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EXHIBIT 10.1
LICENSE AND SUPPORT AND MAINTENANCE AGREEMENT
THIS LICENSE AND SUPPORT AND MAINTENANCE AGREEMENT (the "Agreement")
effective as of the 31st day of March 2001, (the "Effective Date"), is entered
into by and between ViryaNet, Inc., a Delaware corporation with an office in
Southborough, Massachusetts U.S.A. ("ViryaNet"), and Viasource Communications,
Inc., a New Jersey Corporation, with an office in Fort Lauderdale, Florida
U.S.A. ("Licensee").
BACKGROUND
ViryaNet has developed the ViryaNet Product(s) (as defined below) and
ViryaNet wishes to grant Licensee a license to use the ViryaNet Product(s)
pursuant and subject to the terms and conditions of this Agreement; and
Licensee wishes to obtain the license to use the ViryaNet Product(s)
pursuant and subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual promises contained in
this Agreement the parties agree as follows:
1. DEFINITIONS:
1.1 "AFFILIATES" shall mean those entities under common control and
ownership of the Licensee. Common control and ownership is identified as direct
or indirect ownership of a voting interest of greater than fifty percent (50%)
of the right or power, directly or indirectly, to elect a majority of the Board
of Directors of the Licensee.
1.2 "AGREEMENT" shall mean this License and Support and Maintenance
Agreement, and all schedules and exhibits attached hereto.
1.3 "BUSINESS DAY" shall mean 8:00 AM - 5:00 PM EST, Monday through
Friday, excluding holidays during which Licensee is closed for business.
1.4 "CONFIDENTIAL INFORMATION" shall mean any information, technical
data, or know-how, in written, graphic, machine readable form or any other form,
including but not limited to, that which relates to past, present and future
research, product plans, products (including ViryaNet Product(s) or products of
Licensee, as applicable, and including any unannounced products of ViryaNet or
of Licensee, as applicable, or services, including unannounced services),
Documentation or any part thereof, customers, markets, software, developments,
inventions, processes, designs, drawings, engineering, hardware configuration
information, marketing or finances of ViryaNet or of Licensee, as applicable,
which Confidential Information is designated in writing to be confidential or
proprietary, or, if given orally, is confirmed in writing, within thirty (30)
days of its disclosure as having been disclosed as confidential or proprietary.
Confidential Information does not include information,
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technical data or know-how which: (i) is in the possession of the party
receiving the Confidential Information (the "Receiving Party") at the time of
disclosure as shown by the Receiving Party's files and records immediately prior
to the time of disclosure by the party disclosing such Confidential Information
(the "Disclosing Party"); (ii) prior to or after the time of disclosure becomes
part of the public knowledge or literature other than as a result of any
improper inaction or action of the Receiving Party; (iii) is approved by the
Disclosing Party in writing, for release; or (iv) is required to be disclosed by
applicable law or proper legal, governmental or other competent authority, and
then only to the extent required, provided that the Disclosing Party, as
applicable, shall be notified sufficiently in advance of such requirement so
that it may seek a protective order (or equivalent) with respect to such
disclosure, with which the Receiving Party shall fully comply. For avoidance of
doubt, it is hereby clarified that the Confidential Information shall not be
deemed to have been known by the Receiving Party or to be part of public domain
merely because it or portions thereof is expressed in publications or patents in
general terms not specifically pertaining to the subject matter of the
Confidential Information.
1.5 "DOCUMENTATION" shall mean all documentation and material
pertaining to the ViryaNet Product(s) provided by ViryaNet to Licensee pursuant
to this Agreement, including without limitation, user reference manuals,
technical reference manuals, entity relationship diagrams, operating
instructions, input information, or format specifications, instructional
documentation and guides, and any training manuals or other materials that may
be provided by ViryaNet.
1.6 "ENHANCEMENTS" shall mean any program or any materials that provide
a new function or feature for any of the ViryaNet Product(s), which function or
feature shall be licensed and/or sold in addition to the ViryaNet Product(s),
and which are not designated as Fixes, Releases, Updates, Workarounds and/or
Options. Once delivered the Enhancements shall become a part of the ViryaNet
Product(s) except for License's separate payment obligation as to such
Enhancement.
1.7 "ERROR" shall mean an error in the ViryaNet Product(s) and/or Third
Party Software, which degrades the functional or technical characteristics of
the ViryaNet Product(s) or Third Party Software as compared to the
Specifications that accompany the relevant ViryaNet Product(s), or any Release
of such ViryaNet Product(s).
1.8 "FIX" shall mean the repair, revision, patch, bug fix or other
modification or replacement of object or executable code versions of the
software comprising the ViryaNet Product(s) to remedy an Error.
1.9 "LICENSE FEES AND PAYMENT TERMS" shall mean the license fees and
terms of payment for the ViryaNet Product(s) licensed to Licensee pursuant to
this Agreement, as described in Exhibit A, as amended from time to time.
1.10 "OPTIONS" shall mean any revision or modification to, or variant
form of, the ViryaNet Product(s) that generally is licensed and/or sold
separately apart from the basic ViryaNet Product(s) and/or involves an added
function to the ViryaNet Product(s). Once delivered to Licensee, the Options
shall be part of ViryaNet Product(s) for all purposes of this Agreement except
for Licensee's separate payment obligations as to such Options.
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1.11 "SPECIFICATIONS" shall mean those specifications to which the
ViryaNet Product(s) shall conform, which includes the Documentation, and the
technical and functional specifications attached hereto as Exhibit F.
1.12 "SOFTWARE SUPPORT AND MAINTENANCE" means ViryaNet Software support
and maintenance services in accordance with the Software Support and Maintenance
Service Level ordered by Licensee as described in Support and Maintenance
Schedule A, attached to Exhibit B of this Agreement.
1.13 "SUPPORT AND MAINTENANCE FEES" shall mean the fees paid by
Licensee in consideration for the support and maintenance to be provided by
ViryaNet to Licensee in accordance with Section 6.1 below.
1.14 "RELEASE" shall mean a new version of ViryaNet Product(s) that
supersedes the previous version.
1.15 "THIRD PARTY SOFTWARE" shall mean any software or portion thereof,
licensed to ViryaNet by a third party and included in the applicable ViryaNet
Product(s), together with all Updates, Releases Enhancements and Options in the
Third Party Software after delivery, as described in Exhibit A, and subject to
the restrictions stipulated in Exhibit A and in this Agreement.
1.16 "UNAUTHORIZED USE" shall mean any or all of the activities
described in Section 3 below.
1.17 "UPDATE" shall mean all published revisions and corrections to the
Documentation and corrections and new Releases of the ViryaNet Product(s), and
which exclude Enhancements and Options.
1.18 "USER" shall mean a scheduled user, which has access to the
ViryaNet Product(s), and to whom Licensee has provided an active: (a) Licensee
approved user identification, and (b) Licensee approved password.
1.19 "USER ACCEPTANCE NOTICE" shall mean the notice given by Licensee
pursuant to that certain Professional Services Agreement by and between Licensee
and Akili Systems Group, Inc., dated April 5, 2001, a copy of which notice shall
be provided to ViryaNet hereunder.
1.20 "VIRYANET PRODUCT(S)" shall mean the product(s) described in
Exhibit A attached hereto, including Third Party Software.
1.21 "WORKAROUND" means a change in the procedures followed or data
supplied by a Licensee to avoid an Error without substantially impairing
Licensee's use of the ViryaNet Product(s).
1.22 The terms "PURCHASE OF " or "SALE OF" ("TO SELL" or "TO PURCHASE")
ViryaNet Product(s) shall mean the acquiring or granting, respectively, of a
license to use such ViryaNet Product(s), pursuant to the terms and conditions of
this Agreement.
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2. LICENSE:
Subject to the terms and conditions of this Agreement, including
without limitation the restrictions set forth in Section 3 below, ViryaNet
grants to Licensee, and its Affiliates, and Licensee on behalf of itself and its
Affilitate hereby accepts a personal, non-exclusive, non-transferable (except in
accordance with Section 14.11 below) perpetual right and license to use the
ViryaNet Product(s) and the Documentation solely for the purposes of providing
services to Licensee's customers, in Licensee's ordinary course of business (the
"License"), and subject to the restrictions on the number of Users specified in
Exhibit A attached hereto. For the avoidance of doubt, the foregoing License
shall not include the right to use the ViryaNet Product(s) in an ASP format. In
this context an "ASP" is defined as the granting to third parties of the right
to access or to use the ViryaNet Product(s) and/or Third Party Software, for the
purposes of providing services by such third parties to their customers. In
addition to the foregoing, Licensee shall have the right to make up to four (4)
copies of the ViryaNet Product(s) and the Documentation for archival purposes
only.
3. RESTRICTIONS:
3.1 Except as otherwise specifically and expressly authorized by this
Agreement, Licensee shall not transfer, lease, rent, sublicense, resell or
otherwise distribute the ViryaNet Product(s), or any portion thereof.
3.2 Except as may be permitted under the Escrow Agreement, the form of
which is attached hereto as Exhibit C (the "Escrow Agreement"), Licensee shall
not modify, reverse engineer, decompile the ViryaNet Product(s) or separate the
components of the ViryaNet Product(s), the Documentation or any part thereof or
otherwise attempt to derive or obtain the source code of ViryaNet Product(s) or
any part thereof. Licensee shall not modify, improve or make derivative works
incorporating ViryaNet Product(s), the Documentation, or any part thereof, and
shall not make any use of the ViryaNet Product(s) except as authorized under
Section 2 above.
4. TITLE:
4.1 OWNERSHIP. All title, rights and interest to the ViryaNet
Product(s), the Documentation, ViryaNet's Confidential Information, and any part
thereof, including all of the patents, trademarks, trade names, trade logos,
copyrights, inventions, technology, design, schemes, know how, trade secrets and
any other intellectual property rights pertaining to the ViryaNet Product(s)
(excluding Third Party Software), the Documentation, the ViryaNet Confidential
Information, or any part thereof, shall be owned exclusively by ViryaNet.
Ownership of the Third Party Software, the Documentation and any related
Confidential Information shall remain with the respective proprietors of the
Third Party Software. All title, rights and interest to Licensee's Confidential
Information, and any part thereof, including all of the patents, trademarks,
trade names, trade logos, copyrights, inventions, technology, design, schemes,
know how, trade secrets and any other intellectual property rights pertaining to
Licensee's Confidential Information, or any part thereof, shall be owned
exclusively by Licensee.
4.2 VIRYANET SOURCE CODE IN ESCROW. ViryaNet shall deposit the version
of source code to the ViryaNet Product(s) being licensed to Licensee hereunder
to be held in Escrow by Fort Knox Escrow Services Inc. ("Fort Knox"). ViryaNet
shall at all times during the term of this Agreement deposit new versions of the
source code along with all other Documentation, program listings, utilities
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and materials relevant to the source code, with Fort Knox within thirty (30)
days of ViryaNet's delivery of any new Release, Option, Enhancement or Update of
any ViryaNet Product(s) to Licensee, provided Licensee is entitled to receive
such delivery pursuant to this Agreement and any exhibits or attachments hereto.
The source code and related materials shall be maintained in strict
confidentiality and will not be used or accessed except under the circumstances
and subject to other terms and conditions of the Escrow Agreement.
4.3 CLICKSOFTWARE SOURCE CODE IN ESCROW. ViryaNet shall use
commercially reasonable efforts to ensure that ClickSoftware Inc.
("ClickSoftware") shall have deposited the version of the source code of the
ClickSchedule Software being licensed to Licensee hereunder along with all other
Documentation, program listings, utilities and materials relevant to the source
code to be held in Escrow by Fort Knox. The source code and related materials
shall be maintained in strict confidentiality and only ViryaNet shall be
entitled to use and access the source code, under the circumstances and subject
to other terms and conditions of the Escrow Agreement.
4.4 AGREEMENT TO PROVIDE CONTINUOUS SUPPORT AND MAINTENANCE OF THE
CLICKSOFTWARE PRODUCTS. ViryaNet hereby agrees that at any time it is unable or
unwilling to provide support and maintenance services to Licensee for any
portion of the ClickSoftware products, for any reason, including without
limitation, if ViryaNet avails itself, or is subjected to a proceeding in
bankruptcy in which ViryaNet is the named debtor; an assignment by ViryaNet for
the benefit of its creditors; the appointment of a receiver for ViryaNet or any
other proceeding involving insolvency or the protection of, or from creditors;
or if ViryaNet ceases its on-going business operations; then ViryaNet shall use
its best faith efforts to grant, transfer and/or assign to Licensee all of its
rights and interests in and to the ClickSoftware Support Services Provisions
Agreement between ViryaNet and ClickSoftware, and to cause ClickSoftware to
continue to provide such support services directly to Licensee upon the same or
substantially similar terms and conditions contained therein, as specified in
Exhibit D attached hereto.
4.5 In the event of the occurrence of the occurrence of both the
circumstances described in Sections 4.2 and 4.3 above, Licensee shall be
entitled to use and access all source codes deposited in accordance with the
Escrow Agreement subject to the terms and conditions contained therein.
4.6 Licensee is responsible for any and all fees charged by Fort Knox
pursuant to the Escrow Agreement.
4.7 Concurrently with the execution of this Agreement, the parties and
ClickSoftware shall execute the Escrow Agreement and deliver it to Fort Knox for
execution. In the event of any conflict between the terms and conditions of this
Agreement and the Escrow Agreement relating to the escrow of any source code the
parties agree that the Escrow Agreement shall control.
5. DELIVERY, LICENSE FEES, PAYMENT TERMS, TAXES, IMPORT AND EXPORT REQUIREMENTS
AND ENHANCEMENTS:
5.1 DELIVERY. ViryaNet shall have delivered to Licensee the ViryaNet
Product(s) in a form and on a medium reasonably acceptable to Licensee
on April 5, 2001, (the "Delivery Date").
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5.2 LICENSE FEES AND PAYMENT TERMS. In consideration for the licenses
granted to Licensee pursuant to this Agreement, Licensee agrees to pay ViryaNet
the License Fees specified in Exhibit A in accordance with the Payment Terms
specified thereunder.
5.3 TAXES. All prices are exclusive of, and Licensee shall pay or
reimburse ViryaNet for, all sales taxes and other taxes (excluding taxes on the
income of ViryaNet), which are legally imposed on Licensee in connection with
the licenses, granted under this Agreement or the use of the ViryaNet
Product(s). Licensee shall hold ViryaNet harmless from all claims and liability
arising from Licensee's failure to report or pay any such sales taxes.
5.4 LATE PAYMENTS. All bona fide undisputed amounts that are not paid
by Licensee as required by this Agreement may be subject to late charge equal to
one and one-half percent (1.5%) per month (calculated on a monthly basis), or,
if less, to the maximum amount allowed by applicable law. In the event that any
bona fide undisputed amount due hereunder is overdue by more than ninety (90)
days, and ViryaNet has provided prior written notice to Licensee of such
nonpayment, ViryaNet may suspend performance until such amount is paid.
5.5 IMPORT AND EXPORT REQUIREMENTS. Subject to the rights granted to
Licensee under this Agreement with respect to import or export, if any, Licensee
shall not, directly or indirectly, export the ViryaNet Product(s), the
Documentation, the ViryaNet Confidential Information or any part thereof,
outside the United States and shall not import them into a foreign territory
without obtaining all permits and licenses as may be required by and conforming
with all applicable laws and regulations of the government of the United States
and the applicable foreign territory. Licensee shall at its own expense, pay all
import and export licenses and permits, customs charges and duty fees, if any,
and shall take all other actions, if any, required to accomplish the export and
import of the ViryaNet Product(s) and Documentation by Licensee. Notwithstanding
anything contained in this Agreement to the contrary, and provided Licensee has
been granted a right to export under this Agreement, Licensee shall not export
the ViryaNet Product(s), the Documentation, the ViryaNet Confidential
Information, or any part thereof, or any other rights pursuant to this Agreement
in any territory: (i) where any material terms of this Agreement are
unenforceable, or (ii) where there is a significant risk that the ViryaNet
Product(s), the Documentation, the ViryaNet Confidential Information, or any
part thereof shall fall into the public domain.
