OEM Agreement - Emony Ltd. and BackWeb Technologies Ltd.
[BACKWEB LOGO]
OEM AGREEMENT
This OEM Agreement ("Agreement") is between Emony Ltd. ("Emony") and BackWeb
Technologies Ltd. ("BackWeb"). The terms of this Agreement shall apply to each
Program license granted and to all services provided by BackWeb under this
Agreement.
I. DEFINITIONS
1.1 "APPLICATION SPECIFIC PROGRAM" shall mean a Program which can only be
used as integrated into the Application Program. "APPLICATION
PROGRAM(S)" shall mean Emony's software application, mainly comprised of
a server software that runs on the distributors server machine, and a
client software application that is running on the distributor's
customers' machines.
1.2 "COMMENCEMENT DATE" means the date on which the Master Copy of the
Program licenses is delivered to Emony, or, if previously delivered to
Emony, shall mean the Effective Date of this Agreement.
1.3 "DOCUMENTATION" means the standard user guides and manuals for
installation and use of the Program software that is provided by BackWeb
with the delivery of the Master Copy of the Programs.
1.4 "FULL USE" shall mean versions of the Program with all functions intact.
1.5 "ORDER FORM" means the document by which Emony orders consulting and
training services, and which is agreed to by the parties. The Order Form
shall reference the Effective Date of this Agreement.
1.6 "PLATFORM" for the server portion of the Programs means the PC
Compatible computer running the any of the following operating systems:
Windows (NT, 2000, and all Windows operating systems as they become
commercially available), Unix, Solaris and Linux.
1.7 "PROGRAM" means the BackWeb Foundation software running on the Platform
in object code form and distributed by BackWeb, and the media,
Documentation and Updates therefore.
1.8 "SUBLICENSE" shall mean a nonexclusive, nontransferable right granted by
Emony to a business entity, individual or end user to use the object
code copy of the Application Specific Programs only in conjunction with
and in support of an Application Program. "Sublicensee" shall mean a
third party who is granted a Sublicense by Emony.
1.9 "TECHNICAL SUPPORT" means Program support provided under BackWeb's
policies in effect on the date Technical Support is ordered.
1.10 "UPDATE" means a subsequent release of the Program made generally
available to BackWeb's supported customers. Update shall not include any
release, option or future product that BackWeb licenses separately.
1.11 "USER" "shall mean an employee or independent contractor of the
Sublicensee, as applicable, who is authorized by the Sublicensee to use
the Programs for the Sublicensee's business operations.
1.12 "TERRITORY" for distribution of the Programs shall mean all countries
worldwide, subject to U.S. export law.
II. PROGRAMS.
2.1 LICENSE TO INTEGRATE AND DISTRIBUTE. During the Term of this Agreement,
subject to the payment of the applicable fees specified in Article V,
BackWeb grants to Emony a nonexclusive, nontransferable License to use
the Full Use version of the Programs in object code form on the
designated Platform for the following purposes only:
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A. (i) Integrating the Programs with the Application Program (the
integrated solution hereinafter is referred to as the
"Application Packages") for the purpose of distributing the
Application Packages, (ii) reproducing the Programs to the
extent necessary for safekeeping, archival and distribution
purposes, (iii) demonstrating the Programs to potential
Sublicensees solely in conjunction with the Application Programs
or the Application Package, and (iv) providing training and
technical support to employees and customers solely in
conjunction with the Application Programs;
B. to use the Documentation provided with the Programs in support
of Emony's authorized use of the Programs;
C. to allow third parties to use the Programs for Emony's
operations as set forth herein so long as Emony ensures that use
of the Programs is in accordance with the terms of this
Agreement; and
D. to permit Emony by using the Program to deliver its Application
Program, any part thereof and any updates, upgrades and
enhancements thereto to Emony's clients.
In consideration of the grant of such rights, Emony commits to using its
best efforts to complete the integration described above and to bring
such integrated solution to the market. Other than as set forth above,
Emony may not use the License for any internal data delivery operations
or for any other purpose.
Promptly after the Effective Date of this Agreement, BackWeb shall
deliver to Emony one (1) copy of the software media and Documentation
("Master Copy") for each Program currently available in production
release as of the Effective Date of this Agreement for the Platform.
Emony shall have the right to use the Master Copy (i) to make the number
of copies necessary, to allow Emony to use the Programs as licensed
under this Agreement, and to market and distribute the Programs as set
forth in this Agreement; and (ii) to make a reasonable number of copies
of the Program for backup and archival purposes only. All titles,
trademarks and copyright and restricted rights notices shall be
reproduced in such copies. Emony shall not copy or use the Programs
(including the Documentation) except as specified in this Agreement.
