ARISTASOFT CORPORATION
APPLICATION SERVICES AGREEMENT
This APPLICATION SERVICES AGREEMENT ("Agreement") is made effective as
of
December 23rd, 1999 ("Effective Date"), by and between AristaSoft
Corporation
("AristaSoft"), a California corporation, having its principal place of
business
at 1300 Charleston Road, Mountain View, CA 94043 and Turnstone Systems,
Inc.
("Customer"), a Delaware corporation, having its principal place of
business at
274 Ferguson Drive, Mountain View, CA 94043. The terms of this Agreement
shall
apply to all services provided by AristaSoft under this Agreement.
1. DEFINITIONS
1.1 "Charter Customer" means Customer is part of the initial set
of
AristaSoft customers. Charter Customers have access to special terms and
conditions not available to all customers. The special terms include,
but are
not limited to, pricing and protection clause described in this
Agreement and
its attached Schedules.
1.2 "Derivative Works" means a modification of an existing work
protected by a copyright in the name of AristaSoft or a licensor of the
Software, but excluding any Customer Data (as defined hereinafter) or
reports
that are created by the Customer using the Software. For the purpose of
this
Agreement, Software shall be deemed to include any Derivative Works of
the
Software.
1.3 "Designates" means those Customers' customers, suppliers,
vendors,
benefits providers and other such external parties whose access to the
Software
is necessary to effect Customer's business purposes for which Software
is
provided.
1.4 "Documentation" means the guides and manuals for use of the
Software. Documentation is provided in whatever form is generally
available to
users of the Software.
1.5 "Servers" means the host-processing computer hardware
servers that
are customized, installed, managed, maintained and supported by
AristaSoft.
1.6 "Software" shall mean the computer software, as specified in
Schedule A and including any other Server software used by AristaSoft to
provide
the Service, in object code form owned or distributed by AristaSoft for
which
Customer is granted access pursuant to this Agreement, and the media,
Documentation, Upgrades and Updates thereof.
1.7 "Update" shall mean a subsequent release of the Software
containing
minor corrections, bug fixes, and other modifications that do not meet
the
definition of Upgrades and are generally made available for the Software
without
additional charge. Update shall not include any release, option or
future
product that AristaSoft provides and prices separately.
1.8 "Upgrade" shall mean modifications which provide new or
improved
features, functionality, or performance for the Software and are priced
separately by the owner of the Software.
1.9 "User," as further specified in Schedule A shall mean an
individual
authorized by Customer to access the Software, regardless of whether the
individual is actively using the Software at any given time.
2. ARISTASOFT APPLICATION SERVICES
2.1 AristaSoft offers an information processing service that is
delivered over a private dedicated network and the Internet to its
Customers,
giving them access to the Software hosted on AristaSoft's Servers to
support the
customers' internal business information processing activities.
2.2 Subject to the terms and conditions of this Agreement,
AristaSoft
will provide to Customer the following services (collectively the
"Services"):
i. AristaSoft will provide Customer with remote access
to
Servers controlled by AristaSoft on which AristaSoft hosts the Software
which
shall be specifically listed in Schedule A - Service Order Form.
ii. AristaSoft will provide Customer with certain
hardware,
software, and customer support
2
services for the Software (the "Support Services") which shall be
specifically
listed in Schedule B - Software Access and Support Services Schedule.
iii. AristaSoft will provide Customer with consulting
services
associated to the implementation of the Software and the on-going
integration
and operation of the Software with Customer's business processes which
shall be
provided in accordance with Schedule C - Consulting Services Schedule.
2.3 Access. AristaSoft will provide Customer with the ability to
remotely access the Software hosted on the Servers, as of the date that
installation and implementation is completed (the "Initial Access
Date"). Such
access shall be provided on a twenty-four hours-a-day, seven days-a-week
basis,
except during scheduled and unscheduled maintenance downtime. AristaSoft
will
use best efforts to perform any scheduled downtime outside of normal
business
hours. Notwithstanding the foregoing, Customer will be able to remotely
access
the Software for not less than 99% of the scheduled available time, with
the
exception of telecommunication company service problems, software
defects, any
problems caused by Customer, and any other forces beyond the immediate
control
of AristaSoft.
