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EXHIBIT 10.5
WEB SERVICES AGREEMENT
This WEB SERVICES AGREEMENT (this "Agreement") is made as of this
November 14, 2000 by and between Dassault Systemes, a societe anonyme organized
under the laws of France and the owner of Purchaser ("Dassault Systemes") and/or
certain affiliates of Dassault Systemes, and PlanetCAD Inc. (formerly known as
Spatial Technology Inc.), a corporation organized under the laws of the State of
Delaware ("PlanetCAD") (each a "Party," together, the "Parties").
RECITALS
WHEREAS, PlanetCAD, SPATIAL COMPONENTS, LLC and DASSAULT SYSTEMES CORP.
entered into a certain Purchase Agreement, dated July 4, 2000 ("Purchase
Agreement"), pursuant to which DASSAULT SYSTEMS CORP. acquired the Component
Business (as defined in the Purchase Agreement) from PlanetCAD and SPATIAL
COMPONENTS, LLC, including certain software; and
WHEREAS, PlanetCAD has created, operates and maintains its own Web
sites, including, without limitation 3Dshare.com and PlanetCAD.com, through
which PlanetCAD provides Internet-based services to its customers, and has
competence and expertise in the supply of Internet-based services to customers.
WHEREAS, as a condition to closing the transaction contemplated under
the Purchase Agreement, the Parties hereto agreed to enter into this Agreement
for the development and supply of certain Internet-based services to their
respective customers.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
SECTION 1
DEFINITIONS
All capitalized terms not otherwise defined herein shall have the same
meanings set forth in the Purchase Agreement.
1.1 "Additional Web Services" shall have the meaning set forth in
Section 3.2.
1.2 "Affiliate(s)" shall mean, with respect to any specified Person,
any other Person that, directly or indirectly, Controls, is Controlled by, or is
under common Control with such Person.
1.3 "CNDA" means the Confidential and Non-Disclosure Agreement among,
inter alia, PlanetCAD and Dassault Systemes executed contemporaneously herewith.
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1.4 "Control" means, with respect to the relationship between or among
two or more Persons, shall mean the possession, directly or indirectly, or as
trustee or executor, of the power to direct or cause the direction of the
affairs or management of a Person, whether through the ownership of voting
securities, as trustee or executor, by contract or otherwise, including, without
limitation, the ownership, directly or indirectly, of securities having the
power to elect a majority of the board of directors or similar body governing
the affairs of such Person; provided that neither PlanetCAD nor Dassault
Systemes shall be deemed to be controlled by any other Person or under common
control with any Person that is not one of their respective subsidiaries.
1.5 "Dassault Systemes" shall mean the entity that is a party to this
Agreement and each of its Affiliates.
1.6 "Dassault Systemes Applications" shall have the meaning set forth
in Section 3.1.
1.7 "Dassault Systemes Customer(s)" means any customer of the Web
Service, wherever hosted, having access to such Web Service by first logging in
on any Dassault Systemes Web site, and only when Section 4.5 has been exercised.
1.8 "Dassault Systemes Customer Database(s)" shall have the meaning set
forth in Section 7.8.
1.9 "Dassault Systemes Marks" shall have the meaning set forth in
Section 6.5.
1.10 "Dassault Systemes Personnel" means employees, officers, agents,
independent contractors and subcontractors of Dassault Systemes.
1.11 "Dassault Systemes Web Sites" means any Web site created, owned,
operated or supported by or for Dassault Systemes.
1.12 "Derivative Work(s)" means, related to Software, a work which is
based upon in whole or in part of such Software, such as a revision,
enhancement, modification, translation, abridgment, condensation, expansion, or
any other form in which such Software may be recast, transformed, or adapted, or
which, if prepared without authorization of the owner of the copyright or other
intellectual property right in such Software, would constitute a copyright
infringement or other violation of the intellectual property rights. A
Derivative Work shall also include, without limitation, compilations or
link-edits, improvements, bug fixes, corrections, look and feel changes,
upgrades, updates and new version that incorporate such Software in whole or
part.
1.13 "Effective Date" means November 14, 2000.
1.14 "Hardware Infrastructure" means all hardware equipment, materials,
products and facilities that may be necessary at any time to operate the
Software Infrastructure to the Web Services.
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1.15 "Infrastructure" means the "Software Infrastructure" and the
"Hardware Infrastructure."
1.16 "Initial Web Services" shall have the meaning set forth in Section
3.2.
1.17 "Know-How" shall mean all residual information of a non-tangible
form, which is not protected by the United States or European Union laws of
copyright, patent or trade secrets and which may be retained by a party who has
had access to confidential and proprietary information of the other Party,
including ideas, concepts or techniques contained therein.
1.18 "Net Revenue" shall have the meaning set forth in Section 7.5.
