AGREEMENT FOR WEB SITE
DESIGN AND DEVELOPMENT SERVICES
XYZ, Inc.
ATTN:
Effective Date:
This Agreement for Web Site Design and Development Services
("Agreement") is
made and entered into as
of the Effective Date above, between YYY of North
America, Inc. ("YYY") a
corporation, having offices at
., and XYZ, Inc. ("XYZ"), a
..corporation, having offices at
..
1. DEFINITIONS.
a.
"YYY Virtual Center Application" or
"the Application" shall mean an
Internet application
created for YYY in accordance with the
Specifications that
provides a virtual buying experience on the
Internet
for customers.
b.
"YYY Materials" shall mean items set forth in Exhibit 5 as
used in YYY
Virtual
Center Application.
c. "XYZ Materials" shall mean the
items set forth in Exhibit 6.
d. "Specifications" shall mean the
specifications for the YYY Virtual
Center Application as set forth in
Exhibit 9.
e. "Affiliate" of a party shall mean
an entity directly or indirectly
controlling,
controlled by or under common control with that party
where
control means the ownership or control, directly or indirectly,
of
more than fifty percent (50%) of all of the voting power of the
shares
(or other securities or rights) entitled to vote for the
election
of directors or other governing authority, as of the date of
this
Agreement or hereafter during the term of this Agreement;
provided
that such entity shall be considered an Affiliate only for
the
time during which such control exists, or a YYY dealer ("Center"),
or
a dealer of an Affiliate ("Affiliate Dealer"). YYY may extend the
benefits
granted in this Agreement to its Affiliates (for so long as
they
remain Affiliates), provided that all such Affiliates become
bound in
writing (for XYZ's benefit) to YYY's
obligations under
this
Agreement and that YYY assumes full responsibility for compliance
by
such Affiliates with such obligations.
[*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY
WITH THE
COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED
PORTIONS.
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2. SCOPE OF SERVICES.
XYZ shall use reasonable
efforts to provide, under the provisions of
this
Agreement, the services that are mutually agreed upon and described on
Exhibit 1
(Project Description/Scope of Work). YYY understands that the
Application is intended to work
with certain YYY Materials and that
XYZ's
performance is dependent on YYY's delivery of such
YYY
Materials.
Accordingly, YYY will provide XYZ with such YYY Materials
and
other requested assistance in accordance with the timetable set forth
in
the Exhibit 5 and any dates or time periods relevant to performance by
XYZ hereunder shall be
appropriately and equitably extended to
account
for any delays due to YYY. Subject to the above, XYZ shall
use
commercially reasonable efforts to adhere to the deadlines, benchmarks
and
milestones set forth in Exhibit 1.
3. EXHIBITS.
Exhibits are numbered for
identification and include a complete description
of
services to be performed, deliverables or other materials to be
produced,
the schedule for completion of each of the foregoing, the
applicable
fixed charges, and any additional terms the parties mutually
agree
to include. YYY may extend the benefits granted in this Agreement to
its
Affiliates (for so long as they remain Affiliates), provided that all
such
Affiliates become bound in writing (for XYZ's
benefit) to YYY's
obligations
under this Agreement and that YYY assumes full responsibility
for
compliance by such Affiliates with such obligations.
4. WORK POLICY/PERSONNEL.
a. Each party will designate a Project Manager
to serve as the main
contact
between them. The scope and specific conduct of XYZ's
services,
not outlined in an Exhibit, must be coordinated with YYY's
Project Manager at all
times. XYZ shall also use commercially
reasonable
efforts to coordinate such efforts with Fallon McElligott's
designated
Project Manager. XYZ will use its reasonable efforts
to
ensure the continuity of XYZ's employees assigned to
perform
services
hereunder.
b. On a periodic basis, XYZ will submit written
status reports
describing
its activities during the preceding period, including: the
current
status of activities (with an explanatory narrative when
appropriate).
