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EXHIBIT 10.5
WEB SERVICES AGREEMENT
This WEB SERVICES AGREEMENT (this "AGREEMENT") is made as
of this November 14, 2000 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").
RECITALS
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 SYSTEMS CORP. acquired the
Component Business (as defined in the Purchase Agreement) from PlanetCAD and
SPATIAL COMPONENTS, LLC, including certain software; and
WHEREAS, PlanetCAD has created, operates and maintains its
own Web sites, including, without limitation 3Dshare.com and PlanetCAD.com,
through which PlanetCAD provides Internet-based services to its customers,
and has competence and expertise in the supply of Internet-based services to
customers.
WHEREAS, as a condition to closing the transaction
contemplated under the Purchase Agreement, the Parties hereto agreed to enter
into this Agreement for the development and supply of certain Internet-based
services to their respective customers.
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
SECTION 1
DEFINITIONS
All capitalized terms not otherwise defined herein shall
have the same meanings set forth in the Purchase Agreement.
1.1 "ADDITIONAL WEB SERVICES" shall have the meaning set
forth in SECTION 3.2.
1.2 "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.
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1.3 "CNDA" means the Confidential and Non-Disclosure
Agreement among, inter alia, PlanetCAD and Dassault Systemes executed
contemporaneously herewith.
1.4 "CONTROL" means, 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.
1.5 "DASSAULT SYSTEMES" shall mean the entity that is a
party to this Agreement and each of its Affiliates.
1.6 "DASSAULT SYSTEMES APPLICATIONS" shall have the meaning
set forth in SECTION 3.1.
1.7 "DASSAULT SYSTEMES CUSTOMER(S)" means any customer of
the Web Service, wherever hosted, having access to such Web Service by first
logging in on any Dassault Systemes Web site, and only when SECTION 4.5 has
been exercised.
1.8 "DASSAULT SYSTEMES CUSTOMER DATABASE(S)" shall have the
meaning set forth in SECTION 7.8.
1.9 "DASSAULT SYSTEMES MARKS" shall have the meaning set
forth in SECTION 6.5.
1.10 "DASSAULT SYSTEMES PERSONNEL" means employees,
officers, agents, independent contractors and subcontractors of Dassault
Systemes.
1.11 "DASSAULT SYSTEMES WEB SITES" means any Web site
created, owned, operated or supported by or for Dassault Systemes.
1.12 "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 version that incorporate
such Software in whole or part.
1.13 "EFFECTIVE DATE" means November 14, 2000.
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1.14 "HARDWARE INFRASTRUCTURE" means all hardware
equipment, materials, products and facilities that may be necessary at any
time to operate the Software Infrastructure to the Web Services.
1.15 "INFRASTRUCTURE" means the "Software Infrastructure"
and the "Hardware Infrastructure."
1.16 "INITIAL WEB SERVICES" shall have the meaning set
forth in SECTION 3.2.
1.17 "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.
1.18 "NET REVENUE" shall have the meaning set forth in
SECTION 7.5.
1.19 "PERSON" means any individual or legal entity,
including without limitation, partnership, corporation, association, trust or
unincorporated organization.
1.20 "REVENUE REPORT" shall have the meaning set forth in
SECTION 7.6.
1.21 "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.
The list of all such Software, including the Third Party Software, as of the
Effective Date, is attached in Schedule A which will be updated by PlanetCAD
when reasonably requested by Triangle and when in Dot's determination
significant changes have been made.
1.22 "SOFTWARE" means 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.
1.23 "SOURCE CODE" means 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.
1.24 "SOFTWARE INFRASTRUCTURE" means the software
configuration and environment necessary to perform, supply and support a Web
Service including any Third Party Software.
1.25 "THIRD PARTY SOFTWARE" means computer software
programs owned by a party other than PlanetCAD or Triangle and incorporated
into, or required for the development, operation and/or support of any Web
Service governed by this Agreement and the Infrastructure associated
therewith.
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1.26 "WEB SERVICE" means a Web service based on Dassault
Systemes Applications that is developed pursuant to SECTION 3 hereof.
SECTION 2
SUBJECT MATTER
2.1 ENGAGEMENT. Dassault Systemes and PlanetCAD agree to
cooperate to bring Internet based services to their customers on the basis of
their respective expertise in the field of application programs for Dassault
Systemes and of supply and implementation of web services for PlanetCAD,
under the terms and conditions set forth below.
