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CATIA V5 GALAXY PROGRAM
SOLUTION PROVIDER AGREEMENT
EXHIBIT 10.9
CATIA V5 GALAXY PROGRAM
SOLUTION PROVIDER AGREEMENT
This Agreement is made by and between :
DASSAULT SYSTEMES,
a corporation organized and existing under the laws of France, having its
registered office at 9 quai Marcel Dassault, 92150 Suresnes, France, hereinafter
"DS",
on the one hand,
and,
PLANETCAD INC.,
a corporation organized and existing under the laws of Delaware, USA, having its
registered office at 2520 55th Street, Suite 200, Boulder, Colorado 80 301, USA,
hereinafter "Solution Provider",
on the other hand,
WHEREAS
DS is a software editor that develops or has developed, and distributes,
directly or indirectly, an advanced software development environment, designated
CAA Version 5 Architecture or CAA V5 Architecture, which includes innovative
development architecture and sophisticated development tools. As of today, this
environment allows to develop software application programs in the fields of
CAD/CAM/CAE (Computer Aided Design/Computer Aided Manufacture/Computer Aided
Engineering), PDM (Product Data Management), Digital Manufacturing, product and
process Data Modeling or Network Computing. DS and its affiliates have developed
and will continue to develop software application programs based on the CAA
Version 5 Architecture.
PlanetCAD is a software specialist, editor of software in the field of
engineering design quality. PlanetCAD wishes to develop and distribute
application software based on the CAA Version 5 Architecture, fully integrated
with and complementary to CATIA V5 current and future Products.
DS wishes to encourage software specialists to develop and distribute software
application programs based on the CAA Version 5 Architecture, integrated with
and complementary to CATIA V5 current and future Products. To that effect, DS
has set forth the "CATIA V5 Galaxy Program" available to those software
specialists that meet specific conditions and criteria. The participants to this
Program are then entitled to:
- Develop, maintain and distribute software applications under their own
brand, which, as a prerequisite, need certain CATIA V5 Products to
operate.
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- Benefit from various levels of technical and marketing support at
preferred conditions.
PlanetCAD wishes to enter into the CATIA V5 Galaxy Program as Partner and
qualify as "solution provider" in the Program.
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereto agree as follows.
1. DEFINITIONS
AGREEMENT shall designate this agreement including all PID(s), RFL(s) and
other Purchase Order(s) duly accepted by DS, as well as other
exhibit(s), amendment(s) and supplement(s) thereto.
APPLICATION PROGRAM OR AP shall designate the stand-alone software application
program to be developed by Solution Provider on the basis of
the CAA V5 Architecture and that pre-requests certain CATIA V5
Product(s).
APPLICATION PROGRAMMING INTERFACE(S) OR API(S) shall designate those CAA V5
Products consisting in Source Code that are necessary to
interface or make operable any AP(s) with certain CATIA V5
Product(s).
CAA V5 PRODUCT(S) shall designate all software programs and/or API(s) and/or
software development tool(s) and/or associated
Documentation(s) thereto, owned by or licensed to DS or its
affiliates, developed and distributed by and/or for DS or its
affiliates, which allow the development of application
programs and constitute together the CAA Version 5
Architecture.
CATIA V5 GALAXY PROGRAM OR GALAXY PROGRAM shall designate the program of
cooperation and assistance established by DS to support the
development and marketing by selected software specialists of
application programs based on the CAA V5 Architecture and
complementary to CATIA V5 Products.
CATIA V5 PRODUCT(S) shall designate application software products owned by or
licensed to DS, developed and distributed by and/or for DS
under the CATIA registered trademark or any other DS Group
owned trademark.
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COMPETITOR shall designate any corporation, company or other legal entity
involved directly or indirectly in the business of
manufacturing, developing, marketing and/or distributing
CAD/CAM/CAE (Computer Aided Design/Computer Aided
Manufacture/Computer Aided Engineering), PDM (Product Data
Management), Digital Manufacturing, Data Modeling or Network
Computing products and/or services of the kind manufactured,
developed, marketed and/or distributed by the DS Group, in the
countries where the DS Group does business during the Term of
this Agreement, directly or indirectly, even if these
activities are only part of the activities of said
corporation, company or legal entity.
CONFIDENTIAL NON-DISCLOSURE AGREEMENT OR "CNDA" shall designate the agreement
defined in Section 12 below.
DESIGNATED MACHINE shall designate the central processing unit
or workstation identified in an RFL by (i) machine
identification number, (ii) type and serial number; (iii)
installation address; and (iv) if applicable, named Users.
DOCUMENTATION shall designate user documentation in any form or media as
provided by DS to Solution Provider for use in connection with
the Licensed Product(s) to which it is associated.
DS GROUP shall designate DS and its affiliates, i.e. any legal entity of which
more than fifty per cent (50%) of its ownership interest is
owned or controlled, directly or indirectly by DS.
DS GROUP PRODUCT(S) shall designate any computer software product authored or
developed by or for or licensed to the DS Group, whether
current or future and whatever the trademarks they are sold
under, including without limitation the CAA V5 and CATIA V5
Product(s), as well as the ENOVIA and DELMIA product lines.
EFFECTIVE DATE shall designate November 14, 2000, which is the date when this
Agreement comes into force.
EFFECTIVE DATE shall designate the date of coming into force of any contractual
document (PID, amendment to PID, RFL, Purchase Order etc.) and
is the date of the last signature by both parties.
GENERAL AVAILABILITY OR "GA" shall designate the placing on the market of any
given computer program or new release thereto, by way of a
public announcement as well as insertion in a public catalogue
of products.
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INTEGRATION shall designate a self contained, stand alone, computer software
program as opposed to an interface, pre-requesting only
certain CATIA V5 Products but no other computer software
programs of Solution Provider.
INTERFACE shall designate a computer software program making the bridge among
two existing software programs as opposed to an integration.
LICENSED PRODUCT(S) shall designate (i) the run time of those CAA V5 Product(s)
other than API(s), and/or (ii) the run time of those CATIA V5
Product(s), and/or (iii) the build time of those API(s), as
identified in RFL(s) duly accepted by DS.
NON-GA PROGRAMS shall designate certain CAA V5 and/or CATIA V5 Products that
have not been made generally available to the market by DS by
way of a public announcement and insertion in DS's public
catalogue of computer programs.
OBJECT CODE shall designate computer-programming code, substantially or entirely
in binary form, which is directly executable by a computer
after suitable processing, but without the intervening steps
of assembly, compilation or link-edit.
PARTNERS' PRICE LIST shall designate the document attached hereto as Exhibit D
which specifies DS financial conditions for granting licenses
and/or services to partners under the CATIA V5 Galaxy Program.
DS may amend its Partners' Price List at anytime during this
Agreement.
PRELIMINARY PROJECT DESCRIPTION OR "PPD" shall designate the preliminary
description of any software program which Solution Provider
contemplates developing under this Agreement, as defined in
Section 9.1.1.
PROJECT INFORMATION DESCRIPTION OR "PID" shall designate the document to be
agreed upon and signed by the parties before the development
of any AP, as defined in Section 4.1. There will be one PID
per Application Program.
PURCHASE ORDER shall designate the document to be duly completed by Solution
Provider to order products and/or services under this
Agreement.
QUARTERLY REPORT shall designate the written report defined in Section 6.3.3.
REQUEST FOR LICENSE OR "RFL" shall designate the document defined in Section
4.1, to be duly completed by Solution Provider to order
licenses on CAA V5 and/or CATIA V5 Products under this
Agreement.
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SITE shall designate the site designated by Solution Provider in any RFL, as may
be changed by written notification to DS, through which
deliveries of Licensed Products and/or support services will
be provided by DS to Solution Provider.
SOURCE CODE shall designate computer programming code and related system
documentation, comments and procedural code, which is not
directly executable by a computer and may be printed out or
displayed in a form readable and understandable by a qualified
programmer.
TERM shall designate the term of this Agreement as defined in Section 21
hereafter.
TERMINATION DATE shall designate each of the dates of termination of this
Agreement and/or any given PID as defined in Section 21 as
well as each relevant sub-Section of Section 22.
TERMINATION NOTICE PERIOD shall designate the period of time, if any, between
the date of receipt of the notice of termination and the
Termination Date, as defined in Sections 21 and each relevant
sub-section of Section 22 below.
TERRITORY shall designate each of the following three geographical areas of the
world: Europe, Asia and the Americas. There are three
Territories: Europe, Asia and the Americas.
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2. SUBJECT MATTER OF THE AGREEMENT
2.1 PURPOSE OF THE AGREEMENT
DS appoints Solution Provider, and Solution Provider accepts such
appointment, as a solution provider in the CATIA V5 Galaxy Program, for
the development and marketing of Application Program(s) based on the
CAA V5 Architecture and for which certain CATIA V5 Product(s) will be a
prerequisite.
To qualify as solution provider under the CATIA V5 Galaxy Program,
Solution Provider expressly undertakes to comply, and maintain
compliance at all times during the Term of this Agreement, with the
specific conditions and criteria applicable to solution providers as
set forth in Section 3 below as possibly amended from time to time.
2.2 STRUCTURE OF THE AGREEMENT
This Agreement is a framework agreement which terms shall govern all
rights and licenses granted to and by the parties for any and all
Application Program(s) the development and distribution of which they
will agree upon.
This Agreement will govern both the initial phase of development of the
AP on the basis of the CAA V5 Architecture and the following phase of
its marketing and support by Solution Provider, for each Application
Program agreed upon in a duly executed PID.
3. CATIA V5 GALAXY PROGRAM
The CATIA V5 Galaxy Program provides software specialists with various
incentives to use the CAA V5 Architecture for the development of application
program(s) for which certain CATIA V5 Product(s) will be a prerequisite. Only
those software specialists that have evidenced their competence and expertise
and which anticipated developments of application software including any AP(s)
are in line with DS strategy may enter and remain into the CATIA V5 Galaxy
Program as Partner.
3.1 CONDITIONS & CRITERIA
To participate as solution provider in the CATIA V5 Galaxy Program,
Solution Provider must comply with the requirements and criteria set
forth below that relate to both the quality of its business and that of
its AP(s).
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3.1.1 CRITERIA RELATING TO SOLUTION PROVIDER'S BUSINESS
Upon the Effective Date of this Agreement, Solution Provider
declares that it complies and agrees during the Term of this
Agreement to maintain compliance with the following
requirements:
- Solution Provider is a software editor developing and
marketing software products;
- Solution Provider's vision and strategy is in line
with DS's vision and strategy as disclosed by DS from
time to time as set forth in Section 19 below;
- Solution Provider shall take the appropriate steps to
establish and maintain a strong cooperation
relationship with DS, in particular by participating
to a reasonable number of meetings organized by DS
and by keeping DS informed with the evolution of its
business and products;
- Solution Provider has a distribution network
appropriate for the efficient marketing, distribution
and support of its software products including any
AP(s) to be developed under this Agreement;
- Solution Provider cooperates with DS in good faith
and trust in both the conduct of its business and the
performance of this Agreement and its behavior is
compatible with sound business ethics.
3.1.2 CRITERIA RELATING TO SOLUTION PROVIDER'S AP(S)
Solution Provider declares upon the Effective Date of this
Agreement and undertakes that, at all times during the Term of
this Agreement, AP(s) to be developed under this Agreement
comply and will comply with the following requirements:
- Solution Provider's AP(s) pre-requests certain CATIA
V5 Product(s) identified in a duly executed PID;
- Solution Provider's AP(s) complements the then
existing DS and DS Group Products;
- Solution Provider's AP answers to then current market
needs;
- Solution Provider's AP is fully in line with DS's
strategy as disclosed by DS, including without
limitation, Solution Provider's AP implements DS's
process centric vision;
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- Solution Provider's AP is highly required by the
market as evidenced by requests from at least three
candidate customers for this AP(s) as well as by
market studies, if available, or any other means;
- Solution Provider's AP is an Integration, as opposed
to a mere Interface, of Solution Provider's software
product with the pre-requested CATIA V5 Product(s);
- Solution Provider's AP is best-in-class technology;
- Solution Provider continuously improves its AP(s), in
accordance with the specifications of the PID agreed
upon, in an effort to complement the process covered
by the DS Group Products to the benefit of customers;
- Any AP(s) must have successfully undergone the
certification process within one year from its first
General Availability. Subsequent releases of same AP
will have to have undergone certification process and
have been certified before their GA;
- Solution Provider's AP will be made available in
Solution Provider's catalogue(s) of software
products.
3.2 BENEFIT OF "DASSAULT SYSTEMES PARTNER" LOGOTYPE
Subject to its continuous compliance with the above listed conditions
and criteria as possibly amended from time to time, Solution Provider
will be authorized, as of the General Availability of its first AP
(first release), to use and display the "Dassault Systemes Partner"
logotype which is owned by DS, under the conditions set forth below.
DS grants to Solution Provider a worldwide limited right and license to
use and display the "Dassault Systemes Partner" logotype. This right
and license to use the "Dassault Systemes Partner" logotype is
revocable, non-exclusive, worldwide and free of charge. It is not
assignable and it cannot be sublicensed or otherwise transferred.
The current design and use instructions of the "Dassault Systemes
Partner" logotype are described in the Graphic Chart titled "DS
Partners Guide - Volume 5" a copy of which is attached hereto as
Exhibit A and has been provided to Solution Provider.
DS may at any time and at its discretion change the design of the
"Dassault Systemes Partner" logotype, its use instructions, and/or any
other provision of the Graphic Chart. DS will inform Solution Provider
of any such change with three (3) month notice prior to providing
Solution Provider with the amended Graphic Chart or amendment thereto
to be complied with within three (3) month from its receipt.
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Solution Provider must at all time during the Term of this Agreement
use and display the then current version of the "Dassault Systemes
Partner" logotype and comply with the Graphic Chart then in force.