The precise content and format of the status report
shall
be determined by the parties subsequent to the execution of this
Agreement. Upon
reasonable request and at YYY's expense, XYZ
will
meet with YYY management to review the status of XYZ's
activities.
c. XYZ personnel will use reasonable efforts to
observe and comply
with
YYY's reasonable and standard security procedures,
rules,
regulations
and policies, when working at YYY's site. XYZ will
use
its reasonable efforts to minimize any disruption to YYY's
normal
business
operations at all times. If necessary, YYY will only provide
working
space, resources and materials to XYZ. If any XYZ
employee
performing services on the YYY site is found to be reasonably
unacceptable
to YYY for any reason, YYY shall be the sole judge as to
acceptability
of behavior on its site. Unless otherwise agreed to
in
writing,
neither party will solicit the employment of the other
party's
personnel during the term of this Agreement and for a period
of
six (6) months thereafter.
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d. XYZ agrees and represents that it is an
independent contractor
and
its personnel are not YYY's agents or employees for
federal tax
purposes
or any other purposes whatsoever, and are not entitled to any
YYY
employee benefits. XYZ assumes sole and full responsibility
for
their acts and XYZ and its personnel have no authority to
make
commitments or enter into contracts on behalf of, bind or
otherwise
obligate YYY in any manner whatsoever. XYZ, and not
YYY, is solely
responsible for the compensation of personnel assigned
to
perform services hereunder, and payment of worker's compensation,
disability
and other income and other similar benefits, unemployment
and
other similar insurance and for withholding income and other taxes
and
social security.
5. ACCEPTANCE.
The YYY Virtual Center Application shall be subject to a verification of
acceptability
by YYY to ensure that it substantially conforms to the
Specifications.
If the Application fails to substantially conform to the
applicable
Specifications, YYY shall notify XYZ, within ten (10)
business
days after receiving the Application, specifying such failures in
sufficient
detail to allow XYZ to reproduce them, and XYZ will,
at
no additional cost, use commercially reasonable efforts to conform the
Application to the
Specifications and the acceptance/rejection/correction
provisions
above shall be reapplied; provided that upon the fifth or any
subsequent
rejection, either party may at any time thereafter, at its
option
and without obligation or liability of any kind, terminate this
Agreement.
In addition, XYZ warrants and represents that it will use
commercially
reasonable efforts to replace or repair any defect,
malfunction
or problem caused by a failure to conform to the Specifications
for
a period of one (1) year from the date of delivery of the Application
(i.e.
completion of Phase 2B).
6. OWNERSHIP.
a. As between the parties, XYZ exclusively
shall have all right,
title
and interest (including all patent rights, copyrights, trade
secret
rights, mask work rights and other rights throughout the world
(collectively
"Intellectual Property Rights")) in the XYZ
Materials and the
portions of the Application not owned by YYY as
provided
below ("XYZ Inventions"). Except as expressly provided
in
this Agreement, YYY will have no right or license in the foregoing.
b. As between the parties, YYY exclusively
shall have all right, title
and
interest (including all patent rights, copyrights, trade secret
rights,
mask work rights and other rights throughout the world
(collectively
"Intellectual Property Rights")) in the YYY
Materials
and
the portion of the Application specifically and exclusively
relevant
to YYY products ("YYY Inventions"). Except as necessary to
perform
its obligations under this Agreement, XYZ will have no
right
or license in the foregoing.
c. The parties hereby make any assignments
necessary to accomplish the
foregoing
ownership provisions. Each party has and will have
appropriate
agreements with all such employees and contractors
necessary
to fully effect the provisions of this Section 6.
