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Exhibit 10.19
WORKWISE(R) SOFTWARE, INC.
RESELLER MARKETING AGREEMENT
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This WorkWise Partner Marketing Agreement ("Agreement") is entered into on the
___ day of ______, 2001 ("Execution Date") by and between WorkWise Software,
Inc. ("WorkWise"), a Washington corporation with its principal place of business
located at 3055 112th Avenue N.E., Ste. 106, Bellevue, WA 98004, and
________________ ("Reseller") a ______________corporation with its principal
place of business located at _________________.
WHEREAS, WorkWise owns computer software and associated documentation described
below; and
WHEREAS, Reseller desires to obtain from WorkWise a license to distribute,
market, and use such software and documentation within a certain territory
described below; and
WHEREAS, WorkWise desires to establish such a licensing relationship for the
software and documentation with Reseller.
THEREFOR, in consideration of the mutual promises, covenants and agreements
contained herein, and other good and valuable consideration, receipt of which is
hereby acknowledged, it is agreed as follows:
I. DEFINITIONS
A. "COMPUTER" means a machine or system which uses logical devices
("central processing units") to process information, such as a
multi-processor computer system.
B. "DESIGNATED COMPUTER" means the specific Computer upon which the
application software is installed and executed, and which is designated
by Users in a Software License Agreement/Statement of Product.
C. "DOCUMENTATION" means the standard user documentation published by
WorkWise describing the use of the Software, including any tutorial
presentation of the capabilities of the Software and any technical
documentation which describes the design of the Software. Documentation
may be released in an electronic media format.
D. "ENHANCEMENTS" means enhancements, modifications or changes made by
Reseller to the Software and Documentation, but may not include any
changes to Software for which source code is not provided to Reseller by
WorkWise.
E. "NOTICE ADDRESSES" means the addresses to which notices are to be
sent, and which are noted above, or as otherwise noted below the
signatures to this Agreement, or as noted in a change of address notice.
F. "PARTNER" means a certified WorkWise Reseller or Integrator which
operates in a capacity separate from WorkWise, and is a marketing term
that does not create a legal partnership or mean that the WorkWise
Partner is authorized to act on the behalf of WorkWise other than to
sub-license Software under the terms and conditions of this Agreement.
G. "PRODUCT UPDATE" means a change or new release of the Software or
WorkWise Documentation designed to correct Software Problem(s).
H. "PRODUCT UPGRADE" means a change or new release of the Software
and/or Documentation designed to enhance the features of the Software or
otherwise improve the functionality of the Software.
I. "SOFTWARE" means all forms of computer software programs described in
Appendix A attached hereto. The Software shall be limited to those
modules issued by WorkWise as "General Availability." Certain modules of
the Software may be issued as "Preview Releases" for which WorkWise may
issue special restrictions or limitations regarding distribution or
support.
J. "SOFTWARE LICENSE AGREEMENT" means an agreement to be executed by
Users sublicensed by Reseller to use the Software and Documentation.
K. "SOFTWARE PROBLEM(s)" means defective Software distribution media
and/or a failure of the Software to function substantially in accordance
with the Documentation.
L. "SUPPORT" means the services which are provided by WorkWise to
Reseller, as described below, and Software maintenance provided by
WorkWise to Reseller pursuant to the terms and conditions of this
Agreement.
M. "SUPPORT CENTER" means the location from which WorkWise provides
Support.
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N. "SUPPORT CONTACT" means the person(s) with whom WorkWise will
communicate when providing Support to Reseller; must be certified by
WorkWise and is knowledgeable about how the Software is being used, and
system administration of the operating system on which it is being used.
O. "TERRITORY" means the geographic area described in Appendix B.
P. "USERS" means customers to which Reseller sublicenses the Software
and Documentation.
II. GRANT OF LICENSES
A. REQUIREMENTS FOR AUTHORIZED WORKWISE PARTNER. Reseller must comply
with the following conditions to qualify as an "Certified WorkWise
Partner": (i.) comply with the terms and conditions of this Agreement;
(ii) pay the Partner Fees, Royalties, Support Fees, and other charges
assessed by WorkWise, in a timely manner. Reseller hereby acknowledges
that all licenses and rights granted to Reseller by WorkWise in this
Section are subject to Reseller maintaining its status as a Certified
WorkWise Partner.
B. DISTRIBUTION RIGHTS. Subject to Reseller's compliance with the terms
and conditions of this Agreement, WorkWise hereby grants to Reseller a
nontransferable, nonexclusive license for the term of this Agreement to
distribute, demonstrate, and sublicense to and for Users, the Software
and Documentation, throughout the Territory, except as limited herein.
C. LICENSING USERS. Reseller shall sublicense the WorkWise Software and
Documentation to its Users using a copy of the then current Software
License Agreement, a copy of which is attached hereto as Appendix D, or
in a substantially similar form approved in writing by WorkWise. Product
Updates and Product Upgrades are considered Software for purposes of
this Agreement, and shall be licensed to Users subject to the terms and
conditions of the relevant Software License Agreement. The User is
required to pay for support, upgrades and maintenance of the WorkWise
Software for the first year of the Software license, and for any
subsequent years for which the User desires support and upgrades for the
Software.
D. PROPRIETARY MARKINGS. WorkWise grants Reseller the right to use the
WorkWise trademarks and trade names for the purposes of marketing the
Software. Reseller shall not alter or remove any trademark, copyright,
confidentiality or other proprietary notice from copies of the Software,
Documentation or marketing materials, and shall ensure that all such
notices are maintained on all full or partial copies of the modified or
unmodified Software or Documentation, except as otherwise authorized in
writing by WorkWise.
E. INTERNAL USE LICENSE. WorkWise grants Reseller a license, subject to
the terms and conditions of the Software License Agreement attached
hereto as Appendix D of this Agreement, to use one copy of the Software
listed in Appendix A for installation on any single development
platform. The use of said Software shall be restricted to Reseller's
internal use and for the purposes of demonstration and supporting its
Users. This license for Reseller's internal use is granted as
consideration in part for Reseller's payment of the Partner Fees
described in Appendix B. Reseller may license additional copies for
demonstration, development and support purposes for a small fee.
F. RESTRICTIONS. Nothing contained in the Agreement or the grant of
licenses or rights hereunder shall be construed in any way to prohibit,
limit or otherwise diminish the WorkWise right in or outside of the
Territory to use, distribute, demonstrate, market, reproduce, or prepare
derivative works based upon the Software or Documentation. These rights
are granted to Reseller solely for its own use, and Reseller shall be
specifically prohibited from establishing any distributors or dealers
for the Software and Documentation.
G. TITLE TO SOFTWARE. Except as expressly provided herein, all right,
title and interest in and to the Software, Documentation, and any
copyright, patent, trademark, trade secret or other intellectual or
proprietary rights therein are the sole, confidential and exclusive
property of WorkWise. No right, title or interest therein or thereto
shall be acquired by Reseller by virtue of this Agreement other than as
expressly provided herein.
H. TITLE TO ENHANCEMENTS. Reseller shall retain right and title to the
Enhancements it independently creates, unless otherwise agreed to by the
parties; in no event shall Reseller own or have additional rights to the
underlying Software or Documentation upon which the Enhancements are
based or any of the WorkWise rights in the Software or Documentation
III. ORDERS
A. PROCEDURE.
1. Reseller shall order copies of the Software, annual User
Support and Upgrade Services, and other WorkWise products and
services directly from WorkWise using an agreed upon method. All
orders are subject to acceptance by WorkWise.
2. WorkWise will attempt to avoid conflict among its Partners by
arbitrating conflicts among Partners regarding potential Users,
but preference will be presumed for the Partner which first
registers a particular User site. Reseller agrees that WorkWise
may contact Users and potential Users for appropriate business
purposes.
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B. SOFTWARE LICENSE AGREEMENTS FOR USERS. Prior to delivery of a copy of
the Software, in whole or in part, to a User, Reseller shall have
received the appropriate WorkWise Software License Agreement, or a
license agreement approved in advance by WorkWise, executed by a duly
authorized representative of the User. Reseller shall provide WorkWise
with a copy of the fully executed Software License Agreement or
Statement of Product if the User previously executed a WorkWise Software
License Agreement, prior to shipment of the Software to the User.