2.2 DISTRIBUTION A. SUBLICENSE RIGHTS. BackWeb hereby grants Emony a
nonexclusive, nontransferable license to market and grant Sublicenses of
the Application Specific Programs in the Territory for the purpose of
distributing software:
1. Sublicense Application Specific Programs with the applicable
Application Program in the Application Package for use on Platform to
Sublicensees for the purpose of software distribution; and
2. Make and deliver to the Sublicensee a single copy of the Application
Specific Programs in the Application Package for each Sublicense
granted. Each Sublicensee shall have the right to make a reasonable
number of copies of the Program to support each such Sublicensee's use,
subject to a written Sublicense agreement as specified in Section 2.2.B.
B. SUBLICENSE AGREEMENTS. Emony shall distribute the Application Package
solely through a written Sublicense agreement that includes at a minimum
the contractual provisions set forth below:
1. Restrict use of the Program in object code form limited to the
maximum number of Application Specific Program Users reported to
BackWeb for the Sublicensee's own internal business operations;
2. Prohibit use of the Application Specific Programs for any
purposes other than in conjunction with or in support of the
Application Program;
3. Prohibit (i) assignment, timesharing or rental of the Programs
and (ii) the reverse engineering, disassembly or decompilation
of the Programs;
4. Prohibit title to the Program from passing to the Sublicensee;
5. Disclaim Emony's liability for any indirect, incidental or
consequential damages arising from the use of the Programs and
make clear that the Programs are distributed to the end user
only by Emony;
6. Require the end user to comply with U.S. export laws and
regulations connected with the Programs; and
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7. Require the Sublicensee, at the termination of the Sublicense,
to discontinue use and destroy or return to Emony the
Application Specific Programs, Documentation and all archival or
other copies of the Program.
Emony shall use all reasonable means and efforts to enforce the terms of
its written agreements and to ensure that the Programs are used in
accordance with terms of this Agreement.
C. DOCUMENTATION. With respect to Documentation for Application
Packages, Emony shall be responsible for providing documentation to
Sublicensees. Emony shall have the right to incorporate portions of the
Documentation into Emony's documentation, subject to the provisions of
this Agreement.
2.3 LIMITATIONS ON USE. Emony may not relicense, rent or lease the Programs
or use the Programs for third-party training, commercial time-sharing,
rental or service bureau use, or outsourcing for third parties. Emony
shall not cause or permit the reverse engineering, disassembly or
decompilation of the Programs, except to the extent required to obtain
interoperability with other independently created software or as
specified by law.
2.4 TITLE. BackWeb shall retain all title, copyright and other proprietary
rights in the Programs and any modifications or derivative works made to
the Programs. Emony and the end users do not acquire any rights, express
or implied, in the Programs or modifications or derivative works
thereto, other than those specified in this Agreement.
Emony shall retain all title, copyright and other proprietary rights in
its Applications Program and any modifications or derivative works made
to the Applications Program developed by Emony to the extent that such
Applications Program do not contain the Programs. BackWeb does not
acquire any rights, express or implied, in the Application Programs or
modifications or derivative works thereto, other than those specified in
this Agreement.
2.5 VERIFICATION. Emony shall maintain books and records in connection with
its Program use and Sublicensing activity during the term of this
Agreement and for two (2) years thereafter. BackWeb may audit Emony's
records to determine whether Emony has complied with the terms of this
Agreement. Any such audit shall be conducted by independent auditors
selected by BackWeb and approved by Emony who shall perform their audit
during Emony's regular business hours at Emony's facilities and shall
not unreasonably interfere with Emony's business activities and not more
than twice in every calendar year. If an audit reveals that Emony has
underpaid fees to BackWeb, Emony shall be invoiced for such underpaid
fees. If the underpaid fees are in excess of five percent (5%), then
Emony shall pay BackWeb's reasonable costs of conducting the audit.
III. SERVICES
3.1 TECHNICAL SUPPORT SERVICES FOR EMONY. During the Term of this Agreement,
BackWeb shall provide "Silver-level" Technical Support services, as
defined in Exhibit B, to Emony for the standard version of the Programs.
Any support for customizations may be acquired from BackWeb's consulting
services organization at fees to be mutually agreed upon by the parties.
3.2 TECHNICAL SUPPORT SERVICES FOR SUBLICENSEES. Emony will be responsible
for any assistance needed by Sublicensees to install the Programs.
Further, Emony is responsible for providing all first-line technical
support, training and consultation services to its end users. In
consideration of the payment of Technical Support services fees to
BackWeb as specified in Article V, Emony shall have the right to use the
BackWeb Technical Support services acquired to provide technical support
services to its Sublicensees; BackWeb shall only be responsible for
providing second line support services to Emony so that Emony can
support its Sublicensees. Any questions from Emony's Sub licensees will
be referred by BackWeb to Emony.