1.19 "Person" means any individual or legal entity, including without
limitation, partnership, corporation, association, trust or unincorporated
organization.
1.20 "Revenue Report" shall have the meaning set forth in Section 7.6.
1.21 "Server Software" means all software, including without
limitation, Web interface, Web middleware, Web dynamic content billing, Web
content generation software, and any Derivative Works thereof that is used by
PlanetCAD to provide application services over the Internet. The list of all
such Software, including the Third Party Software, as of the Effective Date, is
attached in Schedule A which will be updated by PlanetCAD when reasonably
requested by Triangle and when in Dot's determination significant changes have
been made.
1.22 "Software" means any computer software program, including
programming-code, on-line documentation, if any, user interface related thereto
or associated therewith, to the extent that such user interface does exist, and
related user and installation documentation other than on-line documentation
associated with this computer software program.
1.23 "Source Code" means computer-programming code and related system
documentation, comments and procedural code, that is not directly executable by
a computer but which may be printed out or displayed in a form readable and
understandable by a qualified programmer.
1.24 "Software Infrastructure" means the software configuration and
environment necessary to perform, supply and support a Web Service including any
Third Party Software.
1.25 "Third Party Software" means computer software programs owned by a
party other than PlanetCAD or Triangle and incorporated into, or required for
the development, operation and/or support of any Web Service governed by this
Agreement and the Infrastructure associated therewith.
1.26 "Web Service" means a Web service based on Dassault Systemes
Applications that is developed pursuant to Section 3 hereof.
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SECTION 2
SUBJECT MATTER
2.1 Engagement. Dassault Systemes and PlanetCAD agree to cooperate to
bring Internet based services to their customers on the basis of their
respective expertise in the field of application programs for Dassault Systemes
and of supply and implementation of web services for PlanetCAD, under the terms
and conditions set forth below.
SECTION 3
DEVELOPMENT OF THE WEB SERVICES
3.1 Identification of Dassault Systemes Web Services. The Parties have
agreed to develop and market over the Internet certain Dassault Systemes Web
Services that are based on application programs owned by Dassault Systemes or
its Affiliates ("Dassault Systemes Applications") and developed under the terms
and conditions set forth in this Agreement.
Upon mutual agreement of the Parties on the marketability over the
Internet of any particular service based on any Dassault Systemes Application,
Dassault Systemes will adapt its application program, with the assistance of
PlanetCAD, for its marketing over the Internet according to specifications to be
agreed upon by the Parties.
This Agreement will govern each Web Service developed hereunder and may
be terminated in accordance with Section 10 with respect to each Web Service
independently.
3.2 Initial and Additional Web Services. As of the Effective Date, the
Parties have identified two potential Web Services, which could be governed by
this Agreement subject to further technical, business and marketing discussions
between the parties (the "Initial Web Services"). These Initial Web Services are
set forth on Schedule A, which is attached hereto and incorporated herein by
reference. As the Parties agree on additional Web Services (the "Additional Web
Services") pursuant to Section 3.1, Schedule A will be amended accordingly.
3.3 Appointment of Liaison. As soon as practicable after the Effective
Date, each Party shall appoint a project manager to act as a liaison and to
oversee and ensure compliance of the respective obligations of the Parties
hereunder.
3.4 Development Activities. The Parties may agree to conduct the
development activities contemplated hereunder at each other's facilities. The
PlanetCAD or Dassault Systemes Personnel visiting the other Party's facilities
shall be subject to the provisions of Section 11.5 and to any other
restrictions, limitations, insurance requirements and other prerequisites as may
reasonably be required by the Parties.
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3.5 Consulting Services. [REDACTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE GENERAL RULES AND REGULATIONS
UNDER THE SECURITIES EXCHANGE ACT. OMITTED INFORMATION HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION TOGETHER WITH SUCH REQUEST FOR CONFIDENTIAL
TREATMENT.]
SECTION 4
COMMERCIALIZATION AND MARKETING OF THE WEB SERVICES
4.1 Commercialization of the Web Services. Prior to commercialization
of each Web Service, Dassault Systemes shall have an opportunity to review the
content and presentation of the Web pages relating to each Web Service and shall
have the right to request reasonable changes to any aspect of the proposed Web
Services, including without limitation, the look and feel of the Web pages,
pricing and display and placement of the Dassault Systemes Marks. [REDACTED
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE GENERAL
RULES AND REGULATIONS UNDER THE SECURITIES EXCHANGE ACT. OMITTED INFORMATION HAS
BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION TOGETHER WITH SUCH
REQUEST FOR CONFIDENTIAL TREATMENT.]
