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EXHIBIT 10.7
MASTER SOFTWARE RESELLER AGREEMENT
FOR ENTERPRISE VERSIONS OF PLANETCAD PRODUCTS
This Master Software Reseller Agreement (this "Agreement"),
dated as of November 14, 2000 (the "Effective Date"), is made by and between
Dassault Systemes S.A., 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").
1. INTRODUCTION
1.1. PlanetCAD has rights to certain computer software and related
documentation identified in SCHEDULE B.
1.2. Dassault Systemes wishes to have certain nonexclusive rights to
market and distribute such software and documentation in a limited territory
and to obtain certain integration services related thereto from PlanetCAD.
2. DEFINITIONS
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. As of the date of signature of this
Agreement, the list of Affiliates for each party is specified in SCHEDULE A.
CNDA means the Confidential and Non-Disclosure Agreement among, inter alia,
PlanetCAD and Dassault Systemes executed contemporaneously herewith.
USER means a person who is authorized by a license agreement as specified in
SECTION 3.3 to use a Product for its internal business purposes.
USER LICENSE AGREEMENT means Dassault Systemes' or Dassault Systemes'
distributors' license agreement that contains similar Intellectual Property
Rights protection of PlanetCAD's licensed Product(s) as is generally accepted
as standard practice in the computer industry. Dasault Systemes will provide
a sample of its standard license agreement upon PlanetCAD' s request.
INTELLECTUAL PROPERTY RIGHTS means rights in (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
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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,
MARKS means PlanetCAD's trademarks, trade names, service marks, and/or
service names as specified in SCHEDULE B together with such other trademarks,
trade names, service marks and/or service names of PlanetCAD as the Parties
may add subsequently by mutual agreement in writing.
PRODUCT(S) means the object code version of computer software and related
documentation listed on SCHEDULE B, including but not limited to any
modifications or additions provided to Dassault Systemes by PlanetCAD
pursuant to this Agreement or any maintenance or integration services
provided in connection herewith, together with any computer software and
related documentation the Parties may add subsequently by mutual agreement in
writing.
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 our or displayed in a form readable and
understandable by a qualified programmer.
TERRITORY means and is limited to the geographic territory described in
SCHEDULE B attached hereto.
3. APPOINTMENT; LICENSE GRANT
3.1. APPOINTMENT. Subject to the terms and conditions of this
Agreement, PlanetCAD appoints Dassault Systemes, and Dassault Systemes
accepts such appointment, as an independent, non-exclusive distributor of
Products in and to the Territory. PlanetCAD reserves the rights from time to
time, in its sole discretion and without liability to Dassault Systemes, to
offer and sell any Products in the Territory, directly or through other
distributors and dealers.
3.2. GRANT OF DISTRIBUTION LICENSE. Subject to the terms of this
Agreement, PlanetCAD grants Dassault Systemes a non-exclusive,
non-transferable license to (i) market, promote, reproduce for distribution,
distribute and sublicense the Product(s) to Users solely for their own
internal business purposes in the Territory during the term of this Agreement
and (ii) use a reasonable number of copies of each of the Products for the
sole purpose of demonstrating the Products, and training to Users. PlanetCAD
further grants to Dassault Systemes the right to sublicense its distribution
rights granted under this SECTION 3.2 to Dassault Systemes group distribution
network and Dassault Systemes Affiliates. The license granted in this SECTION
3.2(ii) shall be subject to the terms and conditions of the User License
Agreement as specified in SECTION 3.3 except that such use is restricted to
demonstration and training purposes. PlanetCAD will deliver to Dassault
Systemes a master copy of the Product(s) promptly after the Effective Date
and a master copy of any updates as required under SECTION 7.3 from which
Dassault Systemes may make all authorized copies pursuant to this Section 3.2.
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3.3 GRANT OF SOURCE CODE LICENSE. Upon the Effective Date,
PlanetCAD grants to Dassault Systemes a fully-paid,
royalty-free, non-exclusive, non-transferable, worldwide
license:
(i) To use the Source Code of the Product(s) only to
support and maintain the Users, directly, should
PlanetCAD be in material breach of its maintenance
obligations as provided for under EXHIBIT D.
