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EXHIBIT 10.1
CONFIDENTIAL TREATMENT REQUESTED BY MAXXIS GROUP, INC.
SOFTWARE PURCHASE AGREEMENT
THIS AGREEMENT IS MADE BETWEEN USEFULWARE INCORPORATED, A GEORGIA CORPORATION,
AND MAXXIS GROUP, INC. ("PURCHASER).
UsefulWare will provide a Custom Installation Program for the purpose of
installing and configuring a set of Internet tools, utilizing the software shown
in item 11, including ConnectionMagic (tm), Internet Control Center (tm), and
other bundled applications. A review copy of the software will be provided for
Purchaser to approve before the initial purchase is final. The review period is
limited to 10 days, during which time any money paid will be refunded should
Purchaser decide not to use the software. This agreement can be cancelled during
that 10 day review period.
All purchases made by InteReach Internet Services, an affiliate of Maxxis Group
Inc., will be counted towards the volume requirements outlined in this
agreement, and the combined total purchases will be used for cumulative pricing
discounts as outlined in the pricing schedule below.
Maxxis Group, Inc. agrees to purchase a minimum of *** of UsefulWare's
Connection Magic software package in return for pricing concessions outlined in
this agreement. Purchases made by InteReach Internet Services are counted
towards this total. Maxxis Group, Inc. is purchasing *** immediately, with an
order for an additional *** to follow within *** of this agreement. Another
order for *** is required within the following ***. Then for *** following the
date of this agreement, all subsequent purchases will be subject to discounted
pricing based on the cumulative purchases as described below.
1. PAYMENT AND PRICING
The initial order must be accompanied by a one-third down payment, with the
balance due within 30 days of delivery of the master copy of the software. All
re-orders of additional user licenses will be billed on 60-day net. Any orders
for duplicated media are payable in advance.
All additional orders under this agreement must be in multiples of 10,000 units,
with a 10,000 unit minimum for any order. For the first *** user licenses
purchased under this agreement, Purchaser will pay UsefulWare ***. All
subsequent purchases within *** of the date of this agreement will be priced
based on the combined total purchased up to and including the current purchase,
with pricing as follows:
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*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY MAXXIS GROUP, INC.
2. VOLUME REBATES
The above prices *** will be retroactively applied to prior purchases made under
this agreement, with the difference credited to the current purchase or future
purchases. These credits can not be granted in cash back to Purchaser, but are
only valid to be used against new purchases from UsefulWare, or used as a credit
to trade for additional user licenses. At the time of each purchase, the credit
will be determined by calculating all prior purchases at the new current price,
and deducting that amount from the actual amount paid or billed up until that
time, with the resulting difference being credited to the account.
An EXAMPLE of this rebate calculation is as follows:
***
***
***
***
Another example:
***
***
***
***
These rebates can be granted towards the same purchase which puts the total over
the number required for that rebate. The credit can also be applied to future
purchases. It cannot be granted as cash back to Purchaser.
3. MONEY-BACK GUARANTEE
During the first 30 days from the date UsefulWare delivers the software, if
Purchaser is not satisfied with the software package UsefulWare will refund any
license fees paid for copies which were not distributed, subject to the
discontinuance of further distribution. Should the number of distributed copies
fall into a different price bracket than the total number ordered, the number of
distributed copies will be charged as if that was the total number purchased and
the refund will be calculated by deducting that amount from the amount paid.
This guarantee applies only to the initial software order and does not apply to
any re-orders, updates or revisions. There are no refunds for re-orders. Setup
fees are not refundable and license fees for copies distributed to end-users are
not refundable except as provided under our Support Guarantee described herein.
THIS POLICY DOES NOT APPLY TO THE 10-DAY APPROVAL PERIOD AFTER THE INITIAL
ORDER, DURING WHICH TIME ALL MONEY PAID IS REFUNDABLE AS DESCRIBED ABOVE.
4. MASTERS AND DUPLICATION
UsEfulWare will provide master CD-ROM's and/or master diskette sets with all
orders, and Purchaser may use UsefulWare's duplication services as shown on the
current price list. User licensing can be purchased without duplication if
Purchaser intends to do their own duplication. For each order of 10,000 units
UsefulWare will provide up to 10 separate masters if needed by Purchaser to
account for different setups needed. Additional masters can be provided for a
fee of ***.