C. SHIPPING. WorkWise shall deliver the number of copies ordered on an
accepted order to Reseller at an address to be provided in writing to
WorkWise. Risk of loss and damage to such copies shall pass to Reseller
upon delivery to a shipper from WorkWise. Upon submission by Reseller of
recent evidence that a copy of the Software has been lost or damaged in
shipment, WorkWise agrees to replace such copy at no additional charge
to Reseller.
D. EVALUATION COPIES. In the event that WorkWise authorizes the
distribution of evaluation copies of the Software, Reseller agrees to
comply with the conditions specified by WorkWise, including, but not
limited to, the execution of a Trial and Evaluation Agreement attached
hereto as Appendix E.
E. RETURNS. All returns of defective copies of the Software for
replacement must have the prior authorization of WorkWise (i.e., a
Return Merchandise Authorization, or "RMA", number), and must occur
within thirty (30) days of the original shipping date of the returned
copies. The copies must be returned with their original shipping
containers.
IV. PAYMENTS; TAXES; AUDIT
A. PARTNER FEE. The Partner Fee is specified in Appendix B.
B. SUPPORT FEES; OTHER CHARGES. Reseller agrees to pay the Support Fees
detailed in Appendix B. Reseller shall also pay to WorkWise charges for
other services provided by WorkWise pursuant to the Agreement. WorkWise
shall deliver an invoice for amounts due WorkWise hereunder to
Reseller's Notice Address.
C. PAYMENT TERMS. All license and maintenance payment terms are Net 30
days from date of invoice, except that WorkWise reserves the right to
institute terms of Collect On Delivery ("C.O.D.") in the event that
Reseller fails to make timely payments. All amounts owed by Reseller to
WorkWise under this Agreement and which are past due, or which have not
been properly reported by Reseller as owing, shall accrue interest at a
simple rate of eighteen percent (18%) per annum from their due dates
until paid.
D. TAXES. Reseller shall pay all applicable sales, use and other taxes
or similar governmental charges or duties incurred in connection with
the exercise of the licenses and rights granted herein to Reseller,
except such taxes or charges based on the income of WorkWise.
E. AUDIT. As long as Royalties are due under this Agreement, and for a
period of two (2) years thereafter, Reseller shall maintain and make
available to WorkWise, within ten (10) calendar days upon written
request, all records of Reseller that may contain information bearing
upon the amount of fees payable to WorkWise under this Agreement.
V. TERM
This Agreement shall become effective upon execution by both parties, and shall
continue for a period of two (2) years from the Execution Date unless terminated
earlier as provided herein or by operation of law. Upon the expiration of the
initial two (2) year term this Agreement shall automatically be renewed for
successive one (1) year terms, provided that either party may notify the other
in writing at least sixty (60) calendar days before the expiration of this
Agreement of its intention not to renew this Agreement upon its expiration.
VI. DUTIES OF RESELLER
A. PARTNER CERTIFICATION. Reseller is required to be certified by
WorkWise as a Certified WorkWise Partner, the requirements of which are
subject to change with no less than 90 days notice.
B. INSTALLATION AND IMPLEMENTATION. Reseller has direct responsibility
for installation and implementation of the WorkWise Software unless
WorkWise agrees otherwise in writing.
C. TRAINING OF USERS. Reseller shall provide its Users with, or arrange
for training in the use of the Software as required according to the
then current WorkWise training standards.
D. COMPLIANCE WITH THE LAW. Reseller warrants and covenants that the
Software and Documentation, in whole and in part, and in any form
whatsoever, or any copy or adaptation, shall be distributed, marketed,
and sublicensed in compliance with the then current United States export
laws, including the Export Administration Act, as amended, (50 U.S.C.
App. 2401, et seq.) and the Export Administration Regulations (15 C.F.R.
Part 368, et seq.). Reseller agrees that it will comply with all
applicable laws and regulations governing the creation, production,
marketing, licensing, and/or delivery of Software and Documentation.
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E. LEGAL NOTICE. Reseller shall promptly notify WorkWise of any notices
that are served on Reseller and which allege claims for which WorkWise
might be responsible hereunder.
F. COOPERATION IN LEGAL ACTIONS. In the event that a User licensed by
Reseller violates WorkWise's intellectual rights and/or fails to pay any
fees owing to WorkWise, Reseller agrees to assist and cooperate with
WorkWise in its efforts to rectify the situation.
G. EXPENSES. Reseller shall pay all its expenses and be solely
responsible for the acts and expenses of its employees, representatives
and agents.
H. PROTECTION OF PROPRIETARY RIGHTS. Reseller agrees to take all steps
necessary to protect WorkWise's proprietary rights described in this
Section including, but not limited to, the proper display of
proprietary, copyright, trademark, trade secret, and patent pending
notices on any copies of the Software or Documentation which it
distributes, markets, reproduces, demonstrates, or sublicenses.
I. PROTECT SOFTWARE AGAINST LIENS. Reseller shall, at its own cost and
expense, protect and defend WorkWise ownership of the Software and
Documentation against all claims, liens and legal processes of creditors
of Reseller and keep the Software and Documentation free and clear of
all such claims, liens and processes.
J. COOPERATION ON WORKWISE ACCOUNTS. Reseller acknowledges that by being
authorized to license WorkWise Software and by becoming a Certified
WorkWise Partner, Reseller becomes a part of a larger network of
Certified WorkWise Partners. Reseller also acknowledges that WorkWise
Software transactions can extend beyond the territory serviced by any
one Certified WorkWise Partner, and that only through cooperation will
the network of Certified WorkWise Partners be able to service the larger
or more involved WorkWise Software accounts.
K. USERS AS REFERENCES. Reseller agrees to permit WorkWise to use its
Users for reference purposes and in the promotion of the WorkWise
products, provided that WorkWise obtains the prior written approval of
Reseller and the User.
VII. SUPPORT
A. SUPPORT CENTER. The WorkWise Support Center will be staffed weekdays
from 9:00 a.m. to 5:00 p.m. (Pacific Time), excluding U.S. holidays.
B. RESELLER'S SUPPORT SERVICES. Reseller agrees to provide Users with
direct telephone support during normal business hours, (Monday through
Friday), excluding standard U.S. and Reseller-observed holidays. As part
of direct telephone support, Reseller agrees to confirm and, where
practical, produce workarounds for Software Problems.
C. WORKWISE SUPPORT SERVICES.
1. ELECTRONIC MAIL AND TELEPHONE SUPPORT. In the event Reseller
is unable to confirm or resolve the Software Problem, the Support
Contact may contact the WorkWise Support Center to report
suspected Software Problem(s), using electronic mail ("E-mail")
as the primary means of communication. WorkWise will provide
assistance in identifying, confirming and providing a workaround
for suspected Software Problems in the standard, unmodified
version of the Software. WorkWise may require documentation of
the Software Problem, test data and copies of the programs being
used before confirming and resolving Software Problems. WorkWise
will respond to E-mail requests for support communicated via
E-mail within four (4) working hours of receipt. The Support
Contact may also telephone the Support Center; however, email
requests for support will be given priority over telephone
requests. Telephone requests for support may not be responded to
within four (4) working hours of receipt, and the verbal nature
of telephone communications may limit the extent or nature of the
support that can be provided by WorkWise.
2. DIRECT USER CONTACT. WorkWise personnel may directly
communicate with the User regarding the suspected Software
Problem using a form of telecommunications, and either with or
without the participation of Reseller.
D. NOTIFICATION OF SOFTWARE PROBLEMS. Reseller shall promptly notify
WorkWise of any Software Problems.
E. USER'S ANNUAL SUPPORT AND UPGRADE FEE; PRODUCT UPGRADES. WorkWise or
Reseller will charge Users an annual Support and Upgrade Fee, as
detailed in Appendix B. WorkWise agrees to provide Reseller with Product
Upgrades for distribution to Reseller's support Users.
F. CURRENT VERSION SUPPORTED. WorkWise provides Support only for the
current version of the Software, and for the previous version of the
Software for a period of one (1) year following the release of a new
version.
G. OBSOLESCENCE POLICY. In the event WorkWise elects to no longer
Support or produce Product Upgrades for the Software operating on a
specific Computer, WorkWise will offer to Users with Software licensed
on such Computer the right to transfer their licenses for the Software
to a comparable Designated Computer for a modest Transfer Fee.