2.4 Network Equipment. AristaSoft will provide network hardware
and
software to be used on Customer's premises to access the Software hosted
by
AristaSoft (the "Equipment"). AristaSoft retains exclusive and complete
ownership of the Equipment including all rights, title and interest
thereto.
Customer shall provide to AristaSoft reasonable electronic and physical
access
to the Equipment. Customer is responsible for the physical security of
the
Equipment and will carry both general liability and property casualty
insurance
policies in amounts sufficient for the replacement of the Equipment.
Relocation
of the Equipment outside the continental United States is prohibited.
Relocation
of the Equipment within the continental United States is permitted upon
sixty
(60) days prior written notice to AristaSoft. Customer will be required
to
provide space, power, and physical security on Customer's own file
servers and
personal computers to support various aspects of AristaSoft hosting.
AristaSoft
will determine the exact configuration and amount of space.
3. ACCESS TO SOFTWARE
3.1 Pursuant to the terms and conditions herein, including those
in any
attached Schedules, AristaSoft grants to Customer, its Users, and its
Designates, a non-exclusive, non-transferable right to access and use
the
Software as described in Schedule A, in accordance with the associated
Documentation, solely in connection with Customer's business operations.
The
foregoing license is only granted for the duration of the Term set forth
in
Schedule A.
3.2 Access exclusions. Except as expressly authorized herein,
Customer
shall not:
i. Authorize or permit Designates to access the Software
other
than in connection with Customer's internal data processing operations.
ii. Copy, except for backup purposes, assign, relicense
or
sublicense the Software or the use of the Software; or
iii. Reverse engineer, reverse compile or reverse
assemble the
Software.
3.3 AristaSoft or its licensors shall retain all title,
copyright and
other proprietary rights in the Software and Derivative Works. Customer
does not
acquire any implied rights to the Software or the Derivative Works.
3.4 Data and Documents Resulting from the Software. Customer
shall be
free to use any customer data, such as customer data in databases or
reports,
that are used in connection with, or created as a by-product of, the
Software
("Customer Data"). Customer retains all right, title and interest to
Customer
Data except as to preexisting portions of the Software included in the
Customer
Data.
4. CUSTOMER'S OBLIGATIONS
4.1 Customer shall fulfill its obligations as specified in
Schedules B
and C or as may be supplemented or modified according to the guidelines
set
forth in Schedules A, B, or C and mutually agreed to by the parties
hereto.
5. CONFIDENTIALITY
5.1 Confidential Information. Each party acknowledges that it
will have
access to certain confidential information of the other party
("Confidential
Information") including the Software, the terms and pricing under this
Agreement, and all materials or information clearly identified as
confidential.
Each party agrees that during the Term,
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and for two (2) years after the expiration or termination of this
Agreement, (a)
it will hold the Confidential Information of the other party in
confidence with
at least the same level of care as it uses for its own confidential
information
of the same nature, but not less than a reasonable level of care; (b) it
will
not use it, for its own account or the account of any third party,
except as
expressly permitted by this Agreement, (c) unless required by law, it
will not
disclose it to any third party, except that party's attorneys,
accountants and
other advisors as reasonably necessary.
5.2 Confidentiality of Customer Data. AristaSoft will treat with
utmost
confidentiality the Customer Data and documents resulting from the
Software,
according to Section 3.4. The Customer Data is the sole and exclusive
property
of the Customer, and AristaSoft will not have any rights, title or
interest to
Customer Data. Should AristaSoft require access to the Customer Data in
order to
fulfill its own duties under this Agreement, Customer will permit such
access,
as reasonable under the circumstances, to specifically identified
AristaSoft
personnel. As a precondition for access by such personnel, each must
first agree
in writing to maintain the confidentiality of any Customer Data to which
they
are exposed no less stringently than as required by this Agreement.
Should
AristaSoft be required to give access to Customer Data to any of its
subcontractors, vendors, Software licensors or any other third party in
order to
fulfill AristaSoft's own duties under this Agreement, Customer will
permit such
access, as reasonable under the circumstances, to specifically
identified third
parties. As a precondition for access by such third party, each must
first agree
in writing to maintain the confidentiality of any Customer Data to which
they
are exposed no less stringently than as required by this Agreement.
