Software Development and OEM License Agreement - Baan Development BV and BackWeb Technologies Ltd.
SOFTWARE DEVELOPMENT AND OEM LICENSE AGREEMENT
This SOFTWARE DEVELOPMENT AND OEM LICENSE AGREEMENT (this "Agreement") is
entered into on this 30th day of December, 1998 (the "Effective Date") by and
between Baan Development B.V., a Dutch corporation, with a principal place of
business at Baron van Nagellstraat 89, P.O. Box 143, 3770 AC Barneveld, The
Netherlands and its Affiliates, as defined below, (collectively "Baan"), and
BackWeb Technologies Ltd., an Israeli corporation, whose address is P.O. Box
3581, Ramat-Gan 52136 Israel ("Vendor"). Each Party shall be deemed to include
its Affiliates and each reference to a Party in this Agreement shall include
its Affiliates.
RECITALS
WHEREAS, Baan develops and markets proprietary enterprise software
applications; and
WHEREAS, Vendor designs, develops and markets proprietary software
applications and is willing to develop for and license to Baan certain software
for use on a "private label" basis; and
WHEREAS, the Parties desire to set forth the terms and conditions under
which such development and licensing shall take place.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
AGREEMENT
DEFINITIONS
As used throughout this Agreement, the following terms shall have the
meanings set forth below unless otherwise indicated:
1.1 "Affiliate" of a named Party means a corporation, partnership, joint
venture or other entity controlling, controlled by or under common control with
such Party. As used in this definition, "control" (and its correlative
meanings, "controlled by" and "under common control with") shall mean
possession, directly or indirectly, of more than fifty percent (50%) of the
voting shares of such entity or the power to direct or cause the direction of
management or policies (whether through beneficial ownership of securities or
other ownership interests, by contract or otherwise).
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1.2 "Agreement" means the terms and conditions contained herein, in all
attached Exhibits, Statements of Work and any other documents made a part of
this Agreement or incorporated by reference, including any written amendments
hereto signed by the Parties.
1.3 "Baan Software" means Baan's enterprise software application product
offerings, as may be modified by Baan from time to time.
1.4 "Baan Technology" shall mean Technology owned by or licensed to Baan and
provided to Vendor hereunder, but in any event excluding Vendor Technology.
1.5 "Bankruptcy Event" means any of the following events or circumstances with
respect to a Party: (i) such Party ceases conducting its business in the normal
course; (ii) becomes insolvent or becomes unable to meet its obligations as
they become due; (iii) makes a general assignment for the benefit of its
creditors; (iv) petitions, applies for, or suffers or permits with or without
its consent the appointment of a custodian, receiver, trustee in bankruptcy or
similar officer for all or any substantial part of its business or assets; or
(v) avails itself or becomes subject to any proceeding under the U.S.
Bankruptcy Code or any similar state, federal or foreign statute relating to
bankruptcy, insolvency, reorganization, receivership, arrangement, adjustment
of debts, dissolution or liquidation, which proceeding is not dismissed within
sixty (60) days of commencement thereof.
1.6 "Change of Control" means with respect to a Party: (A) the direct or
indirect acquisition of either (i) the majority of the voting stock of such
party or (ii) all or substantially all of the assets of such Party, by another
entity in a single transaction or series of related transactions; or (B) such
Party is merged with, or into, another entity.
1.7 "Confidential Information" means information, including without limitation
Technology, that is transmitted or otherwise provided by or on behalf of either
Party to the other Party in connection with this Agreement and the activities
hereunder, and that should reasonably have been understood by the receiving
Party because of legends or other markings, the circumstances of disclosure or
the nature of the information itself, to be proprietary and confidential to the
disclosing Party, an Affiliate of the disclosing Party or to a third party.
Confidential Information may be disclosed in written or other tangible form
(including on magnetic media) or by oral, visual or other means.
1.8 "Deliverable" means any tangible or intangible material, work or thing
delivered by one Party to the other Party hereunder pursuant to this Agreement
or a Statement of Work, including the physical media on which any Source Code
or Object Code is stored and any associated Documentation.
1.9 "Derivative Work" has the meaning ascribed to it under the United States
Copyright Law, Title 17 U.S.C. Sec. 101 et. seq.
1.10 "Development Schedule" means the schedule for the completion of
identified Deliverables as set forth in this Agreement or a Statement of Work.
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11.1 "Documentation" means all or any portion of the materials, in written or
other tangible form (including on magnetic media), generated by Vendor in the
performance of development hereunder or generally made available by Vendor for
use in connection with the Vendor Software, including without limitation any
Software summaries, Software design, architectures, program logic, flow charts,
program listings, functional or technical specifications, logical models, user
guides, operator guides, installation and operation guides and any other
supporting or programming materials. Documentation shall not include Source
Code for the Vendor Software.
1.12 "Enhancement" means any improvement, upgrade, new version of, enhancement
to, fix, extension which is compatible or interoperable with, or any Derivative
Work of, any Technology, including any Software generally made available by
Vendor to its supported customers.
1.13 "Vendor Personnel" means Vendor employees, agents, and subcontractors and
the employees and agents of any such subcontractors, directly or indirectly
supplied or otherwise utilized hereunder by Vendor to perform work for Baan.
1.14 "Vendor Software" means the Vendor client and server software product
known as "BackWeb Sales Accelerator," which includes the BackWeb Foundation and
Strategic Publishing Manager, Automatic Marketing Encyclopedia, BackWeb Active
X Controls and Marketing Intelligence Module, plus Enhancements and Interfaces
developed by or on behalf of Vendor to be bundled and marketed in connection
with Baan Software or on a stand alone basis, and marketed under the Baan name,
as well as all Enhancements thereto.
1.15 "Vendor Technology" shall mean Technology owned by or licensed to Vendor
and provided to Baan hereunder, but in any event excluding Baan Technology.
1.16 "Interface" means Software to be developed hereunder that will provide for
the joint and proper functioning of Baan Software and the Vendor Software, as
further described in Exhibit A.
1.17 "Intellectual Property Rights" means all rights of a Person in, to, or
arising out of: (i) any U.S., international or foreign patent or any
application therefor and any and all reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof; (ii) inventions
(whether patentable or not in any country), invention disclosures,
improvements, trade secrets, proprietary information, know-how, technology and
technical data; (iii) copyrights, copyright registrations, mask works, mask
work registrations, and applications therefor in the U.S. or any foreign
country, and all other rights corresponding thereto throughout the world; and
(iv) any other proprietary rights in Technology anywhere in the world.
1.18 "Object Code" means Software in binary, executable form.
1.19 "Party" in its singular or plural form, refers to either Baan or Vendor or
both, as dictated by the use.
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1.20 "Person" means any legal person or entity, including any individual,
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated association, limited liability corporation, governmental
entity, or other person or entity of similar nature.
1.21 "Software" means any and all computer object code software code including
associated data files, data (including image and sound data), design tools,
user interfaces, templates, menus, buttons and icons, together with all
related Documentation.
1.22 "Specification" means the specifications as set forth in this Agreement or
a Statement of Work for Deliverables and any amendments or changes to such
specifications in accordance with this Agreement.
1.23 "Statement of Work" means a written document that is mutually agreed upon
by the Parties setting forth the requirements for the development of
Enhancements to the Vendor Software. Each Statement of Work shall be designated
by a number (e.g. SOW-1) and, once agreed upon and executed by the Parties, a
Statement of Work shall be deemed incorporated into this Agreement.
1.24 "Term" shall have the meaning set forth in Section 9.1.
1.25 "Technology" means all technology, including all know-how, show-how,
techniques, design rules, trade secrets, inventions (whether or not patented or
patentable), algorithms, routines, Software and associated Documentation,
files, data-bases, works of authorship, processes, devices and hardware.
1.26 "User" means a single computer running a copy of the Vendor Software or a
Vendor-licensed source, with an address registered to a single server.
DEVELOPMENT OBLIGATIONS
2.1 Development.
2.1.1 Development of Interfaces. The Parties shall develop the Interface
as mutually agreed and in accordance with Exhibit A. The first phase of
development of the Interfaces is described in Exhibit A. Except as expressly
provided in this Agreement, each party shall perform all such development work
at its own expense. Baan shall pay for Vendor's Interface development services
against Vendor's monthly invoice on net thirty (30) day terms at the rate of
$[*] US/hour for Vendor's professional services and all reasonable Vendor travel
expenses incurred in connection with the Interface development and specifically
authorized in advance by Baan.
2.1.2 Ownership of Intellectual Property Rights in the Interfaces. Unless
otherwise agreed to in a Statement of Work, the parties hereby agree that the
following shall govern the ownership of Intellectual Property Rights in the
Interfaces:
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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(a) To the extent that the Interfaces include any Baan Technology,
Baan shall retain ownership of all Intellectual Property Rights
contained in such Baan Technology.
(b) To the extent that the Interfaces include any Vendor Technology,
Vendor shall retain ownership of all Intellectual Property
Rights contained in such Vendor Technology.
(c) Unless otherwise agreed to in a Statement of Work, ownership of
the Interface shall be as follows: (i) if the Interface is a
Derivative Work of Vendor Technology, vendor shall own the
Intellectual Property Rights in the Interface; (ii) if the
Interface is a Derivative Work of Baan Technology, Baan shall
own the Intellectual Property Rights in the Interface.
In the event Baan determines in its own judgment that personnel of Vendor
performing development of the Interfaces are not performing in a satisfactory
manner, Baan will notify Vendor within three (3) weeks of the commencement of
services by any such individual. Vendor shall replace the personnel so
identified by Baan at no charge and not charge Baan for those services deemed
non-performing up to a maximum of three (3) weeks of work performed per
engineer.
2.1.3 Enhancements to Vendor Software. Vendor shall provide Baan with
all Enhancements to the Vendor Software that it makes generally available to
Vendor's supported customers under its support and maintenance agreement in
exchange for the support fees set forth in Exhibit B. In addition, during the
Term, Baan may request that Vendor develop reasonable Enhancements to the
Vendor Software. Vendor shall within thirty (30) days of such request indicate
whether it is willing to perform such development. In the event that Vendor
agrees to perform such development, the terms and conditions of such
development shall be set forth in a Statement of Work executed by the Parties.
Such Statement of Work shall include, without limitation, a Development
Schedule and Specifications. In the event that Vendor does not agree to perform
Enhancements to the Vendor Software requested by Baan within such thirty (30)
day period, Baan shall have, and Vendor hereby irrevocably grants to Baan, the
right to develop or have developed such Enhancements. Notwithstanding anything
to the contrary herein, the Parties agree that Vendor shall have no obligation
to provide any maintenance and support services under Section 3.7 hereof for
any Enhancements to Vendor Software not provided by Vendor.
