do not intend there to be any direct
contact between PLV Clients and _________________ with respect to Level
Two issues. _________________ and _________________ agree to evaluate
the foregoing customer service process at the end of the initial six-month period
of this Agreement and to determine if, and how, the process should be revised in
light of actual call volume.
b. _________________'s technical support will be staffed Monday through Friday, 8 a.m. to 6 p.m. EST, except for United States national holidays (the "Support
Hours").
c. _________________ "Level Two" support staff will use reasonable commercial efforts to return all calls received during Support Hours within one hour, and all
calls received after Support Hours within 24 business hours.
d. On-Site Support and Implementation. Should _________________ require _________________ to perform direct support to a PLV Client and/or require
_________________ to provide on-site PLV Client support, implementation,
training, installation or any other direct PLV Client services, then _________________ shall compensate _________________ at
_________________'s then standard rates for any such additional support
including all travel related expenses and other costs.
2. _________________ will, at _________________'s sole cost and for no additional fees, provide _________________ with all updates, upgrades, modifications and fixes to the
core _________________ _______________ Product, including, without limitation, bug
fixes, feature enhancements within the core _______________ functions and support for
new platforms (e.g. Windows 98). _________________ shall have the right, but not the
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obligation, to sublicense and distribute such items to PLV Clients free of charge.
_________________ will use its best efforts to supply the foregoing to
_______________ at least 30 days prior to their release to _________________
customers generally and shall use its best efforts to supply bug fixes within 30 days after
it becomes aware of the bug. If so required by _________________, any or all such
items shall be delivered in a manner which will permit them to be downloaded to
_________________ (and by _________________ to PLV Clients) via the Internet,
together with instructions and related documentation necessary to perform such
download(s). _________________ agrees to upgrade the core feature/functionality of
the _________________ _______________ Product in a timeframe that is consistent
with _________________'s product development strategy for its other products. The
parties reasonably expect that upgrades to the core _________________
_______________ Product will be developed and provided by _________________ at
least once in every twelve-month period.
3. In the event _________________ requests the development by _________________ of _________________-specific items (i.e., interfaces to _________________ products,
port to Sybase SQL Anywhere, future enhancements not covered by Section B.2. above,
or set forth in Schedules B or C, attached hereto), _________________ shall do such
development at _________________'s then prevailing standard consulting rates (to be
paid by _________________) provided that _________________ will have exclusive
rights to such _________________-specific items. However, In the event
_________________ shall have desires to obtain the equal ownership rights to such
_________________-specific items market such items independently of
_________________ (on terms to be agreed upon by _________________ and
_________________ at the time prior to _________________‘s development), if
_________________ elects to share such development costs equally with
_________________. the cost of such development shall be shared equally by
_________________ and _________________.
4. _________________ will provide _________________ with periodic updates and information regarding recurring or ongoing problems and difficulties being experienced by
_________________ or its client base other than the PLV Clients. Such updates and
information shall be provided as and when reasonably necessary in light of the nature of
the problems or difficulties which arise or as and when reasonably requested by
_________________ but in no event less than once in every three month period. In
addition, _________________ agrees to periodically provide _________________ with
_________________'s product/service development schedule and updates thereto.
5. _________________ agrees to provide _________________ with each of its database license codes applicable to the Private Label Version in order that _________________
shall have the ability to (i) install a PLV Client without _________________'s assistance
or involvement, (ii) gather information regarding the number of users within any PLV
Client and (iii) disable such PLV Client's use of the Private Label Version in the event
such PLV Client exceeds or attempts to exceed the number of users for which it has
contracted with _________________.
C. Representations and Warranties.
1. _________________ represents and warrants that:
a. the Private Label Version product software will conform in all material respects to _________________'s most current published specifications pertaining to the
_________________ _______________ Product(s), and will be free from
material operating defects. In the event there is any defect in the Private Label
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Version product, _________________ agrees to replace the product at no
additional charges to _________________ (or indirectly, to any PLV Client).
_________________ agrees to maintain the Private Label Version product, at its
sole cost and expense, to comply with the foregoing representation and warranty.