(ii) To distribute Source Code of the Product(s) only to
the extent necessary to fulfill any contractual
source code escrow obligations of third party
agreements relating to the sale and distribution of
the Product(s). The distribution right set forth
herein is subject to (a) Dassault Systemes giving
PlanetCAD reasonable notice of such contractual
source code escrow obligations and (b) PlanetCAD's
approval, which shall not be unreasonably withheld or
delayed.
PlanetCAD agrees to deliver to Dassault Systemes a copy of the Product(s)
Source Code for any delivery of the master CD related to the Product(s). Such
delivery will take place before the initial launching of the Product(s)
distribution and will be made for any update of the Product(s).
3.3. USER AGREEMENT. Dassault Systemes may not distribute any
Product(s) to any User unless such User is subject to a license agreement
with Dassault Systemes similar to the license agreements Dassault Systemes
uses for similar or like products. Dassault Systemes will promptly provide
PlanetCAD with such license agreement(s) upon PlanetCAD's request.
3.4. LICENSE RESTRICTIONS. Dassault Systemes will not (i)
disassemble, decompile, or reverse engineer any software that is part of the
Product(s); (ii) copy or otherwise reproduce any Product(s), in whole or in
part, except for making reasonable numbers of back-up copies or as expressly
authorized by this Agreement; (iii) modify the Product in any manner, except
as it may be expressly directed by PlanetCAD in writing or except as provided
otherwise in this Agreement; (iv) use the Product(s) in any manner to provide
service bureau, time sharing, or other computer services to third parties.
However, under this Agreement, Dassault Systemes may authorize the User to
provide ASPs, services or access based on or to the Product(s) to User's
network (such as Affiliates and subcontractors or suppliers) for User's
internal business needs.
3.5. NATURE OF DISTRIBUTION. To the extent any Product is or
contains software, PlanetCAD will only license the right to use such
Product(s) to Dassault Systemes for license fees, and will not, and does not,
transfer any right, title or interest in such software to Dassault Systemes
nor any User. Use of the terms "sell," "purchase", "license", "price", and
"license fee" in this Agreement will be interpreted in accordance with this
SECTION 3.5.
4. OBLIGATIONS OF THE PARTIES
4.1. PLANETCAD'S OBLIGATIONS. In order to assist Dassault Systemes
with performing its obligations under SECTION 4.2, PlanetCAD will:
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4.1.1. Deliver to Dassault Systemes a reasonable number of
demonstration copies of each of the Products as PlanetCAD determines in its
discretion;
4.1.2. Furnish Dassault Systemes with reasonable
quantities, as shall be determined by PlanetCAD, of its standard information,
marketing literature, brochures, manuals, Product information letters, etc.,
relating to the Products, and sell any additional copies of such materials to
Dassault Systemes at PlanetCAD's direct cost;
4.1.3. Provide training to at least one technical or sales
staff of Dassault Systemes free of charge at the PlanetCAD offices, or at a
location determined by PlanetCAD, provided that the amount of training time
will be reasonable and appropriate in PlanetCAD's judgment, all such training
will be in English, and Dassault Systemes will bear all travel and living
expenses for such personnel sent to PlanetCAD for training.
4.2. DASSAULT SYSTEMES' OBLIGATIONS.
Dassault Systemes shall:
4.2.1. Use its commercially reasonable efforts to
advertise, market, promote, and distribute the Products in the Territory in
accordance with this Agreement. From time to time, the Parties agree to
communicate regarding reasonable marketing and advertising policies.