3.3 CONSULTING AND TRAINING SERVICES. BackWeb will provide to Emony
consulting and training services agreed to by the parties under the
terms of this Agreement. Except as otherwise agreed by the parties, all
consulting services and training services shall be billed on a time and
materials basis.
3.4 INCIDENTAL EXPENSES. For any on-site services requested by Emony, Emony
shall reimburse BackWeb for actual, reasonable travel and out-of-pocket
expenses incurred.
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IV. COOPERATIVE DEVELOPMENT AND MARKETING
4.1 TECHNICAL COOPERATION. During the Term of this Agreement, BackWeb will
assist Emony with the technical know-how reasonably necessary to
facilitate the integration of the Application Specific Program and the
Application Program. Such assistance shall be at BackWeb's standard
consulting rates and be subject to a mutually agreed upon Statement of
Work ("SOW"). Each party shall provide a technical contact (each, being
a "Technical Contact"), who shall have as the primary technical liaisons
between the parties and shall act to ensure the free flow of information
subject to appropriate confidentiality undertakings by the parties and
the personnel implementing this Agreement and further subject to the
applicable SOW. The parties agree that the Technical Contacts for the
parties shall be as follows:
FOR BACKWEB: FOR EMONY:
Bill Heye Sharon Peleg
BackWeb Technologies Ltd. Emony Ltd.
2225 Sheppard Ave. E 11 Amal St.
Suite 1401 Afek Industrial Park
Toronto ON M2J5C2 Rosh Ha'ayin 48092
Canada Israel
Telephone: 416-498-2158 Telephone: (03) 9022433, ext 126
Facsimile: 416-490-8601 Facsimile: (03) 9022434
Email: bill@backweb.com Email: Sharon.peleg@redbend.com
BackWeb and Emony may each change their appointed Technical Contacts by
written notification to the other party.
4.2 DEVELOPMENT SCHEDULE. BackWeb and Emony agree to work together as is
necessary for the integration of the Programs and the Application
Programs and in furtherance thereof agree to provide regular updates to
one another and to meet at least quarterly to discuss status of
development and integration effort.
4.3 BRANDING. The parties acknowledge and agree that any Application Program
incorporating the Program shall be branded with Emony's branding and
BackWeb's marks as follows: Emony agrees to include the BackWeb logo
"Powered by BackWeb" in any place that Emony's names or logo appears
when the Application Specific Program operates and on all Emony
collateral concerning the Application Packages. Emony shall retain any
of BackWeb's trademarks, trademark notice or copyright notices on the
Programs and shall not remove such marks from any portions of the
Programs.
4.4 PRESS RELEASE. Within 30 days after the Effective Date of this
Agreement, Emony and BackWeb shall issue a joint press release mutually
agreed upon by the parties announcing the parties' cooperation and
describing terms of this Agreement hereunder. Upon successful
integration of the Application Specific Program with the Application
Programs, Emony shall cooperate with BackWeb to be the subject of a
BackWeb customer success story for publication on BackWeb's web site.
Emony agrees that BackWeb may use the Emony's logo on BackWeb's web
site, collateral and related marketing materials to show that Emony is a
partner of BackWeb.
4.5 NONSOLICITATION OF PERSONNEL. Each party agrees that during the term of
this Agreement and for a period of two (2) years thereafter, it will not
solicit, contact for the purposes of hiring or communicate with for the
purposes of hiring, employing or engaging, any person who is then or was
an employee of the other party to this Agreement at any time within the
six-month period immediately prior thereto. However, the foregoing shall
not prohibit any party from publishing advertisements for employment on
its web sites, in newspapers, journals or by any other like methods.
V. FEES AND PAYMENT
5.1 LICENSE AND TECHNICAL SUPPORT FEES. In consideration for the grant of
rights set forth above in Section 2.1, Emony shall pay to BackWeb
$500,000.00, plus applicable taxes. The payment obligation for this
license fee is noncancellable and the sums paid nonrefundable. All fees
are specified in U.S. dollars and are due and payable as specified in
Section 5.5.
Fees for initial-year Silver Technical Support services for the Programs
shall be [eighteen percent (18%)] of the above license fee. Initial-year
Silver Technical Support shall commence on the
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Commencement Date and shall continue until 12 months from the
Commencement Date. Emony shall have the right to renew Technical support
services for such Program licenses at BackWeb's then current standard
Technical Support services fees and pricing in effect at the time of
order.
5.2 SUBLICENSE FEES. During the Term of this Agreement, Emony shall pay to
BackWeb Sublicense fees in such amount as described in Exhibit A
attached hereto as may be amended from time to time. Such fees shall be
paid as set forth in Section 5.5. For the purposes of this Section,
"Revenue" shall be mean any monies due to Emony, either directly or
indirectly, through its distribution, license, sale, etc. of the
Application Packages.