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i. A party being assigned any proprietary right
under this Agreement
will
have the exclusive right to, and, at such party's expense,
the
assigning party agrees to assist such party in every proper
way
(including, without limitation, becoming a nominal party) to,
evidence,
record and perfect the assignment and to apply for and
obtain
recordation of and from time to time enforce, maintain and
defend
such proprietary right.
d. YYY shall be granted a license to XYZ
intellectual property
rights
incorporated into the Application to the extent necessary to
use
the Application as contemplated by this Agreement.
e. YYY further acknowledges that nothing herein
shall be construed to
restrict,
impair or deprive XYZ of any of its rights or
proprietary
interest in technology or products that existed prior to
and
independent of the performance of services or provision of
materials
under this Agreement. In addition, nothing in this Agreement
or
otherwise shall be construed to prevent XYZ from using
general
know-how, expertise, skill and understanding possessed prior
to
or gained during the course of performing services hereunder.
f. Furthermore, in the event that the XYZ
Materials developed or
created
hereunder is software, XYZ will use all commercially
reasonable
efforts with the intent that (i) any new agreements
with
third
party software developers shall contain provisions which provide
that
said software shall function in a manner consistent with said
software's
specifications for a period of time at least one (1) year
from
the date of acceptance, and that in the event said software does
not
function in a manner consistent with said specifications, the
developer
shall use all commercially reasonable efforts to make any
and
all necessary corrections and modifications during said one year
period
without cost or charge to YYY, (ii) said agreements shall also
contain
a representation that any such software shall not have a self
help
code designed to disable a computer program or an unauthorized
code
designed to permit access by an unauthorized person to the
software
to harm the software and (iii) said agreements shall also
have
a provision that indemnifies both YYY and XYZ for damages
in
the event that contractor, person or entity developing or creating
the
software hereunder is in breach of any warranty.
7. TRADEMARKS.
Except for the approved
creation, production and publication of the subject
matter
of the Agreement, XYZ shall not use the trade names,
trademarks,
service marks, logos, or any other proprietary designations of
YYY without
YYY's prior written consent.
8. INTELLECTUAL PROPERTY
LICENSE.
a. Subject to all the terms of this Agreement
and payment of all fees,
XYZ grants YYY a
worldwide, perpetual, nonsublicensable,
nontransferable right to use the YYY Virtual Center Application in the
nonsource code form provided by XYZ only on the
number of
servers
specified in Exhibit 7. Notwithstanding the foregoing, YYY may
request
any number of additional servers provided it pays the amounts
set
forth in Exhibit 7 as "Additional per Server Charge". YYY will
maintain
the copyright notice and any other notices that appear on the
Application
on any copies and any media. YYY may allow its
distributors
access to the Application. YYY will not (and will not
allow
any third party to) (i) reverse engineer or attempt
to discover
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any
source code or underlying ideas or algorithms of the Application
(except
to the extent that applicable law prohibits reverse
engineering
restrictions), (ii) provide, lease, lend, use for
timesharing
or service bureau purposes or otherwise use or allow
others
to use a Application for the benefit of any third party, or
(iii) use
any Application, or allow the transfer, transmission,
export,
or re-export of any Application or portion thereof in
violation
of any export control laws or regulations administered by
the
U.S. Commerce Department, OFAC, or any other government agency.
b. YYY hereby grants XYZ a worldwide, nonsublicensable,
nontransferable license to modify, adapt, and prepare
derivative works
of
the YYY Materials, or have its contractors do so on its behalf, as
necessary
to develop the Application or any additional work requested
by
YYY as provided herein and for no other purpose.