2.1.4 Steering Committee. The Parties shall appoint a Steering
Committee ("Steering Committee") consisting of at least two (2) employees each
which shall meet either in person or by conference call on an as needed basis
to discuss development activities, pricing conditions and other matters
relating to the parties obligations under this Agreement. Initially, the
Parties anticipate meeting on a quarterly basis but such schedule may be
adjusted as the needs are addressed. The Parties hereby each appoint the
following two individuals as their respective initial members of the Steering
Committee:
For Vendor: Roni Or and Gilad Japhet
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For Baan: John Roberts and Jeff Galea
2.2 Changes to Specifications. Baan may, by written change order, request
any reasonable changes to, including, but not limited to, additions to or
deletions from Specifications. If any such change results in a material
reduction or increase in the time of performance an appropriate adjustment to
the applicable Development Schedule shall be negotiated by the Parties and the
Joint Development and Release Plan A or the applicable Statement of Work shall
be modified in writing accordingly.
2.3 Subcontracting. Vendor may subcontract the performance of any portion
of the development to be performed under this Agreement to any third party upon
prior written notice to Baan. Vendor shall provide Baan with the names of any
third parties to whom Vendor subcontracts the performance of any portion of the
development under this Agreement along with proof of receipt of written
assurances regarding protection of Intellectual Property Rights and
confidentiality by such third party contractors. Notwithstanding any such
subcontracting, unless otherwise agreed by the Parties in writing, Vendor shall
in any event and at all times remain liable for performance of this Agreement.
2.4 Acceptance Procedure. Vendor will notify Baan when it believes it has
completed a Deliverable and will, together with such notification, provide Baan
with such Deliverable in support of its proposed completion. Baan will evaluate
the Deliverable submitted by Vendor as evidence of completion of the same. Baan
agrees that when it has made a finding as to whether Vendor has completed a
Deliverable in accordance with the applicable Specifications, it will promptly
provide a written acceptance or rejection (an "Evaluation") of the Deliverable
to Vendor. Baan shall be deemed to have accepted any Deliverable for which Baan
fails to provide Vendor an Evaluation within sixty (60) days following Baan's
receipt thereof. Any notice of rejection shall set forth in reasonable detail
the basis for Baan's rejection. Upon receipt of a written notice of rejection,
Vendor shall promptly correct the identified deviations from the
Specifications, and each such item shall again be subject to the foregoing
acceptance procedure.
Baan expressly acknowledges that the provisions of this Section are hereby
waived for the items described in Exhibit A.
2.5 Default in Development. In the event Vendor fails to deliver
Deliverables in accordance with applicable Specifications as required under
Section 2.1 within the time provided in the Development Schedule, or shall have
failed to correct a material deviation from the Specifications within thirty
(30) days after Baan's initial notice thereof under Section 2.4 (or sixty (60)
days if the deviation is non-material), or within such extended period for
performance as may have become applicable pursuant to clause (a) below, then
Baan, at its sole option, and without prejudice to such other legal rights as it
may have hereunder or otherwise, may:
(a) extend the time for Vendor' performance; or
(b) terminate the applicable Statement of Work and undertake
completion of the deficient item itself or with the services of any third
party (subject to adequate protection of Vendor's Intellectual Property
Rights), with the right to use in connection
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therewith any Deliverables previously delivered or due to Baan pursuant to
this Agreement.
2.6 No Limitation of Other Rights. Acceptance by Baan of any Deliverable
pursuant to this Section 2 shall not limit in any manner Baan's rights pursuant
to any other provision of this Agreement, including without limitation any
warranty granted hereunder.
2.7 Delivery of the Vendor Software.
2.7.1 Object Code Version. Vendor shall deliver to Baan the Vendor
Software in Object Code format on media acceptable to the Parties within ten
(10) days of the Effective Date. Vendor shall deliver to Baan any Enhancements
to the Vendor Software created by Vendor, other than pursuant to Section 2.1.2,
above no later than the date upon which Vendor makes the same generally
available to its supported customers.
2.7.2 Customizations. In addition, the license grant in Section 4.4.2
shall include a license to Vendor's customization tools in order for Baan,
either through itself, its Affiliates or its Authorized Customized Provider
program, to perform customization services for end users of Vendor
Software.
2.8 Translations. Vendor represents and warrants that as of the Effective
Date the Vendor Software as specified in Exhibit E and the associated
Documentation as specified in Exhibit E will be available in the languages
specified in Section 1 of Exhibit E according to the schedule set forth therein.
Vendor shall deliver to Baan versions of the Vendor Software and the associated
Documentation in the languages specified in Section 2 of Exhibit E in accordance
with the provisions therein. Within a reasonable period after the Effective Date
of this Agreement, Vendor shall provide Baan with a roadmap for translations. If
Baan establishes to Vendor's satisfaction that a profitable market exists for a
given language, Vendor shall translate the Vendor Software for such language at
Vendor's cost. If Baan fails to establish to Vendor's satisfaction that a
profitable market exists for a given language, Vendor shall translate the Vendor
Software for such language at Baan's cost. The projected date of availability
shall be approximately 6 months from the date of such request and shall be no
later than 12 months from the date such request is made to Vendor, unless
otherwise agreed by the parties. In the event that Vendor believes that a
substantial revenue stream has not been established for such translation, Vendor
shall provide written notice to Baan of its intention to discontinue further
translation of the particular affected language. Until Vendor provides Baan with
such notice of its intention to discontinue, Vendor shall provide further
translations in the applicable language for future versions of the Vendor
Software at its expense.
2.9 Ports. Vendor represents and warrants that the Vendor Software will
be available in versions that are ported to the operating systems and platforms
specified in Section 2 of Exhibit E according to the schedule set forth
therein. Vendor shall deliver to Baan versions of the Vendor Software in the
operating systems and platforms specified in Section 2 of Exhibit E in
accordance with the provisions therein. Within a reasonable period after the
Effective Date of this Agreement, Vendor shall provide Baan with a roadmap for
ports. If Baan establishes to Vendor's satisfaction that a profitable market
exists for a given database platform, Vendor shall
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port the Vendor Software for such platform at Vendor's cost. If Baan fails to
establish to Vendor's satisfaction that a profitable market exists for a given
port, Vendor shall port the Vendor Software for such platform at Baan's cost.
The projected date of availability shall be approximately 6 months from the
date of such request and shall be no later than 12 months from the date such
request is made to Vendor, unless otherwise agreed by the parties. In the event
that Vendor believes that a substantial revenue stream has not been established
for such platform, Vendor shall provide written notice to Baan of its intention
to discontinue further porting of the particular affected database platform.
Until Vendor provides Baan with such notice of its intention to discontinue,
Vendor shall provide further ports to the platform for future versions of the
Vendor Software at its expense.
ADDITIONAL OBLIGATIONS OF THE PARTIES
3.1 Training, Development and Professional Services. Vendor agrees to
provide the Training Services to Baan at rates and under terms and conditions
of the delivery of such services which shall be mutually agreed to in writing
by the Parties prior to the performance of such services.
3.2 Independent Contractor. The relationship of the Parties hereunder
shall be that of independent contractors. Accordingly, and without modification
of any obligation of Vendor under this Agreement, Vendor will provide day to
day management and supervision of the development tasks for which it is
responsible, including without limitation determining the time, scheduling,
manner, method and place of performance. Vendor represents and warrants that
pursuant to the Internal Revenue Code of 1986, the regulations promulgated
thereunder and applicable provisions of the common law, all Vendor Personnel
will be independent contractors in relation to Baan. Accordingly, Vendor will
file all required forms and necessary payments appropriate to the status of
Vendor Personnel as independent contractors in relation to Baan. In the event
such independent contractor status is denied or changed and any Vendor personnel
are declared to have "employee" status with respect to Baan, Vendor agrees to
hold Baan harmless from and against all costs, including any interest,
penalties and legal fees, which Baan may incur as a result of such change in
status.
3.3 Compliance With Security Regulations. When on the premises of the
other Party, each Party agrees that all its personnel will at all times comply
with all reasonable security regulations in effect at such premises and
communicated to them in writing.
3.4 No Conflicts. Except as may be otherwise agreed in this Agreement
or in Section 3.12, each Party reserves the right to contract with other firms
or individuals during the Term for services or the provision of products
similar to the services being performed or products being provided under this
Agreement or any Statement of Work.
3.5 Personnel Taxes and Benefits. The Parties shall be responsible for
all employee-related benefits applicable to their respective personnel
performing development under this Agreement. Neither Party shall be obligated
to provide the other Party's personnel with
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employee benefits of any type unless otherwise required by law. Each Party is
responsible for withholding its portion of Federal Insurance Contributions Act
("FICA") taxes, and for withholding income taxes for federal and state income
tax purposes in the manner required by law. Each Party will, in a timely
manner, pay over all amounts withheld to the Internal Revenue Service or to the
appropriate state or foreign government authorities as the case may be, and
will timely pay its share of all FICA and Federal Unemployment Tax Act ("FUTA")
taxes for all of its personnel performing work under this Agreement. Each Party
shall be indemnified and held harmless by the other Party from any liability,
cost or expense, including any interest, penalties and legal fees, that may be
assessed against or incurred by the other Party's failure to make any such
payment.
3.6 Nonsolicitation. During the Term and for a period of twelve (12)
months thereafter, neither Party will directly or indirectly solicit for
employment employees of the other Party; provided, however, that this Section
3.6 shall not be construed as precluding either Party from hiring any Person
that seeks employment or responds to a general advertisement.
3.7 Maintenance and Support Services. Vendor agrees to provide
maintenance and support services for the Vendor Software in accordance with
Exhibit B. As consideration for such maintenance and support services, Baan
shall pay to Vendor the fees set forth in Exhibit B.
3.8 Consulting and Implementation Services. Within 60 days of the
Effective Date, the parties shall enter into an agreement respecting the
provision by Vendor of consulting and implementation services to end users
obtaining the Vendor Software from Baan; provided, however that the Parties
understand and agree that Vendor shall be directly involved in such services
for Baan's customers as may be mutually agreed to by the Parties from time to
time.
3.9 Marketing Activities. During the Term Baan shall use its
commercially reasonable efforts to do the following:
(a) promote, distribute, solicit and obtain orders for and
otherwise market the Vendor Software;
(b) demonstrate the Vendor Software for distributors, resellers,
customers and potential customers;
(c) electronically publish information about the Vendor Software;
(d) demonstrate the Vendor Software for industry analysts;
(e) include the Vendor Software in trade shows, conferences and
other marketing events and provide booth space to Vendor;
(f) invite Vendor to all of Baan's major global and regional sales
and marketing events mutually agreed upon by the parties and related to
Vendor's product, both as a participant and, where mutually agreeable, as
a speaker;
(g) participate in joint press releases approved in writing by
both Parties prior to their being released;
(h) include Vendor in direct mail campaigns to Baan customers and
prospects;
(i) provide training to members of its sales force on Vendor
Software;
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(j) include Vendor's name in the copyright tagline of Baan
collateral dealing with KnowledgeManager;
(k) jointly publish customer case studies and success stories; and
(l) include presentations of Vendor Software to Baan user groups.
3.10 Marketing Support. Vendor agrees to provide to Baan during the Term
at no additional charge the market support activities set forth in this Section
3.10. Vendor represents and warrants that all of its personnel providing such
marketing support activities to Baan will have at least the same knowledge of
the Vendor Software as its personnel providing similar services to its
resellers and/or customers.