For exclusive purposes of communicating, promoting and marketing the
AP(s) and only if an AP is clearly featured, Solution Provider is
authorized to reproduce the "Dassault Systemes Partner" logotype, on
the medias and according to the use instructions set forth in the
Graphic Chart then in force. No further right to use or display the
"Dassault Systemes Partner" logotype is hereby granted to Solution
Provider.
Solution Provider shall neither modify the "Dassault Systemes Partner"
logotype, nor use it when communicating on any products other than the
AP(s) and/or for purposes other than those expressly set forth above
without DS's prior written consent.
DS is entitled to review the content and quality of the use, display
and/or reproductions of the "Dassault Systemes Partner" logotype by
Solution Provider. DS is entitled to request that Solution Provider
provides it with a list and/or samples of all communication medias and
tools on which the "Dassault Systemes Partner" logotype is enclosed and
proceeds with any correction without delay promptly upon receipt of
DS's written notification, at Solution Provider's exclusive costs.
The authorization to use the "Dassault Systemes Partner" logotype does
not constitute or imply any specific endorsement by a party of the
other party products and/or services.
3.3 SANCTIONS FOR FAILURE TO COMPLY WITH CONDITIONS AND CRITERIA
If Solution Provider fails to comply with the above conditions and
criteria, DS is entitled, at its discretion, (i) to enjoin the loss of
the CAA V5 certification of any given AP, (ii) to terminate any given
AP and/or (iii) to terminate this Agreement, as set forth under Section
22.3 below.
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4. WORKING RELATIONSHIP
The parties shall perform their obligations under this Agreement in good faith
and in accordance with generally accepted practices within the industry.
Both parties agree to promptly bring to the other party's notice any information
received by it which is likely to be of interest, use or benefit to the other
party in relation to this Agreement.
4.1 PRINCIPLE/CONTRACTUAL DOCUMENTS
The parties will agree on a case-by-case basis on each Application
Program to be developed and marketed under this Agreement, according to
the procedure set forth in Section 9 below.
For each AP, the parties must agree upon and execute a PID according to
the standard attached hereto as Exhibit B.
As indicated in Section 5.1.5 below, Solution Provider will forward to
DS duly completed RFL(s) in duplicate originals according to the
standard RFL attached hereto as Exhibit C identifying those licenses on
CAA V5 or CATIA V5 Products which are necessary to develop and/or
support any AP(s). Licenses will be granted only when accepted in
writing by DS. The acceptance by DS of any RFL shall be demonstrated
either by DS's signature of such RFL or by the provision by DS of the
associated password(s) for the Licensed Products, whichever occurs
first. DS may, at its discretion, accept RFL(s) sent by Solution
Provider via email.
For training services, a la carte services or any further products
and/or services possibly requested by Solution Provider for the
development and/or support of any AP(s) under this Agreement, Solution
Provider will forward to DS, duly completed Purchase Order(s) in
duplicate originals. Purchase Order(s) will only be binding on DS, once
accepted in writing by DS.
DS reserves the right to set up procedures of electronic communication
and/or acceptance of contractual documents. When such procedures are
set up by DS, the parties agree to meet and negotiate in good faith the
practical consequences of such implementation.
Notwithstanding the terms and conditions of this Agreement, RFL(s) and
Purchase Order(s) shall not in any way modify the terms of this
Agreement. All terms and provisions contained in any RFL(s) or Purchase
Order(s) submitted by Solution Provider which are inconsistent with
this Agreement shall be of not force and effect.
For a given AP, each PID, RFL, Purchase Order and any possible
amendments or supplements to those documents, will carry (i) the same
identification reference as the initial PID entered into for that AP as
well as (ii) a reference to this Agreement.
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4.2 AMENDMENTS TO CONTRACTUAL DOCUMENTS
PIDs will be amended whenever needed to reflect technical changes of an
AP, such as evolutions of its functionalities, and any new release of
an existing AP, prior to implementing such change or developing such
new release.
Any amendment to the PID may result in new RFL(s) and/or Purchase
Order(s), to reflect respectively the specific licenses and/or other
products or other services needed by Solution Provider.
Such amendment to PID must be documented in writing and duly executed
by both parties.
5. LICENSES
5.1 GRANT OF LICENSES
5.1.1 NATURE OF LICENSES GRANTED
Pursuant to this Agreement and subject to acceptance by DS of
the related RFL(s), DS grants Solution Provider:
- Development Licenses as defined in and under the
terms of Section 5.2 below, exclusively on CAA V5
Products;
- Test and Evaluation Licenses as defined in and under
the terms of Section 5.3 below on CATIA V5 Products,
to enable Solution Provider to test its AP(s) with its
prerequisites CATIA V5 Products during the development
phase and/or to evaluate CAA V5 and/or CATIA V5
Products which may be of interest for the development
of AP(s);
- Demonstration Licenses as defined in and under the
terms of Section 5.4 below on CATIA V5 Products
exclusively, to enable Solution Provider to
demonstrate the operation of its AP together with
prerequisites CATIA V5 Products to third parties
customers, distributors and/or prospects and;
- Non-GA Programs Evaluation Licenses on Non-GA
Programs, exclusively to enable Solution Provider to
evaluate them, under the restrictive terms and
conditions set forth in Section 5.5 below.
All licenses granted pursuant to this Agreement are for
purposes of development, test, evaluation, or demonstration,
as indicated in the corresponding RFL(s), exclusively in
relation with the AP defined in the PID identified therein. No
other rights to use or reproduce and no right to modify the
Licensed Products are granted to Solution Provider. The
licenses granted
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under this Agreement CANNOT be sublicensed, assigned or
otherwise transferred by Solution Provider to any third party
whatsoever.
All licenses granted by DS to Solution Provider are governed
by the terms and conditions of this Section 5.
5.1.2 TERRITORY COVERED BY LICENSES GRANTED
All licenses are granted for those countries signatory of the
Bern Convention, with the exception of the Prohibited
Countries as defined in Section 26 below where applicable
French, European Union, United States of America, and other
originating country's export and re-export laws and
regulations prohibit or otherwise regulate the grant of such
licenses, unless and until appropriate authorization, license
or other approval have been obtained.
5.1.3 NUMBER OF LICENSES GRANTED
For each AP developed pursuant to this Agreement and subject
to the payment of the corresponding Yearly Fees, DS will grant
to Solution Provider the Development, Test and Evaluation,
Demonstration and Non-GA Programs Evaluation licenses (as
defined below) on those Licensed Product(s), for that number
of machines or users set forth in Partners' Price List.
If additional licenses are requested by Solution Provider for
any given AP, Solution Provider will automatically be invoiced
and shall pay the Additional Yearly Fee set forth in Partners'
Price List, which will entitle Solution Provider to additional
licenses for that number of machines or users set forth in
Partners' Price List.
5.1.4 DELIVERY
Subject to the payment of the corresponding Subscription Fee
and/or Yearly Fees, DS will deliver
(i) one (1) CD and one (1) associated Documentation per
Site with a maximum of five (5) CDs, for the
Development, Test and Evaluation licenses as well as
for Non-GA Programs Evaluation licenses of CAA V5
and/or CATIA V5 Products and,
(ii) one (1) CD and one (1) associated Documentation for
each Territory for the Demonstration Licenses on
CATIA V5 Products. Solution Provider is authorized to
make copies of the CD containing the CATIA V5
Products licensed to it, for each of its Sites in the
Territory.
The CD(s) will contain one (1) copy of the Licensed Products,
with the latest updates, in Object Code form, for the first
installation of any Licensed Product under each operating
system. The CD(s) and associated Documentation will
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be delivered within fifteen (15) days from the date of
acceptance by DS of the first corresponding RFL(s).
Solution Provider may request a transfer of existing licenses
by sending DS duplicate originals of a duly completed and
executed RFL together with copies of the initial RFL duly
accepted identifying the former Designated Machine and/or
Site. Upon transfer of existing licenses, Solution Provider
shall delete the Licensed Product(s) from the former
Designated Machine.
Delivery of the CD(s) and associated Documentation pursuant to
this Agreement will be made D.D.U. at Solution Provider's
Site, according to the ICC Incoterms Edition 2000. DS shall
select a carrier of its choice to be used for shipping the
CD(s) to Solution Provider and shall pay the costs of
shipment. Risk of loss and title to the CD(s) (expressly
excluding computer software programs contained therein) shall
pass to Solution Provider upon delivery at the Site. If the CD
(or other program storage media) is lost or damaged during
shipment to Solution Provider, DS will replace such media at
no additional charge. Solution Provider is exclusively
responsible (i) to proceed with all formalities related to the
import of the Licensed Product(s) and associated Documentation
in the country where its Site is located and (ii) for the
payment of all duties and taxes possibly assessed or levied
against such import by any taxing authority as set forth in
Section 7 below.
5.1.5 TERM OF LICENSES GRANTED
At least annually during the Term of this Agreement at the
latest during the first week of December of any calendar year
(N), or at any other time when additional or different
licenses are needed, Solution Provider will forward to DS duly
completed RFL(s) identifying the CAA V5 and CATIA V5 Products
requested as well as the Designated Machine(s) and Site(s)
where such licenses will and may exclusively be used.
When sent at the latest during the first week of December N,
the RFL once accepted by DS grants Solution Provider a license
for a one year period starting on February 1st, N+1 and
expiring on January 31st, N+2.
When sent at any other time during the year, the RFL once
accepted by DS grants Solution Provider a license for that
period of time starting on the date of acceptance by DS of
that RFL and expiring on the immediately following 31st of
January (example an RFL sent by Solution Provider on June 1st,
2000 and accepted by DS on June 10th, 2000, the licenses
identified will cover the period of time from June 10th, 2000
to January 31st, 2001).
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5.1.6 MAINTENANCE
DS will provide maintenance services for the Licensed Products
under the terms of this Section 5.1.6.
(a) DEFINITIONS
For the purpose of this Section 5.1.6, the following terms
shall have the following meaning:
DEFECT shall designate any malfunction in the
performance of any Licensed Product, as such
performance is described in its associated
Documentation, which is inherent to the Licensed
Product and is not caused by or imputable to or
related with its improper use or its use in
conjunction with any other computer software program.
ERROR shall designate a material Defect where either
(i) any use of the Licensed Product is prevented or
(ii) the Licensed Product or data is destroyed or
(iii) there is a loss of critical functionalities of
the Licensed Product.
RELEASE shall designate updates of the same version of
any Licensed Product that DS may make generally
available to its customers.
SERVICE PACK shall designate periodic updates of any
Licensed Product that may include the correction of
Defects or Errors for a given Release that DS may make
generally available to its customers.
(b) CORRECTIVE SUPPORT / SUPPORT
The maintenance services include Corrective Support and
Support by DS.
During the Corrective Support period, Solution Provider may
report Defects to DS on a Release (n) of a Licensed Product up
to four (4) months after a subsequent Release (n+1) of that
Licensed Product has been made publicly available. Under the
Corrective Support, DS may address the Defects reported by
Solution Provider on that Release (n).
During the Support period, Solution Provider may report
Defects to DS on a Release (n) of a Licensed Product up to
four (4) months after a second subsequent Release (n+2) of
that Licensed Product has been made publicly available. Under
the Support, DS may, at its discretion, address the Defects of
the Release (n) reported by Solution Provider on either (i)
the Releases (n+1) or (n+2) of the Licensed Product or on (ii)
a Release of the Licensed Product still under development (to
become Release (n+2) or Release (n+3) as the case may be).
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(c) REPORTING OF DEFECTS
Solution Provider may report any Defects to DS Maintenance
Service in Paris through DS's maintenance website at
HTTP://WEBCOS.DASSAULT-SYSTEMES.FR (with possible email of
information to alan_Christie@ds-fr.com).
To report Defects through DS's maintenance website, Solution
Provider must supply to DS the name of a designated Solution
Provider's employee which is the only person authorized to
report Defects to DS, and the IP identification number of that
machine through which Solution Provider will access DS's
maintenance website. DS will provide Solution Provider with an
identification number, a password and an URL address enabling
Solution Provider to connect to and access DS's maintenance
website.
Only those Defects which are reproducible by DS are covered by
the Corrective Support and Support. Solution Provider must
provide to DS any information and all material, details and
else necessary for DS to reproduce the Defect, as requested by
DS's maintenance services and including without limitation the
following: step by step and simplified scenario of the Defect
including all error messages and warnings, the level of
Release and of Service Pack if any, models, assemblies,
environment settings and declaratives, original data if
corrupted by Defect, any information to qualify the Defect as
an Error and the level of Release on which Solution Provider
wishes DS would address the Defect.
(d) POSSIBLE ACTIONS BY DS
Once a Defect has been duly recognized by DS, DS may provide
Solution Provider with either:
(i) the reference of a documentation addressing the issue
or a methodological advise;
(ii) a workaround or bypass of the Defect;
(iii) a correction in a subsequent Service Pack or Release
of the Licensed Product.
DS may address Errors in a subsequent Service Pack or Release.
Upon request, Solution Provider shall be entitled to receive
Service Packs and Releases for any Licensed Product(s) during
the term of the corresponding applicable license.
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5.1.7 SOLUTION PROVIDER'S GENERAL OBLIGATIONS
Solution Provider agrees that it shall not copy or use any
software products, APIs or development tools that it may
possibly access by running any of the CDs or other media that
will be made available to it under the Agreement, and for
which it does not benefit from an effective license granted by
DS.
Solution Provider may reproduce the Licensed Products, in
Object Code form, only to the extent necessary for
installation on the sole Designated Machine(s) or for the
designated user(s), and for a single back-up copy per
Designated Machine.
Except with DS's prior written consent, Solution Provider
shall not copy the associated Documentation of any Licensed
Product(s).
Solution Provider agrees not to decompile, reverse engineer,
and/or disassemble all or part of any Licensed Product(s) into
a source code version thereof, or allow others to do so.
Solution Provider agrees not to remove or circumvent any
licensing system or protection system of the CAA V5 and CATIA
V5 Products.