9. REPRESENTATIONS AND
COVENANTS.
a. XYZ warrants that the Services provided by
it as described in
this
Agreement will be of professional quality conforming to generally
accepted
practices governing the development and design of web sites.
b. In addition to any other express or implied
warranty made in this
Agreement, XYZ hereby
represents and warrants that as it relates
to
the YYY Virtual Center Application provided by XYZ
pursuant
to
the Services designated in this Agreement:
i. XYZ warrants to YYY that the occurrence of
the date January
1, 2000 will not,
by itself cause the
Application to
materially fail to perform century date change
2000 date
conversion and capability (including, but not limited
to
date, data century recognition, calculations which accommodate
same
century and multi-century formulas and date-values, correct
sorting,
ordering and date data interface values that reflect the
century),
failure to automatically compensate for and manage and
manipulate
data involving dates (including single century
formulas
and multi-century formulas) or to otherwise operate in
accordance
with the published specifications for such YYY Virtual
Center
Application; provided that all other software, hardware
and
products used in combination with the
Application
properly exchange date data with the YYY Virtual
Center Application.
ii. Notwithstanding anything else
contained in this Agreement, this
warranty
shall be deemed to be a warranty for current and future
performance
and shall apply for as long as maintenance fees are
being
paid by YYY. For the purpose of any applicable Statute of
Limitation or
Statute of Repose, discovery of any breach of this
warranty
shall be deemed to have been made when XYZ has
actually
experienced each such breach of this warranty; and
iii. A disclaimer of any
other express or implied warranties contained
in
this Agreement will not be deemed to be a disclaimer of this
warranty.
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c. XYZ further warrants, covenants and
represents that, in its
performance
hereunder, that it shall not knowingly introduce, through
data
transmission via modem or any other medium, any virus, worm,
trap,
trap door, back door, any contaminant, or disabling devices,
including,
but not limited to, timer, clock, counter, or other
limiting
routings, codes, commands, or instructions intended to damage
or
disable the software used by YYY, or other YYY information, or
other
YYY property other than in accordance with the specifications
("Harmful
Code"). In the event that XYZ introduces Harmful Code,
then,
as YYY's sole and exclusive remedy, XYZ shall at no
cost
to
YYY use reasonable efforts to provide and install a new copy of
software
without Harmful Code.
d. Notwithstanding anything else contained in
this Agreement, this
warranty
shall be deemed to be a warranty for current and future
performance
and shall apply until for so long as maintenance fees are
being
paid by YYY. For the purpose of any applicable Statute of
Limitation or Statute of
Repose, discovery of any breach of this
warranty
shall be deemed to have been made when the YYY has actually
experienced
each such breach of this warranty.
10. CHARGES AND TERMS OF PAYMENT.
a. The applicable charges shall be specified in
Exhibit 7. Unless
otherwise
agreed upon by the parties, in no event shall any charges
exceed the charges as
they are set forth in the attached Exhibit 7. In
addition,
YYY shall remit to XYZ approved out-of-pocket costs
consistent
with the procedures set forth in Exhibit 3 (Billing
Procedures) attached
hereto. No costs for any out-of-pocket services,
(such
services to include, but not necessarily be limited to, the
creation
of advertising copy, photography, layout, design,
typesetting,
or any other services related to, or necessary to
support,
XYZ's duties and responsibilities as described
hereunder),
rendered by XYZ shall be subject to any mark-up or
increase.
Notwithstanding the above, if there is a conflict between
this
Agreement and the YYY Billing Procedures, the terms of this
Agreement shall
supersede and govern.
b. YYY will pay all taxes levied against or
upon the services provided
hereunder,
or arising out of this Agreement, exclusive, however, of
taxes
based on XYZ's income, which shall be paid by XYZ.
YYY agrees to pay
directly any tax for which it is responsible or will
reimburse
XYZ upon receipt of proof of payment.
c. XYZ will use all commercially reasonable
efforts to maintain
complete
and accurate accounting records in connection with services
performed
and materials provided hereunder, in accordance with
generally
accepted accounting principles, to substantiate its charges.