(a) Marketing Events. Vendor agrees to participate in trade shows,
executive conferences and such other marketing events as the Parties agree
upon at mutually acceptable times and locations.
(b) Global and Regional Sales and Marketing Events. Baan will
receive invitations to all of Vendor's major global and regional sales and
marketing events, both as a participant and, where mutually agreeable, as
a speaker. As mutually agreed, Vendor will accept invitations to and
attend and support Baan's global and regional marketing events.
(c) Joint Marketing Program. Baan shall be offered the opportunity
to participate in joint marketing programs, events and press releases with
Vendor's marketing department.
3.11 Other Support Obligations.
(a) Telephone Support. Vendor agrees that during normal business
hours from the support locations specified below it will provide to Baan
telephone consulting services for pre-sales support and to address
technical questions related to the demonstration, marketing, installation,
operation and use of the Vendor Software in accordance with Vendor's
Standard Support and Maintenance terms set forth in Exhibit B. Support
fees are payable in accordance with Exhibit C.
Support Locations: Either 1 location -- East Coast -- U.S. or 2
locations (1 on the West Coast -- U.S. and the other in Europe.)
(b) Pre-sales Support. Vendor agrees to provide to Baan pre-sales
technical support services and demonstration assistance for the Vendor
Software to potential Baan customers on dates and at locations that are
mutually agreeable. Vendor also agrees to make field-based engineers,
consultants and executives available for proposal assistance, knowledge
transfer, development expertise and sales process assistance. Baan and
Vendor agree to share equally the reasonable travel expenses incurred by
Vendor in connection with this Section 3.11(b);
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(c) On-line Services. Baan may choose to market Vendor Software via an
on-line service provider. In such event, vendor agrees, if requested by Baan,
to obtain a userID (at Baan's expense) from such on-line service provider for
purposes of participating in interactive areas wherein actual or potential Baan
customers may seek to exchange information and ask questions relative to Vendor
Software.
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3.12 Competing Products.
(a) Subject to Section 3.12(b) below, nothing contained herein shall be
construed as precluding Baan from developing, promoting, marketing, distributing
and licensing other products, whether Baan products or third party products,
that compete directly or indirectly with the Vendor Software; provided that Baan
shall in no event infringe Vendor's Intellectual Property Rights and shall
comply with the confidentiality provisions of Section 6.
[*] except in the case where Vendor is acquired by a competitor of Baan or
where Vendor is in material breach of the Agreement. Nothing herein shall be
construed as restricting or prohibiting Baan from offering third-party
competitive products as a front-office application product at any time during
the term of this Agreement. [*] Upon receipt of either of such notices, Vendor
shall no longer be obligated to fulfill any of its existing obligations under
Sections 2.1.1, 2.8 or 2.9. However, Vendor shall be obligated to honor support
agreements with end users then in effect and entered into by Baan pursuant to
Exhibit B while the Agreement remains in effect. In the event such a decision is
taken by Baan. Baan agrees to only disclose such decision pursuant to an
appropriate confidentiality agreement. [*]
(c) In addition, Baan agrees to share with Vendor its development plans
for its Knowledge Manager products on an annual basis and to disclose any plans
it may have to develop a competitive product as contemplated by this Section
3.12. Such disclosures shall be Confidential Information as defined in Section 6
and shall be for information purposes only, meaning such plans are not binding
on Baan and are subject to change at any time.
(d) Nothing contained herein shall be construed as precluding Vendor from
developing, promoting, marketing, distributing and licensing other products that
compete directly with the Baan Software, provided that vendor shall in no event
infringe Baan's Intellectual Property Rights and shall comply with the
confidentiality provisions of Section 6.
3.13 Communication; Pipeline Report. Baan and Vendor will from time to
time communicate with each other as appropriate on issues related to the
marketing and distribution of the Vendor Software. Baan agrees to use
reasonable efforts to ensure that all actions and statements made by its
employees about Vendor Software do not adversely affect Vendor's goodwill,
reputation or Software.
3.14 Payment. Baan shall pay Vendor the amounts set forth in Exhibit C
according to the terms, conditions and schedule set forth therein.
LICENSES AND PROPRIETARY RIGHTS
4.1 Development Licenses.
1.1.1. License to Baan. Subject to the terms and conditions
hereof, Vendor hereby grants to Baan a non-transferable, non-exclusive,
royalty-free limited license, without the right to sublicense, to use
internally and reproduce Vendor Technology provided by Vendor to Baan
hereunder, solely for the purpose of performing development under this
Agreement.
1.1.2. License to Vendor. Subject to the terms and conditions
hereof, Baan hereby grants to Vendor a non-transferable, non-exclusive,
royalty-free limited license, without the right to sublicense, to use
internally and reproduce Baan Technology provided to Vendor hereunder, solely
for the purpose of performing development under this Agreement.
4.2 Vendor Technology. Vendor shall own all right title and interest in
and to all Vendor Technology and any Derivative Works thereof, including all
Intellectual Property Rights therein and thereto.
4.3 Baan Technology. Baan shall own all right title and interest in and
to all Baan Technology and any Derivative Works thereof, including all
Intellectual Property Rights therein and thereto.
4.4 License to Vendor Software
4.4.1 Object Code License. Vendor hereby grants to Baan, under
all of Vendor' Intellectual Property Rights in and to the Vendor Software, a
non-exclusive, worldwide, fee-bearing right and license, including the right to
grant and authorize sublicenses to use and reproduce the Vendor Software, and
to market, distribute and sublicense the Vendor Software to end users in Object
Code format provided that the Vendor Software may only be marketed, distributed
and sublicensed as part of Baan's Knowledge Manager product as described in
Exhibit A. Baan shall distribute and sublicense the client and server portions
of the Vendor Software to end users on terms and conditions no less favorable
than those contained in Baan's standard software license and support agreement
then in effect, a current copy of which is attached hereto as Exhibit D. Baan
may distribute the server portion of the Vendor Software with an unlimited use
license key such that end users need not register the server portion with
Vendor. Vendor understands and agrees that the Vendor Software distributed by
Baan will be
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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marketed under the Baan brand pursuant to Baan's then current end user license
agreement. No part of the client portion of the Vendor Software shall prohibit
Baan branding (including but not limited to splash screens, icons, title bars
and help text); however the server portion of the Vendor Software shall contain
Vendor branding and Vendor's copyright notices may appear in both the client
and server portions of the Vendor Software. As consideration for the license
granted in this Section 4.4, Baan agrees to pay to Vendor license fees in
accordance with the provisions of Exhibit C hereto.
4.4.2 Except as may otherwise be provided in this Agreement, during the
term of this Agreement, Baan shall not: (i) modify, adapt, translate, localize,
distribute or create Derivative Works of the Vendor Software except with the
prior written consent of Vendor; (ii) decompile, disassemble, reverse engineer
or otherwise reduce the Vendor Software to human perceptible form, except if
such work takes place within the European Union and then limited decompilation
is permitted in strict adherence to the EC Software Directive 1991, and then
only if: (A) Vendor has failed to provide Baan with information on the
interoperability of the Vendor Software after Baan has given Vendor reasonable
notice of its need for such information and (B) Baan gives Vendor thirty (30)
days written notice of such intent to decompile and Vendor is permitted to be
present for same; (iii) remove or allow to be removed any Vendor copyright,
trademark, trade secret or other proprietary rights notice from any unit of
Vendor Software; (iv) transfer, assign, reuse or sublicense the Vendor Software
licensed to Baan or an end user to a third party without the prior written
consent of Vendor; and (v) make copies of the Vendor Software or related
documentation except for back copies as needed for Baan to fulfill its
obligations under this Agreement.
4.5 Disclosure of Third Party Materials. Vendor shall promptly disclose
to Baan the extent to which any Deliverable, or any portion thereof, uses,
incorporates or is dependent upon Technology owned by or licensed from third
parties, and shall obtain for Baan, at no cost to Baan, any license rights to
any Intellectual Property Rights embodied in any Deliverable necessary or
appropriate to Baan's right to use such Deliverable.
4.6 Trademark License. Vendor authorizes Baan to use its current and
future trademarks, service marks and trade names ("Trademarks") solely in
connection with the marketing and distribution of products pursuant to this
Agreement. Baan shall use the Trademarks of Vendor solely in accordance with
the instructions from Vendor and agrees that Vendor may, from time to time,
revise these instructions for the purpose of protecting the standards of
quality established for Vendor's goods and services sold under the Trademarks
and protecting Vendor's rights in the Trademarks.
4.7 No Other Licenses. Except as explicitly set forth herein, nothing
contained in this Agreement shall be construed as granting or conferring, by
implication, estoppel or otherwise, any license or right under any Intellectual
Property Rights, whether now existing or hereafter obtained, and no such
license or other right shall arise from this Agreement or from any acts or
omissions in connection with the execution of this Agreement or the performance
of the obligations of the Parties hereunder.
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4.8 Tangible Property. Unless otherwise agreed to in writing, any
tangible property, including but not limited to Documentation and equipment or
material of every description furnished by one Party to another hereunder, is
and shall remain the property of the furnishing Party. The Parties shall not
use such property, except in performing this Agreement. All such property shall
be returned to furnishing Party upon the earlier of either the furnishing
Party's request, completion or termination of the relevant services or
expiration or termination of this Agreement.
REPRESENTATIONS AND WARRANTIES
5.1 Vendor Representations and Warranties. As an inducement to Baan
entering into this Agreement, Vendor represents and warrants on an ongoing
basis as follows:
1.1.3. Organization Representations; Enforceability. Vendor is duly
organized, validly existing and in good standing in the jurisdiction in which
it is incorporated. The execution and delivery of this Agreement by Vendor and
the transactions contemplated hereunder have been duly and validly authorized
by all necessary action on the part of Vendor. This Agreement constitutes a
valid and binding obligation of Vendor enforceable in accordance with its terms.
1.1.4. No Conflict. The entering into and performance of this
Agreement by Vendor does not and will not violate, conflict with or result in a
material default under any other contract, agreement, indenture, decree,
judgment, undertaking, conveyance, lien or encumbrance to which Vendor or any
of its employees is a party or by which it or any of its property is or may
become subject or bound. Vendor will not grant any rights under any future
agreement, not will it permit or suffer any lien, obligation or encumbrances
that will conflict with the full enjoyment by Baan of its rights under this
Agreement.
1.1.5. Right to Make Full Grant. Vendor has and shall have all
requisite ownership, rights and licenses to perform its obligations under this
Agreement fully as contemplated hereby and to grant Baan all rights with
respect to the Deliverables and the Vendor Software and Intellectual Property
Rights purported to be granted hereunder, free and clear of any and all
agreements, liens, adverse claims, encumbrances and interests of any Person,
including, without limitation, Vendor's employees, agents, artists and
contractors and such contractors' employees, agents and artists, who have
provided, are providing or shall provide services with respect to the
development of the Deliverables.