5.2 DEVELOPMENT LICENSE
5.2.1 GENERAL LICENSE TERMS FOR THE CAA V5 PRODUCTS
Subject to the terms and conditions set forth in this
Agreement, for any given AP, DS grants Solution Provider the
following non-exclusive, temporary, non-transferable license,
for those CAA V5 Products identified in the corresponding PID
(as possibly amended) and listed in the corresponding RFL(s)
duly accepted by DS, in order to:
- Make copies of the CAA V5 Products, from the CD solely
in connection with Solution Provider's internal use
for development, test and support of the AP designated
in the corresponding PID;
- Use the CAA V5 Products on the Designated Machine(s)
and at the Site(s) identified in the corresponding
RFL(s) solely in connection with Solution Provider's
development, test and support of the AP designated in
the corresponding PID; and
- Use the CAA V5 Products on back-up equipment at the
same Site as the originally Designated Machine(s) in
the event, and for as long as, such Designated
Machine(s) are inoperative.
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5.2.2 ADDITIONAL TERMS FOR THE API(s)
The terms of this Section 5.2.2 apply in addition to the above
general license terms.
For any given AP as defined in a PID, DS grants Solution
Provider:
(i) a non-exclusive, temporary, non-transferable license,
of the build time of those API(s) that are absolutely
necessary for that AP to operate together with the
prerequisite CATIA V5 Product(s) as identified in the
PID, exclusively for Solution Provider's internal use
of development, test and support of that AP and ;
(ii) the limited right to embed in the AP only the
libraries resulting from the use of the API(s) and
referencing the API(s), to the extent necessary for
the operation of that AP together with the
prerequisite CATIA V5 Product(s) as identified in the
corresponding PID.
At all times during the Term of this Agreement, Solution
Provider must comply with DS's instructions regarding the use
of any API(s). Solution Provider undertakes to use the latest
version or release of any such API(s) or libraries thereto
provided by DS.
5.3 TEST AND EVALUATION LICENSE
Subject to the terms and conditions of this Agreement, for any given
AP, DS grants Solution Provider a temporary, non-exclusive and
non-transferable right and license to execute, reproduce and display,
in Object Code form:
(i) the CATIA V5 Product(s) and associated Documentation
specifically designated in the corresponding PID as a
prerequisite for that AP, and listed in the corresponding
RFL(s) as duly accepted by DS, on the Designated Machine(s)
identified in the corresponding RFL(s), only for testing the
AP(s) together with its (their) related prerequisites CATIA V5
Product(s), and/or
(ii) certain CAA V5 and/or CATIA V5 Product(s) and associated
Documentation specifically designated in the corresponding
RFL(s) as duly accepted by DS, on the Designated Machine(s)
and for the term specified in that RFL(s), only for Solution
Provider's own internal evaluation purposes within the frame
of a given PID, expressly excluding any commercial or general
production purposes.
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5.4 DEMONSTRATION LICENSE
Subject to the terms and conditions of this Agreement, for any given
AP, DS grants Solution Provider a temporary, non-exclusive and
non-transferable right and license to execute, reproduce and display,
in Object Code form, the CATIA V5 Products and associated Documentation
specifically designated in the corresponding PID as a prerequisite for
that AP, and listed in the corresponding RFL(s) as duly accepted by DS,
on the Designated Machine(s) identified in the corresponding RFL(s) and
only for :
(i) demonstrating to end users, potential end users or
distributors of Solution Provider, the functioning of the
AP(s), together with the related prerequisites CATIA V5
Product(s) and/or
(ii) to provide before or after sales services (such as studies,
training or consulting) using any AP(s) together with its
prerequisite CATIA V5 Product(s) to prospective customers or
customers in relation with the sale of any AP(s).
5.5 NON-GA PROGRAMS EVALUATION LICENCE
From time to time during this Agreement, DS may grant to Solution
Provider, for a given AP, the right and license to use certain
pre-releases of CAA V5 and CATIA V5 development software and tools
(hereafter "Non-GA Programs") identified in the corresponding PID and
listed in the corresponding RFL(s) duly accepted by DS, under the
additional terms and conditions of this Section 5.5.
5.5.1 LICENSING TERMS
Solution Provider shall have a temporary, free of charge,
non-exclusive and non-transferable right and license to
execute, reproduce and display the Non-GA Program specifically
designated in the corresponding PID for a given AP and listed
in the corresponding RFL(s) duly accepted by DS, in Object
Code form, and to utilize, in support thereof, any associated
Documentation and other information which may be provided by
DS. The duration of such license shall be provided for in the
corresponding RFL(s) and shall not exceed three (3) months. In
addition, due to the Non-GA nature of the Program(s), DS shall
be entitled, at any time, to terminate this license as of
right and without legal proceedings, immediately upon receipt
of a written notice to that effect.
Solution Provider will have the right to use the Non-GA
Program(s) only for its own internal evaluation purposes
within the frame of the corresponding PID, on the sole
Designated Machine(s) located at Solution Provider's Site and
identified in the corresponding RFL, expressly excluding any
commercial or general production purposes.
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5.5.2 CONFIDENTIALITY - PROPRIETARY INFORMATION
(a) Solution Provider acknowledges that the Non-GA
Program(s) is (are) proprietary information and a trade
secret of DS. Solution Provider shall preserve and include
any copyright notice which may appear in the Non-GA
Program(s) in all copies thereof, whether such copies are of
the whole or a part, in Object Code form or in printed form.
Solution Provider shall:
(i) Hold the Non-GA Program(s) in confidence,
(ii) Not disclose, provide or otherwise make
available the Non-GA Program(s) or
information related thereto, including
without limitation specifications, or
evaluation data and results generated
therefrom, to anyone other than employees of
Solution Provider, who have a need to know
consistent with Solution Provider's
authorized use of the Non-GA Program(s),
which names are provided to DS in an Exhibit
to the corresponding RFL,
(iii) Not disclose the existence or the content of
the test, and
(iv) Take any appropriate action by instruction,
agreement or otherwise to fulfill its
obligations as to protection and
non-disclosure in pursuance of this Section
5.5. Furthermore, Solution Provider
certifies that its designated employees
agree to be bound by and comply with this
Section 5.5.
(b) Solution Provider also recognizes that, due to its
Non-GA nature, the Non-GA Program(s) may include invention or
other patentable techniques or discoveries and understand
that DS might not have yet decided to patent them or might be
in the process of doing so. Therefore, Solution Provider
recognizes and agrees that, for this purpose and in order to
avoid for DS loosing any patent application rights, the
non-disclosure provisions provided hereunder are of major
importance.
(c) At the end of the evaluation period, Solution
Provider might be requested to provide DS with a written
report on the results obtained from Non-GA Program(s)
evaluation hereunder, including performance of the Non-GA
Program(s), deficiencies encountered and suggested
enhancements, if any.
Solution Provider agrees that DS may use without restriction
said written report and any suggestions made by Solution
Provider in relation to the Non-GA Program(s), including
without limitation in the enhancement of the Non-GA Program(s)
or of any other DS's programs, and claim in its own name all
patent rights, copyrights or other intellectual property
rights as may be available in such suggestions, without
accounting or retroceding any royalties received to Solution
Provider.
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5.5.3 DISCLAIMER OF WARRANTY
THE NON-GA PROGRAM(S) IS (ARE) LICENSED TO SOLUTION PROVIDER
HEREUNDER ON AN "AS IS" BASIS, AND WITHOUT ANY WARRANTY
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, CONTRACTUAL OR ELSE,
INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE
OR ANY IMPLIED BY LAW WARRANTY AGAINST HIDDEN DEFECTS, AS WELL
AS NON INFRINGEMENT WARRANTIES. DS DOES NOT WARRANT OR
REPRESENT THAT (i) THE NON-GA PROGRAM(S) AND RELATED
SPECIFICATIONS AND FUNCTIONALITIES, OR (ii) ANY DATA
STRUCTURES GENERATED THROUGH USE OF THE NON-GA PROGRAM(S),
WILL BE CONSISTENT OR COMPATIBLE WITH ANY SUBSEQUENT RELEASE
OR VERSION OF THE NON-GA PROGRAM(S), IF ANY, OR WITH ANY
CURRENT OR FUTURE PROGRAM(S) OF DS.
5.5.4 LIMITATION OF LIABILITY
SOLUTION PROVIDER EXPRESSLY AND IRREVOCABLY WAIVES ANY AND ALL
CLAIMS AGAINST DS FOR DIRECT, INDIRECT, CONSEQUENTIAL,
SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT
LIMITATION, LOSS OF USE AND/OR DATA, LOSS OF PROFITS,
REVENUES, SAVINGS, GOODWILL AND/OR OTHER ECONOMIC DAMAGES,
WHETHER BASED IN CONTRACT, NEGLIGENCE, OR OTHERWISE, ARISING
OUT OF, OR IN CONNECTION WITH, OR IN ANY WAY RELATING TO THE
USE OF THE NON-GA PROGRAM(S) BY SOLUTION PROVIDER, INCLUDING
INFRINGEMENT ACTIONS. SOLUTION PROVIDER FURTHER AGREES TO
INDEMNIFY AND HOLD DS HARMLESS FROM ANY AND ALL LIABILITY OR
EXPENSE, INCLUDING REASONABLE ATTORNEYS' FEES, ARISING OUT OF
THIS SECTION 5.5.
5.5.5 LIMITED SUPPORT SERVICE
From time to time, DS may, at its sole discretion, provide
Solution Provider with modifications or updates to the Non-GA
Program(s). Any such modifications or updates shall be
construed as part of the Non-GA Program(s). DS hereunder in
relation to the Non-GA Program(s) will provide no corrective
maintenance service, provided however that DS will use
reasonable efforts to correct any errors in the Non-GA
Program(s) which are notified by Solution Provider and which,
in DS's sole opinion:
(i) Prevent the Non-GA Program(s) evaluation by Solution
Provider pursuant to this Agreement,
(ii) Are inherent to the Non-GA Program(s), and
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SOLUTION PROVIDER AGREEMENT
(iii) Are not caused by or do not arise solely from the use
of any other software in conjunction with the Non-GA
Program(s).
Nothing contained herein shall be construed as an obligation
of DS, either express or implied, to subsequently develop,
market or license the Non-GA Program(s), or any similar
program(s) incorporating some or all of the functionalities
contained therein.
6. FINANCIAL CONSIDERATION
In consideration for the rights and licenses granted pursuant to this the
Agreement, Solution Provider shall pay to DS the following fees and royalties.
6.1 SUBSCRIPTION FEE
Solution Provider shall pay to DS a Subscription Fee to the CATIA V5
Galaxy Program of thirty nine thousand US Dollars (US$ 39,000).
The Subscription Fee is only due once during the Term of this Agreement
upon the Effective Date.
The Subscription Fee is payable within 30 days following the Effective
Date.
6.2 YEARLY FEES AND FLAT FEES
DS may, at its discretion, increase the Yearly and Flat Fees, once per
calendar year, provided such increase shall not exceed ten per cent
(10%) and subject to a one month prior notice to Solution Provider.
Solution Provider will pay the Yearly and Flat Fees as amended if they
accrue after the date of coming into force of these amendments.
6.2.1 YEARLY FEE
Every year, Solution Provider shall pay the Yearly Fees
defined below in payment of the various licenses granted under
this Agreement.
The CATIA Companion Yearly Fee and Licenses Yearly Fee are due
in all circumstances. The Additional Yearly Fee is only due if
additional licenses are requested.
(a) CATIA COMPANION YEARLY FEE
As of the 1st of February immediately following the
Effective Date and on the 1st of February of every
calendar year thereafter, Solution Provider shall pay
to DS the CATIA Companion Yearly Fee of the amount set
forth in Partners' Price List in payment of one CATIA
Companion shareable license granted by DS pursuant to
Section 8.3.
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(b) LICENSES YEARLY FEE
For each AP to be developed under this Agreement,
Solution Provider shall pay to DS a Licenses Yearly
Fee of the amount set forth in Partners' Price List in
payment of the number of licenses defined therein.
This Licenses Yearly Fee is due for the first time on
the effective date of the PID and on the 1st of
February of every calendar year thereafter for all
AP(s), except that for the first AP to be developed
under this Agreement the Licenses Yearly Fee will be
due for the first time on the 1st of February
immediately following the Effective Date of the
Agreement (as opposed to the effective date of the PID
of the first AP).
(c) ADDITIONAL YEARLY FEE
The Additional Yearly Fee of the amount set forth in
Partners' Price List will be automatically due if
Solution Provider requests additional licenses for any
given AP and will entitle Solution Provider to that
number of additional licenses defined in Partners'
Price List.
This Additional Yearly Fee is due for the first time
on the date of acceptance by DS of the RFL requesting
an additional license and on the 1st of February of
every calendar year thereafter.
(d) PAYMENT OF THE YEARLY FEES
Yearly Fees are payable within 30 days from their due
date. They are payable in advance and cover the period
of time between their due date and the immediately
following 31st of January.
6.2.2 FLAT FEE
The Flat Fee of the amount set forth in Partners' Price List
is due in payment of the training and assistance services
granted by DS.
Solution Provider shall pay to DS, in addition to the Yearly
Fees defined in Section 6.2.1 above, a Flat Fee for:
(i) any additional AP to be developed targeting a
different domain than that of previous AP(s), i.e. any
new AP which CATIA V5 Products pre-requested are
different from the CATIA V5 Products pre-requested by
the previous AP(s) as defined in the PID,
and,
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(ii) any new release of an existing AP targeting a
different domain than the previous release of same AP,
i.e. any new release which CATIA V5 Products
pre-requested are different from the CATIA V5 Products
pre-requested by the previous release of same AP as
defined in the PID.
Any such Flat Fee is only due once, upon the effective date of
the corresponding PID (additional AP) or amendment to an
existing PID (new release of existing AP).
