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EXHIBIT 10.10
ART TECHNOLOGY GROUP
DYNAMO PARTNER PROGRAM AGREEMENT
This Agreement is by and between Art Technology Group, Inc., 101 Huntington
Avenue, Boston, Massachusetts 02199, ("ATG") and Novo Interactive, 222 Sutter
Street, 6th Floor, San Francisco, CA 94108 ("Dynamo Partner") and is effective
as of 9/29/99, 1999 (the "Effective Date").
0. SCOPE OF AGREEMENT. For an annual fee, this program provides benefits for
developers and integrators who use ATG products in their business as developers
of custom applications programs that run on ATG's Dynamo software or as
integrators who furnish multi-vendor solutions to their customers.
1. TERM. This Agreement will have a one year term beginning on the Effective
Date above and will be renewed automatically for additional one year periods
unless terminated as described below.
2. DYNAMO PARTNER OBLIGATIONS. Upon signing this Agreement, Dynamo Partner
will pay the nonrefundable initial Program enrollment fee to ATG. It will
arrange for two (2) or more of its employees to complete a designated training
course offered by ATG within sixty (60) days after entering into this
Agreement. At the end of the training course, each employee may become a
certified Dynamo Programmer by submitting a certification application and
passing a certification examination. During the term of this Agreement. Dynamo
Partner shall maintain at least two certified Dynamo programmers. In order to
remain certified, these employees must be re-certified whenever ATG releases a
new version of ATG's Products. During the term of this Agreement, Dynamo
Partner shall actively promote itself as a member of the Program and identify
itself as such on its web page and in other marketing material.
3. PROGRAM BENEFITS.
a) Software License. Provided that Dynamo Partner agrees to the terms of
ATG's standard software license, made available to Dynamo Partner at the time
it downloads the software, ATG shall provide the following ATG products to
Dynamo Partner at no charge: a single Developer License, Not For Resale copy of
the Dynamo Application Server, Dynamo Personalization Server and Commerce
Station Products. However, Dynamo Partner's use of the software shall be
restricted to development and enhancement of application software designed to
run on ATG's Dynamo software platform. Dynamo Partner may purchase additional
licenses to use the Dynamo Application Server Product at special pricing for
members of the Program, provided that it executes ATG's Master Ordering,
License and Service agreement. In no event may Dynamo Partner use any Products
as part of a direct or indirect connection to the Internet, including a
production environment platform for any software application connected to the
Internet. The Products may not be sublicensed to any party for any purpose
whatsoever.
b) Training. At no charge, ATG shall provide yearly training on ATG's Dynamo
Application Server Product for two of Dynamo Partner's employees at ATG's
headquarters. Dynamo Partner may order additional training for other employees
at special pricing (currently ATG's List Price less 20%).
c) Access to Program Page. ATG will supply a personal password to a special,
limited access Program page of its web site that will contain such support
facilities as FAQs, success stories, how-to guides, documentation, marketing
materials, user group chat room, and such other facilities as ATG shall deem
useful to members of the Program.
d) Web Publicity. ATG will display Dynamo Partner's name, logo, and
corporate overview on its web site's Program Partner page.
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e) Help Desk Support. Dynamo Partner will be entitled to receive up to five
(5) instances of ATG Help Desk support at no charge.
f) ATG Contact. ATG will designate a Major Account Manager and Regional
Channel Manager who will be available for lead information sharing, access to
technical resources, and co-marketing activities when appropriate.
4. ANNUAL FEE. For the first year of this Agreement, Dynamo Partner shall pay
ATG an initial enrollment fee of $3,000. For each renewal year, Dynamo Partner
will pay an annual Program renewal fee as set forth in ATG's then current Price
List. All fees stated are payable in US Dollars and are nonrefundable. Dynamo
Partner is responsible for paying any taxes and fees associated with this
agreement.