YYY shall have the right
to appoint an independent certified public
accountant,
who is not compensated based on the results of the audit
and
who is acceptable to XYZ (which acceptance shall not be
unreasonably
withheld), to inspect the records of XYZ in order
to
verify the charges set forth in the accounting records. Such audit
may
only be performed once a year, upon reasonable prior notice and
during
regular business hours and at YYY's expense. Unless
necessary
to
establish in a court of law YYY's right to payment of
fees
hereunder,
YYY's auditor shall hold all information obtained in
strict
confidence,
shall not disclose such information to any other person or
entity
without XYZ's prior written consent and shall not
disclose
to YYY any information regarding XYZ's business other
than
any noncompliance by XYZ with the fee payment provisions
hereof.
The terms of this provision shall survive the termination of
this
Agreement for a period of five (5) years.
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<PAGE> 7
d. Each payment pursuant to this Agreement will
be made in U.S. dollars
in
and from the
(30) days
from the date of invoice sent to YYY on or after the
occurrence
of the event specified in Exhibit 7 for which payment is
due.
11. WARRANTIES.
a. XYZ warrants that: (i)
it has the authority and the right to
enter
into this Agreement, to perform services and provide the YYY
Virtual Center Application hereunder, and that its obligations
hereunder are
not in conflict with any other XYZ obligations;
(ii) all
services will be performed in a competent and professional
manner,
and will substantially conform, in all material respects, to
YYY's
requirements expressly set forth in this Agreement; (iii) to its
knowledge,
neither the YYY Virtual Center Application, nor the
performance
of any services by XYZ infringe upon or violate the
rights
of any third party and to its knowledge, YYY shall receive free
and
clear title to all deliverables assigned to it pursuant to Section
6; and (iv) at the time of acceptance, the
Application will
substantially conform to the Specifications and as
YYY's
sole and exclusive remedy for a breach of the foregoing,
XYZ shall use all
commercially reasonable efforts to correct and
repair,
at no cost to YYY, any defect, malfunction or non-conformity
that
prevents the YYY Virtual Center Application from
conforming to
the
Specifications.
b. Furthermore, XYZ warrants and represents
that it shall not use
the
YYY Materials which it develops for YYY hereunder in the use and
development
of any software and software code for any other
manufacturer
or distributor of automobiles, motorcycles or
recreational
vehicles.
c. Any warranty in this Agreement shall not
apply to: (i) altered or
damaged
or any portion of the Application incorporated with or into
other
software; (ii) the Application if it was subjected to
negligence,
abuse or misapplication by YYY.
d. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELECTICA
MAKES NO WARRANTIES TO
ANY PERSON OR ENTITY
WITH RESPECT TO THE YYY VIRTUAL CENTER
APPLICATION, SELECTICA
MATERIALS OR ANY DELIVERABLE OR ANY SERVICES OR
LICENSES AND DISCLAIMS
ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE
AND NON-INFRINGEMENT.
12. TERM AND TERMINATION.
a. This Agreement shall commence as of the
Effective Date and shall
continue
in full force and effect thereafter unless and until Exhibit
1 has been terminated or
Milestone 5 has been completed, or as
otherwise
provided hereunder.
b. In the event of any material breach of this
Agreement by either party,
the
other party may terminate this Agreement, by giving thirty (30)
days
written notice to such other party; provided, however, that any
such
termination shall not be effective if such other party has cured
the
breach of which it has been notified prior to the expiration of
said
thirty (30) days.
c. Subject to Section 12(d), upon any
termination of this Agreement (i)
all
rights and licenses of the parties shall cease, (ii) each party
shall
turn over to the other all of the other party's, Materials and
Confidential Information
and (iii) Sections 1, 6, 9, 12(d), 13, 14,
15, 16, 17, 20, 21, 22
shall survive any termination of this
Agreement, (iv)
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termination
hereunder shall not affect any rights of XYZ to
payments
already accrued.
d. Notwithstanding the above, if YYY terminates
this Agreement pursuant
to
Section 12(b) and provided, and for so long as, YYY is and remains
in
compliance with the terms of this Agreement, the licenses granted
in
Section 8 shall survive termination.
13. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING ELSE
IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT
FOR BODILY INJURY OR A BREACH
OF SECTION 14, 16 OR 9, NEITHER PARTY SHALL
BE LIABLE OR OBLIGATED WITH
RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT
OR UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY (I) FOR ANY
AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES
PAID TO IT HEREUNDER (II) FOR
ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY, SERVICES OR
RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES; (IV) FOR
INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V)
FOR ANY
MATTER BEYOND ITS REASONABLE CONTROL.
14. INDEMNIFICATION.
a. XYZ, at its own expense, will defend and/or
handle any claim or
action
against any YYY Affiliate for actual or alleged infringement of
any
or
any other similar right (including, but not limited to,
misappropriation
of trade secrets) based on the
Application and/or any
deliverables furnished to YYY pursuant to this
Agreement.
XYZ agrees to give YYY prompt written notice of any
such
claim or action that could have an adverse impact on YYY's
use or
possession
of same. As a condition to XYZ's obligations in this
Section 14, XYZ shall
have the right to conduct the defense of
any
such claim or action and all negotiations for its settlement;
provided,
however, that YYY may participate, at its expense, in such
defense or negotiations to protect its interests. XYZ
shall not
be
liable for any costs, expenses, damages or fees incurred by YYY in
defending
such action or claim, unless authorized by XYZ in
advance
and in writing. XYZ further agrees to indemnify and hold
each
of YYY and YYY Affiliates harmless from and against any and all
liabilities,
loses, damages, costs and expenses (including reasonable
attorneys'
fees) associated with any such claim or action. As a
condition
to the foregoing, YYY must promptly notify XYZ in
writing
of any claim or action and cooperate with, and provides all
available
information, assistance and authority to, XYZ to
defend
or settle the action.
b. If the Application is, or in the opinion of
XYZ is likely to
become,
the subject of a claim, suit or proceeding of infringement,
XYZ may in its sole discretion
(a) procure, at no cost to YYY,
the
right to continue using the Application; (b) replace or modify the
Application to render it
non-infringing, provided there is no material
loss
of functionality; or (c) if, in XYZ's reasonable
opinion,
neither
(a) nor (b) above are commercially feasible, terminate the
license
and refund the amounts paid by YYY for the Application (as
depreciated
on a straight-line basis over a period of 60 months). The
foregoing
obligations of XYZ do not apply with respect to
software
programs or portions or components thereof (i) not
supplied
by
XYZ; (ii) which are modified by YYY other than as authorized
by
XYZ, if the alleged infringement relates to such
modifications;
(iii) combined with software or hardware
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products
not conforming to XYZ's published system
requirements,
processes
or materials where the alleged infringement relates to such
combination,
(iv) where YYY continues the allegedly infringing
activity
after being notified thereof or after being informed and
provided
with modifications that would have avoided the alleged
infringement;
or (v) where YYY's use of the Applications is not
strictly
in accordance with the purpose for which this license has
been
granted.
c. YYY represents that it has obtained the
necessary consents, permits
and
approvals necessary to use the YYY Materials or any photographs,
images
or artwork which YYY secures and provides to XYZ, and
shall
assume royalty or other payments necessary to secure right,
title
and interest, or the necessary licensing rights in such
photographs,
images or artwork which YYY has obtained independent of
XYZ.
YYY agrees to indemnify and hold XYZ, its officers,
employees
and agents, harmless, including reasonable attorneys' fees,
from
and against any demand, claim, damage, judgment, action, cause of
action,
royalty payment made or brought against XYZ arising out
of
the purportedly unauthorized use of, or a claim of infringement
related
to, the YYY Materials or any photographs, images or artwork
described
above in this paragraph.