4.2 Rights of PlanetCAD to Market, Sell and Distribute the Web Services
on PlanetCAD Web Sites. For each Web Service and so long as this Agreement has
not been terminated with respect to such Web Service: (i) PlanetCAD will be
authorized - on a non exclusive basis - to market, sell and distribute such Web
Service to its customers via those PlanetCAD Web sites that Dassault Systemes
would have approved and (ii) Dassault Systemes will grant to PlanetCAD all
licenses necessary to accomplish the intent of this Section 4.2. PlanetCAD shall
not market, sell and distribute such Web Services at conditions, including but
not limited to financial consideration and licensing terms, that are less
favorable for Dassault Systemes that those applied for other Web services
marketed, sold or distributed by PlanetCAD on the approved PlanetCAD Web
site(s). PlanetCAD may, at its sole discretion, discount or bundle the Web
Services but only to the extent any such discount or bundle is applied
consistently with those applied to any other Web service on the approved
PlanetCAD Web site(s). The Parties may, from time to time and only by mutual
agreement, offer special promotional pricing or terms for Web Services which are
less favorable to Dassault Systemes for specified time periods.
4.3 Obligation of PlanetCAD to Advertise the Web Services. As long as
and to the extent that any Web Service is offered by PlanetCAD on any PlanetCAD
Web site, PlanetCAD shall promote such Web Services as part of the PlanetCAD
advertising program. [REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
UNDER RULE 24b-2 OF THE GENERAL RULES AND REGULATIONS UNDER THE SECURITIES
EXCHANGE ACT. OMITTED INFORMATION HAS BEEN FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION TOGETHER WITH SUCH REQUEST FOR CONFIDENTIAL TREATMENT.]
4.4 Termination of Advertising Obligation. Notwithstanding anything to
the contrary contained in this Agreement, the advertising obligation set forth
in Section 4.3 shall immediately terminate with respect to any Web Service at
such time as Dassault Systemes makes such Web Service (or any web service
similar thereto) available on any Dassault Systemes or other third party Web
site.
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4.5 Rights of PlanetCAD to Market, Sell and Distribute the Web Services
to Dassault Systemes Customers. Upon agreement between the Parties on a case by
case basis, and for the term to be agreed upon between the Parties, PlanetCAD
will be authorized to offer any specified Web Services to Dassault Systemes
Customers by making them accessible from any Dassault Systemes Web site(s), as
determined by Dassault Systemes in its sole discretion, on a fully transparent
basis by way of a direct link to the first Web page of such Web Service. Upon
exiting such Web Service, the Dassault Systemes Customers will be automatically
returned to the Dassault Systemes Web site. PlanetCAD shall, with consultation
and input from Dassault Systemes, perform all services necessary for the
implementation of such link between the Dassault Systemes Web site and such Web
Service.
SECTION 5
HOSTING AND SUPPORT OF THE WEB SERVICES
5.1 Customer Support Obligations of the Parties. For each Web Service:
(i) Dassault Systemes shall be responsible for first and second level customer
support for such Dassault Systemes Web Service and (ii) PlanetCAD will provide
the Customer Relations Management ("CRM") environment for web based support of
the Dassault Systemes Applications, and qualify customer support requests in
advance of passing them on to Dassault Systemes.
5.2 Software Support and Maintenance Obligations of the Parties. For
each Web Service the Parties will cooperate to perform maintenance and support
services on their respective software (the Server Software and Infrastructure
will be maintained and supported by PlanetCAD and the Dassault Systemes
Applications will be maintained and supported by Dassault Systemes) for as long
as this Agreement remains in effect with respect to such Web Service. The
description of maintenance and support obligations is set forth in the
Maintenance and Support Services Schedule, attached hereto as Schedule B and
incorporated herein by reference.
5.3 Hosting of Web Services. For each Web Service Dassault Systemes
shall have the option to:
(a) [REDACTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
UNDER RULE 24b-2 OF THE GENERAL RULES AND REGULATIONS UNDER
THE SECURITIES EXCHANGE ACT. OMITTED INFORMATION HAS BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION TOGETHER
WITH SUCH REQUEST FOR CONFIDENTIAL TREATMENT.]; or
(b) Provide PlanetCAD with a mutually agreed upon Hardware
Infrastructure necessary to host such service.
PlanetCAD represents and warrants that it shall use
commercially reasonable efforts in accordance with industry standards in its
performance of the hosting obligations set forth in this Section 5.3.
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SECTION 6
OWNERSHIP AND LICENSING RIGHTS
6.1 Ownership by PlanetCAD. All right, title and interest in and to the
Server Software and any Derivative Works associated therewith (developed by
either Party under this Agreement or otherwise) shall be owned by PlanetCAD.
