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EXHIBIT 10.4
SERVER SOFTWARE
LICENSE AGREEMENT
This License Agreement, dated as of November 14, 2000 (this
"Agreement"), is made by and between Dassault Systemes, a SOCIETE ANONYME
organized under the laws of France and the owner of Purchaser ("Dassault
Systemes") and/or certain affiliates of Dassault Systemes, and PlanetCAD Inc.
(formerly known as Spatial Technology Inc.), a corporation organized under the
laws of the State of Delaware ("PlanetCAD") (each a "Party," together, the
"Parties").
WITNESSETH:
WHEREAS, PlanetCAD, SPATIAL COMPONENTS, LLC and DASSAULT
SYSTEMES CORP. entered into a certain Purchase Agreement, dated July 4, 2000
("Purchase Agreement"), pursuant to which DASSAULT SYSTEMES CORP. acquired the
Component Business (as defined in the Purchase Agreement) from PlanetCAD and
SPATIAL COMPONENTS, LLC, including certain software; and
WHEREAS, in connection with the Purchase Agreement and as a
condition to closing the transaction contemplated thereunder PlanetCAD has
agreed to license its Server Software (as defined below) to Dassault Systemes
and to provide certain software support and maintenance services in connection
therewith, all in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants set forth in the Purchase Agreement and in this
Agreement, and intending to be legally bound hereby, the Parties hereby agree as
follows:
1. DEFINITIONS
As used in this Agreement, the terms defined in this Section shall have the
following respective meanings. Capitalized terms not otherwise defined herein
shall have the same meanings as set forth in the Purchase Agreement.
AFFILIATE(S) shall mean, with respect to any specified Person, any other Person
that, directly or indirectly Controls, is Controlled by, or is under common
Control with such Person.
ASP(S) shall mean for this Agreement, application services provider, i.e.
service(s) offered on line, through Web sites or as enterprise versions offered
on corporate Intranets, allowing end users to use an application software
functionality, provided by either party on its Web site or on a corporate server
in the case of enterprise versions, on a one task at a time or subscription
basis, and charged to the end user as such, with no access to the underlying
software application that allows the technical work of the task to be performed.
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CNDA shall mean the Confidential and Non-Disclosure Agreement among, inter alia,
PlanetCAD and Dassault Systemes executed contemporaneously herewith.
COMPETITOR shall mean any Person of which a significant part of its business is
building, developing or providing server software or Web middleware services to
third parties in the CAD/CAM field.
CONTROL, with respect to the relationship between or among two or more Persons,
shall mean the possession, directly or indirectly, or as trustee or executor, of
the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person; provided that neither PlanetCAD nor Dassault Systemes shall be deemed to
be controlled by any other Person or under common control with any Person that
is not one of their respective subsidiaries.
DERIVATIVE WORK(S), means, related to Software, a work which is based upon in
whole or in part of such Software, such as a revision, enhancement,
modification, translation, abridgment, condensation, expansion, or any other
form in which such Software may be recast, transformed, or adapted, or which, if
prepared without authorization of the owner of the copyright or other
intellectual property right in such Software, would constitute a copyright
infringement or other violation of the intellectual property rights. A
Derivative Work shall also include, without limitation, compilations or
link-edits, improvements, bug fixes, corrections, look and feel changes,
upgrades, updates and new versions that incorporate such Software in whole or
part.
EFFECTIVE DATE is November 14, 2000.
INTELLECTUAL PROPERTY shall mean (a) inventions, whether or not patentable,
whether or not reduced to practice, and whether or not yet made the subject of a
pending patent application or applications, (b) ideas and conceptions of
potentially patentable subject matter, including without limitation, any patent
disclosures whether or not reduced to practice and whether or not yet made the
subject of a pending patent application or applications, (c) Patents, (d)
Trademarks, (e) copyrights (registered or otherwise) and registrations and
applications for registration thereof, all moral rights of authors therein, and
all rights therein provided by international treaties, conventions or common
law, (f) Software, (g) Trade Secrets, and (h) all rights to sue and recover
damages and obtain injunctive relief for past, present and future infringement,
dilution, misappropriation, violation or breach thereof.