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY MAXXIS GROUP, INC.
5. USER REPORTING
Purchaser agrees to provide UsefulWare with monthly reports which contain the
information required to track the number of copies of the software that have
been used. At a minimum these reports should contain the total number of new
users signed up during the month and the total number of active users. If
certain users or groups of users are not being provided the software, this
information should also be included.
Each end-user's name is automatically sent to UsefulWare via the Internet on the
first use of each new installation. This information will not be used for any
purpose other than internal tracking of the number of users, and will not be
disclosed to any third parties, nor will any users be directly contacted by
UsefulWare or any other party based on this information.
This software can not be resold, redistributed, or sub-licensed to anyone other
than end-users subscribing to Purchaser's Internet service. Business users with
multiple machines in an office must be issued separate copies of the software
for each machine. This software is licensed on a per-user basis.
6. END-USER SUPPORT GUARANTEE
Subject to the following conditions, UsefulWare will provide toll-free telephone
support to the subscribers (end-users) of Purchaser.
A. Toll-free telephone support will be provided only to licensed
end-users, and the user will be asked to provide their individual
registration code.
B. Toll-free telephone support will be provided for the installation of
UsefulWare's software, to ensure the user is able to successfully log
on and use their Internet account. Once the user is successfully online
using UsefulWare's software, all further support must be provided by
the Internet Service Provider. See item J below for ongoing support
which UsefulWare provides to the Internet Service Provider staff.
C. UsefulWare will not provide support to end-users concerning the use
of individual applications which are a part of the UsefulWare software
package except to ensure they run properly as installed. All support
concerning the use of individual applications is the responsibility of
the Internet Service Provider.
D. The hours of operation for the support line will be 9am to 10pm
eastern time, Monday through Friday. These hours and days may change
from time to time at UsefulWare's discretion. Voice mail will always be
available so users can be called back by UsefulWare.
E. Support will be provided for users of Windows 3.x, Windows 95, and
Macintosh, plus Windows NT4 Workstation and Windows 98 users with
ConnectionMagic version 5.0 or later. Windows NT 3.51 is not supported.
F. The Internet Service Provider agrees to provide the end-user with
software that matches the current configuration of their network, and
if the network configuration changes, the Internet Service Provider
must have the
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CONFIDENTIAL TREATMENT REQUESTED BY MAXXIS GROUP, INC.
software revised accordingly. UsefulWare cannot and will not support a
user attempting to install software not properly configured for the
Internet Service Provider's system.
G. The Internet Service Provider will provide UsefulWare's toll-free
support number to the end-user when they establish their account, but
this number should not be advertised to the general public. When the
number is included in any literature that the Internet Service Provider
gives to the end-users, it must clearly state that this number is for
installation support only.
H. To qualify for the Guarantee below, the user must have the Minimum
System Requirements as listed in the current Installation Instructions.
I. Should UsefulWare's technical support staff be unable to
successfully get any new user online after all the above conditions are
met, UsefulWare will credit the Internet Service Provider three times
the amount paid to UsefulWare for that individual software license.
This credit will be applied to software orders placed by the Internet
Service Provider, equivalent to three free user licenses. The Internet
Service Provider has the responsibility to document such incidents and
request any credits due, as UsefulWare often may not know if a fix was
successful if the user does not call back. UsefulWare maintains records
of all support calls including any steps taken, and these records can
be made available for review upon request.
J. Additional ongoing support to the Internet Service Provider's staff
is provided using UsefulWare's normal business number at 770-424-2525,
9-5pm EST Monday-Friday, or via email to support@usefulware.com.
7. REVISIONS
UsefulWare revises and/or updates software packages periodically to stay current
with the included applications, and also to continuously improve the setup
programs. Whenever a re-order is placed for more licenses, a revised or updated
software package may be requested at no charge if changes have been made since
the last order. Since all of the packages are custom-built for a specific
service, there are no routine or automatic updates or revisions, and revisions
or updates will not be automatically sent out. When a request is made for a
revision or update please advise UsefulWare of any changes which need to be
incorporated into the software due to system changes, new logos, new phone
numbers, new text files, etc. They will be included at no extra charge subject
to the limitations otherwise outlined in this policy. ANY REVISION OR UPDATE
REQUESTED THAT DOES NOT ACCOMPANY A RE-ORDER WILL BE SUBJECT TO A FEE OF ***.