6.3 ROYALTIES
6.3.1 APPLICABLE ROYALTY RATE AND MINIMUM AMOUNT OF
ROYALTIES
Solution Provider shall pay to DS royalties on all revenues
derived from the licensing and/or distribution of any AP (or
module of AP if any) with the following percentages:
- fifteen percent (15%) when licenses on AP(s) are sold
to resellers or distributors (whether VAR or else)
and,
- ten percent (10%) when licenses on AP(s) are sold to
end users (whether directly or through an agent,
commissionaire or else),
with a minimum of one thousand US dollars (US $1,000) per
license granted of any such AP (or module of AP, if any) in
all instances.
Royalties at a rate of ten percent (10%) will be also due on
all revenues derived from the support or maintenance of any
AP(s).
Royalties will not be due on revenues derived from studies,
training, consulting and other services performed using the AP
by Solution Provider in relation with a sale or contemplated
sale of any AP. Royalties at a rate of ten percent (10%) will
be due on revenues derived from studies, training, consulting
and other services performed using the AP by Solution
Provider, independently from any actual or contemplated sale
of the AP.
Upon the Effective Date, the supply of ASP using any AP and
its prerequisites CATIA V5 Products is not authorized under
this Agreement. However, once DS has set up its policy on ASP
supply by partners, the parties shall meet to discuss Solution
Provider's supply of ASP using any AP together with its
prerequisites CATIA V5 Products and the Agreement will be
amended accordingly to reflect the parties' agreement, if any,
on the terms of such supply of ASP, including without
limitation on business conditions and/or royalties to be paid
to DS.
These revenues are equal to the sales prices and other fees
and charges invoiced by Solution Provider to customers of such
AP, support and related maintenance, and/or services, without
deduction by Solution Provider of any
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costs, expenses, commissions, withholding taxes or other
charges possibly incurred by Solution Provider, except as
expressly agreed upon by DS.
Solution Provider shall send to DS a notification form for
each AP specifying, at least but without limitation, the name
of the AP (and of its related modules, if any), its date of
availability and pricing information such as Solution
Provider's standard Price List for such AP and/or services, as
well as applicable discounts and contemplated special
offerings.
6.3.2 ACCOUNTING/RIGHT TO AUDIT
Solution Provider shall, for a period of four (4) years, keep
true and accurate records containing all particulars which may
be necessary for the purpose of auditing payments of royalties
to DS under this Section 6.3. Solution Provider will provide
DS with a copy of such records at any time upon simple request
from DS.
Furthermore, during such four (4) year period, and upon
reasonable notice to Solution Provider, DS shall have the
right to have an audit conducted, through an independent
accounting firm chosen at its discretion by DS, and to examine
the records and books of account of Solution Provider in
connection therewith. Solution Provider will bear the costs of
such audit if a material discrepancy or error of computation
or else in excess of ten percent (10%) of the amounts due to
DS is identified. Any audit conducted pursuant to this Section
shall not be conducted in such a manner as to unreasonably
interfere with the operations of Solution Provider and in no
event shall an audit be conducted more frequently than once
per calendar year.
6.3.3 REPORTING
Within thirty (30) days after the end of each calendar quarter
of this Agreement, Solution Provider shall provide DS with a
written Quarterly Report set forth according to the standard
attached as Exhibit E for each AP.
6.3.4 ACCRUAL AND SETTLEMENT OF ROYALTIES
Royalties shall be paid in US dollars on a quarterly basis.
The exchange rate to be applied for computation of such
royalties shall be the European Central Bank rate prevailing
on the first business day of the month immediately following
the relevant calendar quarter.
DS's right to royalties on all revenues derived by Solution
Provider from licensing and/or distribution of any AP and/or
related maintenance services shall accrue upon the date the
corresponding revenues accrue to Solution Provider,
irrespective of whether or not such revenues were eventually
collected by Solution Provider from its customer.
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6.4 OTHER FEES AND CHARGES
In addition to the above Fees and Royalties, Solution Provider will pay
to DS any additional hotline support at the hourly rate set forth in
Partners' Price List then in force.
A la carte training services or other specific products and/or services
possibly requested by Solution Provider to DS in the course of
performance of this Agreement will be subject to the terms of this
Agreement and will be charged, if accepted by DS, at its standard price
then in force.
7. PAYMENT
DS will invoice Solution Provider for all payments due under this Agreement. All
invoices shall be paid to DS by wire transfer, within thirty (30) days from
receipt of DS invoice, to DS's bank account as identified below:
bank account # 0120022776
opened under the name of Dassault Systemes,
at Societe Generale (bank code 30003),
Paris Opera (branch code 03620/RIB code 06)
6, rue Auber
75009 Paris, France
swift code SOGEFRPP
In addition to any payment due, Solution Provider shall be responsible for the
payment and pay, without recourse to DS, any and all applicable sales, use,
excise, value added or other taxes or duties, howsoever designated, assessed or
levied upon the execution or performance of this Agreement, by any taxing
authority whether in DS's or Solution Provider's country, except for taxes based
on DS's net income.
Solution Provider shall pay interest for late payment of all sums due at the
LIBOR rate plus four (4) points (e.g. if LIBOR rate is 6%, late interests will
be 10%) - not to exceed the maximum rate, or be inferior to the minimum rate,
permitted by applicable law, as the case may be - as of the receipt of a notice
to pay sent by DS.
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8. TRAINING
8.1 MANDATORY TRAINING
To ensure and promote Solution Provider's competence and skills on CAA
V5 and CATIA V5 Products, all the employees of Solution Provider who
are involved in the development of any AP must have attended the
training courses defined below on all relevant CAA V5 and CATIA V5
Products to be used in the development of any AP, whether such training
courses have been attended in the course of performance of this
Agreement or of distinct or prior business relationships with DS (a
certificate of attendance of such training will then be required).
The mandatory training courses include:
- a Computer Based Training session on DS's self training
software "CATIA Companion";
- a Advanced Training course on all the CATIA V5 Products which
are necessary for the development of any given AP;
and
- all three Basic, Advanced and Specialized CAA V5 Trainings as
described in Section 8.2.1 below.
This requirement applies to all employees of Solution Provider involved
in the development of any AP and at any time during the Term of this
Agreement.
If all the pre-requested training courses are not attended by the
Solution Provider's employees as part of either the Initial, Continuous
or Additional Trainings defined in Sections 8.2, 8.3 and 8.4 below,
they will be periodically organized by DS and charged to Solution
Provider at DS standard prices then current upon attendance by Solution
Provider's employee(s).
Solution Provider bears all costs of lodging and transportation, as
well as out of pocket expenses, for those of its employees attending
any training and/or assistance courses or sessions under this Section
8.
8.2 INITIAL TRAINING & ASSISTANCE
As part of this Agreement and as a result of its appointment as
solution provider in the Galaxy Program, Solution Provider benefits
from the training and assistance products and services as detailed in
this Section 8 which are granted by DS at a discounted price in
comparison to its standard prices for such training products and
services.
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8.2.1 INITIAL TRAINING
As of the Effective Date, prior to the start of development of
any AP, and subject to the timely payment of the Subscription
Fee, Solution Provider will benefit from the Initial Training
defined hereafter.
This Initial Training consists in the following:
(a) COMPUTER BASED TRAINING
DS grants to Solution Provider one (1) non-exclusive,
temporary, non-transferable, shareable license to use
DS's self training software "CATIA Companion", subject
to the timely payment of the Subscription Fee as well
as the corresponding Yearly Fees as set forth under
Section 6.2.1 above. This license is for training
purposes exclusively and may be used on any machine at
the Site identified in the corresponding RFL, by any
one (1) single user at any given time. This license is
mandatory and must remain effective during the whole
Term of this Agreement.
(b) TRAINING ON CATIA V5 PRODUCTS
This training is fitted to the domain of activity
targeted by the Solution Provider and may cover among
others the following items : [Infrastructure],
[Mechanical Design], [Mechanical Design Rx Update],
[Analysis & Simulation], [Shape Design & Styling],
[Equipment & Systems] or [Engineering].
This training on CATIA V5 Products is a dedicated
course given at DS premises that lasts three days for
up to eight employees of Solution Provider.
(c) TRAINING ON CAA V5 ARCHITECTURE
This training is designed to ensure and enhance the
level of expertise of the Solution Provider on the CAA
V5 Architecture.
Under this Agreement, the three progressive steps of
training are granted to Solution Provider:
- the Basic CAA V5 Training - Level 1 - on
Concepts, Models, Controller, View and Tools
which is a course given at DS premises that
last five days and is available for up to two
employees of Solution Provider;
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- the Advanced CAA V5 Training - Level 2 - on
Geometric Modeler, Mechanical Modeler,
Product Structure and Knowledgeware which is
a course given at DS premises that lasts five
days and is available for up to two employees
of Solution Provider;
and
- the Specialized CAA V5 Training - Level 2 -
on necessary key framework(s) to be used by
AP as defined in corresponding PID, which is
a dedicated course given at DS premises that
lasts two days and is available for up to two
employees of Solution Provider.
8.2.2 INITIAL ASSISTANCE
As of the Effective Date and subject to the timely payment of
the Subscription Fee, Solution Provider will benefit from the
Initial Assistance defined hereafter.
The Initial Assistance consists in the following:
(a) DEVELOPMENT AT DS PREMISES AND CONSULTING WITH DS
EXPERT
During the early phase of development of its first AP,
up to two employees of Solution Provider (having
attended the pre-requested training courses) will be
authorized to start developing on Solution Provider's
Designated Machine(s) at DS premises for up to five
days during which Solution Provider may be assisted by
one of DS experts for up to three days.
(b) HOTLINE ASSISTANCE
As of the Effective Date, Solution Provider will, for
the whole Term of this Agreement, benefit from up to
forty (40) hours of hotline assistance on usage
functions, basic methodology and by pass or
workarounds of the following domains: installation,
data exchange, administration, CATIA V5 Products,
Programming and general use.
Are expressly excluded from the hotline assistance
services supplied by DS, all requests (i) regarding or
related to defect(s) of any Licensed Product(s) which
are covered by the provisions of Section 5.1.6 above,
(ii) for information on announces or visibility of
future DS Group Products or functionalities, and (iii)
for training over the phone.
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DS Helpdesk Center will do its reasonable commercial
efforts to respond to Solution Provider's request
within a reasonable time period.
The operating hours of DS Helpdesk Center in Suresnes
(France) are:
- Monday-Friday 8:30-12:00 and 13:00-18:00
(Paris Time)
- Saturday-Sunday Closed
DS Helpdesk Center is also closed during the French
national holidays.
The different ways to access the DS Helpdesk Center in
Paris are:
- Phone +33 1 40 99 44 44
- e-mail HOTLINE@DS-FR.COM
- Fax +33 1 40 99 43 12
Once duly registered by filling in and returning the
document attached as Exhibit G hereto, Solution
Provider also has exclusive access to DS Helpdesk
Center Web Site: WWW.HELPDESK.DASSAULT-SYSTEMES.COM
The time spent by the expert(s) of DS Helpdesk Center
on each request received from Solution Provider is
calculated, quarter of an hour by quarter of an hour,
with a minimum of one half hour, and deducted from the
above forty (40) hours and charged when exceeding
these forty (40) hours as set forth below.
Any hotline assistance needed by Solution Provider in
excess of the above forty (40) hours will be charged
by DS at its then current standard price.
8.3 CONTINUOUS TRAINING
During the Term of this Agreement, subject to the timely payment of the
CATIA Companion Yearly Fee, DS grants Solution Provider one shareable
license under the terms set forth in Section 8.2.1 above on DS's self
training software "CATIA Companion" and may provide updates of "CATIA
Companion" at any time and at no additional cost. This license must
remain effective during the whole Term of this Agreement.
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8.4 ADDITIONAL TRAINING (IF NEW DOMAIN TARGETED)
Subject to the payment of the corresponding Yearly Fees and Flat Fee,
for (i) any new release of an existing AP targeting a different domain
than that the previous release of same AP, and for (ii) any additional
AP to be developed targeting a different domain than that of previous
AP(s), as defined under Section 6.2.2 above, Solution Provider will
benefit from the following additional training and consulting:
- a Specialized CAA V5 Training on integration's key framework
corresponding to new domain targeted which is a dedicated
course given at DS premises that lasts two days and is
available for up to two employees of Solution Provider having
attended the pre-requested training courses;
and
- During the early phase of development of this new release of
an existing AP, a maximum of two employees of Solution
Provider (having attended the pre-requested training courses)
will be authorized to start developing at DS premises for up
to five days during which Solution Provider may be assisted by
one of DS experts for up to three days.
8.5 A LA CARTE TRAINING
DS may, at Solution Provider's request, organize a training course
dedicated to Solution Provider's employees and adapted to Solution
Provider's needs, which financial conditions, schedule and content will
be agreed upon by both parties.
9. OBLIGATIONS OF SOLUTION PROVIDER
9.1 SOLUTION PROVIDER'S OBLIGATIONS REGARDING DEVELOPMENT OF AP
9.1.1 PROCEDURE OF AGREEMENT ON ANY AP
For any project of software product development contemplated
by Solution Provider under this Agreement, Solution Provider
will provide DS with a Preliminary Project Description
according to the standard attached hereto as Exhibit F. DS
will inform Solution Provider of its position regarding such
PPD. If DS is interested in the contemplated project, it will
inform Solution Provider of its approval, and execute the PPD.
The parties will then meet to negotiate and agree on a Product
Information Description, which content must comply with the
provisions of Section 4.1 above.
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The parties must agree on the first AP to be developed by
Solution Provider, i.e. execute the corresponding PID, within
four months from the Effective Date. For any other AP(s) to be
developed by Solution Provider under this Agreement, the PID
must be executed by both parties within four months from DS's
execution of the corresponding PPD.