5.6 ENHANCEMENTS. The process for requesting Enhancements to the
ViryaNet Product(s) will be the same as any development request. The process
shall begin when Licensee initiates a functional specification detailing the
scope, quality objectives, "as is" process, "should be" process, and
functional/performance/general requirements (the "Functional Specification").
ViryaNet will collaborate in this Functional Specification detailing design
solutions, high-level design model, and dependencies. Once approved by
representatives from each party, a written development quotation including time
and cost will be developed by ViryaNet and presented to Licensee within ten (10)
business days of submission. In addition to the quotation will be a technical
specification detailing design assumptions, data mapping, data flow diagrams,
and module components (such as flat file details, extract/load details, database
objects, form names, ETC.) (the "Technical Specification").
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6. SUPPORT AND MAINTENANCE AND TRAINING:
6.1 SUPPORT AND MAINTENANCE. Support and Maintenance shall be provided
to Licensee in accordance with Exhibit B; provided that if the events specified
in Section 4.4 should occur Licensee shall, in accordance therewith, be entitled
to receive support and maintenance as provided in Exhibit D hereto.
6.2 TERM OF SOFTWARE SUPPORT AND MAINTENANCE. Software Support and
Maintenance shall be provided for a period of seven (7) years (each year
hereinafter referred to as a "Support Year") from the date Licensee provides
ViryaNet with the User Acceptance Notice.
6.3 SUPPORT AND MAINTENANCE FEES. For each ViryaNet Product with
respect to which Licensee has ordered Software Support and Maintenance during
the first Support Year, Licensee shall pay ViryaNet the applicable Software
Support and Maintenance Fees as provided for in Exhibit A, and in accordance
with the payment terms provided therein. The Software Support and Maintenance
Fees and payment terms for additional Support Years shall be determined thirty
(30) days prior to the end of the previous Support Year provided that for a
period of two (2) Support Years after the first Support Year, ViryaNet shall not
be entitled to increase the annual Software Support and Maintenance Fees by more
than the lesser of: (i) 10% on an annual basis or (ii) the consumer price index.
ViryaNet shall invoice Licensee within thirty (30) days prior to the end of the
Support Year, as applicable, and Licensee's payment shall be due within thirty
(30) days of receipt of the ViryaNet invoice.
6.4 RENEWAL OF SOFTWARE SUPPORT AND MAINTENANCE. In the event Licensee
terminates Software Support and Maintenance or fails to pay ViryaNet on the date
on which Software Support and Maintenance Fees, or any portion thereof, are due,
then to reinstate or renew Software Support and Maintenance, Licensee must first
pay ViryaNet for all accumulated Software Support and Maintenance Fees with
respect to the applicable ViryaNet Product(s) and/or Third Party Software for
the period during which Licensee did not purchase Software Support and
Maintenance.
6.5 TRAINING. In the event that Licensee wishes to have ViryaNet
provide any training courses, ViryaNet shall, subject to the availability of
ViryaNet's personnel, provide such courses at a mutually agreeable time and
mutually agreeable location and on terms, conditions and fees then in effect for
such training courses. In addition to the payment of ViryaNet's prescribed fees,
Licensee shall reimburse ViryaNet for direct and reasonable travel, meals and
lodging expenses incurred by ViryaNet in providing such training, in accordance
with the agreement to be reached between the parties relating thereto.
6.6 TRAIN THE TRAINER. ViryaNet shall make available through the
Internet at no additional cost to Licensee training material to allow internal
training of resources after an initial "Train the Trainer" program. Furthermore,
ViryaNet shall make available through the Internet additional training material
to support any Releases, Updates, Enhancements, Fixes, Workaround, Options and
the ViryaNet Product(s) provided Licensee is entitled to receive such pursuant
to this Agreement any exhibit or attachments hereto.
7. RECORDS AND AUDITING RIGHTS:
7.1 BOOKS AND RECORDS. Licensee shall keep accurate books of account
and records indicating in detail the number of users of the ViryaNet
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Product(s) and all copies of the ViryaNet Product(s) made by Licensee (provided
Licensee is authorized to make such copies pursuant to this Agreement).
7.2 AUDITING AND INSPECTION RIGHTS. ViryaNet shall, at its sole
discretion, be entitled to audit Licensee's books of account and records
referred to in Section 7.1 above upon written notice of five (5) business days
to Licensee, provided that ViryaNet shall have the right to perform such audit
not more than one (1) time per year. Any such audit shall be conducted during
Licensee's normal business hours so as not to unreasonably interfere with
Licensee's business activities. ViryaNet agrees to hold strictly confidential
all information concerning the verifications thereof, except as necessary for
ViryaNet to enforce its rights under this Agreement. Licensee shall permit
ViryaNet's representative to take excerpts from, and make copies of, any entries
therein. ViryaNet shall pay all expenses associated with the verification.
Nevertheless, if an audit reveals that Licensee has underpaid fees due to
ViryaNet, ViryaNet shall invoice Licensee for such underpaid amounts based on
the License Fees in effect at the time such audit or inspection is completed
with the invoice subject to ViryaNet's standard payment terms. If the underpaid
License Fees exceed ten percent (10%) of the License Fees due to ViryaNet for
the relevant period, then Licensee shall pay the reasonable expenses associated
with such audit. Nothing in this paragraph shall be construed in any way to
limit the confidentiality obligation of ViryaNet for Licensee Confidential
Information.
8. CONFIDENTIAL INFORMATION:
8.1 NONDISCLOSURE AND NON-USE OF CONFIDENTIAL INFORMATION. Each
Receiving Party agrees not to use any Confidential Information disclosed by the
Disclosing Party except for the purposes of each Receiving Party exercising its
rights and obligations granted pursuant to this Agreement. Unless expressly
authorized by the Disclosing Party, the Receiving Party will not disclose any
Confidential Information, other than to its employees and consultants who are
required to have the information in order to exercise the rights and obligations
granted under this Agreement. The Receiving Party shall be responsible for
ensuring that the obligations of confidentiality and non-use contained herein
are observed by its employees and consultants, and the Receiving Party
represents that it has instituted policies and procedures, which provide such
protection for the Confidential Information. Without limiting the generality of
the foregoing, the Receiving Party shall restrict access to those of its
employees and consultants who are bound, either by the terms of their employment
agreement or by separate written agreements, to maintain Confidential
Information in confidence and refrain from using the same for their own benefit.
The Receiving Party shall bear full responsibility for any harm caused to the
Disclosing Party by disclosure by said employees or consultants who are not
bound by such agreements. The Receiving Party shall use the same degree of care,
but no less than reasonable degree of care under the circumstances that the
Receiving Party utilizes to protect its own Confidential Information. The
Receiving Party agrees to notify the Disclosing Party in writing of any misuse
or misappropriation of Confidential Information, which may come to the Receiving
Party's attention.
8.2 TERM. The forgoing commitments of the Receiving Party shall survive
any termination of this Agreement, and shall continue for a period, which is
three (3) years after the termination of this Agreement.
8.3 REMEDIES. The Receiving Party agrees that its obligations provided
in this Section 8 are necessary and reasonable in order to protect the
Disclosing Party and its business, and expressly agrees that monetary damages
would be inadequate to compensate the Disclosing Party for any breach by the
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Receiving Party of the obligations set forth in this Section 8, and that the
Disclosing Party, in addition to any remedy at law or in equity, which the
Disclosing Party may have, may seek an injunctive relief against the threatened
breach of this Agreement or the continuation of any such breach by the Receiving
Party, without the necessity of proving actual damages or posting a bond.
9. WARRANTIES AND LIMITATIONS:
9.1 WARRANTIES ViryaNet represents, warrants and covenants with respect
to the ViryaNet Product(s) from the Delivery Date until the date Licensee
provides ViryaNet with the User Acceptance Notice the following:
9.1.1 The media delivered by ViryaNet to Licensee for ViryaNet
Product(s) shall be free of all defects in materials and workmanship, and
ViryaNet shall immediately, upon notice, replace any non-working or defective
media at no charge to Licensee; and that ViryaNet's Documentation shall be true
and correct copies thereof;
9.1.2 The ViryaNet Product(s) purchased by Licensee are
designed to be "Date-Data Compliant", which means the ViryaNet Product(s) are
designed to: (a) correctly and unambiguously handle and process date
information, including, but not limited to, accepting date input, providing date
output, storing and retrieving dates and the ability to perform calculations on
dates or portions of dates; (b) correctly process functions that are programmed
to commence and/or end on a particular date, including but not limited to
month-end year-end, leap year and any combinations thereof, irrespective of the
change in the century identifier; (c) function accurately without interruption
and without any change in operations and/or parameters associated with the
advent of the new century; and (d) respond to two-digit year date input in a way
that resolves the ambiguity as to the century in a disclosed, defined,
predetermined manner; and to store and provide output of date information in
ways that are unambiguous as to the century;
9.1.3 The ViryaNet Product(s) shall conform to the
Specifications; provided, however, that ViryaNet will, at no change to Licensee,
promptly correct the ViryaNet Products(s) or any component thereof that does not
conform to the Specifications by either: (a) repairing the ViryaNet Product(s)
so that they become conforming, or else (b) replacing the ViryaNet Product(s)
with a substitute, which in either case conforms in all respects to the
Specifications;
9.1.4 ViryaNet is the developer and owner of the ViryaNet
Product(s), other than any Third Party Software contained therein, or else
ViryaNet has the authority to grant the License granted hereunder;
9.1.5 Except as otherwise expressly provided herein, as of the
Delivery Date ViryaNet knows of no claim, litigation or proceeding pending or
threatening with respect to the ViryaNet Product(s);
9.1.6 Except as otherwise expressly provided herein, as of the
Delivery Date the ViryaNet Product(s) and its components (excluding Third Party
Software) and the ordinary use thereof in accordance with the Documentation and
the terms and conditions of this Agreement, do not infringe or violate any
patents, copyrights, trademarks, trade secrets or other intellectual property
rights of any third party; and ViryaNet has no knowledge that the Third Party
Software infringes or violate any patents, copyrights, trademarks, trade secrets
or other intellectual property rights of any third party;
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9.1.7 Except as otherwise expressly provided herein, as of the
Delivery Date, the ViryaNet Product(s) (excluding Third Party Software) shall
not contain any mechanism including, without limitation, any: "viruses," "Trojan
horses," "worms," "back doors," "time bombs," "drop dead devices," or any other
deleterious programmer code, which may restrict Licensee's ability to use or
access any of the ViryaNet Product(s) or data contained therein (all of the
foregoing collectively the "Devices"), and ViryaNet has no knowledge that the
Third Party Software contains any Devices that would restrict Licensee's ability
to use or access the ViryaNet Product(s);
9.1.8 The ViryaNet Product(s), including each individual
component thereof work together and in conformance with the Specifications; and
the ViryaNet Product(s) are capable of interconnecting and/or interfacing with
other software programs currently being used by Licensee as required to deliver
the functionality as set forth in this Agreement; provided, however, that
ViryaNet will, at no change to Licensee, promptly either (a) repair the ViryaNet
Product(s), including each individual component thereof, so that they are
capable of interfacing and/or interconnecting with Licensee's other software
programs, or else (b) replace the ViryaNet Product(s) with a substitute that is
capable of interfacing and/or interconnecting with Licensee's other software
programs;
9.1.9 The overall functionality of the ViryaNet Product(s)
shall not be materially decreased from the functionality existing as of the User
Acceptance Date, unless a material decrease in functionality results from
governmental regulation or requested changes by Licensee, or the functionality
is replaced with comparable functionality or the changes are otherwise agreed
upon by the parties; and in such event Licensee may elect as a remedy to remain
on an earlier Release of the ViryaNet Product(s) without breaching any of the
provisions of this Agreement, including, but not limited to Exhibit B hereto,
and specifically including Section 2.4 thereunder; and
9.1.10 On the Delivery Date, ViryaNet will deliver to Licensee
the most Current Release of the ViryaNet Product(s) and continue support such
release in accordance with the Support and Maintenance Agreement.
9.2 In order to grant rights, provide goods or perform services
contemplated by this Agreement, ViryaNet may acquire from independent
contractors or Third Party Software vendors certain rights, good or services. To
the extent that such third parties provide warranties to ViryaNet for the
rights, goods, services that they supply, and to the extent that they permit the
transfer of such warranties to Licensee, ViryaNet shall pass such warranties
through to Licensee. ViryaNet makes no independent representations or warranties
for rights, goods or services provided by independent contractors or Third Party
Software vendors, including without limitation with respect to Third Party
Software. For any Third Party Software provided by ViryaNet to Licensee,
ViryaNet hereby assigns to Licensee all end-user warranties and indemnities
relating to such Third Party Software. To the extent ViryaNet is not permitted
to assign any of such end-user warranties and indemnities through to Licensee,
ViryaNet shall enforce such warranties and indemnities on behalf of Licensee to
the extent ViryaNet is permitted to do so under the terms of the applicable
Third Party Agreements. With respect to any Third Party Software not conforming
to any of the warranty provisions contained in this Section 9, ViryaNet shall be
entitled to replace such Third Party Software with software conforming in all
material respects to the warranties contained in this Section 9, and in such
event ViryaNet shall not be in breach of any of its warranties hereunder.
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9.3 Simultaneously with the execution of this Agreement, Licensee shall
enter into a License Agreement with ClickSoftware, Inc. (the "ClickSoftware
Agreement") in substantially the form attached hereto as Exhibit E. Once
executed by ClickSoftware, Inc., and Licensee, the ClickSoftware Agreement shall
become an integral part of this Agreement. Notwithstanding anything contained in
this Agreement to the contrary, ViryaNet makes no independent representations or
warranties for the products provided by ClickSoftware, and such warranties and
representations shall be as set forth in the ClickSoftware Agreement.
9.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, VIRYANET MAKES NO
PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, WITH RESPECT TO ANY VIRYANET PRODUCT, DOCUMENTATION OR ANY PORTION
THEREOF AND VIRYANET SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.5 VIRYANET SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY
REGARDING THE AMOUNT OF SALES, REVENUES OR PROFITS THAT MAY BE OBTAINED BY
LICENSEE DURING THE TERM OF THIS AGREEMENT, OR OTHER BENEFIT THAT LICENSEE MAY
OBTAIN THROUGH ITS PARTICIPATION IN THE AGREEMENT.
9.6 SUBJECT TO VIRYANET'S SUPPORT AND MAINTENANCE OBLIGATIONS UNDER
SECTION 6.1 ABOVE AND AS FURTHER SPECIFIED IN EXHIBIT B ATTACHED HERETO,
ViryaNet does not warrant that: (A) the ViryaNet Product(s) will meet Licensee's
requirements, (B) the operation of the ViryaNet Product(s) shall be
uninterrupted or error-free, or (C) the Documentation shall be error-free.