ANY RE-ORDER WITHIN THE PRECEDING 30 DAYS WILL BE CONSIDERED TO ACCOMPANY THE
REVISION AND THE FEE WILL BE WAIVED. This policy does not apply to the 10-day
approval period after an initial order, to ensure correctness of the software.
This policy also does not apply to any configuration errors discovered
subsequent to the 10-day period as long as the system for which the software was
originally configured has not been altered. Configuration errors by UsefulWare
will be corrected at no charge.
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
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CONFIDENTIAL TREATMENT REQUESTED BY MAXXIS GROUP, INC.
8. DISCLAIMER OF WARRANTY
Purchaser expressly agrees and acknowledges that Purchaser and its licensees use
this software, documentation and technical support solely at their own risk.
Purchaser purchases the software, documentation and technical support on an
as-is basis, without any warranty other than that expressly provided for in this
agreement. To the maximum extent provided under applicable law UsefulWare Inc.
expressly disclaims all warranties, express or implied including but not limited
to any implied warranties of merchantability or fitness for a particular
purpose. Some jurisdictions do not allow the limitation of or exclusion of
implied warranties of merchantability or fitness for a particular purpose so the
above limitation or exclusion may not apply. UsefulWare Inc. does not warrant
that this software will function correctly for any particular end-user or on any
particular computer system. UsefulWare Inc. does not warrant that this software
will function in an error free or uninterrupted manner.
9. LIMITATIONS OF LIABILITY
To the maximum extent permitted under applicable law, under no circumstances,
including negligence shall UsefulWare Inc., it's directors, officers, employees
or agents be liable for any special or consequential damages (including loss of
business information or records, business interruption, business profits and the
like) arising out of the use of or inability to use the software provided herein
even if UsefulWare Inc. or it's agents have prior notice of the possibility of
such special or consequential damages arising out of the purchaser's use of the
software. Some jurisdictions do not allow the limitation or exclusion of
liability for incidental or consequential damages so the above limitation or
exclusion may not apply. In no event shall UsefulWare Inc.'s total liability for
all damages including contract, tort or negligence or any other damage exceed
the amount paid by the Purchaser for the software and any documentation
accompanying it. UsefulWare Inc. is not responsible for any damages related to
use of this software except for those, which if any, are expressly provided for
in this Agreement.
10. APPLICABLE LAWS AND SEVERABILITY
This Agreement shall be construed under the laws of the State of Georgia, USA.
By entering into this Agreement the parties hereto agree that this Agreement is
made in the State of Georgia, United States of America and that jurisdiction for
any disputes arising out of this Agreement will be heard in the court system of
the State of Georgia, USA. If any court of competent jurisdiction finds that any
part or portion of this agreement is unenforceable that part or portion of this
agreement shall be enforced to the maximum extent possible under applicable law
in order to carry out the intent of the parties to this agreement. In such
event, any portion of this agreement found to be unenforceable shall be severed
from this agreement and the remainder of this agreement shall be construed to
bind the parties as if the whole agreement was held by a competent court to be
fully enforceable.
11. LICENSING
The software components of UsefulWare's packages are licensed as follows:
CONNECTIONMAGIC (TM) INSTALLER - copyright (c) 1998 UsefulWare Inc.
INTERNET CONTROL CENTER (TM) - copyright (c) 1995-98 UsefulWare Inc.
NETSCAPE NAVIGATOR - distributed under an agreement between UsefulWare
Inc. and Netscape Communications Corp., 501 East Middlefield Rd.,
Mountain View, CA 94043.
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CONFIDENTIAL TREATMENT REQUESTED BY MAXXIS GROUP, INC.
EUDORA LIGHT - distributed under an agreement with Qualcomm Inc., 6455
Lusk Blvd., San Diego, CA 92121, which includes a distribution fee paid
by UsefulWare Inc.
NEWSXPRESS - freeware, distributed with permission of the author, W.L.
Ken, Ng.
FREE AGENT - distributed under an agreement with Forte, 2141 Palomar
Airport Rd., Suite 100, Carlsbad, CA 92009, which includes a
distribution fee paid by UsefulWare Inc.