Neither DS's execution of any given PPD, nor its execution of
any PID or amendment thereto shall grant to Solution Provider
any exclusivity whatsoever with respect to the content,
purpose, domain or target of either the contemplated project
or the agreed upon AP. DS may develop itself, have developed
or enter into agreements with any third party including any
competitor of Solution Provider for the development, of any
application software programs that have the same
functionalities, purpose, domain or target, or that are or may
be deemed similar, or that compete directly or indirectly,
with AP(s) to be developed by Solution Provider under this
Agreement.
9.1.2 DEVELOPMENT OF AP ACCORDING TO PID SPECIFICATIONS AND
TIMEFRAME
Solution Provider shall be solely responsible for initiating
development of any AP and choosing the programming techniques
to be used for developing its AP(s) on the basis of the CAA V5
Architecture.
All AP(s) to be developed by Solution Provider pursuant to
this Agreement must be developed by Solution Provider
according to the timeframe set forth in the corresponding PID.
The development of any AP by Solution Provider shall take
place at Solution Provider's premises, except for Solution
Provider's option to start developing AP(s) at DS premises
pursuant to Section 8.2.2. The development of any AP shall be
performed at Solution Provider's sole expenses and under its
sole responsibility.
9.1.3 PROCEDURE OF ACCEPTANCE OF AP BY DS
Promptly upon completion of the development of any AP or new
release thereto and in any event at the latest three (3)
months prior to its contemplated General Availability date,
Solution Provider shall demonstrate, at DS premises, the
latest version available of the AP or release thereto for DS
to check compliance by Solution Provider with the
specifications of the PID.
DS will conduct such testing as appropriate and send a notice
to inform Solution Provider of its position regarding the
compliance with the specifications within one (1) month of the
demonstration of such latest version of the AP. If the AP
complies with the specifications, DS will inform Solution
Provider that it may make it Generally Available, except for
new releases of
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an existing AP where certification is required prior to GA. If
the AP does not comply, Solution Provider will be required to
make all necessary and appropriate changes to comply with the
specifications of the PID and will have no right to make
Generally Available or otherwise promote or distribute the AP
until compliance with the specifications of the PID has been
confirmed by written notice by DS.
9.1.4 DEMONSTRATION LICENSE ON AP FOR THE BENEFIT OF DS
GROUP
Solution Provider shall grant to DS up to twenty worldwide,
temporary, non-exclusive and royalty free licenses for Term of
this Agreement to use, execute, reproduce and display (i) each
AP developed under this Agreement as well as (ii) each
computer software program of Solution Provider pre-requested
by such AP, in Object Code form, for the purpose of performing
demonstrations of the AP to any third parties.
9.2 SOLUTION PROVIDER'S OBLIGATIONS REGARDING MARKETING OF AP(S)
Notwithstanding the marketing assistance granted by DS to Solution
Provider under Section 11 below, Solution Provider is exclusively
responsible for the marketing, distribution, licensing, support and
maintenance of its AP(s). However, Solution Provider must generally
keep DS informed of the conduct of its projects and business
relationships with customers of AP(s) in relation with such AP(s).
Any advertisement, announcement or other communication on any media
whatsoever regarding this Agreement or the appointment of Solution
Provider as Partner in the CATIA V5 Galaxy Program, as well as
regarding the AP(s) referring to the CAA V5 or CATIA V5 Products is
subject to DS's prior written review for the first year as of the
Effective Date. Thereafter, DS will be entitled to review such
documents and Solution Provider undertakes to proceed with any
reasonable correction requested by DS at Solution Provider's costs.
Solution Provider is free to set its public prices for the sale,
licensing, maintenance and support of its AP(s). Solution Provider
shall charge reasonable prices consistent with industry practices.
Solution Provider shall apply that price which it has provided to DS in
the Business and Marketing Plan then in force and inform DS prior to
any variation thereto.
9.2.1 PROMOTION AND MARKETING OBLIGATIONS OF SOLUTION
PROVIDER
Each AP must be made Generally Available by Solution Provider
at the latest six months after the effective date of its PID.
Any new release of an existing AP must be made Generally
Available within six months from the effective date of the
corresponding amendment to PID, unless the applicable PID
provides differently.
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For each AP to be marketed under this Agreement, Solution
Provider must at least annually provide to DS a Business and
Marketing Plan according to the standard attached hereto as
Exhibit H and providing for those information identified in
the standard Business and Marketing Plan for the following one
year period of time. Business and Marketing Plans must be
provided to DS for the first time at the latest three (3)
months prior to the contemplated General Availability date of
any AP (or new release thereto) and thereafter at least once
per year during the month of January of every calendar year.
At least twice per calendar year, Solution Provider shall
inform DS in writing on the actions conducted under the then
current Business and Marketing Plan and results thereto.
Solution Provider shall use its reasonable commercial efforts
to promote, market and distribute the AP(s) and to generate
sales of the AP(s). Solution Provider agrees, in addition to
any other actions necessary or appropriate to fulfil such
obligation, to do the following:
(a) include all APs in its catalogue(s) of software
products and use at least the same level of
quantitative and qualitative advertisement and
marketing as that used by Solution Provider for
other products in its catalogue;
(b) actively promote the AP(s) including without
limitation by attending trade shows, by attending
the CATIA Users shows organized by DS, at least once
per calendar year in two of the Territories at
Solution Provider's discretion, and by using any
suitable means of marketing the AP(s) customarily
used by software editors selling similar products;
(c) continuously and consistently use the "Dassault
Systemes Partner" logotype and "CAA V5 Certified"
logotype, in compliance with the provisions
respectively of Section 3.2 and 10.3;
(d) maintain a fully trained and adequate sales
organization capable of active solicitation of
sales of the AP(s);
(e) maintain adequate facilities and trained personnel
to distribute, maintain and support the AP(s);
(f) handle all customer inquiries, quotations and orders
promptly and efficiently and;
(g) carry out and/or attend all marketing assistance
tools and events provided by DS under Section 11
of this Agreement.
9.2.2 WARRANTY AND SUPPORT OBLIGATIONS OF SOLUTION PROVIDER
Solution Provider is exclusively responsible for the
installation, support and maintenance of its AP(s) to their
customers and users. Solution Provider shall provide all
necessary and appropriate technical support and warranty
support to the customers and users of its AP(s) to whom
licenses on the AP(s) were granted, at its exclusive risks and
costs.
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In addition to any other action necessary or appropriate to
fulfil its obligation, Solution Provider shall provide
appropriate levels of sales, technical and warranty support to
end users of AP(s) in order to assure satisfactory
installation, operation, support and maintenance of the AP(s).
9.2.3 EXCLUSIVE LIABILITY OF SOLUTION PROVIDER
Solution Provider will bear all warranties and liabilities
vis-a-vis the customers and users of its AP(s). Solution
Provider shall make no representations or warranties on behalf
of DS, including on the appropriate operation of the AP(s)
with its pre-requested CATIA Product(s), and must include in
all licenses granted on its AP(s) an express waiver by
licensee of any claim or action on any ground whatsoever
against DS. Solution Provider shall defend and hold DS
harmless against any and all such claims, actions or else from
any customer or user of Solution Provider's AP(s).
10. CERTIFICATION OF AP
Any AP(s) developed by Solution Provider under this Agreement must have
successfully undergone the certification process within one year from its first
General Availability. Subsequent releases of any AP must have undergone
certification process and have been certified before their GA.
The AP, or any subsequent release thereto, will be subject to the certification
process to check its compliance with the certification criteria.
The certification criteria, procedure and schedule of certification will be
further agreed upon for each AP or release thereto, and shall be documented by a
duly executed written supplement to this Agreement to be attached as an Exhibit
hereto.
10.1 CERTIFICATION CONDITIONS AND CRITERIA
The certification process is set forth to control the quality and user
friendliness of the AP, as well as the rapidity of development of the
AP and regularity of its upgrades and releases.
Various tests shall be conducted to check the compliance of the AP (or
any release thereto) with the certification criteria which will include
without limitation criteria relating to the packaging, graphical user
interface, functionality, performances, data model, code quality,
reliability and installation of the AP (or release thereto).
10.2 CERTIFICATION PROCEDURE
The certification procedure will consist in an initial phase of
auto-certification by Solution Provider to conduct the testing
identified to check compliance of the AP (or release thereto) with the
certification criteria.
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Once Solution Provider has successfully checked such compliance,
Solution Provider shall send to DS the latest pre-release of the AP (or
any release thereto) for DS to conduct such necessary testing.
It is only once DS has successfully checked such compliance that the
parties shall meet at DS premises to conduct the final certification of
the latest pre-release of the AP or of new release(s) of any AP, which
will be that made GA.
10.3 BENEFIT OF "CAA V5 CERTIFIED" LOGOTYPE
Once the final certification of any AP or release thereto has been
granted, and subject to the continuous compliance of Solution Provider
with the above conditions and criteria regarding that AP or release,
Solution Provider will be authorized to use, reproduce and display on
that AP or release thereto a "CAA V5 Certified" logotype, under the
conditions set forth below. Failure to comply with these conditions and
criteria entitles DS to enjoin the loss of certification under Section
22.3.1(a) below.
To that effect, DS grants to Solution Provider a worldwide limited
right and license to use, display and reproduce the "CAA V5 Certified"
logotype to which DS has exclusive title and ownership, exclusively on
the AP or release that has been finally certified. This right and
license to use the "CAA V5 Certified" logotype is revocable,
non-exclusive, worldwide and free of charge. It is not assignable and
it cannot be sublicensed or otherwise transferred.
No further right to use or display the "CAA V5 Certified" logotype is
hereby granted to Solution Provider. Solution Provider shall neither
modify the "CAA V5 Certified" logotype, nor use it when communicating
on any products other than the AP or release that has been finally
certified.
The specific design and use instructions of the "CAA V5 Certified"
logotype will be described in a specific document which to be provided
by DS and that will be attached as an exhibit to this Agreement.
DS may at any time and at its discretion change the design of the "CAA
V5 Certified" logotype, its use instructions, and/or any other
provision of the Graphic Chart relating to the "CAA V5 Certified"
logotype. DS will inform Solution Provider of any such change with
three (3) month notice prior to providing Solution Provider with the
amended Graphic Chart or amendment thereto to be complied with any new
AP or new release of an AP at the latest within three (3) month from
receipt of such amended Graphic Chart of amendment thereto. Solution
Provider must at all times during the Term of this Agreement use and
display the then current version of the "CAA V5 Certified" logotype and
comply with the Graphic Chart then in force.
DS is entitled to review the content and quality of the use, display
and/or reproductions of the "CAA V5 Certified" logotype by Solution
Provider. DS is
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entitled to request that Solution Provider provides it with a list
and/or samples of all communication medias and tools on which the "CAA
V5 Certified" logotype is enclosed and proceeds with any correction
without delay promptly upon receipt of DS's written notification, at
Solution Provider's exclusive costs.
The authorization to use the "CAA V5 Certified" logotype does not
constitute or imply any specific endorsement by a party of the other
party products and/or services.
11. MARKETING SUPPORT
11.1 INITIAL MARKETING SUPPORT
Upon the Effective Date of this Agreement, DS and Solution Provider
will agree on the content and schedule of a DS press release to be
published and made available on DS's web site, with quotes from both
parties regarding the execution of this Agreement and contemplated
developments.
Solution Provider will be listed among new DS's partners in the CATIA
V5 Galaxy Program on DS web site with a link to Solution Provider's
website.
Solution Provider will further be mentioned in DS's publications, at
DS's discretion.
11.2 CONTINUOUS MARKETING SUPPORT
Prior to the General Availability of any AP(s), DS will assist Solution
Provider by reviewing and/or advising Solution Provider on the
specification sheets and related marketing materials (demos, CDs etc.)
as well as Business and Marketing Plans or any other marketing or
communication plans.
Subject to its compliance with the terms of this Agreement, Solution
Provider will benefit from the following:
- "Dassault Systemes Partner" logotype as indicated under Section
3.2 above,
- Web banners (such as for instance direct connection on
Solution Provider's website to DS website or DS banner on
Solution Provider's website),
- Support and assistance in reviewing Solution Provider's press
release announcing availability of AP and/or new release of
AP,
- Detailed description of Solution Provider and its AP(s) on DS's
website,
- Attendance to User Association Meetings (CAA booth may be
proposed),
- Attendance to Trade Show(s) (presence in DS booth may be
proposed)
- Assistance in drafting and/or publication of article in CAA
News or other publication related directly or indirectly to DS.
As partner in the CATIA V5 Galaxy Program, Solution Provider will be
given the opportunity to participate in promotional events and/or trade
fairs possibly organized by DS for its partners or attended by DS with
some of its partners, at preferred conditions if applicable. Solution
Provider will bear all costs relating to the
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attendance of such events and/or trade fairs, including advertising
costs and other expenses occurred to participate and costs of lodging
and transportation for those of its employees or representative
attending such events and/or trade fairs.
11.3 MARKETING SUPPORT FOR "CAA V5 CERTIFIED" AP(s)
Upon certification of any AP, or release of an AP, Solution Provider
will benefit from:
- A DS press release on the CAA V5 certification of its AP(s)
- Promotions in User Galaxy available with CATIA's CD, if any
and when applicable,
- Additional assistance in the setting up of meetings with
customers or DS sales force,
- Preferred attendance (in priority) at DS events,
- Mailing to customers.
12. INFORMATION EXCHANGES
Information disclosed under this Agreement may include technical data, know-how,
software specifications, software performance, or any other information relevant
to the performance of this Agreement.
All communications between the parties are subject to the terms and conditions
of the Confidential Non Disclosure Agreement, reference 01344A2000GRUP, entered
into by the parties on November 14, 2000.
13. RESTRICTIONS TO SOLUTION PROVIDER'S ACTIVITY
Because Solution Provider benefits from various financial incentives, technical
and marketing training from DS under the CATIA V5 Galaxy Program at preferred
rates, and in order to maintain a strong degree of cooperation and dedication
between the parties, it is essential to this Agreement that Solution Provider
shall not compete with DS, as set forth below.