10. INDEMNIFICATION BY VIRYANET.
10.1 Subject to the limitations specified in this Agreement (including
without limitation those specified in Section 11 below), ViryaNet agrees to
defend, at its expense, any action brought against Licensee based upon a claim
that the ViryaNet Product(s) (other than Third Party Software or software
supplied to ViryaNet by Licensee, or directed by Licensee to be obtained by
ViryaNet from a third party and included in the ViryaNet Product(s) delivered by
ViryaNet to Licensee, or ViryaNet Product(s) as modified by Licensee, without
consent of ViryaNet (collectively "Excluded Material")), the Documentation
accompanying the relevant ViryaNet Product(s) (excluding Third Party Software)
or any part thereof directly infringe any patent, copyright, trademark, trade
secret, or any other intellectual property right provided that:
(i) The ViryaNet Product(s) or Documentation referred to
in the preceding paragraph alleged to be infringing
are used within the scope of the licenses granted
under this Agreement and in accordance with the terms
and conditions of this Agreement;
(ii) Licensee promptly notifies ViryaNet in writing of any
such action or proceeding that has been brought or
which is threatened, unless the failure of Licensee
to
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properly notify ViryaNet does not prejudice
ViryaNet's ability to indemnify pursuant to this
Section 10; and
(iii) Licensee cooperates fully in the defense or
settlement of any such action.
10.2 Subject to the limitations specified in this Agreement (including,
without limitation, those specified in Section 11 below), ViryaNet agrees to
indemnify and hold Licensee harmless from and against any loss, cost or expense
(including reasonable attorneys' fees) resulting from any and all claims by
third parties for loss, damage, or injury (including death) allegedly caused by
the gross negligence, misrepresentation, or gross misconduct of ViryaNet, or
ViryaNet's agents, employees and/or contractors.
10.3 Subject to the limitations specified in this Agreement (including,
without limitation, those provided in Section 11 below), ViryaNet agrees to
indemnify and hold harmless Licensee from and against any suits, causes action,
damages, costs (including, without limitation, reasonable attorneys' fees
incurred in connection therewith or with successfully establishing the right of
indemnification hereunder) and/or liabilities of whatever nature which arise out
of or relate to any claim of infringement or misappropriation of third party
proprietary rights under Section 10.1. Additionally, and subject to the
limitations of this Agreement, ViryaNet shall pay any costs damages, or awards
of settlement, including court costs, arising out of any such claim, demand or
action, provided that Licensee grants ViryaNet sole control of the defense of
any such action and all related negotiations for settlement.
10.4 Subject to the limitations of this Agreement (including, without
limitation those provided in Section 11 below), in the event an injunction is
issued against Licensee's use of the ViryaNet Product(s), Documentation, or any
part thereof, or if in ViryaNet's opinion all or any portions of the ViryaNet
Product(s) or Documentation are likely to become the subject of a non-frivolous
claim for infringement or injunction or damages award, ViryaNet at its sole
expense, will do one of the following:
(i) procure for Licensee the right to continue using the
ViryaNet Product(s) or such affected portions; or
(ii) replace or modify the ViryaNet Product(s) or
Documentation or such affected portions, with a
non-infringing alternative that reasonably
accommodates Licensee's needs with respect to the
original replaced or modified portion.
In the event ViryaNet is unable to perform under subsections (i) or
(ii) in the previous sentence, Licensee, at its sole and reasonable discretion,
shall have the right to require ViryaNet to refund all amounts paid for the
ViryaNet Product(s) and Documentation in exchange for a return of the ViryaNet
Product(s) and Documentation.
10.5 This Section 10 shall not apply with respect to a claim based
upon: (a) use of other than the current unaltered release of the ViryaNet
Product(s) provided by ViryaNet to Licensee; (b) the combination, operation or
use of any ViryaNet Product, or any portion thereof delivered by ViryaNet
pursuant to this Agreement with Excluded Materials (as defined in Section 10.1
above), or with any other software, hardware or device not supplied by ViryaNet,
if such infringement would have been
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avoided but for the combination, operation or use of the ViryaNet Product(s)
with such Excluded Material or with any other software, hardware or device not
supplied by ViryaNet.
11. LIMITATIONS ON WARRANTIES AND INDEMNIFICATION:
11.1 SECTION 10 OF THIS AGREEMENT SPECIFIES THE ENTIRE LIABILITY OF
VIRYANET WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES OR MISAPPROPRIATION OF SUCH INTELLECTUAL PROPERTY RIGHTS IN CONNECTION
WITH THE PRODUCTS/GOODS/SERVICES/DELIVERABLES, IF ANY, PROVIDED PURSUANT TO THIS
AGREEMENT.
11.2 EACH PARTY'S ENTIRE LIABILITY AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT, FOR ANY AND ALL CLAIMS, WHETHER IN CONTRACT (INCLUDING BREACH OF
WARRANTY) OR IN TORT (INCLUDING NEGLIGENCE) SHALL BE LIMITED TO A MAXIMUM AMOUNT
EQUAL TO THE TOTAL AMOUNT PAID TO VIRYANET BY LICENSEE UNDER THIS AGREEMENT.
11.3 IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR ANY KIND,
INCLUDING LOST PROFITS AND LOSS OF DATA, EVEN IF VIRYANET HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
12. INDEMNIFICATION BY LICENSEE:
12.1 Subject to the limitations specified in this Agreement (including
without limitation those specified in Section 11 above), Licensee agrees to
indemnify and hold ViryaNet harmless from and against any loss, cost or expense
(including reasonable attorneys' fees) resulting from any and all claims by
third parties for loss, damage, or injury (including death) allegedly caused by
the gross negligence, misrepresentation, or gross misconduct of Licensee, or
Licensee's agents, employees and/or contractors.
12.2 For avoidance of doubt, it is hereby clarified that Licensee shall
have no liability under this Section 12 for any claim alleging that the
unaltered ViryaNet Product, in and of itself, infringes any third party's
intellectual property rights.
13. TERM AND TERMINATION:
13.1 TERM. This Agreement shall commence on the date hereof and shall
continue in full force and effect unless terminated in accordance with the
provisions of this Section 13.
13.2 TERMINATION FOR DEFAULT. Subject to the provisions of Section 13.5
below, either party may terminate this Agreement in its entirety by written
notice to the other party, if the breaching or defaulting party breaches or is
in default of any material obligation hereunder, other than the obligations
specified in Section 6 above or in Exhibit B hereto, which breach or default
remains uncured for a period of thirty (30) days after receipt of written notice
of breach or default by the breaching or defaulting party. Subject to the
provisions of Section 13.5 below, either party may terminate the Software
Support and Maintenance (as defined in Exhibit B attached hereto) if the other
party breaches or is in default of any material obligation under Section 6 or
under Exhibit B, which
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breach or default remains uncured for a period of thirty (30) days after receipt
of written notice of breach or default by the breaching or defaulting party, and
if Licensee is the non-breaching party, Licensee shall be entitled to a prompt
refund of the proportion of the Software Support and Maintenance Fees for any
unused period of time.
13.3 TERMINATION FOR INSOLVENCY. In addition to the foregoing, either
party may immediately terminate this Agreement by written notice if: (a) the
other party becomes insolvent, (b) upon institution by the other party of
insolvency, receivership or bankruptcy proceedings or any other proceedings for
the settlement of debt, (c) upon the institution of such proceedings against the
other party, which are not dismissed or otherwise resolved in such party's favor
within sixty (60) days thereafter, or (d) upon the other party making a general
assignment for the benefit of creditors.
13.4 CESSATION OF LICENSES AND RIGHTS. Other than for termination of
this Agreement by ViryaNet pursuant to Section 13.3, upon termination of this
Agreement all licenses and rights granted pursuant to this Agreement shall
immediately cease; provided, however, that nothing contained herein shall be
deemed to affect in any way any of the rights, duties or obligations of the
parties pursuant to the Escrow Agreement if the Escrow Agreement is still in
effect pursuant to its terms.
13.5 RETURN OF CONFIDENTIAL INFORMATION. Within ten (10) days after
termination of this Agreement, Licensee shall return to ViryaNet, and shall make
no further use, of any ViryaNet Product(s), Documentation, ViryaNet and Third
Party Confidential Information or any portions thereof and shall certify in
writing to ViryaNet that the originals and copies, and any portions thereof, in
any form, of the ViryaNet Product(s), the Documentation, the ViryaNet
Confidential Information or any portions thereof in the possession of Licensee
have been destroyed or returned to ViryaNet. Within ten (10) days after
termination of this Agreement, ViryaNet shall return to Licensee, and shall make
no further use, of Licensee's Confidential Information or any portions thereof
and shall certify in writing to Licensee that the originals and copies, and any
portions thereof, in any form, of Licensee's Confidential Information or any
portions thereof in the possession of ViryaNet have been destroyed or returned
to Licensee.
13.6 LIMITATION ON LIABILITY IN THE EVENT OF TERMINATION. IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS AND LOSS OF DATA, EVEN
IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM
ANY TERMINATION OF THIS AGREEMENT PURSUANT TO THIS SECTION 13.
14. MISCELLANEOUS:
14.1 BACKGROUND AND EXHIBITS. The Section headed "Background" and the
Exhibits attached hereto including any Schedules thereunder form an integral
part of this Agreement.
14.2 INTERPRETATION. Any heading contained in this Agreement is for
convenience purposes only and shall not be employed in interpreting and
construction of this Agreement. The parties and their respective counsel have
negotiated this Agreement. This Agreement will be interpreted and construed in
accordance with its terms and conditions and without any construction in favor
or against either party.
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14.3 SURVIVAL. Sections 4, 5, 8, 10, 11, 12, 13, and 14.1 through
14.11, and all payment obligations incurred prior to the termination of this
Agreement, shall survive termination of this Agreement.
14.4 ENTIRE AGREEMENT. This Agreement, including the Exhibits and
schedules attached hereto, constitute the entire agreement and understanding
between the parties with respect to the subject matter of this Agreement, and
supersedes and replaces all prior or contemporaneous agreements, understandings,
negotiations, and discussions, whether written or oral, regarding such subject
matter. No supplement, modification or amendment of this Agreement shall be
binding upon the parties hereto, unless in a written instrument identified on
its face as an amendment and executed by both parties by an authorized
representative of each party.
14.5 GOVERNING LAW. This Agreement shall in all respects be governed
and construed according to the laws of the State of New York, without reference
to its principles of conflicts of laws. The parties hereto agree that all
disputes arising out of this Agreement shall be subject to the exclusive
jurisdiction and venue in the federal and state courts located in New York. Each
party hereby consents to the personal and exclusive jurisdiction and venue of
these courts. However, prior to resort to legal and/or equitable remedies, the
parties agree to negotiate in good faith to resolve any dispute promptly, within
not to exceed ten (10) Business Days following written notice thereof. Failing
this, the parties may refer the dispute to their senior executive of the
component responsible for performance of this agreement, respectively, for
resolution within thirty (30) days of written notice of dispute to such senior
executive(s). Thereafter, either party may resort to its legal and equitable
remedies for resolution thereof. Notwithstanding the above, either Party may
resort to any available remedy at law or equity to avoid irreparable injury or
to maintain the status quo.
14.6 SEVERABILITY. If any of the provisions of this Agreement, or any
portions thereof, are held to be invalid or unenforceable under any applicable
statute, regulation, orders or rule of law, the invalid or unenforceable part or
provision shall be replaced with a provision which accomplishes, to the fullest
extent possible, the original purpose of such part or provision in a valid and
enforceable manner, and the balance of this Agreement shall remain in full force
and effect.
14.7 WAIVER. No term or condition of this Agreement shall be deemed
waived, and no breach or omission excused, unless in writing and signed by the
party against whom enforcement of such waiver or consent is sought. A waiver of
any condition or term of this Agreement in any regard shall not constitute a
waiver or consent to any different or subsequent breach or omission, and either
party may invoke any remedy available at law or in equity despite such prior
waiver or consent.
14.8 NOTICES. All notices and other communications (including Purchase
Orders and invoices) required or permitted to be given under this Agreement
("Notices") shall be in writing, reference this Agreement and addressed to the
party's address as specified below, or to such other address that a party
provides as required by this Section 14.8.
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If to ViryaNet:
ViryaNet Inc.
2 Willow Street
Southborough, MA 01745
Fax: (508) 490-8666
Attn: General Counsel/
VP North America Sales
If to Licensee:
Viasource Communications, Inc.
200 East Broward Boulevard
Suite 2100
Fort Lauderdale, FL 33301
Fax: (954) 525-1868
Attn: Gerry Thorning
With a copy to:
Akerman, Senterfitt & Eidson, P.A.
One SouthEast Third Avenue
28th Floor
Miami, Florida 33131
Fax: (305) 374-5095
Attn: Bradley D. Houser, Esq.
A Notice shall be deemed given when: (a) delivered personally, (b) sent by
confirmed facsimile, (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (d) one (1) day
after deposit with a commercial overnight carrier, with written verification of
receipt.
14.9 FORCE MAJEURE. Neither party will be responsible for any failure
to perform its obligations (other than payment obligations) under this Agreement
due to reasons beyond its direct reasonable control, including without
limitation acts of God, war, riots, embargo, fire, explosion, sabotage, flood,
default of subcontractors, accident, or interruption or delay in transportation,
shortage or failure of supply of raw materials or finished merchandise, labor
disputes whatever cause arising, or compliance with any other directions, or
request of any authorized governmental officer, department or agency.
Notwithstanding the foregoing, in the event either party fails to perform its
obligations under this Agreement due to any of the causes listed in the
preceding sentence, and provided such failure to perform lasts for a period in
excess of sixty (60) days, either party may terminate their obligations under
this Agreement by providing written notice to the other without liability to
either party.
14.10 INDEPENDENT CONTRACTOR. For the avoidance of doubt, it is hereby
clarified that ViryaNet is an independent contractor of Licensee under this
Agreement, and nothing contained herein shall be construed to create a
partnership, joint venture or agency relationship between the parties hereto.
Neither party shall have the authority to enter into agreements of any kind on
behalf of the other party
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with respect to the subject matter of this Agreement or otherwise bind or
obligate such other party in any manner to any third party. This Agreement does
not and shall not be deemed to create a general agency, and Licensee shall not
be considered an agent or legal representative of ViryaNet for any purpose.
Neither party nor any director, officer, agent, or employee of such party shall
be or considered an employee of the other party.
14.11 LICENSEE ACTING ON ITS OWN BEHALF; NON ASSIGNMENT. Licensee
represents that it is acting on its own behalf, and not as an agent for or on
behalf of any third party, in entering into this Agreement. Licensee may not
assign its rights or obligations under this Agreement other than to its
Affiliates. Notwithstanding the foregoing, in the event of any change of
control, change of ownership or merger of Licensee where Licensee is not the
surviving company Licensee shall have the right to assign this Agreement in its
entirety to a successor without fees, provided that such assignee agrees in
writing to carry out and comply with all of the provisions of this Agreement,
including without limitations any restrictions on the use of the ViryaNet
Product(s), and provided further that ViryaNet is notified of such assignment
and of the identity of such assignee. ViryaNet shall be entitled to assign and
transfer any and all of its rights and obligations under this agreement to third
parties, provided that such third party agrees in writing to carry out and
comply with all the provisions of this Agreement in a manner reasonably
satisfactory to Licensee.
14.12 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
14.13 PUBLICITY. ViryaNet may identify Licensee in ViryaNet's
advertising and marketing materials provided that such materials are approved in
writing in advance by Licensee, such approval not to be unreasonably withheld.
Licensee may identify ViryaNet as licensor of the ViryaNet Product(s) in
Licensee's advertising and marketing materials provided that such materials are
approved in writing in advance by ViryaNet, such approval not to be unreasonably
withheld.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each of the parties have executed this Agreement as of the
dates written below.
VIRYANET, INC. VIASOURCE COMMUNICATIONS, INC.