SECTION 3
DEVELOPMENT OF THE WEB SERVICES
3.1 IDENTIFICATION OF DASSAULT SYSTEMES WEB SERVICES. The
Parties have agreed to develop and market over the Internet certain Dassault
Systemes Web Services that are based on application programs owned by
Dassault Systemes or its Affiliates ("Dassault Systemes Applications") and
developed under the terms and conditions set forth in this Agreement.
Upon mutual agreement of the Parties on the marketability
over the Internet of any particular service based on any Dassault Systemes
Application, Dassault Systemes will adapt its application program, with the
assistance of PlanetCAD, for its marketing over the Internet according to
specifications to be agreed upon by the Parties.
This Agreement will govern each Web Service developed
hereunder and may be terminated in accordance with SECTION 10 with respect to
each Web Service independently.
3.2 INITIAL AND ADDITIONAL WEB SERVICES. As of the
Effective Date, the Parties have identified two potential Web Services, which
could be governed by this Agreement subject to further technical, business
and marketing discussions between the parties (the "Initial Web Services").
These Initial Web Services are set forth on SCHEDULE A, which is attached
hereto and incorporated herein by reference. As the Parties agree on
additional Web Services (the "Additional Web Services") pursuant to SECTION
3.1, SCHEDULE A will be amended accordingly.
3.3 APPOINTMENT OF LIAISON. As soon as practicable after
the Effective Date, each Party shall appoint a project manager to act as a
liaison and to oversee and ensure compliance of the respective obligations of
the Parties hereunder.
3.4 DEVELOPMENT ACTIVITIES. The Parties may agree to
conduct the development activities contemplated hereunder at each other's
facilities. The PlanetCAD or Dassault Systemes Personnel visiting the other
Party's facilities shall be subject to the provisions of SECTION 11.5 and to
any other restrictions, limitations, insurance requirements and other
prerequisites as may reasonably be required by the Parties.
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3.5 CONSULTING SERVICES. For each Dassault Systemes Web
Service developed hereunder, PlanetCAD shall provide up to thirty person days
of consulting at no charge to Dassault Systemes. Any additional consulting
requested by Dassault Systemes will be performed at a forty percent (40%)
discount from PlanetCAD's standard daily consulting rate then in force in
accordance with a detailed purchase order, which will be signed by both
parties and will include all payment terms and a description of the
consulting services to be provided by PlanetCAD.
SECTION 4
COMMERCIALIZATION AND MARKETING OF THE WEB SERVICES
4.1 COMMERCIALIZATION OF THE WEB SERVICES. Prior to
commercialization of each Web Service, Dassault Systemes shall have an
opportunity to review the content and presentation of the Web pages relating
to each Web Service and shall have the right to request reasonable changes to
any aspect of the proposed Web Services, including without limitation, the
look and feel of the Web pages, pricing and display and placement of the
Dassault Systemes Marks. It is understood by the Parties that implementation
of these changes will be subject to the provisions of SECTION 3.5, and
consequently, will be provided at no additional charge to the extent that the
work required to implement such changes can be done within the thirty person
days of consulting provided for therein.
4.2 RIGHTS OF PLANETCAD TO MARKET, SELL AND DISTRIBUTE THE
WEB SERVICES ON PLANETCAD WEB SITES. For each Web Service and so long as this
Agreement has not been terminated with respect to such Web Service: (i)
PlanetCAD will be authorized - on a non exclusive basis - to market, sell and
distribute such Web Service to its customers via those PlanetCAD Web sites
that Dassault Systemes would have approved and (ii) Dassault Systemes will
grant to PlanetCAD all licenses necessary to accomplish the intent of this
SECTION 4.2. PlanetCAD shall not market, sell and distribute such Web
Services at conditions, including but not limited to financial consideration
and licensing terms, that are less favorable for Dassault Systemes that those
applied for other Web services marketed, sold or distributed by PlanetCAD on
the approved PlanetCAD Web site(s). PlanetCAD may, at its sole discretion,
discount or bundle the Web Services but only to the extent any such discount
or bundle is applied consistently with those applied to any other Web service
on the approved PlanetCAD Web site(s). The Parties may, from time to time and
only by mutual agreement, offer special promotional pricing or terms for Web
Services which are less favorable to Dassault Systemes for specified time
periods.
