Major Account License Agreement - GE Medical Systems and Selectica Inc.
SELECTICA, INC.
MAJOR ACCOUNT LICENSE AGREEMENT
This Agreement, dated as of June 28, 2002 (the "Effective Date"), is made and
entered into by and between Selectica, Inc. 3 West Plumeria Drive, San Jose,
California, 95134 ("SELECTICA"), and GE Medical Systems and Affiliates
("Customer"). SELECTICA and Customer agree as follows:
1. DEFINITIONS
Whenever used in this Agreement, the following terms will have the
following specified meanings:
1.1 "DOCUMENTATION" means the documentation shipped with the Software to
Customer hereunder, together with any and all new releases, corrections, updates
and applicable training materials furnished by SELECTICA to Customer under this
Agreement.
1.2 "SOFTWARE" means the computer software specified in Exhibit A attached
hereto, in object code form.
1.3 "AFFILIATE" means a corporation, company or other entity controlling,
under the control of or under common control with the person at issue where
control means the ownership of (1) at least fifty percent (50%) of the
outstanding shares or securities (representing the right to vote for the
election of directors or other managing authority) are, or (2) in the case of an
entity which does not have outstanding shares or securities, as may be the case
in a partnership, joint venture or unincorporated association, at least fifty
percent (50%) of the ownership interest representing the right to make the
decisions for such corporation, company or other entity.
2. SOFTWARE DELIVERY AND LICENSE
2.1 DELIVERABLES. Upon execution of this Agreement, SELECTICA shall
deliver to Customer one reproducible master copy of the Software licensed
hereunder to Customer, in object code form, and one copy of the Documentation.
2.2 GRANT. Subject to the terms of this Agreement and payment of all fees,
SELECTICA hereby grants Customer a worldwide, fully paid, nonexclusive,
nontransferable, perpetual license to:
(a) Install and use the Software ordered by Customer hereunder for
internal use by Customer for the number of users or seats authorized under this
Agreement. The number of users or seats initially authorized hereunder is set
forth in Exhibit B. Customer may increase the number of authorized users or
seats from time to time upon payment to SELECTICA of the applicable amount as
set forth in Exhibit B.
(b) Reproduce the Documentation for the Software ordered by Customer
hereunder and/or incorporate all or any portion of the Documentation in training
materials prepared by the Customer, in each case solely for the use of the
Customer and provided that the copyright notices and other proprietary rights
legends of SELECTICA are included on each copy of the Documentation and such
materials.
(c) Reproduce and make a reasonable number of copies for archival and
backup purposes.
2.3 RESTRICTIONS. Customer shall use the Software and Documentation only
for the purposes specified in section 2.2. In addition, without limitation,
Customer shall not:
(a) modify, change, enhance or prepare derivative works of the
Software or Documentation except as expressly permitted in Section 2.2;
(b) reverse engineer, disassemble or decompose the Software, except
to the extent that such acts may not be prohibited under applicable law;
(c) remove, obscure, or alter any notice of patent, copyright, trade
secret, trademark, or other proprietary rights notices present on any Software
Documentation;
(d) sublicense, sell, lend, rent, lease, or otherwise transfer all or
any portion of the Software or the Documentation to any third party except as
may be permitted in Section 10.4 hereof;
(e) use the Software or the Documentation to provide services to
third parties, or otherwise use the same on a "service business" basis provided;
however, Customer shall have the right to allow customers and other authorized
parties to access the Software as part of its normal course of business; and
(f) use the Software, or allow the transfer, transmission, export, or
re-export of the Software or any portion thereof in violation of any export
control laws or regulations administered by the U.S. Commerce Department, OFAC,
or any other government agency.
2.4 PROPRIETARY RIGHTS. The Software Documentation contains valuable
patent, copyright, trade secret, trademark and other proprietary rights of
SELECTICA. Except for the license granted under Section 2.2, SELECTICA reserves
all rights to the Software and Documentation. No title to or ownership of any
Software or proprietary rights related to the Software or Documentation is
transferred to Customer under this Agreement.
2.5 PROTECTION AGAINST UNAUTHORIZED USE. Customer shall promptly notify
SELECTICA of any unauthorized use of the Software or Documentation which comes
to Customer's attention. In the event of any unauthorized use by any of
Customer's employees, agents or representatives, Customer shall use its best
efforts to terminate such unauthorized use and to retrieve any copy of the
Software or Documentation in the possession or control of the person or entity
engaging in such unauthorized use. SELECTICA may, at its option and expense,
participate in any such proceeding and, in such an event, Customer shall provide
such authority, information and assistance related to such proceeding as
SELECTICA may reasonably request.