15. CONFIDENTIAL INFORMATION.
a. Each party (the "Receiving Party")
agrees to regard and preserve as
confidential
all technical, financial and business information related
to
the business and activities of the other party (the "Disclosing
Party"), that may
be obtained by such party from any source or may be
developed
as a result of this Agreement ("Confidential Information" of
the
Disclosing Party). The Receiving Party agrees to hold such
Confidential Information
in trust and confidence for the Disclosing
Party and not to disclose
such Confidential Information to any person,
firm
or enterprise, or use (directly or indirectly) any such
information
for its own benefit or the benefit of any other party,
unless
authorized by The Disclosing Party in writing, and even then,
to
limit access to and disclosure of such Confidential Information to
The
Receiving Party's employees on a "need to know" basis only.
Confidential Information
shall not be considered confidential to the
extent, but only
to the extent, that such information is: (i) already
known
by the Receiving Party free of any restriction at the time it is
obtained;
(ii) subsequently learned by the Receiving Party from an
independent
third party, free of any restriction; (iii) available
publicly.
b. Each party acknowledges and agrees that, in
the event of a breach or
threatened
breach of any of the foregoing provisions, the other party
will
have no adequate remedy in damages and, accordingly, shall be
entitled
to injunctive relief against such breach or threatened
breach;
provided, however, that no specification of a particular legal
or
equitable remedy shall be construed as a waiver, prohibition or
limitation
of any legal or equitable remedies in the event of a breach
hereof.
16. ADVERTISING.
Neither party will use the
other party's name or marks, refer to or
identify
the other party in any advertising or publicity releases or
promotional
or marketing correspondence to others without such other
party's
written approval (such approval shall not be unreasonably
withheld).
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17. GOVERNING LAW AND
INTERPRETATION.
This Agreement shall be
construed and enforced under the substantive laws
of
the State of
affect
the meaning of any terms. If any provision of this Agreement is held
invalid,
illegal or unenforceable, the remaining provisions will continue
unimpaired.
18. INSURANCE.
Unless otherwise agreed upon,
XYZ agrees to obtain and maintain
adequate
worker's compensation, disability, unemployment insurance and the
like
for those of its employees performing services under this Agreement.
XYZ agrees to obtain and
maintain comprehensive general and vehicular
liability
insurance for claims for damages because of bodily injury
(including
death) and property damage caused by or arising out of acts or
omissions
of its employees. The minimum limits of such insurance shall be
one
million dollars ($1,000,000) for each person, one million dollars
($1,000,000) for each
accident involving bodily injury and one million
dollars
($1,000,000) involving property damage for each accident. Each such
insurance
policy shall name YYY as co-insured and additional loss payee and
shall
provide for at least thirty (30) days prior notice to YYY in the
event
of any modification or cancellation. XYZ will also notify YYY
at
least thirty (30) days in advance if XYZ desires to modify or
cancel
any such insurance. Upon request, XYZ shall furnish YYY with
certificates
of insurance to evidence its compliance with the provisions
hereof.
XYZ shall also obtain and
maintain a policy or policies of errors and
omissions,
product liability and property damage which shall include YYY as
a
named insured. XYZ shall supply YYY with a certificate of such
insurance
within twenty (20) days after notice of the execution of this
Agreement, which shall state
that the carrier undertakes to give YYY twenty
(20) days
advance notice of cancellation. The policy limits shall be in the
amount
of not less than five million dollars ($5,000,000) for each
occurrence.
19. ASSIGNMENT.
Except to an entity that succeeds
to all or substantially all the business
or
assets of a Party, neither party may assign, transfer or subcontract the
performance
of its services, or any of its rights and/or obligations,
without
the other party's prior written consent, and any attempt to do so
shall
be void, except YYY may assign this Agreement, and/or any of its
rights
or obligations to any YYY Affiliate, without XYZ's
consent and
upon
written notice to XYZ.
20. SUBCONTRACTING.
XYZ shall be solely
responsible for all its obligations and
responsibilities
hereunder notwithstanding any subcontracting.
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21. NOTICES.