4.3 OBLIGATION OF PLANETCAD TO ADVERTISE THE WEB SERVICES.
As long as and to the extent that any Web Service is offered by PlanetCAD on
any PlanetCAD Web site, PlanetCAD shall promote such Web Services as part of
the PlanetCAD advertising program. During the first thirty month period
following the implementation of any such Web Service on a PlanetCAD Web site,
PlanetCAD shall spend at least 25% of the revenue received by PlanetCAD
pursuant to SECTION 7.4 from such Web Service on advertising programs related
to such Web Service. Notwithstanding the foregoing, PlanetCAD agrees to spend
a minimum of USD 100,000 in advertising during the first year that any such
Dassault Systemes Web Service is
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made available on a PlanetCAD Web Site, HOWEVER, in the event Dassault
Systemes offers such Web Service directly during the initial 18 months that
the Web Service is offered, Dassault Systemes shall reimburse to PlanetCAD
50% of the actual advertising expenditure made by PlanetCAD. Said
reimbursement shall not exceed USD 125,000.
4.4 TERMINATION OF ADVERTISING OBLIGATION. Notwithstanding
anything to the contrary contained in this Agreement, the advertising
obligation set forth in SECTION 4.3 shall immediately terminate with respect
to any Web Service at such time as Dassault Systemes makes such Web Service
(or any web service similar thereto) available on any Dassault Systemes or
other third party Web site.
4.5 RIGHTS OF PLANETCAD TO MARKET, SELL AND DISTRIBUTE THE
WEB SERVICES TO DASSAULT SYSTEMES CUSTOMERS. Upon agreement between the
Parties on a case by case basis, and for the term to be agreed upon between
the Parties, PlanetCAD will be authorized to offer any specified Web Services
to Dassault Systemes Customers by making them accessible from any Dassault
Systemes Web site(s), as determined by Dassault Systemes in its sole
discretion, on a fully transparent basis by way of a direct link to the first
Web page of such Web Service. Upon exiting such Web Service, the Dassault
Systemes Customers will be automatically returned to the Dassault Systemes
Web site. PlanetCAD shall, with consultation and input from Dassault
Systemes, perform all services necessary for the implementation of such link
between the Dassault Systemes Web site and such Web Service.
SECTION 5
HOSTING AND SUPPORT OF THE WEB SERVICES
5.1 CUSTOMER SUPPORT OBLIGATIONS OF THE PARTIES. For each
Web Service: (i) Dassault Systemes shall be responsible for first and second
level customer support for such Dassault Systemes Web Service and (ii)
PlanetCAD will provide the Customer Relations Management ("CRM") environment
for web based support of the Dassault Systemes Applications, and qualify
customer support requests in advance of passing them on to Dassault Systemes.
5.2 SOFTWARE SUPPORT AND MAINTENANCE OBLIGATIONS OF THE
PARTIES. For each Web Service the Parties will cooperate to perform
maintenance and support services on their respective software (the Server
Software and Infrastructure will be maintained and supported by PlanetCAD and
the Dassault Systemes Applications will be maintained and supported by
Dassault Systemes) for as long as this Agreement remains in effect with
respect to such Web Service. The description of maintenance and support
obligations is set forth in the Maintenance and Support Services Schedule,
attached hereto as SCHEDULE B and incorporated herein by reference.
5.3 HOSTING OF WEB SERVICES. For each Web Service Dassault
Systemes shall have the option to:
(a) Have such Web Service hosted by PlanetCAD for a
monthly fee of USD 10,000.00 per service payable
monthly in advance; or
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(b) Provide PlanetCAD with a mutually agreed upon
Hardware Infrastructure necessary to host such
service.
PlanetCAD represents and warrants that it shall
use commercially reasonable efforts in accordance with industry standards in
its performance of the hosting obligations set forth in this SECTION 5.3.
SECTION 6
OWNERSHIP AND LICENSING RIGHTS
6.1 OWNERSHIP BY PLANETCAD. All right, title and interest
in and to the Server Software and any Derivative Works associated therewith
(developed by either Party under this Agreement or otherwise) shall be owned
by PlanetCAD.