1.1.6. Noninfringement. Nothing contained in the Vendor Software or
required in the process of incorporating the same into Baan products or
products to be marketed by Baan will infringe, violate or misappropriate any
Intellectual Property Right of any third party and no characteristic of the
Vendor Software does or will cause manufacturing, using, maintaining or selling
Baan products or other products incorporating such the Vendor Software to
infringe, violate or misappropriate any Intellectual Property Right of any
third party.
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1.1.7 No Harmful Code or Viruses. To the best of its knowledge, the
Vendor Software as delivered by Vendor to Baan contain and will contain no
matter which is injurious to end-users or their property, booby traps, time
bombs or other programming designed to interfere with the normal functioning of
the Vendor Software or Baan's or the end-user's equipment, programs or data. To
the best of Vendor's knowledge, the Vendor Software and the media upon which it
is delivered to Baan is free from computer viruses.
1.1.8 Year 2000. The Vendor Software and all Deliverables as updated
by Vendor under the support terms of this Agreement will recognize and process
all accurately inputted 4-digit annual date values, including without limitation
the Year 2000 and will recognize the Year 2000 as a leap year, and that upon
request, Vendor will provide sufficient evidence through adequate testing or
otherwise to demonstrate compliance with this warranty.
1.1.9 Performance. Vendor represents and warrants to Baan and its
customers that the Vendor Software will substantially perform in accordance
with the specifications therefore.
1.1.10 Indemnity. Vendor shall be responsible for, indemnify and hold
Baan harmless from any damages, costs, liabilities, and/or expenses (including
without limitation reasonable attorneys' fees), arising out of the breach of
the foregoing subsections 5.1.1-5.1.7.
5.2 Baan's Representations and Warranties. As an inducement to Vendor
entering into this Agreement, Baan represents and warrants on an ongoing basis
as follows:
5.2.1 Organization Representations; Enforceability. Baan is a duly
organized, validly existing corporation in good standing in The Netherlands.
The execution and delivery of this Agreement by Baan and the transactions
contemplated hereby have been duly and validly authorized by all necessary
action on the part of Baan. This Agreement constitutes a valid and binding
obligation of Baan enforceable in accordance with its terms.
5.2.2 No Conflict. The entering into and performance of this
Agreement by Baan does not and will not violate, conflict with or result in a
material default under any other contract, agreement, indenture, decree,
judgment, undertaking, conveyance, lien or encumbrance to which Baan is a
party. Baan will not grant any rights under any future agreement, nor will it
permit or suffer any lien, obligation or encumbrances that will conflict with
the full enjoyment by Vendor of its rights under this Agreement.
5.2.3 Right to Make Full Grant. Baan has and shall have all
requisite ownership, rights and licenses to perform its obligations under this
Agreement fully as contemplated hereby and to grant to Vendor all rights with
respect to the Baan Technology and Intellectual Property Rights purported to be
granted hereunder, free and clear of any and all agreements, liens, adverse
claims, encumbrances and interests of any Person, including, without
limitation, Baan's employees, agents, artists and contractors and such
contractors' employees, agents and artists, who have provided, are providing or
shall provide services with respect to the development of the Deliverables.
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5.2.4 Noninfringement. Nothing contained in the Baan Software or Baan
Technology required in the process of incorporating Vendor Software into the
Baan Software will infringe, violate or misappropriate any Intellectual Property
Right of any third party and no characteristic of the Baan Software or Baan
Technology does or will cause manufacturing, using, maintaining or selling the
Vendor Software to infringe, violate or misappropriate any Intellectual Property
Right of any third party.
5.2.5 Indemnity. Baan shall be responsible for, indemnify and hold
Vendor harmless from any damages, costs, liabilities, and/or expenses
(including without limitation reasonable attorneys' fees), arising out of the
breach of the foregoing subsections 5.2.1-5.2.4.
Warranty Disclaimer. EXCEPT AS SET FORTH ABOVE AND IN AN APPLICABLE STATEMENT OF
WORK, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS, IMPLIED, OR
STATUTORY REGARDING OR RELATING TO THE SUBJECT MATTER HEREOF. EACH PARTY
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SUBJECT MATTER HEREOF.
6. CONFIDENTIAL INFORMATION
6.1 Terms of Agreement. The terms of this Agreement are the Confidential
Information of both Parties and shall not be disclosed by either Party in any
manner (including but not limited to news releases, articles, brochures,
advertisements, speeches or other information releases) without the prior
written consent of the other Party not to be unreasonably withheld.
6.2 Limitations on Use and Disclosure. Each Party receiving Confidential
Information (the "Recipient") agrees as to any such Confidential Information
that may be disclosed to it by the other Party hereunder (the "Discloser"):
(a) to protect such Confidential Information from disclosure to
others, using the same degree of care used to protect its own confidential
or proprietary information of like importance, but in any case using no
less than a reasonable degree of care. Recipient may disclose Confidential
Information received hereunder to (x) its Affiliates who agree, in
advance, in writing, to be bound by this Agreement, and (y) to its
employees and subcontractors, and its Affiliates' employees and
subcontractors, who have a need to know, for the purpose of this
Agreement, and who are bound to protect the received Confidential
Information from unauthorized use and disclosure under the terms of a
written agreement. Confidential Information shall not otherwise be
disclosed to any third party without the prior written consent of the
Person owning such Confidential Information;
(b) to use such Confidential Information only for the purposes of
this Agreement;
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(c) not to make copies of any such Confidential Information or any
part thereof except for the purposes of this Agreement; and
(d) to reproduce and maintain on any copies of any Confidential
Information such proprietary legends or notices as are contained in or on
the original or as the owner may otherwise reasonably request.
6.3 Technology. The Parties agree that the Baan Technology or the Vendor
Technology, as applicable, and Deliverables embodying the same, shall be deemed
the Confidential Information of the Party owning such Technology under the terms
hereof.
6.4 Exceptions. The restrictions of this Section 6 on use and disclosure
of Confidential Information shall not apply to information that (a) was publicly
known at the time of Discloser's communication thereof to Recipient; (b) becomes
publicly known through no fault of Recipient subsequent to the time of
Discloser's communication thereof to Recipient; (c) was in Recipient's
possession free of any obligation of confidence at the time of Discloser's
communication thereof to Recipient; (d) is developed by Recipient independently
of and without reference to any of Discloser's Confidential Information or other
information that Discloser disclosed in confidence to any third party; (e) is
rightfully obtained by Recipient from third parties authorized to make such
disclosure without restriction; or (f) is identified by Discloser as no longer
proprietary or confidential. In addition to the foregoing, it is understood and
agreed that nothing contained in this Section 6 is intended to, nor shall,
restrict the use by either Party of general ideas, concepts, approaches,
techniques or know-how learned or developed by such Party as a result of access
to the Discloser's Confidential Information; provided, however, that such ideas,
concepts, approaches, techniques or know-how are not embodied or specifically
described in written information, software code or other tangible form furnished
by the Discloser to such Party hereunder.
6.5 Disclosure Pursuant to Legal Requirement. In the event Recipient is
required by law, regulation or court order to disclose any of Discloser's
Confidential Information, Recipient will promptly notify Discloser in writing
prior to making any such disclosure in order to facilitate Discloser seeking a
protective order or other appropriate remedy from the proper authority.
Recipient agrees to cooperate with Discloser in seeking such order or other
remedy. Recipient further agrees that if Discloser is not successful in
precluding the requesting legal body from requiring the disclosure of the
Confidential Information, it will furnish only that portion of the Confidential
Information which is legally required and will exercise all reasonable efforts
to obtain reliable assurances that confidential treatment will be accorded the
Confidential Information.
6.6 Return of Confidential Information. All Confidential Information
disclosed under this Agreement (including information in computer software or
held in electronic storage media) shall be and remain the property of
Discloser. All such information in any computer memory or data storage
apparatus shall be erased or destroyed and all such information in tangible form
shall be returned to Discloser, promptly upon the earlier of: (i) the written
request of the Discloser, (ii) completion or termination of the applicable
Statement of Work, or (iii) termination
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or expiration of this Agreement, and shall not thereafter be retained in any
form by Recipient. In the event that Discloser requests the return of
Confidential Information pursuant to subsection (i) above, then Recipient shall
comply with such request; provided, however, that if returning such
Confidential Information prevents Recipient from exercising a license granted
hereunder, such request shall constitute a material breach of this Agreement.
In addition to the foregoing, in the event that either Party has received the
other Party's Source Code in furtherance of the purposes of the Agreement, the
Party receiving such Source Code shall return or destroy all copies thereof as
soon as reasonably practical after no longer having a need for such Source Code.
6.7 Equitable Relief. The Parties acknowledge that their respective
Confidential Information are unique and valuable, and that breach by either
Party of the obligations of this Agreement regarding such Confidential
Information and intellectual property rights will result in irreparable injury
to the affected Party for which monetary damages alone would not be adequate
remedy. Therefore, the Parties agree that in the event of a breach or
threatened breach of such provisions, the affected Party shall be entitled to
specific performance and injunctive or other equitable relief as a remedy for
any such breach or anticipated breach without the necessity of posting a bond.
Any such relief shall be in addition to and not in lieu of any appropriate
relief in the way of monetary damages.
7. LIMITATIONS OF LIABILITY
EXCEPT (A) AS TO THE OBLIGATIONS OF THE PARTIES UNDER SECTIONS 8, (B) FOR
LIABILITY ARISING OUT OF BREACHES OF SECTION 6 AND (C) ANY MISUSE OR
MISAPPROPRIATION OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY
HERETO, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES
SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, STATUTORY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE OR
PROFITS) RESULTING FROM, ARISING OUT OF, OR RELATED TO ITS PERFORMANCE OR
FAILURE TO PERFORM ANY OF ITS OBLIGATIONS UNDER, OR BREACH OF, THIS AGREEMENT,
WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN, OF
THE POSSIBILITY OF SUCH DAMAGES. EXCEPT (A) AS TO THE OBLIGATIONS OF THE
PARTIES UNDER SECTIONS 8, (B) FOR LIABILITY ARISING OUT OF BREACHES OF SECTION
6 AND (C) ANY MISUSE OR MISAPPROPRIATION OF A PARTY'S INTELLECTUAL PROPERTY
RIGHTS BY THE OTHER PARTY HERETO, EACH PARTY'S LIABILITY FOR DAMAGES SHALL BE
LIMITED TO THE AMOUNT OF FEES DUE AND PAYABLE TO VENDOR UNDER THIS AGREEMENT.
8. INDEMNITY
Each Party (as applicable, an "Indemnifying Party") will defend at its
expense and indemnify and hold harmless the other Party and their respective
directors, officers, employees,
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agents, advisers and customers (each, an "Indemnitee") from and against any
action, suit, or other proceeding, or settlement thereof, to the extent that
such action, suit or proceeding arises out of or results from (a) damage to
tangible personal property and personal injury or death arising from any
occurrence caused by any act or omission of the Indemnifying Party related to
the performance of this Agreement; or (b) any claim, allegation or finding that
any exploitation of any Technology of the Indemnifying Party or portion thereof
infringes the Intellectual Property Rights of any third party. The Indemnifying
Party shall pay those losses, damages, expenses and costs, including without
limitation interest, penalties, and fees of attorneys and accountants, awarded
against, or incurred by, any Indemnitee in, or as a result of, any such suit,
action or other proceeding, or any settlement thereof, provided that (i) the
Indemnitee reasonably promptly notifies the Indemnifying Party in writing of any
such claim, (ii) the Indemnifying Party is accorded control of the defense and
of all negotiations for settlement or compromise of such claim, and (iii)
Indemnitee cooperates with the Indemnifying Party, at the Indemnifying Party's
expense, in the defense and settlement of such claim, including providing to the
Indemnifying Party, at the Indemnifying Party's expense, such information and
assistance as the Indemnifying Party may reasonably request. The Indemnitee may,
at its own expense, be represented in such defence.