The Sublicense fee shall be calculated effective the date the
Application Program, including the Programs, is shipped by Emony to a
Sublicensee. Emony is free to determine unilaterally its own license
fees to its Sublicensees. Emony shall not be relieved of its obligation
to pay Sublicense fees owed to BackWeb by the nonpayment of such fees by
the Sublicensee.
5.3 TECHNICAL SUPPORT SERVICES FEES FOR SUBLICENSEES. For Silver-level
Technical Support services for Sublicensees, each year Emony agrees to
pay BackWeb an annual Technical Support Fee for each Program Sublicensed
under this Agreement where the Sublicensee received technical support
services for such Application Specific Program during the applicable
year from Emony. Annual Technical Support Fees for a Program shall be
equal to 18% of the cumulative Sublicense fees accrued to BackWeb for a
Sublicensed Program supported by Emony.
With each quarterly report provided to BackWeb, Emony shall report to
BackWeb the number of Sublicensees that acquired technical support
services during such period. The report shall also include the
Application Program being supported, the applicable number of Users and
the applicable Technical Support fees due and payable to BackWeb for the
applicable support year.
5.4 SUBLICENSE REPORTS. Within twenty (20) days of the last day of each and
every calendar quarter, Emony shall send to BackWeb a report detailing
for that quarter each Sublicensed Application Program shipped or
licensed during that month, number of Users, total Royalties related to
such Application Programs, and total Sublicense fees and Technical
Support Fees due to BackWeb. Emony shall pay to BackWeb any Sublicense
fees and Technical Support fees upon Emony's receipt of an invoice from
BackWeb.
5.5 INVOICING AND PAYMENT. Except as otherwise specified in this Agreement,
all fees shall be due and payable forty-five (45) days from Emony's
receipt of an invoice All payments made shall be in United States
currency or in New Israel Shekels (NIS), with the exchange rate being
the exchange rate from U.S. dollars into NIS reported by the Wall Street
Journal on the last business day prior to date of payment. Also, such
payment shall be made without deductions based on any taxes or
withholdings, except where such deduction is based on gross income. Any
amounts payable by Emony hereunder which remain unpaid after the due
date shall be subject to a late charge equal to 1.5% per month from the
due date until such amount is paid. Emony shall issue a purchase order,
or alternative document acceptable to BackWeb, on or before the
Effective Date of the applicable Order Form.
5.6 TAXES. The fees listed in this Agreement do not include taxes; if
BackWeb is required to pay sales, use, property, value-added or other
taxes or custom duties based on the licenses or services granted in this
Agreement or on Emony's use of Programs or services, then such taxes
shall be billed to and paid by Emony. This Section shall not apply to
taxes based on BackWeb's income.
VI. TERM AND TERMINATION
6.1 TERM. This Agreement shall become effective on the Effective Date of
this Agreement and shall be valid until five (5) years from the
Effective Date of this Agreement (the "Initial Term"), unless terminated
earlier as provided in this Agreement. Prior to the expiration of the
Initial Term, the parties may agree in writing to renew this Agreement
for a term to be agreed upon.
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6.2 TERMINATION FOR BREACH. Each party may terminate this Agreement or any
license upon written notice if the other party materially breaches this
Agreement and fails to correct the breach within thirty (30) days
following written notice specifying the breach.
6.3 FORCE MAJEURE. Neither party shall be liable to the other for failure or
delay in the performance of a required obligation if such failure or
delay is caused by strike, riot, fire, flood, natural disaster, or other
similar cause beyond such party's control, provided that such party
gives prompt written notice of such condition and resumes its
performance as soon as possible, and provided further that the other
party may terminate this Agreement if such condition continues for a
period of one hundred eighty (180) days.
6.4 EFFECT OF TERMINATION. Upon expiration or termination of this Agreement,
all of Emony's rights to market, distribute, and use the Programs shall
cease; provided, however that a Sublicense granted by Emony shall
continue in full force and effect unless the Sublicensee has breached
its sublicense agreement, in which case Emony shall terminate the
sublicense within thirty (30) days if such breach remain uncured. If
this Agreement expires or is terminated for any reason, neither party
will be liable to the other because of such expiration nor termination
for damages for the loss of prospective profits, anticipated sales or
good will. Termination of this Agreement or any license shall not limit
either party from pursuing other remedies available to it, including
injunctive relief, nor shall such termination relieve a party's
obligation to pay all fees that have accrued or are otherwise owed by a
party under this Agreement, any Order Form or any fees report. The
parties' rights and obligations under Sections 2.3-2.5, 4.8, 5.4, and
Articles VI, VII, and VIII shall survive termination of this Agreement.
Upon termination of any Program license, Emony shall cease using, and
shall return or destroy, all copies of the applicable Programs.