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H. NON-SUPPORTED MATTERS. WorkWise will not provide support for the
following:
1. Altered or modified Software;
2. Consulting services, including applications design or
recommendation, recovery of lost data, or any Reseller purchase
recommendations;
3. Software Problems resulting from hardware malfunction;
4. Software Problems created by Reseller's negligence or fault,
or by the negligence or fault of Reseller's Users;
5. Software used on a Computer other than that specified on a
WorkWise Order Form (the Designated Computer), or as otherwise
authorized by WorkWise; or
6. Software not licensed by WorkWise.
I. SUPPORT COSTS. WorkWise reserves the right to charge Reseller, and
Reseller agrees to pay reasonable travel and lodging expenses, if any,
incurred by WorkWise while providing Support to Reseller. WorkWise
reserves the right to charge Reseller, and Reseller agrees to compensate
WorkWise at a rate of One Hundred Fifty Dollars ($150.00) per hour, with
a four (4) hour minimum, for all services rendered in the event that
Reseller fails to provide the direct support to its Users as required by
this Agreement, or for Support rendered by WorkWise to resolve suspected
Software Problems caused by non-standard modifications, non-WorkWise
products or the Computer system environment. Finally, Reseller agrees to
pay for unusual or excessive telephone, shipping, handling, media, or
Documentation expenses incurred by WorkWise while providing Support to
Reseller.
J. TRAINING. Training services may be contracted through Reseller or
through WorkWise. The terms and fees for training by WorkWise are
detailed in Appendix B.
K. LANGUAGE. Telephone and E-mail support will be provided in English
unless otherwise agreed to in writing .
VIII. TERMINATION
A. BASIS FOR TERMINATION. Either party may terminate the Agreement upon
providing the other party written notification of intent to terminate.
Termination will be effective 30 days after the receipt of any such
notice. In addition, either party may terminate the Agreement if the
other party materially breaches any representation, warranty, agreement,
or obligation contained or referred to in this Agreement, provided the
non-breaching party has given the breaching party written notice of such
breach and the breaching party has failed to remedy such breach within
thirty (30) calendar days (or such shorter period as may hereinafter be
provided) after receipt of such notice.
B. MATERIAL BREACH. Events of material breach of a representation,
warranty, agreement, or obligation, include but are not limited to: (1.)
Reseller's failure to make payments to WorkWise when due under this
Agreement; (2.) Reseller's failure to fulfill its obligations under the
Proprietary Rights and Confidentiality Section of the Agreement, except
as specifically provided in the Agreement; or (3.) if Reseller ceases to
conduct its normal business operations.
C. FAILURE TO PAY FEES. WorkWise shall also have the right to terminate
this Agreement immediately with no liability if Reseller fails to pay
fees due WorkWise within ten (10) business days following their due
date, provided that WorkWise has given Reseller notice of such failure
and Reseller has not cured such failure within such ten (10) business
days. Such termination shall not constitute a waiver of any right to
damages, injunctive relief or other remedies available to WorkWise.
D. LIMITATION OF LIABILITY UPON TERMINATION. WorkWise shall not by
reason of termination of this Agreement, in accordance with its terms,
be liable to Reseller for loss of clientele, termination of employees,
or loss of business, investments or commitments made in connection
herewith.
E. DISPOSITION OF PRODUCT UPON TERMINATION. Upon termination of this
Agreement, Reseller shall stop granting any new sublicense to Users or
representing itself as an authorized reseller of WorkWise products.
Also, Reseller's licenses hereunder shall continue only to the extent
necessary to allow Reseller to provide support to its existing Users.
WorkWise shall have no responsibility to provide Support or other
services to Reseller's Users after termination of this Agreement.
IX. CONFIDENTIALITY
Each party and its officers, director, employees, and representatives agree to
the following conditions relating to the disclosure of confidential information:
1. "Confidential Information" means non-public information that
either party designates as being confidential, including, without
limitation: trade secrets; know-how; concepts; methods;
techniques; designs; drawings; specifications; computer source
code; support materials; client, customer or supplier lists;
pricing information;
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marketing plans or information; records concerning the disclosing
party's finances, contracts, services, or personnel; and
information received from others that the disclosing party is
obligated to treat as confidential;
2. Confidential Information shall not include that information
that the receiving party can conclusively establish: (i) is in
the public domain; (ii) was known when received; (iii) is or
hereafter becomes lawfully obtainable from other sources; (iv)
must be disclosed to regulatory authorities having jurisdiction
over the receiving party, or as may otherwise be required by law,
provided that the disclosing party is given at least five (5)
days written notice before disclosure; (v) to the extent such
duty as to confidentiality is waived by the disclosing party; or
(vi) is independently developed by the receiving party;
3. The receiving party shall take reasonable security
precautions, at least as great as the precautions it takes to
protect its own confidential information, to keep confidential
the Confidential Information. Confidential Information may be
disclosed, reproduced, summarized, or distributed only in
pursuance of the business relationship between WorkWise and
Reseller, and shall not be, directly or indirectly, divulged or
disclosed for any purpose other than as permitted by this
Agreement. The receiving party shall notify the disclosing party
promptly upon discovery of any unauthorized use of disclosure of
Confidential Information;
4. Upon the termination of this Agreement, each party shall
return to the disclosing party or destroy all Confidential
Information it received under the terms of this Agreement and all
copies thereof upon receiving a written request for same from the
disclosing party except to the extent necessary for Reseller to
fulfill its support obligations to its Users;
5. Both parties acknowledge that any publication or disclosure of
Confidential Information to others may cause immediate and
irreparable harm to the disclosing party, and if the receiving
party should publish or disclose Confidential Information to
others without authorization, the disclosing party shall be
entitled to injunctive relief or to any other remedies to which
it is entitled under law or equity; and
6. This agreement not to disclose Confidential information shall
continue to apply for two (2) years after termination of this
Agreement.
X. LIMITED WARRANTY
A. LIMITED WARRANTY. WorkWise warrants and represents that the latest
version of the Software released by WorkWise shall substantially perform
in accordance with the applicable standard WorkWise Documentation for
ninety (90) days following delivery to Reseller or its Users, as
applicable.
B. REMEDIES. WorkWise's entire liability and Reseller's exclusive remedy
shall be for WorkWise, at its option, to either: replace the Software
that does not meet WorkWise limited warranty described above and which
is returned to WorkWise with its original distribution media; or attempt
to correct any errors which Reseller finds in the Software during this
warranty period and which prevent the Software from substantially
performing as described in the standard WorkWise Documentation. Any
replacement Software will be warranted for the remainder of the original
warranty period or for thirty (30) days, whichever is longer.
C. LIMITATIONS OF WARRANTY. The above warranty is null and void if
failure of the Software has resulted from accident, abuse or
misapplication. The above warranty is null and void if the Software
Problem is caused by modification or changes made by Reseller and/or any
User to the Software, or if the Software Problem occurs with a copy of
the Software which has been modified or changed in any way by Reseller
and/or any User, or the User or Reseller is unable to replicate the
Software Problem on Software which has not been modified or changed.
WorkWise does not warrant that the function contained in the Software
will meet Reseller's or its Users' requirements, or that the operation
of the Software will be uninterrupted or error free, or that all defects
will be corrected. WorkWise shall not be required to correct errors
during the above described warranty period attributable to: equipment
malfunction; products other than the Software; use of the software in
conflict with or contravention of the Documentation or the terms of this
Agreement; or accident, neglect, misuse, or abuse of the Software.
XI. DISCLAIMER OF WARRANTY
WORKWISE MAKES NO OTHER WARRANTIES REGARDING THE SOFTWARE, DOCUMENTATION OR
SUPPORT, INCLUDING WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES, AND
EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND ANY OTHER WARRANTY, EXPRESS OR IMPLIED.
WorkWise shall not be liable for any claimed non-conformance of Software under
Article 35(2) of the United Nations Convention of the International Sale of
Goods, even if that Convention were to be determined to be applicable to these
transactions(s).