4.2.2. Send at least one of its technical and/or sales
personnel for training on the Product(s) and services to PlanetCAD's offices
or to a location to be determined by the parties, and otherwise train and
maintain a sufficient number of capable technical and sales personnel having
the knowledge and training necessary to (i) inform customers properly
concerning the features and capabilities of the Products and, if necessary,
competitive products; (ii) service and support the Products in accordance
with Dassault Systemes' obligations under this Agreement; and (iii) otherwise
carry out the obligations and responsibilities of Dassault Systemes under
this Agreement;
4.2.3. Inform PlanetCAD promptly and in writing of any
facts or opinions regarding suspected Product defects, intellectual property
infringement claims, or customer complaints; and
4.2.4. Obtain and maintain all government licenses,
permits, and approvals, which are necessary or advisable for the
implementation of this Agreement, and PlanetCAD will cooperate for that
purpose whenever it is needed.
4.2.5 Dassault Systemes will comply with all applicable
international, national, state, regional and local laws and regulations in
performing its duties hereunder and in any of its dealings with respect to
Products, and if any approval with respect to this Agreement, or the
notification or registration thereof, will be required at any time during the
term of this Agreement, with respect to giving legal effect to this Agreement
in the Territory, or with respect to compliance with exchange regulations.
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4.3. DASSAULT SYSTEMES COVENANTS. Dassault Systemes will: (i)
conduct business in a manner that reflects favorably at all times on the
Products and the good name, good will and reputation of PlanetCAD; (ii) avoid
deceptive, misleading or unethical practices that are or might be detrimental
to PlanetCAD, the Products or the public; (iii) make no false or misleading
representations with regard to PlanetCAD or the Products; (iv) not publish or
employ, or cooperate in the publication or employment of, any misleading or
deceptive advertising material with regard to PlanetCAD or the Products; and
(v) make no representations, warranties or guarantees to customers or to the
trade with respect to the specifications, features or capabilities of the
Products that are inconsistent with the literature distributed by PlanetCAD.
4.4. DEMONSTRATIONS. Dassault Systemes will be responsible for
demonstrations and benchmarks of Products to, and evaluations by, its
prospective customers.
4.5. COSTS AND EXPENSES. Except as expressly provided herein or
agreed to in writing each party shall bear its own costs and expenses
incurred in the performance of its obligations under this Agreement, unless
Dassault Systemes expressly requests PlanetCAD to assist in supporting a
customer. In such case, Dassault Systemes will be responsible for payment of
PlanetCAD's direct costs for such support up to an amount agreed to in
writing prior to providing the support.
5. PAYMENTS
5.1. FEES. Dassault Systemes will pay PlanetCAD the ongoing
non-refundable amounts set forth in SCHEDULE C for Dassault Systemes'
distribution and sublicensing of the Products, and for PlanetCAD's provision
of maintenance services under SECTION 7. All shipping or other transportation
charges for delivery of the Products to Dassault Systemes, including
insurance and special packaging, will also be paid by Dassault Systemes.
5.2. PAYMENT TERMS; TAXES.
5.2.1. Dassault Systemes will make all payments to
PlanetCAD due under this Agreement in accordance with SCHEDULE C. Payments
made under this Agreement after their due date will incur interest at a rate
equal to 1.5% per month or the highest rate permitted by applicable law,
whichever is lower.
5.2.2 All payments under this Agreement will be made in
United States currency by bank-to-bank wire transfer to an account designated
by PlanetCAD, unless otherwise agreed to by PlanetCAD in writing.
5.3. INCREASES AND DECREASES.
5.3.1 EXISTING CUSTOMERS. For existing customers, PlanetCAD
may increase the published list price of the Product(s) up to
the amount of 5 % or up to the rate of inflation (based on the
consumer price index), whichever is greater, limited to once
per year. Such price increases shall be effective ninety (90)
days after PlanetCAD provides written notice.
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5.3.2 NEW CUSTOMERS. For new customers, PlanetCAD may increase
the published list price of the Product(s) from time to time
and the amounts specified on Schedule C. Such price increases
shall be effective ninety (90) days after PlanetCAD provides
written notice.
5.3.3 NEW PRICING STRUCTURES. PlanetCAD may introduce new
pricing Structures for new customers (i.e., implementing up
front license fees in lieu of or as an option to subscription
license fees), upon providing thirty (30) days prior written
notice.
5.3.4 PRICE DECREASES. Price decreases shall take effect
thirty (30) days after PlanetCAD provides written notice.