VII. INDEMNITY, WARRANTIES, REMEDIES
7.1 INFRINGEMENT INDEMNITY. BackWeb will defend and indemnify Emony against
a claim that the Programs infringe any U.S. copyright or patent,
provided that: (a) Emony notifies BackWeb in promptly writing after
notice of the claim; (b) BackWeb has sole control of the defense and all
related settlement negotiations; provided, however, that BackWeb shall
have not right to incur any material obligation on Emony's behalf except
for the actions specified in the second paragraph of this Section; and
(c) Emony provides BackWeb with the assistance, information and
authority necessary to perform BackWeb's obligations under this Section.
BackWeb will reimburse Emony's reasonable out-of-pocket expenses
incurred in providing such assistance. BackWeb shall have no liability
for any claim of infringement based on (a) use of a superseded or
altered release of Programs by Emony if the infringement would have been
avoided by the use of a current unaltered release of the Programs which
BackWeb provides to Emony or (b) the combination or use of the Programs
with software, hardware or other materials not furnished by BackWeb if
the use of the software, hardware or other materials not furnished by
BackWeb was the sole cause of the claim of infringement.
If the Programs are held or are believed by BackWeb to infringe, BackWeb
shall have the option, at its expense, to (a) modify the Programs to be
noninfringing or (b) obtain for Emony a license to continue using the
Programs. If BackWeb determines, in its sole discretion, that it is not
commercially reasonable to perform either of the above options, then
BackWeb may terminate the license for the infringing Programs and refund
the license fees paid for those Programs, prorated over a five year term
from the Commencement Date. This Section 7.1 states BackWeb's entire
liability and Emony's exclusive remedy for infringement.
7.2 WARRANTIES AND DISCLAIMERS.
A. For each Program licensed to Emony, BackWeb warrants to Emony that:
(i) for a period of ninety (90) days after the Commencement Date, each
unmodified Program will operate substantially in accordance with the
functional description provided the applicable Documentation when
installed on the applicable Platform; and
(ii) the Program will, to the extent supported by the underlying
operating system and Emony's applications, be compliant with the
millennium date change as provided on BackWeb's web site
(www.backweb.com) under "Products."
B. For services acquired under this Agreement, BackWeb warrants to Emony
for a period of ninety (90) days from performance of the applicable
service that its Technical Support, training and consulting services
will be performed consistent with generally accepted industry standards.
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C. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
BACKWEB DOES NOT WARRANT THAT THE PROGRAMS WILL OPERATE IN COMBINATIONS
OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE OPERATION OF
THE PROGRAMS WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. BETA OR
PRE-PRODUCTION RELEASES OF PROGRAMS ARE DISTRIBUTED "AS IS." EXCEPT WITH
RESPECT TO ANY CONTENT PROVIDED BY BACKWEB, BACKWEB EXPRESSLY DISCLAIMS
RESPONSIBILITY FOR OR LIABILITY ARISING OUT OF OR BASED UPON THE CONTENT
OF INFORMATION TRANSMITTED BY EMONY OR ITS SUBLICENSEES OR TRANSMITTED
TO END USERS OR THE RESULTS OF ANY SUCH TRANSMISSION.
7.3 EXCLUSIVE REMEDIES. For any breach of the warranties contained in this
Agreement, Emony's exclusive remedy, and BackWeb's entire liability,
shall be:
A. for Programs, BackWeb shall correct the Program errors that cause the
breach of warranty or, if correction of the Programs is not commercially
feasible, BackWeb shall replace the Programs with conforming; and
B. for services, BackWeb shall reperform the deficient services that
cause the breach of the warranty.
7.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES
FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR
ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
BACKWEB'S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE
AMOUNT OF FEES PAID BY EMONY UNDER THIS AGREEMENT.
The provisions of this Agreement allocate the risks between BackWeb and
Emony. BackWeb's pricing reflects this allocation of risk and the
limitation of liability specified herein.
VIII. GENERAL TERMS
8.1 NONDISCLOSURE. By virtue of this Agreement, the parties may have access
to information that is confidential to one another ("Confidential
Information"). Confidential Information shall be limited to the
Programs, the terms and pricing under this Agreement, and all
information clearly identified as confidential.
A party's Confidential Information shall not include information that:
(a) is or becomes a part of the public domain through no act or omission
of the other party; (b) was in the other party's lawful possession prior
to the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on
disclosure; or (d) is independently developed by the other party.
The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of two (2)
years after termination of this Agreement. The parties agree, unless
required by law, not to make each other's Confidential Information
available in any form to any third party (except to each such party's
agents or independent contractors) for any purpose other than the
implementation of this Agreement. Each party agrees to take all
reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees, agents or independent
contractors in violation of the terms of this Agreement. Notwithstanding
the above, BackWeb may refer to Emony as a customer, OEM and
distribution partner in sales presentations, press releases, product
brochures, financial or governmental reports, marketing vehicles and
activities and on its website and may display Emony's logo in connection
with such references.