AristaSoft
will not use any information of the Customer in any manner except as
necessary
to fulfill its obligations under this Agreement.
5.3 Exceptions. Information will not be deemed Confidential
Information
hereunder if such information: (i) is known to the receiving party prior
to
receipt from the disclosing party directly or indirectly from a source
other
than one having an obligation of confidentiality to the disclosing
party; (ii)
becomes known (independently of disclosure by the disclosing party) to
the
receiving party directly or indirectly from a source other than one
having an
obligation of confidentiality to the disclosing party; (iii) becomes
publicly
known or otherwise ceases to be secret or confidential, except through a
breach
of this Agreement by the receiving party; or (iv) is independently
developed by
the receiving party.
6. FEES AND BILLING
6.1 Customer will pay all fees incurred pursuant to Schedules A
and C.
6.2 Unless otherwise specified in either Schedules A or C,
AristaSoft
will invoice Customer monthly, one month in advance of actual service
delivery.
All invoices are due and payable in full within 30 days of date of
invoice.
Application access fees will begin to accrue on the Initial Access Date.
Any
increases in fees due to additional Users, or any other adjustments in
fees,
will be reflected in subsequent invoices. Any invoice not paid within 15
days of
the due date will be deemed late, and will accrue late charges as of the
date
due. Late charges shall be at a rate of 1 1/2% per month, or the maximum
rate
allowed under law, whichever is lower, from the date such payment was
due until
the date paid.
6.3 Customer shall be responsible for all sales taxes, use taxes
and any
other similar taxes and charges of any kind imposed by any federal,
state or
local governmental entity on the transactions contemplated by this
Agreement,
excluding only U.S. taxes based solely upon AristaSoft's income. When
AristaSoft
has the legal obligation to pay or collect such taxes, the appropriate
amount
shall be invoiced to and paid by Customer unless Customer provides
AristaSoft
with a valid tax exemption certificate authorized by the appropriate
taxing
authority.
7. WARRANTIES AND REMEDIES
7.1 AristaSoft warrants that: (a) it has rights to the Software
to the
extent required to grant Customer the rights granted herein; (b) it
otherwise
has the full right and authority to enter into this Agreement; (c) it
has full
right and authority to make any representations in Schedules A or B
referring to
the licensor of the Software.
7.2 Software. AristaSoft warrants that during the term of this
Agreement: (a) the Software will perform in accordance with the
published
product specifications in effect from time to time; (b) the Software
will
continue to function after January 1, 2000 in the same manner as they
functioned
on December 31, 1999; and (c) the Documentation produced by AristaSoft,
including manuals and training materials, are accurate and correct in
all
material respects.
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AristaSoft will correct any material nonconformance to the most current
version
of the Software at no additional cost to the Customer. Customer shall
notify
AristaSoft of such nonconformance in reasonably sufficient detail to
allow
AristaSoft, or its business partners, to duplicate the nonconformity.
7.3 PRODUCTS COVERED UNDER THIS AGREEMENT MAY CONTAIN OR BE
DERIVED FROM
SOFTWARE PROVIDED BY THIRD PARTIES UNDER LICENSE TO ARISTASOFT. Customer
shall
have the benefit of any warranties retaining thereto that are available
to
AristaSoft, provided however, that Customer's remedy for breach of any
such
warranty shall be solely against AristaSoft.
7.4 The warranties given herein only apply during the Term of
this
Agreement, as provided in Schedule A.
7.5 Services. AristaSoft represents and warrants that the
Services shall
be performed in a professional and workmanlike manner in accordance with
applicable professional standards consistent with industry practices.
7.6 Limitation of Performance Warranties. These warranties are
subject
to Customer fulfilling its obligations under the terms of this Agreement
as
described in Schedules A and B. THESE WARRANTIES DO NOT APPLY TO ANY
ARISTASOFT
PRODUCTS OR SERVICES THAT EXPRESSLY EXCLUDE THIS WARRANTY (AS DESCRIBED
IN THE
SPECIFICATION SHEETS FOR SUCH PRODUCTS AND SERVICES).