6.2 Ownership by Dassault Systemes. All right, title and interest in
and to the Dassault Systemes Applications, any Derivative Works of the Dassault
Systemes Applications (developed by either Party under this Agreement or
otherwise) and the software associated therewith (not including any Server
Software) is owned by Dassault Systemes.
6.3 Licenses to PlanetCAD. Effective upon commencement of development
activities relating to a Web Service, Dassault Systemes hereby grants to
PlanetCAD a fully-paid, royalty-free, worldwide, non-exclusive license, which
does not include a license to any Source Code, to market, sell and distribute
the Web Service including the associated Dassault Systemes Application in
accordance with the terms and conditions of Section 4.2 hereof. The license
granted pursuant to this Section 6.3 shall be deemed to be automatically revoked
upon termination of this Agreement with respect to each Web Service.
6.4 Limited Development License. Effective upon commencement of
development activities relating to a Web Service, PlanetCAD hereby grants to
Dassault Systemes a fully-paid, non-exclusive, worldwide, revocable limited
license to the Server Software and Infrastructure for the sole purpose of
developing, maintaining and supporting, as applicable, such Web Service, limited
to the provision of such Web Service on the PlanetCAD Web site(s). The license
granted pursuant to this Section 6.4 does not extend to the offering by Dassault
Systemes of the Web Service(s) on a Dassault Systemes or third party Web site,
and, prior to making any such offering Dassault Systemes will require a separate
licensing arrangement to provide such Web Service(s) either pursuant to the
Server Software License Agreement or otherwise. Furthermore, the license granted
pursuant to this Section 6.4 shall be deemed to be automatically revoked upon
termination of this Agreement with respect to such Web Service. Within 2 weeks
following the execution of this Agreement, PlanetCAD will provide Dassault
Systemes with the necessary media and licensing keys or similar authorization
system (if any) to use such Server Software and Infrastructure according to the
above license.
6.5 Use of Marks. Prior to commercialization of any Web Service the
Parties shall agree on the use and placement of Dassault Systemes logos, trade
names, trademarks, service marks, and similar identifying material (collectively
referred to as "Dassault Systemes Marks") in connection with such Web Service.
Any usage of the Dassault Systemes Marks on the PlanetCAD Web site, including
without limitation, size, placement, font and style of the Dassault Systemes
Marks will be subject to prior written approval by Dassault Systemes. Upon
commercialization of the Web Service, Dassault Systemes shall grant PlanetCAD a
non-exclusive, non-transferable, revocable right to use the Dassault Systemes
Marks as approved by Dassault Systemes, for the sole purpose of advertising,
marketing, promotion and sale of the Web Service(s). In connection with such
license PlanetCAD agrees not to use the Dassault Systemes Marks in any manner
that is disparaging or that otherwise portrays Dassault Systemes in a negative
light. Dassault Systemes retains all right, title and interest, in and to the
Dassault
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Systemes Marks. Upon termination of this Agreement with respect to any Web
Service governed hereby, PlanetCAD's rights to use the Dassault Systemes Marks
associated with such Web Service shall automatically terminate. PlanetCAD shall
include wording such as "engineered by Dassault Systemes" (or any other logo or
expression to be provided by Dassault Systemes for this purpose) on all Web
pages, associated with the Web Services.
6.6 Know-How. The Parties hereby acknowledge and agree that any and all
rights to Know-How developed or shared under this Agreement by either Party
shall be jointly owned by the Parties and may be used by either Party in the
operation of their respective businesses during and following termination of
this Agreement.
SECTION 7
CUSTOMER BILLING, PAYMENT TERMS AND AUDIT RIGHTS
7.1 Customer Billing. Unless otherwise agreed by the Parties, and as
long as PlanetCAD host the Web Services, PlanetCAD shall be responsible for all
billing and collection obligations associated with the Web Services.
7.2 Currency. Prior to the launch date of any Web Service, the Parties
shall agree on which currencies and list prices shall apply to such Web Service.
If, for whatever reason, the Parties fail to agree on a price to be applied, the
price applied to the Web Service shall be equal to the then current list price
for such services as offered on the PlanetCAD Web site(s). If, for whatever
reason, the Parties fail to agree on a currency to be applied, the Billing Party
will be entitled to choose a currency, as long as such currency easily converts
into US dollars, and the Billing Party shall pay to the other Party its share of
revenue in US dollars, based on the average exchange rate of that currency
against US dollars during the last 3 months preceding the date of payment to the
other Party.