Software Quality does not warrant that the Private Label Version product
software will be error or bug-free, but does warrant that the Private Label Version
software product will conform in all material respects to the functions, features
and other characteristics described in the specifications set forth in Schedule B
attached hereto.
b. Error Correction. As soon as is commercially practicable after receipt from _________________ of notification of a significant error in the Private Label
Version product software or a deviation that results in a breach of the warranty
set forth in paragraph C.1.a. above, _________________ agrees to deliver to
_________________ all modifications as are necessary to correct such errors or
deviations.
c. it has full and sufficient right to assign or grant the rights and/or licenses
granted in and to the _________________ _______________ Product(s) and
the Private Label Version product(s) and the related Documentation pursuant to
the Agreement.
d. the Private Label Version product(s) and any other code provided by _________________, including without limitation, any and all enhancements,
upgrades, customizations, modifications, maintenance and the like, deliverable
by _________________ hereunder, containing or calling on a calendar function
including, without limitation, any function indexed to the CPU clock, and any
function providing specific dates or days, or calculating spans of dates or days,
shall record, store, process, provide and, where appropriate, insert true and
accurate dates and calculations for dates and spans including and following
_____________, 200__. _________________ agrees to maintain the Private
Label Version product(s) at its sole cost and expense, to comply with the
foregoing representation and warranty.
e. any updates, upgrades and/or enhancements supplied by _________________
shall not materially degrade the functionality, capabilities or features of the
Private Label Version product(s), and the updates, upgrades and enhancements
shall be backwardly compatible with previous versions of the Private Label
Version product(s).
D. _________________'s Responsibilities.
_________________ Will Have The Following Responsibilities, and Makes The Following
Commitments:
1. Development Advances . The parties anticipate that completion of the development work on the Private Label Version in all the Categories set forth in G.1. a) - d) will cost
_________________ additional amounts, and _________________ agrees to provide
_________________ with one or more advances in the amount(s) set forth in Schedule C attached hereto to be used for such development work, and for no other purposes,
provided that _________________'s obligation to fund each such amount will accrue
only as of the date indicated, or if no such date is indicated, upon the attainment of the
indicated development milestone.
2. Order Solicitation . _________________ will use commercially reasonable efforts to
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solicit orders for the Private Label Version from its customer and client base with which it
normally does business and will distribute the Private Label Version so ordered in
accordance with _________________'s then effective sales and distribution policies.
3. Marketing and Promotion. _________________ will engage in such marketing and promotional activities in connection with its efforts to sell and distribute the Private Label
Version as are set forth in Schedule D attached hereto.
4. Copyright Notices . _________________ agrees that it will not remove, obliterate, or alter any copyright notice that appears on the Software or any Collateral Materials without
_________________'s prior written consent.
5. Testing. At least 50 days prior to the Street Date for each category of Private Label
Version software product, _________________ will deliver a ``beta'' copy of all such
software code to _________________ for its testing. _________________ will distribute
such ``beta'' copies to certain of its potential PLV customers for the purpose of testing the
integrity of such code, subject to a ``beta'' test license agreement that is reasonably
acceptable to _________________. The criteria for successful beta is set forth in
Schedule E. Within thirty (30) days of such delivery, _________________ will notify
_________________ of all errors in the software code or operation of the Software which
it discovers or of which it becomes aware, including reasonable detail necessary for
_________________ to reproduce such errors. _________________ will correct all such
errors and resubmit the software code to _________________ for final testing and
approval no later than ten (10) days prior to the Street Date. If _________________ can
not reasonably demonstrate the correction of such errors, _________________ will
have the right to change the Street Date to take into account the actual and foreseeable
delays resulting from the existence of such errors in the Software. If
_________________ can reasonably demonstrate to the _________________ the
correction of such errors and that the Private Label Version software meets the
specifications in all material respects, the Private Label Version software product shall
be deemed completed and _________________ can not delay acceptance or delay the
Street Date.
6. Street Dates. The Street Date means the date for commencement of retail sales or licenses of the Private Label Version software product by _________________ to its
PLV customer client base. The Street Date for each category of Private Label Version
software product is as follows: Category A , 2000; Category B, 2000; Category C, 2000;
Category D 2001.
E. License Grant: Right to Distribute.
1. Subject to the terms of this Agreement, _________________ hereby grants to _________________, at no charge to _________________, an enterprise wide right to
copy, use, display and operate the Private Label Version product(s) for
_________________ business purposes, including but not limited to the marketing,
demonstration and sale thereof to potential PLV Clients and the support thereof to PLV
Clients. _________________ hereby grants _________________ an irrevocable, non-
exclusive, royalty-free, right and license to use, modify, copy, distribute, license, display,
sell and market, the Documentation (described in Section A.1., above) in connection with
the Private Label Version. The foregoing grant of rights, and those contained in Section
D.E 2. below, apply equally to any such materials provided by _________________ to its
clients as part of the contemplated pilot beta programs to be conducted by
_________________ (provided that no license fees shall be payable to
_________________ in respect of such clients participating in such pilot beta unless
and until such client elects, and is permitted by _________________, to continue its use
thereof after the completion of the pilot beta period.