2.6 RECORDS. Customer shall ensure that each copy it makes of all or any
portion of the Software or the Documentation includes the notice of copyright or
other proprietary rights legends appearing in or on the Software or the
Documentation delivered to Customer by SELECTICA; shall keep accurate records of
the reproduction and location of each copy; and upon request of SELECTICA, shall
provide SELECTICA with complete access to such records during normal business
hours and to Customer facilities, computers and the Software and Documentation
for the purpose of auditing and verifying Customer's compliance with this
Agreement provided, however, that SELECTICA shall not request access to such
records more than two (2) times in any year.
3. SUPPORT SERVICES, TRAINING AND MAINTENANCE
Provided Customer has paid SELECTICA the applicable maintenance fee
specified in Exhibit B, SELECTICA will use reasonable commercial efforts to
provide the maintenance services set forth as described in Exhibit C and the
training services described in Exhibit D.
4. COMPENSATION
4.1 LICENSE FEE. Customer will pay SELECTICA the Software License Fee
specified in Exhibit B.
4.2 MAINTENANCE FEE. Customer agrees to pay SELECTICA the Annual
Maintenance Fee in the amount and in accordance with the terms of Exhibit B for
maintenance services for the first twelve (12) month period commencing on the
Effective Date. Customer may renew the maintenance services described in Exhibit
C thereafter on an annual basis by payment of the maintenance fee before the
beginning of each new twelve (12) month period. Customer may terminate
Maintenance
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upon thirty (30) days notice to SELECTICA. Upon termination, SELECTICA shall
refund a pro-rata portion of unpaid Maintenance Fees, if any. SELECTICA reserves
the right to charge Customer a reinstatement fee to resume such maintenance
services if Customer has not continuously maintained such services in effect in
accordance with the terms of this Section 4.2.
4.3 PAYMENT. All fees, charges and other sums payable to SELECTICA under
this Agreement will be due and payable on the dates specified in Exhibit B, or
within thirty (30) days after invoice received date if no date is specified in
Exhibit B. All monetary amounts are specified and shall be paid in the lawful
currency of the United States of America. Customer shall pay all amounts due
under this Agreement to SELECTICA at the address set forth herein or such other
location as SELECTICA designates in writing. All fees, charges and other sums
payable to SELECTICA under this Agreement do not include any sales, use, excise
or other applicable taxes, tariffs or duties (excluding any applicable federal
and state taxes based on SELECTICA's net income).
4.4 FUTURE PRODUCTS. SELECTICA agrees to provide Customer, upon Customer's
written request, any unspecified future products released by SELECTICA,
including any beta versions of unspecified future products, for a period of
eighteen months from the date of this Agreement. For the period beginning with
the nineteenth month from the date of the Agreement through the sixtieth month
from the date of this Agreement, GEMS shall receive a discount of list price
equal to the current discount for future purchases.
5. TERM AND TERMINATION
5.1 TERM. The term of this Agreement and the license set forth in Section
2.2 shall commence on the Effective Date and shall end upon the termination of
this Agreement pursuant to Section 5.2 or 5.3.
5.2 TERMINATION BY SELECTICA. If Customer defaults in the performance of
or compliance with any of its obligations under this Agreement, and such default
has not been remedied or cured within thirty (30) days after SELECTICA gives
Customer written notice specifying the default (or immediately in the case of a
breach of Section 2), SELECTICA may terminate this Agreement and any licenses.
Termination is not an exclusive remedy and all other remedies will be available
whether or not termination occurs.
5.3 TERMINATION BY CUSTOMER. If SELECTICA defaults in the performance of
or compliance with any of its obligations under this Agreement, and such default
has not been remedied or cured within thirty (30) days after Customer gives
SELECTICA written notice specifying the default, Customer may terminate this
Agreement. Termination is not an exclusive remedy and all other remedies will be
available whether or not termination occurs. Such termination shall not relieve
Customer of any of its outstanding financial obligations to SELECTICA.
5.4 SURVIVAL. Sections 2.3-2.6, 4, 5.4, 6, 8, 9 and 10 shall survive the
termination of this Agreement. The license granted under Section 2.2 shall
survive termination of this Agreement, provided that Selectica may terminate
such license immediately and Customer shall promptly cease the use of the
Software and Documentation and destroy (and in writing certify such destruction)
or return to SELECTICA all copies of the Software and Documentation then in
Customer's possession or control upon a breach of Sections 2.3 or 4.1.