6.2 OWNERSHIP BY DASSAULT SYSTEMES. All right, title and
interest in and to the Dassault Systemes Applications, any Derivative Works
of the Dassault Systemes Applications (developed by either Party under this
Agreement or otherwise) and the software associated therewith (not including
any Server Software) is owned by Dassault Systemes.
6.3 LICENSES TO PLANETCAD. Effective upon commencement of
development activities relating to a Web Service, Dassault Systemes hereby
grants to PlanetCAD a fully-paid, royalty-free, worldwide, non-exclusive
license, which does not include a license to any Source Code, to market, sell
and distribute the Web Service including the associated Dassault Systemes
Application in accordance with the terms and conditions of SECTION 4.2
hereof. The license granted pursuant to this SECTION 6.3 shall be deemed to
be automatically revoked upon termination of this Agreement with respect to
each Web Service.
6.4 LIMITED DEVELOPMENT LICENSE. Effective upon
commencement of development activities relating to a Web Service, PlanetCAD
hereby grants to Dassault Systemes a fully-paid, non-exclusive, worldwide,
revocable limited license to the Server Software and Infrastructure for the
sole purpose of developing, maintaining and supporting, as applicable, such
Web Service, limited to the provision of such Web Service on the PlanetCAD
Web site(s). The license granted pursuant to this SECTION 6.4 does not extend
to the offering by Dassault Systemes of the Web Service(s) on a Dassault
Systemes or third party Web site, and, prior to making any such offering
Dassault Systemes will require a separate licensing arrangement to provide
such Web Service(s) either pursuant to the Server Software License Agreement
or otherwise. Furthermore, the license granted pursuant to this SECTION 6.4
shall be deemed to be automatically revoked upon termination of this
Agreement with respect to such Web Service. Within 2 weeks following the
execution of this Agreement, PlanetCAD will provide Dassault Systemes with
the necessary media and licensing keys or similar authorization system (if
any) to use such Server Software and Infrastructure according to the above
license.
6.5 USE OF MARKS. Prior to commercialization of any Web
Service the Parties shall agree on the use and placement of Dassault Systemes
logos, trade names, trademarks, service marks, and similar identifying
material (collectively referred to as "Dassault Systemes Marks") in
connection with such Web Service. Any usage of the Dassault Systemes Marks on
the PlanetCAD Web site, including without limitation, size, placement, font
and style of the
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Dassault Systemes Marks will be subject to prior written approval by Dassault
Systemes. Upon commercialization of the Web Service, Dassault Systemes shall
grant PlanetCAD a non-exclusive, non-transferable, revocable right to use the
Dassault Systemes Marks as approved by Dassault Systemes, for the sole
purpose of advertising, marketing, promotion and sale of the Web Service(s).
In connection with such license PlanetCAD agrees not to use the Dassault
Systemes Marks in any manner that is disparaging or that otherwise portrays
Dassault Systemes in a negative light. Dassault Systemes retains all right,
title and interest, in and to the Dassault Systemes Marks. Upon termination
of this Agreement with respect to any Web Service governed hereby,
PlanetCAD's rights to use the Dassault Systemes Marks associated with such
Web Service shall automatically terminate. PlanetCAD shall include wording
such as "engineered by Dassault Systemes" (or any other logo or expression to
be provided by Dassault Systemes for this purpose) on all Web pages,
associated with the Web Services.
6.6 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.
SECTION 7
CUSTOMER BILLING, PAYMENT TERMS AND AUDIT RIGHTS
7.1 CUSTOMER BILLING. Unless otherwise agreed by the
Parties, and as long as PlanetCAD host the Web Services, PlanetCAD shall be
responsible for all billing and collection obligations associated with the
Web Services.
7.2 CURRENCY. Prior to the launch date of any Web Service,
the Parties shall agree on which currencies and list prices shall apply to
such Web Service. If, for whatever reason, the Parties fail to agree on a
price to be applied, the price applied to the Web Service shall be equal to
the then current list price for such services as offered on the PlanetCAD Web
site(s). If, for whatever reason, the Parties fail to agree on a currency to
be applied, the Billing Party will be entitled to choose a currency, as long
as such currency easily converts into US dollars, and the Billing Party shall
pay to the other Party its share of revenue in US dollars, based on the
average exchange rate of that currency against US dollars during the last 3
months preceding the date of payment to the other Party.