5. LIMITATION OF LIABILITY. DYNAMO PARTNER IS SOLELY RESPONSIBLE FOR THE
PROPER CONDUCT OF ITS BUSINESS AND ALL OTHER MATTERS UNDER ITS CONTROL. IN NO
EVENT SHALL ATG BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS
OR LOSS OF BUSINESS, EVEN IF ATG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. DYNAMO PARTNER AGREES TO INDEMNIFY AND HOLD ATG HARMLESS FROM AND
AGAINST ANY AND ALL CLAIMS, DEMANDS, COSTS AND LIABILITIES (INCLUDING ATTORNEYS
FEES) OF ANY KIND WHATSOEVER, ARISING DIRECTLY OR INDIRECTLY OUT OF DYNAMO
PARTNER'S CONDUCT OF ITS BUSINESS AND THE FURNISHING OF SERVICES OR OTHER
ACTIONS OR OMISSIONS OF DYNAMO PARTNER IN CONNECTION WITH THIS AGREEMENT.
6. TRADEMARKS. ATG grants to Dynamo Partner during the term of this Agreement
a non-exclusive, non-assignable and non-transferable right and license to use
the ATG trademarks ("ATG Marks") in its business in a manner approved by ATG in
writing. Dynamo Partner shall send to ATG for approval any proposed advertising
or promotional materials which include an ATG mark. Dynamo Partner may describe
itself as an "Authorized Dynamo Partner of Art Technology Group, Inc." In
advertising, promotional materials, and other appropriate documents. Dynamo
Partner agrees it is not authorized under this Agreement to use any ATG Marks in
connection with any business conducted by Dynamo Partner other than the conduct
of its software development and/or software integration business contemplated by
the terms of this Agreement. Dynamo Partner will not claim any ownership or
similar interest in any of the ATG Marks at any time, nor attempt to register
any of the ATG Marks in its own name. Upon termination of this Agreement, all
rights and licenses granted to Dynamo Partner shall terminate and revert
immediately to ATG, and Dynamo Partner shall immediately cease using the ATG
Marks.
7. TERMINATION, DEFAULT AND REMEDIES. This Agreement may be terminated at any
time after the first year by either party, without cause, by giving 30 days
prior written notice to the other party. ATG may also terminate this agreement
if Dynamo Partner breaches any of its terms and fails to cure the breach within
30 days after notice from ATG (or 14 days if the breach is for nonpayment). Upon
termination of the Agreement, Dynamo Partner shall (i) immediately stop acting
and identifying itself as a member of the Program and return to ATG all ATG
Products supplied under this Agreement, (ii) pay to ATG all amounts owed to ATG
in full within 30 days, and (iii) cease using any printed material, trademarks,
trade name or domain name identified with ATG without the express written
consent of ATG. Those provisions of this Agreement which by their nature are
intended to survive any expiration of termination of this Agreement shall
survive such expiration or termination. ATG shall have no liability to Dynamo
Partner for damages of any kind, including direct damages, due to termination of
this Agreement.
8. GENERAL. The parties are independent contractors. Neither party is
authorized to act on behalf of the other party, nor create any obligation or
liability on behalf of the other party. This Agreement may not be assigned by
Dynamo Partner without the prior written consent of ATG. It shall be governed
and construed in accordance with the laws of the Commonwealth of Massachusetts
without regard to its
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conflict of law rules. If one party fails to enforce a provision of this
Agreement, it shall not be precluded from enforcing the same provision at
another time. The remedies in this Agreement are cumulative and may be
exercised to the extent permitted by law, and the exercise of one shall not bar
any other. If any part of this Agreement is determined to be illegal or
unenforceable, the Agreement will be interpreted as if the provision were not
present. Notices shall be in writing and shall be hand delivered, sent by
express courier service or prepaid registered or certified mail, return receipt
requested (if available), or sent by facsimile and confirmed. This Agreement
represents the entire agreement between the parties, supersedes all prior
communications relating to its subject matter, and may not be modified except
by a writing signed by both parties.
FOR ART TECHNOLOGY GROUP, INC. FOR DYNAMO PARTNER
Signature: /s/ ANN C. BRADY Signature: /s/ KIM VOGEL
Name: Ann Brady Name: Kim Vogel
Title: CFO Title: CFO
Date: 10/29/99 Date: 8/25/99