6. CONFIDENTIALITY
6.1 Both parties acknowledge that, in the course of performing this
Agreement, they may obtain information relating to products (such as goods,
services, and software) of the other party, or relating to the parties
themselves, which is of a confidential and proprietary nature ("Confidential
Information"). Confidential Information includes, Deliverables and all
communications concerning Selectica's or Customer's business and marketing
strategies including but not limited to employee and customer lists, customer
profiles, project plans, design documents, product strategies and pricing data,
research, advertising plans, leads and sources of supply, development
activities, design and coding, interfaces with Selectica software, anything
provided by Selectica in connection its support or warranty obligations under
this Agreement, including, without limitation, computer programs, technical
drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether
patentable or not), schematics and other technical plans and other information
of the parties which by its nature can be reasonably expected to be proprietary
and confidential, whether it is presented in oral, printed, written, graphic or
photographic or other tangible form (including information received, stored or
transmitted electronically) even though specific designation as Confidential
Information has not been made.
6.2 The parties (including subcontractors) shall at all times, both during
the term of this Agreement and thereafter keep in trust and confidence all
Confidential Information of the other party and shall not use such Confidential
Information other than as necessary to carry out its duties under this
Agreement, nor shall either party disclose any such Confidential Information to
third parties, excluding subcontractors with a need to know and who have signed
comparable non-disclosure agreements to protect the other party's Confidential
Information, without the other party's prior written consent.
6.3 The obligations of confidentiality shall not apply to information
which (a) has entered the public domain except where such entry is the result of
a party's breach of this Agreement; (b) prior to disclosure hereunder was
already in the receiving party's possession without restriction; (c) subsequent
to disclosure hereunder is obtained by the receiving party on a non-confidential
basis from a third party who has the right to disclose such information; or (d)
was developed by the receiving party without use of the Confidential
Information.
6.4 Neither party shall disclose, advertise, or publish the terms and
conditions of this Agreement without the prior written consent of the other
party except that Selectica may disclose the terms of this Agreement to 1)
potential acquirers pursuant to the terms of a non-disclosure or confidentiality
agreement, 2) potential investors and 3) as required by law or court order.
6.5 Neither party grants the other party any rights to use its trademarks,
service marks, or other proprietary symbols or designations.
7. WARRANTIES AND REMEDIES
7.1 PERFORMANCE WARRANTY AND REMEDY. SELECTICA warrants to Customer that
when operated in accordance with the Documentation and other instructions
provided by SELECTICA, the Software will perform substantially in accordance
with the functional specifications set forth in the Documentation for a period
of one hundred and eighty (180) days after delivery of the Software to the
Customer. If the Software fails to comply with the warranty set forth in this
Section 7.1, SELECTICA will use reasonable commercial efforts to correct the
noncompliance provided that: Customer notifies SELECTICA of the noncompliance
within (90) ninety days after delivery of the Software to the Customer, and
SELECTICA is able to reproduce the noncompliance as communicated by Customer to
SELECTICA. If after the expenditure of reasonable efforts, SELECTICA is unable
to correct any such noncompliance, SELECTICA shall refund to Customer all or an
equitable portion of the license fee paid by Customer to SELECTICA for such
Software in full satisfaction of Customer's claims relating to such
noncompliance upon Customer's return of said Software. ANY LIABILITY OF
SELECTICA WITH RESPECT TO THE PRODUCT OR PERFORMANCE THEREOF UNDER ANY WARRANTY,
NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO
PRODUCT REPLACEMENT OR, IF PRODUCT REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN
SELECTICA'S OPINION, IMPRACTICAL, TO A REFUND OF THE LICENSE FEE.
7.2 WARRANTY LIMITATIONS. The warranties set forth in Section 7.1 apply
only to the latest release of the Software made available by SELECTICA to
Customer. Such warranties do not apply to any noncompliance of the software
resulting from misuse, casualty loss, use or combination of the Software with
any products, goods, services or other items furnished by anyone other than
SELECTICA, any
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SELECTICA, INC
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modification not made by or for SELECTICA, or any use of the Software by
Customer in contradiction of the terms of this Agreement.
7.3 DATE COMPLIANCE. Licensor represent and warrants that all Software
(including, without limitation, hardware, firmware or any systems consisting of
one or more thereof, and any and all enhancements, upgrades, customizations,
modifications, maintenance and the like) deliverable by Licensor hereunder will
operate such that neither the performance nor the functionality of the Software
will be affected by any changes to the date format as defined below:
i) Date compliance shall mean that no value for current date will
cause any interruption in the operation of the Software.
ii) All manipulations of time-related data will produce the desired
results for all valid dates within the application domain and in
combination with other products.
iii) Date elements in interfaces and data storage will permit
specifying the century to eliminate date ambiguity without human
intervention including Leap Year calculations.
iv) Where any date element is represented without a century, the
correct century shall be unambiguous for all manipulations involving
that element.