KNOW-HOW shall mean all residual information of a non-tangible form, which is
not protected by the United States or European Union laws of copyright, patent
or trade secrets and which may be retained by a party who has had access to
confidential and proprietary information of the other party, including ideas,
concepts or techniques contained therein.
OBJECT CODE shall mean computer-programming code, substantially or entirely in
binary form, that is directly executable by a computer after suitable
processing, but without the intervening steps of assembly, compilation or
link-edit.
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PERSON(S) shall mean any individual or legal entity, including without
limitation, partnership, corporation, association, trust or unincorporated
organization.
RUN-TIME shall designate all software materials and databases that are necessary
to use any Software as well as this Software itself.
SERVER SOFTWARE means all software, including without limitation, Web interface,
Web middleware, Web dynamic content billing, Web content generation software,
and any Derivative Works thereof that is used by PlanetCAD to provide
application services over the Internet, including all upgrades, enhancements or
updates delivered under the maintenance and support terms of this Agreement. The
list of all such Software, including the Third Party Software, as of the date of
execution of this Agreement, is attached in SCHEDULE A which will be updated by
PlanetCAD when reasonably requested by Dassault Systemes and when in PlanetCAD's
determination significant changes have been made.
SOFTWARE shall mean any computer software program, including programming-code,
on-line documentation, if any, user interface related thereto or associated
therewith, to the extent that such user interface does exist, and related user
and installation documentation other than on-line documentation associated
with this computer software program.
SOURCE CODE shall mean computer-programming code and related system
documentation, comments and procedural code, that is not directly executable by
a computer but which may be printed out or displayed in a form readable and
understandable by a qualified programmer.
THIRD PARTY SOFTWARE shall mean computer software programs owned by a party
other than PlanetCAD and incorporated into or currently used by PlanetCAD in
connection with the Server Software.
2. PURPOSE
Subject to the terms and conditions herein, PlanetCAD agrees to license the
Server Software and to provide certain maintenance and support services in
connection therewith to Dassault Systemes.
3. OWNERSHIP RIGHTS AND LICENSES
3.1 SERVER SOFTWARE.
3.1.1 OWNERSHIP OF SERVER SOFTWARE. Except for the limited
rights granted Dassault Systemes in this SECTION 3,
all right, title and interest in and to the Server
Software and Derivative Works thereof created under
this Agreement by PlanetCAD shall remain with
PlanetCAD.
3.1.2 LICENSE TO SERVER SOFTWARE. As of the Effective Date
and except as provided for in SECTION 9.18, PlanetCAD
grants to Dassault Systemes a
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perpetual, non-transferable, non-exclusive,
worldwide license to use the Object Code and Source
Code of the Server Software internally to enable
Dassault Systemes to offer to its customers on line
ASPs (Application Services Provider) and other
products or services that incorporate or are based
upon the Server Software. This license shall
further permit Dassault Systemes to sell,
distribute, use, license, maintain, support and
make Derivative Works of the Server Software in
connection with products or services created by or
for Dassault Systemes. Notwithstanding the
foregoing, Dassault Systemes shall not have the
right hereunder to reproduce, sell or distribute
the Server Software or Derivative Works except to
the extent the Server Software is incorporated in
and necessary to run such Dassault Systemes
products or services. Dassault Systemes will have
no right to transfer this license to any third
party for use on any third party Web site. For
purposes of this Section, a Dassault Systemes
Affiliate shall not be deemed to be a third party,
for as long as it remains an Affiliate.