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2. ___________ shall have the right to provide copies of the Private Label Version product(s) and Documentation to, and allow access to same by, third party vendors,
contractors and/or consultants of _________________ and/or any PLV Client for the
purpose of performing and/or exercising any applicable _________________'s or PLV
Client's rights with respect to such software, including without limitation, installing or
implementing the Private Label Version product(s) for PLV Clients; training employees,
agents and sublicensees of _________________ on use of the Private Label Version;
analyzing _________________'s , clients' and prospects' business and technical
environments; and providing on-line or phone support to _________________ and PLV
Clients. The foregoing shall be hereinafter referred to as "Third Party Access Rights."
However, prior to any third party disclosure, all third party vendors shall enter into a form
of Non-Disclosure and Confidentiality Agreement that is acceptable to
_________________.
3. _________________ shall also have the right to provide copies of the Private Label Version product(s) and Documentation to third party software vendors solely for such
third party software vendors to develop interfaces between their software products and
the Private Label Version product(s). The foregoing shall be hereinafter referred to as
"Integrator Rights." However, prior to any third party disclosure, all third party vendors
shall enter into a form of Non-Disclosure and Confidentiality Agreement that is acceptable
to _________________.
4. _________________ agrees it will not, during the term of this Agreement, enter into any
arrangement similar in nature to this Agreement with any of the following entities or their
affiliates (now existing or hereafter acquired): ____________, ____________,
____________, _____________, __________________, __________, ____________,
_______________, __________, and _______________.
5. _________________ shall have the right to use and duplicate the name "_______________ _______________" for the Private Label Version in all ways
reasonably related to the marketing, sale and support of the Private Label Version, and
this provision shall survive termination of the Agreement with respect to PLV Clients
existing at the time of termination of this Agreement.
6. _________________ agrees that it will not ,during the term of this Agreement, market a
software product that competes directly or indirectly with the Private Label Version
product(s).
F. Rights Reserved by _________________ .
_________________ reserves all of the following rights to the Private Label Version software
product: 1. All right (including copyright), title and interest to the Private Label Version software products and documentation, including all of _________________'s trademarks and
logomarks that appear thereon;
2. The right to sell and license all _________________ _______________ Products directly to third party end users, accept as restricted in E. 4., above, through
_________________’s own direct sales efforts
G. Fees: Reporting and Payment Terms.
1. In consideration for the licensing and distribution rights set forth in paragraph ____ above, license fees for the Private Label Version shall be calculated on a per PLV Client
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basis, based on the number of employees maintained by such PLV Client, as shall be
indicated by such PLV Client to _________________ at the time that such client licenses
the product from _________________ (the "License Fee"), and shall be paid by
_________________ to _________________ at one of the four rates indicated below, as
applicable. It is understood and agreed that _________________ shall have no
obligation hereunder to verify the employee count provided by a PLV Client at the time
that it licenses the Private Label Version from _________________. Such License Fees
per client are paid on time only and neither (i) any increase or decrease in their number
of employees of a PLV Client after it initially licenses the Private Label Version nor (ii)
except as noted in clause d, below, the number of locations maintained by a PLV Client,
shall be taken into account for any fee calculation purposes. The four rates of License
Fees are as follows:
(a) PLV Clients having less than 100 employees ("Category A Clients"): $______
(b) PLV Clients having between 100 and 999 employees ("Category B Clients"): $______
(c) PLV Clients having between 1000 and 4999 employees ("Category C Clients"):
$____.
(d) PLV Clients having over 4999 employees ("Category D Clients"): $______:
provided that if any such PLV Client having over 4999 employees has more than
one location of operations, an additional fee of $______ shall apply for each
such location (other than the principal location of such PLV Client) at which more
than 1000 employees are stationed on a permanent basis at the the time of
licensing.
Such License Fees shall be reported and reconciled on a calendar quarter basis
for the immediately preceding calendar quarter. Upon satisfactory completion of
the development of the Private Label Version and the pilot project contemplated
by _________________ with certain of its clients completion of beta testing of
the first Private Label Version software product (Category A), as describe in D.
5., above, and the delivery of Source Code to the Escrow Agent described in
Section I K, below, _________________ shall pay to _________________ a
prepayment of $275,000 (Two Hundred Seventy Five Thousand Dollars) of as
an advancement against future License Fees. Any portion of such amount which
has not been applied to actual License Fees at the time this Agreement
terminates shall be returned to _________________ within 3 business days after
the effective date of such termination.
2. Notwithstanding anything to the contrary, all Private Label Version products shall be
initially licensed to all PLV Clients with enhanced add-on modules, which functionality
shall terminate after the expiration of a thirty (30) day free license period. Such add-on
modules include but are not limited to Cost & Billing, Microsoft Project Link, Primavera ,
and other add-on modules that will be built in the future. Following the termination of the
free add-on module license period, PLV Clients may elect to license the add-on modules
at the then prevailing license fee, and shall agree upon a procedure for the add-on
module licensing and billing. During the term of this Agreement, will share all PLV Client
add-on modules licensing revenue with equally.