8.2 COPYRIGHT. The Programs are copyrighted by BackWeb. Emony shall retain
all BackWeb copyright notices on the Programs used by Emony under its
Development Licenses or as Sublicensed by Emony. On all copies of the
Application Package distributed by Emony, Emony shall include a
reproduction of BackWeb's copyright notice(s) with reference to the
portions of the Programs included in the Application Package. Such
notices shall be placed on the documentation, the Application Package
sign-on screen and the CD-ROM labels. Notwithstanding any copyright
notice by Emony to the contrary, the copyright to the Programs included
in the
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Application Package shall remain in and with BackWeb. Other than as
specified above, on any reproduction or translation of any Programs,
Documentation or promotional material, Emony agrees to reproduce
BackWeb's copyright notices intact.
8.3 TRADEMARKS. "BACKWEB" and any other trademarks and service marks adopted
by BackWeb to identify the Programs and other BackWeb products and
services belong to BackWeb; Emony will have no rights in such marks,
except as expressly set forth herein and as specified in writing from
time to time. Emony shall have the right to use BackWeb's trademarks
solely in furtherance of its distribution activities under this
Agreement and such use of BackWeb's trademarks shall be under BackWeb's
trademark policies and procedures in effect from time-to-time. Emony
agrees not to use the trademark "BACKWEB" or any other mark likely to
cause confusion with the BackWeb's trademarks as any portion of Emony's
trade name or trademark for any other products of Emony. Emony shall
have the right to use BackWeb's trademarks solely to refer to BackWeb's
Programs, products and services.
8.4 RELATIONSHIP BETWEEN PARTIES. In all matters relating to this Agreement,
the parties will each act as an independent contractor. The relationship
between BackWeb and Emony is that of licensor/licensee. Neither party
will represent that it has any authority to assume or create any
obligation, express or implied, on behalf of the other party, nor to
represent the other party as agent, employee, or in any other capacity.
Nothing in this Agreement shall be construed to limit either party's
right to independently develop or distribute software that is
functionally similar to the other party's product, so long as
proprietary information of the other party is not used in such
development.
8.5 GOVERNING LAW. This Agreement, and all matters arising out of or
relating to this Agreement, shall be governed by the laws of Israel.
8.6 NOTICE. All notices, including notices of address change, required to be
sent hereunder shall be in writing and shall be deemed to have been
given when mailed by first class mail to the first address listed in the
relevant Order Form (if to Emony) or to the BackWeb address on the Order
Form (if to BackWeb). To expedite order processing, Emony agrees that
BackWeb may treat documents faxed by Emony to BackWeb as original
documents; nevertheless, either party may require the other to exchange
original signed documents.
8.7 ASSIGNMENT. Neither party may assign this Agreement, or any part
thereof, to a legal entity separate from such party, without the prior
written consent of the other party hereto, such consent not to be
unreasonably withheld. Notwithstanding the forgoing, either party may
assign this Agreement and any Order Form to the surviving entity in a
merger or reorganization or the purchaser of substantially all of the
assets of that party, provided however that in the event that the
acquiring entity is a direct competitor of the other, the prior written
consent of the other party hereto shall be required, such consent not to
be unreasonably withheld. In the event that a party reasonably refuses
the assignment for the reasons set forth in the prior sentence, then
such party shall have the right to terminate the Agreement in accordance
with section VI herein and that shall be that party's sole and entire
remedy with regards hereto.
8.8 SEVERABILITY. If any provision of this Agreement is held to be invalid
or unenforceable, the remaining provisions of this Agreement will remain
in full force.
8.9 WAIVER. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent
default or breach.
8.10 EXPORT ADMINISTRATION. Each party agrees to comply fully with all
relevant export laws and regulations of the United States ("Export
Laws") to assure that neither the Programs nor any direct product
thereof are (1) exported, directly or indirectly, in violation of Export
Laws; or (2) are intended to be used for any purposes prohibited by the
Export Laws, including, without limitation, nuclear, chemical, or
biological weapons proliferation.
8.11 RESTRICTED RIGHTS. If Emony distributes Programs to the United States
government, the Programs shall be provided with "Restricted Rights" and
Emony will place a legend, in addition to applicable copyright notices,
on the documentation, and on the tape or diskette label, substantially
similar to the following: The Programs are deemed to be "commercial
computer software" and/or "commercial computer software documentation"
pursuant to DFAR Section 227.7202 and FAR
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Section 12.212, as applicable. Any use, duplication, modification or
disclosure by the United States Government is subject to the
restrictions set forth in these clauses. Manufacturer is BackWeb
Technologies Ltd., P O Box 3581, Ramat-Gan, 52136 Israel.
