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Exhibit 10.1
Information denoted by [*] herein has been omitted pursuant to a request for
confidential treatment. This information has been filed separately with the
Securities and Exchange Commission.
KANA COMMUNICATIONS, INC.
[KANA LOGO] KANA ALLIANCE PROGRAM
ORIGINAL EQUIPMENT MANUFACTURER AGREEMENT
This OEM Agreement (the "Agreement") by and between Kana Communications, Inc.,
("Kana") a Delaware corporation having its principal place of business at 740
Bay Road, Redwood City, CA 94063, and ServiceWare Technologies, Inc. ("Kana
Alliance Program Member [APM]" or "ServiceWare"), a Delaware corporation having
its principal place of business at 333 Allegheny Avenue Oakmont, PA 15139, is
entered into as of the date last written below ("the Effective Date").
1. Definitions.
a. Bundled Product is the product derived from the integration of the
Software into APM's products.
b. Documentation is the Kana documentation made available in hard copy
or in electronic form with the Products or otherwise under this
Agreement.
c. End-Customer is an entity which has executed a valid license
agreement for the use of Kana's Products under this Agreement.
d. Guidelines means the then-current Kana published program guidelines
for the Kana Alliance Program that have been provided to APM in
writing, and any updates or revisions thereto that Kana may provide
to APM from time to time in writing.
e. Kana Qualification is the status granted to APM employees who
successfully complete the training set forth in Section 9 hereof.
f. Products shall mean all Software and all related Documentation
provided therewith.
g. Software is the machine readable (object code) version of the
computer program for inbound email response (currently known as Kana
Response) made generally commercially available by Kana, and any
copies, updates to, or upgrades thereof. Kana reserves the right to
make deletions, additions, substitutions and modifications to the
Software in its sole discretion, subject to Section 19.
h. Territory is the world.
2. License.
a. Subject to the terms of this Agreement Kana grants to APM a
nontransferable, nonsublicensable, nonexclusive, limited license to
use and reproduce the Products for the purposes of
i. integrating the Products with APM's products to create the
Bundled Product;
ii. sublicensing and distributing the Bundled Products in the
Territory in object code form only to End-Customers for use
only within the Territory;
iii. demonstrating the Bundled Products in object code form only to
potential End-Customers; and
iv. providing training for the Bundled Products to End-Customers.
b. Each Bundled Product licensed by APM that incorporates Software
shall be distributed by APM only pursuant to a Sublicense Agreement
to which the appropriate End-Customer is bound prior to access to
the Software being granted to that End-Customer, and which contains
terms and conditions at least as favorable to Kana as those set
forth in Kana's Software License Agreement (a copy of which is
attached hereto as Exhibit A). APM agrees that it shall either: (i)
enforce the Sublicense Agreement in order to protect the rights of
Kana hereunder, or (ii) in the event APM fails to enforce such
Sublicense Agreement or protect Kana's rights hereunder, then to the
extent legally permitted APM hereby assigns its rights under such
Sublicense Agreement to Kana, but only to the extent necessary to
protect Kana's rights hereunder.
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c. APM may utilize its authorized distributors or resellers solely for
the purposes of distributing the Bundled Products provided that (i)
such distributors and resellers are subject to restrictions
substantially similar to those set forth in this OEM agreement, (ii)
APM is responsible to Kana for all acts and omissions of such
distributors and resellers with regard to the Software or Products,
and (iii) with the exception of [*], such distributor and resellers
are subject to the [*] limitation as set forth on the Pricing
Schedule and may not distribute or resell any Product with greater
than [*] seats without Kana written consent, which consent will not
be unreasonably withheld.
d. No right is granted to APM hereunder to use the Products for APM's
internal use (other than creating Bundled Product), or for any other
use not expressly granted herein.
e. APM may not sublicense, distribute, or otherwise resell the Products
or the Software on a standalone basis. The licenses granted herein
are provided solely for the purposes of enabling APM to create and
sublicense the Bundled Product.
f. Each party has concurrently licensed their respective products to
the other party under separate license agreements: the Kana Master
Software License Agreement (the "Kana SLA") and the ServiceWare
Software License, Professional Services and Maintenance Agreement
(the "ServiceWare SLA"). The licensor under each such agreement
hereby agrees that products under such licenses may also be used by
the licensee to support and fulfill its respective obligations under
this Agreement, including to provide customer support under this
Agreement and to develop the integrated Bundled Product.
g. Kana shall provide APM with the deliverables relating to the Product
and identified on Exhibit _ within five days of the Effective Date.