7.3 TAXES. The Billing Party may deduct and withhold from
any payments due to the other Party under this Agreement any and all taxes
and other amounts as required under the laws of any jurisdiction that has the
authority to tax the Billing Party, the other Party or the transactions
contemplated by this Agreement. However, should the Billing Party consider
withholding payment or paying any such amount from payments due under this
Agreement, the Billing Party shall send prior notice to the other Party a
certificate setting forth the regulatory and/or legal framework for such a
payment, including the provisions of the international tax treaty allowing
such payment. The other Party will have 30 days from the reception of such
information to accept or refuse such payment/withholding:
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(i) If the other Party accepts or does not answer within this time
frame, the Billing Party will be entitled to make such
payment/withholding and shall provide the other Party with a
certificate stating the amounts withheld and the jurisdictions
to which such amounts were remitted.
(ii) If the other Party provides to the Billing Party a certificate
stating that (a) the Billing Party has no withholding/payment
obligations with respect to the laws of such particular
jurisdiction and setting forth the relevant authority for such
statement and/or (b) that such a payment may be avoided under
any applicable law or treaty and provide with the necessary
documentation for that purpose, and if the Billing Party then
determines that it has no such withholding obligation under
the laws of such jurisdiction, the Billing Party shall make
any future payments to the other Party without deduction for
the items set forth in the certificate, until such time as the
Billing Party reasonably believes that it has a withholding
obligation.
Either Party shall pay any applicable sales or value added tax on the
payments due.
7.4 SHARE OF NET REVENUE. As financial consideration under
this Agreement, Net Revenue from sales of each Web Service governed by this
Agreement shall be shared as follows: seventy percent (70 %) to Dassault
Systemes, and the remaining thirty percent (30%) to PlanetCAD.
7.5 DEFINITION OF NET REVENUE. Net Revenue shall consist of
all revenues recognized by PlanetCAD from supply of the Web Services,
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 Web Services and any other fees and charges invoiced by
PlanetCAD to the customers, without deduction by PlanetCAD 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.
7.6 REPORTING AND PAYMENT OBLIGATIONS. Within 7 business
days after the end of each calendar quarter, PlanetCAD shall provide Dassault
Systemes with an itemized statement, subject to adjustment within 30 days of
receipt of such statement, setting forth the Net Revenue achieved over the
preceding calendar quarter, and shall include such other information as may
be mutually agreed upon by the Parties (the "Revenue Report"). The Revenue
Report shall be accompanied by payment to Dassault Systemes of all amounts
owed as set forth on such Revenue Report as well as, when applicable, the
exchange currency rate. When agreed between the Parties as provided for in
SECTION 7.2, payment will be made to Dassault Systemes in the currency
received by PlanetCAD for the provision of the Web Services. Otherwise,
payment shall be made in US dollars as provided for in SECTION 7.2. To the
extent possible under applicable law, payment will be made to Dassault
Systemes in the currency received by PlanetCAD for the provision of the Web
Services and as agreed between the Parties. In the event that PlanetCAD is
unable under foreign currency export controls or similar applicable laws,
unknown to the Parties at the time where they agree on payments in that
currency, to provide payment to Dassault Systemes in the agreed upon currency
received by PlanetCAD, the
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Parties agree to negotiate a mutually agreeable solution. Dassault Systemes
'S right to payment shall accrue upon the date the corresponding revenues
accrue to PlanetCAD. PlanetCAD shall pay interest for late payment of any sum
due at the LIBOR rate plus four points (not to exceed the maximum rate
authorized, or be inferior to the minimum rate allowed, by applicable law, as
the case may be).
7.7 RECORDS; AUDIT. PlanetCAD shall, for two years
following each transaction relating to a particular Web Service, 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
Dassault Systemes under this Agreement. During such two year period, and upon
reasonable notice to PlanetCAD, Dassault Systemes 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 PlanetCAD in connection
therewith. PlanetCAD 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
Dassault Systemes is identified. Any audit conducted pursuant to this SECTION
7.7 shall not be conducted in such a manner as to unreasonably interfere with
the PlanetCAD's operations and in no event shall an audit be conducted more
frequently than once each year.