3. Notwithstanding any provision of this Agreement to the contrary, _________________ shall not be required to pay _________________ any additional License Fee(s) for
multiple Versions, multiple platforms or language translations of the Private Label Version
distributed by _________________ to any PLV Client (provided that the one time License
Fee, described above, has been or will be paid in respect of such PLV Client) and
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_________________ shall not be required to pay any License Fee with respect to any
PLV Client that terminates its sublicense within the three (3) month period after which it
was obtained (and such sublicense shall be deemed never to have occurred).
Additionally, no License Fee or other fee shall be due for any trial or pilot project use,
Integrator Rights or Third Party Access Rights copies or for any of the rights granted
herein with respect to Documentation.
4. With respect to each category of PLV Clients (Categories A, B, C, and D, as defined in Section E. G.1. above) and treating each such category separately, _________________
shall be permitted to' re-issue', without payment of any new or additional License Fees to
_________________, a total number of sublicenses to new PLV Clients of such category
equal in number to the number of PLV Clients in such category which have terminated
their sublicenses from _________________ within the first one-year period following
completion of the contemplated pilot project, without regard to total installed PLV Client
base in each category. The foregoing re-issuance without additional License Fees shall
also apply with respect to each of the second, third, fourth and fifth such one-year periods
following completion periods, at 15% of the total installed PLV Client Base in each
category as of the beginning of such one-year.
5. Except as described in Section B, above (with respect to excess support time required from _________________ or for development of _________________-specific items), no
additional or separate fees shall be payable to _________________ with respect to its
support and upgrade obligations described herein. Any fees for excess support time from
_________________ pursuant to Section B.1. shall be invoiced by _________________
to _________________ on a calendar quarter basis, in arrears. The amount and timing
of payment of fees for development of any _________________-specific items, pursuant
to Section B.3., shall be negotiated by _________________ and _________________ at
the time such development is requested by _________________.
6. Within 45 days after the end of each calendar quarter, _________________ shall report to _________________ in writing, the number of new PLV Clients and the amount of
License Fees due and payable under this Agreement during such calendar quarter (the
"Report"). Should the calculation of fees due to _________________ be found to be in
error an adjustment shall be made within 15 days of the discovery of such error. Each
Report shall be deemed to conclusively establish the License Fees due to
_________________ for the applicable quarter, unless issuance of the next succeeding
quarter's Report. The Report shall also identify the number of PLV Clients (broken down
by Category, as explained in Paragraph E.1. above) that have terminated their sublicense
in such calendar quarter.
7. _________________ shall keep records necessary to verify compliance with licensing and payment terms of this Agreement for the current year and for one year in arrears, if
applicable, _________________ shall, with 60 days advance notice but no more often
than once per year, make such records for the prior year available to
_________________ for inspection during normal business hours at a mutually agreed
time.
8. All payments under this Agreement will be made in United States dollars. Where _________________ receives funds from the sale, distribution or licensing of the Private
Label Version software products in other than United States dollars, the Gross Receipts
for purposes of this Agreement will be the United States dollars received by
_________________ on the conversion of such foreign currency net of conversion costs.
9. Notwithstanding the computation of the License Fees to be made by _________________ to _________________ under this paragraph G. 1.,
_________________ shall pay _________________ no less than the minimum License
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Fees indicated in Schedule F attached hereto for the period indicated thereon.
H. Indemnification.
1. _________________, at its own expense, shall indemnify, defend and hold
_________________, its directors, employees and agents harmless, from and against
any claim, demand, cause of action, debt or liability, costs and expenses, including
without limitation reasonable attorneys' fees, arising out of or relating to any claim that
the _________________ _______________ Product, the Private Label Version and/or
the documentation provided to _________________ hereunder, or any of the rights
granted to _________________ hereunder, infringes or violates any trademarks,
servicemarks, patents, copyrights, trade secrets, licenses or other proprietary rights of
any third party. _________________ may, at its option and at its own expense, or, if
requested by _________________, at _________________'s expense, assist in any
such defense. _________________ shall not settle any claim which adversely affects
_________________'s right to use the Private Label Version without the prior written
approval of _________________. _________________ shall promptly inform
_________________ of any claim which _________________ believes falls within the
scope of this indemnity.
2. Indemnification of _________________ . _________________ will indemnify, defend and hold _________________ harmless for any breach of the representations and
warranties of _________________ provided for herein and for any and all claims of or
relating to (i) the rights to the Private Label Product or any part thereof supplied by
_________________, (ii) claims of unfair trade practice, trade libel or misrepresentation
arising solely due to the activities of _________________ in marketing the Private Label
Product, or (iii) any other claims suffered by reason of _________________'s negligence
or willful misconduct.