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XII. LIMITATION OF LIABILITY
IN NO EVENT SHALL WORKWISE OR RESELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF
GOODWILL, OR TORTIOUS CONDUCT RELATING TO, CAUSED BY OR ARISING OUT OF ANY
BREACH OF OBLIGATIONS OR DELAY IN DELIVERY OF SOFTWARE, DOCUMENTATION OR SUPPORT
UNDER THE AGREEMENT, OR FROM A USER'S USE OR INABILITY TO USE THE SOFTWARE, EVEN
IF WORKWISE OR RESELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGES. ANY DAMAGES THAT WORKWISE IS REQUIRED TO PAY FOR ANY AND ALL CAUSES,
WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE, AND REGARDLESS OF THE
FORM OF THE ACTION IN THE AGGREGATE, SHALL BE LIMITED IN AMOUNT OF THE FEES
AND/OR ROYALTIES PAID BY RESELLER TO WORKWISE FOR THE SPECIFIC COPY OR COPIES OF
SOFTWARE SUBLICENSED TO A USER OR USERS TO WHICH WORKWISE'S LIABILITY RELATES.
THE FOREGOING NOTWITHSTANDING, THE LIMITATIONS THIS SECTION SHALL NOT APPLY TO
AMOUNTS DUE UNDER THE INDEMNIFICATION PROVISIONS OF SECTION 13.
Reseller agrees that the WorkWise's liability for damages, if any, shall not
exceed the fees and/or royalties paid to WorkWise by Reseller for each Software
license granted under this Agreement.
XIII. INDEMNIFICATION
A. WORKWISE INDEMNIFICATION. WorkWise shall indemnify, defend and hold
harmless Reseller against any action to the extent such action is based
on a claim that Reseller's use, demonstration, distribution, marketing,
or sublicensing of the Software or Documentation or any part thereof,
under this Agreement, or its Users' use of the Software or
Documentation, in the Territory infringes a patent or copyright, or
misappropriates a trade secret, and WorkWise shall pay all damages and
costs awarded or agreed to in settlement by WorkWise in respect of such
action; provided that WorkWise is given notice in writing of such claim
within thirty (30) calendar days of the date Reseller receives actual
notice of such claim. WorkWise shall control the defense in any such
action and, at its discretion, may enter into a stipulation of
discontinuance and settlement thereof. Reseller shall, at WorkWise's
expense, cooperate with WorkWise in any such defense and shall make
available to WorkWise all those persons, documents, and things required
by WorkWise in the defense of any such action. Reseller may, at its
expense, assist in such defense.
B. REMEDIES. If, in such action, the Software is held to constitute an
infringement or misappropriation, or the use, demonstration,
distribution, marketing, or sublicensing thereof is enjoined or
restricted, WorkWise shall, at its option, either procure for Reseller
the right to continue using, distributing, demonstrating, marketing, and
sublicensing the Software, or modify the Software to permit Reseller to
exercise its rights hereunder, or, if the foregoing options are not
available, terminate the Agreement and promptly refund the Reseller all
fees and royalties paid by Reseller hereunder.
C. LIMITATIONS OF INDEMNIFICATION. The foregoing indemnity shall not
apply in respect of any infringement or misappropriation resulting from
Reseller's or any of its Users' use of the Software in an operating
environment other than that described in the Documentation or in
conjunction with the Enhancements developed by Reseller if Reseller's or
any of its Users' use of the Software in the operating environment
described therein, or without the Enhancements, would not have given
rise to such infringement or misappropriation. The foregoing indemnity
shall not apply to any infringement or misappropriation arising from
Reseller's modification to the Software or the use of the Software in
conjunction with other software if such other software gives rise to the
infringement or misappropriation action. The foregoing states the entire
obligation of WorkWise with respect to the infringement of patents and
copyrights, and misappropriation of trade secrets.
D. RESELLER'S INDEMNIFICATION - INFRINGEMENT. Reseller shall, at its
expense, indemnify, defend and hold harmless WorkWise against any claim
or action by a third party to the extent such claim or action is based
on a claim that Reseller' use, demonstration, distribution, marketing or
sublicensing of any Enhancement or any part thereof in the Territory, or
the Users' use of any Enhancement or any part thereof in the Territory,
infringes a patent or copyright, or misappropriates a trade secret, and
Reseller shall pay all damages and costs (including attorneys' fees) in
respect of such claim, provided that Reseller is promptly given notice
in writing of such claim. Reseller shall control the defense in any such
action and, at its discretion, may enter into a stipulation of
discontinuance and settlement thereof. WorkWise shall, at Reseller's
expense, cooperate with Reseller in any such defense and shall make
available to Reseller all those persons, documents and things required
by Reseller in the defense of any such action. WorkWise may, at its
expense, assist in such defense. The foregoing states Reseller's entire
obligation with respect to the infringement of patents and copyrights
and misappropriation of trade secrets with respect to Enhancements.
E. INDEMNIFICATION - NEGLIGENCE. Either party shall defend, at its own
expense, any suit brought against the other party to the extent that it
is based on a claim by any third party caused by or arising from any
negligent act or omission or willful misconduct of the first party in
the performance by the first party or its employees or agents of the
first party's obligations hereunder pursuant to this Agreement, provided
that the first party is promptly given notice in writing of such claim.
The first party shall control the defense in any such action and, at its
discretion, may enter into a stipulation of discontinuance and
settlement thereof. The other party shall, at the first party's expense,
cooperate with the first party in any such defense and shall make
available to the first party all those persons, documents and things
required by the first party in the defense of any
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such action. The other party may, at its expense, assist in such
defense. The first party shall indemnify and hold harmless the other
party against any reasonable costs (including attorneys' fees) and
damages finally awarded against the other party in any such suit to the
extent attributable to such claim.
XIV. GENERAL
A. MODIFICATION, AMENDMENTS OR WAIVERS. No modifications or amendments
to the Agreement and no waiver of any provisions hereof shall be valid
unless made in writing signed by duly authorized representatives of the
parties.
B. SEVERABILITY. If any term, provision or part of the Agreement is to
any extent held invalid, void or unenforceable by a court of competent
jurisdiction, the remainder of the Agreement shall not be impaired or
affected thereby, and each term, provision and part shall continue in
full force and effect, and shall be interpreted in a manner consistent
with the intent of the parties.
C. SURVIVAL. The terms, conditions and warranties contained in the
Agreement that by their sense and context are intended to survive the
performance thereof by the parties hereunder shall so survive the
completion of the performance, cancellation or termination of the
Agreement
D. SECTION HEADINGS. The Section headings throughout the Agreement are
for reference purposes only, and the words contained therein shall in no
way be held to explain, modify, amplify, or aid in the interpretation,
construction or meaning of the provisions of the Agreement.
E. ASSIGNMENT. Reseller may not assign this Agreement or its rights, or
delegate its duties or obligations hereunder without WorkWise's prior
written consent. Any such assignment, delegation or other transfer in
contravention of this provision shall be null and void. This Agreement
shall inure to the benefit of and be binding on the respective
successors and permitted assigns, if any, of the parties hereto.
Reseller shall promptly pay any reasonable attorneys' fees and costs
incurred by WorkWise in considering any assignment requested by
Reseller.
F. APPLICABLE LAW; FORUM. The Agreement shall be governed by and
construed in accordance with the laws of the State of Washington. The
parties agree that King County, in the State of Washington, shall be the
proper forum for any action, including arbitration, brought under this
Agreement.
G. ARBITRATION. Any dispute or controversy arising under this Agreement
shall be settled by binding arbitration. Arbitration shall be initiated
by one party giving notice specifying the matter to arbitrated to the
other party. Arbitration shall be in conformity with and subject to the
applicable rules then in effect of the American Arbitration Association.
Judgement upon the award or injunctive relief issued by the
arbitrator(s) may be entered in and enforced by any United States
District Court or state court having jurisdiction thereof. If the
American Arbitration Association is not then in existence or for any
reason fails or refuses to act, the arbitration shall be in conformity
with and subject to the arbitration provisions of the Washington Code of
Civil Procedure in effect at the time of the notice.
H. ATTORNEY'S FEES. In the event an action, including arbitration, is
brought to enforce any provision of or declare a breach of this
Agreement, the prevailing party shall be entitled to recover, in
addition to any other amounts awarded, reasonable legal costs including
attorneys' fees incurred thereby.
I. LIMITATIONS ON ACTIONS. No actions, regardless of form, arising from
the transactions under the Agreement, may be brought by any party hereto
more than two years after the facts creating the cause of action become
known to such party.
J. REMEDIES. Except as otherwise provided for herein, no remedy
conferred by any of the specific provisions of the Agreement is intended
to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given
hereunder, now or hereafter existing at law or in equity or by statute
or otherwise. The election of any one or more remedies by either party
shall not constitute a waiver of the right to pursue other available
remedies.