5.4. NO SETOFF. Dassault Systemes will not setoff or offset against
PlanetCAD's invoices amounts that Dassault Systemes claims are due to it.
Dassault Systemes will bring any claims or causes of action it may have in a
separate action and waives any right it may have to offset, setoff or
withhold payment for Products delivered by PlanetCAD.
6. REPORTS, RECORDS AND AUDITS
6.1. REPORTS. Within ten (10) Business Days after the end of each
calendar quarter, Dassault Systemes will deliver to PlanetCAD an itemized
report, subject to adjustment within 30 days of receipt of such report,
setting forth all information reasonably necessary for computation and/or
confirmation of the payments, if any, due or credited to PlanetCAD for such
quarterly period.
6.2 AUDIT AND REPORTING. Dassault Systemes shall, during and for two
years after the termination of this Agreement, regarding the distribution of
the Products to each User, keep true and accurate records and books of
account 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
$10,000 in favor of PlanetCAD is identified. Any audit conducted pursuant to
this SECTION 6.2 shall not be conducted in such a manner as to unreasonably
interfere with Dassault Systemes' operations and in no event shall an audit
be conducted more frequently than once a year.
7. MAINTENANCE, SUPPORT, AND TRAINING
7.1. In addition to the provisions of SECTION 4.2.2, Dassault
Systemes will be responsible for providing the following support to its
Users: installing the Products as needed; training Users; and providing all
first tier level support to Users.
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7.2. Except as provided otherwise in this Agreement or in a separate
written agreement, PlanetCAD shall not be responsible for providing direct
support to Users.
7.3. Subject to receipt of the payments by PlanetCAD for maintenance
specified in SECTION 5.1, PlanetCAD will provide Dassault Systemes with (i)
second tier level support in accordance with the provisions set forth in
SCHEDULE D, (ii) updates and enhancements for the Products in accordance with
the provisions set forth in SCHEDULE D; (iii) access to PlanetCAD's
"hot-line" for inquiries from Dassault Systemes relating to the Products
during PlanetCAD's ordinary business hours
8. PROPRIETARY RIGHTS
8.1. PLANETCAD'S OWNERSHIP. The Products are and will remain the
sole and exclusive property of PlanetCAD and its suppliers, if any, whether
the Products are separate or combined with any other products. PlanetCAD's
rights under this SECTION 8.1 will include, but not be limited to: (i) all
copies of the Products, in whole and in part; and (ii) all Intellectual
Property Rights in the Products.
8.2. PROPRIETARY RIGHTS NOTICES. Dassault Systemes will not delete
or in any manner alter the Intellectual Property Rights notices of PlanetCAD
and its suppliers, if any, appearing on the Products as delivered to Dassault
Systemes. As a condition of the license rights granted to Dassault Systemes
in this Agreement, Dassault Systemes will reproduce and display such notices
on each copy it makes of any Product.
8.3. THIRD PARTY INFRINGEMENT. Dassault Systemes will report
promptly to PlanetCAD any infringement of such rights of which Dassault
Systemes becomes aware. PlanetCAD reserves the sole and exclusive right at
its discretion to assert claims against third parties for infringement or
misappropriation of its Intellectual Property Rights in the Products.
8.4. TRADEMARKS.
8.4.1. If any advertisement, or other marketing material
used by Dassault Systemes makes any statement as to the technical features or
capabilities of the Products beyond the information provided to Dassault
Systemes by PlanetCAD. Dassault Systemes will first obtain the written
approval of PlanetCAD prior to publishing such advertisement or material.
8.4.2. Subject to the terms and conditions of this
Agreement, PlanetCAD grants Dassault Systemes a non-exclusive,
non-transferable license for the term of this Agreement to use the Marks in
Dassault Systemes' marketing of the Products, provided that such use is in
accordance with PlanetCAD's trademark usage guidelines then in effect and as
agreed by the Relationship Managers (see SECTION 15.12). Such use must
reference the Marks as being owned by PlanetCAD and will inure to PlanetCAD's
benefit. Nothing in this Agreement grants Dassault Systemes ownership or any
rights in or to use the Marks, except in accordance with this license. The
rights granted to Dassault Systemes in this license will terminate upon any
termination or expiration of this Agreement. Upon such termination or
expiration, Dassault Systemes will no longer make any use of any Marks.