Also, because Solution Provider is given access to methodologies, technologies,
know-how, ideas, concepts and/or expressions contained in, or expressed through,
CAA V5 and CATIA V5 Products and related products and services supplied by DS
under this Agreement which are of a strategic importance to DS, it is essential
to this Agreement that Solution Provider does not enter into any transaction
that may result in their direct or indirect transfer, except as authorized
herein.
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13.1 RESTRICTIONS ON SOLUTION PROVIDER'S ACTIVITY
In view of the above, except as otherwise agreed in writing with DS,
Solution Provider undertakes NOT to:
(a) Use and/or license the AP as a software component
(i.e. to be used as a toolkit by and/or embedded into
another software application product or software
middleware product); and/or
(b) Use, adapt or modify, in any manner, or have used,
adapted or modified all or part of any AP, or prepare
or have prepared derivatives works based upon said
AP, or use or have used, in any manner the APIs
licensed under the Agreement, or use or have used in
any manner the know-how and/or trade secrets related
to the DS Group products and/or CAA V5 Architecture,
in order to make or have made or participate to make:
(i) an interface or integration between any DS
Group Product(s) and any product(s) of any
third party without the AP(s) being a
prerequisite thereto, and/or
(ii) a software product or middleware product that
allows or facilitates such an interface and/or
integration without the AP(s) being a
prerequisite thereto, and/or
(iii) a product or any other access enabling the
user of any CAD/CAM/CAE (Computer Aided
Design / Computer Aided Manufacture /
Computer Aided Engineering), PDM (Product
Data Management), Digital Manufacturing, Data
Modeling or Network Computing software
product(s) to read, understand, and/or use
any data or model generated by any DS Group
Product(s) without the AP(s) being a
prerequisite thereto.
13.2 NON-COMPETE COVENANT
In view of the above, during the Term of this Agreement and for one (1)
after its termination for any reason whatsoever, Solution Provider
undertakes NOT to (i) develop, manufacture, market, offer and/or
distribute or have developed, manufactured, marketed offered and/or
distributed, and/or participate in the development, manufacturing of
any software application program interoperating with any CATIA V5
Product(s) which functionalities or purpose are similar to those of any
AP(s) and/or (ii) more generally, to use the notoriety of the DS Group
or of the DS Group Products and/or its designation as solution provider
under this Agreement, to actively promote the sale of computer software
products other than the AP(s).
13.3 PRIOR INFORMATION
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During the Term of this Agreement, Solution Provider shall send written
notice to DS of its intent:
(i) to participate to any program similar to the CATIA V5 Galaxy
Program that could be set up by any third party, prior to
entering into such program, and/or
(ii) to develop, manufacture, market, offer and/or distribute or
have developed, manufactured, marketed, offered and/or
distributed, any computer software program(s) which
functionalities or purpose is similar to that of any then
existing DS Group Product, prior to starting such development,
manufacture, marketing, offering and/or distributing.
13.4 BREACH BY SOLUTION PROVIDER
Failure to comply with any of the sub-Sections 13.1 or 13.2 is a
material breach of this Agreement by Solution Provider and entitles DS
to immediately terminate this Agreement without notice, as set forth in
Section 22.3.2 below.
14. CHANGE OF CONTROL
Solution Provider must inform DS prior to, or immediately upon information of,
any change of its control including without limitation any material modification
of the controlling parties and/or of the management structure of Solution
Provider, by sending a written notice to DS. A declaration by Solution Provider
regarding its controlling parties and management structure upon the Effective
Date is attached hereto as Exhibit I.
The written notice sent by Solution Provider to DS must include a description of
the new or contemplated change(s) including without limitation all information
available to Solution Provider regarding the transaction(s) involved, the
contemplated or new controlling party, the contemplated or new officers or
directors, etc.
DS will send a written notice to Solution Provider to inform the latter on its
position with respect to such change.
Should DS consider, in its discretion, that the contemplated or new controlling
party is a direct or indirect Competitor or that the new or contemplated change
raises other confidentiality, strategy or regulatory issue, Solution Provider
shall organize a meeting with the contemplated or new controlling party, within
one (1) month of the receipt of the notice sent by DS to inform Solution
Provider of its position, for DS to discuss with the contemplated or new
controlling party, the opportunity and conditions of continuation of this
Agreement, if any. DS will be entitled to subject the continuation of this
Agreement to express written guarantees from both Solution Provider and the
contemplated or new controlling party that no access whatsoever be given to
methodologies, technologies, know-how, ideas, concepts and expressions contained
in, or expressed through, CAA V5 and CATIA V5 Products and related services
supplied by DS to Solution Provider, including without limitation, by
exclusively dedicating those of Solution Provider's employees involved in the
performance of this Agreement to this performance with the exclusion of any
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involvement in any other activity, assignment or task of Solution Provider
and/or for the benefit of the contemplated or new controlling party.
In the absence of written agreement between DS, Solution Provider and the
contemplated or new controlling party, within one month (1) from the date of
their initial meeting, on mutually reasonable terms guaranteeing DS's interests,
DS will be entitled to terminate this Agreement as of right and without legal
proceedings as set forth under Section 22.4 below.
15. OWNERSHIP
15.1 TITLE TO AP(s) AND ASSOCIATED WRITTEN MATERIALS
Subject to DS's rights and title under Section 15.2 below, all
ownership and title in AP(s) and associated written materials,
including, without limitation reports, programs, manuals, listings and
any other documentation, whether in Object Code or not, authored or
developed by Solution Provider under this Agreement, shall rest
exclusively with Solution Provider, with Solution Provider having the
right to obtain, and hold in its own name, copyright, patent
registrations of inventions or discoveries, or such other protection as
may be available, and any extension thereof, on any AP(s).
Subject to the provisions of this Agreement, Solution Provider shall
retain all marketing rights on any AP(s) and shall be free to use, have
used, market, either directly or through distributors or agents, sell,
lease or otherwise license said AP(s).
15.2 TITLE TO CAA V5 PRODUCT(s) AND CATIA V5 PRODUCT(s) AND
ASSOCIATED WRITTEN MATERIALS
CAA V5 Products and CATIA V5 Products and associated written materials,
including without limitation reports, programs, manuals, listings and
any other documentation, whether in Object Code or not, are and will
remain the exclusive property of DS. All copyrights, patents or other
intellectual property rights applicable thereto as well as to
derivative works, and/or to other materials, products or services
supplied by DS to Solution Provider under this Agreement, shall rest
exclusively with DS, with DS having the exclusive right to obtain and
hold in its own name, copyright, patent registrations of inventions or
discoveries, or such other protection or intellectual property right as
may be available, and any extension thereof.
Solution Provider shall preserve and reproduce any copyright, patent
and/or trademark notices which may appear in the Licensed Product(s)
and associated Documentation and on all copies thereof, whether in
whole or part.
Solution Provider recognizes that the methodologies, technologies,
know-how, ideas, concepts and expressions contained in, or expressed
through, CAA V5 Products, CATIA V5 Products and Licensed Products are
proprietary information of DS and are disclosed to Solution Provider
subject to an obligation of confidentiality and non-disclosure as set
forth in Section 12 above.
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16. PATENT AND COPYRIGHT INDEMNIFICATION
16.1 INDEMNIFICATION BY DS
DS will defend Solution Provider from and against any and all claims
that a Licensed Product delivered under this Agreement infringes (a)
any copyright of a country signatory of the Bern Convention or (b) any
European, United States of America or Canadian patent, provided that
the allegedly infringed patent is registered as of the date of the
Licensed Product's delivery to Solution Provider. This commitment is
conditioned upon Solution Provider (i) providing DS with immediate
written notice of the claim; (ii) giving DS sole control of the defense
to the claim including settlement negotiations if any; and (iii)
providing at its costs reasonable cooperation in the defense against
the claim. Under this commitment, DS will indemnify and hold Solution
Provider harmless from and against the payment of (i) any damages
awarded by any competent court by way of a final decision, (ii) any
settlement indemnity agreed upon by Solution Provider with DS's prior
written approval and according to DS's express written instructions and
(iii) reasonable attorneys fees if any, to the exclusion of any other
payment whatsoever.
If operation of a Licensed Product becomes, or in DS's reasonable
opinion, is likely to become the subject of an infringement claim,
Solution Provider shall permit DS, at DS's option and expense, either
to secure for Solution Provider the right to continue using the
Licensed Product or to modify it, or to replace it with another
computer program which is functionally equivalent. If neither of the
foregoing options is available on terms which are reasonable, Solution
Provider shall destroy or return said Licensed Product, and all copies
thereof, to DS within one (1) month from DS's written request. In such
a case, DS will grant Solution Provider a credit for that portion of
the Yearly Fee paid for this Licensed Product for the last twelve month
period.
DS shall have no obligation with respect to any claim based upon any
modification of Licensed Products by anyone other than DS, or arising
from use of Licensed Products in combination with items, data or
programs not supplied by DS, or use of any release of Licensed Product
other than the most recent release made available by DS.
16.2 INDEMNIFICATION BY SOLUTION PROVIDER
Solution Provider will defend DS from and against any and all claims
that any AP infringes (a) any copyright of a country signatory of the
Bern Convention or (b) any European, United States of America or
Canadian patent, provided that the allegedly infringed patent is
registered as of the date of the AP's delivery to DS. This commitment
is conditioned upon DS (i) providing Solution Provider with immediate
written notice of the claim; (ii) giving Solution Provider sole control
of the defense to the claim including settlement negotiations if any;
and (iii) providing at its costs reasonable cooperation in the defense
against the claim. Under this commitment,
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Solution Provider will indemnify and hold DS harmless from and
against the payment of (i) any damages awarded by any competent
court by way of a final decision, (ii) any settlement indemnity
agreed upon by DS with Solution Provider's prior written approval
and according to Solution Provider's express written instructions
and (iii) reasonable attorneys fees if any, to the exclusion of any
other payment whatsoever.
If operation of an AP becomes, or in Solution Provider's reasonable
opinion, is likely to become the subject of an infringement claim, DS
shall permit Solution Provider, at Solution Provider's option and
expense, either to secure for DS the right to continue using the AP or
to modify it, or to replace it with another computer program which is
functionally equivalent. If neither of the foregoing options is
available on terms which are reasonable, DS shall destroy or return
said AP, and all copies thereof, to Solution Provider within one (1)
month from Solution Provider's written request.
Solution Provider shall have no obligation with respect to any claim
based upon any modification of the AP by anyone other than Solution
Provider, or arising from use of the AP in combination with items, data
or programs not supplied by Solution Provider, or use of any release of
AP other than the most recent release made available by Solution
Provider.
17. WARRANTY AND DISCLAIMER OF WARRANTY
17.1 FOR AP(s) DEVELOPED BY SOLUTION PROVIDER
17.1.1 WARRANTY
For any AP(s) developed pursuant to this Agreement, Solution
Provider represents and warrants that such AP(s) conforms to
the specifications set forth in the corresponding PID when
used in accordance with the terms set forth in the provisions
of said PID, provided that said AP(s) are properly used in the
operating environment in which they are designed to operate as
set forth in their associated Documentation.
Solution Provider represents and warrants (i) the originality
of any AP developed under this Agreement as well as any
release of such AP and (ii) that neither any portion of any
AP, nor the use of any AP, violates any patent, trade secret,
trademark, copyright or any other similar intellectual
property right that belong to any third party.
Solution Provider represents and warrants to DS the
originality of any Preliminary Project Description submitted
to DS for its review hereunder and that such PPD will be free
from any claim of infringement of any patent, trade secret,
trademark, copyright or other intellectual property right or
protection.
17.1.2 DISCLAIMER OF WARRANTY
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SOLUTION PROVIDER HEREBY DISCLAIMS ANY AND ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SOLUTION PROVIDER DOES NOT WARRANT EITHER
THAT ANY AP WILL BE ERROR FREE OR THAT ALL DEFECTS WILL BE
CORRECTED.
17.2 FOR LICENSED PRODUCTS AND OTHER MATERIALS, PRODUCTS AND
SERVICES SUPPLIED BY DS
17.2.1 LIMITED WARRANTY
Solution Provider shall have exclusive responsibility for (a)
the selection of the Licensed Product(s) to achieve its
intended results, (b) the installation of each Licensed
Product selected, (c) taking adequate measures to properly
test, operate and use each Licensed Product and (d) results
obtained therefrom. Solution Provider shall also have
exclusive responsibility for selection, use and results of any
other programs or programming equipment or services used in
connection with the Licensed Product(s).
DS warrants that Licensed Products will materially conform to
their published specifications (or to its reference
documentation if the Licensed Product is an API), for three
(3) month following delivery to Solution Provider, provided
that they are properly used in the operating environment as
specified by DS. If the Licensed Product does not comply with
this warranty, upon written notice of such non-compliance, DS
will attempt to make the Licensed Product perform as
warranted. If after sixty (60) days from notice of the
non-conformance, DS has not provided a conforming Licensed
Product, Solution Provider shall be entitled to cancel the
license to the non-conforming Licensed Product and request a
license on another CAA V5 or CATIA V5 Product as the case may
be at no additional cost or obtain a refund of that portion of
the Yearly Fee paid for this Licensed Product for the last
twelve month period
This warranty does not apply if any Licensed Product has been
(i) modified or altered by Solution Provider, (ii) abused or
misapplied, or (iii) used in an operating environment other
that for which it is designed to operate as set forth in its
associated Documentation.
DS does not warrant that the functions contained in the
Licensed Products will meet Solution Provider's requirements
or will enable it to attain the objectives Solution Provider
has set for itself, or that they will operate in the
combination which may be selected for use by Solution
Provider, or that the operation of the Licensed Products will
be uninterrupted or error free, or that all defects will be
corrected.