8.12 ENTIRE AGREEMENT. This Agreement and the Annexes hereto and any Order
Forms hereto constitute the complete agreement between the parties and
supersede all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement may not be modified or amended except in a writing signed by a
duly authorized representative of each party; no other act, document,
usage or custom shall be deemed to amend or modify this Agreement. It is
expressly agreed that the terms of this Agreement shall supersede the
terms in any Emony purchase order or other ordering document and such
terms will have no force or effect. This Agreement shall also supersede
the terms of any unsigned license agreement included in any package for
BackWeb-furnished software.
The Effective Date of this Agreement shall be August 29, 2001.
EMONY LTD. BACKWEB TECHNOLOGIES LTD.
By: /s/ YORAM SALINGER By: /s/ GWEN SPERTELL
----------------------------------- --------------------------------
Name: Yoram Salinger Name: Gwen Spertell
-------------------------------- -----------------------------
Title: C.E.O. Title: COO
------------------------------- ----------------------------
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EXHIBIT A
SUBLICENSE FEES
With respect to the amount of sublicenses fees and royalties to be paid by Emony
to BackWeb pursuant to Section 5.2 of this Agreement, the parties agree to
negotiate in good faith to reach a mutually acceptable fee and royalty structure
no later than December 31, 2001, upon which agreement, this Exhibit shall be
amended to state such agreement.
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EXHIBIT B
BACKWEB TECHNICAL SUPPORT POLICIES
SILVER LEVEL SUPPORT
BackWeb Technical Support is provided for problems that are demonstrable in the
applicable release of a BackWeb licensed product, running unaltered on an
acceptable hardware and operating system configuration.
Technical Support services are normally provided over annual support periods.
Initial-year annual Technical Support services for BackWeb products commence on
the date of delivery of the BackWeb products or if no delivery is required,
commence on the effective date of the order for such product. Thereafter,
Technical Support services may be renewed for successive annual periods of one
year.
BackWeb notifies the Customer of renewal fees prior to the date for renewal of
Technical Support services. Technical Support fees are due and payable annually
in advance of commencement of the applicable Support Period. Failure to pay
Technical Support fees will result in suspension of BackWeb Technical Support
Services.
SILVER TECHNICAL SUPPORT SERVICE
Silver Technical Support includes:
- Telephone Technical Support assistance is available from 8:00
a.m. to 5:00 p.m. Monday through Friday (holidays excluded)
based on the local time zone of the assigned BackWeb Technical
Support Center. The appropriate BackWeb Technical Support Center
is assigned by BackWeb based on the geographical location of the
customer.
- BACKWEB'S NORTH AMERICAN PRIORITY SUPPORT HOTLINE
Telephone: 1-800-778-1949
Email: productsupport@backweb.com
- BACKWEB'S EUROPEAN PRIORITY SUPPORT HOTLINE
Telephone: +972-3-611-8826
Email: eurosupport@backweb.com
- Web-based access to BackWeb Technical Support news, patches,
Updates and programming examples is available through BackWeb's
webpage at
http://www.backweb.com/services/html/client_support.html
- Product Updates(1)
- Bug fixes
- General maintenance releases
- Minor and major new functionality releases, i.e. upgrades
- Documentation updates
- BackWeb Knowledgebase access to information on Technical Support
Frequently Asked Questions and customer feedback.
- Access to System Reports is initiated by the Customer
-----------------
(1) "Update" refers to subsequent releases of the BackWeb software product,
including, without limitation, bug fixes, error corrections and those new
releases which BackWeb makes available for Program licensees at no additional
license fee other than media and handling charges, provided the Customer has
ordered Technical Support for such licenses for the relevant time period.
Updates do not include any release, option, module or future product that
BackWeb licenses separately.
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TECHNICAL SUPPORT ENGINEERS
For the Technical Support Services level specified above, the Support Center's
Technical Support Engineers (TSEs) field incoming calls, email and fax messages.
TSEs are responsible for:
a) Coordinating the resolution of the problem
b) Verifying any reported error, including by obtaining additional
information from Customer
c) Communicating to the Customer a resolution, or workaround, or
supplying a bug fix, as appropriate
CUSTOMER SUPPORT IDENTIFICATION (CSID) NUMBER
Upon purchasing BackWeb Technical Support services, Customer receives a CSID
Number. The CSID Number is essential for obtaining the Technical Support
Services described in this document from BackWeb.