PlanetCAD will have the exclusive right
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to own, use, hold, apply for registration for, and register the Marks during
the term of, and after the expiration or termination of, this Agreement;
Dassault Systemes will neither take nor authorize any activity inconsistent
with such exclusive right.
9. WARRANTY
9.1. POWER AND AUTHORITY. PlanetCAD warrants to Dassault Systemes
that it has sufficient right and authority to grant to Dassault Systemes all
licenses and rights that PlanetCAD grants under this Agreement.
9.2. LIMITED WARRANTY. PlanetCAD warrants to Dassault Systemes that
during the 6 months following delivery to Dassault Systemes (the "Warranty
Period"): (i) the storage media containing the Products will be free from
defects in materials and workmanship, and (ii) the Products, under normal use
and service, will perform in accordance with the Product documentation in all
material respects. In the event the storage media fails to conform to such
warranty, as Dassault Systemes' sole and exclusive remedy for such failure
PlanetCAD will, at its option and without charge to Dassault Systemes, repair
or replace the Products or storage media, provided the nonconforming item is
returned to PlanetCAD within the Warranty Period. In the event the Product
fails to conform to such warranty, as Dassault Systemes' sole and exclusive
remedy for such failure PlanetCAD will, at its option and without charge to
Dassault Systemes, use reasonable efforts to correct the Product so that it
performs or will perform all of the material functions described in such
documentation, provided PlanetCAD received notice of such nonconformity
within the Warranty Period.
9.3. DISCLAIMER OF OTHER WARRANTIES. THE WARRANTIES IN THIS SECTION
ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE.
10. INDEMNITIES
10.1. DISTRIBUTION INDEMNITY. Subject to the terms of SECTION 10.2,
Dassault Systemes agrees to indemnify PlanetCAD against any third party
claims against PlanetCAD for loss, damage, liability, or expense (including
but not limited to reasonable attorneys' fees) arising out of any acts or
omissions of Dassault Systemes in connection with their activities under this
Agreement, including but not limited to (i) negligence or other tortious
conduct, or (ii) representations or statements not specifically authorized by
PlanetCAD herein or otherwise in writing.
10.2. INFRINGEMENT INDEMNITY.
10.2.1. Dassault Systemes agrees that, if the Products or
the operation thereof become, or in PlanetCAD's opinion are likely to become,
the subject of a claim described in this SECTION 10.2, Dassault Systemes will
permit PlanetCAD, at PlanetCAD's option and expense, either to procure the
right for Dassault Systemes to continue marketing and using such Products or
to replace or modify them so that they become noninfringing. If neither of
the foregoing
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alternatives is available on terms that PlanetCAD in its sole discretion
deems reasonable, PlanetCAD may terminate this Agreement and refund to
Dassault Systemes an amount equal to the depreciated License Fees paid by
Dassault Systemes for the infringing Product (calculated on a straight line
basis over a five year life).
10.2.2. Notwithstanding the foregoing, PlanetCAD shall not
be liable to Dassault Systemes for (i) any claim arising from Dassault
Systemes' failure to use corrections or enhancements made available by
PlanetCAD or (ii) for any claim based upon the combination, operation or use
of the Products with equipment, data or programming not in accordance with
PlanetCAD documentation and/or specifications or arising from any alteration
or modification of the Products. However, at the time such a claim is brought
against Dassault Systemes, PlanetCAD will conduct a reasonable investigation
to determine if SECTION 10.2.1 applies to the claim.
10.2.3. THE FOREGOING ARE PLANETCAD'S SOLE AND EXCLUSIVE
OBLIGATIONS, AND DASSAULT SYSTEMES' SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT
TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
10.3. CONTINGENCY. The foregoing indemnities shall be contingent
upon (i) the indemnified Party giving prompt written notice to the other
Party of any claim, demand or action for which indemnity is sought; (ii) the
indemnified Party being given sole control of the defense thereof; and (iii)
the indemnified Party fully cooperating in the defense or settlement of any
such claim, demand or action, at the expense of the indemnifying Party.