7.4 LOCKOUTS. Licensor warrants and represents that no "lockout" or
disabling code or devices are incorporated or present within the Software at the
time the Software is licensed by Licensor to GEMS. In no event will Licensor
remove, alter, change or interfere with the Software for purposes of preventing
GEMS or its End Uses from using the Software as the result of any dispute under
this Agreement. Licensor will not, prior to such licensing or thereafter during
the term of this license or any license for an upgraded or modified version of
the Software, modify the Software to restrict its use by GEMS or its End Users
to, without limitation, particular CPUs, required passwords, periods of time, or
other restrictions, without the prior written consent of GEMS.
7.5 COMPLIANCE. Licensor warrants and represents that it shall comply with
all applicable laws and regulations in furnishing the Software. These laws shall
include, without limitation, U.S. and foreign labor laws, employment opportunity
laws, environmental laws and product safety laws. See the "Governmental
Compliance" section of GEMS' Standard Terms and Conditions, attached hereto as
Attachment F. Licensor shall maintain at its expense any required UL, IEC, CE
and CSA or equivalent listings acceptable to GEMS for all Software.
8. INDEMNIFICATION
SELECTICA agrees to hold Customer harmless from liability to third parties
resulting from infringement of any United States patent or copyright or trade
secret by the Software as used within the scope of this Agreement, and to pay
all damages and costs, including reasonable legal fees, which may be assessed
against Customer under any such claim or action. SELECTICA shall be released
from the foregoing obligation unless Customer provides SELECTICA with (i)
written notice within fifteen (15) days of the date Customer first becomes aware
of such a claim or action, or possibility thereof; (ii) sole control and
authority over the defense or settlement thereof; and (iii) proper and full
information and assistance to settle and/or defend any such claim or action.
Without limiting the foregoing, if a final injunction is, or SELECTICA believes,
in its sole discretion, is likely to be, entered prohibiting the use of the
Software by Customer as contemplated herein, SELECTICA will, at its sole option
and expense, either (a) procure for Customer the right to use the infringing
Software as provided herein or (b) replace the infringing Software with
noninfringing, functionally equivalent products, or (c) suitably modify the
infringing Software so that it is not infringing; or (d) in the event (a), (b)
and (c) are not commercially reasonable, terminate the license, accept return of
the infringing Software and refund to Customer an equitable portion of the
license fee paid therefor. Except as specified above, SELECTICA will not be
liable for any costs or expenses incurred without its prior written
authorization. Notwithstanding the foregoing, SELECTICA assumes no liability for
infringement claims with respect to Software (i) not supplied by SELECTICA, (ii)
made in whole or in part in accordance to Customer's specifications, (iii) that
is modified after delivery by SELECTICA, (iv) combined with other products,
processes or materials where the alleged infringement relates to such
combination, (v) where Customer continues allegedly infringing activity after
being notified thereof or after being informed of modifications that would have
avoided the alleged infringement, or (vi) where Customer's use of the Software
is not strictly in accordance with this Agreement. THE FOREGOING PROVISIONS OF
THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF SELECTICA AND THE
EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT
OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY
RIGHT BY THE SOFTWARE.
9. DISCLAIMER WARRANTY AND LIMITATION OF LIABILITY
9.1 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 7.1,
SELECTICA MAKES NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING
OR RELATING TO THE SOFTWARE OR THE DOCUMENTATION OR ANY MATERIALS OR SERVICES
FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. SELECTICA SPECIFICALLY
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSES, AND SATISFACTORY QUALITY WITH RESPECT TO THE SOFTWARE, DOCUMENTATION
AND ANY OTHER MATERIALS AND SERVICES PROVIDED BY SELECTICA HEREUNDER, AND WITH
RESPECT TO THE USE OF THE FOREGOING. FURTHER, SELECTICA DOES NOT WARRANT RESULTS
OF USE OR THAT THE SOFTWARE IS BUG FREE OR THAT THE CUSTOMER'S USE WILL BE
UNINTERRUPTED.
9.2 LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN SECTION 8, IN NO EVENT
WILL SELECTICA BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS
INTERRUPTION, LOSS OF DATA, COST TO RECOVER, OR FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING
OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE, DOCUMENTATION OR ANY
MATERIALS OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF
CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF SELECTICA HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, SELECTICA WILL NOT BE
LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN THE DELIVERY OR FURNISHING OF THE
SOFTWARE, DOCUMENTATION, OR OTHER MATERIALS OR SERVICES. SELECTICA's LIABILITY
UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE AMOUNTS PAID
BY THE CUSTOMER TO SELECTICA UNDER THIS AGREEMENT FOR THE ITEMS GIVING RISE TO
SUCH LIABILITY.