K. NONWAIVER. Any failure or delay by either party to exercise or
partially exercise any right, power or privilege hereunder shall not be
deemed a waiver of any of the rights, powers or privileges under the
Agreement. The waiver by either party of a breach of any term, condition
or provision of this Agreement shall not operate as, or be construed as,
a waiver of any subsequent breach thereof.
L. NO DEFAULT. Neither party shall be in default of this Agreement or
liable for any damages or delay resulting from causes beyond its
control.
M. NOTICES. Except as otherwise provided in the Agreement, all notices
or other communications hereunder shall be deemed to have been duly
given when made in writing and delivered to the principal place of
business. Either party may change the address to which notice is to be
delivered by giving notice to the other party pursuant to this Section
or by other form of notice agreed to by the parties.
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N. RELATIONSHIP OF THE PARTIES. Both parties hereto, in the performance
of this Agreement, will be acting in separate capacities and not as
employees, partners, joint ventures, associates, or agents of one
another. With regard to the performance of this Agreement, each party
acknowledges that it does not have the authority to act for or in the
name of the other party or to commit the other party in any manner
whatsoever. The employees or agents of one party shall not be deemed or
construed to be the employees or agents of the other party for any
purpose whatsoever.
O. NO THIRD PARTY. Except as otherwise specifically stated in the
Agreement, the provisions of the Agreement are for the benefit of the
parties hereto and not for any other person.
P. ENTIRE AGREEMENT. The Agreement and the attached Appendices
constitute the entire agreement, understanding and representations,
expressed or implied, between WorkWise and Reseller with respect to
subject matters described herein, and supersede all prior written and
oral communications, agreements, letters of intent, representations,
warranties, statements, negotiations, understandings and proposals, with
respect to such subject matters.
Q. AGREEMENT AUTHORIZED. Both WorkWise and Reseller have full power and
authority to enter into and perform the Agreement, and the person(s)
signing the Agreement of behalf of each has been properly authorized and
empowered to enter into the Agreement.
EACH PARTY FURTHER ACKNOWLEDGES THAT IT HAS READ THE AGREEMENT AND THE ATTACHED
APPENDICES, UNDERSTANDS THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT,
AND AGREES TO BE BOUND BY THEM.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
on the last date indicated below.
WORKWISE SOFTWARE RESELLER NAME
By: _______________________________ By: _______________________________
Name: _____________________________ Name: _____________________________
Title: _____________________________ Title: _____________________________
Date: ______________________________ Date: ______________________________
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APPENDIX A
DESCRIPTION OF SOFTWARE
- --------------------------------------------------------------------------------
BUSINESS ALERTS
- ---------------
WorkWise Data Monitor
WorkWise MAPI Agent
WorkWise SMTP Agent
WorkWise Script Agent
WorkWise Log Agent
DATA AGENT SERVER
- -----------------
WorkWise Data Monitor
WorkWise Data Update Agent
WorkWise File Monitor Agent
WorkWise SQL execution Agent
WorkWise Run Program Agent
WorkWise Print Agent
WorkWise Script Agent
WorkWise Log Agent
License is based on the type of data sources the software is used with and the
number of data sources it is applied to. Full description of the data sources is
in Appendix C.
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APPENDIX B
PARTNER FEES, DISCOUNTS, SUPPORT FEES, AND TERRITORY
- --------------------------------------------------------------------------------
1 - PARTNER FEES
The fee associated with the WorkWise Partner Marketing program is dependant on
the licensing level desired. The fee is _______. In consideration of the fee,
WorkWise will provide up to 4 copies ($10,000 value) of the Software to the
Reseller with no royalty or margin due to WorkWise. The Reseller license is for
sale of products to Reseller customers only. The first year maintenance for the
Reseller's internal use copy of the software is also included in this fee.
Maintenance fees associated with the internal use copy are levied at the then
current rate for each subsequent year. Maintenance fees associated with the
copies for resale are subject to section #3 below.
2 - DISCOUNTS
All discounts are based upon the then current WorkWise Price List. That portion
of the current list License Fee detailed below shall be due and owing to
WorkWise for Software licensed by Reseller.
35% - Discount off WorkWise list price for each product. The partner discount
will apply to the products detailed in Appendix C.
3 - ANNUAL USER SUPPORT AND UPGRADE FEE
USER SUPPORT AND UPGRADE FEES. Reseller shall bill the Users of WorkWise
Software an annual User Support and Upgrade Fee of twenty percent (20%) of the
then-current license fees for the Software licensed which is mandatory for the
first year of the license. The User Support and Upgrade Fee is required for
subsequent years if the User elects to continue receiving Updates and Upgrades,
and Reseller may bill its users for the User Support and Upgrade Fee provided
that Reseller provides WorkWise with a purchase order from Reseller for the Fees
at least forty five (45) days prior to the expiration of the then current term
of support and such purchase order issued by Reseller includes the dollar amount
of the Fees and the required User information. Reseller shall remit to WorkWise
an amount equal to ten percent (10%) of the then-current license fees of the
WorkWise Software.
4 - TRAINING
WORKWISE USER TRAINING FEES. WorkWise offers on-site training in the use of the
Software to Reseller and Reseller's Users, billed at $1,800 per day.
5 - TERRITORY
WorkWise grants Reseller the right to exercise the license granted under this
Agreement in the United States of America and Canada. License is for Reseller
customers only.
6 - PRICE CHANGES
WorkWise will provide Reseller with at least ninety (90) days prior written
notice before WorkWise increases the license fees for the Software. WorkWise
agrees to honor all quotes regarding WorkWise Software license fees extended by
Reseller for a total of one hundred eighty (180) days provided that Reseller
provides WorkWise with written notice of the then outstanding quotes within five
(5) business days of receipt of notice of the proposed increase(s) in license
fees.
7 - ADDITIONAL DEMONSTRATION COPIES
WorkWise will provide Reseller with additional copies of the Software for
demonstration, development and support purposes for a license fee of Two Hundred
Dollars ($200.00) per copy. The license fee includes the cost of Updates and
Upgrades for these copies of the Software for a period of one (1) year from
their initial delivery date or from the Execution Date if delivered previously
(these licenses are in addition to the license granted in subsection II.E
above). WorkWise agrees to reasonable increases in the number of demonstration
copies available to Reseller based on the number of Reseller's locations in the
Territory and the number of platforms on which Reseller is executing the
Software.
8 - SALES AND INSTALLATION ASSISTANCE
SALES ASSISTANCE. Upon mutual agreement, WorkWise agrees to provide Reseller
with reasonable sales assistance, which may include assistance with sales
presentations, proposal responses, reporting, and partnership information
management.
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INSTALLATION ASSISTANCE. Upon mutual agreement, and upon availability, WorkWise
agrees to provide Reseller installation assistance at the then current rate
charged by WorkWise for these services.
MARKETING CHANNEL COORDINATION. WorkWise may direct Reseller to other WorkWise
Partners which may be able to assist Reseller and will help to coordinate the
efforts of Reseller and of these other WorkWise Partners. Reseller agrees to
marketing activity described in paragraph 10 below.
9 - SPECIAL DEVELOPMENT ASSISTANCE
DEVELOPMENT TOOLS. WorkWise may provide Reseller with pre-release or special
versions of software. All such development software not intended for commercial
release shall be provided to Reseller without any warranty or support, and
Reseller acknowledges and agrees to these terms and conditions through its
acceptance and use of these non-commercial products.
10 - MARKETING CONSIDERATIONS
- - Reseller agrees create a press release announcing the partnership with
WorkWise and will publish to PR Newswire, and any other publication
resources Reseller chooses, within 4 weeks of contract execution.
- - Reseller agrees to feature the WorkWise solution on Reseller's website,
within 4 weeks of contract execution.
- - Reseller agrees to complete technical and sales training provided by
WorkWise within 4 weeks of contract execution.
- - Reseller agrees to develop a library of at least 15 processes to sell or
include with sales the WorkWise solution(s) within 4 weeks of contract
execution.
- - Reseller agrees to develop a marketing brochure describing the WorkWise
solution and Reseller's library of pre-developed processes, within 4 weeks
of contract execution.
- - Reseller will make best efforts to market, demonstrate and sell WorkWise
solutions to installed base of customers, and new customers/prospects.
- - Reseller agrees to participate with WorkWise in co-marketing activities.