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17.2.2 DISCLAIMER OF WARRANTY
THE EXPRESS WARRANTY STATED IN SECTION 17.2.1 ABOVE IS IN LIEU
OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AND
ANY IMPLIED BY LAW WARRANTY AGAINST HIDDEN DEFECTS.
18. LIMITATION OF LIABILITY
18.1 LIMITATION OF SOLUTION PROVIDER'S LIABILITY
EXCEPT FOR CLAIMS FOR PERSONAL INJURY OR DEATH AND EXCEPT AS SET FORTH
IN SECTION 16.2 ABOVE, SOLUTION PROVIDER SHALL NOT BE HELD LIABLE TO DS
FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING
WITHOUT LIMITATION, LOSS OF USE AND/OR DATA, LOSS OF PROFITS, REVENUES,
SAVINGS, GOODWILL AND/OR OTHER ECONOMIC DAMAGES, WHETHER BASED IN
CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY OF
LIABILITY, ARISING OUT OF, OR IN CONNECTION WITH, OR IN ANY WAY
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
18.2 LIMITATION OF DS'S LIABILITY
EXCEPT FOR CLAIMS FOR PERSONAL INJURY OR DEATH AND EXCEPT AS EXPRESSLY
SET FORTH IN SECTION 16.1 ABOVE, DS'S POTENTIAL LIABILITY TO SOLUTION
PROVIDER, INCLUDING ITS SUCCESSORS AND BENEFICIARIES, FOR ANY AND ALL
CLAIMS IN ANYWAY ARISING OUT OF OR IN CONNECTION WITH THE SUBJECT
MATTER OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, TORT,
STRICT LIABILITY OR OTHER THEORY OF LIABILITY IS LIMITED AS FOLLOWS:
- ALL LEGAL ACTIONS AGAINST DS MUST BE FILED WITH THE COMPETENT
COURT WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS
ARISEN AND WAS KNOWN OR SHOULD HAVE BEEN KNOWN BY SOLUTION
PROVIDER.
- DS'S LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED THE GREATER
OF THIRTY THOUSAND DOLLARS (US$ 30,000) OR THE AMOUNT OF THE
YEARLY FEE(S) PAID OVER THE LAST TWELVE MONTH PERIOD FOR THOSE
PRODUCTS AND/OR SERVICES WHICH CAUSED THE DAMAGES.
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- SOLUTION PROVIDER EXPRESSLY AND IRREVOCABLY WAIVES ANY AND ALL
CLAIMS FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE AND/OR
DATA, LOSS OF PROFITS, REVENUES, SAVINGS, GOODWILL AND/OR
OTHER ECONOMIC DAMAGES, WHETHER BASED IN CONTRACT, NEGLIGENCE,
TORT, STRICT LIABILITY OR OTHER THEORY OF LIABILITY, ARISING
OUT OF, OR IN CONNECTION WITH, OR IN ANY WAY RELATING TO, THIS
AGREEMENT, THE LICENSED PRODUCT(S) OR ASSOCIATED
DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES SUPPLIED BY
DS TO SOLUTION PROVIDER HEREUNDER, WHETHER OR NOT DS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING
THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
19. COORDINATORS
Each party will name a Managing Technical Coordinator and a Managing Business
Coordinator who will be responsible for managing its activities under this
Agreement, including without limitation, the initiation of any project of
development, the definition of any AP, the validating and signing of the
corresponding PPD and PID, the development of such AP, the conduct of the
procedure of certification, the parties' cooperation as partners in the CATIA
Galaxy Program during both the initialization and the follow-up phases.
The Managing Technical Coordinators will be in charge of all technical matters
including without limitation all aspects of the definition, development and
certification of the AP(s) and sharing the parties' respective vision and
strategy, while the Managing Business Coordinators will be in charge of the
business aspects of the relationships.
The Managing Technical and Business Coordinators may be assisted respectively by
a Technical Coordinator and a Business Coordinator.
Upon execution of this Agreement, the Managing Technical and Business
Coordinators and Technical and Business Coordinators are:
For Solution Provider :
Managing Technical Coordinator: Dick Sowar
Technical Coordinator: Denise Raven
Managing Business Coordinator: Ron Zabilski
Business Coordinator: Doug Hughes
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For DS:
Managing Technical Coordinator: Severin Lanfranchi
Technical Coordinator: Francois Riche
Managing Business Coordinator: Florence Morache
Business Coordinator: Frederic Vacher
Each party shall give advance written notice in case of replacement of either of
its Managing Technical or Business Coordinators.
The Managing Technical and Business Coordinators of DS and of Solution Provider
shall meet periodically to discuss planned and/or recommended ongoing and future
actions regarding development and/or marketing of any AP(s), new release(s) and
more generally any and all issues possibly arising from the performance of this
Agreement.
20. RELATIONSHIP OF THE PARTIES
The relationship between DS and Solution Provider shall be that of independent
contractors, each party acting as a principal for its own account and at its own
expense and risk.
Nothing contained in this Agreement makes either party a general or special
agent, joint-venturer, corporate partner or any similar relationship between
Solution Provider and DS for any purpose whatsoever. Each party undertakes not
to act or represent itself, directly or by implication, to be an agent of the
other party.
Neither party is granted any right or authority to assume or create any
obligation or liability, express or implied, on behalf of, or in the name of,
the other party or to bind the other party in any way or for any purpose
whatsoever.
21. TERM
21.1 INDEFINITE TERM
Subject to its execution by both parties, this Agreement will come into
force as of its Effective Date for an indefinite Term.
21.2 TERMINATION NOTICE PERIOD
Either party may terminate this Agreement by giving written notice to
that effect providing for a one (1) year Termination Notice Period.
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Under this Section 21.2, the Termination Date of the Agreement,
including all pending PID(s), RFL(s) and Purchase Order(s), will be the
date of expiration of the one (1) year Termination Notice Period as of
receipt of the termination notice.
21.3 NO COMPENSATION OR INDEMNITY
Solution Provider expressly agrees that, should this Agreement be
terminated under this Section 21, the one (1) year Termination Notice
Period enables it to take all appropriate steps and actions to operate
and conduct its business without any assistance from DS. Solution
Provider therefore accepts and expressly declares that it will not be
entitled to any compensation or other indemnity should this Agreement
be terminated under Section 21.
22. TERMINATION
In addition to the right of either party to terminate this Agreement under
Section 21 above, this Agreement may be terminated in the following situations.
22.1 TERMINATION WITHOUT BREACH
22.1.1 TERMINATION FOR FAILURE TO AGREE ON FIRST AP
Should the parties fail to agree on the first AP to be
developed under this Agreement within four (4) month from the
Effective Date, this Agreement may be terminated, as of right
and without legal proceedings, by either party, by sending
written notice to the other with reference to this Section
22.1.1. Under this Section 22.1.1, the Termination Date will
be the date of receipt of the above written notice.
22.1.2 TERMINATION FOR ABSENCE OF ANY ACTIVITY OF SOLUTION
PROVIDER DURING ANY SIX CONSECUTIVE MONTH PERIOD
If at any time during the Term of this Agreement, no AP(s) are
being either developed, marketed or sold by Solution Provider,
without breach by either party of its obligations, during a
period of six (6) consecutive months, the Agreement may be
terminated as of right and without legal proceedings, by
either party, by sending written notice to the other with
reference to this Section 22.1.2. Under this Section 22.1.2,
the Termination Date will be the date of receipt of the above
written notice.
22.1.3 TERMINATION BY SOLUTION PROVIDER OF ANY GIVEN AP
At any time during the Term of this Agreement and in the
absence of any breach by either party, Solution Provider is
entitled to terminate, at its discretion, as of right and
without legal proceedings, the development and/or the
distribution of any given AP (referred to as the "Terminated
AP") by
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sending written notice to DS. For purposes of this Section
22.1.3, the Termination Date of the PID, RFL(s) and Purchase
Order(s) relating to the Terminated AP, will be the date of
receipt of the above written notice.
The Agreement will only be deemed terminated with regard to
the Terminated AP for which the relevant provisions of Section
23 below will apply. This Agreement will remain in full force
and effect in all other respects, including with respects to
any other AP(s).
22.2 TERMINATION FOR BREACH BY DS
If DS has failed to remedy the breach of its obligations with respect
to any given AP within one (1) month of receipt of Solution Provider's
written notice to cure, Solution Provider will be entitled to terminate
the PID, RFL(s) and Purchase Order(s) corresponding to that AP only
(referred to as the "Terminated AP").
If DS has failed to remedy the breach of its obligations with respect
to the whole Agreement, within one (1) month of receipt of Solution
Provider's written notice to cure, then only will Solution Provider be
entitled to terminate this whole Agreement.
Solution Provider will terminate the PID, RFL(s) and Purchase Order(s)
corresponding to the Terminated AP or of the Agreement, as the case may
be, as of right and without legal proceedings, by sending a written
termination notice.
For purposes of this Section 22.2, the Termination Date of (i) the PID,
RFL(s) and Purchase Order(s) of the Terminated AP or (ii) the
Agreement, as applicable, will be, at Solution Provider's discretion,
either the expiration of (a) a six (6) month period as of receipt by DS
of the termination notice or (b) the remaining term of licenses pending
for the Terminated AP (i.e. following 31st of January), or the longest
of (a) and (b) in the absence of choice by Solution Provider.
In case of termination of the PID, RFL(s) and Purchase Order(s) of any
Terminated AP, the Agreement will only be deemed terminated with regard
to that Terminated AP, and will remain in full force and effect in all
respects with regards to any other AP(s).
22.3 TERMINATION FOR BREACH BY SOLUTION PROVIDER
22.3.1 TERMINATION OF ANY GIVEN AP
If Solution Provider has failed to remedy the breach of its
obligations with respect to any given AP (referred to as the
"Terminated AP") within one (1) month of receipt of DS's
written notice to cure, DS will be entitled to, at its
discretion, either (i) enjoin the loss of the CAA V5
certification of the Terminated AP or (ii) terminate the PID,
RFL(s) and Purchase Order(s) corresponding to the Terminated
AP.
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(a) LOSS OF CAA V5 CERTIFICATION
Within one (1) month of the receipt by Solution
Provider of the notice of loss of certification of the
Terminated AP, Solution Provider will at its exclusive
costs :
- delete the "CAA V5 Certified" logotype
from the Terminated AP and;
- inform its customers in writing with
respect to the loss of certification of
such Terminated AP.
Within six (6) month of the receipt by Solution
Provider of the notice of loss of certification of the
Terminated AP, Solution Provider will be required to
take all appropriate steps and actions including any
modification or enhancement of the Terminated AP in
order to obtain for the Terminated AP to be
re-certified within that six month time period
according to the procedure set forth in Section 10
above. In the absence of such certification with the
above six (6) month notice period, DS will be entitled
to terminate the PID, RFL(s) and Purchase Order(s)
relating to the Terminated AP as set forth in
paragraph (b) below.
(b) TERMINATION OF AP
DS will terminate the PID, RFL(s) and Purchase
Order(s) corresponding to the Terminated AP, as of
right and without legal proceedings, by sending a
written termination notice, if Solution Provider has
failed to remedy such breach within the above one (1)
month cure period.
Under this Section 22.3.1, the Termination Date of the
PID, RFL(s) and Purchase Order(s) relating to the
Terminated AP will be the date of expiration of a one
(1) month period as of receipt by Solution Provider of
the notice of termination.
22.3.2 TERMINATION OF THE AGREEMENT
DS will be entitled to terminate the Agreement under this
Section 22.3.2, if Solution Provider has failed to remedy its
breach within one (1) month of receipt of DS's written notice
to cure, in the following instances:
- in case of breach by Solution Provider of its
general obligations under this Agreement,
including without limitation of the general
conditions & criteria of the CATIA V5 Galaxy
Program set forth in Section 3.1 above;
- in case of repeated breaches under Section 22.3.1
above, and/or
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- in case of material breach by Solution Provider.
For purposes of this Section, will be deemed a
material breach by Solution Provider, any breach
of Sections 5, 6, 13.1, 13.2 and/or 14, as well
as any other serious breach impeding or altering
the cooperation between the parties under this
Agreement.
(a) PROPOSAL OF DESIGNATION AS "MEMBER" IN CATIA
V5 GALAXY PROGRAM
DS will be entitled to, at its discretion, include in
the termination notice a proposal to Solution Provider
to remain in the CATIA V5 Galaxy Program, with the
status of "Member" and the associated financial and
other conditions, provided however that Royalties will
remain due on any sales of APs as set forth under
Section 6.3 above.
If DS at its discretion makes a proposal to Solution
Provider to remain in the CATIA V5 Galaxy Program,
such proposal will be subject to the parties coming to
an agreement and executing the membership agreement
then in force within the three (3) month notice period
set forth above. In the absence of execution of a
membership agreement, this Agreement including all
pending PID(s), RFL(s) and Purchase Order(s) will
terminate as set forth in paragraph (b) below.
(b) TERMINATION OF THE AGREEMENT
The Agreement, including all pending PID(s), RFL(s)
and Purchase Order(s), will terminate, as of right and
without legal proceedings, upon expiration of a three
(3) month period as of receipt by Solution Provider of
the termination notice sent by DS.
Under Section 22.3.2, the Termination Date of this
Agreement will be the date of expiration of the three
(3) month Termination Notice Period.
22.4 TERMINATION FOR CHANGE OF CONTROL
This Agreement may be terminated, as of right and without legal
proceedings, by DS in case of change of control as set forth under
Section 14 above.
The Agreement including any PID(s), RFL(s) and Purchase Order(s)
thereunder shall terminate automatically upon receipt of a written
notice referring to this Section (the "Termination Date" under this
Section 22.4).
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23. CONSEQUENCES OF TERMINATION
23.1 DURING TERMINATION NOTICE PERIOD
The following provisions will apply during the Termination Notice
Period if any.