The CSID number identifies the Customer with respect to the following
information:
- Company Name and Address
- Product Set and Version
- Technical Support Level
- Duration of Support Period
- Operating System
- Technical Contact Information
INFORMATION CUSTOMERS NEED WHEN CALLING SUPPORT
Before BackWeb can begin work on any problem, information on the nature and
location of the problem is required. Whenever an error report or call is placed
to the BackWeb Support Center, the following information should be provided:
- The Customer Support Identification (CSID) number
- The area code and phone number
- The operating system (including version) on which BackWeb products are
installed
- The BackWeb product name and version number and build number that this
call concerns
- Any program error messages associated with the problem
- A detailed description of the problem
- A status log, if applicable
PROBLEM RESOLUTION PROCEDURE
BackWeb categorizes reported errors as provided in the table below and responds
to reported errors according to the schedule indicated. "Acknowledgment" means
confirming receipt of a problem, verifying details, attempting to duplicate the
problem and confirming status to Customer. "Response" means providing Customer
with an answer, a patch or a resolution action plan. BackWeb is only responsible
for providing support for the failure of a BackWeb product to materially conform
to the functional specifications as set forth in the applicable product
documentation.
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Acknowledgment Goal Silver Gold Platinum
------------------- ------ ---- --------
Priority 1 1 Business day 1 Business hour 1 hour
Priority 2 2 Business days 2 Business hours 2 hours
Priority 3 3 Business days 6 Business hours 6 hours
Priority 4 3 Business days 2 Business days 24 hours
Resolution response
Priority 1 3 Business days 2 Business day 2 days
Priority 2 5 Business days 4 Business days 4 days
Priority 3 10 Business days 8 Business days 7 days
Priority 4 15 Business days 15 Business days 15 days
Priority Categories shall be defined as follows:
Priority 1 Critical: Production stop due to product or major feature
failure or data corruption.
Priority 2 Serious: Major impact. Major feature/product failure;
inconvenient workaround or no workaround exists.
Priority 3 Minor: Minor impact. Minor feature/product failure, convenient
workaround exists.
Priority 4 Informational: Functionality does not match documented
specifications.
A nonconformity is not considered an error if (a) the BackWeb product is
combined or merged with any hardware or software not supported by BackWeb; or
(b) the error is caused by Customer's misuse or improper use of the BackWeb
product.
TECHNICAL CONTACTS
For each order for Technical Support services, the Customer must designate one
primary and one backup employee ("Technical Contacts"), to serve as liaisons
with BackWeb. The designated Technical Contact is the sole liaison between
Customer and BackWeb for all software product support and shall be based at the
customer's premises. To avoid interruptions in support services, customers must
notify BackWeb whenever their Technical Contact responsibilities are transferred
to another individual. The Customer will ensure that each Technical Contact is
trained on BackWeb's products.
PRIOR VERSIONS
BackWeb provides support for a specific release or version of a BackWeb product
for a minimum of six (6) months after BackWeb makes a subsequent release or
version of such product available, as an Update or otherwise. At its sole
discretion and control, BackWeb may replace specific components of the Programs
with other components and BackWeb shall only provide Technical Support for the
new components.
CUSTOM WORK
BackWeb Technical Support is offered for all officially released BackWeb
products. Custom made applications, created by the customer and/or by BackWeb
Professional Services, are not covered by this maintenance offering.
SUPPORT POLICY CHANGES
Technical Support services, including Updates, are provided by BackWeb, subject
to the terms of the applicable written agreement between Customer and BackWeb,
and if none, under BackWeb's standard Software License and Services Agreement in
effect at the time Technical Support services are ordered. These Technical
Support policies are BackWeb's current policies and are subject to change.
BackWeb may inform Customer of any changes via publication on
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BackWeb's Technical Support webpages and such changes shall take effect after
the then-current support period.
REINSTATEMENT FEES
In the event that BackWeb Technical Support services lapse, are not renewed or
were never originally procured, a Reinstatement Fee shall be assessed upon
re-commencement of Technical Support services equal to the amount of
Silver-level Technical Support fees which would have been applicable during the
period of lapse, calculated based on the current Technical Support fee in effect
at the time Technical Support is ordered.
ADDITIONAL OFFERINGS
ON-SITE SUPPORT
Upon Customer's request and order, BackWeb provides the on-site services of
BackWeb Engineers to assist in resolving technical support issues at the then
current Professional Services rate.
SPECIAL REPORTS
At fees to be mutually agreed upon in writing, BackWeb will deliver monthly
System Reports via email and/or hard copy. These reports include details
specific to the customer's issues. BackWeb includes in each such report a
summary list of all patches made available during the reporting period for the
supported Program licenses.
All mentioned reports & knowledgebase-related items will be available starting
June 2001.
1. BACKWEB TECHNICAL SUPPORT CENTERS
CANADA
2225 Sheppard Avenue East, Suite 1401
Toronto, Ontario M2J 5C2
Canada
ISRAEL
3 Abba Hillel Street
P.O. Box 3581
Ramat-Gan 52136
Israel
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