- - Reseller agrees to include WorkWise in at least 3 sales calls/presentations
of the WorkWise solutions.
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APPENDIX C
PRICE LIST
- --------------------------------------------------------------------------------
BUSINESS ALERTS - PC LAN
PC LAN LICENSE FEE MAINTENANCE DATA SOURCES
First CPU or Server 2,500 500 2
Additional data sources 1,250 250 2
Agents Included: Database Monitor Agent (OLEDB & ODBC), SMTP & MAPI Email
Agents, File Monitor Agent, Scripting Agent, Log Agent, Query Agent
DATA AGENT SERVER - PC LAN
ACTION PACK - PC LAN LICENSE FEE MAINTENANCE DATA SOURCES
First CPU or Server 5,000 1,000 2
Additional data source 2,500 500 2
Agents Included: Database Monitor Agent (OLEDB & ODBC), SMTP & MAPI Email
Agents, File Monitor Agent. Scripting Agent, Log Agent, FTP Monitor Agent,
Access FTP Server Agent, Work With Files & Folders Agent, Query Agent, Run a
Process Agent, Data Update Agent, File Update Agent, SQL Execution Agent, Run
Program Agent, HTTP Post & HTTP Get Agent
Licensed for access to PC/LAN edition databases: dbase, FoxPro, Access, Paradox,
etc.
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APPENDIX C
PRICE LIST
- --------------------------------------------------------------------------------
BUSINESS ALERTS SQL
SQL EDITION LICENSE FEE MAINTENANCE DATA SOURCES
First CPU or Server 5,000 1000 2
Additional CPU or Server 2,500 500 2
Agents Included: Database Monitor Agent (OLEDB & ODBC), SMTP & MAPI Email
Agents, File Monitor Agent, Scripting Agent, Log Agent, Query Agent
DATA AGENT SERVER - SQL
ACTION PACK LICENSE FEE MAINTENANCE DATA SOURCES
First CPU or Server 10,000 2,000 2
Additional data source 5,000 1,00 2
Agents Included: Database Monitor Agent (OLEDB & ODBC), SMTP & MAPI Email
Agents, File Monitor Agent. Scripting Agent, Log Agent, FTP Monitor Agent,
Access FTP Server Agent, Work With Files & Folders Agent, Query Agent, Run a
Process Agent, Data Update Agent, File Update Agent, SQL Execution Agent, Run
Program Agent, HTTP Post & HTTP Get Agent
Licensed for access to /SQL edition databases and: Oracle, Informix, DB-2,
Centura (SQLBase), Progress, OpenIngres, Sybase, and SQL Server (Enterprise
Edition)
Page 14 of 22
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APPENDIX D
WORKWISE SOFTWARE LICENSE AGREEMENT
================================================================================
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is entered into on the ______ day
of _________, 2001 ("Execution Date"), by and between WorkWise Software, Inc., a
division of Timeline, Inc., a Washington Corporation with its principal place of
business located at 3055 112th Avenue N.E., Bellevue, WA 98004 ("Licensor") and
[COMPANY NAME] ("Licensee").
Licensor agrees to furnish to Licensee, and Licensee agrees to accept, in
accordance with the terms and conditions of this Agreement, the use of the
software identified below.
I. DEFINITIONS
A. "COMPUTER" means a machine or system which uses logical devices
(such as CPUs) to process information, such as an NT server.
B. "CPU" means Central Processing Unit of which more than one may
execute the software if appropriately licensed.
C. "DATA SOURCE" means the approved database or data file format with
which the Software interacts.
D. "DESIGNATED COMPUTER" means a specific Computer upon which the
application software is installed and executed, and which is
designated by Licensee in a Statement of Product.
E. "PRODUCT UPDATE" means a change or new release of the Software or
WorkWise Documentation designed to correct Software Problem(s).
F. "PRODUCT UPGRADE" means a change or new release of the Software
and/or WorkWise Documentation designed to enhance the features of the
Software or otherwise improve the functionality of the Software.
G. "SOFTWARE" means all forms of the computer software programs
described in a Statement of Product, and shall include all Product
Updates, enhancements, modifications, or Product Upgrades provided
under the terms of this Agreement or of a related support agreement.
H. "SOFTWARE PROBLEM(s)" means defective Software distribution media
and/or a failure of the Software to function substantially in
accordance with the WorkWise Documentation.
I. "WORKWISE DOCUMENTATION" means the standard user documentation
published by Licensor, or distributed by Licensor under a third party
license, describing the use of the Software and may include technical
documentation which describes the design of the Software, but does
not include any product overviews. WorkWise Documentation may be
released in an electronic media format
II. LICENSES
A. GRANT OF LICENSE. Licensor grants to Licensee the non-exclusive
and non-transferable right to have the licensed number of servers
execute the Software on the documented number of Data Sources and to
use the associated WorkWise Documentation, subject to the terms and
conditions of this Agreement and in consideration of payment of the
agreed upon license fees.
B. RIGHTS OF LICENSEE. Licensee may access the Software lawfully
licensed to Licensee on any configuration of computers or display
devices connected to the Designated Computer(s) provided the Software
is installed or executes solely on the Designated Computer(s).
Licensee may transfer the Software to any electronic storage device
connected to the Designated Computer(s), provided Licensee keeps the
original solely for backup or archival purposes. Licensee may also
have one limited use copy of the software resident on a test
environment computer concurrently with the production copy.
C. BACKUP COPY. Licensee may make backup copies of the Software and
of any portions thereof which are modified or merged with other
programs in accordance with this Agreement. All such backup copies
shall also be subject to the terms and conditions of this Agreement.
Licensee agrees to maintain an accurate record of the location of the
backup copies at all times.
D. RESTRICTIONS ON USE. Unless otherwise authorized by Licensor,
Licensee may not install, electronically transfer, network, or
otherwise execute the Software on any Computer other than the
Designated Computer(s). Only one Computer can be specified as the
Designated Computer in a network unless additional licenses are
Page 15 of 22
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purchased. Except as specifically provided above, Licensee may not
make any copies of the Software. Licensee may not rent, sub-license,
lease, distribute, or grant other rights to the Software or the
WorkWise Documentation to others. Licensee may not reverse engineer,
disassemble, de-compile, reverse translate, or in any manner decode
the Software in order to derive any source code not licensed by
Licensor.
E. US GOVERNMENT TERMS. If Licensee is acquired by the US Government,
or if the Software is transferred to the US Government, additional
terms and conditions may apply, and the Software shall be treated as
"Commercial Computer Software" as defined in DFARS 252.227-7013 and
FAR 52.227-19, or as appropriate under any governmental regulations
which replace these regulations.
F. EXPORT RESTRICTIONS. Licensee may not export or re-export the
Software or any copy or adaptation in violation of any U.S. Export
Administration regulation or other applicable regulation.
III. PROPRIETARY RIGHTS AND CONFIDENTIALITY
A. OWNERSHIP. All title and rights of ownership in the Software and
WorkWise Documentation remain with Licensor and/or its suppliers and
are protected by copyright, patent and/or trade secret laws. Licensee
agrees to take all steps necessary to protect Licensor's and its
suppliers' proprietary rights in the Software and WorkWise
Documentation including, but not limited to, the proper display of
copyright, trademark, trade secret, and other proprietary notices on
any copies of the Software. Licensee agrees to reproduce and include
any copyright, trade secret, trademark, or proprietary data notices,
and other legends and logos on the backup copies. Licensee will, at
Licensee's own cost and expense, protect and defend Licensor's and
its suppliers' ownership of the Software and WorkWise Documentation
against all claims, liens, and legal processes of creditors of
Licensee and keep the Software and WorkWise Documentation free and
clear of all such claims, liens, and processes.
B. CONFIDENTIALITY. Licensee will not disclose or publish to others,
and will keep confidential, the Software and the terms and conditions
of this Agreement, provided Licensee may disclose the Software to
consultants and other third parties retained to work with the
Software.
IV. TERM AND TERMINATION
A. TERM. The licenses granted under this Agreement shall commence
upon the shipment of the Software and shall continue perpetually
unless terminated in accordance with the provisions of this
Agreement.
B. TERMINATION. Licensee may terminate this Agreement by destroying
the Software and WorkWise Documentation and all copies thereof.