I. Terms and Termination.
This Agreement shall continue until the fifth anniversary of the commencement of
marketing by _________________ of the Private Label Version (subsequent to the end
of _________________'s contemplated pilot program beta testing period (the "Initial
Term"))and thereafter shall continue automatically for additional one year periods unless
and until terminated in accordance with the following provisions:
(i) Either party may terminate this Agreement at any time after the Initial Term by giving the other party not less than one hundred eighty (180) days'
written notice; and
(ii) During or after the Initial Term, either party may, at its option, terminate this Agreement for cause immediately upon the occurrence of an Event
of Default (defined below in paragraph H) and _________________ may, at its
option, terminate this Agreement upon a material change of control of
_________________, whether by merger, acquisition or otherwise, on 15 days'
advance notice.
Notwithstanding anything to the contrary contained in this Agreement,
_________________ may terminate this Agreement, without penalty or license
prepayment, if the results of the contemplated pilot program are not satisfactory to
_________________.
J. Events of Default.
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1. The following constitute events of default under this Agreement: (a) if the other party ceases to do business, or otherwise terminates its business operations; (b) if the other
party breaches any material provision of this Agreement and fails to substantially cure
such breach within 30 days of receipt of written notice describing the breach; or (c) if the
other party becomes insolvent, generally stops paying its debts as they become due or
seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement,
composition or comparable proceeding, or if any such proceedings is instituted against
the other (and not dismissed within 90 days).
K. Source Code Escrow Agreement.
1. After completion of the contemplated pilot project beta testing and prior to
commencement of the marketing by _________________ Street Date of the Private
Label Version, _________________ will deliver in escrow, pursuant to the terms of
Schedule G hereof, the source code for the _________________ _______________
Product Private Label Version software product and all applicable technical
documentation (including, without limitation, database layouts (collectively, the "Source
Code") to [DSI] a mutually agreed upon as the third party escrow agent ("Escrow
Agent"). All costs and fees associated with such escrow arrangement shall be borne
equally by _________________ and _________________, including without limitation,
the establishment and maintenance of an escrow agreement mutually acceptable to
_________________ and _________________, update fees, and escrow release fees.
_________________ shall be entitled to request a release of and obtain the Source
Code from the Escrow Agent if: (i) _________________ ceases doing business and its
business is not continued by another corporation or entity, or is continued by another
corporation or entity which _________________, for reasonable cause, deems
unsatisfactory; (ii) _________________ becomes insolvent; (iii) _________________
makes a general assignment for the benefit of creditors; (iv) _________________ suffers
or permits the appointment of a receiver for its business or assets; (v)
_________________ has defaulted in performance of its obligations hereunder regarding
support services and development and delivery to _________________ of updates, fixes,
etc., to the _________________ _______________ Product; or (vi) _________________
avails itself of, or becomes subject to, any proceeding under Federal Bankruptcy Act or
any other statute of any state relating to insolvency or the protection of rights of creditors
or conditions outlined elsewhere. _________________ shall be entitled to receive a copy
of the Source Code immediately from the Escrow Agent upon _________________'s
notification in writing to the Escrow Agent of any of the circumstances set forth above.
During the term of this Agreement, at _________________'s expense,
_________________ shall continuously deposit the Source Code of the
_________________ _______________ Product to include any updates, fixes, etc.;
provided, however, that Source Code for all prior versions of the _________________
programs shall remain on deposit with the Escrow Agent. _________________ shall
have the right to validate the Source Code on deposit upon thirty (30) days prior written
notice to and in the presence of _________________, but no more frequently than four
(4) times per year.
2. In the event _________________ comes into possession of the Source Code, _________________ shall have the additional right and license to modify all or any
portion of the Source Code, create derivative works, and otherwise use the Source Code
to exploit the rights granted to _________________ under this Agreement, except that
the Source Code shall not be delivered by _________________ to PLV Clients. All such
modifications and derivative works shall be the property of _________________. To the
extent that _________________ assists in the creation of any such modifications and/or
derivative works, the work product from such assistance shall be considered works made
for hire by _________________ for _________________ and all rights therein shall be
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deemed to be irrevocably assigned to _________________.
L. Proprietary Rights .
1. Third Party Infringers . Each party will notify the other of any actual or threatened
infringement of rights in the Private Label Version that come to such party's attention. In
the event of any such infringement, _________________ will have the first option, at its
expense, to bring any action for such infringement on behalf of itself, and
_________________ will cooperate fully with _________________ in such action. If
_________________ fails to take action against such infringement, _________________
will have the option, at its expense, of bringing any action for such infringement on behalf
of itself and _________________, and _________________ will cooperate fully with
_________________ in such action. Whichever party pursues an action against any such
infringement pursuant to this paragraph L. 1. will have the right to recover all of its
expenses from any sums recovered in the action.