7.7 Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET OUT IN
THIS
SECTION 7, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN "AS IS" BASIS,
AND
CUSTOMER'S USE OF THE SOFTWARE AND SERVICES IS AT ITS OWN RISK.
ARISTASOFT AND
ITS LICENSORS DO NOT MAKE ANY OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR
PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A
COURSE OF
DEALING, USAGE, OR TRADE PRACTICE.
8. LIMITATIONS OF LIABILITY
8.1 In no event shall either party be liable for any
consequential,
exemplary, indirect, special or incidental damages, or damages for loss
of
profits, revenue, data or use, incurred by either party or any third
party,
whether in an action in contract or tort, even if the other party has
been
advised of the possibility of such damages.
8.2 Maximum Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY
IN THIS
AGREEMENT ARISTASOFT'S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED
TO, OR IN
CONNECTION WITH, THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID
BY
CUSTOMER TO ARISTASOFT HEREUNDER FOR THE [***] PERIOD, AND IF SUCH
DAMAGES
RESULT FROM CUSTOMER'S USE OF A SPECIFIC SERVICE, SUCH LIABILITY SHALL
BE
LIMITED TO FEES PAID FOR THE SERVICE GIVING RISE TO THE LIABILITY.
CUSTOMER'S
MAXIMUM AGGREGATE LIABILITY TO ARISTASOFT RELATED TO, OR IN CONNECTION
WITH,
THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID TO ARISTASOFT
HEREUNDER
FOR THE [***] PERIOD.
8.3 The provisions of this Agreement allocate the rights between
Aristasoft and Customer. Aristasoft's pricing reflects this allocation
of risk
and the limitation of liability specified herein.
9. INDEMNIFICATION
9.1 Indemnification of Customer. AristaSoft will indemnify,
defend and
hold harmless Customer, its employees, officers, directors, and agents,
from and
against any and all costs, liabilities, losses, and expenses (including,
but not
limited to, reasonable attorneys' fees) (collectively, "Losses"): (i)
resulting
from any claim, suit, action, or proceeding (each, an "Action") brought
against
Customer alleging the infringement of any third party trade secret, U.S.
copyright, or registered trademark resulting from the provision of the
Services
pursuant to this Agreement; (ii) any damage arising from the breach of
AristaSoft's representations and warranties in this Agreement; (iii) any
damage
or destruction to the Customer Data caused in whole or in part by
AristaSoft; or
(iv) any other damage arising out of AristaSoft's acts or failure
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to act provided that: (1) Customer notifies AristaSoft in writing within
thirty
(30) days of receiving notice of such Action; (2) AristaSoft has sole
control of
the defense and all related settlement negotiations; and (3) Customer
provides
AristaSoft with the assistance, information and authority necessary to
perform
its obligations under this Section. AristaSoft shall reimburse Customer
for
reasonable out-of-pocket expenses incurred by Customer in providing such
assistance. AristaSoft may not settle or compromise any claim in a
manner which
requires Customer to assume liability or pay money or which subjects
Customer to
injunctive relief without Customer's express written consent. AristaSoft
shall
have no liability for any claim of infringement based on use of a
superseded or
altered release of Software and Services if the infringement would have
been
avoided by the use of a current unaltered release of the Software and
Services
that AristaSoft provides to Customer.
9.2 If the Software is held, or is reasonably believed by
AristaSoft, to
infringe the intellectual property rights of a third party, AristaSoft
shall
have the option, at its expense, to (a) modify the Software to be
noninfringing;
(b) obtain for Customer a license to continue using the Software; or (c)
terminate the license for the infringing Software.
9.3 Indemnification of AristaSoft. Customer will indemnify,
defend and
hold AristaSoft harmless from and against any and all Losses resulting
from or
arising out of any Action brought by a third party against AristaSoft
alleging:
(i) defamation, libel, slander, obscenity, pornography, or violation of
the
rights of privacy or publicity; (iii) spamming, or any other offensive,
harassing or illegal conduct; (iv) any damage or destruction to the
Customer
Data or the equipment of AristaSoft caused in whole or in part by
Customer or
Customer's Designees; (v) any other damage arising from the breach of
Customer's
representation and warranties in this Agreement, or from Customer's acts
or
failure to act provided that (1) AristaSoft notifies Customer in writing
within
thirty (30) days of the claim; (2) Customer has sole control over the
defenses
and all related settlement negotiations; and (3) AristaSoft provides
Customer
with the assistance, information and authority necessary to perform its
obligations under this Section 9.3. Customer shall reimburse
AristaSoft's
reasonable out-of-pocket expenses incurred in providing such assistance.