By: /s/ Samuel Hacohen By: /s/ Gerry Thorning
----------------------------- ------------------------------
Name: Samuel Hacohen Name: Gerry Thorning
--------------------------- ----------------------------
Title: Chairman Title: Executive Vice President
-------------------------- ---------------------------
Date: April 5, 2001 Date: April 19, 2001
--------------------------- ----------------------------
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EXHIBIT "A"
1. VIRYANET PRODUCT(S):
VIRYANET SERVICE HUB, including the following modules:
-- ViryaNet Service Portal
-- ViryaNet Service Intelligence
-- ViryaNet Service Process
-- ViryaNet mService Gateway
-- ViryaNet Mobile Suite
-- ViryaNet Service Suite (excluding Depot Repair)
-- ViryaNet Service Engine
-- ViryaNet Integration Server
THIRD PARTY SOFTWARE, INCLUDING THE FOLLOWING COMPONENTS:
-- Xerox Docushare - Enterprise License
-- Actuate Reporting Environment - Enterprise License
-- IBM Websphere
-- AvantGo
-- ClickSoftware ClickSchedule
-- WW Threads
2. LICENSE FEES:
VIRYANET SERVICE HUB (1500 Users) including: ViryaNet Service Portal,
ViryaNet Service Intelligence, ViryaNet Service Process, ViryaNet
Service Gateway, ViryaNet Mobile Suite, ViryaNet Service Suite
(excluding Depot Repair),ViryaNet Service Engine and ViryaNet
Integration Server.
THIRD PARTY SOFTWARE including: ClickSoftware ClickSchedule ASM (600)
scheduled engineers) (Street Level); Xerox Docushare; Actuate Reporting
Environment, IBM Websphere - Coverage for up to six (6) Central
Processing Units, plus IBM performance pack (for load balancing);
AvantGo - One Time Charge (500 users) with Limited Use meaning Licensee
has access to standard Avantgo content and the ViryaNet Product(s).
TOTAL VIRYANET PRODUCT(S) COSTS: $ 1,500,000
=============
In the event Licensee desires to acquire rights for additional licensed users
for ClickSoftware's ClickSchedule Software the license fee per user shall be
Four Hundred Sixty Two Dollars ($462.00) per scheduled user.
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3. VIRYANET SUPPORT AND MAINTENANCE:
ViryaNet will provide its Gold Level Support and Maintenance for the
ViryaNet Product(s) as described in Exhibit B attached to the License
and Support and Maintenance Agreement. ViryaNet will provide twenty
four hour seven day per week ("24 by 7") support for a period of one
month from the User Acceptance Date, and will revert to Gold Level
Support thereafter.
TOTAL VIRYANET PRODUCT(S) SUPPORT AND MAINTENANCE COSTS: $ 331,000
==========
4. PAYMENT TERMS:
The following payment terms will apply:
(A) License Fees:
(i) Net 30 days from the Effective Date $ 150,000
(ii) February 28, 2002 $ 350,000
(iii) August 31, 2002 $1,000,000
----------
TOTAL LICENSE FEES $1,500,000
==========
(B) Support and Maintenance Fees:
(i) Support and Maintenance Fees for the first Support
Year shall be paid in accordance with the following
payment schedule: fifty percent (50%) of the total
Support and Maintenance Fees shall be paid to
ViryaNet upon the first date that six hundred (600)
Users are using the ViryaNet Product(s), and
thereafter an additional sixteen and two-thirds
percent (16 2/3%) of the total Support and
Maintenance Fees shall be paid to ViryaNet on the
first date that an additional three hundred (300)
Users are using the ViryaNet Product(s), and so forth
until the aggregate number of such Users reaches one
thousand five hundred (1,500 Users).
(ii) Notwithstanding the foregoing, the total Support and
Maintenance Fees shall be due no later than twelve
(12) months from the date of the User Acceptance
Notice.
(iii) After the total Support and Maintenance Fees have
been paid by Licensee, the maintenance and support
anniversary date shall be January 1st of the first
calander year thereafter.
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EXHIBIT "B"
SUPPORT AND MAINTENANCE
1.0 DEFINITIONS
Except as otherwise expressly defined in this Exhbit B, all capitalized
terms shall have the meaning attached to such term in the Agreement to which
this Exhibit is attached (the "License Agreement").
1.1 "BUSINESS DAY" mean 8:00 AM - 5:00 PM EST Monday through Friday,
excluding holidays during which Licensee is closed for business.
1.2 "CURRENT RELEASE" means the then-current release of ViryaNet
Product(s) for use in a particular Operating Environment.
1.3 "CUSTOMER CONTACT" means a Licensee employee (or independent
contractor retained by Licensee) who is properly authorized to communicate with
ViryaNet concerning Software Support and Maintenance. Customer Contacts shall be
knowledgeable in the use of the ViryaNet Product(s) and Licensee's Operating
Environment.
1.4 "DAY" means any twenty four hour period of time, whether or not it
includes any Business Day.
1.5 "ERROR" shall mean an error in the ViryaNet Product(s) and/or Third
Party Software, which degrades the functional or technical characteristics of
the ViryaNet Product(s) or Third Party Software as compared to the
Specifications which accompany the relevant ViryaNet Product(s), or any Release
of such ViryaNet Product(s).
1.6 "FIX" shall mean the repair, revision, patch, bugfix or other
modification or replacement of object or executable code versions of the
software comprising the ViryaNet Product(s) to remedy an Error.
1.7 "NAMED VIRYANET CONTACT" means a ViryaNet technical support
contact.
1.8 "OPERATING ENVIRONMENT" means a single combination of a hardware
and operating system, corresponding to a specific release of the ViryaNet
Product(s).
1.9 "PREVIOUS RELEASE" means the release of ViryaNet Product(s) for use
in a particular Operating Environment which has been replaced by the Current
Release in the same Operating Environment.
1.10 "RELEASE" means a new version of ViryaNet Product(s) that
supersedes the previous version.
1.11 "SUPPORT SERVICE HOURS" means those hours that Software Support
and Maintenance is available to Licensee according to the Software Support and
Maintenance Service Level ordered by Licensee.
1.12 "SOFTWARE SUPPORT AND MAINTENANCE" means ViryaNet Software support
and maintenance services in accordance with the Software Support and Maintenance
Service Level ordered by Licensee.
1.13 "SOFTWARE SUPPORT AND MAINTENANCE SERVICE LEVELS" means the
Software Support and Maintenance service levels set forth on Support and
Maintenance Schedule A attached hereto.
1.14 "SUPPORT AND MAINTENANCE FEES" shall mean the fees paid by
Licensee in consideration for the support and maintenance to be provided by
ViryaNet to Licensee in Accordance with Section 6.1 of the License Agreement.
1.15 "UPDATE" means all published revisions and corrections to the
printed documentation and corrections and new Releases of the ViryaNet
Product(s), and which exclude Enhancements and Options.
1.16 "WORKAROUND" means a change in the procedures followed or data
supplied by Licensee to avoid an Error without substantially impairing
Licensee's use of the ViryaNet Product(s).
2.0 COVERAGE AND SOFTWARE SUPPORT AND MAINTENANCE LEVELS
2.1 ViryaNet will provide Licensee with Software Support and
Maintenance upon payment to ViryaNet of applicable fees as provided herein.
Software Support and Maintenance shall be provided for the ViryaNet Product(s)
and Third Party Software listed in Exhibit A attached to the License Agreement.
Software Support and Maintenance additional to that provided herein may be
requested by Licensee, and will be provided on a time and materials basis in
accordance with negotiated applicable rates and charges, and availability. All
Updates, Fixes, Workarounds and other components of software issued or provided
hereunder to Licensee shall be deemed licensed to Licensee under the terms of
the
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Agreement, and subject to all terms and restrictions applicable to such License
Agreement.
2.2 Software Support and Maintenance Service Levels will be provided
for the ViryaNet Product(s) and the Third Party Software, upon the payment of
the applicable fees for the relevant Software Support and Maintenance Service
Level. All Service Levels include provision of Updates and Fixes, when generally
released by ViryaNet, from time to time. ViryaNet Product(s) delivered as part
of a Workaround or a temporary Fix shall only be supported until a proper Fix is
made available.
2.3 ViryaNet will track each support request including, but not limited
to, date and time of request, requestor, issue, service level, and response
level. ViryaNet will trend compliance against the terms of the Support and
Maintenance Schedule A. This information will be reported to Licensee no less
than once per calendar month. The report shall include, but not be limited to,
overall compliance rating and drill down details as listed above.
2.4 Under this Agreement, ViryaNet is only obligated to provide
Software Support and Maintenance for the ViryaNet Product(s) or Third Party
Software for a Previous Release for a period of twelve (12) months from the
release date of the Current Release; provided however, if Licensee does not
elect to install the Current Release ViryaNet shall continue to support the
Previous Release being used by Licensee for a period of thirty six (36) months
from the date of the Release immediately following the latest Release installed
by Licensee, provided that if the Current Release materially degrades the
performance or functionality of the Previous Relase ViryaNet shall continue to
provide Software Support and Maintenance until the release of a Release that
does not do so.
3.0 EXCLUSIONS
3.1 ViryaNet shall have no obligation to support:
a) ViryaNet Product(s) and/or Third Party Software, or any part
thereof, altered or modified by Licensee or any third party
without the prior written approval by ViryaNet;
b) Software problems caused by Licensee's negligence, hardware
malfunction or other causes beyond the control of ViryaNet;
c) Modifications needed for non-ViryaNet supported interfaces not
specified in Exhibit A (Licensee alone shall be responsible
for such modifications);
d) Repairing or restoring any corrupt data, provided such
corruption was not caused by ViryaNet's gross negligence. (If
ViryaNet is requested to repair or restore any data corrupted
(other than that corrupted by ViryaNet Product(s)), ViryaNet
may charge Licensee for time and materials based on ViryaNet's
standard applicable rates and charges);
e) ViryaNet Product(s) and/or Third Party Software installed in
an Operating Environment or in a hardware environment which is
not supported by ViryaNet.
3.2 ViryaNet shall have no liability for any updates or upgrades in
Licensee's hardware which may be necessary to use Updates, Fixes, and/or
Workarounds of the ViryaNet Product(s) and/to Third Party Software. ViryaNet
will be responsible for communicating to Licensee recommended hardware and
operating systems that will ensure no license infringements or conflicts with
the ability of the ViryaNet Product(s) to operate in accordance with the
Specifications of the products.
3.3 THE SOFTWARE SUPPORT AND MAINTENANCE IS PROVIDED "AS IS". VIRYANET
HEREBY EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY OTHER STATUTORY
WARRANTIES OF ANY KIND. IN NO EVENT SHALL VIRYANET BE LIABLE FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR
LOST PROFITS, EVEN IF VIRYANET HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES). VIRYANET'S TOTAL LIABILITY HEREUNDER FOR ANY CAUSE, WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY LICENSEE FOR THE
SOFTWARE SUPPORT AND MAINTENANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE
SOLE LIABILITY OF VIRYANET IN CASE OF ANY LOSS OR DAMAGE RESULTING FROM ANY
ERROR IN THE VIRYANET PRODUCT(S) AND/OR THIRD PARTY SOFTWARE OR FAILURE OF THE
SOFTWARE SUPPORT AND MAINTENANCE, WILL BE TO CORRECT SUCH ERROR OR FAILURE IN
ACCORDANCE WITH VIRYANET'S OBLIGATIONS HEREUNDER.
4.0 RESPONSIBILITIES
4.1 As part of this Agreement, ViryaNet will:
a) Maintain a current, running system to replicate the ViryaNet
Product(s) with respect to which Licensee has ordered Software
Support and Maintenance;
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b) Provide Licensee with a unique identifier that will be used to
report and track Error resolution status in accordance with
timeframes specified within Schedule A;
c) Track status of each Error or application discrepancy which
has been reported and update Licensee of changes to status in
accordance with timeframes specified within Schedule A;
d) Provide responses to Errors and queries within the agreed time
frame, in accordance with the Software Support and Maintenance
Level ordered by Licensee in accordance with timeframes
specified within Schedule A;
e) Report patch availability to Licensee with descriptive
documentation in accordance with timeframes specified within
Schedule A;
f) Be available to advise and consult about proposed changes to
the Operating Environment, which could impact the ViryaNet
Product(s) performance;
g) Deliver one (1) copy of each Update for each supported
Operating Environment to Licensee's designated Customer
Contacts. Licensee shall, and is hereby authorized to, make up
to four (4) additional copies of each Update, from the media
delivered for all licenses for archival purposes only
(original for production, copies for development environment
and test environment);
h) If ViryaNet believes that a problem reported by Licensee is
not due to an Error in the ViryaNet Product(s), ViryaNet will
so notify Licensee in writing. At that time, Licensee may, at
its option, instruct ViryaNet to proceed with problem
determination at the possible additional expense to Licensee
beyond this coverage. If Licensee requests that ViryaNet
proceed with problem determination and the reported problem
was not due to an Error in the ViryaNet Product(s), Licensee
shall pay ViryaNet, at standard ViryaNet applicable rates, for
all work performed in connection with such determination, plus
reasonable related expenses incurred therewith. ViryaNet
agrees that it will not proceed with any such work to be
billed to Licensee without Licensee's prior written consent.
Licensee shall not be liable for the expenses associated with
any such consulting if such problem was due to Error(s) in the
ViryaNet Product(s) or for work performed after Licensee has
notified ViryaNet that it no longer wishes work on the problem
determination to be continued at its possible expense (such
notice shall be deemed given when actually received in writing
by ViryaNet).
4.2 If it is initially agreed that a problem may not be due to an error
in the ViryaNet Product(s), and it is subsequently agreed that it was in fact an
error in the ViryaNet Product(s), then no charges shall be made or shall accrue
for any problem analysis, consulting or development undertaken by ViryaNet.
4.3 As part of this Agreement, Licensee will:
a) Designate at least one (1), and no more than five (5),
Customer Contact(s);
b) Maintain trained support personnel, in order to pass to
ViryaNet only real Errors that were clearly identified as
Errors;
c) Inform ViryaNet in writing of any pending environmental
changes requirements as early as possible, but no later than
thirty (30) days prior, which would impact Software Support
and Maintenance, provided Licensee knows of such changes at
least thirty (30) days in advance;
d) Install Fixes and Updates according to ViryaNet installation
instructions in a timely manner and in the sequence they are
delivered;
e) Inform ViryaNet of any changes to source code or a database
which have been developed independently by Licensee;
f) Maintain a mirrored copy of the Licensee production database
for remote access purposes;
g) Provide remote access with appropriate privileges to the
server(s) loaded with the ViryaNet Product(s) and/or Third
Party Software. It is the responsibility of Licensee to
provide and maintain an "as needed" and authorized network
connection between its operating servers. The network
connection must be available to ViryaNet software engineers
for the purpose of providing Software Support and Maintenance
(such as file transfers to the remote location(s)). Such
connection will need to be authorized by Licensee for each
instance that the network connection is deemed to be
reasonably required for ViryaNet to perform its obligated
support and analysis;
h) Maintain required database, network and client software, to
support the ViryaNet Product(s) and the Third Party Software;
i) Maintain fully compatible Operating Environments, and ensure
all run time executables are generated from identical source
for all supported operating sites;
j) Install the new Releases of the ViryaNet Product(s), Updates
and Fixes in the Licensee Operating Environment. Licensee can
choose to purchase services from ViryaNet to assist in the
installation and deployment of a new Release. These services
will be available at ViryaNet's then current time and
materials charges.
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SUPPORT AND MAINTENANCE SCHEDULE "A"
1. ERROR SEVERITY LEVELS: There are four Error Severity Levels in the
ViryaNet Product(s). The following table gives the descriptions of all
four Error Severity Levels. Error Severity Levels will be set by
ViryaNet and Licensee upon understanding of the Error. Examples
provided in the table below are for illustrative purposes only.