3.1.3 THIRD PARTY SOFTWARE. SCHEDULE B sets forth (i) a
list of Third Party Software development tools used
in creating the Server Software and (ii) all other
Third Party Software used by PlanetCAD in connection
with or relating to the Server Software. It is
understood by the parties that (i) PlanetCAD will not
be assigning or granting any licenses to Dassault
Systemes in or to such Third Party Software and (ii)
to the extent Dassault Systemes would like to use
such Third Party Software in connection with Dassault
Systemes' use of the Server Software licensed
hereunder, Dassault Systemes must obtain an
independent license therefore.
3.2 DERIVATIVE WORKS.
3.2.1 DELIVERY OF DERIVATIVE WORKS
(i) At the end of each quarter, in the event that
Dassault Systemes has made any Derivative Work from
the Server Software, Dassault Systemes shall deliver
to PlanetCAD one copy of the Source Code of such
Derivative Work, in a sealed and dated envelope, in
the form of a CD-ROM, or other appropriate media.
(ii) Such items shall be sent to PlanetCAD by
international registered mail to the following
address:
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PlanetCAD Inc.
2520 55th Street, Suite 200
Boulder, Colorado 80301
Attn. Office of the President
(iii) PlanetCAD shall have no obligation to include and/or
maintain all or part of the Derivative Works of the
Server Software made by Dassault Systemes.
(iv) The rights and obligations of the Parties contained
in this SECTION 3.2.1 shall automatically terminate
upon discontinuation of maintenance and support
services by PlanetCAD pursuant to SECTIONS 4.1, 4.2,
8.2 OR 9.17(a).
3.2.2 OWNERSHIP OF DERIVATIVE WORKS. The Parties agree that
all right, title and interest in and to all or part
of the Derivative Works of the Server Software made
by Dassault Systemes pursuant to SECTION 3.2.1(i)
shall be owned exclusively by PlanetCAD. Dassault
Systemes understands and agrees that such Derivative
Works of the Server Software made by Dassault
Systemes, as well as any portion thereof, shall be
the sole property of PlanetCAD from date of creation
and, to the extent permitted by law, shall be
considered as works made for hire under the copyright
laws of the United States of America. To the extent
an assignment is necessary and that this assignment
cannot be made at present, Dassault Systemes agrees
to assign to PlanetCAD all of its right, title and
interest in and to these Derivative Works, and any
part thereof, and in and to all copyrights, patents
and other proprietary rights Dassault Systemes may
have in such Derivative Works.
The Parties however agree that Dassault Systemes
shall remain the owner of such Derivative Work should
such Derivative Work be Software (i) developed by or
for Dassault Systemes and using all or part of the
Server Software as a component of an application or
service (i.e. embedded or included in whole or in
part in such other Software), and (ii) as long as
such Software or service contains new functionality,
significant value added, or creates a new function
that is packaged as a standalone product and which
user interface is different from the existing Server
Software. The Parties also agree that application of
an alternative interface technology if this interface
is not combined with other significant application
level functionalities shall not be considered as
having significant added value.
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3.2.3 LICENSE GRANT TO DERIVATIVE WORKS. Effective upon
delivery of each Derivative Work as contemplated by
SECTION 3.2.1(ii), PlanetCAD hereby grants to
Dassault Systemes a perpetual, worldwide,
irrevocable, non-exclusive license to use, prepare,
compile, install, execute, access, reproduce,
distribute and sell the Derivative Works delivered by
Dassault Systemes under Section 3.2.1(i), subject to
the royalty fees set forth in SECTION 5.1.
3.3 KNOW-HOW. The parties hereby acknowledge and agree that any
and all rights to Know-How developed or shared under this
Agreement by either Party shall be jointly owned by the
Parties and may be used by either party in the operation of
their respective businesses during and following termination
of this Agreement.
3.4 TRADEMARKS. Notwithstanding any other provisions of this
Agreement, neither Party shall have the right under this
Agreement to use the other Party's trademarks or trade names
in connection with any product, service, promotion, public
announcement, advertisement or other publication, without
securing the prior written consent of such other Party.