10. TERM AND TERMINATION
10.1 Term. This Agreement will be effective for three (3) years
after
the Effective Date (the "Initial Term"), unless otherwise specified for
relevant
services in Schedule A. This Agreement will automatically renew for
additional
terms of one (1) year unless otherwise specified in, or terminated
pursuant to,
the applicable Schedule A.
10.2 Direct License Conversion. At the end of the Initial Term,
Customer
may choose to directly license the Software from AristaSoft's licensor
rather
than renew this Agreement and applicable Schedules. In such case,
Customer must
provide AristaSoft with written notice of this choice not later than
four (4)
months prior to expiration of the Initial Term. AristaSoft shall provide
Customer with consulting services, at a reasonable cost mutually agreed
by both
parties, sufficient to accomplish Customer's transition to a direct
license of
the Software, including operational start-up of the necessary hardware
components.
10.3 Termination for Convenience. Customer may terminate this
Agreement
for convenience as specified for relevant services in Schedules A
through C. All
application access fees, if any, for the remaining period of the
contract under
this Agreement will be due and may be paid [***] payment in the same
amount that
would be due if this Agreement were not terminated. [***].
Notwithstanding the
foregoing, Customer's payment obligations for [***] fees shall not
include any
[***] that otherwise would be due if this Agreement were not terminated.
All
other payment obligations for relevant services as specified in this
Agreement
will be due immediately.
10.4 Termination for Cause. Either party may terminate this
Agreement
if: (i) the other party breaches any material term or condition of this
Agreement and fails to cure such breach within ninety (90) days after
receipt of
written notice of the same, except in the case of failure to pay fees,
which
must be cured within ten (10) days after receipt of written notice from
AristaSoft; provided, however, that Customer [***], in which case no
breach
shall occur until [***]; (ii) the other party becomes the subject of a
voluntary
petition in bankruptcy or any voluntary proceeding relating to
insolvency,
receivership, liquidation, or composition for the benefit of creditors
if
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such petition or proceeding is not dismissed within sixty (60) days of
filing.
10.5 Termination for Failure to Meet Software Access Performance
Standards. If AristaSoft fails to meet the Software Access Performance
Standards
described in Schedule B for any three (3) consecutive months or any four
(4)
months during a one (1) year period, Customer may terminate this
Agreement and
all attached Schedules pursuant to Section 10.4, or substitute for this
Agreement and all attached Schedules a direct license with AristaSoft's
licensor
of the Software. In the latter event, AristaSoft shall provide Customer
with
consulting services, [***], sufficient to accomplish Customer's
transition to a
direct license of the Software [***]. Pricing of the direct license
shall be
pursuant to Section 10 of Schedule A.
10.6 Termination Upon Change of Control. In the event that
AristaSoft is
acquired, is not the surviving entity in a merger, or sells the assets
relevant
to this Agreement and the attached Schedules, Customer may terminate
this
Agreement and all attached Schedules pursuant to Section 10.4, or
substitute for
this Agreement and all attached Schedules a direct license with
AristaSoft's
licensor of the Software. In the latter event, AristaSoft's successor
shall
provide Customer with consulting services, [***], sufficient to
accomplish
Customer's transition to a direct license of the Software [***]. Pricing
of the
direct license shall be pursuant to Section 10 of Schedule A.
10.7 Effect of Termination. Upon the effective date of
expiration or
termination of this Agreement, subject to Section 10 of Schedule A,
AristaSoft
will cease providing the Services. Immediately thereafter AristaSoft
will
provide: (i) Customer with electronic copies from the full backup of the
most
recent Customer Data and instructions, so that Customer may restore the
data
into an AristaSoft similar server hardware environment; (ii) the
necessary
customization of the Software provided that Customer has agreed to pay a
special
termination fee, in an amount to be mutually agreed to; and (iii) the
specifications for the hardware and software environment that would be
necessary
for Customer to restore and operate the Software and Customer Data.