10. MISCELLANEOUS
10.1 NONDISCLOSURE OF AGREEMENT. Neither party shall not disclose the terms
of this Agreement or the ongoing business relationship initiated by this
Agreement except as required by law or governmental regulation without the other
party's prior written consent, except that either party may disclose the terms
of this Agreement on a confidential basis to accountants, attorneys, parent
organizations and financial advisors and lenders.
10.2 MARKETING AND SUPPORT. Customer agrees to provide the following
marketing support to Selectica: (i) adopt the Company's configuration, pricing
and quoting products as global standards within GEMS, (ii) use best efforts to
secure the company on General Electric's list of Global IT recommended vendors,
(iii) joint press release approved by both parties announcing vendor selection
upon contract execution, (iv) participate in the Company's case study sponsored
by Gartner (or other analyst firm), and (v) Participate in two vendor marketing
and promotional sessions to be scheduled during the second calendar quarter of
2003 and the fourth calendar quarter of 2003.
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SELECTICA, INC
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10.3 NOTICES. Any notice or other communication under this Agreement given
by either party to the other will be deemed to be properly given if given in
writing and delivered in person or facsimile, if acknowledged received by return
facsimile or followed within one day by a delivered or mailed copy of such
notice, or if mailed, properly addressed and stamped with the required postage,
to the intended recipient at its address specified in this Agreement. Either
party may from time to time change its address for notices under this Section by
giving the other party notice of the change in accordance with this Section
10.3.
10.4 ASSIGNMENT. This Agreement is personal to the parties and shall not be
assignable by either party without the prior written consent of the other party.
Notwithstanding the foregoing, either party may assign its rights and
obligations under this Agreement without Licensor's consent: (i) to an
Affiliate; or (ii) incident to the transfer of all or substantially all of its
business. Subject to the foregoing, this Agreement is binding upon, inures to
the benefit of and is enforceable by the parties and their respective successors
and assigns.
10.5 NONWAIVER. Any failure of either party to insist upon or enforce
performance by the other party of any of the provisions of this Agreement or to
exercise any rights or remedies under this Agreement will not be interpreted or
construed as a waiver or relinquishment of such party's right to assert or rely
upon such provision, right or remedy in that or any other instance.
10.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement, and
supersedes any and all prior agreements, between SELECTICA and Customer relating
to the Software, Documentation, services and other items subject to this
Agreement. No amendment of this Agreement will be valid unless set forth in a
written instrument signed by both parties.
10.7 GOVERNING LAW. The parties expressly acknowledge that the laws of the
state of New York, except its conflict of law rules, will govern this Agreement
and any Dispute hereunder.
10.8 Arbitration.
(a) Any dispute or claim arising out of or in connection with this
Agreement or the performance, breach, or termination thereof (a "Dispute"),
including claims seeking redress or asserting rights under applicable law, shall
be resolved in accordance with the procedures set forth herein. Until completion
of such procedures, no party may take any action not contemplated herein to
force a resolution of the Dispute by any judicial or similar process, except to
the limited extent necessary to; (i) avoid expiration of a claim that might
eventually be permitted hereby; or (ii) obtain interim relief to obtain interim
relief for protection of intellectual property rights, including injunctive
relief, to preserve the status quo or prevent irreparable harm.
(b) In connection with any Dispute, the parties expressly waive and
forego any right to trial by jury, punitive, exemplary, statutorily enhanced or
similar damages in excess of compensatory damages.
(c) Any Dispute will be resolved first through good faith
negotiations between the agreement managers, or as necessary the team leader of
GEMS and the executive of Licensor having responsibility for the sale or use of
the Software involved.
(d) If within sixty (60) calendar days the parties are unable to
resolve the Dispute through good faith negotiation, either party may submit such
Dispute for resolution by mediation pursuant to the Center for Public Resources
Model Procedure for Mediation of Business Disputes as then in effect. The
mediation shall be conducted in New York City. Mediation will continue for at
least thirty (30) calendar days unless the mediator chooses to withdraw sooner.
At the request of either party, the mediator will be asked to provide an
evaluation of the Dispute and the parties' relative positions. Each party shall
bear its own costs of mediation effort.