4. MAINTENANCE AND SUPPORT
4.1 MAINTENANCE AND SUPPORT FOR THE SERVER SOFTWARE. Subject to
SECTIONS 4.2, 8.2 AND 9.17(a), PlanetCAD shall provide
Dassault Systemes with four years maintenance and support for
the Server Software, beginning at the Effective Date. The
description of maintenance and support services to be provided
by PlanetCAD is set forth in the Maintenance and Support
Services Schedule, attached hereto as SCHEDULE C and
incorporated herein by reference.
4.2 CHANGE OF CONTROL OF DASSAULT SYSTEMES. PlanetCAD will not be
required to continue providing maintenance or support
services, as set forth in SCHEDULE C, for the Server Software
if there is a change of Control of Dassault Systemes to the
benefit of a Competitor of PlanetCAD.
5. ROYALTY FEES
5.1 ROYALTIES ON SERVER SOFTWARE. In consideration of the license
granted by PlanetCAD on the Server Software, Dassault Systemes
will pay a royalty equal to 3% of the Net Revenue recognized
by Dassault Systemes per year from sales of any products or
services offered directly or indirectly by Dassault Systemes
that incorporate or are facilitated by the Server Software.
The Server Software as modified by the Derivative Works shall
be subject to the royalty obligations set forth in this
SECTION 5.1, however, no incremental or additional royalty
obligations shall be applied to Derivative Works of the Server
Software.
5.2 DEFINITION OF NET REVENUE. Net Revenue shall consist of all
revenues recognized by Dassault Systemes from the sale of
Dassault Systemes services or products
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incorporating or facilitated by the Server Software,
including the price paid by the customers, less any
applicable discounts and net of any commissions or fees paid
to third party resellers, to obtain access to such products
or services and any other fees and charges invoiced by
Dassault Systemes to the customers, without deduction by
such party of any other costs or expenses related to
achievement of the revenue, PROVIDED, HOWEVER, that Net
Revenue shall be reduced by the amount, if any, of (i)
value-added taxes, (ii) sales taxes or (iii) withholding
taxes imposed by any jurisdiction on payments made by a
payor in such jurisdiction to a payee outside of such
jurisdiction. Net Revenue will not include revenues
recognized by Dassault Systemes for the sale of products or
services authorized by or created under the Co-Branding
Agreement and/or Web Services Agreement, executed by the
Parties concurrently herewith, which allow for the use of
the Server Software as set forth under the terms of each
respective agreement.
5.3 INITIAL LICENSE FEE. Dassault Systemes shall pay an initial
license fee of USD 125,000.00, due net 30 days from Dassault
Systemes' exercise of its option under this Agreement, which
must be exercised on or before the Closing Date, as defined in
the Purchase Agreement. The initial license fee shall be
considered a prepaid royalty for the Server Software. For
future royalty obligations due on the Server Software, the
initial license fee shall be offset by Dassault Systemes at a
rate of 50% on the dollar value of royalties owed PlanetCAD
until the full value of the prepaid royalty is consumed.
5.4 PAYMENTS. All payments shall be made in U.S. dollars by bank
check or electronic transfer to a bank account designated by
PlanetCAD.
5.5 TAXES. Dassault Systemes shall pay, without recourse to
PlanetCAD, 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 United States or European taxing authority, except for
taxes based on PlanetCAD'S net income.
5.6 AUDIT AND REPORTING. Dassault Systemes shall, for two years
following each transaction that is subject to royalty payments
pursuant to SECTION 5.1, keep true and accurate records and
books of account of such transaction containing all
particulars which may be necessary for the purpose of auditing
payments to PlanetCAD under this Agreement. During such two
year period, and upon reasonable notice to Dassault Systemes,
PlanetCAD shall have the right to have an audit conducted
through a licensed independent accounting firm, of any
billings, collections, and taxes on such itemized statement,
and to examine the records and books of account of Dassault
Systemes in connection therewith. Dassault Systemes will bear
the costs of such audit if a discrepancy or error of
computation in an amount greater than USD 10,000 in favor of
PlanetCAD is identified. Any audit conducted pursuant to this
SECTION 5.6 shall not be conducted in such a manner as to
unreasonably interfere with the Dassault Systemes' operations
and in no event shall an audit be conducted more frequently
than once each year.