Level Description Examples
------------ ------------ --------
X The whole system, or any of Database crash with or without data corruption; transactions fail
FATAL the business applications throughout the system; data validation does not function throughout
are down, no useful work can the system; customer data is inaccessible for many customers; etc.
be performed
A Any essential business Any of the following is unusable or the result of continued use
CRITICAL function is unusable will not be repairable or the result of continued use will
significantly impair the effectiveness of any repair: for example
call logging or closing, employee allocation or dispatch,
invoicing, etc.
B Non-essential business Contract calculation does not work for some contracts; copy
NON-CRITICAL function is unusable merge functionality has bugs; some transactions fail, etc.
C All other types of Errors Cosmetic problems; annoying error messages; etc.
MINOR
2. ERROR RESPONSE LEVELS: For the actual Errors there are three response
levels. The following table gives the description of all three Response
Levels.
Response Level Description
-------------- -----------
1st level Verbal or written acknowledgement of the request
including a receipt providing the tracking number
2nd level New major or minor Release with the
appropriate Documentation, or Fix, or temporary Fix,
or Workaround, or detailed plan of solving the
problem
3rd level New major or minor Release with the
appropriate Documentation, or an official
documented Fix (sub-release).
3. SUPPORT SERVICE LEVELS: All days/hours listed below are defined in
terms of Business Days/Hours except where stated.
Error Severity/Response Level X A B C
------------------------------------------ --------------------- ---------------------- --------- ---------
1st Level Response 7x24 Support 7x24 Support 6 hours 8 hours
2 hours 2 hours
2nd Level Response Cont. effort until 5 days 15 days N/A
relief provided
3rd Level Response 15 days 30 days 90 days 180 days
No. of Customer Contacts 5
Named ViryaNet Contact? Y
7x24 support provided? Y N N N
On-site Support? Next Business Day Next Business Day N N
(if needed) (if needed)
Chargeable Options Available 1. 24x7 support for "A" Severity Levels
2. On-site support for "B" Severity Level
3. Additional Customer Contacts
4. Reduced response times
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EXHIBIT "C"
SOFTWARE ESCROW AGREEMENT
This Escrow Agreement ("Agreement") is made as of this _____ day of
March, 2001 by and between ViryaNet Inc. ("ViryaNet"), 2 Willow St.,
Southborough, MA 01745, Fort Knox Escrow Services, Inc., 2100 Norcross Parkway,
Suite 150, Norcross, GA, 30071, ("Escrow Agent"), ClickSoftware, Inc., 655
Campbell Technology Parkway, Suite 250, Campbell, CA 95008, ("ClickSoftware")
and Viasource Communications, Inc., 200 East Broward Boulevard, Suite 2100, Ft.
Lauderdale, Florida 33301 ("Licensee").
PRELIMINARY STATEMENT. This Agreement is made pursuant to the License
and Support and Maintenance Agreement between ViryaNet and Licensee (the
"License Agreement") dated March _____, 2001, a copy of which is attached hereto
as Escrow Schedule C. Capitalized terms not defined in the Agreement shall have
the meaning ascribed to them in the License Agreement. ViryaNet and
ClickSoftware intend to place in Escrow Agent a sealed package containing
magnetic tapes, disks, disk packs, or other forms of media reasonably acceptable
to Licensee, in source code form, and the written documentation, program
listings, ulitities and any other materials relevant to the source code,
prepared in connection therewith (the "Deposit Materials") for the ViryaNet
Product(s) (as such term is defined in the License Agreement) (the "ViryaNet
Deposit Material") and for ClickSchedule Software (as such term is defined in
that certain ClickSoftware License Agreement dated __________, 2001, entered
into between Licensee and ClickSoftware) (the "ClickSoftware Deposit
Materials"). ViryaNet and ClickSoftware desire Escrow Agent to hold in strict
confidence the Deposit Materials, and, upon the occurrence of one or more events
as provided in Paragraph 4 hereof, deliver the Deposit Materials (or a complete
and fully accurate copy thereof) to Licensee or ViryaNet, as applicable, in
accordance with the terms hereof.
Now, therefore, in consideration of the foregoing, of the mutual
promises hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
1. DELIVERY BY VIRYANET. ViryaNet shall be solely responsible for delivering to
Escrow Agent the ViryaNet Deposit Materials concurrently with the exeuction of
this Agreement. Escrow Agent shall hold the ViryaNet Deposit Materials in
accordance with the terms hereof and shall have no obligation to verify the
completeness or accuracy of the ViryaNet Deposit Materials. Escrow Agent shall
deposit and preserve all ViryaNet Deposit Materials in a locked, secured, and
environmentally safe location within its facilities. Escrow Agent shall, at all
times, retain the ViryaNet Deposit Materials in strictest confidence and shall
not open, release or disclose the ViryaNet Deposit Materials, except as
expressly set forth in this Escrow Agreement.
1A. DELIVERY BY CLICKSOFTWARE. ClickSoftware has previously delivered to Escrow
Agent the ClickSoftware Deposit Materials. Escrow Agent shall hold the
ClickSoftware Deposit Materials in accordance with the terms hereof and shall
have no obligation to verify the completeness or
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accuracy of the ClickSoftware Deposit Materials. Escrow Agent shall deposit and
preserve all ClickSoftware Deposit Materials in a locked, secured, and
environmentally safe location within its facilities. Escrow Agent shall, at all
times, retain the ClickSoftware Deposit Materials in strictest confidence and
shall not open, release or disclose the ClickSoftware Deposit Materials, except
as expressly set forth in this Escrow Agreement.
2. DUPLICATION; UPDATES.
2.1 Escrow Agent may duplicate the Deposit Materials by any means in order to
comply with the terms and provisions of this Agreement, provided that Licensee
shall bear the expense of duplication. Alternatively, Escrow Agent, by notice to
ViryaNet and/or ClickSoftware, as applicable, may reasonably require ViryaNet
and/or ClickSoftware, as applicable to promptly duplicate the Deposit Materials.
2.2 Updates to the Deposit Materials will take place when the original Deposit
Materials are updated with any New Releases, Options, Enhancements or Updates
(each a "Deposit Update"). All Deposit Updates shall be listed on a new Schedule
B and the new Schedule B shall be signed by ViryaNet and/or ClickSoftware, as
applicable. Each Schedule C will be held and maintained separately within the
escrow account. All references in this agreement to the Deposit Materials shall
include the initial Deposit Materials and any Deposit Updates.
3. NOTIFICATION OF DEPOSITS. Simultaneous with the delivery to Escrow Agent of
the Deposit Materials, as the case may be, both ViryaNet and ClickSoftware, each
with respect to its Deposit Materials, shall deliver to Escrow Agent and to
Licensee a written statement specifically identifying all items and stating that
the Deposit Materials have been inspected by ViryaNet or ClickSoftware, each
with respect to its own Deposit Material, and are complete and accurate in all
material respects. Escrow Agent shall, within ten (10) business days of receipt
of any Deposit Materials, send notification to ViryaNet or ClickSoftware, as
applicable, and Licensee that it has received from ViryaNet and/or
ClickSoftware, as applicable such Deposit Materials.
4. DELIVERY BY ESCROW AGENT
4.1 Release by Escrow Agent to Licensee. Escrow Agent shall release the ViryaNet
Deposit Materials, or a complete and fully accurate copy thereof, to Licensee in
the event any of the following events occur:
(a) The CEO of ViryaNet notifies Escrow Agent in writing, accompanied
by a Board Resolution of ViryaNet authorizing the same, to effect such release
and delivery to Licensee at a specific address, the notification being
accompanied by a check payable to Escrow Agent in the amount of one hundred
dollars ($100.00); or
(b) If ViryaNet has availed itself, or been subjected to, by any third
party, a proceeding in bankruptcy in which ViryaNet is the named debtor, an
assignment by ViryaNet for the benefit of its creditors, the appointment of a
receiver for ViryaNet or any other proceeding involving insolvency or the
protection of, or from creditors, and same has not been discharged or terminated
without any prejudice to Licensee's rights or interest under the License
Agreement
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within forty-five (45) days; or if ViryaNet has ceased its on-going business
operations, maintenance or other support of the relevant ViryaNet Product for
more than forty-five (45) days; or
(c) A written demand from a court of appropriate jurisdiction that the
Deposit Materials be released and delivered to Licensee.
Notwithstanding anything contained in this Section 4.1 to the contrary, Escrow
Agent shall not release the ViryaNet Deposit Materials upon the occurrence of
the following events (i) a merger of ViryaNet with a third party, (ii) the sale
of all or substantially all of the assets of ViryaNet to any third party, or
(iii) an acquisition of the share capital of ViryaNet by any third party,
provided that such third party mentioned in (i), (ii) or (iii) above shall
continue to provide or be capable of providing support and maintenance for the
ViryaNet Product(s) in the reasonable determination of Licensee.
For any release of the ViryaNet Deposit Materials to Licensee, Licensee, will
provide Escrow Agent with specific delivery instructions and an initial check
payable to Escrow Agent in the amount of one hundred dollars ($100)
(collectively a "ViryaNet Delivery Demand").
4.2 Release by Escrow Agent to ViryaNet. Escrow Agent shall release (the
ClickSoftware Deposit Materials, or a complete and fully accurate copy thereof,
to ViryaNet (provided none of the events specified in Section 4.1 above have
occurred) in the event any of the following event occurs:
(a) The CEO of ClickSoftware notifies Escrow Agent in writing,
accompanied by a Board Resolution of ClickSoftware authorizing the same, to
effect such release and delivery to ViryaNet at a specific address, the
notification being accompanied by a check payable to Escrow Agent in the amount
of one hundred dollars ($100.00); or
(b) If ClickSoftware has availed itself, or been subjected to, by any
third party, a proceeding in bankruptcy in which ClickSoftware is the named
debtor, an assignment by ClickSoftware for the benefit of its creditors, the
appointment of a receiver for ClickSoftware or any other proceeding involving
insolvency or the protection of, or from creditors, and same has not been
discharged or terminated without any prejudice to Licensee's rights or interest
under the License Agreement within forty-five (45) days; or if ClickSoftware has
ceased its on-going business operations, maintenance or other support of the
Clickschedule Software for more than forty-five (45) days; or
(c) A written demand from a court of appropriate jurisdiction that the
ClickSoftware Deposit Materials be released and delivered to ViryaNet.
Notwithstanding anything contained in this Section 4.2 to the contrary, Escrow
Agent shall not release the ClickSoftware Deposit Materials upon the occurrence
of the following events (i) a merger of ClickSoftware with a third party, (ii)
the sale of all or substantially all of the assets of ClickSoftware to any third
party, or (iii) an acquisition of the share capital of ClickSoftware by any
third party, provided that such third party mentioned in (i), (ii) or (iii)
above shall continue to
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provide or is capable of providing the support and maintenance for ClickSchedule
Software in the reasonable determination of Licensee, provided that if ViryaNet
shall dispute such determination the parties agree to submit the dispute to
arbitration, and the provision of Section 4.3(a) shall apply.
If any of the events specified in Section 4.2 shall have occurred after the
occurrence of any of the events specified in Section 4.1, the ClickSoftware
Deposit Material shall be released to Licensee and not to ViryaNet, and all
reference in this Agreement to ViryaNet with respect to the ClickSoftware
Deposit Material shall be changed to Licensee.
For any release of the ClickSoftware Deposit Materials to ViryaNet, ViryaNet
will provide Escrow Agent with specific delivery instructions and an initial
check payable to Escrow Agent by Licensee in the amount of one hundred dollars
($100) (collectively a "ClickSoftware Delivery Demand").
4.3 If the provisions of Paragraph 4.1(a) or 4.1(c) are satisfied, Escrow Agent
shall, within five (5) business days after receipt of the notification, deliver
the ViryaNet Deposit Materials in accordance with the ViryaNet Delivery Demand.
If the provisions of Paragraph 4.1(b) are met, Escrow Agent shall,
within five (5) business days after the occurance of any of the events specified
in Paragraph 4.1(b), send to ViryaNet copies of such documents. ViryaNet shall
have thirty (30) days from the date on which ViryaNet receives such documents
("ViryaNet Objection Period") to notify Escrow Agent of its objection ("ViryaNet
Objection Notice") to the release of the ViryaNet Deposit Materials to Licensee
and to request that the issue of Licensee's entitlement to a copy of the
ViryaNet Deposit Materials be submitted to arbitration in accordance with the
following provisions:
(a) If ViryaNet shall send an Objection Notice to Escrow Agent during
the ViryaNet Objection Period, the matter shall within ten (10) days of
ViryaNet's Objection Notice, be submitted to, and settled by arbitration by, a
panel of three (3) arbitrators in accordance with the rules of the American
Arbitration Association. The arbitrators shall apply New York Law and render
their decision in writing. At least one (1) arbitrator shall be reasonably
familiar with the computer software industry. The decision of the arbitrators
shall be confidential, binding and conclusive on all parties involved, and
judgment upon their decision may be entered in a court of competent
jurisdiction. All costs of the arbitration incurred by Escrow Agent, including
reasonable attorneys' fees and costs, shall be paid by the party which does not
prevail in the arbitration; provided, however, if the arbitration is settled
prior to a decision by the arbitrators, ViryaNet and Licensee shall each pay
fifty percent (50%) of all such costs unless the withdrawing party shall
otherwise agree. As between ViryaNet and Licensee all costs of the arbitration
incurred by the prevailing party, including reasonable attorneys' fees and
costs, shall be paid by the party which does not prevail in the arbitration
unless the arbitrators shall otherwise dictate in their written arbitration
decision.
(b) ViryaNet may, at any time prior to the commencement of arbitration
proceedings, notify Escrow Agent that ViryaNet has withdrawn the ViryaNet
Objection Notice. Upon receipt of any such notice from ViryaNet, Escrow Agent
shall reasonably promptly deliver the ViryaNet
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Deposit Materials to Licensee in accordance with the instructions specified in
the ViryaNet Delivery Demand, and notwithstanding any of the provisions herein
ViryaNet shall pay for all costs of the arbitration incurred by Licensee or the
Escrow Agent until that point.
(c) If, at the end of the Objection Period, Escrow Agent has not
received an Objection Notice from ViryaNet, then Escrow Agent shall reasonably
promptly deliver the ViryaNet Deposit Materials to Licensee in accordance with
the instructions specified in the ViryaNet Delivery Demand. Both ViryaNet and
Licensee agree that Escrow Agent shall not be required to deliver such ViryaNet
Deposit Materials until all such fees then due Escrow Agent have been paid.
(d) In the event that the ViryaNet Deposit Materials are released to
Licensee in conformity with this Paragraph 4, Licensee will receive a
royalty-free perpetual, non-exclusive license to use, copy, maintain, update,
modify and create derivate work from the ViryaNet Deposit Materials solely for
the purposes of providing support and maintenance to the ViryaNet Product(s).
Licensee shall not be permitted to license or sublicense the ViryaNet Deposit
Materials to any third party or (ii) utilize the ViryaNet Deposit Materials for
any commercial purposes not contemplated by the License Agreement. This
paragraph and the rights granted to Licensee hereunder shall survive the
termination of this Agreement.
4.4 If the provisions of Paragraph 4.2 (a) or 4.2 (c) are satisfied, Escrow
Agent shall, within five (5) business days after receipt of the notification,
deliver the ClickSoftware Deposit Materials to ViryaNet in accordance with the
ClickSoftware Delivery Demand.