(e) After completion of any mediation effort, a party may submit the
Dispute for resolution by arbitration pursuant to the Non-Administered
Arbitration Rules of the Center for Public Resources as in effect on the
Effective Date, unless the parties agree to adopt such rules as in effect at the
time of the arbitration. The arbitral tribunal shall be composed of one
arbitrator having experience in enterprise software; and the arbitration shall
be conducted in New York City. If the answer to the Dispute is not found within
the terms of this Agreement, the arbitrator shall determine the Dispute in
accordance with the governing law of this Agreement, without giving effect to
any conflict of law rules or other rules that might render such law inapplicable
or unavailable. The prevailing party in any arbitration conducted under this
Section 10.8 shall be entitled to recover from the other party (as part of the
arbitral award or order) its reasonable attorneys' fees and other costs of
arbitration.
(f) The law applicable to the validity of this arbitration provision,
the conduct of the arbitration, the challenge to or enforcement of any arbitral
award or order or any other question of arbitration law or procedure shall be
governed exclusively by the Federal Arbitration Act, 9 U.S.C. sections 1-16;
however, the award can be modified or vacated on grounds cited in the Federal
Arbitration Act or if the arbitrator's findings of facts are not supported by
substantial evidence or the conclusions of law are erroneous under the laws of
the State of New York. The parties agree that the federal and state courts
located in the State of New York shall have exclusive jurisdiction over any
action brought to enforce this arbitration provision, and each party irrevocably
submits to the jurisdiction of said courts. Notwithstanding the foregoing
sentence, either party may apply to any court of competent jurisdiction,
wherever situated, for enforcement of any judgment on an arbitral award.
(g) Each party hereby consents to a single, consolidated arbitration
proceeding of multiple claims, or claims involving more than two parties. The
prevailing party or parties in any arbitration conducted under this paragraph
shall be entitled to recover from the other party or parties (as part of the
arbitral award or order) its or their reasonable attorneys' fees and other
reasonable costs of arbitration.
10.9 LANGUAGE. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof in any
other language shall not be binding to the parties hereto. All communications
and notices to be made or given pursuant to this Agreement shall be in the
English language.
10.10 APPLICABILITY OF PROVISIONS LIMITING SELECTICA'S LIABILITY. The
provisions of this Agreement under which the liability of SELECTICA is excluded
or limited, shall not apply to the extent that such exclusions or limitations
are declared illegal or void under any applicable laws, unless the illegality or
invalidity is cured under such laws by the fact that the law of California
governs this Agreement.
10.11 FORCE MAJEURE. Neither party will be liable for, or be considered
to be in breach of or default under this Agreement, other than monetary
obligations, as a result of any cause or condition beyond such party's
reasonable control.
10.12 ACCEPTANCE. The Software shall be accepted upon receipt by
Customer.
10.13 RELATIONSHIP OF THE PARTIES. The relationship of the parties
hereunder shall be that of independent contractors. Nothing in this Agreement
shall be deemed to create a partnership, joint venture or similar relationship
between the parties, and no party shall be deemed to be the agent of the other
party.
11. SOURCE CODE ESCROW
Promptly after execution of this Agreement, SELECTICA will place in escrow
(pursuant to the terms of an Escrow Agreement) a copy of all source code and
related documentation as well as any other documentation, manuals, tools, or
other materials used by SELECTICA in the development, maintenance or support of
such Software ("Maintenance Materials") as they exist at the date of this
Agreement. If SELECTICA has ceased to do business in the normal course (the
"Conditions") and Customer has paid for all applicable source code escrow fees,
then Customer shall be entitled to receive from SELECTICA a copy of the
Maintenance Materials'. Upon the release of the Maintenance Materials to
Customer pursuant to this section, Customer shall have a nonexclusive,
non-sublicenseable license to use the foregoing to and only to support and
maintain such Software. Customer covenants that it will exercise such license
only for so long as
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SELECTICA, INC
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the Condition occurs and continues and that any violation of this covenant will
be a material breach of this Agreement. With respect to anything licensed to
SELECTICA from a third party, the foregoing right and licenses and SELECTICA's
obligation to provide or escrow Maintenance Materials are subject to the terms
and restrictions of SELECTICA's agreement with such third party and the payment
by Customer of any amounts that would not otherwise be due on account of this
Agreement. SELECTICA will update the escrow with any new or modified Maintenance
Materials at least annually.
In Witness whereof, the parties have executed this Agreement by their duly
authorized representatives.
SELECTICA, INC.