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6. WARRANTIES AND DISCLAIMER OF WARRANTIES
6.1 MUTUAL REPRESENTATIONS. Each Party represents and warrants to
the other Party that such Party:
(i) Has suitable agreements with its respective employees to
meet the confidentiality obligations under this
Agreement; and
(ii) It is under no obligation or restriction, and will not
assume any obligation or restriction, that would
prevent it from performing its obligations under this
Agreement.
6.2 PLANETCAD REPRESENTATIONS. PlanetCAD represents and warrants
to Dassault Systemes that it owns and/or has valid licenses in
all rights, title and interest in and to the Server Software.
6.3 DISCLAIMER OF WARRANTIES. THE FOREGOING WARRANTIES AND
CONDITIONS ARE EXCLUSIVE OF, AND THE PARTIES DISCLAIM ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE, USE, OR REQUIREMENT.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, ANY
INFORMATION OR MATERIALS FURNISHED BY EITHER PARTY TO THE
OTHER ARE PROVIDED ON AN "AS IS" BASIS.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION
7.1 LIMITATION OF LIABILITY. WITH THE EXCEPTION OF CLAIMS FOR (i)
PERSONAL INJURY OR DEATH, (ii) INTELLECTUAL PROPERTY
INFRINGEMENT INDEMNIFICATION, AS SET FORTH IN SECTION 7.2, AND
(iii) THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 9.1:
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
EXEMPLARY, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF
ANY KIND, INCLUDING ANY LOST PROFITS, LOST SAVINGS, LOST STAFF
TIME OR OTHER ECONOMIC DAMAGES ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
7.2 INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION. PlanetCAD
agrees to hold Dassault Systemes, its subsidiaries,
distributors, assignees and Affiliates, and their respective
officers, directors, employees, agents, representatives and
shareholders (collectively referred to in this Section as
"Dassault Systemes") harmless from and against any claim of
any nature, including, but not limited to, administrative,
civil or criminal procedures, which is or may be made or
raised against Dassault Systemes by any third party that the
use or distribution of the Server Software that
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is the subject of this Agreement and owned by PlanetCAD,
infringes or violates any third party's patent, copyright,
trade secret or other intellectual property right in any
country. Indemnification hereunder shall cover all damages,
regardless of their nature, settlements, expenses and costs,
including costs of investigation, court costs and attorneys'
fees. The payment of any indemnification shall be contingent
on:
(i) Dassault Systemes giving prompt written notice to
PlanetCAD of any such claim or allegation;
(ii) Cooperation by Dassault Systemes with PlanetCAD in its
defense against the claim; and
(iii) Dassault Systemes obtaining PlanetCAD's prior written
approval of any settlement, if any, by the Dassault
Systemes Indemnities of such matters, such approval
not to be unreasonably withheld.
Notwithstanding the foregoing, PlanetCAD shall not have the
obligation to indemnify Dassault Systemes for any claims of
infringement based on any modification by Dassault Systemes of
the Server Software, or from the combination of the Server
Software with any other program, to the extent such claim
would not have arisen without such combination or from use of
the unmodified Server Software.
7.3 ADDITIONAL REMEDIES. If the operation, distribution or use of
the Server Software becomes, or is likely to become, the
subject of a claim involving the infringement or other
violation of any patent, copyright, trade secret, or other
intellectual property rights of any third party, the Parties
will jointly determine in good faith what appropriate steps
can be agreed upon, with a view towards curing such
infringement or other violation, at PlanetCAD's sole charge.