Within
thirty (30) days after such expiration or termination, but not before
the
expiration of any additional period pursuant to Section 10 of Schedule
A: (i)
each party agrees to return or destroy all Confidential Information of
the other
party in its possession at the time of expiration or termination and
will not
make or retain any copies of such Confidential Information except as
required to
comply with any applicable legal or accounting record keeping
requirement; and
(ii) Customer will return any Equipment provided hereunder and that is
located
within its premises or under its control. Termination of this Agreement
or any
License shall not limit either party from pursuing other remedies
available to
it, including injunctive relief, nor shall such termination relieve
Customer's
obligation to pay all fees that have accrued or are otherwise owed by
Customer
under any Schedule A or C. Subject to Section 10 of Schedule A, Customer
shall
cease access to the Software, and certify to AristaSoft within one month
after
expiration or termination that Customer has destroyed or has returned to
AristaSoft all copies of the Software, if any. This requirement applies
to
copies in all forms, partial and complete, in all types of media and
computer
memory, and whether or not modified or merged into other materials.
10.8 Survival. The following provisions will survive any
expiration or
termination of the Agreement: Sections 5, 7, 8, 9, 10, and 11.
11. MISCELLANEOUS PROVISIONS
11.1 Marketing Programs:
i. Joint Press Release. Customer agrees to participate
with
AristaSoft in a joint press release ("Press Release"). The Press Release
will be
issued on a mutually agreed upon date or the first business day
following the
ninetieth (90th) day after the Effective Date, whichever is earlier.
Customer
and AristaSoft must both approve the Press Release in advance, such
approval not
to be unreasonably delayed or withheld.
ii. Customer Success Story. Subject to its satisfaction
with the
Services, Customer agrees to be the subject of a AristaSoft "Customer
Success
Story", although any such material released to the public or press by
AristaSoft
which mentions or discusses Customer is subject to Customer's prior
approval,
which shall not be unreasonably delayed or withheld. AristaSoft may
write a
collateral piece discussing Customer's business and use of Services and
its
impact on Customer's business. The Customer Success Story will be
delivered to
Customer for review on a mutually agreed upon date, not to exceed ninety
(90)
days after the Effective Date.
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iii. Customer Reference. Subject to its own resource
constraints
and satisfaction with the Services provided by AristaSoft hereunder,
Customer
consents to AristaSoft identifying it as a reference for AristaSoft
customer
prospects' inquiries and press inquiries. It is understood that this
will be a
controlled effort and will be managed to ensure minimum impact on
Customer. The
objective focuses on Customer discussing its use of AristaSoft service
in
addition to the positive experiences and support provided in the working
relationship with AristaSoft. Customer's obligation under this provision
is
entirely voluntary, and the parties agree that Customer's refusal to
perform
under this provision shall not constitute a breach of this Agreement
iv. Customer Acknowledgement: Customer agrees that
AristaSoft
can disclose Customer as a customer of AristaSoft.
11.2 Force Majeure. Except for the obligation to pay money,
neither
party will be liable for any failure or delay in its performance under
this
Agreement due to any cause beyond its reasonable control, including acts
of God,
earthquake, flood, war, embargo, riot, sabotage, labor shortage or
dispute,
governmental act or failure of the Internet, provided that the delayed
party:
(a) gives the other party prompt notice of such cause, and (b) uses
reasonable
commercial efforts to correct promptly such failure or delay in
performance. If
the interruption exceeds thirty (30) days, either party may terminate
this
Agreement without any liability to the other party for such termination.
11.3 Government Regulations. Customer will not export, re-
export,
transfer, or make available, whether directly or indirectly, any
regulated item
or information to anyone outside the United States in connection with
this
Agreement without first complying with all export control laws and
regulations
which may be imposed by the United States Government and any country or
organization of nations within whose jurisdiction Customer operates or
does
business.
11.4 Non-Solicitation. During the term of this Agreement, and
for one
year after the termination or expiration of this Agreement in accordance
with
its terms, each party will not directly or indirectly, solicit, or
attempt to
solicit, for employment any persons employed by the other party in the
performance or supervision of the Services for the other party during
such
period.