Licensor may terminate this Agreement if Licensee fails to pay any
license and/or support fees owing and which are more than fifteen
(15) days past due. Licensor may also terminate the Agreement if
Licensee breaches any material representation, warranty, agreement,
or obligation in this Agreement and fails to remedy such material
breach or demonstrate a good faith effort to remedy such material
breach within thirty (30) days after receiving notice of such
material breach from Licensor. Upon termination, Licensee shall
either promptly return to Licensor all copies of the Software and
WorkWise Documentation in Licensee's possession or destroy all copies
of the Software and WorkWise Documentation, and certify in writing
that all such copies have been returned or destroyed.
V. LIMITED WARRANTY
A. LIMITED WARRANTY. Licensor warrants that for a period of ninety
(90) days after the initial delivery of the Software to Licensee, the
latest unmodified version of the Software released by Licensor shall
substantially perform in accordance with the standard WorkWise
Documentation.
B. REMEDIES. Licensor's entire liability and Licensee's exclusive
remedy shall be for Licensor, at its option, to either: (i) replace
any defective media which prevents the Software from satisfying the
limited warranty described above provided such defective media is
returned to Licensor; or (ii) attempt to correct any errors which
Licensee finds in the Software during this warranty period and which
prevent the Software from substantially performing as described in
the standard WorkWise Documentation. Any replacement Software will be
warranted for the remainder of the original warranty period or for
thirty (30) days, whichever is longer.
C. RIGHT TO LICENSE. Licensor warrants that it is the owner of the
Software and/or has the right to license the Software to Licensee.
D. LIMITATIONS OF WARRANTY. The above warranty is null and void if
failure of the Software has resulted from accident, abuse, or
misapplication. The above warranty applies only to software problems
which are apparent in the unmodified, standard WorkWise Software
which is not merged with other software. Licensor does not warrant
that the functions contained in the Software will meet Licensee's
requirements, or that the operation of the Software will be
uninterrupted or error free, or that all defects will be corrected.
Licensor shall not be required to
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correct errors during the above described warranty period
attributable to: equipment malfunction; products other than the
Software; use of the Software in conflict with or contravention of
the WorkWise Documentation or the terms of this Agreement; or
accident, neglect, misuse, or abuse of the Software.
VI. DISCLAIMER OF WARRANTY
LICENSOR MAKES NO OTHER WARRANTIES REGARDING THE SOFTWARE OR WORKWISE
DOCUMENTATION, INCLUDING WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES, AND
EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND ANY OTHER WARRANTY, EXPRESS OR IMPLIED.
VII. LIMITATION OF LIABILITY
IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, OR
TORTIOUS CONDUCT RELATING TO, CAUSED BY, OR ARISING OUT OF ANY BREACH OF
OBLIGATIONS OR DELAY IN DELIVERY OF SOFTWARE OR WORKWISE DOCUMENTATION UNDER THE
AGREEMENT, OR FROM LICENSEE'S USE OR INABILITY TO USE THE SOFTWARE, EVEN IF
LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES OR CERTAIN TORTIOUS CONDUCT, SO THE ABOVE
LIMITATION MAY NOT APPLY TO LICENSEE. ANY DAMAGES THAT LICENSOR IS REQUIRED TO
PAY FOR ANY AND ALL CAUSES, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, OR
OTHERWISE, AND REGARDLESS OF THE FORM OF THE ACTION IN THE AGGREGATE, SHALL BE
LIMITED IN AMOUNT TO THE LICENSE FEES PAID BY LICENSEE TO LICENSOR FOR THE
SPECIFIC COPY OR COPIES OF SOFTWARE. NOTWITHSTANDING THE FOREGOING, THE ABOVE
LIMITATION ON THE AMOUNT OF DAMAGES SHALL NOT APPLY TO EITHER PARTY'S
OBLIGATIONS WITH RESPECT TO THE INDEMNIFICATION PROVISIONS BELOW.
VIII. INDEMNIFICATION
A. LICENSOR'S INDEMNIFICATION. Licensor shall indemnify, defend and
hold harmless Licensee against any action to the extent such action
is based on a claim that Licensee's use of the Software or
Documentation or any part thereof, under this Agreement, infringes a
valid, enforceable United States patent or copyright, or
misappropriates a trade secret, and Licensor shall pay all damages
and costs (including attorneys' fees) awarded or agreed to in
settlement by Licensor in respect of such action; provided that
Licensor is given notice in writing of such claim within fifteen (15)
calendar days of the date Licensee knows of such a claim. Licensor
shall control the defense in any such action and, at its discretion,
may enter into a stipulation of discontinuance and settlement
thereof. Licensee shall cooperate with Licensor in any such defense
and shall make available to Licensor all those persons, documents and
things required by Licensor in the defense of any such action.
Reasonable out-of-pocket expenses incurred by Licensee in providing
such assistance will be reimbursed by Licensor. Licensee may, at its
expense, assist in such defense.
B. LIMITATIONS OF INDEMNIFICATION. The foregoing indemnity shall not
apply in respect of any infringement or misappropriation if such
infringement or misappropriation resulted from Licensee's or any of
its Users' use of the Software: (a.) in an operating environment
other than that described in the Documentation or under this
Agreement; (b.) in conjunction with an enhancement not created or
owned by Licensor; (c.) with the use of a superseded release of the
Software; or (d.) in conjunction with other software not created or
owned by Licensor. The foregoing states the entire obligation of
Licensor with respect to the infringement of patents and copyrights,
and misappropriation of trade secrets.
C. LICENSEE'S INDEMNIFICATION - INFRINGEMENT. Licensee shall, at its
expense, indemnify, defend and hold harmless Licensor against any
claim or action to the extent such claim or action is based on a
claim that any of Licensee's enhancements or any part thereof not
created or owned by Licensor infringes a patent or copyright, or
misappropriates a trade secret, and Licensee shall pay all damages
and costs (including attorneys' fees) awarded or agreed to in
settlement by Licensee in respect of such claim; provided that
Licensee is given notice in writing of such claim within fifteen (15)
calendar days of the date Licensor knows of such a claim. Licensee
shall control the defense in any such action and, at its discretion,
may enter into a stipulation of discontinuance and settlement
thereof. Licensor shall cooperate with Licensee in any such defense
and shall make available to Licensee all those persons, documents and
things required by Licensee in the defense of any such action.
Reasonable out-of-pocket expenses incurred by Licensor in providing
such assistance will be reimbursed by Licensee. Licensor may, at its
expense, assist in such defense.
IX. SUPPORT
A. SUPPORT RESPONSIBILITY. _____________ is responsible for providing
direct technical support to Licensee. Licensor is responsible for
providing technical support to _______________. In the event
______________ is unable or unwilling to provide direct support to
Licensee, Licensor may contract directly with Licensee for support
services. Licensee will receive credit for the amount of annual
Support and Upgrade Fees paid to Licensor on Licensee's behalf.
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B. DIRECT LINK. If Licensee contracts for mission critical support
with Licensor, Licensee agrees to establish a direct link with
Licensor approved by Licensor before mission critical support is
provided to Licensee. Licensee agrees to assure that Licensor has
access to Licensee's Designated Computer(s) via the link(s).
C. REQUIRED PRODUCTION / TEST ENVIRONMENT. To assist in the
resolution of Software Problem(s), Licensee is required to maintain
the versions then-currently supported by Licensor, or versions
compatible with the versions then-currently supported by Licensor.
The requirements of this subsection are subject to reasonable change.
D. SUPPORT AND UPGRADE FEES. Licensee agrees to pay the current
annual Support and Upgrade Fees to _____________ for the first year
upon licensing the Software. The annual Support and Upgrade Fees are
twenty percent (20%) of the then-current license fees for the
Software.
E. WORKWISE SUPPORT SPECIALIST AND SYSTEM ADMINISTRATOR. Licensee
agrees to designate both a System Administrator and a WorkWise
Support Specialist who shall act as the primary contact between
Licensee and Licensor.
F. LICENSEE'S RESPONSIBILITIES. Licensee agrees to assist and
cooperate with Licensor, as reasonably required by Licensor, in the
resolution of Software Problems. Such assistance and cooperation will
facilitate quicker and more effective problem resolution by Licensor,
and may include:
1. Consultation with the System Administrator and WorkWise
Support Specialist(s);
2. Providing documentation of the Software Problem(s), test data,
and copies of the programs being used when the Software
Problem(s) become apparent.