7.3 Taxes. The Billing Party may deduct and withhold from any payments
due to the other Party under this Agreement any and all taxes and other amounts
as required under the laws of any jurisdiction that has the authority to tax the
Billing Party, the other Party or the transactions contemplated by this
Agreement. However, should the Billing Party consider withholding payment or
paying any such amount from payments due under this Agreement, the Billing Party
shall send prior notice to the other Party a certificate setting forth the
regulatory and/or legal framework for such a payment, including the provisions
of the international tax treaty allowing such payment. The other Party will have
30 days from the reception of such information to accept or refuse such
payment/withholding:
(i) If the other Party accepts or does not answer within this time frame,
the Billing Party will be entitled to make such payment/withholding and
shall provide the other Party with a certificate stating the amounts
withheld and the jurisdictions to which such amounts were remitted.
(ii) If the other Party provides to the Billing Party a certificate stating
that (a) the Billing Party has no withholding/payment obligations with
respect to the laws of such particular jurisdiction and setting forth
the relevant authority for such statement
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and/or (b) that such a payment may be avoided under any applicable law
or treaty and provide with the necessary documentation for that
purpose, and if the Billing Party then determines that it has no such
withholding obligation under the laws of such jurisdiction, the Billing
Party shall make any future payments to the other Party without
deduction for the items set forth in the certificate, until such time
as the Billing Party reasonably believes that it has a withholding
obligation.
Either Party shall pay any applicable sales or value added tax on the payments
due.
7.4 Share of Net Revenue. [REDACTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE GENERAL RULES AND REGULATIONS
UNDER THE SECURITIES EXCHANGE ACT. OMITTED INFORMATION HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION TOGETHER WITH SUCH REQUEST FOR CONFIDENTIAL
TREATMENT.]
7.5 Definition of Net Revenue. Net Revenue shall consist of all
revenues recognized by PlanetCAD from supply of the Web Services, including the
price paid by the customers, less any applicable discounts and net of any
commissions or fees paid to third party resellers, to obtain access to such Web
Services and any other fees and charges invoiced by PlanetCAD to the customers,
without deduction by PlanetCAD of any other costs or expenses related to
achievement of the revenue, provided, however, that Net Revenue shall be reduced
by the amount, if any, of (i) value-added taxes, (ii) sales taxes or (iii)
withholding taxes imposed by any jurisdiction on payments made by a payor in
such jurisdiction to a payee outside of such jurisdiction.
7.6 Reporting and Payment Obligations. Within 7 business days after the
end of each calendar quarter, PlanetCAD shall provide Dassault Systemes with an
itemized statement, subject to adjustment within 30 days of receipt of such
statement, setting forth the Net Revenue achieved over the preceding calendar
quarter, and shall include such other information as may be mutually agreed upon
by the Parties (the "Revenue Report"). The Revenue Report shall be accompanied
by payment to Dassault Systemes of all amounts owed as set forth on such Revenue
Report as well as, when applicable, the exchange currency rate. When agreed
between the Parties as provided for in Section 7.2, payment will be made to
Dassault Systemes in the currency received by PlanetCAD for the provision of the
Web Services. Otherwise, payment shall be made in US dollars as provided for in
Section 7.2. To the extent possible under applicable law, payment will be made
to Dassault Systemes in the currency received by PlanetCAD for the provision of
the Web Services and as agreed between the Parties. In the event that PlanetCAD
is unable under foreign currency export controls or similar applicable laws,
unknown to the Parties at the time where they agree on payments in that
currency, to provide payment to Dassault Systemes in the agreed upon currency
received by PlanetCAD, the Parties agree to negotiate a mutually agreeable
solution. Dassault Systemes 'S right to payment shall accrue upon the date the
corresponding revenues accrue to PlanetCAD. PlanetCAD shall pay interest for
late payment of any sum due at the LIBOR rate plus four points (not to exceed
the maximum rate authorized, or be inferior to the minimum rate allowed, by
applicable law, as the case may be).
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7.7 Records; Audit. PlanetCAD shall, for two years following each
transaction relating to a particular Web Service, keep true and accurate records
and books of account of such transaction containing all particulars which may be
necessary for the purpose of auditing payments to Dassault Systemes under this
Agreement. During such two year period, and upon reasonable notice to PlanetCAD,
Dassault Systemes shall have the right to have an audit conducted through a
licensed independent accounting firm, of any billings, collections, and taxes on
such itemized statement, and to examine the records and books of account of
PlanetCAD in connection therewith. PlanetCAD will bear the costs of such audit
if a discrepancy or error of computation in an amount greater than USD 10,000 in
favor of Dassault Systemes is identified. Any audit conducted pursuant to this
Section 7.7 shall not be conducted in such a manner as to unreasonably interfere
with the PlanetCAD's operations and in no event shall an audit be conducted more
frequently than once each year.