M. General Provisions.
1. In no event shall either party be liable to the other party for any consequential, indirect, incidental or special damages, whether foreseeable or unforeseeable.
2. All information communicated to one party by the other, whether before or after execution of this Agreement, shall be and was received in confidence and shall be used only for the
purposes of this Agreement. No such information, including the terms of this Agreement,
shall be disclosed by the recipient party, its agents or employees, or used for any
purpose other than the performance of the terms of this Agreement without the prior
written consent of the other party. The foregoing will not prevent either party from
disclosing information which belongs to such party or is (i) already known by the recipient
party without an obligation of confidentiality ; (ii)publicly known or becomes publicly
known through no unauthorized act of the recipient party; (iii) rightfully received from a
third party; (iv) independently developed by the recipient party without use of the
confidential information of the other party; (v) disclosed without similar restrictions to a
third party by the party owning the confidential information; (vi) approved by the other
party for disclosure; or (vii) required to be disclosed pursuant to a requirement of a
governmental agency or law so long as the disclosing party provides the other party with
notice (if possible) of such requirement prior to any such disclosure.
3. During the term of this Agreement and for a period of one year thereafter, neither party shall, without the other party’s written approval, actively solicit for employment (either as
an employee, contractor, independent agent or representative of another vendor) any of
the other party’s employees involved in the performance of this Agreement whose base
salary exceeds $30,000 per year.
4. This Agreement may not be assigned by either party either voluntarily or involuntarily, by
operation of law or indirectly through the sale of a controlling interest in its stock, without
the advance written consent of the other party. The covenants, conditions and
obligations herein contained will apply to and bind any heirs, successors or permitted
assigns of the parties hereto. The party proposing to assign must notify the other party of
its intent and seek its consent thereto no less than 30 days prior to the proposed date of
assignment. For purposes of this paragraph the term “assignment” shall encompass
changes in control of a party by merger, acquisition or otherwise. This Agreement shall
be governed by the laws of the State of New Jersey.
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5. All notices, requests, consents and other communications provided for by this Agreement shall be in writing and shall be deemed given when mailed at any general branch United
States or Canadian Post _______________ enclosed in a registered or certified postpaid
envelope or sent via overnight courier, to the parties at the addresses set forth below or
to such changed address as each party may designate by notice to the other:
If to _________________: If to _________________:
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
With notices of a legal nature also to:
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
_________________________ _________________________
6. _________________ and _________________ agree that each is acting independently of the other, that they are not joint venturers, and that neither is an agent of the other.
7. This Agreement supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement.
This Agreement applies only to the “core” electronic _______________ features. Any
additional modules (e.g. billing etc.) will be separately negotiated between
_________________ and _________________ with respect to the incremental fees to
be paid to _________________ therefor (but shall otherwise be subject to the terms of
this Agreement as part of the “Private Label Version” product(s)).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
set forth above.
_____________________________ _______________________
BY:__________________________ BY:____________________
NAME:_______________________ NAME:_________________
TITLE:_______________________ TITLE:_________________
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SCHEDULE A
DESCRIPTION of
PRIVATE LABEL VERSION SOFTWARE PRODUCT
Functional Overview
The integration of _________________ _______________ _______________ 2000 into the
_________________ line of Time & Labor Management products will include the following levels of
functionality.
Summary:
_________________ _______________ _______________ is being integrated into
_________________’s Time & Labor Management product mix to provide a PC based solution for
collecting time and attendance data. The system serves as a front end to the other Time & Attendance
systems offered including Time:Care, TimeSaver and e-Time. The system provides for collecting raw
in/out punches, summary hours entry and PTO entries through a PC based _______________ system.
Interfaces with the other Time & Attendance systems will be developed as well as direct interfaces to
_________________ Payroll systems. The interfaces will vary in levels of sophistication ranging from
batch import/export to real-time interfaces.
Base _______________ Functionality: All time entry, administrative and managers tasks, and all reporting functionality that exists in
_______________’s 2000 version of _______________ _______________.
Ability to handle paycodes (PTO) as an adjustment to a labor account entry.
Three client configurations:
ODBC Client: Provides access to the system using an ODBC connection. Includes all system
functionality.
Active X/RDS Version: Provides access to the system using an HTTP protocol. Includes all
system functionality including reports.
Java Client: Provides access to the system using a TC/PIP protocol allowing for access through
a late version web browser and requires no initial client install. Functionality is limited to
summary hours entry and paycode entry.
PC TimeClock: System will allow for punches to be collected and department transfers to be
made via either a cardswipe or PC based punch entry using system clock. Will also allow for
multiple employees to use the same PC for time entry without logging into the system.