11. LIMITATIONS OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT WILL BE LIMITED TO
THE AMOUNT THAT PLANETCAD HAS RECEIVED PURSUANT TO SECTION 5.1 IN THE TWENTY
FOUR (24) MONTH PERIOD PRECEDING THE CLAIM, EXLUDING CLAIMS UNDER SECTION
10.2. The Parties have agreed that the limitations specified in this SECTION
11 will survive and apply even if any limited remedy specified in this
Agreement is found to have failed of its essential purpose.
12. TERM AND TERMINATION
12.1 TERM. The term of this Agreement will begin on the Effective
Date and will continue for three (3) years unless it is terminated earlier in
accordance with the provisions hereof, provided, however, that in no event
will PlanetCAD be required to deliver any copies of the Products to Dassault
Systemes until Dassault Systemes has obtained all necessary
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governmental approvals for this Agreement and for the distribution of the
Products in the Territory. This Agreement shall automatically renew for
additional twelve (12) month periods. In the event a Party elects not to
renew this Agreement, that Party shall provide the other Party notice of such
election six (6) months prior to the expiration of the then current term.
12.2 EVENT OF TERMINATION.
12.2.1 Either party will have the right to terminate this
Agreement if: (i) the other party breaches any material term or condition of
this Agreement and fails to cure such breach within thirty (30) days after
written notice; or (ii) the other party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if
such involuntary petition or proceeding is not dismissed within sixty (60)
days of filing, or becomes the subject of a voluntary petition in bankruptcy
or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors.
12.2.2 PlanetCAD may terminate this Agreement, effective
immediately, if: (i) Dassault Systemes should attempt to sell, assign,
delegate or transfer any of its rights and obligations under this Agreement
without having obtained PlanetCAD's prior written consent thereto; or (ii)
Dassault Systemes knowingly makes any false or untrue statements or
representations to PlanetCAD herein or in the performance of its obligations
hereunder.
12.3 EFFECT OF TERMINATION.
12.3.1 Upon termination or expiration of this Agreement:
(i) all license rights granted to Dassault Systemes hereunder will
automatically terminate, except for allowing maintenance and support of Users
up to 18 months after termination; and Dassault Systemes will immediately
cease soliciting orders for Products and will cease all use of the Marks
except as is necessary to effect maintenance and support of the Products(s)
for the 18 months following termination; (ii) within 18 months, return to
PlanetCAD or (at PlanetCAD's request destroy) all copies of the Products and
other Confidential Information (which shall only be used in connection with
providing maintenance and support for the Products) in its possession or
control, and an officer of Dassault Systemes will certify to PlanetCAD in
writing that Dassault Systemes has done so; (iii) all indebtedness of
Dassault Systemes to PlanetCAD shall become immediately due and payable
without further notice or demand, which is hereby expressly waived; and (iv)
all unshipped orders pending at the time of termination will be honored
except in the case of Dassault Systemes' material breach.
12.3.2 The rights and obligations of the Parties contained
in Sections 8, 10, 11, 12.3 and 15 will survive the termination or expiration
of this Agreement.
12.3.3 Any rights transferred to a User by Dassault
Systemes in accordance with this Agreement will survive termination of this
Agreement.
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12.4 NO DAMAGES FOR TERMINATION. NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES,
ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE
WITH ITS TERMS. DASSAULT SYSTEMES WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY
COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS AGREEMENT
UNDER THE LAW OF THE TERRITORY OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED
IN THIS AGREEMENT. Neither Party will be liable to the other on account of
termination or expiration of this Agreement for reimbursement or damages for
the loss of goodwill, prospective profits or anticipated income, or on
account of any expenditures, investments, leases or commitments made by
either Party or for any other reason whatsoever based upon or growing out of
such termination or expiration.
