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EXHIBIT 10.4
Portions of this exhibit have been 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, marked "[***]" in this
exhibit, has been filed with the Securities and Exchange Commission together
with such request for confidential treatment.
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.
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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.
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.
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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.
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,
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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.
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. For each Dassault Systemes Web
Service developed hereunder, PlanetCAD shall provide [***] person days of
consulting at [***] to Dassault Systemes. Any additional consulting requested by
Dassault Systemes will be performed [***] in accordance with a detailed purchase
order, which will be signed by both parties and will include all payment terms
and a description of the consulting services to be provided by PlanetCAD.
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. It is understood by the Parties that implementation of these
changes will be subject to the provisions of Section 3.5, and consequently, will
be provided [***] to the extent that the work required to implement such changes
can be done within the [***] consulting provided for therein.
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. During the [***] period following the
implementation of any such Web Service on a PlanetCAD Web site, PlanetCAD shall
spend at least [***]% of the revenue received by PlanetCAD
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pursuant to Section 7.4 from such Web Service on advertising programs related to
such Web Service. Notwithstanding the foregoing, PlanetCAD agrees to spend [***]
in advertising during [***] that any such Dassault Systemes Web Service is made
available on a PlanetCAD Web Site, however, in the event Dassault Systemes
offers such Web Service directly during [***] that the Web Service is offered,
Dassault Systemes shall [***] of the actual advertising expenditure made by
PlanetCAD. Said [***].
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.
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:
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(a) Have such Web Service hosted by PlanetCAD for a
monthly fee of [***] per service payable monthly in
advance; 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.
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.
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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 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.
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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 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. As financial consideration under
this Agreement, Net Revenue from sales of each Web Service governed by this
Agreement shall be shared as follows: [***] percent ([***]%) to Dassault
Systemes, and the remaining [***] percent ([***]%) to PlanetCAD.
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
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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).
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.
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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
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damages, regardless of their nature, settlements, expenses and costs, including
costs of 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.
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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 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.
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11.17 Assignment; Subcontracting; Third Party Beneficiaries.
(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.
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: Executive Vice President
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