Interface Development (_________________ Specific Functionality):
e-Time Interface:
Employees
Home labor account for each employee
All labor accounts in each level
Limited terminology setup for labor accounts
Paycodes
Export: Batch Mode Import: Batch Mode
Punch Data
Paycode entries
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Time:Care and TimeSaver Interface Development: Import: Batch ModeEmployee Info
EE Department/Job info
Valid Dept/Job by EE
Locations
Paycodes
Accrual Banks
Handles Effective Dates
Export: Batch Mode Punch data
Paycode entries
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SCHEDULE B
PRIVATE LABEL VERSION SOFTWARE PRODUCT
SPECIFICATIONS
The following defines the complete functionality of the core Private Label Version software
product.
The remaining functionality will be made available to PLV Clients as add-on trial modules.
_________________ customers can try and buy the remaining functionality
Core PLV software product specifications:
_________________ _______________ _______________'s main objective is to collect time
and attendance data. The data will then be imported into other _________________ software including e-
Time, Time:Care, TimeSaver and _________________ Payroll for further processing.
Base _______________ functionality:
-All time and adjustment entry, time and adjustment administrative and management
functions that exist in _________________'s version of _______________ _______________ (hereafter
referred to a _________________OT)
-Summarized, Detailed and In/Out views - used to enter time and adjustment data
-_______________ Manager used to approve _______________s (only standard
approval will be part of the core _________________ _______________ _______________ product,
policy based multi approval will not be part of the core product)
-All time reporting features of _________________OT
-Group and team time reports
-User reports
-Portfolio, Project, Activity and Task reports
-Overtime policy
-Client configurations
-Windows applications
(Active_______________)
-ODBC connection to the _______________ database
-RDS connection to the _______________ server
-Java client
-HTML client (February, 2000 release)
-Email (_______________@ ) - time entry by email
-_______________ Sync - a small executable that automatically updates
_______________ _______________ all client installations, every time there is a
new service release. This application is an optional utility that can be used to
significantly cut down maintenance and upgrade costs
-PC Time Clock: Used to collect punch data on computer systems where OT is not
installed.
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-Import/export with e-Time, Time:Care and _________________ Payroll
-Databases supported: Microsoft Access, Microsoft SQL Server and Oracle------------------------
Add-on trial modules (including but not limited to, the following modules are not part of the core
PLV software product):
_______________ Expense - consists of all client and server components that manage
expenses, filing expense reports by email, expense approval
Visual _______________ - a software development kit that can be used to integrate with
_______________ _______________. Customers who purchase Visual _______________ can use its
object model to integrate any third party application with _______________ _______________, add new
data exchange components, and add new menus to the application.
Microsoft Project link - a set of dialogs and components that are used to import/export projects,
assignments, resources, and _______________ data to/from Microsoft Project.
Primavera link (Upcoming release in 2000) - similar to functionality of the MSP Link above
Audit trail - logs critical system activity such as login/logout, time entry and changes
Cost tracking - costing engine and associated reports
Invoicing -Invoicing engine and associated reports
Budgeting and estimated time to complete (ETC) - Budget setup, emails and reports
Multi currency support - currency support for rates and expenses
Accounting system link - link to accounting software such as SUN Systems and ACCPAC
Administrative task processing - rule-based automated processing of vacation, sick leave and
other administrative tasks
Multi approval and client approval (February, 2000 release) - ability to define an approval policy;
priority based approval, one can define one or more team managers, one or more project
managers and client contacts as required or optional personnel for _______________ approval
Custom reports - Customers are able to create their own reports and add them to the OT
application
Custom fields (Upcoming release in 2000)
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SCHEDULE C
_________________ DEVELOPMENT ADAVANCES
$ Amount _________________Date and/or Milestone
[Insert the dollar amount of each advance to be made by _________________ to
_________________, and the date or description of the objective milestone in the process of developing
the Software that must be achieved before such advance is required to be made. ]
This schedule sets forth the amounts to be advanced to _________________ by
_________________, and the dates and/or the development milestones that must be attained before
_________________ advances each amount. May want to use this to develop the 5000 + user version.
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SCHEDULE D
_________________ MARKETING AND PROMOTIONAL ACTIVITIES
_________________ will do all of the following to promote and market the Product, to the extent
and consistent with its efforts to promote and market its own products:
[ Insert the description of the promotional and marketing activities of _________________, e.g., Present
the Product in its usual promotional programs, including but not limited to, sell sheets and sales
materials, advertisements with customer response cards, catalogs (which will be printed, developed and
distributed at _________________'s expense), trade shows and exhibits in which _________________
participates, and in press releases and other public relations activities. ]
Depending on the allocation of responsibilities between the parties, the efforts of
_________________ with respect to marketing and promotional activities should be spelled out in detail.
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SCHEDULE E
BETA TESTING REQUIREMENTS
I. Beta Requirements for the EBS segment (Category A, 1-100 employees): 1. Stable, reliable product that can support I - 100 employees . . . annual feature releases; few/no “service pack” type updates
2. Novell file server, NT operating environment, primarily LAN
3. Concurrent users will likely range from 1 - 50. .many employees fill out their _______________ at the end of the week generating “spikes” of usage.