Such steps may include, but are not limited to:
(i) PlanetCAD securing the right for Dassault Systemes to
continue using the Server Software or
(ii) PlanetCAD replacing or modifying the Server Software
so that it becomes non-infringing.
If no other option is reasonably available, PlanetCAD agrees
to use its best efforts to withdraw the infringing Software
from the market.
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8. TERM AND TERMINATION
8.1 TERM. This Agreement shall come into force as of the Effective
Date, and shall remain valid until the expiration of the last
copyright or other protection available in any Software herein
licensed.
8.2 TERMINATION. Either Party may terminate this Agreement if the
other Party fails to perform any of its material obligations
under this Agreement, provided, however, that such termination
shall only become effective after the non-breaching Party has
given written notice to the other Party of such failure to
perform, the breach being not cured within a sixty day period
from receipt of the notice. Provisions of the following
paragraphs shall survive any termination of this Agreement:
3.4, 6, 7, 9.1, 9.3 and 9.4.
9. MISCELLANEOUS
9.1 CONFIDENTIALITY. All communications and information disclosed
by one Party to the other Party under this Agreement shall be
subject to the terms and conditions of the CNDA.
Notwithstanding anything to the contrary in the CNDA, all
information relating to the Source Code of the Server Software
and Derivative Works thereof shall be deemed to be
Confidential Information under the CNDA even though they are
not marked confidential.
9.2 FREEDOM OF ACTION. Except as otherwise provided, nothing
contained in this Agreement shall be construed to limit or
impair any right of either Party to enter into similar
agreements with other parties, or to develop, acquire, license
or market, directly or indirectly, other products or services,
competitive with those offered by the other Party.
9.3 ADDITIONAL INSTRUMENTS. Notwithstanding termination of this
Agreement, the Parties covenant and agree to execute and
deliver any additional instruments or documents necessary to
carry out the general intent of this Agreement, including
without limitation patent assignments or any other assignments
necessary to evidence the ownership of Intellectual Property
contemplated hereby or any such additional instruments or
documents, including such instruments as may be required by
the laws of any jurisdiction, now or in effect or hereinafter
enacted, that may affect a Party's rights, title or interest,
as applicable, in and to any of the software governed hereby.
9.4 IRREPARABLE INJURY. Each Party acknowledges and agrees that
each covenant in this Agreement pertaining to confidential
information and ownership of intellectual property is
reasonable and necessary to protect and preserve the rights of
the other Party in its confidential information and
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
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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.
9.5 RELATIONSHIP OF THE PARTIES. PlanetCAD and Dassault Systemes
are independent contractors, and nothing in this Agreement
will create any partnership, joint venture, agency, franchise,
sales representative, or employment relationship between the
Parties. Neither Party has the authority to act as agent for
the other Party or to conduct business in the name of such
other Party or make statements, warranties or representations
that exceed or are inconsistent with the warranties provided
hereunder.
9.6 NOTICES. All notices required or permitted shall be given in
writing, in the English language, and shall be deemed
effectively delivered upon personal delivery or three days
after deposit with a carrier by registered mail or other
equivalent service, postage prepaid, return receipt requested,
addressed as follows, or to such other address as either Party
may designate to the other:
IN THE CASE OF PLANETCAD: PlanetCAD Inc.
2520 55th Street, Suite 200
Boulder, Colorado 80301
Attn. Office of the
President
IN THE CASE OF DASSAULT SYSTEMES: Dassault Systemes
9 Quai Marcel Dassault
92150 Suresnes
Attn. Thibault De Tersant
cc: Law Department
9.7 HEADINGS. The descriptive headings contained in this Agreement
are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
9.8 SEVERABILITY. If any term or other provision of this Agreement
is deemed invalid, illegal or incapable of being enforced by
any law or public policy, all other terms and provisions of
this Agreement shall nevertheless remain in full force and
effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner
materially adverse to any Party.