9. TERM AND TERMINATION
9.1 Term. Unless earlier terminated in accordance with its terms, this
Agreement shall commence as of the Effective Date and shall remain in full
force and effect for three (3) years from such Effective Date (the "Term").
Unless earlier terminated by either of the Parties as otherwise provided in
this Agreement, this Agreement shall automatically renew for successive one (1)
year periods unless either Party gives the other Party at least one hundred and
twenty (120) days written notice prior to the expiry of the period then in
effect.
9.2 Termination for Breach. Either Party may terminate this Agreement if
the other Party is in material breach of any term, condition or provision of
this Agreement, which breach, if capable of being cured, is not cured within
thirty (30) days after the non-breaching Party gives the breaching Party
written notice of such breach.
9.3 Termination for Bankruptcy; Change of Control. Baan may terminate this
Agreement and all rights and licenses granted hereunder effective immediately
upon notice if a Bankruptcy Event or Change of Control occurs with respect to
Vendor.
9.4 Effect of Termination. In the event all or part of this Agreement is
terminated hereunder:
(a) the Parties shall continue performance of any portion of this
Agreement or any Statement of Work not terminated;
(b) Vendor shall immediately document in detail the status of a
Statement of Work, if any, that has been terminated and deliver to Baan
all copies of the Deliverables
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that are in its or any third party's possession, whether or not such
Deliverable has been completed or is still in progress. Such Deliverable
shall, for all purposes of this Agreement, be deemed delivered to Baan,
with respect to which Baan shall have all applicable ownership and license
rights; and
(c) the Parties shall immediately cease work as of the effective
date of termination as to any terminated Statement of Work.
9.5 Available Remedies. Termination of all or any portion of this
Agreement in accordance with this Section 9 shall not limit the terminating
Party from pursuing any other remedies otherwise available to it at law or in
equity, including injunctive relief.
10. GENERAL
10.1 Vendor Bankruptcy. If a Bankruptcy Event occurs with respect to
Vendor, Baan shall forthwith be entitled to a complete duplicate of (or
complete access to, as appropriate) any Technology licensed hereunder and all
embodiments of such Technology including the Source Code thereof, and the same,
if not already in Baan's possession, shall be promptly delivered to Baan upon
Baan's written request (i) upon any such Bankruptcy Event, unless Vendor elects
to continue to perform all of its obligations under this Agreement; or (ii) if
not delivered under (i) above, upon rejection of this Agreement by or on behalf
of Vendor. Baan shall have the sublicensable right to fully exploit in any
manner all such Intellectual Property Rights and to perform any and all of
Vendor's obligations hereunder.
In furtherance of the foregoing, upon execution of this Agreement, Vendor
agrees to place into its existing escrow account with Source File, Oakland,
California a copy of the Source Code for the Vendor Software and the related
Documentation, including all updates, Enhancements and new versions
(collectively, the "Source Materials"); provided however that Vendor shall not
be obligated to make deposits into the escrow account more frequently than
twice per year. Baan shall have the right at any time to contact the escrow
agent for the purpose of confirming that the Source Materials in the escrow
account have been updated and verifying the instructions to the escrow agent to
release the Source Materials under the circumstances provided below. Vendor
shall bear all fees, expenses and other charges to maintain such escrow account.
Vendor's agreement with the escrow agent shall provide that a copy of the
Source Materials will be delivered to Baan by the escrow agent in the event
that: (a) a Bankruptcy Event occurs with respect to Vendor that is not resolved
within sixty (60) days; or (b) Vendor discontinues or is in material breach of
its support obligations for the Vendor Software. In such event, Vendor hereby
grants to Baan a nontransferable, nonexclusive license to use the Source
Materials to support and maintain the Vendor Software, provided however that
such Source Materials may not be used by Baan to create Enhancements to the
Vendor Software. However, Baan shall have the right to use the Source Code to
create Enhancements if the Bankruptcy Event consists of the event specified in
Section 1.5(i) and Vendor has permanently ceased to operate as
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an ongoing business and if Baan and the successor in interest to Vendor's
rights have mutually agreed in writing to royalties with respect to the
distribution of such Enhancements.
10.2 Waiver. The failure of either Party to insist on the strict
performance of any terms, covenants and conditions of this Agreement at any
time, or in any one or more instances, or its failure to take advantage of any
of its rights hereunder, or any course of conduct or dealing, shall not be
construed as a waiver or relinquishment of any such rights or conditions at any
future time and shall in no way affect the continuance in full force and effect
of all the provisions of this Agreement.
10.3 Headings. Headings used in this Agreement are for convenience of
reference only and shall not be construed as altering the meaning of this
Agreement or any of its parts.
10.4 Applicable Law and Arbitration. This Agreement shall be governed by
the law of the State of California, without reference to rules of conflict of
law. Except with respect to any dispute involving a party's Intellectual
Property Rights, any dispute or claim arising out of or related to this
Agreement, or the interpretation, making, performance, breach or termination
thereof, shall be finally settled by binding arbitration under the American
Arbitration Association International Arbitration Rules by three (3) arbitrators
appointed in accordance with said Rules. The location of such arbitration shall
be at a place in the United States designated by the Party not requesting
arbitration. Judgment on the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof. The arbitrators shall apply California
law to the merits of any dispute or claim, without reference to rules of
conflict of law. At the request of either Party, the arbitrators will enter an
appropriate protective order to maintain the confidentiality of information
produced or exchanged in the course of the arbitration proceedings. The costs of
the arbitration, including administrative and arbitrator's fees, shall be shared
equally by the Parties. Each Party shall bear the costs of its own attorneys'
fees and expert witness fees. Notwithstanding the foregoing, neither Party shall
be precluded from seeking an injunction or other equitable relief in any court
of competent jurisdiction applying the local law of such court to remedy or
prevent violation of any provision of this Agreement relating to Confidential
Information or their respective Intellectual Property Rights.
10.5 Survival. The Parties agree that the provisions of Sections 2.6,
3.2, 3.5, 3.6, 3.7, 4.2, 4.3, 4.4, 4.7, and 5 - 10 shall survive the expiration
or any earlier termination of this Agreement. In addition, (i) any licenses to
the Vendor Software granted by Baan to end users, (ii) any rights Baan needs to
provide support to end users of the Vendor Software and (iii) Vendor's
obligation to provide maintenance and support in accordance with Exhibit B,
shall survive the termination or expiration of this Agreement for any reason.
10.6 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, the remaining terms shall not be affected.
The Agreement shall be interpreted as if the illegal, invalid or unenforceable
provision had not been included in it, and the invalid or unenforceable
provision shall be replaced by a mutually acceptable provision which, being
valid and enforceable, comes closest to the intention of the Parties underlying
the invalid or unenforceable provision.
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10.7 Notices. All notices, requests, demands, or communications required
or permitted hereunder shall be in writing, delivered personally or by
electronic mail, facsimile, overnight delivery service at the respective
addresses set forth below (or at such other addresses as shall be given in
writing by either Party to the other). All notices, requests, demands or
communications shall be deemed effective upon receipt for personal delivery, or
on the second business day following the date of sending by electronic mail,
facsimile or overnight delivery service.
BAAN: Chief Technology Counsel
Baan Development B.V.
Baron van Nagellstraat 89
3770 AC Barneveld
The Netherlands
Fax: 31 342 42 8200
VENDOR: BackWeb Technologies, Inc.
Attn: Gwen Spertell
2077 Gateway Place, Suite 500
San Jose, California 95110
Fax: (408) 933-1800
10.8 Assignment. The respective rights and obligations provided in this
Agreement shall bind and inure to the benefit of the Parties, their legal
representatives, successors and permitted assigns. Neither Party shall assign
this Agreement in whole or in part, without the prior written consent of the
other Party, which consent may be withheld for any reason. Notwithstanding the
foregoing, neither Vendor nor Baan shall be required to obtain the other Party's
consent to assign this Agreement in connection with a merger or sale of all or
substantially all of such Party's assets, provided that such merger or sale
does not involve a company the other Party reasonably deems to be a direct
competitor. Any assignment by either party in violation of this Section 10.8
shall be null and void.
10.9 Press Releases; Public Announcements. Neither party may make any
press release or public announcement about this Agreement, its existence or its
contents without the prior written consent of the other party, except that Baan
may issue general press releases about this Agreement in order to fulfill its
marketing commitments contained in Section 3.9 hereof with prior written notice
to Vendor. Notwithstanding the foregoing, Vendor shall not be required to
obtain Baan's consent for including Baan's name on its customer/partner list or
on its website.
10.10 Relationship of Parties. Nothing contained in this Agreement shall
be deemed or construed as creating a joint venture or partnership between
Vendor and Baan. Neither Party is by virtue of this Agreement authorized as an
agent, employee or legal representative of the other.
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Except as specifically set forth herein, neither Party shall have power to
control the activities and operations of the other. Neither Party shall have
any power or authority to bind or commit the other.
10.11 Order of Precedence. In the event of any ambiguity and/or
inconsistency among the terms and conditions of this Agreement and any
Statement of Work, the terms and conditions of this Agreement shall control
unless such Statement of Work by its terms overrides a specific Section or
Sections of this Agreement.
10.12 Force Majeure. Neither Party shall be liable in case of force
majeure. The Parties to this Agreement agree that force majeure shall include
(but shall not be limited to): material breakdown of equipment, labor disputes
of whatever nature or cause, and any other circumstances reasonably beyond the
control of one of the Parties. The occurrence of a force majeure event shall
not relieve Baan of its payment obligations under this Agreement unless such
event has an impact on Baan's ability to fulfill such obligations.
10.13 Entire Agreement. This Agreement constitutes the entire
understanding of the Parties, and supersedes all prior or contemporaneous
written and oral agreements, representations or negotiations with respect to
the subject matter hereof. This Agreement may not be modified or amended except
in writing signed by both Parties.
IN WITNESS WHEREOF, this Agreement is executed by the duly authorized
representatives of the Parties as of the date first set forth above.
BACKWEB TECHNOLOGIES LTD. BAAN DEVELOPMENT B.V.