If the provisions of Paragraph 4.2(b) are met, Escrow Agent shall,
within five (5) business days after the occurrence of any of the events
specified in Paragraph 4.2(b), send to ClickSoftware copies of such documents.
ClickSoftware shall have thirty (30) days from the date on which ClickSoftware
receives such documents ("ClickSoftware Objection Period") to notify Escrow
Agent of its objection ("ClickSoftware Objection Notice") to the release of the
ClickSoftware Deposit Materials to ViryaNet and to request that the issue of
Licensee's entitlement to a copy of the ClickSoftware Deposit Materials be
submitted to arbitration in accordance with the following provisions:
(a) If ClickSoftware shall send a ClickSoftware Objection Notice to
Escrow Agent during the ClickSoftware Objection Period, the matter shall within
ten (10) days of ClickSoftware's Objection Notice, be submitted to, and settled
by arbitration by, a panel of three (3) arbitrators in accordance with the rules
of the American Arbitration Association. The arbitrators shall apply New York
Law and render their decision in writing. At least one (1) arbitrator shall be
reasonably familiar with the computer software industry. The decision of the
arbitrators shall be confidential, binding and conclusive on all parties
involved, and judgment upon their decision may be entered in a court of
competent jurisdiction. All costs of the arbitration incurred by Escrow Agent,
including reasonable attorneys' fees and costs, shall be paid by the party which
does not prevail in the arbitration; provided, however, if the arbitration is
settled prior to a decision by the arbitrators, ClickSoftware and ViryaNet shall
each pay fifty percent of all such costs unless the withdrawing party shall
otherwise agree. As between ClickSoftware and ViryaNet all costs of the
arbitration incurred by the prevailing party,
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including reasonable attorneys' fees and costs, shall be paid by the party which
does not prevail in the arbitration unless the arbitrators shall otherwise
dictate in their written arbitration decision.
(b) ClickSoftware may, at any time prior to the commencement of
arbitration proceedings, notify Escrow Agent that ClickSoftware has withdrawn
the ClickSoftware Objection Notice. Upon receipt of any such notice from
ClickSoftware, Escrow Agent shall reasonably promptly deliver the ClickSoftware
Deposit Materials to ViryaNet in accordance with the instructions specified in
the ClickSoftware Delivery Demand.
(c) If, at the end of the ClickSoftware Objection Period, Escrow Agent
has not received a ClickSoftware Objection Notice from ClickSoftware, then
Escrow Agent shall reasonably promptly deliver the ClickSoftware Deposit
Materials to ViryaNet in accordance with the instructions specified in the
ClickSoftware Delivery Demand. Both ClickSoftware and ViryaNet agree that Escrow
Agent shall not be required to deliver such ClickSoftware Deposit Materials
until all such fees then due Escrow Agent have been paid.
(d) In the event that the ClickSoftware Deposit Materials are released
to ViryaNet in conformity with this Paragraph 4, ViryaNet will receive a royalty
free perpetual, non-exclusive license to use, copy, maintain, update, modify and
create derivate work from the ClickSoftware Deposit Materials solely for the
purposes of providing support and maintenance to Licensee. ViryaNet shall not be
permitted to license or sublicense the ClickSoftware Deposit Materials to any
third party or utilize the ClickSoftware Deposit Materials for any commercial
purposes not contemplated by the License Agreement. This paragraph and the
rights granted to ViryaNet and/or to Licensee hereunder shall survive the
termination of this Agreement.
4.5 Escrow Agent shall release and return the Deposit Materials to ViryaNet and
ClickSoftware, as applicable, upon termination of this Agreement in accordance
with Paragraph 7 hereof.
4.6 In the event of the occurrence of both the circumstances described in
Paragraphs 4.2 and 4.3, above, Licensee shall be entitled to use and access all
of the ClickSoftware Deposit Materials (in addition to any rights Licensee may
have in the ViryaNet Deposit Materials) in accordance with the provisions of
Paragraph 4.4(d), as if Licensee was the contemplated recipient of the
ClickSoftware Deposit Materials thereunder.
5. INDEMNITY. With the exception of misrepresentation, negligence or intentional
misconduct on the part of Escrow Agent, its directors, officers, agents,
employees or stockholders, ViryaNet, ClickSoftware and Licensee shall, jointly
and severally, indemnify and hold harmless Escrow Agent and each of its
directors, officers, agents, employees and stockholders ("Escrow Agent
Indemnities") absolutely and forever, from and against any and all claims,
actions, damages, suits, liabilities, obligations, costs, fees, charges, and any
other expenses whatsoever, including reasonable attorneys' fees and costs, that
may be asserted against any Escrow Agent Indemnitee in connection with this
Agreement or the performance of Escrow Agent or any Escrow Agent Indemnitee
hereunder. IN NO EVENT SHALL VIRYANET, CLICKSOFTWARE OR LICENSEE BE LIABLE FOR
ANY SPECIAL, INDIRECT, INCIDENTAL OR
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CONSEQUENTIAL DAMAGES EVEN IF VIRYANET, CLICKSOFTWARE OR LICENSEE SHALL HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. DISPUTES AND INTERPLEADER.
6.1 Escrow Agent may submit any dispute under this Agreement (other than a
matter submitted by the parties as described in Section 4 of this Agreement
after Escrow Agent's receipt of a ViryaNet Objection Notice and/or ClickSoftware
Objection Notice, as applicable) to any court of competent jurisdiction in an
interpleader or similar action.
6.2 Escrow Agent shall perform any acts ordered by any court of competent
jurisdiction, without any liability or obligation to any party hereunder by
reason of such act.
7. TERM AND RENEWAL.
7.1 Unless the ViryaNet Deposit Materials or the ClickSoftware Deposit Materials
are required under the terms hereof to be released to Licensee, the term of this
Agreement shall be identical to the term of the License Agreement and shall
terminate upon the termination of the License Agreement.
7.2 Licensee, ClickSoftware and ViryaNet may collectively agree to terminate
this Agreement, at any time, by mutual written agreement. Upon such termination,
Escrow Agent shall return all the ViryaNet Deposit Materials in its possession
to ViryaNet and all ClickSoftware Deposit Materials in its possession to
ClickSoftware.
7.3 Escrow Agent may terminate its obligations under this Agreement upon ninety
(90) days prior written notice to Licensee
7.4 In the event of termination of this Agreement in accordance with Paragraph
7(a) hereof, Licensee shall pay all fees due Escrow Agent and shall promptly
notify ViryaNet and ClickSoftware that this Agreement has been terminated.
8. FEES. Licensee shall pay to Escrow Agent the applicable fees in accordance
with Schedule C as compensation for Escrow Agent's services under this
Agreement. The first year fees are due upon receipt of the signed contract or
Deposit Materials, whichever comes first, and shall be paid in U.S. Dollars.
8.1 PAYMENT. Escrow Agent shall issue an invoice to Licensee following execution
of this Agreement ("Initial Invoice") and in connection with the performance of
any additional services hereunder. Payment is due upon receipt of invoice. All
fees and charges are exclusive of, and Licensee is responsible for the payment
of, all sales, use and like taxes. Escrow Agent shall have no obligations under
this Agreement until the Invoice has been paid in full by Licensee.
8.2 NONPAYMENT. In the event of non-payment of any fees or charges invoiced by
Escrow Agent, Escrow Agent shall give notice of non-payment of any fee due and
payable hereunder to
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Licensee and, in such an event, the Licensee shall have the right to pay the
unpaid fee within ten (10) days after receipt of notice from Escrow Agent. If
Licensee fails to pay in full all fees due during such ten (10) day period,
Escrow Agent shall give notice of non-payment of any fee due and payable
hereunder to ViryaNet and ClickSoftware and, in such event, ViryaNet and
ClickSoftware shall have the right to pay the unpaid fee within ten (10) days of
receipt of such notice from Escrow Agent. Upon payment of the unpaid fee by
either the ViryaNet, ClickSoftware or Licensee, as the case may be, this
Agreement shall continue in full force and effect until the end of the
applicable term. Failure to pay the unpaid fee under this Paragraph 8(b) by
ViryaNet, ClickSoftware and Licensee shall result in termination of this
Agreement.
9. OWNERSHIP OF DEPOSIT MATERIALS. The parties recognize and acknowledge that
ownership of the ViryaNet Deposit Materials shall remain with ViryaNet at all
times and that ownership of the ClickSoftware Deposit Materials shall remain
with ClickSoftware at all times, provided, however, that nothing contained
herein shall be deemed to limit the right of ViryaNet and/or Licensee, as
applicable, pursuant to Paragraphs 4.3(d) or 4.4(d) hereunder.
10. NOTICES. The parties hereto acknowledge that notices and service of legal
process shall be considered to be validly delivered if received by the
appropriate party by personal hand delivery, overnight mail service or certified
or registered mail, return receipt requested, postage prepaid, at the addresses
set forth below, unless a party notifies the others in writing of a different
address.
IF TO LICENSEE:
- ---------------
Viasource Communications, Inc.
200 E. Broward Boulevard, Suite 2100
Fort Lauderdale, FL 33301
Attn: Gerry Thorning
Fax: (954) 525-1868
--------------------------------
with a copy to:
Akerman, Senterfitt & Eidson, P.A.
One SouthEast Third Avenue
Suite 2800
Miami, Florida 33131
Attn: Bradley D. Houser, Esq.
Fax: (305) 374-5095
IF TO CLICKSOFTWARE:
- -------------------
ClickSoftware, Inc.
655 Campbell Technology Parkway, Suite 250
Campbell, CA 95008
Attn: General Counsel
Tefax:
------------------------------
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IF TO VIRYANET:
- --------------
ViryaNet, Inc.
2 Willow Street, Southborough
MA 01745-1027
Attn: VP North America Sales
Attn: General Counsel
Telefax: (508) 490 8666
IF TO ESCROW AGENT:
Fort Knox Escrow Services, Inc.
2100 Norcross Parkway, Suite 150,
Norcross, GA 30071
Attn: Mr. Chris Smith
Telefax: (770) 239 9201
11. MISCELLANEOUS.
(a) REMEDIES. Except for material breach, misrepresentation, negligence
or intentional misconduct, Escrow Agent shall not be liable to ViryaNet or to
Licensee for any act, or failure to act, by Escrow Agent in connection with this
Agreement. Any liability of Escrow Agent regardless of the cause shall be
limited to the fees exchanged under this Agreement. Escrow Agent will not be
liable for special, indirect, incidental or consequential damages hereunder.
(b) NATURAL DEGENERATION; UPDATES. In addition, the parties acknowledge
that as a result of the passage of time alone, the Deposit Materials are
susceptible to loss of quality ("Natural Degeneration"). It is further
acknowledged that Escrow Agent shall have no liability or responsibility to any
person or entity for any Natural Degeneration provided Escrow Agent complies
with this Escrow Agreement.
(c) PERMITTED RELIANCE AND ABSTENTION. Escrow Agent may rely and shall
be fully protected in acting or refraining from acting upon any notice or other
document believed by Escrow Agent in good faith to be genuine and to have been
signed or presented by the proper person or entity. Escrow Agent shall have no
duties or responsibilities except those expressly set forth herein.
(d) INDEPENDENT CONTRACTOR. Escrow Agent, ViryaNet, ClickSoftware and
Licensee are independent contractors, and are not employees or agents of the
other.
(e) AMENDMENTS. This Agreement shall not be modified or amended except
by another agreement in writing executed by the parties hereto.
(f) ENTIRE AGREEMENT. This Agreement, including all exhibits hereto,
supersedes all prior discussions, understandings and agreements between the
parties with respect to the matters contained herein, and constitutes the entire
agreement between the parties with respect to the
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matters contemplated herein. All exhibits attached hereto are by this reference
made a part of this Agreement and are incorporated herein.
(g) COUNTERPARTS; GOVERNING LAW. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement. This Agreement shall be construed and enforced in accordance with the
laws of the State of New York without regard to its conflict of law principles.
(h) CONFIDENTIALITY. Escrow Agent will hold and release the Deposit
Materials only in accordance with the terms and conditions hereof, and will
maintain the confidentiality of the Deposit Materials. In the event of release
of the Deposit Materials to Licensee in accordance with this Agreement, Licensee
and ViryaNet, as applicable, undertakes to maintain the confidentiality of the
Deposit Materials in accordance with the license granted in this Agreement and
in accordance with the confidentiality undertaking contained in the License
Agreement.
(i) NOTICES. All notices, requests, demands or other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be delivered by hand or by commercial overnight delivery
service which provides for evidence of receipt, or mailed by certified mail,
return receipt requested, postage prepaid. If delivered personally or by
commercial overnight delivery service, the date on which the notice, request,
instruction or document is delivered shall be the date on which delivery is
deemed to be made, and if delivered by mail, the date on which such notice,
request, instruction or document is received shall be the date on which delivery
is deemed to be made. Any party may change its address for the purpose of this
Agreement by notice in writing to the other parties as provided herein.
(j) SURVIVAL. Paragraphs 4.3(d), 4.4(d), 5, 6, 8, 9, and 11 shall
survive any termination of this Agreement.
(k) NO WAIVER. No failure on the part of any party hereto to exercise,
and no delay in exercising any right, power or single or partial exercise of any
right, power or remedy by any party will preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. No express waiver
or assent by any party hereto to any breach of or default in any term or
condition of this Agreement shall constitute a waiver of or an assent to any
succeeding breach of or default in the same or any other term or condition
hereof.
(l) SEVERABILITY . All terms and conditions of this Agreement are
severable. If any term or provision, or any portion thereof, of this Agreement
is held to be invalid, illegal or unenforceable, the remaining portions shall
not be affected.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF each of the parties has caused its duly authorized
officer to execute this Agreement as of the date and year first above written.
ESCROW AGENT:
- ------------
FORT KNOX ESCROW SERVICES, INC.
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
VIRYANET:
- --------
VIRYANET, INC.
By:
------------------------------------
Print Name:
Title:
LICENSEE:
- --------
VIASOURCE COMMUNICATIONS, INC.
By:
------------------------------------
Print Name:
Title:
CLICKSOFTWARE:
- -------------
CLICKSOFTWARE, INC.
By:
------------------------------------
Print Name:
Title:
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36
ESCROW AGREEMENT SCHEDULE "A"
The Fees to be paid by Licensee to Escrow Agent pursuant to the Escrow Agreement
shall be as follows:
Initialization Fee (one time only) $ 850
($765 for current clients)
Annual maintenance/storage fee
includes two Deposit Material updates $ 1,000
includes one cubic foot of storage space
Additional Updates $150
(above two per year)
Additional Storage Space $150/cubic foot
The following fees are payable by Licensee or ViryaNet as the case may be:
Due Upon Licensee's or ViryaNet's
Request for Release of Deposit Materials $100 for initial two hrs
$50/hour for additional hours
A ten percent (10%) discount is credited towards the Initialization Fee for
current Fort Knox clients. Fees due upon receipt of signed contract or Deposit
Material, whichever comes first and shall be paid in U.S. Dollars. Thereafter,
fees shall be subject to their current pricing, provided that such prices shall
not increase by more than ten percent (10%) per year. An invoice for all renewal
fees will be issued on the anniversary of the initial invoice.
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ESCROW AGREEMENT SCHEDULE "B"
B1. PRODUCT NAME: ViryaNet Service Hub, including the following modules:
ViryaNet Service Portal, ViryaNet Service Intelligence, ViryaNet
Service Process, ViryaNet mService Gateway, ViryaNet Mobile Suite,
ViryaNet Service Suite (excluding Depot Repair), ViryaNet Service
Engine, and ViryaNet Integration Server.