9.9 ENTIRE AGREEMENT. This Agreement, together with the Schedules
attached hereto, constitutes the entire agreement of the
Parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written
and oral, between Dassault Systemes and PlanetCAD with respect
to the subject matter hereof.
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9.10 AMENDMENT. This Agreement may not be amended or modified
except by an instrument in writing signed by, or on behalf of,
duly authorized representatives of Dassault Systemes and
PlanetCAD.
9.11 APPLICABLE LAW, VENUE. 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. The parties hereto hereby (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.
9.12 WAIVER OF JURY TRIAL. 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 HEREUNDER.
9.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to
be an original but all of which taken together shall
constitute one and the same agreement.
9.14 NO WAIVER. The failure of either Party to enforce any
provision of this Agreement shall not constitute a waiver of
the right to subsequently enforce such provision, or any other
provision of this Agreement.
9.15 FORCE MAJEURE. Neither Party shall be held liable for any
failure to perform any of its obligations under this Agreement
for as long as, and to the extent that such failure is due to
an event of force majeure. An event of force majeure shall
include general strikes, lockouts, acts of God, acts of war,
mobilization of troops, fire, extreme weather, flood, or other
natural calamity, embargo, acts of governmental agency,
government or any other laws or regulations.
9.16 EXPENSES. Except as expressly provided for in this Agreement,
each Party shall bear its own expenses incurred in connection
with this Agreement, including without limitation travel and
living expenses incurred by that Party's employees.
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9.17 ASSIGNMENT; SUBCONTRACTING; THIRD PARTY BENEFICIARIES.
(a) This Agreement may be assigned or otherwise transferred by
operation of law or otherwise without the express written
consent of PlanetCAD and Dassault Systemes, but in such event
the assigning Party shall give notice to the non-assigning
Party and the non-assigning Party shall have the right to
terminate its maintenance and support obligations under this
Agreement within the 30 day period following receipt of such
notice.
(b) Either Party may assign or otherwise transfer all or part of
this Agreement to any of its Affiliates, for so long as it
remains an Affiliate; PROVIDED THAT no such assignment shall
relieve a Party of any of its obligations under this
Agreement. In the event there is a change of Control of an
Affiliate which terminates its status as an Affiliate of the
party to this Agreement, and this Agreement has been assigned
to such an Affiliate, this Agreement shall be assigned back to
the party within 6 months of the effective date of the change
of Control.
(c) Either Party may subcontract services necessary to perform the
obligations set forth in this Agreement PROVIDED THAT any and
all such subcontrators shall have entered into agreements with
the subcontracting Party sufficient to enable that Party to
comply with all terms and conditions of this Agreement. In
addition, any such subcontractors shall not have access to
Source Code, unless agreed to by the Parties.
(d) This Agreement shall be binding upon and inure solely to the
benefit of the Parties hereto and their permitted assigns,
subcontractor or transferee, and nothing herein, express or
implied, is intended to or shall confer upon any other person,
including, without limitation, any union or any employee or
former employee of either Party, any legal or equitable right,
benefit or remedy of any nature whatsoever, including, without
limitation, any rights of employment for any specified period,
under or by reason of this Agreement.
9.18 THIRD PARTY LICENSES. Each party is relieved of its
obligations, if any, to (i) deliver the Source Code of a
product licensed hereunder or (ii) authorize the creation of
Derivative Works from Source Code hereunder to the extent that
fulfilling such obligations would cause such party to breach
any third party license agreement entered into by such party
after the Effective Date.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed in duplicate originals by their duly authorized officers or
representatives.
In Paris, on November 14, 2000
For PlanetCAD Inc. For Dassault Systemes
Its: Chief Executive Officer Its: Executive Vice President
Name: R. Bruce Morgan Name: Thibault de Tersant
Signature: /s/ R. Bruce Morgan Signature: /s/ Thibault de Tersant
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