/s/ RONI OV SIGALIT ROZENBLUM /s/ GORDON P. KUSHNER
--------------------------------- --------------------------
Signature Signature
Roni Ov Sigalit Rozenblum Gordon P. Kushner
--------------------------------- --------------------------
Name Name
VP Product Development Controller Chief Technology Counsel
--------------------------------- ---------------------------
Title Title
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EXHIBIT A
DEVELOPMENT OF INTERFACES
Baan's Knowledge Manager product is an add-on product to BaanFrontOffice. The
Knowledge Manager, built in conjunction with BackWeb, is comprised of both
client and server components. [*] These pages are being developed by Vendor for
Baan; however, they are calling COM interfaces designed and built by Baan to
retrieve BaanFrontOffice application context. The pages will be integrated into
the BaanFrontOffice navigation system by Baan. There is also an installation
program for the client. The installation program, written by Baan under
Vendor's guidance, call's Vendor's client installer and then installs the
aforementioned pages.
[*]
The final piece of the Knowledge Manager product is Vendor Software that has
been installed at Baan's external Internet Service Provider site. The native
Vendor server is running on Baan's hardware and is configured as the default
home server for all Knowledge Manager clients deployed by Baan. This server
inherits its channel directory from the standard Vendor master server
For the avoidance of doubt, Vendor owns Intellectual Property Rights to all the
Vendor ActiveX controls that are used in the Baan Knowledge Manager product.
Baan owns the Intellectual Property Rights to the web pages that embed the
Vendor ActiveX controls. Baan may use the Vendor ActiveX controls in a new web
page, provided, however, that such use shall be disclosed by Baan at meetings
of the Steering Committee and such use shall be limited to the Baan Knowledge
Manager Product. Vendor is not prohibited in any way to use the controls and
web concepts developed with Baan in future Vendor development initiatives
independent of Baan. Vendor shall be responsible for the maintenance, support
and localization of the Vendor ActiveX controls. Baan agrees to be responsible
for the maintenance, support and localization of the Baan KnowledgeManager web
pages.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT B
MAINTENANCE AND SUPPORT
1. MAINTENANCE AND SUPPORT OBLIGATIONS OF THE PARTIES
Baan shall, pursuant to Baan's standard software license and support
agreement ("SLSA"), enter into an agreement with end users for the provision to
end users of maintenance and support for the Vendor Software (as further
described below, "Maintenance and Support"). The Maintenance and Support terms
herein shall also apply to the internal use license of the Vendor Software
granted to Baan under Exhibit C. Maintenance and Support shall consist of Tier
One Support, Tier Two Support and Tier Three Support.
"Tier One Support" means the provision, during Baan's standard hours
of service, of assistance via telephone, fax or through Baan's World
Wide Web Site with respect to the Vendor Software. Such assistance
shall include: (i) being the first point of contact for all support
issues relating to Products; (ii) characterizing and analyzing support
issues; (iii) clarification of functions and features of the Products;
(iv) clarification of the end user documentation for the Products; (v)
guidance in the operation of the Products, and (vi) error
verification, analysis and correction to the extent possible by Baan
by telephone, fax or through Baan's World Wide Web Site.
"Tier Two Support" means the support required to resolve any and all
support issues and problems relating to the Vendor Software that are
not resolved by Tier One Support.
"Tier Three Support" means the provisions of corrections for defects
in the Vendor Software that cause the software to fail to conform to
the specifications therefore. This shall also include Vendor Software
Enhancements, new releases, new interfaces as they are generally
developed and made available.
As between Baan and Vendor, Baan shall provider Tier One Support to
end users and Vendor shall provide Tier Two and Tier Three Support to
Baan; provided however, that in all events, Baan shall use its best
efforts to provide Tier One, Tier
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Two and Tier Three Support to end users; however, in the event Baan is
unable to address the support request from an end user following its
best efforts, Vendor shall address such support request directly from
the end user.
Vendor shall provide Baan, at no cost to Baan, all necessary
information, including without limitation one copy of the Vendor
Software and appropriate Documentation for each of Baan's support
centers, required by Baan to enable Baan to provide Tier One Support
for the Vendor Software. Vendor shall once per calendar year provide
training [*] of Baan's primary support center locations; reasonable
travel and out-of-pocket expenses for Vendors personnel shall be
reimbursed by Baan. For all additional locations, Baan will pay Vendor
for the cost of training services at [*] US/hour and all reasonable
travel-related expenses. Vendor shall assist Baan in the installation
of the Vendor Software at such Baan support centers. Baan agrees that
a minimum of [*] Vendor specialists will be designate who will attend
the training.
Vendor shall use its commercially reasonable efforts to resolve all
reproducible errors in the Vendor Software. Additionally, in the event
that an error in the Vendor Software either causes a total system
standstill or causes serious disruption of a major business function,
Vendor shall use its best efforts to resolve the error and shall work
diligently until such error is resolved.
Vendor shall provide the support called for in this Exhibit for the
then-current release or version of the Vendor Software for a period of
at least [*] following such release or version's general availability.
2. PRICING AND PAYMENT
Each year in which an end user is valid and effective on an annual
maintenance and support agreement with Baan, Baan shall pay to Vendor [*]
of the Royalties due to Vendor under Exhibit C for such maintenance and
support ("Maintenance and Support Fees"). The Parties agree to revisit and
renegotiate the Maintenance and Support Fees on an annual basis.
Within thirty (30) days of the end of each month, Baan shall provide to
Vendor a report setting forth the names of end users from which Maintenance
and Support Fees were
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 27
received during such month. Baan shall, contemporaneously with the sending
of such report, wire to a bank and an account named by Vendor the aggregate
amount of Maintenance and Support Fees due Vendor hereunder for such month.
Baan shall make and maintain until the expiration of three (3) years after
the last payment under this Agreement is due, complete books, records and
accounts regarding its receipt of Maintenance and Support Fees in order to
calculate and confirm its payment related thereto. Upon reasonable prior
notice, Vendor shall have the right, exercisable not more than once every
twelve (12) months, to appoint an independent auditor which auditor shall
be permitted by Baan to examine such books, records and accounts during
such Baan's normal business hours to verify reports and payments provided
pursuant to this Exhibit B. If any such examination discloses a shortfall
in payment of Royalties, such amounts shall immediately be paid.
Each Party is responsible for complying with the collection, payment and
reporting of all taxes imposed by any governmental authority applicable to
its activities in connection with maintenance and support under this
Agreement. Neither Party is responsible for the taxes that may be imposed
on the other Party.
3. PRIORITIES, RESPONSE TIME AND RESOLUTION OBJECTIVES.
Vendor shall comply with the following schedule for addressing support requests
from Baan internal requests, technical support and any other support provided
under the Agreement:
------------------------------------------------------------------------------------------------
Priority Response Time Resolution Objective Description
------------------------------------------------------------------------------------------------
10 <1 Hour <8 Hours CRITICAL: Production database down or
severely impaired with not reasonable
workaround
------------------------------------------------------------------------------------------------
20 2 Hours <2 Days URGENT: Important feature not available,
with no reasonable workaround
------------------------------------------------------------------------------------------------
30 12 Hours <1 Week STANDARD: Question, important feature
unavailable, but there is a reasonable
------------------------------------------------------------------------------------------------
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------------------------------------------------------------------------------------------------
workaround or a less significant feature is
unavailable with no reasonable workaround
------------------------------------------------------------------------------------------------
40 24 Hours <3 Weeks LOW: Enhancement or minor problem that
doesn't cause a disruption of work.
------------------------------------------------------------------------------------------------
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EXHIBIT C
ROYALTIES
1. Royalties.
(a) Baan agrees to pay Vendor a royalty advance in the amount of $ [*] USD
(the "Royalty Advance") payable as follows:
the amount of $ [*] USD shall be payable by January 31, 1999 by wire transfer
according to instructions to be provided by Vendor and the remaining $ [*]
shall be payable in four equal quarterly installments in 1999 of $ [*] each on
March 15, July 15, September 15 and December 15, without requirement of
additional invoice, all by wire transfer
(b) Subject to Sections 2.8 and 2.9, Baan shall pay to Vendor royalties
("Royalties") equal to [*] of Net Sales of the Vendor Software by Baan,
subject to a minimum royalty of $ [*] US per seat for end user transactions of
[*] seats or less and a minimum royalty of $ [*] US per seat for end user
transactions of [*] seats or more. These minimum royalties are paid based on an
assumed list price of $ [*] for Vendor Software. If market conditions require
that the list price for Vendor Software be decreased, the minimum royalty
amounts shall be decreased on an equal percentage basis upon Vendor's prior
written consent, such consent to not be unreasonably withheld. The parties may
mutually agree in writing to different minimum pricing or percentage royalty
rates on a case by case basis and in addition the Steering Committee shall
address issues of proposed pricing adjustments, including the per seat minimums
to the extent market conditions justify. For purposes of this Exhibit C, "Net
Sales" means the gross revenue due and payable to Baan from the sale or license
of the Vendor Software, less the following items but only insofar as they are
included in such gross revenue and are separately stated on the invoice: (i)
import, export, value added, excise and sales taxes, tariffs, and custom
duties; (ii) credit for returns, damaged goods, allowances, or trades; (iii)
charges for packaging, shipping and insurance; and (iv) customary rebates, cash
and trade discounts, actually taken. Baan will provide Vendor with thirty (30)
days advance notice of its intention to change the list price of the Vendor
Software. For the purposes of Royalty calculations under this Agreement, Baan's
discount to the end user will be evenly allocated across all of the products in
a particular order.
2. Reports and Payment of Royalties. Within thirty (30) days after the end
of each month Baan shall report to Vendor (i) the names of end users licensing
the Vendor Software, (ii) the number of Users at each end user; (iii) the Net
Sales derived from the end user during such month and (iv) the aggregate
Royalties, including the calculation thereof, owing thereon. Baan shall,
contemporaneously with the sending of such report, wire to Vendor's account as
described in this Exhibit C the Royalties due Vendor, provided that Baan shall
not be required to pay to or
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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<PAGE> 30
otherwise transfer to Vendor any Royalties until it has recouped the royalty
advance described in Section 1(a) of this Exhibit C. All amounts due Vendor
upon recoupment of the Royalty Advance by Baan shall be payable within thirty
(30) days of the last day of the applicable month.
3. Audit Rights. Baan shall make and maintain until the expiration of three
(3) years after the last payment under this Agreement is due, complete books,
records and accounts regarding its distribution activities of the relevant
products in order to calculate and confirm its Royalty obligations hereunder.
Upon reasonable prior notice, Vendor shall have the right, exercisable not more
than once every twelve (12) months, to appoint an independent auditor which
auditor shall be permitted by Baan to examine such books, records and accounts
during such Baan's normal business hours to verify reports and payments
provided pursuant to Section 4.5 hereof. If any such examination discloses a
shortfall in payment of Royalties, such amounts shall immediately be paid.
4. Taxes. Royalties are exclusive of sales and/or use taxes that are imposed
on a purchaser of goods and services by law, which Baan agrees are its
responsibility. In the alternative, Baan shall provide Vendor with a
certificate evidencing Baan's exemption from payment of or liability for such
taxes and Vendor agrees to honor such exemption certificate.
5. Vendor Services. Baan shall pay Vendor for development services rendered
by Vendor engineers pursuant to Section 2.1.1 above at the rate of $ [*]
US/hour. Baan shall pay Vendor for professional services rendered in connection
with training Baan staff at the rate of $ [*] US/hour.