The time entry response time will vary base on hardware used. However, for this segment
with Microsoft SQL Server, time entries can take less than 2 seconds for a dedicated 400
MHz Pentium, NT 4 Server with 128 Megabytes of memory and sufficient disk space. For
Microsoft Access, concurrent access can not exceed 20 concurrent users.
4. Be easy to install. Can be installed by clients with limited phone support, primarily ODBC clients, including automatic ODBC client setup
5. Be easy to maintain while we have not conducted formal research we believe few, if any, of these clients will have DBAs
6. Be easy for clients to use. . .we only provide “phone training” for our EBS time and
attendance clients
7. Meet our clients reporting and performance requirements (especially during peak times at the end of the payroll period). . . success/failure is based on feedback from our clients
8. Fit in the clients existing PC/network infrastructure. . .our experience suggests few of these clients will buy new PCs/Servers to run an electronic _______________ product
II. Beta Requirements for the Major Account segment (Category B, 100 - 1,000 employees): 1. Stable, reliable product that can support 1 - 1,000 employees; annual feature releases,
few/no “service pack” type updates. . .would like to standardize on a single database, but may
require different database to handle upper end clients
2. Novell file server, and NT operating environment, LAN, WAN and Net;
3. Concurrent users will likely range from 1 - several hundred. . .many employees fill out their ______________ at the end of the week generating “spikes” of usage. For this segment with
Microsoft SQL Server or Oracle, time entries can take less than 2 seconds for a dedicated
400 MHz dual Pentium, NT 4 Server with 256 Megabytes of memory and sufficient disk
space.
4. Be easy to install.. .installed by clients with remote phone support; mix of ODBC, RDS and Java clients.. . automatic ODBC client setup/
5. Be easy for clients to use... limited end user/administrator training
6. Meet our clients reporting and performance requirements (especially during peak times at the end of the payroll period). . .success/failure is based on feedback from our clients.
7. Fit in the clients existing PC/network infrastructure.. .our experience suggests few of these clients will buy new PCs/Servers to run a electronic _______________ product.
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III. Beta Requirements for the National (+) Account segment (Categories C & D, 1,000+ employees):1. Flexible stable product that can support 1 - 20,000 employees, can install “regular” service pack type updates
2. Support multiple database options, including Oracle and MS SQL Server
3. Support multiple network options, including NT and Unix. Unix will be supported as a database server only
4. Concurrent users will likely range from 1 to several thousand. Given the right hardware, ______________________________ supports this requirement.
5. _________________ Professional Services will install core server software
6. Employees need to be able to install their own “client” software (due to the large number of end points); mix of ODBC, RDS, and Java clients.. .automatic ODBC client setup.
_______________, developed for this purpose, will be used to update client systems.
7. Clients will have a DBA to maintain/tune the software
8. Meet our clients reporting and performance requirements (especially during peak times at the end of the payroll period). . .success/failure is based on feedback from our clients
IV. Supported platforms for all Beta 1. The supported platforms will be:
·Windows NT Server 4.0+ Service pack 3+
·Windows 95/98 and Windows NT 4.0 Service pack 3+ are supported for Active
_______________ (the windows client application) use.
·Windows 95/98, Windows NT 4.0 and Solaris 2.6+ running Internet Explorer 4.01+ are
supported for _______________ Express (Java client running in a browser).
·Any platform capable of sending/receiving emails are supported for _______________@
(email client).
2. The supported client/server protocols will be: ·ODBC
·RDS
·HTTP
3. The supported databases will be: Access (for small installations), SQL 6.5+ running on Windows NT Server 4.0+ and Oracle 8.05+ on Windows NT Server 4.0+
- 21 -
SCHEDULE F
_________________ MINIMUM LICENSING FEES
_________________ is required to pay _________________ the following minimum
licensing fees and the periods within which such minimums must be paid :
2001 $350,000.00
2002 $350,000.00
2003 $350,000.00
2004 $350,000.00
The above minimum licensing revenue is for the licensing of the PLV software product
pursuant to G. 1.a) to d) only, and does not include _________________ licensing revenue generated
from add-on trial module licensing under G.2., or revenue earned by _________________ for support
services pursuant to C.
- 22 -
SCHEDULE G
SOURCE CODE ESCROW AGREEMENT