7.8 PlanetCAD's Obligation to Maintain and Update Dassault Systemes
Customer Databases. For as long as PlanetCAD hosts and offers to Dassault
Systemes Customers Web(s) Service(s) under Section 4.5, PlanetCAD will maintain
and continuously update Dassault Systemes' Customer Database(s), which shall
include without limitation, databases of Dassault Systemes Customers, of demands
from and results of those Web Services supplied to Dassault Systemes Customers
and associated Net Revenue and of data collected via the Customer Relations
Management ("CRM") environment. The Dassault Systemes Customer Databases must be
held separately from any other databases held or maintained by PlanetCAD. If not
held separately, the Dassault Systemes Customer Databases must be clearly
identified and sorted out as the property of Dassault Systemes and the
provisions regarding PlanetCAD's limited right of use and its obligation of
confidentiality as set forth below apply without change.
7.9 Ownership of Dassault Systemes Customer Databases. Dassault
Systemes will be deemed the maker of the Dassault Systemes Customer Databases
and the owner of any and all right, title and interest in and to the Dassault
Systemes Customer Databases and their content, wherever hosted.
At all times during the Term of this Agreement, Dassault Systemes will
have unrestricted access to and use of the Dassault Systemes Customer Databases,
and the content therein.
At all times during the Term of this Agreement, and as long as the
Dassault Systemes Customer Databases are hosted by PlanetCAD, PlanetCAD benefits
from a limited right to use the Dassault Systemes Customer Databases for the
exclusive purpose of performing its obligations under this Agreement.
Nothing herein limits PlanetCAD's rights of ownership of its customer
database when PlanetCAD is providing Web Services on PlanetCAD Web site(s).
7.10 Transfer of Dassault Systemes Customer Databases. Upon
discontinuation of hosting and offering of Web Services to Dassault Systemes
Customers under Section 4.5, PlanetCAD will transfer to Dassault Systemes the
Dassault Systemes Customer Databases upon Dassault Systemes' request. PlanetCAD
will have no right, license or interest whatsoever in the Dassault Systemes
Customer Databases or content therein, except to the extent necessary for
performance of its obligations under this Agreement.
7.11 Warranty of Confidentiality of Dassault Systemes Customer
Databases and Input and Output Data of Dassault Systemes Customers. The Parties
expressly agree that the Dassault Systemes Customer Databases and their content
as well as Dassault Systemes Customers input data to be processed and output
data supplied, are confidential information of Dassault Systemes, and will be
treated as such, in accordance with the terms and conditions of the CNDA.
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SECTION 8
REPRESENTATIONS AND WARRANTIES
8.1 Mutual Representations. Each party represents and warrants to the
other Party as follows:
(a) The performance of this Agreement does not infringe or
conflict with any Intellectual Property right of any third party, and (ii) no
confidential, proprietary or trade secret information of either Party or their
personnel that will be used in performing this Agreement has been
misappropriated from any third party; and
(b) All services, work, obligations or assignments performed
by the Parties under this Agreement will be of professional quality, conforming
to generally accepted practices within the industry, and the Infrastructure
including Third Party Software shall function and perform to the specifications
and requirements thereof.
8.2 Disclaimer. THIS IS AN AGREEMENT SOLELY FOR SERVICES, AND THERE
SHALL BE NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS STATED HEREIN.
SECTION 9
INDEMNIFICATION AND LIMITATIONS OF LIABILITY
9.1 Dassault Systemes Indemnification. Dassault Systemes shall
indemnify and hold harmless PlanetCAD, and its officers, directors, employees,
and shareholders from and against any claims, demands, suits, causes of action,
losses, damages, judgments, costs and expenses (including reasonable attorneys'
fees) arising out of or related to any breach of Dassault Systemes'
representations, warranties and covenants set forth in this Agreement.
9.2 PlanetCAD Indemnification. PlanetCAD shall indemnify and hold
harmless Dassault Systemes, its affiliates, and their respective officers,
directors, employees, and shareholders from and against any claims, demands,
suits, causes of action, losses, damages, judgments, costs and expenses
(including reasonable attorneys' fees) arising out of or related to any breach
of PlanetCAD's representations, warranties and covenants set forth in this
Agreement.
9.3 Intellectual Property Infringement.
Each Party agrees to hold the other Party, its subsidiaries and
distributors and assignees harmless from and against any claim of any nature,
including, but not limited to, administrative, civil or criminal procedures,
which is or may be made or raised against this Party, its subsidiaries and
distributors and assignees by any third party that the use or distribution of
the Software or any other intellectual property that is the subject of this
Agreement and owned or licensed by this Party, infringes or violates any third
party's patent, copyright, trade secret or other intellectual property right in
any country. Indemnification hereunder shall cover all damages, regardless of
their nature, settlements, expenses and costs, including costs of
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investigation, court costs and attorneys' fees. The payment of any
indemnification shall be contingent on:
(a) This Party giving prompt written notice to the other of any such claim
or allegation;
(b) Cooperation by this Party with the other Party in its defense against
the claim; and
(c) This Party obtaining the other's prior written approval of any
settlement, if any, by this Party of such matters, such approval not to
be unreasonably withheld.