23.1.1 PENDING LICENSES
(a) TERMINATION OF AN AP
In case of termination of an AP, all licenses on Licensed
Product(s) relating to the Terminated AP in force upon receipt
of the termination notice of the Terminated AP will remain in
full force and effect, and, if need be, will be renewed by DS
so as to remain effective, until the Termination Date. DS will
NOT grant any license to Solution Provider on additional, new
or different CAA V5 and/or CATIA V5 Product(s), except for
AP(s) other than the Terminated AP if applicable.
(b) TERMINATION OF THE AGREEMENT
In case of termination of this Agreement, all licenses on
Licensed Product(s) in force upon receipt of the termination
notice will remain in full force and effect, and, if need be,
will be renewed by DS so as to remain effective, until the
Termination Date. DS will NOT grant any license to Solution
Provider on additional, new or different CAA V5 and/or CATIA
V5 Product(s).
(c) TERMINATION FOR BREACH BY SOLUTION PROVIDER
In case of termination of an AP or of this Agreement for
breach by Solution Provider under Section 22.3, Solution
Provider will not benefit from any support and maintenance
under Section 5.1.6 on those licenses which will remain in
force during the Termination Notice Period. Furthermore, (i)
all amounts payable under this Agreement shall become
immediately due upon receipt of the notice of termination (ii)
DS will be entitled to suspend any further delivery of
licenses or other products or services to Solution Provider
hereunder until the default is cured by Solution Provider and
(iii) DS shall be entitled to proceed by court action or file
any claim in order to enforce performance of this Agreement
and/or recover damages for breach by Solution Provider of this
Agreement.
23.1.2 MARKETING AND DISTRIBUTION OF AP(s)
In case of termination of either any Terminated AP or this
Agreement, Solution Provider will be entitled to continue the
marketing and distribution of any AP(s) (including any
Terminated AP) to its customers.
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However, because Solution Provider will not benefit from any
maintenance and support under Section 5.1.6 as of the
Termination Date, it cannot guarantee to its customers the
compatibility of the AP(s) licensed to its customers, or of
the Terminated AP as the case may be, with new release(s) of
any pre-requested CATIA V5 Product(s) and shall take all
appropriate actions vis-a-vis its customers in this respect,
including without limitation, a mandatory information in
writing with copy to DS, at any time during the Termination
Notice Period, on the absence of maintenance, support and
guarantee of compatibility as of the Termination Date.
In case of termination of either any Terminated AP or this
Agreement, Solution Provider will not benefit from any
marketing support from DS under Section 11 above, respectively
for the Terminated AP or for all AP(s).
Royalties will be due under Section 6.3 on all and any sales
of AP(s).
23.2 UPON THE TERMINATION DATE
23.2.1 EXPIRATION OR TERMINATION OF LICENSES
Upon the Termination Date of either (i) the PID, RFL(s) and
Purchase Order(s) relating to a Terminated AP or (ii) this
Agreement, for any reason whatsoever, all licenses granted by
DS to Solution Provider in relation to the Terminated AP or
under this Agreement, as applicable, that are still pending
will terminate or expire, and DS will be entitled to cancel
any unfilled RFL(s) or Purchase Order(s), whether accepted or
not.
Within one (1) month after the Termination Date of any
Terminated AP or of this Agreement, for any reason whatsoever,
Solution Provider shall certify in writing that all copies of
Licensed Products which license is terminated or has expired,
and associated Documentation, have been destroyed or returned
to DS.
23.2.2 FEES, ROYALTIES AND OTHER AMOUNTS DUE TO DS
The Subscription Fee, Yearly Fees, Flat Fees, Royalties and
other fees or charges accrued prior to the Termination Date of
any Terminated AP or of this Agreement for any reason
whatsoever will become immediately payable.
Solution Provider will not be entitled to (i) any
reimbursement of the Subscription Fee, Yearly Fees, Flat Fees,
Royalties or other fees or charges possibly paid to DS prior
to the Termination Date and (ii) any compensation of any
damage or loss possibly suffered or expenses or costs possibly
incurred in relation with the termination of the Terminated AP
or this Agreement.
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In no event shall DS be liable for any costs, expenses, or
other economic or financial loss, arising out of or in
connection with the termination or discharge of Solution
Provider's employees or agents as a direct or indirect result
of termination of any Terminated AP or this Agreement.
23.2.3 SALE OF AP(S)
As of the Termination Date, Solution Provider remains entitled
to continue the marketing and distribution of the AP(s)
(including any Terminated AP) to its customers, at its
exclusive risks and costs. Royalties are due under Section 6.3
on all and any sales of AP(s), except in case of termination
for material breach by DS, and Solution Provider must comply
with the reporting provisions of Section 6.3.3.
23.2.4 DELETION OF "CAA V5 CERTIFIED" LOGOTYPE
Solution Provider will only be entitled to maintain the "CAA
V5 Certified" logotype on that certified release of any AP in
force upon the Termination Date, and shall not use, reproduce
or display the "CAA V5 Certified" logotype on any further
release of the AP which may be issued after the Termination
Date.
In case of termination of a Terminated AP or of this Agreement
for breach by Solution Provider, Solution Provider must,
within ten (10) days from the Termination Date and at its
exclusive costs, delete the "CAA V5 Certified" logotype from
all AP(s).
23.2.5 DELETION OF "DASSAULT SYSTEMES PARTNER" LOGOTYPE
Within ten (10) days after the Termination Date of this
Agreement, Solution Provider shall cease production and/or
distribution and return to DS or destroy, at DS's discretion,
all signs, literature, logos, documentation and other
materials on which the "Dassault Systemes Partner" logotype
appears or otherwise identifying DS.
24. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the Laws
of the State of New York, applicable to contracts executed in and to be
performed entirely within that state (without regard to the conflicts of Law
provisions thereof). This Agreement shall not be governed by the U.N. Convention
on Contracts for the International Sale of Goods.
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25. JURISDICTION
The parties hereto hereby agree to (a) submit to the exclusive jurisdiction of
any court of competent jurisdiction sitting in the State of Delaware, The City
of Wilmington for the purpose of any Action arising out of or relating to this
Agreement brought by any Party hereto, and (b) agree, to the fullest extent
permitted by applicable law, to waive, and not to assert by way of motion,
defense, or otherwise, in any such Action, any claim that is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the Action is brought in an
inconvenient forum, that the venue of the Action is improper, or that this
Agreement may not be enforced in or by any of the above-named courts.
EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
ACTIONS OR PROCEEDINGS DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
26. EXPORT AND RE-EXPORT LAWS AND REGULATIONS
Export to Solution Provider of Licensed Product(s) and associated
Documentation(s) is subject to all applicable French, European Union, United
States of America and other originating country's export and re-export laws and
regulations and, in particular, French regulations concerning the Verification
of Final Destinations. Solution Provider shall provide DS with all reasonably
necessary assistance related to applications for such authorizations, licenses
and other approvals, or other documentation related to the export or re-export
of Licensed Products.
Solution Provider shall not export or re-export, directly or indirectly,
Licensed Products (including any part of a Licensed Product or any direct
product of such Licensed Product) or associated Documentation, or confidential
information or technical data related thereto, into any of those countries
referred to by any applicable French, European Union, United States of America
or other originating country's export and re-export laws and regulations as
"prohibited or restricted" countries, or into any other country to which such
exports or re-exports may be restricted (collectively, the "Prohibited
Countries"), unless and until Solution Provider has obtained the appropriate
export or re-export authorization, license or other approval from the competent
authorities.
Solution Provider further agrees not to supply, provide or otherwise communicate
the Licensed Product(s) (including any part of a Licensed Product or any direct
product of such Licensed Product), or associated Documentation, or related
confidential information or technical data related thereto, to any person if
Solution Provider has reason to believe that such person intends to export,
re-export or otherwise transfer the same to, or use the same in, any of the
Prohibited Countries. Solution Provider agrees to seek reasonable written
assurances in the form of binding covenants from its customers of AP(s) as may
from time to time be requested by DS.
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Generally, Solution Provider shall not commit any act which would, directly or
indirectly, violate any of the laws and regulations referred to above. In
addition to any indemnity under this Agreement, Solution Provider shall
indemnify and hold DS harmless from and against any and all claims, damages and
liabilities asserted by any person or entity against DS, directly or indirectly
resulting from, or arising out of, a breach of this Section 26 by Solution
Provider or any of its customers.
27. NOTICES
All notices required or permitted under this Agreement shall be in writing, in
English language, and shall be sent (i) by registered or certified mail, postage
prepaid, with return receipt requested or (ii) by express international courier
(DHL, Federal Express, etc.), to the parties' addresses as set forth below or
such other address as either party may designate to the other by notice sent as
hereby requested. When feasible, a copy of any such notice shall also be
transmitted by facsimile.
NOTICES TO SOLUTION PROVIDER:
PlanetCAD Inc.
2520 55th Street, Suite 200
Boulder, CO 80301
U.S.A.
Attn. Managing Technical Coordinator
and Managing Business Coordinator
Fax N(degree): 1 (303) 209 92 00
NOTICES TO DS:
Dassault Systemes
9, Quai Marcel Dassault
BP 310, 92156 Suresnes Cedex
France
Attn. Managing Technical Coordinator
and Managing Business Coordinator
Fax N(degree): (33) 1 40 99 41 41
Such notices will be deemed received upon the third (3rd) day following the
mailing or delivery to the post or express international courier carrier, as the
case may be.
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28. MISCELLANEOUS
28.1 FORCE MAJEURE
Neither party shall be held liable for any loss, injury, delay, expenses,
damages or other casualty suffered or incurred by the other party, as a result
of its failure to fulfill any obligation under this Agreement, where such
failure arises out of or in relation with any causes beyond its reasonable
control including without limitation: Acts of God, fires, storms, floods,
earthquakes, acts of war, governmental acts or other laws or regulations,
strikes, lockouts, labor disputes, or export or re-export regulations and
formalities.
28.2 NO SALE, TRANSFER, ASSIGNMENT OR SUBCONTRACT
Neither party shall sell, transfer, assign or subcontract any right or
obligation under this Agreement without the prior written consent of the other
party, including without limitation, as part of any sale, transfer or
assignment, of all or part of the business to which all or part of this
Agreement pertains. If approved in writing by the other party, any such sale,
transfer, assignment or subcontract is conditioned upon the first party
guaranteeing the obligations, responsibilities and liabilities of its purchaser,
transferee, assignee or subcontractor.
However, DS is entitled to sell, transfer, assign or subcontract all or part of
this Agreement to any company of the DS Group, without notice to Solution
Provider and without consent of Solution Provider.
28.3 SEVERABILITY
To the fullest extent possible each provision of this Agreement shall be
interpreted in such fashion as to be effective and valid under applicable law.
Should any provision(s) of this Agreement be found invalid, illegal, void or
unenforceable by any competent authority in any respect, the remaining
provisions of this Agreement shall remain in full force and effect and be
binding with the same effect as if the invalid, illegal, void or unenforceable
provision(s) was originally deleted.
28.4 ENTIRE AGREEMENT
With the exception of the CNDA, this Agreement including the PID(s), RFL(s) and
Purchase Order(s) duly accepted and other exhibits, amendments or supplements
thereto, embodies the complete and exclusive agreement between the parties and
supersedes all proposals, or prior agreements, understandings, representations,
purchase order(s) or communications, whether oral or written, in respect of the
subject matter thereof.
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28.5 AMENDMENT TO AGREEMENT
This Agreement shall not be modified or amended except by way of a written
agreement referred to as an amendment to this Agreement and duly signed by
authorized officers of both Solution Provider and DS.
28.6 CONFIDENTIALITY ON AGREEMENT
During the Term of this Agreement, each party will use its best efforts not to
disclose the terms and conditions of this Agreement to any third party without
the prior written consent of the other party, except as provided for herein, as
required by law or governmental regulations, requirements or orders, or as may
be necessary to establish or assert its rights hereunder before any competent
court.
28.7 IRREPARABLE INJURY
Each party acknowledges and agrees that each covenant in this Agreement
pertaining to confidential information and/or ownership of intellectual property
is reasonable and necessary to protect and preserve the rights of the other
party in its confidential information and/or intellectual property, and that any
breach by such party of the terms of this Agreement may result in irreparable
injury to the other party. Each party, therefore, subject to a claim of laches,
estoppel, acquiescence or other delay in seeking relief, consents and agrees
that the other party shall be entitled to seek and obtain a temporary
restraining order and a permanent injunction to prevent a breach or contemplated
breach of this Agreement and waives any requirement that the other party post a
bond in connection with seeking such injunctive relief.
28.8 NON-WAIVER
The failure or delay of either party in exercising or enforcing any right,
remedy or other provision under this Agreement shall not operate as, or be
construed to be, a waiver of such right, remedy or provision which may be
exercised or enforced at any time thereafter.
28.9 COUNTERPARTS
This Agreement as well as all PID(s), RFL(s), Purchase Order(s) and other
exhibit, supplements and amendments thereto, will be executed in two copies,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
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28.10 SURVIVING PROVISIONS
The parties agree that the following Sections shall survive the expiration or
termination of this Agreement for any reason whatsoever: Section 6 - Financial
Consideration, Section 7 - Payment, Section 12 - Information Exchanges, Section
13 - Restrictions to Solution Provider's Activity, Section 15 - Ownership,
Section 16 - Patent and Copyright Indemnification, Section 17 - Warranty and
Disclaimer of Warranty, Section 18 - Limitation of Liability, Section 23 -
Consequences of Termination, Section 24 - Governing Law, Section 25 - Competent
Court, Section 26 - Export and Re-export Laws and Regulations and Section 28 -
Miscellaneous.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers as of the date last written below.
SOLUTION PROVIDER DASSAULT SYSTEMES
/S/ R. BRUCE MORGAN /S/ THIBAULT DE TERSANT
SIGNATURE SIGNATURE
NAME: R. BRUCE MORGAN TITLE: EXEC.VICE PRESIDENT
TITLE: CHIEF EXECUTIVE OFFICER DATE:
DATE: ------------------
--------------------
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