6. Internal Use Licenses. In further consideration of executing this
Agreement, Baan shall have the right to use the Baan Knowledge Manager, which
includes the Vendor Software, at [*] for use by Baan Sales and Baan
Professional Services organization for use for its own internal data processing
operations. The parties anticipate that the total number of Named Users for
such license shall be approximately [*]. Baan shall have the right to acquire
initial year technical support services for such Named Users at a technical
support services fee of $ [*]/Named User. Vendor agrees that annual increases
for technical support for the licenses granted under this Section 6 shall not
increase by more than [*] per year during the term of this Agreement.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
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EXHIBIT D
BAAN END USER LICENSE AGREEMENT
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SOFTWARE LICENSE AND SUPPORT AGREEMENT
This SOFTWARE LICENSE AND SUPPORT AGREEMENT ("Agreement") dated
_________________ ("Effective Date") is entered into by and between
______________ of ________________________ ("Customer") and Baan U.S.A., Inc.
("Baan"), and describes the terms and conditions pursuant to which Baan shall
license to Customer and support certain Software (as defined below)
In consideration of the mutual promises and upon the terms and conditions set
forth below, the parties agree as follows:
1. Definitions
1.1 "Confidential Information" means this Agreement and all its Schedules, any
addenda hereto signed by both parties, all Software listings,
Documentation, information, data drawings, benchmark tests, specifications,
trade secrets, object code and machine-readable copies of the Software,
source code relating to the Software, and any other proprietary information
supplied to Customer by Baan, or by Customer to Baan and clearly marked as
"confidential information", including all items defined as "confidential
information" in any other agreement between Customer and Baan whether
executed prior to or after the date of this Agreement.
1.2 "Concurrent Users" means the total number of log-ons into the Software at
any one time.
1.3 "Documentation" means all on-line help files or written instruction manuals
regarding the Use of the Software.
1.4 "Heavy Users" means the total number of users who have full use of the
Software including but not limited to the ability to add, change and delete
data.
1.5 "Light Users" means the total number of users whose use of the Software is
limited to inquiry and reporting capabilities.
1.6 "Named Users" means the total number of individuals permitted to access and
Use the Software.
1.7 "Software" means the computer program(s) specified in Schedule A as
supplied by Baan and excludes Third Party Software.
1.8 "Third Party software" means the computer program(s) (if any), listed in
Schedule A, to which the terms and conditions of the applicable Third Party
Software Exhibit and/or Third Party Software License Agreement, attached
hereto, shall apply.
1.9 "Use" means the loading, utilization, storage or display of the Software by
the number of authorized users set forth in Schedule A to process
Customer's information and serve Customer's internal business purposes
only.
2 Grant of License
2.1 For so long as this Agreement is in force, Baan grants to Customer a
perpetual, non-exclusive and non-transferable license to (a) Use the
Software, (b) use the Documentation in connection with Use of the Software,
(c) modify the Software pursuant to the authorized use of software tools
provided by Baan and (d) copy the Software for backup or archival purposes
provided that all titles, trademark symbols, copyright symbols and legends,
and other proprietary markings are reproduced. Except as explicitly
expressed in this Section 2.1, nothing contained in this Agreement
transfers to Customer any license or right in any intellectual property.
2.2 Baan shall deliver to Customer, as soon as practicable, one
machine-readable copy of the Software, along with one machine-readable copy
of the Documentation. Customer may reproduce the Documentation by printing
the online files for its own internal use provided that all titles,
trademark symbols, copyright symbols and legends, and other proprietary
markings are reproduced.
2.3 Customer agrees to give Baan access and assistance as may be necessary for
Baan to audit Customer operations whereever situated to confirm the number
of Concurrent Users, Heavy Users, Light Users and Name Users.
3 License Restrictions
Customer agrees that it will not itself, or through any parent, subsidiary,
affiliate, agent or other third party:
a) sell, lease, license, sublicense, encumber or otherwise deal with any
portion of the Software or Documentation:
b) decomplite, disassemble, or reverse engineer any portion of the Software,
unless and to the extent required under applicable national law;
c) other than as provided in Section 2.1 (c), write or develop any derivative
software or any other software program based on the Confidential
Information provided by Baan;
d) use the Software to provide processing services to third parties,
commercial timesharing, rental or sharing arrangements, or on a "service
bureau" basis;
e) provide, disclose, divulge or make available to, or permit use of the
Software by persons other than Customer's employees without Baan's prior
written consent, provided however that Customer may allow its customers,
dealers, distributors and Baan authorized parties to Use the Software
solely for the purpose of conducting business with Customer within the
scope of their customer relationship, dealership or distributorship with
Customer or for the purpose of implementing the Software in accordance with
this Agreement; or
f) exceed the number of users specified for each type of user in Schedule A.
4 License Fee
4.1 In consideration of the rights granted herein, Customer shall pay Baan the
non-refundable, non-cancelable license fee specified in Schedule A on the
Effective Date. Baan's pricing reflects the allocation of risks and
limitation of liability.
4.2 Customer shall reimburse Baan for all sales, use or other taxes, fees or
duties not based on income, arising out of this Agreement.
5 Support
Upon payment to Baan of the appropriate fee, Customer shall be entitled to
receive support in accordance with Baan's then current support policy.
Baan's current support policy appears in Schedule B.
6 Warranty and Limitation of Liability
6.1 Baan warrants to the Customer that the Software: (a) will perform in
substantial accordance with the Documentation for a period of one (1) year
from the Effective Date; and (b) will recognize and process all accurately
inputted four-digit annual date values, including without limitation the
Year 2000, and will recognize the Year 2000 as a leap year. If the Software
does not perform as warranted, Baan shall undertake to correct the
Software, or if correction of the Software is reasonably not possible,
replace such Software free of charge with conforming software. If neither
of the foregoing is commercially practicable, Baan shall terminate this
Agreement with respect to the non-conforming software program and refund
the monies
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provided by Baan. Customer shall furnish Baan with a certificate signed by an
executive officer of Customer verifying that the same has been done.
10. Non-assignment/Binding Agreement
Neither this Agreement nor any rights under this Agreement may be assigned
or otherwise transferred by Customer, in whole or in part, whether
voluntary or by operation of law, including by way of sale of assets,
merger or consolidation, without the prior written consent of Baan, which
consent will not be unreasonably withheld. Subject to the foregoing, this
Agreement will be binding upon and will inure to the benefit of the parties
and their respective successors and assigns.
11. Notices
Any notice required or permitted under the terms of this Agreement or
required by law must be in writing and must be (a) delivered in person, (b)
sent by registered mail return receipt requested, (c) sent by overnight air
courier, or (d) by facsimile, in each case forwarded to the appropriate
address set forth herein. Either party may change its address for notice by
written notice to the other party. Notices will be considered to have been
given at the time of actual delivery in person, three (3) business days
after posting or one (1) day after (i) delivery to an overnight air courier
service or (ii) the moment of transmission by facsimile.
12 Miscellaneous
12.1 Force Majeure. Neither party will incur any liability to the other party on
account of any loss or damage resulting from any delay or failure to
perform all or any part of this Agreement if such delay or failure is
caused, in whole or in part, by events, occurrences, or causes beyond the
control and without negligence of the parties. Such events, occurrences or
causes will include, without limitation, acts of God, strikes, lockouts,
riots, acts of war, earthquakes, fire and explosions, but the inability to
meet financial obligations is expressly excluded.
12.2 Waiver. Any waiver of the provisions of this Agreement or of a party's
rights or remedies under this Agreement must be in writing to be effective.
Failure, neglect or delay by a party to enforce the provisions of this
Agreement or its rights or remedies at any time, will not be construed or
be deemed to be a waiver of such party's rights under this Agreement and
will not in any way affect the validity of the whole or any part of this
Agreement or prejudice such party's right to make subsequent action.
12.3 Severability. If any term, condition, or provision in this Agreement is
found to be invalid, unlawful or unenforceable to any extent, the parties
shall endeavor in good faith to agree to such amendments that will
preserve, as far as possible, the intentions expressed in this Agreement.
If the parties fail to agree on such an amendment, such invalid term,
condition or provision will be severed from the remaining terms,
conditions, and provisions, which will continue to be valid and enforceable
to the fullest extent permitted by law.
12.4 Entire Agreement. This Agreement (including the Schedules and any addenda
hereto signed by both parties) contains the entire agreement of the parties
with respect to the subject matter of this Agreement and supersedes all
previous communications, representations, understandings and agreements,
either oral or written, between the parties with respect to said subject
matter, except as provided in Section 1.1 with respect to the definition of
"Confidential Information".
12.5 Standard terms of Customer. No terms, provisions, or conditions of any
purchase order, acknowledgement or other business from that Customer may
use in connection with the acquisition or licensing of the Software will
have any effect on the rights, duties or obligations of the parties under,
or otherwise modify, this Agreement, regardless of any failure of Baan to
object to such terms, provisions or conditions.
12.6 Public Announcements. Customer agrees that Baan may use its name in press
releases, product brochures and financial reports indicating that Customer
is a customer of Baan.
12.7 Counterparts. This Agreement may be executed in counterparts, each of which
so executed will be deemed to be an original and such counterparts together
will constitute one and the same agreement.
12.8 Applicable Law. All disputes arising out of this Agreement shall be subject
to the exclusive jurisdiction of any federal or state court or courts
sitting in San Jose, California which courts are empowered to try the
dispute, and the parties hereby agree to submit to the personal and
exclusive jurisdiction and venue of these courts.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
BAAN U.S.A. INC.
---------------------------- --------------------------
By: /s/ Roni Or By:
------------------------- -----------------------
RONI OR
---------------------------- --------------------------
Print Name Print Name
---------------------------- --------------------------
Address Address
-----------------------------------------------------------------------------
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SCHEDULE A
[PLEASE ATTACH PRINTOUT FROM CONFIGURATOR]
--------------------------------------------------------------------------------
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SCHEDULE B
BAANS' TECHNICAL SUPPORT POLICY
Schedule B details Baan's current technical support policy regarding the
Software. Customer shall access Baan's Global Support Web-site for updates to
Baan's technical Support policies.
Third Party Software is specifically excluded from the terms set forth in this
Schedule (with exception of the software interfaces and port-sets developed by
Baan that enable the link between the Software and the Third Party Software).
Baan encourages Customer to contract the appropriate support services for the
licensed Third Party Software with the applicable Third Party Software vendor.
1 Definitions
Terms used herein with the initial letter capitalized which are not
otherwise defined herein, shall have the meaning given to the said terms
in Section 1 of the Agreement.
1.1 "Baan's Global Support Web-site" means the World Wide Web site found at
http://www.support.baan.com.
1.2 "Current Program" means the Major Releases, Minor Releases and
Maintenance Releases of the Software supported by Baan in accordance with
Section 2.2 below.
1.3 "Expired Program Support" means the provision of support for Expired
Programs on Baan's Global Support Web-site in accordance with Section 2.3
below.
1.4 "Expired Program" means Software that is not a Current Program.