("SELECTICA")
/s/ David S. Batt
By: ___________________________________________________
David S. Batt
Name: _________________________________________________
Executive Vice President
Title: ________________________________________________
6/28/2002
Date: _________________________________________________
Address: 3 West Plumeria Drive
San Jose, CA 95134
Telephone #: (408) 570-9700
Facsimile #: (408) 570-9705
_______________________________________________________
("Customer")
/s/ Mitchell J. Habib
By: ___________________________________________________
Mitchell J. Habib
Name: _________________________________________________
e Business GM
Title: ________________________________________________
6/28/2002
Date: _________________________________________________
Address: ______________________________________________
______________________________________________
______________________________________________
Telephone #: __________________________________________
Facsimile #: __________________________________________
/s/ Laura G. King
By: __________________________________________________
Laura G. King
Name: _________________________________________________
GM Sourcing
Title: ________________________________________________
6/28/2002
Date: _________________________________________________
Address: ______________________________________________
______________________________________________
______________________________________________
Telephone #: __________________________________________
Facsimile #: __________________________________________
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EXHIBIT A
DESCRIPTION OF SOFTWARE AND DOCUMENTATION
----------------------------------------------------------------------
Licensed Product Licensed Users/Seats
----------------------------------------------------------------------
ACE Enterprise Professional Edition Unlimited
----------------------------------------------------------------------
ACE Studio 500
----------------------------------------------------------------------
ACE Application Data Manager Unlimited
----------------------------------------------------------------------
ACE Mobile Professional Edition 7500
----------------------------------------------------------------------
ACE Pricer Unlimited
----------------------------------------------------------------------
ACE Enterprise Data Extractor for Oracle Unlimited
(tool for converting bill of materials
into The Company knowledgebase)
----------------------------------------------------------------------
ACE Connectors to Crossworld, MatrixOne Unlimited
and Oracle
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Major Account License Agreement
SELECTICA, INC
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EXHIBIT B
LICENSE AND MAINTENANCE FEES
1. License Fee.
License Fee for initial Licensed Products $ 12,000,000
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Licensed Product Licensed Users/Seats Additional Users/Seats
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ACE Enterprise Professional Edition Unlimited N/A
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ACE Studio 500 $150 per seat
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ACE Application Data Manager Unlimited N/A
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ACE Mobile Professional Edition 7500 $40 per user
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ACE Pricer Unlimited N/A
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ACE Enterprise Data Extractor for Oracle Unlimited N/A
(tool for converting bill of materials
into The Company knowledgebase)
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ACE Connectors to Crossworld, MatrixOne Unlimited N/A
and Oracle
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2. Maintenance Fee.
First Year Maintenance : $ 1,800,000
Annual Maintenance Fee: $ 1,800,000
3. Payment Schedule for License Fees and First Year Maintenance
Payments shall be made for License Fees and First Year Maintenance
according to the following schedule. Payments that are dependent on "Acceptance
of Deliverable" are references to the Professional Services Agreement between
the party of June 28, 2002 (the "Services Agreement"), and the accompanying
Statement of Work (the "Statement of Work") attached to the Services Agreement.
The lack of Acceptance for any Deliverable pursuant to the criteria set
forth in the Statement of Work shall not relieve Customer of its obligation to
pay the License Fees required by that Milestone if such Acceptance was due to
Customer's termination of this Agreement or the Services Agreement or Customer's
failure to provide information or assistance necessary for Selectica to complete
any of the Deliverables that Customer was required to provide in the Statement
of Work. In such circumstances, Customer would be obligated for License Fees
associated with that Milestone and compensation for services rendered for such
Milestone on a time and materials basis.
Major Account License Agreement
SELECTICA, INC
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PAYMENT DATE AMOUNT OF PAYMENT
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MILESTONE 1 $ 2,760,000
(CONTRACT EXECUTION)
JULY 1, 2002
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ACCEPTANCE OF DELIVERABLE AT MILESTONE 2 $ 2,760,000
(ESTIMATED OCTOBER 1, 2002)
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ACCEPTANCE OF DELIVERABLE AT MILESTONE 3 $ 2,760,000
(ESTIMATED JANUARY 1, 2003)
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ACCEPTANCE OF DELIVERABLE AT MILESTONE 4 $ 2,760,000
(ESTIMATED APRIL 1, 2003)
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ACCEPTANCE OF FINAL DELIVERABLE $ 2,760,000
(ESTIMATED JULY 1, 2003, UPON COMPLETION)
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TOTAL $13,800,000
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Major Account License Agreement
SELECTICA, INC
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EXHIBIT C
MAINTENANCE TERMS AND CONDITIONS
The following sets forth the terms and conditions of the maintenance services
offered to Customer. Capitalized terms not defined in this Attachment have the
same meaning as in this Agreement.
1. DEFINITIONS.
- "Error" means an error in the Software which significantly
degrades such Software as compared to Selectica's published
performance specifications.
- "Error Correction" means the use of reasonable commercial
efforts to correct Errors.
- "Fix" means the repair or replacement of object or executable
code versions of the Software to remedy an Error.
- "Support Services" means Selectica's support services as
described in Section 2.