11.5 Governing Law. This Agreement is made under, and will be
governed
by and construed in accordance with, the laws of the State of California
(except
that body of law controlling conflicts of law) and specifically
excluding from
application to this Agreement that law known as the United Nations
Convention on
the International Sale of Goods.
11.6 Arbitration. Any dispute relating to the terms,
interpretation or
performance of this Agreement (other than claims for preliminary
injunctive
relief or other pre-judgment remedies) will be resolved at the request
of either
party through binding arbitration. Arbitration will be conducted in
Santa Clara
County, California, under the rules and procedures of the Judicial
Arbitration
and Mediation Society ("JAMS"). The parties will request that JAMS
appoint a
single arbitrator possessing knowledge of online services agreements;
however,
the arbitration will proceed even if such a person is unavailable.
11.7 Severability. If a tribunal of competent jurisdiction holds
any
provision of this Agreement to be contrary to the law, the remaining
provisions
of this Agreement will remain in full force and effect, and the illegal
provision will be replaced with a legal provision that incorporates the
original
intent of the parties.
11.8 Waiver. The waiver of any breach or default of this
Agreement will
not constitute a waiver of any subsequent breach or default, and will
not act to
amend or negate the rights of the waiving party.
11.9 Assignment. Neither party may assign its rights or delegate
its
duties under this Agreement either in whole or in part without the prior
written
consent of the other party, except as part of a corporate
reorganization,
consolidation, merger, or sale of substantially all of its assets. Any
attempted
assignment or delegation without such consent will be void. This
Agreement will
bind and inure to the benefit of each party's successors and permitted
assigns.
11.10 Notices. Any notice or communication required or permitted
to be
given hereunder may be delivered by hand, deposited with an overnight
courier,
or mailed by registered or certified mail, return receipt requested,
postage
prepaid, in each case to the address of the receiving party indicated on
the
signature page hereof, or at such other address as may hereafter be
furnished in
writing by either party hereto to the other. Such notice will be deemed
to have
been given as of the date it is delivered, mailed or sent, whichever is
earlier.
To expedite communications, each party agrees to treat
-7-
8
documents faxed or e-mailed as original documents; nevertheless, each
party may
require the other to exchange original signed documents.
11.11 Relationship of Parties. AristaSoft and Customer are
independent
contractors and this Agreement will not establish any relationship of
partnership, joint venture, employment, franchise or agency between
AristaSoft
and Customer. Neither AristaSoft nor Customer will have the power to
bind the
other or incur obligations on the other's behalf without the other's
prior
written consent, except as otherwise expressly provided herein.
11.12 Entire Agreement; Counterparts. This Agreement, including
these
general terms and conditions, the Schedules and exhibits thereto, and
all other
documents incorporated herein by reference, constitutes the complete and
exclusive agreement between the parties with respect to the subject
matter
hereof, and supersedes and replaces any and all prior or contemporaneous
discussions, negotiations, understandings and agreements, written and
oral,
regarding such subject matter. This Agreement may be executed in two or
more
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
11.13 Attachments. The following documents are attached hereto
as
Schedules, and are incorporated by reference in their entirety:
- Schedule-A (Application Services Order Form)
- Schedule-B (Software Access and Support Services Schedule)
- Schedule-C (Consulting Services Schedule)
11.14 IMPORTANT-THIS ARISTASOFT SERVICE AGREEMENT IS A LEGAL
AGREEMENT
BETWEEN CUSTOMER AND ARISTASOFT CORPORATION FOR THE ARISTASOFT SERVICES
IDENTIFIED ABOVE, INCLUDING THOSE SET FORTH IN RELATED SCHEDULES. BY
USING THESE
SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT EFFECTIVE
AS OF
THE DATE FIRST ABOVE WRITTEN. IF YOU DO NOT AGREE TO THE TERMS OF THIS
AGREEMENT, PROMPTLY RETURN THE UNUSED MATERIAL RELATED TO THE SERVICES
TO
ARISTASOFT CORPORATION.
Accepted and Agreed:
CUSTOMER ARISTASOFT
By: By:
--------------------------------
---------------------------------
Print Name: Print Name:
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Title: Title:
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Date: Date:
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