Version #:
---------------------------
Prepared and Confirmed by:
-----------------------------------------------------
Title: Date:
-------------------------------- ---------------------------------
Signature:
--------------------------------------------------------------------
TYPE OF DEPOSIT:
[X] Initial Deposit
Special Instructions:
--------------------------------------------
Items Deposit: Quantity Media Type Description of Material
- -------------- -------- ---------- -----------------------
A) B) C) D)
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
B2. PRODUCT NAME: ClickSchedule
Version #: 6.1
Prepared and Confirmed by:
-----------------------------------------------------
Title: Date:
-------------------------------- ---------------------------------
Signature:
--------------------------------------------------------------------
TYPE OF DEPOSIT:
[X] Initial Deposit
Special Instructions:
--------------------------------------------
Items Deposit: Quantity Media Type Description of Material
- -------------- -------- ---------- -----------------------
A) B) C) D)
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
--------------------- -------------------- ------------------- --------------------
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ESCROW AGREEMENT SCHEDULE "C"
[INSERT EXECUTED COPY OF LICENSE AND SUPPORT AND MAINTENANCE AGREEMENT]
Page 38 of 53
39
EXHIBIT "D"
CLICKSOFTWARE SUPPORT SERVICES PROVISIONS
The following describes the support and maintenance services (the "Support
Services") that ClickSoftware, Inc. ("ClickSoftware") has agreed to provide to
ViryaNet for ClickSoftware's ClickSchedule computer software (the "Product").
1.0 SUPPORT: Subject to Sections 4 and 5 below, ClickSoftware shall make
available to ViryaNet the Support Services solely in connection with the
Product, in accordance with the Support Procedure set forth below. ViryaNet
agrees to use reasonable efforts to resolve internally any support questions
prior to requesting Support Services from ClickSoftware pursuant to this
Exhibit. ClickSoftware Software Support technicians shall be only obligated to
respond to ViryaNet's designated primary and alternate contacts, who shall have
been adequately trained on the Product, and who have sufficient technical
expertise, training and/or experience. ViryaNet agrees to test, and if operable,
accept and use all updates, amendments and alterations to the Product furnished
by ClickSoftware hereunder, and to install and maintain for the duration of this
Agreement a modem, associated dial-up network or internet access. ViryaNet shall
allow suitable access as needed to the Product via this connection for the
purpose of providing support services and will pay all telephone line use
charges. ViryaNet shall maintain ClickSoftware supported versions of required
third party software, if any.
2.0 SUPPORT PROCEDURE: ClickSoftware will make reasonable efforts to promptly
log, research and resolve deviations in the Product and its configuration that
ViryaNet identifies and that ClickSoftware substantiates. As used herein,
"Deviation" means one or more reproducible deviations in the standard,
unmodified Product from the applicable specifications shown in the documentation
provided by ClickSoftware relating to the Product. ViryaNet will provide
sufficient information to enable ClickSoftware to duplicate the Deviation before
ClickSoftware's resolution obligations will commence. ClickSoftware will not be
required to correct any Deviation to the extent caused by: (a) any part thereof
other than any of such as contained in or made a part of the ViryaNet
Product(s); (b) any nonconformance caused by accident, transportation, neglect,
misuse, alteration, modification, or enhancement of the Product or related data;
(c) the failure to provide a suitable installation environment; (d) use of the
Product for other than the specific purpose for which the Product is designed;
(e) use of the Product on any systems other than the specified hardware platform
for such Product; (f) use of defective media or defective duplication of the
Product; or (g) failure to incorporate any Update (as defined below) previously
released by ClickSoftware, which corrects such Deviation.
3.0 CLASSIFICATION: Provided Deviation reports are received by ClickSoftware
during ClickSoftware's business hours (8am - 5pm local time), excluding holidays
and weekends, ClickSoftware shall classify the Deviation in accordance with the
Deviation Description and corresponding Priority set forth in the table below,
and will use reasonable commercial efforts to communicate with ViryaNet about
the Deviation, via telephone or e-mail within the following targeted response
times:
Contact
Response
Time
Priority Deviation Description Gold Plan
- -------- --------------------- ---------
1 Fatal (no useful work can be done). 2 hours
2 Severe Impact (Functionality disabled): Errors that result 4 hours
in a lack of application functionality or cause
intermittent system failure.
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Contact
Response
Time
Priority Deviation Description Gold Plan
- -------- --------------------- ---------
3 Degraded Operations: Errors causing malfunction f 1 working day
non-critical functions.
4 Minimal Impact: Attributes and/or options to utility Future release,
programs do not operate as stated. on a business
justifiable basis
5 Enhancement Request. When applicable
4.0 AFTER HOURS: After hours support is available for Deviation reports received
by ClickSoftware after ClickSoftware's business hours (5pm and 8am local time),
including holidays and weekends. ClickSoftware shall classify the Deviation in
accordance with the Deviation Description and attendant Priority set forth in
the table below, and will use reasonable commercial efforts to communicate with
ViryaNet about the Deviation, via telephone or e-mail within the following
targeted response times:
Contact
Response
Time
Priority Deviation Description Gold Plan
- -------- --------------------- ---------
1 Fatal (no useful work can be done). 2 hours
2 Severe Impact (Functionality disabled): Errors that 4 hours
result in a lack of application functionality or cause
intermittent system failure.
3 Degraded Operations: Errors causing malfunction of 1 working day
non-critical functions.
4 Minimal Impact: Attributes and/or options to utility Future release,on
programs do not operate as stated. a business
justifiable basis
5 Enhancement Request. When applicable
5.0 REASONABLE EFFORTS: Without limiting ClickSoftware's obligations set forth
herein, ClickSoftware will use reasonable commercial efforts to promptly log,
research and resolve each significant Deviation by providing either a reasonable
workaround, a maintenance update or a specific action plan. ClickSoftware
reserves the right to charge ViryaNet additional fees at its then standard rates
for services performed in connection with reported Deviations which are later
determined to have been due to hardware or software not supplied or supported by
ClickSoftware.
6.0 ViryaNet will appoint and identify to ClickSoftware two (2) individuals to
act as official points of contact with ClickSoftware regarding support, and all
of ViryaNet's support questions will flow through these particular individuals.
All support to ViryaNet will be provided to these individuals only.
ClickSoftware will be notified in writing by ViryaNet as to the identity of
these two (2) individuals, who will be provided unlimited technical support via
telephone and email seven days per week and twenty-four (24) hours per day.
7.0 LIMITATION: ClickSoftware will not be responsible for any support required
as a result of changes to the applicable Product or its environment that are not
made or authorized by ClickSoftware in accordance with the terms of that certain
Master Agreement, entered into between ClickSoftare and ViryaNet dated
___________________, or use of other than the then-current release of the
Product or the version just prior to the most current version, running on the
most current version of the Operating
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System specified in the ClickSoftware Corporate Policy on Product Versions and
Operating System Support, which is updated at least once a year.
8.0 UPDATES: During the Support Term (as defined below), ViryaNet shall be
entitled to receive, free of charge, Updates to the Product and Documentation
released by ClickSoftware to its ViryaNet. As used herein, "Update" means a new
version of the Product that ClickSoftware distributes free of charge to its
ViryaNet f the Product to correct errors or to provide enhancements to the
Product. "Update" does not include any modifications or enhancements that
represent a new product, as determined by ClickSoftware in its sole discretion.
ClickSoftware shall support only the most current version of the Product or the
version just prior to the most current version, running on the most current
version of the Operating System specified in the ClickSoftware Corporate Policy
on Product Versions and Operating System Support which is updated at least once
a year.
9.0 TRAVEL TIME: ClickSoftware and Viryanet anticipate that the Support Services
provided under the terms of this contract shall be provided from ClickSoftware's
facilities. Should ViryaNet require that Support Services be provided on
ViryaNet's site which, in the opinion of ClickSoftware, may be sufficiently
provided from ClickSoftware's facilities, actual travel time incurred shall be
treated as ordinary Support Services under the terms of this Exhibit.
10.0 SUPPORT TERM: The term of any support services provided under Section 1.0
shall be twelve (12) months from the date agreed to by ViryaNet for the
commencement of such services (the "Support Term"). Such Support Term shall
automatically renew, and all applicable fees shall be due, at the commencement
of each successive twelve (12) month period unless ViryaNet notifies
ClickSoftware no less than sixty (60) days prior to the end of the then current
term.
11.0 REINSTATEMENT OF SUPPORT SERVICES: If ViryaNet notifies ClickSoftware of
cancellation of support services, ClickSoftware's obligations to provide new
versions as outlined in Section 8.0 above shall be cancelled. ViryaNet may elect
to renew support services after cancellation by paying any support fees that
would have otherwise been paid during the cancellation period. A System
Certification Fee may apply as part of the renewal process.
12.0 REIMBURSABLE EXPENSES: ViryaNet shall promptly reimburse ClickSoftware for
any reasonable out-of-pocket expenses incurred by ClickSoftware in connection
with providing services to ViryaNet. All travel and telecommunication charges
are considered out-of-pocket expenses. All such expenses will be billed as
incurred.
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EXHIBIT "E"
CLICKSOFTWARE LICENSE AGREEMENT
This CLICKSOFTWARE LICENSE AGREEMENT ("ClickSoftware Agreement") is entered into
by and between ClickSoftware, Inc. with its principal place of business 655
Campbell Technology Parkway, Suite 250, Campbell, California 95008
("CLICKSOFTWARE") and Viasource Communications, Inc. with its principal place of
business at 200 East Broward Boulevard, Suite 2100, Fort Lauderdale, Florida
33301 ("LICENSEE"), and includes any Exhibits, which are attached hereto and
incorporated herein by reference.
WHEREAS, LICENSEE has entered into a License and Support and Maintenance
Agreement with ViryaNet, Inc. dated April 5, 2001 (the "License Agreement") to
which this ClickSoftware Agreement is attached; and
WHEREAS, CLICKSOFTWARE is in the business of developing, marketing, licensing
and distributing proprietary CLICKSOFTWARE computer software programs together
with performance of related support services on a worldwide basis, and
WHEREAS, LICENSEE wishes to obtain the right to use certain CLICKSOFTWARE
software ClickSoftware Products,
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions set forth below, the parties agree as follows:
1.0 DEFINITIONS.
1.1 Capitalized terms not defined herein shall have the meanings ascribed to
them as contained in the License Agreement.
1.2 "Designated System" shall mean LICENSEE's computer hardware and operating
system designated on Schedule A to be used with the ClickSoftware Product.
1.3 "ClickSoftware Product" shall mean the computer software program(s) listed
in Schedule A in object code form, related documentation, user manuals, patches,
workarounds, bug fixes, upgrades, updates, enhancements and modifications
provided by CLICKSOFTWARE in performance of Support Services under this
ClickSoftware Agreement.
1.4 "Scheduled Resources" shall mean the number of LICENSEE employees, delivery
vehicles and/or other unique named resources in the ClickSoftware Product
database listed in Schedule A.
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2.0 RESERVED
3.0 GRANT OF LICENSE TO USE THE CLICKSOFTWARE PRODUCT.
3.1 GRANT: Effective upon payment of applicable license fees, CLICKSOFTWARE
hereby grants to LICENSEE and its subsidiaries and Affiliates a non-exclusive,
perpetual, non-transferable license to use the ClickSoftware Product and any
related documentation provided by CLICKSOFTWARE. Effective upon payment
therefore, LICENSEE may make five (5) copies of the ClickSoftware Product,
excluding documentation, for a test environment, archival or back-up purposes
only.
3.2 RESTRICTIONS: Except as may be permitted, LICENSEE shall not modify,
enhance, translate, reverse engineer, decompile, disassemble or create
derivative works based upon the ClickSoftware Product, or otherwise attempt to
derive source code from the ClickSoftware Product (except to the extent that
such acts may not be prohibited under applicable law), and no rights with
respect to ClickSoftware Product source code are granted.
4.0 AUDIT RIGHTS.
4.1 PRODUCT AND SUPPORT SERVICES PRICING: LICENSEE shall make payment to
ViryaNet, Inc. for ClickSoftware Product described in Schedule A of the License
Agreement.
4.2 PAYMENT TERMS: Payment of fees under this ClickSoftware Agreement shall be
made by LICENSEE directly to ViryaNet due in accordance with Exhibit A of the
License Agreement.
4.3 ACCEPTANCE: All shipments and all shipping and other charges shall be deemed
correct unless CLICKSOFTWARE receives from LICENSEE, no later than thirty (30)
days after LICENSEE's receipt of a given shipment, a written notice specifying
the shipment, the purchase order number, and the nature of the discrepancy
between the order and the shipment or the nature of the discrepancy in the
shipping or other charges, as applicable.
4.4 AUDIT: CLICKSOFTWARE may, at its expense, audit LICENSEE's use of
ClickSoftware Products and authorized Scheduled Resources. Any such audit shall
be conducted during regular business hours at LICENSEE's facilities and shall
not unreasonably interfere with LICENSEE's business. Audits shall be conducted
no more than one (1) time per year. If an audit reveals that LICENSEE has
underpaid applicable license fees to CLICKSOFTWARE, LICENSEE shall be invoiced
for such underpaid fees, which shall be due and payable within thirty (30) days
of receipt of such invoice. If the underpaid fees are in excess of five percent
(5%), LICENSEE shall reimburse CLICKSOFTWARE for all reasonable costs incurred
to conduct the audit. If any audit reveals that LICENSEE has overpaid applicable
license fees to CLICKSOFTWARE, CLICKSOFTWARE shall refund any overpayments
within thirty (30) days of conducting such audit. Notwithstanding the foregoing,
LICENSEE shall have the option, at its expense, to request that the audit be
performed by a mutually agreed upon independent auditor. Any information
acquired by CLICKSOFTWARE pursuant to this paragraph shall be considered
"Confidential Information" of LICENSEE pursuant to Section 8 hereunder.
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5.0 MARKETING AND PROMOTIONAL ACTIVITIES.
5.1 CONSENT: Upon prior written consent of the other party, LICENSEE and
CLICKSOFTWARE may each use the other party's trademarks, logos and/or tradenames
in their advertising and printed materials, which written consent shall not be
unreasonably withheld.
5.2 USE OF TRADEMARK: Each party agrees to clearly display an acknowledgment of
the other party's ownership of its trademarks, logos and tradenames. LICENSEE
agrees to include the CLICKSOFTWARE trademarks, logos and/or tradenames on all
use of ClickSoftware Product, copies of ClickSoftware Product, advertisements,
brochures, "Powered by" log on web page, and other appropriate documentation.
LICENSEE shall not alter, remove, modify or otherwise impair the appearance of
CLICKSOFTWARE's trademark as it is displayed by use of ClickSoftware Product as
supplied by CLICKSOFTWARE.
5.3 MARKETING: LICENSEE and CLICKSOFTWARE shall cooperate with each other so
that each party may issue a press release concerning this ClickSoftware
Agreement, provided that each party must approve in writing any press release
prior to its release.
6.0 TERM.
This ClickSoftware Agreement shall be effective upon execution by both
parties ("Effective Date") and shall continue in full force and effect unless
and until terminated in accordance with the provisions of Section 12
(Termination) of this ClickSoftware Agreement.
7.0 INTELLECTUAL PROPERTY RIGHTS.
7.1 CLICKSOFTWARE PRODUCT OWNERSHIP: LICENSEE acknowledges and agrees that the
ClickSoftware Product, including any patches, workarounds, updates, upgrades,
enhancements and modifications thereto provided to LICENSEE as Support Services,
and all trade secret, copyright, patent, trademark, trade name and other
intellectual and proprietary rights therein, are and at all times shall remain
the property of CLICKSOFTWARE and subject to the terms and conditions of this
ClickSoftware Agreement.