- "Update" means a release of a Software Product which consists
of minor corrections, bug fixes and enhancements without
substantial added functionality or features and which is
denoted by any change to the numbers to the right of the first
decimal point (e.g., a change from 2.0 to 2.1 or from 2.1.1 to
2.1.2).
- "Upgrade" means a release of a Software Product which consists
of a new version with substantial enhancements, added
functionality or new features and which is denoted by a change
to the number to the left of the first decimal point (e.g., a
change from 2.x to 3.x).
- "Workaround" means a change in the procedures followed or data
supplied by Customer to avoid an Error without substantially
impairing Customer's use of the Software.
- "Regular Hours" means 8:30AM to 5:00PM Central Time on
Selectica's regular business days.
2. SCOPE OF SUPPORT SERVICES. Subject to Section 4 of this Attachment,
Selectica shall use reasonable commercial efforts to provide the
following services for the Software:
- Technical Communication. Maintain a center capable of
receiving information from Customer by telephone, electronic
mail, fax or postal mail for support of the Software. Live
communication with Selectica personnel is limited to Regular
Hours. Outside of such regular hours, Selectica shall have an
automated answering service to take messages, such messages
shall be reviewed by Selectica technical personnel at the
beginning of the next business day. In case of the Select
Advantage support program, technical communication will be
provided beyond regular business hours via pager support.
- Maintenance Release. From time to time, provide Updates and
Upgrades of the Software to Customer (free of charge) that
Selectica makes generally available. All such Updates and
Upgrades and shall be subject to the terms and conditions of
the Agreement.
- Modifications of Software. Selectica shall accommodate
requests for modifications, however, Selectica is under no
obligation to incorporate those requests from Customer in
future releases of the Software.
- Error Correction. Selectica shall exercise commercially
reasonable efforts to correct any Error reported by Customer
in the current unmodified release of Software
Major Account License Agreement
SELECTICA, INC
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3. CUSTOMER RESPONSIBILITIES. Customer is responsible for isolating the
problem, for eliminating other factors as potential causes of the
problem and for providing sufficient information, data and test cases
to allow Selectica to readily reproduce all reported Errors. If
Selectica believes that a problem reported by Customer may not be due
to an Error in Software, Selectica will so notify Customer.
4. EXCLUSIONS. Selectica shall have no obligation to support: (i) altered
or damaged Software or any portion of Software incorporated with or
into other software; (ii) Software that is not the then current release
or immediately Previous Sequential Release which is aged six (6) months
or more since the issuance of the successive release; (iii) Software
problems caused by Customer's negligence, abuse or misapplication, use
of Software other than as specified in Selectica user manual or other
causes beyond the control of Selectica; or (iv) Software installed on
any hardware that is not supported by Selectica. Selectica shall have
no liability for any changes in Customer's hardware, which may be
necessary to use Software due to a Workaround or maintenance release.
5. DISCLAIMER OF WARRANTY. THESE TERMS AND CONDITIONS DEFINE A SERVICE
ARRANGEMENT AND NOT A SOFTWARE WARRANTY. ALL LICENSED PRODUCTS AND
MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET
FORTH IN THIS AGREEMENT. THESE TERMS AND CONDITIONS DO NOT CHANGE OR
SUPERSEDE ANY TERM OF ANY SUCH AGREEMENT.
Major Account License Agreement
SELECTICA, INC
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Exhibit D
Training
Upon execution of Selectica's training documentation, Customer shall receive
training for its employees, as determined by Customer. Customer agrees to pay
any instructor travel and living expenses subject to the policies set forth
belowThe time and location of the training will be agreed to by Customer and
SELECTICA.
The cost for participating in Selectica's training program is: $_____________.
(i) Airline Travel: Actual costs of the fare shall be charged. Coach
fare shall be used within the constraints of project timelines and the
requests of GEMS. No first class travel shall be used unless explicitly
requested by GEMS. Cost of ground transportation, parking, etc. for
airline travel is charged at actual incurred cost including any
reasonable gratuities. Contractor shall schedule airline travel
fourteen (14) days in advance, unless otherwise specified in the
Schedule.
(ii) Auto Expenses: The current IRS mileage standard per mile shall be
charged plus any tolls. If the parties agree to arrange for a rental
car as specified in the Schedule, actual costs shall be charged.
(iii) Lodging: Standard, single room rates shall be charged, not to
exceed the GEMS negotiated rate per day unless otherwise authorized by
GEMS.
(iv) Meals and incidentals: Actual out-of-pocket expenses shall be
charged including any reasonable gratuities. Daily meals shall not
exceed $30 per day unless otherwise authorized by GEMS.
Major Account License Agreement
SELECTICA, INC