7.8 PLANETCAD'S OBLIGATION TO MAINTAIN AND UPDATE DASSAULT
SYSTEMES CUSTOMER DATABASES. For as long as PlanetCAD hosts and offers to
Dassault Systemes Customers Web(s) Service(s) under SECTION 4.5, PlanetCAD
will maintain and continuously update Dassault Systemes' Customer
Database(s), which shall include without limitation, databases of Dassault
Systemes Customers, of demands from and results of those Web Services
supplied to Dassault Systemes Customers and associated Net Revenue and of
data collected via the Customer Relations Management ("CRM") environment. The
Dassault Systemes Customer Databases must be held separately from any other
databases held or maintained by PlanetCAD. If not held separately, the
Dassault Systemes Customer Databases must be clearly identified and sorted
out as the property of Dassault Systemes and the provisions regarding
PlanetCAD's limited right of use and its obligation of confidentiality as set
forth below apply without change.
7.9 OWNERSHIP OF DASSAULT SYSTEMES CUSTOMER DATABASES.
Dassault Systemes will be deemed the maker of the Dassault Systemes Customer
Databases and the owner of any and all right, title and interest in and to
the Dassault Systemes Customer Databases and their content, wherever hosted.
At all times during the Term of this Agreement, Dassault
Systemes will have unrestricted access to and use of the Dassault Systemes
Customer Databases, and the content therein.
At all times during the Term of this Agreement, and as long
as the Dassault Systemes Customer Databases are hosted by PlanetCAD,
PlanetCAD benefits from a limited right to use the Dassault Systemes Customer
Databases for the exclusive purpose of performing its obligations under this
Agreement.
Nothing herein limits PlanetCAD's rights of ownership of
its customer database when PlanetCAD is providing Web Services on PlanetCAD
Web site(s).
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7.10 TRANSFER OF DASSAULT SYSTEMES CUSTOMER DATABASES. Upon
discontinuation of hosting and offering of Web Services to Dassault Systemes
Customers under SECTION 4.5, PlanetCAD will transfer to Dassault Systemes the
Dassault Systemes Customer Databases upon Dassault Systemes' request.
PlanetCAD will have no right, license or interest whatsoever in the Dassault
Systemes Customer Databases or content therein, except to the extent
necessary for performance of its obligations under this Agreement.
7.11 WARRANTY OF CONFIDENTIALITY OF DASSAULT SYSTEMES
CUSTOMER DATABASES AND INPUT AND OUTPUT DATA OF DASSAULT SYSTEMES CUSTOMERS.
The Parties expressly agree that the Dassault Systemes Customer Databases and
their content as well as Dassault Systemes Customers input data to be
processed and output data supplied, are confidential information of Dassault
Systemes, and will be treated as such, in accordance with the terms and
conditions of the CNDA.
SECTION 8
REPRESENTATIONS AND WARRANTIES
8.1 MUTUAL REPRESENTATIONS. Each party represents and
warrants to the other Party as follows:
(a) The performance of this Agreement does not
infringe or conflict with any Intellectual Property right of any third party,
and (ii) no confidential, proprietary or trade secret information of either
Party or their personnel that will be used in performing this Agreement has
been misappropriated from any third party; and
(b) All services, work, obligations or assignments
performed by the Parties under this Agreement will be of professional
quality, conforming to generally accepted practices within the industry, and
the Infrastructure including Third Party Software shall function and perform
to the specifications and requirements thereof.
8.2 DISCLAIMER. THIS IS AN AGREEMENT SOLELY FOR SERVICES,
AND THERE SHALL BE NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS STATED HEREIN.
SECTION 9
INDEMNIFICATION AND LIMITATIONS OF LIABILITY
9.1 DASSAULT SYSTEMES INDEMNIFICATION. Dassault Systemes
shall indemnify and hold harmless PlanetCAD, and its officers, directors,
employees, and shareholders from and against any claims, demands, suits,
causes of action, losses, damages, judgments, costs and expenses (including
reasonable attorneys' fees) arising out of or related to any breach of
Dassault Systemes' representations, warranties and covenants set forth in
this Agreement.
9.2 PLANETCAD INDEMNIFICATION. PlanetCAD shall indemnify
and hold harmless Dassault Systemes, its affiliates, and their respective
officers, directors, employees, and
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shareholders from and against any claims, demands, suits, causes of action,
losses, damages, judgments, costs and expenses (including reasonable
attorneys' fees) arising out of or related to any breach of PlanetCAD's
representations, warranties and covenants set forth in this Agreement.