Neither Party shall have the obligation to indemnify the other for any
claims of infringement based on any modification by the latest version of its
Software, or from the combination of its Software with any other program, to the
extent such claim would not have arisen without such combination or from use of
the unmodified Software or intellectual property.
If the operation of any Software that is the subject of this Agreement
becomes, or is likely to become, the subject of a claim involving the
infringement or other violation of any patent, copyright, trade secret, or other
intellectual property rights of any third party, the Parties will jointly
determine in good faith what appropriate steps are to be taken by them, with a
view towards curing such infringement or other violation, at the Software
owner's sole charge. Such steps may include, but are not limited to:
(i) The owner securing the right to continue using its Software, or
(ii) The owner replacing or modifying its Software so that it becomes
non-infringing.
If no other option is reasonably available, the owner of the Software
agrees to use its best efforts to withdraw, at its sole expense, the infringing
Software from the market.
In the event a Derivative Work, created under this Agreement, becomes
the subject of a claim of infringement, the owner of said Derivative Work shall
indemnify the other Party pursuant to this Section 9.
9.4 LIMITATIONS ON LIABILITY. EXCEPT FOR LIABILITY ARISING FROM SECTION
9.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSSES, OR EXPENSES
INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF
GOODWILL, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE.
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EXCEPT FOR LIABILITY ARISING FROM SECTION 9.3, IN NO EVENT SHALL EITHER
PARTY BE LIABLE UNDER THIS AGREEMENT FOR AN AMOUNT GREATER THAN THE AMOUNT THAT
SUCH PARTY HAS EARNED PURSUANT TO THE REVENUE SHARING PROVISIONS OF SECTION 7.4
IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM.
SECTION 10
TERM AND TERMINATION
10.1 Term and Termination for Convenience. Either Party has a right to
terminate this Agreement upon nine months' notice to the other Party as to any
Web Service or the Agreement in its entirety.
10.2 Termination for Breach. Either Party may terminate this Agreement
at any time in the event that the other Party is in default or breach of any
material provision of this Agreement, and such default or breach continues
unremedied for a period of sixty days after written notice thereof. If this
Agreement is terminated under the terms of this Section 10.2, the Party
terminating this Agreement, in addition to such termination, shall have all
rights and remedies available at law and in equity.
SECTION 11
MISCELLANEOUS
11.1 Confidentiality. All communications and information disclosed by
one party to the other Party under this Agreement shall be subject to the terms
and conditions of the CNDA.
11.2 Freedom of Action. Except as otherwise provided, nothing contained
in this Agreement shall be construed to limit or impair any right of either
Party to enter into similar agreements with other parties, or to develop,
acquire, license or market, directly or indirectly, other products or services,
competitive with those offered by the other Party. It is specifically understood
this Agreement is not an exclusive services agreement and nothing herein shall
prohibit Dassault Systemes, PlanetCAD or any of their affiliates from developing
or supplying, whether directly or indirectly, web services substantially
identical to any of the Web Services governed hereby.
11.3 Additional Instruments. Notwithstanding termination of this
Agreement, the Parties covenant and agree to execute and deliver any additional
instruments or documents necessary to carry out the general intent of this
Agreement, including without limitation patent assignments or any other
assignments necessary to evidence the ownership of intellectual property
contemplated hereby or any such additional instruments or documents, including
such instruments as may be required by the laws of any jurisdiction, now or in
effect or hereinafter enacted, that may affect a Party's rights, title or
interest, as applicable, in and to the Server Software, the Dassault Systemes
Applications and/or any Derivative Work based thereon.
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11.4 Irreparable Injury. Each Party acknowledges and agrees that each
covenant in this Agreement pertaining to confidential information and ownership
of intellectual property is reasonable and necessary to protect and preserve the
rights of the other Party in its confidential information and intellectual
property, and that any breach by such Party of the terms of this Agreement may
result in irreparable injury to the other Party. Each Party, therefore, subject
to a claim of laches, estoppel, acquiescence or other delay in seeking relief,
consents and agrees that the other Party shall be entitled to seek and obtain a
temporary restraining order and a permanent injunction to prevent a breach or
contemplated breach of this Agreement and waives any requirement that the other
Party post a bond in connection with seeking such injunctive relief.
11.5 Relationship of the Parties. PlanetCAD and Dassault Systemes are
independent contractors, and nothing in this Agreement will create any
partnership, joint venture, agency, franchise, sales representative, or
employment relationship between the Parties. Neither Party has the authority to
act as agent for the other Party or to conduct business in the name of such
other Party or make statements, warranties or representations that exceed or are
inconsistent with the warranties provided hereunder.