G. SUPPORT SERVICES. The Support Services generally include
resolution of Software Problem(s), support via electronic mail
("E-mail") and telephone, and upgrades and updates of the Software.
Installation, training, and modification of the Software are services
not included as support services and must be contracted for
separately.
H. E-MAIL AND TELEPHONE SUPPORT. Licensor will provide assistance in
identifying, confirming and providing a "workaround" for suspected
Software Problem(s) in the standard version of the Software. Licensor
may require documentation of the Software Problem, test data, and
copies of the programs being used before confirming and resolving
Software Problem(s). E-mail is the preferred means of communication
of support requests, and Licensor will make best efforts to respond
to E-mail requests for support within four (4) working hours of
receipt.
I. DIRECT USER CONTACT. Licensor personnel may use the direct link to
access Licensee's Computer to better analyze the suspected Software
Problem and produce a solution or "workaround" to Software
Problem(s). Licensor personnel may also directly communicate with
Licensee regarding the suspected Software Problem(s).
J. SUPPORT HOURS. Licensor support services, which include direct
telephone services, will be available to Licensee from 8AM to 5PM
Pacific Time weekdays, excluding standard U.S. holidays.
K. PRODUCT UPDATES AND UPGRADES. Upon payment of Licensee's annual
Support and Upgrade Fee, Licensor agrees to provide Licensee with the
Product Updates and Product Upgrades produced by Licensor. These will
be provided without additional fee if provided to the Licensee via
E-mail, web based download, or US mail. Fees associated with any
other form of shipment will be paid by the Licensee.
L. CURRENT VERSION SUPPORTED. Licensor will provide Support only for
the then-current version of the Software, and for the previous
version of the Software for a period of six (6) months following the
release of a new version.
M. NON-SUPPORTED MATTERS. Licensor will not provide Support and
Upgrade Services for the following unless such services are otherwise
agreed to:
1. Altered or modified Software;
2. Consulting services, including applications design or
recommendation, recovery of lost data, any Licensee purchase
recommendations, training, installation, implementation, or
customization;
3. Software Problems resulting from hardware malfunction;
4. Software Problems created by Licensee's negligence or fault;
5. Software used on a computer system other than that specified
on a WorkWise Order Form (the Designated Computer), or as
otherwise authorized by Licensor; or
6. Software not licensed by Licensor.
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19
X. GENERAL
A. WAIVER, AMENDMENT, OR MODIFICATION. Any waiver, amendment, or
modification of any of the provisions of this Agreement or of any
right, power or remedy hereunder shall not be effective unless made
in writing and signed by the parties. No failure or delay by either
party in exercising any right, power or remedy with respect to any of
its rights hereunder shall operate as a waiver thereof in the future.
B. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Washington, and shall inure to the benefit of Licensor, its
successors, administrators, heirs, and assigns. The United Nations
Convention on the International Sale of Goods shall not apply to this
Agreement. The parties agree that King County in the State of
Washington shall be the proper forum for any action, including
arbitration, brought under this Agreement.
C. ATTORNEY'S FEES. In the event an action, including arbitration, is
brought to enforce any provision of or declare a breach of this
Agreement, the prevailing party shall be entitled to recover, in
addition to any other amounts awarded, reasonable legal costs
including attorneys' fees incurred thereby.
D. LIMITATION ON ACTIONS. No actions, regardless of form, arising
from the transactions under the Agreement, may be brought by any
party hereto more than two (2) years after the facts creating the
cause of action become known to such party.
E. SEVERABILITY. If any term, provision or part of the Agreement is
to any extent held invalid, void, or unenforceable by a court of
competent jurisdiction, the remainder of the Agreement shall not be
impaired or affected thereby, and each term, provision and part shall
continue in full force and effect.
F. SURVIVAL. The terms, conditions, and warranties contained in the
Agreement that by their sense and context are intended to survive the
termination thereof by the parties hereunder shall so survive the
termination of the Agreement.
G. NOTICE. All notices or other communications hereunder shall be
deemed to have been duly given when made in writing and delivered to
the principal place of business of the other party.
H. FORCE MAJEURE. Neither party shall be in default nor liable for
any failure in performance or loss or damage under this Agreement due
to any cause beyond its control.
I. TAXES. Licensee shall pay all applicable sales, use, and other
taxes or similar governmental charges or duties incurred in
connection with the exercise of the licenses and rights granted
herein to Licensee, except such taxes or charges based on the income
of Licensor. Upon request, Licensee shall promptly provide Licensor
with evidence of payment of any such tax.
J. ENFORCEMENT OF COMPLIANCE. If requested by Licensor at any time,
Licensee will certify under oath that Licensee has fully and
faithfully observed all of the terms and conditions of this
Agreement. Licensor may at reasonable times inspect Licensee's
premises and equipment to verify that all of the terms and conditions
of this Agreement are being observed.
K. ACKNOWLEDGMENT. Licensee acknowledges that Licensee has read this
Agreement, understands it, and agrees to be bound by its terms and
conditions. Licensee also agrees that this Agreement is the complete
and exclusive statement of agreement between the parties and
supersedes all proposals or prior agreements, oral or written, and
any other communications between the parties relating to the subject
matter of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement
on the last date indicated below.
WORKWISE SOFTWARE, INC. LICENSEE:
By:_________________________________ By:_________________________________
Printed Name: ______________________ Printed Name: ______________________
Title:______________________________ Title:______________________________
Date________________________________ Date________________________________
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20
LICENSE AGREEMENT
APPENDIX A
STATEMENT OF PRODUCT
Select Software Licensed:
[ ] Data Agent Server - PC Edition
1 CPU or Server and 2 Databases
[ ] Data Agent Server - SQL Edition
1 CPU or Server and 2 Databases
[ ] Business Alerts - PC Edition
1 CPU or Server and 2 Databases
[ ] Business Alerts - SQL Edition
1 CPU or Server and 2 Databases
___ Number of additional Database connections (in multiples of two)
Designated Computer:
Manufacturer:_____________________________ Model #: ____________________________
Microsoft NT Version:_________________ Service Pack 3 Installed (Y/N) __________
Host Name:_____________________
Address of Designated Computer Site:____________________________________________
____________________________________________
____________________________________________
NOTE: Please attach additional copies of this Statement of Product if more than
one Designated Computer(s) are to be licensed. List the Software to be licensed
on each Designated Computer on a separate Statement of Product.
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21
APPENDIX E
TRIAL AND EVALUATION AGREEMENT
- --------------------------------------------------------------------------------
WORKWISE SOFTWARE, INC.
3055 112TH AVE. N.E.
BELLEVUE, WA 98004
TRIAL AND EVALUATION AGREEMENT
________________ (the "Customer") requests WorkWise Software, Inc. ("WorkWise")
issue to Customer those materials identified in Schedule A attached (the
"Products"). In consideration for WorkWise providing the Products. Customer
agrees as follows:
1. The Products are to be used solely for Customer's evaluation.
2. Customer shall have the right to use the Products on a trial basis for a
period of fifteen (15) days from ______________ ("Trial Period"). At the end
of the Trial Period, Customer shall de-install and return and make no
further use of the Products.
3. WorkWise shall have no liability to Customer arising out of the use of the
Products and Customer shall hold WorkWise harmless from any claims and/or
liability in connection therewith.
4. Customer, its agents and employees, shall not copy, abstract or make
available to any person, firm or corporation, the Products or the
information contained in them. Customer shall maintain the Products in
confidence and prevent unauthorized access.
5. The Products and all information in them are proprietary to WorkWise. The
furnishing of the Products does not constitute either granting or waiver by
WorkWise of its proprietary interests. The results, conclusions, and reports
of the evaluation conducted may only be disclosed to Customer's personnel
for internal use and shall not be disclosed to any third party without the
express written consent of WorkWise.
6. All Products will be returned to Mike Arthur, WorkWise Software, Inc., 3055
112th Avenue N.E., Ste. 106, Bellevue, WA 98004 at the end of the Trial
Period.
WORKWISE: CUSTOMER:
By: _______________________________ By: ________________________________
(signature) (signature)
NAME: _______________________________ NAME: ________________________________
(print or type) (print or type)
TITLE: _______________________________ TITLE: ________________________________
DATE: _______________________________ DATE: ________________________________
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22
TRIAL AND EVALUATION AGREEMENT
EXHIBIT A
[List Products]
Page 22 of 22