1.5 "Knowledge Related Call" means a Support Call which a) relates to the Use
or implementation of the Software; b) is a request for clarification or
guidance concerning either the Software or the Documentation; where such
request could have been answered by a trained Customer staff.
1.6 "Maintenance Release" means a set of the Software containing bug-fixes.
1.7 "Major Release" means a set of the Software in which new software
functionality and major software restructuring has been included.
1.8 "Minor Release" means a set of the Software in which new Software
functionality and bug-fixes have been included.
1.9 "Quality Related Call" means a Support Call related to a perceived or
identified error in the Software attributable to Baan and not previously
identified or described on Baan's Global Support Web-site. Errors
attributable to Baan shall be those that are reproducible on an
unmodified Major Release of the Software.
1.10 "Response Time" means the elapsed time between the receipt of a Support
Call and the target time within which Baan begins Support as verified by
a verbal or written confirmation to the Customer.
1.11 "Service Hours" means Baan's usual office hours (from 8:30 a.m. to 5:00
p.m. - unless otherwise stated in Schedule B1) from Monday through
Friday, Customer's local time, excluding holidays as observed by Baan.
1.12 "Support" means (a) the provision, when and if available, during Service
Hours of Maintenance Releases, Minor Releases and Major Releases and the
on-line Documentation related to the licensed Software, and b) assistance
by telephone or internet or otherwise with respect to the Software,
including (i) clarification of functions and features of the Software;
(ii) clarification of the Documentation; (iii) guidance in the operation
of the Software; and (iv) error verification, analysis and correction by
telephone and/or internet.
1.13 "Support Call" means Support Call Category 10, 20, 30 or 40 jointly or
separately.
1.14 "Support Call Category 10" means that Customer's live system is at a halt
and unable to process data through the Software as a result of a
catastrophic event in the system database or Software, or a major
application failure in a critical processing period.
1.15 "Support Call Category 20" means a problem in the Software which causes
serious disruption of a major business function and which cannot be
(temporarily) solved by a workaround.
1.16 "Support Call Category 30" means any of the following: i) a non-critical
problem in the Software where the Customer is able to continue to run the
system and/or application or a workaround is available; ii) a reported
problem in the Software that does not qualify as a priority 10 or 20.
1.17 "Support Call Category 40" means all questions and requests for
information on the Use or implementation of Software.
1.18 "Support Term" means a twelve (12) month period contracted by Customer
for the delivery of Support.
2 Support Services
For so long as Customer is current in the payment of the appropriate
Support fees, Customer will be entitled to Support as specified in this
Section.
2.1 Term and Termination. Baan's provision of Support to Customer will
commence on the Effective Date and will continue for the initial Support
Term. Support will automatically renew at the end of the initial Support
Term and any subsequent Support Term unless Customer has provided Baan
with a written termination notice of its intention not to renew Support
at least thirty (30) days prior to the expiration of the then current
Support Term. Termination of Support or failure to renew will not affect
the license of the Software. If Customer allows Support to lapse, and
does not receive Support for a period of time, Baan may thereafter renew
Support. In the event of renewal, Customer shall pay the then current
Support fee plus an amount equal to the half of the aggregate Support
fees that would have been payable during the period of lapse.
2.2 Support for Current Programs. Support for Current Programs is available
according to the following schedule: (a) a Major Release will be
supported for three (3) years after the commercial release of the next
Major Release, provided always that Customer makes use of the last Minor
Release and Maintenance Release of the first mentioned Major Release; (b)
a Minor Release will be supported for one year after the commercial
release of the next Minor Release, provided always that Customer makes
use of the last Maintenance Release of the related Minor Release; and (c)
an Maintenance Release will be supported for six
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(6) months after the commercial release of the next Maintenance Release.
2.3 Expired Program Support. Baan shall provide Expired Program Support for
the Expired Programs according to the following terms:
2.3.1 Customer may receive error verification, analysis and correction by
telephone and/or Internet for Expired Programs for Support Calls
Categories 10 and 20 only. Such services shall be provided by Baan if
Customer is using the Software on a software/hardware/database platform
supported by Baan at the time Customer licensed the Software, or
otherwise approved by Baan. Expired Program Support shall not include
services related to incidents caused by system configuration changes,
hardware or system software upgrades or backporting of functionality in
either standard or modified software code, which services may be
contracted by Customer and Baan under a separate agreement. Expired
Programs will not be updated.
2.3.2 The Support fee payable by Customer for Expired Program Support shall be
determined per Minor release, based on support costs as influenced by
number of customers with expired programs being supported under this
program. All annual rates will be published in advance on the Baan
Global Support Website.
2.4 Response Times. Support for Current Programs is available during Service
Hours with the following Response Times: (i) Support Call Category 10:
one (1) hour, (ii) Support Call Category 20: two (2) hours; (iii)
Support Call Category 30: four (4) hours; and (iv) Support Call Category
40: eight (8) hours.
2.5 On-site Support. Support may be provided at the Customer site in
accordance with Schedule B.3.
2.6 Causes which are not attributable to Baan. The Support fee does not
include services requested as a result of, or with respect to causes,
which are not attributable to Baan. These services will be billed to
Customer at Baan's then-current rates. Causes which are not attributable
to Baan include but are not limited to:
(a) accident; unusual physical, electrical or electromagnetic stress;
neglect; misuse; failure or fluctuation of electric power, air
conditioning or humidity control; failure of rotation media not
furnished by Baan; excessive heating; fire and smoke damage; operation
of the Software with other media and hardware, software or
telecommunication interfaces not meeting or not maintained in accordance
with the manufacturer's specifications; or causes other than ordinary
use;
(b) improper installation by Customer or use of the Software that deviates
from any operating procedures established by Baan in the applicable
documentation;
(c) modification, customization, alteration or addition or attempted
modification, customization, alteration or addition of the Software
undertaken by any party;
(d) software programs made by Customer or other parties.
2.7 Responsibilities of Customer. Baan's provision of Support to Customer is
subject to the following:
(a) Customer shall provide Baan with necessary access to Customer's
personnel and its equipment during Service Hours. This access includes
the ability to dial-in to the equipment on which the Software is
operating and may also include the ability to obtain the same access to
the equipment as those of Customer's employees having the highest
privilege or clearance level. Baan shall at all times be bound by the
Confidentiality provisions of the Agreement, and will only disclose
information within Baan to those individuals who need to know in order
to assist in solving Customer's problem. Baan will inform via the Baan
Global Support Web-site about the specifications of the modern equipment
and associated software needed, and Customer will be responsible for the
costs and use of said equipment.
(b) Customer shall provide supervision, control and management of the Use of
the Software. In addition, Customer shall implement procedures for the
protection of information and the implementation of backup facilities in
the event of errors or malfunction of the Software or equipment;
(c) Customer shall document and promptly report all detected errors or
malfunctions of the Software to Baan. Customer shall take all steps
necessary to carry our procedures for the rectification of errors or
malfunctions within a reasonable time after such procedures have been
received from Baan;
(d) Customer shall maintain a current backup copy of all programs and data;
(e) Customer shall promptly train its personnel in the Use and application
of the Software; and
(f) Customer shall obtain access, to the World Wide Web at its expense, in
order to access Baan's Global Support Web-site.
2.8 Support Fee. The Support fee for the initial Support Term is indicated
in Schedule A. The Support fee for the first Support Term is due and
payable in full in advance within thirty (30) days after the Effective
Date. For any subsequent Support Term, the Support fee will be due and
payable thirty (30) days before the commencement of such subsequent
Support Term. Any amounts not paid within thirty (30) days will be
subject to interest of one percent (1%) per month, which interest will
be immediately due and payable.
2.9 Modified Support Fee. Baan may modify the Support fee for any Support
Term. However, for a period of four (4) years from the Effective Date
the Support fee for Current Programs for each subsequent Support Term
shall not be more than five percent (5%) plus the Consumer Price Index
for the applicable time period. In the event of a modification of the
Support fee, Customer may discontinue Support.
2.10 Incentive Program. Where a Customer has become more competent in using
the Software and in providing internal support to its organization, the
Support fee payable by Customer for a subsequent Support Term shall be
discounted by twenty five percent (25%) provided that all of the
following conditions are satisfied:
(a) the total number of Knowledge Related Support Calls made by Customer
during the immediately preceding Support Term is no more than twenty
percent (20%) with respect of the total of Quality Related Support Calls
received during such Support Term. For the purposes of this Section,
Baan's determination of whether a Support Call relates to knowledge or
quality is final and conclusive and may not be challenged in any way by
Customer other than during the first thirty (30) days after Baan updates
Customer with the nature of the Support Calls received from Customer.
(b) Customer has paid the standard support fee;
(c) Customer has one hundred (100) or more user licenses of the Software;
(d) Baan's Support Center receives all of Customer's Support Calls directly;
(e) Customer notifies Baan either within seven (7) days of the commencement
of the initial Support Term or within thirty (30) days of prior to the
commencement of any subsequent Support Term, as the case may be, that
Customer intends to avail itself of the provisions of this Section; and
Customer is using Current Programs.
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SCHEDULE B-2
CRITICAL INCIDENT SUPPORT
1. "Critical Incident Support" means the provision of support, Monday through
Saturday (Customers' local time), twenty-four (24) hours a day, in the
English language only for Support Calls Category 10 and 20 for the
countries specified in this Schedule.
2. The support fee for Critical Incident Support is published on the Baan
Global Support Web-site.
3. Customers provide Baan with necessary access to Customer's personnel and
its equipment after Service Hours for the purpose of providing Critical
Incident Support.
4. Critical Incident Support: at the Effective Date, Critical Incident Support
is being provided for the following countries: Austria, Belgium, Canada,
Denmark, France, Finland, Germany, Great Britain, Italy(*), Hong Kong,
Malaysia, Norway, Portugal(*), Singapore, South Africa(*), Spain (*),
Switzerland, Sweden, The Netherlands and United States of America. Please
refer to the Baan's Global Support Web-site for updates regarding the
addition of new countries to this list.
(*) Critical Incident Support is not available to address issues
regarding the localization and/or translation of the Software for the
applicable country. Assistance with calls regarding the localization
or translation of the Software is only available during Service Hours.
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EXHIBIT E
TRANSLATION AND PORTS
1. LANGUAGES AVAILABLE
(a) Spanish -- June 30, 1999
(b) Italian -- June 30, 1999
(c) French -- April 30, 1999
(d) Portuguese -- June 30, 1999
(e) Dutch -- April 30, 1999
(f) Japanese --August 31, 1999
(g) German -- April 30, 1999
(h) English/US -- currently available
(i) English/UK -- June 30, 1999
Vendor translations in the above languages will include dynamic
localization of the Backweb Sales Accelerator, Tray icon menu, and
associated Documentation for such products. Baan agrees to translate
installers and the help screens that are written by Baan. Both parties
agree that Infocenter will not be translated but will be removed from the
menu and the Server Console will not be translated.
2. PLATFORMS, DATABASES AND OPERATING SYSTEMS AVAILABLE
(a) SQL Server 6.5 and 7.0 (Q199)
(b) Oracle 7.3 and 8.0
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