All notices shall be in
writing and delivered personally or properly
mailed,
first class mail, to the addresses of the parties set forth at the
beginning
of this Agreement, to the attention of the undersigned, with a
copy
to the signatories of this Agreement, at the same address, or to such
other
address or addressee as either party may designate by written notice.
Any such notice shall be
deemed given on the date delivered or when placed
in
the mails as specified.
22. ENTIRETY.
This Agreement, together with
the Exhibits, contains the entire agreement
between
the parties and supersedes any prior or inconsistent agreements,
negotiations,
representations and promises, written or oral. No
modification
to this Agreement nor any failure or delay in enforcing any
term, exercising
any option or requiring performance shall be binding or
construed
as a waiver unless agreed to in writing by the parties hereto.
23. EMPLOYEE NON-COMPETITION.
During the term of this
Agreement, XYZ employees that are assigned to
develop
the YYY Application shall not agree to perform services or provide
material
or information, directly or indirectly, to for or in support of
any
Competitor of YYY in connection with a Competitive Project that is
substantially
similar in form, substance, purpose or intent as performed or
provided
under this Agreement. For purposes of this Section, "Competitor"
is
defined as any manufacturer or distributor of automobiles, motorcycles,
or
recreational vehicles and "Competitive Project" is defined as any
task
or
work effort whose intent or result is or will be substantially similar
to
any contemplated by this Agreement.
24. ESCROW.
a. XYZ agrees within a reasonable time after execution
of this
Agreement both parties
shall enter into an agreement upon the terms
set
forth in Exhibit 10 (Escrow Agreement) with
Agent") unless
otherwise agreed upon by the parties wherein XYZ
shall
provide the source code for the YYY Virtual Center
Application
("Source
Code") to said Escrow Agent. YYY shall bear all costs
associated
with escrow.
b. Escrow Agent shall hold such Source Code
throughout the term of this
Agreement, and any
renewal or extension of said Agreement, and shall
release
said Source Code to YYY in the event of, and only in the event
a
release condition specified below ("Release Condition") and in
accordance
with the terms of the Escrow Agreement. The circumstances
that
shall give rise to a Release Condition are set forth below, and
only
those circumstances as mentioned hereinafter
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shall
give rise circumstances which trigger the filing for release as
set
forth in the Escrow Agreement.
i.
XYZ becomes subject to any administrative or
governmental
action or measure which terminates its business (without
a
successor).
ii. XYZ
substantially and continuously fails to meet the
support
obligations set forth in this Agreement solely due to the
fault
of XYZ and such failure gives rise to a right on the part
of
YYY to terminate said Agreement.
iii. XYZ makes, or
initiates the process making, a general
assignment
for the benefit of creditors, or any involuntary petition
to
obtain an order for relief against XYZ is filed under the
Bankruptcy Code provided
it is not vacated within 120 days from the
date
of filing, or a receiver or custodian of bankruptcy is appointed
for
XYZ provided such appointment is not vacated within 120 days
from
the date of such appointment.
c. In the event of one
or more of the occurrences set forth above in
Section 24(b)(i), (ii) or (iii) YYY may
activate the release process as
specified
in the Escrow Agreement.
d.
Upon release of the Source Code pursuant to the Escrow Agreement,
YYY shall have a
non-exclusive, perpetual, non-transferable license to the
Source Code only for the purposes
of operating, maintaining and supporting
users
of the Application and only for so long as a Release Condition
exists.
YYY OF NORTH AMERICA, INC. SELECTICA, INC.
By: /s/ By: /s/
---------------------------------- ----------------------------------
Name: Name:
Title: VICE PRESIDENT,MARKETING
Title: VICE PRESIDENT, MARKETING
------------------------------- -------------------------------
Date: Date:
-------------------------------- --------------------------------
YYY OF
., INC.
By: /s/
----------------------------------
Name:
--------------------------------
Title: PRESIDENT
-------------------------------
Date:
--------------------------------
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EXHIBITS
Omissis