WS_FTP LIMITED EDITION - distributed under an agreement with Ipswitch,
Inc., 81 Hartwell Ave., Lexington, MA 02173.
EWAN TELNET - freeware with no copyright or distribution restrictions,
created by Peter Zander.
WS_PING - public domain software, created by John Junod.
TRUMPET WINSOCK - purchased for resale by UsefulWare Inc., from Trumpet
Software International Pty. Ltd., 24 Cambridge Rd., Bellerive 7018,
Tasmania Australia.
MICROSOFT INTERNET EXPLORER - distributed under an agreement with
Microsoft Corporation, One Microsoft Way, Redmond, WA 98052.
FREEPPP, MACPPP -distributed under an agreement with Merit Network,
Inc., 4251 Plymouth Road, Suite C, Ann Arbor, MI 48105, which includes
a distribution fee paid by UsefulWare Inc.
INTERNET SETUP MONKEY - purchased for resale by UsefulWare Inc., under
a distribution agreement with Rockstar Studios, 524-A Union St., San
Francisco, CA 94133. The Internet Setup Monkey includes MACTCP system
software which is licensed from Apple Computers Inc. by Rockstar
Studios.
NCSA TELNET - public domain software.
GLOBAL CHAT - freeware, copyright Quarterdeck Systems Research, Inc.,
520 Frederick St., #19, San Francisco, CA 94117.
STUFFIT EXPANDER - freeware, copyright Aladdin Systems Inc., 165
Westridge, Watsonville, CA 95076.
FETCH FTP - purchased for resale by UsefulWare Inc., under a
distribution agreement with Dartmouth College Software Sales, 6028
Kiewit Computer Center, Hanover, NH 03755.
UsefulWare Inc. warrants that all the above software is properly licensed for
distribution and that any fees due the copyright owners for software purchased
under this agreement are the sole responsibility of UsefulWare Inc. UsefulWare
Inc. shall indemnify and hold harmless the above name customer (Company) from
all claims, losses, or damages arising out of or related to licensing, patent,
or copyright infringement claims related to this agreement.
12. CUSTOM SUPPORT OPTION
UsefulWare agrees that within 120 days of the date of this agreement, Purchaser
will be offered the option to have a dedicated toll-free phone number for users
to call UsefulWare for support, and callers to this number will be greeted with
a customized greeting identifying Purchaser as the company answering the call.
All telephone line end equipment costs associated with this option will be the
responsibility of UsefulWare. If during any 120-day period Purchaser fails to
purchase a minimum of 5,000 units under this agreement, UsefulWare may
discontinue this custom number with 30 days notice to Purchaser.
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CONFIDENTIAL TREATMENT REQUESTED BY MAXXIS GROUP, INC.
13. CONFIDENTIALITY
Each party undertakes to retain in confidence the terms of this agreement and
all other non-public information and know-how disclosed pursuant to this
agreement which is either designated as proprietary and/or confidential or by
the nature of the circumstances surrounding disclosure, ought in good faith to
be treated as proprietary and/or confidential ("Confidential Information");
provided that each party may disclose the terms and conditions of this agreement
to its immediate legal and financial consultants in the ordinary course of its
business. Each party agrees to use its best efforts to protect Confidential
Information with precautions at least as great as those taken to protect its own
confidential information. A party's disclosure of Confidential Information as
required by government or judicial order is not prohibited by this agreement,
provided that the disclosing party gives the other party prompt notice of such
order and assists in the procurement of appropriate protective order (or
equivalent) imposed on such disclosure.
14. ENTIRE AGREEMENT
This agreement constitutes the entire agreement between the parties. This
agreement supersedes any and all prior oral or written agreements. All terms for
the purchases of UsefulWare Inc. software are found within this agreement and
any and all other terms are hereby rejected by the parties herein. This
agreement can only be modified in writing. An authorized representative of
UsefulWare Inc. must sign all modifications to this agreement.
for UsefulWare Inc. for customer
signed /s/ John Foltz signed /s/ Thomas O. Cordy
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title President and CEO
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Corporate Name if any The Maxxis Group
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Address 1901 Montreal Rd.
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date 8/13/98
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