7.2 PROPRIETARY NOTICES: LICENSEE shall not remove any copyright, trademark or
other proprietary rights notices of CLICKSOFTWARE on any ClickSoftware Product.
8.0 CONFIDENTIALITY.
8.1 GENERAL: Each party acknowledges that during the term of this ClickSoftware
Agreement it shall be entrusted with certain Confidential Information of the
other party that should reasonably have been understood by the receiving party
due to legends or other markings, the circumstances of disclosure or the nature
of the information itself, to be proprietary and confidential to the disclosing
party and agrees that it shall use reasonable care to protect the
confidentiality thereof, using at least the same measures it would use to
protect its own similar information and for a period of three (3) years after
termination of this
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ClickSoftware Agreement shall not (a) use such Confidential Information for any
purpose except the performance of this ClickSoftware Agreement, or (b) disclose
any such Confidential Information to any person (except employees or agents on a
need-to-know basis where such persons have agreed to be bound in writing to
obligations of confidentiality), unless such disclosure is authorized by the
other party in writing, or (c) disclose any such Confidential Information
required by court or judicial order without first informing the other party and
cooperating with such other party if such other party shall contest such
disclosure.
8.2 EXCEPTIONS: The obligations of each party under this Section 8 shall not
apply to information that (i) was in a party's possession without
confidentiality restriction prior to disclosure; (ii) was generally known in the
trade or business in which it is practiced by the receiving party at the time of
disclosure, or becomes so generally known after such disclosure, through no act
of the receiving party; (iii) has come into the possession of the receiving
party rightfully from a third party without obligation of confidentiality; or
(iv) was developed by the receiving party independently of and without reference
to Confidential Information, as demonstrated by documentary evidence.
9.0 WARRANTIES.
9.1 POWER AND AUTHORITY: Each party warrants to the other party that it has
sufficient right and authority to enter into this ClickSoftware Agreement, and
to grant the rights and assume all their respective rights and obligations set
forth herein.
9.2 CLICKSOFTWARE PRODUCT WARRANTIES
9.2.1 MEDIA: CLICKSOFTWARE warrants that the media on which the
ClickSoftware Product shall be provided under normal use shall be free from
defects in materials and workmanship for a period of thirty (30) days after
delivery and if the media is found to be defective, CLICKSOFTWARE shall be
allowed, at the option of CLICKSOFTWARE, to repair or replace such defective
media at no charge.
9.2.2 DOCUMENTATION: CLICKSOFTWARE warrants that the ClickSoftware
Product shall perform substantially in accordance with the applicable
documentation published and provided by CLICKSOFTWARE to LICENSEE for a period
of thirty (30) days after delivery. In the event that LICENSEE notifies
CLICKSOFTWARE in writing specifying in reasonable detail how the ClickSoftware
Product fails to meet such warranty, CLICKSOFTWARE shall, at CLICKSOFTWARE's
discretion, repair or replace the ClickSoftware Product at no additional charge.
Any and all such repair services shall be in accordance with the Support
Services set forth on Exhibit B of the License Agreement. In the event
CLICKSOFTWARE is unable to repair or replace the ClickSoftware Product so that
the ClickSoftware Product performs substantially in accordance with the
applicable documentation within ninety (90) days of LICENSEE's notification then
LICENSEE shall be entitled to a full refund of of all amounts paid by LICENSEE
for the ClickSoftware Product and any support and maintenance related thereto.
9.2.3 DATE DATA COMPLIANCE: CLICKSOFTWARE warrants that the
ClickSoftware Product shall conform in all material respects to: (a) correctly
and unambiguously handle and process date information, including, but not
limited to, accepting date input, providing date
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output, storing and retrieving dates and the ability to perform calculations on
dates or portions of dates; (b) correctly process functions that are programmed
to commence and/or end on a particular date, including but not limited to
month-end year-end, leap year and any combinations thereof, irrespective of the
change in the century identifier; (c) function accurately without interruption
and without any change in operations and/or parameters associated with the
advent of the new century; and (d) respond to two-digit year date input in a way
that resolves the ambiguity as to the century in a disclosed, defined,
predetermined manner; and to store and provide output of date information in
ways that are unambiguous as to the century.
9.2.4 INTELLECTUAL PROPERTY: CLICKSOFTWARE warrants that it is the
developer and owner of the ClickSoftware Product, or that it has the authority
to grant the licenses granted hereunder; and (b) CLICKSOFTWARE knows of no
claim, litigation or proceeding pending or threatening with respect to the
ClickSoftware Product; and (c) the ClickSoftware Product and its components and
the use thereof in accordance with the terms and conditions of this Agreement,
do not infringe or violate any patents, copyrights, trademarks, trade secrets or
other intellectual property rights of any third party.
9.2.5 NO DELETERIOUS PROGRAMS: CLICKSOFTWARE warrants that the
ClickSoftware Product shall not contain any mechanism which may restrict
LICENSEE'S ability to use the ClickSoftware Product including, without
limitation, any: "viruses," "Trojan horses," "worms," "back doors," "time bomb,"
"drop dead device," or any other deleterious programmer code, which may restrict
LICENSEE'S ability to use or access any of the ClickSoftware Product or data
contained therein.
9.3 NO OTHER WARRANTIES: THE FOREGOING WARRANTY OF CLICKSOFTWARE IS IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A
PARTICULAR PURPOSE.
10.0 INTELLECTUAL PROPERTY INFRINGEMENT.
10.1 INDEMNITY: Subject to the limitations specified in this ClickSoftware
Agreement (including without limitation those specified in Section 11 below),
CLICKSOFTWARE agrees to defend, at its expense, any action brought against
LICENSEE based upon a claim that the ClickSoftware Product (other than
ClickSoftware Product modified by LICENSEE, without consent of CLICKSOFTWARE
(the "Excluded Material")), the Documentation or any part thereof directly
infringe any patent, copyright, trademark, trade secret, or any other
intellectual property right; provided that LICENSEE notifies CLICKSOFTWARE in
writing of such action. In the event of such an infringement claim,
CLICKSOFTWARE shall, at its expense, either:
10.1.1 procure for LICENSEE the right to continue using said
ClickSoftware Product; or
10.1.2 replace same with an equivalent non-infringing ClickSoftware
Product, and extend this indemnity thereto; or
10.1.3 modify the infringing ClickSoftware Product to make it
non-infringing; or
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10.1.4 remove the infringing portion of the ClickSoftware Product.
10.2 DEFENSE AGAINST ACTION: CLICKSOFTWARE shall have the right to control the
defense and/or settlement of such action and LICENSEE shall provide reasonable
assistance to CLICKSOFTWARE in its defense thereof. Notwithstanding the
foregoing, CLICKSOFTWARE shall have no obligation toward LICENSEE for any claim
arising from the foregoing infringement indemnity if any ClickSoftware Product
or deliverables (i) have been modified by a party other than CLICKSOFTWARE; (ii)
used in combination with other items where such infringement would not have
occurred but for such use in combination with such other items; or (iii) from
failure of LICENSEE to use updated ClickSoftware Product provided by
CLICKSOFTWARE to avoid such an infringement claim.
10.3 DISCLAIMER: THE FOREGOING STATES THE ENTIRE LIABILITY OF CLICKSOFTWARE AND
THE SOLE REMEDY OF LICENSEE, FOR INFRINGEMENT OF ANY COPYRIGHT, PATENT, TRADE
SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO ANY CLICKSOFTWARE
PRODUCT OR SERVICES FURNISHED HEREUNDER.
11.0 LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
REASON, WHETHER IN CONTRACT OR IN TORT, FOR ANY DIRECT DAMAGES ARISING OUT OF
USE OF THE CLICKSOFTWARE PRODUCT OR THE SUPPORT SERVICES OR OTHERWISE, IN THE
AGGREGATE, IN EXCESS OF THE AMOUNTS RECEIVED FOR THE SPECIFIC CLICKSOFTWARE
PRODUCT OR SUPPORT SERVICE GIVING RISE TO SUCH LIABILITY.
UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS RELATED PERSONS BE
LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL
DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING, BUT NOT LIMITED TO,
CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE
CLICKSOFTWARE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF
OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR
IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT
LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE
AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.
12.0 TERMINATION.
12.1 DEFAULT: Upon any material breach of this ClickSoftware Agreement by a
party, the other party shall have the right to terminate this ClickSoftware
Agreement and the licenses granted hereunder effective on thirty (30) days
written notice. Such termination shall become automatically effective unless the
breaching party shall have cured any material breach prior to the expiration of
the thirty (30) days' period.
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12.2 CONSEQUENCES: In the event of termination of this ClickSoftware Agreement,
each party shall promptly: (i) return to the other party all Confidential
Information provided by the disclosing party in the receiving party's
possession; and (ii) certify in writing to the other party, within thirty (30)
days of termination of this ClickSoftware Agreement that it has complied with
the foregoing.
12.3 SURVIVAL: Sections 1, 3, 7, 8, 10, 11, 13, and 15 hereof shall survive any
termination of this ClickSoftware Agreement.
13.0 NOTICES.
Any notice that is required to be given hereunder shall be in writing and
delivered by courier service or mailed by pre-paid registered mail addressed to
the parties' respective addresses as set forth below. Any such notice so
delivered shall be deemed to have been received by the addressee at the time and
date when actually delivered or in any event within ten (10) days after sending
in the manner provided herein. The addresses provided herein may be changed at
any time on prior written notice.
If to CLICKSOFTWARE:
ClickSoftware, Inc.
655 Campbell Technology Parkway
Suite 250
Campbell, California 95008
Fax: ___________________
Attn: __________________
If to LICENSEE:
ViaSource Communications, Inc.
200 East Broward Boulevard
Suite 2100
Fort Lauderdale, FL 33301
Fax: __________________
Attn: Gerry Thorning
With a copy to:
Akerman, Senterfitt & Eisdon, P.A.
One SouthEast Third Avenue
28th Floor
Miami, Florida 33131
Fax: (305) 374-5095
Attn: Bradley D. Houser, Esq.
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14.0 ASSIGNMENT.
Neither party shall have the right to assign or delegate in whole or in
part this ClickSoftware Agreement, or any rights, duties, obligations or
liabilities under this ClickSoftware Agreement, by operation of law or
otherwise, without the consent of the other party. This paragraph shall not be
construed as to prevent such assignment to any subsidiaries or Affiliates of
LICENSEE, or any successors in interest to either party whether by merger,
consolidation, sale of substantial assets or otherwise. This ClickSoftware
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of CLICKSOFTWARE and LICENSEE.
15.0 GENERAL
15.1 WAIVER: The failure of either party to enforce in any one or more instances
any of the terms and conditions of this ClickSoftware Agreement or its
Appendices shall not be construed as a waiver of future performance of any such
term or condition. Waiver of any term or condition shall only be deemed to have
been made if expressed in writing by the party granting such waiver.
15.2 SEVERABILITY: If any provision of this ClickSoftware Agreement or its
Appendices shall be held by a court of law of competent jurisdiction to be
illegal, invalid or unenforceable, that provision shall be reformed, construed
and enforced to the maximum extent permissible, and the remaining provisions
shall remain in full force and effect.
15.3 FORCE MAJEURE: Neither party shall be liable or deemed to be in default for
any delay or failure in performance under this ClickSoftware Agreement or its
Appendices or interruption of services resulting directly or indirectly from
acts of God, civil or military authority, war, riots, civil disturbances,
accidents, fire, earthquakes, floods, strikes, lock-outs, labor disturbances,
foreign or governmental order, or any other cause beyond the reasonable control
of such party. Notwithstanding the foregoing, in the event either party fails to
perform its obligations under this ClickSoftware Agreement due to any of the
causes listed in the preceeding sentance, and provided such failure to perform
lasts for a period in excess of sixty (60) days, either party may terminate
their obligations under this ClickSoftware Agreement by provided written notice
to the other.
15.4 GOVERNING LAW: This ClickSoftware Agreement and its Appendices will be
governed by, interpreted, and construed in accordance with the substantive laws
of the State of New York, without reference to its principal, of conflicts of
law thereunder. The parties hereto agree that all disputes arising out of this
ClickSoftware Agreement shall be subject to the exclusive jurisdiction and venue
in the federal and state courts located in New York. Each party hereby consents
to the personal and exclusive jurisdiction and venue of these courts. However,
prior to resort to legal and/or equitable remedies, the parties agree to
negotiate in good faith to resolve any dispute promptly, within not to exceed
ten (10) Business Days following written notice thereof. Failing this, the
parties may refer the dispute to their senior executive of the component
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responsible for performance of this ClickSoftware Agreement, respectively, for
resolution within thirty (30) days of written notice of dispute to such senior
executive(s). Thereafter, either party may resort to its legal and equitable
remedies for resolution thereof. Notwithstanding the above, either party may
resort to any available remedy at law or equity to avoid irreparable injury or
to maintain the status quo.
15.5 ENTIRE CLICKSOFTWARE AGREEMENT: This ClickSoftware Agreement, constitutes
the entire understanding between the parties, and supersede all prior
discussions, representations, understandings or ClickSoftware Agreements,
whether oral or in writing, between the parties with respect to the
subject-matter of this ClickSoftware Agreement. The preprinted provisions of any
LICENSEE purchase order issued hereunder shall not apply and shall be deemed to
be for administrative purposes only.
15.6 MODIFICATIONS AND AMENDMENTS: Any modification or amendment to this
ClickSoftware Agreement must be in writing and signed by authorized
representatives of both parties.
15.7 ORDER OF PRECEDENCE: In the event of any conflict among the terms and
conditions of this ClickSoftware Agreement and/or any of its exhibits and/or
schedules the ClickSoftware Agreement shall precede.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS HEREOF, the parties hereto have executed this ClickSoftware
License Agreement as of the dates written below by their duly authorized
representatives.
CLICKSOFTWARE, INC.: VIASOURCE COMMUNICATIONS, INC.
- -------------------------------- ---------------------------------
(Authorized Signature) (Authorized Signature)
- -------------------------------- ---------------------------------
(Name in Print) (Name in Print)
- -------------------------------- ---------------------------------
(Title) (Title)
- -------------------------------- ---------------------------------
(Date) (Date)
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CLICKSOFTWARE LICENSE AGREEMENT SCHEDULE "A"
Product to be provided: ClickSchedule, version 6.1
Designated System: Microsoft NT Server
Microsoft SQL Server
Microsoft IIS Server
Scheduled Resources: Per Exhibit "A" of the License Agreement
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EXHIBIT "F"
Functionality Claims Related Document Streamline Service Request Logging "Call
Logging" RTS Service Suite v3.1 Remote Module QA Scenario, dated 20-Jan-1999
Meet Entitlements Deadlines "Warranty Lookup" E-AccessService HUB3, dated
08-Jun-2000 "Call Charging", dated 18-Nov-1999
Scheduling Efficiencies (No specific test documentation.) Class demonstration,
lecture, and user reference material. Note: This is for the ViryaNet Service
Suite (Call Module), not Click Schedule
Enhance Dispatch Notification (No specific test documentation) Class
demonstration, lecture, and user reference material
Raise Inventory Awareness Stock Movements DatabaseSetup" RTS Service Suite v3.1
QA Scenario, dated 05-Feb-1998
"Phase 1.0 Acceptance Test -Test Scenario", dated 19-Dec-1999
Monitor Day-toDay Operations "General Purpose Test Scenario - KPI Template",
dated 22-Nov-1999
Close the Work Order Loop (No specific test documentation.) Class
demonstration,lecture, and user reference material
Dynamically Measure Performance "General Purpose Test Scenario - KPITemplate",
dated 22-Nov-1999
Design and Enhance Service Processes (No specific test documentation.) Class
demonstration, lecture, and user reference material
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