9.3 INTELLECTUAL PROPERTY INFRINGEMENT.
Each Party agrees to hold the other Party, its subsidiaries
and distributors and assignees 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 this Party, its
subsidiaries and distributors and assignees by any third party that the use
or distribution of the Software or any other intellectual property that is
the subject of this Agreement and owned or licensed by this Party, 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:
(a) This Party giving prompt written notice to the other of any
such claim or allegation;
(b) Cooperation by this Party with the other Party in its defense
against the claim; and
(c) This Party obtaining the other's prior written approval of any
settlement, if any, by this Party of such matters, such
approval not to be unreasonably withheld.
Neither Party shall have the obligation to indemnify the
other for any claims of infringement based on any modification by the latest
version of its Software, or from the combination of its Software with any
other program, to the extent such claim would not have arisen without such
combination or from use of the unmodified Software or intellectual property.
If the operation of any Software that is the subject of
this Agreement 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 are to be taken
by them, with a view towards curing such infringement or other violation, at
the Software owner's sole charge. Such steps may include, but are not limited
to:
(i) The owner securing the right to continue using its Software,
or
(ii) The owner replacing or modifying its Software so that it
becomes non-infringing.
If no other option is reasonably available, the owner of
the Software agrees to use its best efforts to withdraw, at its sole expense,
the infringing Software from the market.
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In the event a Derivative Work, created under this
Agreement, becomes the subject of a claim of infringement, the owner of said
Derivative Work shall indemnify the other Party pursuant to this SECTION 9.
9.4 LIMITATIONS ON LIABILITY. EXCEPT FOR LIABILITY ARISING
FROM SECTION 9.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSSES,
OR EXPENSES INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR
LOSS OF GOODWILL, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSS OR DAMAGE.
EXCEPT FOR LIABILITY ARISING FROM SECTION 9.3, IN NO EVENT
SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN
THE AMOUNT THAT SUCH PARTY HAS EARNED PURSUANT TO THE REVENUE SHARING
PROVISIONS OF SECTION 7.4 IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM.
SECTION 10
TERM AND TERMINATION
10.1 TERM AND TERMINATION FOR CONVENIENCE. Either Party has
a right to terminate this Agreement upon nine months' notice to the other
Party as to any Web Service or the Agreement in its entirety.
10.2 TERMINATION FOR BREACH. Either Party may terminate
this Agreement at any time in the event that the other Party is in default or
breach of any material provision of this Agreement, and such default or
breach continues unremedied for a period of sixty days after written notice
thereof. If this Agreement is terminated under the terms of this SECTION
10.2, the Party terminating this Agreement, in addition to such termination,
shall have all rights and remedies available at law and in equity.
SECTION 11
MISCELLANEOUS
11.1 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.
11.2 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. It
is specifically understood this Agreement is not an exclusive services
agreement and nothing herein shall prohibit Dassault Systemes, PlanetCAD or
any of their affiliates from developing or supplying,
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whether directly or indirectly, web services substantially identical to any
of the Web Services governed hereby.
11.3 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 the Server
Software, the Dassault Systemes Applications and/or any Derivative Work based
thereon.
11.4 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 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.
11.5 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.
11.6 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
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IN THE CASE OF DASSAULT SYSTEMES: Dassault Systemes
9 Quai Marcel Dassault
92150 Suresnes
Attn. Thibault De Tersant
cc: Law Department
11.7 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.
11.8 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.
11.9 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.
11.10 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.
11.11 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. 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.
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11.12 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.
11.13 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.
11.14 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.
11.15 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.
11.16 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.
11.17 ASSIGNMENT; SUBCONTRACTING; THIRD PARTY
BENEFICIARIES.
(a) This Agreement may be assigned, subcontracted, 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 this Agreement within
the 30 day period following receipt of such notice.
(b) Either Party may assign, subcontract or otherwise
transfer all or part of this Agreement to any of its Affiliates, and for as
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.
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(c) 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.
IN WITNESS WHEREOF, each Party has caused its duly
authorized representative to execute this Agreement effective the day and
year first above written.
PlanetCAD Inc. Dassault Systemes
/s/ R. Bruce Morgan /s/ Thibault de Tersant
By: R. Bruce Morgan By: Thibault de Tersant
Title: Chief Executive Officer Title: Executive Vice President
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