11.6 Notices. All notices required or permitted shall be given in
writing, in the English language, and shall be deemed effectively delivered upon
personal delivery or three days after deposit with a carrier by registered mail
or other equivalent service, postage prepaid, return receipt requested,
addressed as follows, or to such other address as either Party may designate to
the other:
In the case of PlanetCAD : PlanetCAD Inc.
2520 55th Street, Suite 200
Boulder, Colorado 80301
Attn. Office of the President
In the case of Dassault Systemes: Dassault Systemes
9 Quai Marcel Dassault
92150 Suresnes
Attn. Thibault De Tersant
cc: Law Department
11.7 Headings. The descriptive headings contained in this Agreement are
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.8 Severability. If any term or other provision of this Agreement is
deemed invalid, illegal or incapable of being enforced by any law or public
policy, all other terms and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any Party.
11.9 Entire Agreement. This Agreement, together with the Schedules
attached hereto, constitutes the entire agreement of the Parties with respect to
the subject matter hereof
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and supersedes all prior agreements and undertakings, both written and oral,
between Dassault Systemes and PlanetCAD with respect to the subject matter
hereof.
11.10 Amendment. This Agreement may not be amended or modified except
by an instrument in writing signed by, or on behalf of, duly authorized
representatives of Dassault Systemes and PlanetCAD.
11.11 Applicable Law, Venue. This Agreement shall be governed by, and
construed in accordance with, the Laws of the State of New York, applicable to
contracts executed in and to be performed entirely within that state. This
Agreement shall not be governed by the U.N. Convention on Contracts for the
International Sale of Goods. The Parties hereto hereby (a) submit to the
exclusive jurisdiction of any court of competent jurisdiction sitting in the
State of Delaware, The City of Wilmington for the purpose of any Action arising
out of or relating to this Agreement brought by any party hereto, and (b) agree,
to the fullest extent permitted by applicable law, to waive, and not to assert
by way of motion, defense, or otherwise, in any such Action, any claim that is
not subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the Action is
brought in an inconvenient forum, that the venue of the Action is improper, or
that this Agreement may not be enforced in or by any of the above-named courts.
11.12 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY ACTIONS OR PROCEEDINGS DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREUNDER.
11.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
11.14 No Waiver. The failure of either Party to enforce any provision
of this Agreement shall not constitute a waiver of the right to subsequently
enforce such provision, or any other provision of this Agreement.
11.15 Force Majeure. Neither Party shall be held liable for any failure
to perform any of its obligations under this Agreement for as long as, and to
the extent that such failure is due to an event of force majeure. An event of
force majeure shall include general strikes, lockouts, acts of God, acts of war,
mobilization of troops, fire, extreme weather, flood, or other natural calamity,
embargo, acts of governmental agency, government or any other laws or
regulations.
11.16 Expenses. Except as expressly provided for in this Agreement,
each Party shall bear its own expenses incurred in connection with this
Agreement, including without limitation, travel and living expenses incurred by
that Party's employees.
11.17 Assignment; Subcontracting; Third Party Beneficiaries.
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(a) This Agreement may be assigned, subcontracted, or otherwise
transferred, by operation of law or otherwise without the express written
consent of PlanetCAD and Dassault Systemes, but in such event the assigning
Party shall give notice to the non-assigning Party and the non-assigning Party
shall have the right to terminate this Agreement within the 30 day period
following receipt of such notice.
(b) Either Party may assign, subcontract or otherwise transfer all or
part of this Agreement to any of its Affiliates, and for as long as it remains
an Affiliate; provided that no such assignment shall relieve a Party of any of
its obligations under this Agreement. In the event there is a change of Control
of an Affiliate which terminates its status as an Affiliate of the Party to this
Agreement, and this Agreement has been assigned to such an Affiliate, this
Agreement shall be assigned back to the Party within 6 months of the effective
date of the change of Control.
(c) This Agreement shall be binding upon and inure solely to the
benefit of the Parties hereto and their permitted assigns, subcontractor or
transferee, and nothing herein, express or implied, is intended to or shall
confer upon any other person, including, without limitation, any union or any
employee or former employee of either Party, any legal or equitable right,
benefit or remedy of any nature whatsoever, including, without limitation, any
rights of employment for any specified period, under or by reason of this
Agreement.
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IN WITNESS WHEREOF, each Party has caused its duly authorized
representative to execute this Agreement effective the day and year first above
written.
PlanetCAD Inc. Dassault Systemes
/s/ R. Bruce Morgan /s/ Thibault de Tersant
- ------------------------------- -----------------------------
By: R. Bruce Morgan By: Thibault de Tersant
Title: Chief Executive Officer Title: Executie Vice President