12.5 NONEXCLUSIVE REMEDY. The exercise by either Party of any remedy
under this Agreement will be without prejudice to its other remedies under
this Agreement or otherwise.
13. COMPLIANCE WITH LAW
Each party agrees to comply with all applicable laws, rules, and
regulations in connection with its activities under this Agreement. Without
limiting the foregoing, Dassault Systemes acknowledges that all Products,
including documentation and other technical data, are subject to export
controls imposed by the U.S. Export Administration Act of 1979, as amended
(the "ACT"), and the regulations promulgated thereunder. PlanetCAD is
responsible for determining the status of the Products under the above
regulations, and Dassault Systemes will not export or re-export (directly or
indirectly) any Products or documentation or other technical data therefor
without complying with the Act and the regulations thereunder.
14. PRICING FREEDOM
Dassault Systemes is, and will remain, entirely free to determine
its User prices and fees in its own discretion.
15. GENERAL
15.1. 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 Products shall be deemed
confidential information under the CNDA even though they are not marked
confidential.
15.2. ASSIGNMENT.
(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-
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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 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.
(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.
15.3. PRESS RELEASE. The Parties agree to issue a joint press
release announcing the execution of this Agreement within a reasonable delay
of such execution. Thereafter, Dassault Systemes agrees that PlanetCAD may
promote that PlanetCAD is a provider of the technology set forth on SCHEDULE
B to Dassault Systemes and that Dassault Systemes is a reseller of products
of PlanetCAD.
15.4. 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.
15.5. SEVERABILITY. If any provision of this Agreement is found
invalid or unenforceable, that provision will be enforced to the maximum
extent permissible, and the other provisions of this Agreement will remain in
force.
15.6. FORCE MAJEURE. Except for payments due hereunder, neither
Party will be responsible for any failure to perform due to causes beyond its
reasonable control (each a "FORCE MAJEURE"), including, but not limited to,
acts of God, war, riot, embargoes, acts of civil or military authorities,
denial of or delays in processing of export license applications, fire,
floods, earthquakes, accidents, strikes, or fuel crises, provided that such
party gives prompt written
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notice thereof to the other party. The time for performance will be extended
for a period equal to the duration of the Force Majeure, but in no event
longer than sixty (60) days.
15.7. NOTICES. All notices under this Agreement will be deemed given
when delivered personally, sent by confirmed facsimile transmission, or sent
by certified or registered U.S. mail or nationally-recognized express
courier, return receipt requested, to the address shown below or as may
otherwise be specified by either Party to the other in accordance with this
section.
15.8. INDEPENDENT CONTRACTORS. The Parties to this Agreement are
independent contractors. There is no relationship of partnership, joint
venture, employment, franchise, or agency between the Parties. Neither Party
will have the power to bind the other or incur obligations on the other's
behalf without the other's prior written consent.
15.9. WAIVER. No failure of either Party to exercise or enforce any
of its rights under this Agreement will act as a waiver of such rights.
15.10. ENTIRE AGREEMENT. This Agreement and its exhibits are the
complete and exclusive agreement between the parties with respect to the
subject matter hereof, superseding and replacing any and all prior
agreements, communications, and understandings (both written and oral)
regarding such subject matter. This Agreement may only be modified, or any
rights under it waived, by a written document executed by both Parties.
15.11 THIRD PARTY LICENSE. 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 or corrections
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.
15.12 RELATIONSHIP MANAGERS. Each party will appoint a Relationship
Manager who will be responsible for establishing mutually agreeable pricing
policies, marketing plans and trademarks usage, support request procedures
and sales forecasting and will coordinate customers feedback for product
managers. The Relationship Managers will have regular meeting at least once
per quarter either in person or by phone.
15.13 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.
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The parties have caused this Agreement to be executed by their
duly-authorized representatives as of the Effective Date.
DASSAULT SYSTEMES PLANETCAD INC.
By: /s/ Thibault de Tersant By: /s/ R. Bruce Morgan
Name: Thibault de Tersant Name: R. Bruce Morgan
Title: Executive Vice President Title: Chief Executive Officer
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