3. Proprietary Rights and Software Licensing.
a. Limitations. Except as otherwise expressly provided under this
Agreement, APM shall have no right, and APM specifically agrees not
to:
i. transfer or sublicense its license rights to any other person;
or
ii. decompile, decrypt, reverse engineer, disassemble or otherwise
reduce the Software to human-readable form.
b. Upgrades and Additional Copies. For purposes of this Agreement,
Software shall include (and the terms and conditions of this
Agreement shall apply to) any upgrades, updates, bug fixes or
modified versions (collectively, "Upgrades") or backup copies of the
Software licensed or provided to APM by Kana or an authorized
distributor. Subject to APM's payment of the applicable maintenance
fees, Kana shall provide APM with all Updates within thirty days
after Kana makes such Updates generally available.. NOTWITHSTANDING
ANY OTHER PROVISION OF THIS SOFTWARE LICENSE: (1) APM HAS NO LICENSE
OR RIGHT TO USE ANY SUCH ADDITIONAL COPIES OR UPGRADES UNLESS APM,
AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID
LICENSE TO THE ORIGINAL SOFTWARE; (2) USE OF UPGRADES IS LIMITED TO
APM AS THE ORIGINAL END CUSTOMER LICENSEE OR TO END-CUSTOMERS WHO
OTHERWISE HOLD A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING
UPGRADED; AND (3) USE OF ADDITIONAL COPIES IS LIMITED TO BACKUP
PURPOSES ONLY (UNLESS APPLICABLE LICENSE FEES ARE PAID).
4. Ownership.
a. APM agrees that all Products furnished under this Agreement shall
remain the sole and exclusive property, confidential information and
trade secrets of Kana, and shall
i. not be reproduced or copied, in whole or in part, except as
necessary for use as authorized under this Agreement or unless
otherwise agreed to in writing by Kana;
ii. not be used to develop other software except as specifically
provided herein; and
i. To the extent that APM conceives, learns, or reduces to
practice any work of authorship, idea or know-how (whether or
not patentable) that is a derivative work, improvement or
modification of the Products in the course of performance
under this Agreement ("Work
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Product") shall be owned by APM, subject to Kana's title and
other rights in the Software and the Product, provided that
nothing in this Agreement shall prevent Kana from developing
any technology or products similar to, or the same as, Work
Product. Specifically, APM grants to Kana a world-wide
permanent, irrevocable, royalty-free, unlimited, fully
paid-up license to any Work Product, provided that APM shall
have no obligation to provide Kana with any such Work Product
except as specifically required by Kana to fulfill its
obligations to APM or the End-Customers under this Agreement;
ii. APM agrees not to assert, file or otherwise raise any claim or
action against Kana for the infringement of any rights of APM
in any Work Product; and
iii. To the extent that any Work Product includes the Software or
Product, or any portion thereof, APM shall treat such Work
Product as Proprietary Information of Kana and not disclose or
grant any rights in such Work Product to any third party
(except as otherwise permitted by this Agreement).
The parties anticipate that APM shall independently integrate the
Product into the Bundled Product. Subject to such assumption, APM
shall own the Bundled Products subject to Kana's title and other
rights in the Software and the Product. Notwithstanding anything
to the contrary Agreement, APM shall retain all title and other
rights, and no license shall be granted, in the products of APM
developed prior to the Effective Date or developed without use of
the Products.
b. Trademarks, product markings and goodwill
i. APM acknowledges that the marks "Kana", "Kana CMS", Kana logo,
and all other valid trademarks, trade names or service marks
of Kana (the "Marks"), and all registrations thereof, are good
and valid and are solely and exclusively owned by Kana. APM
agrees that it will use and display the Marks only in the form
or for the purposes authorized by Kana in this Agreement. APM
further acknowledges that this Agreement does not grant APM
any right, title or interest in the Marks or goodwill
associated with Kana and the Software as represented and
symbolized by the Marks.
ii. APM agrees not to market any of the Software under any name
except such name therefor as is designated by Kana. APM shall
prominently display all such Marks (with an indication that
Kana is the owner and holder of the Mark(s)) in accordance
with such reasonable instructions as it may receive from time
to time from Kana, and shall use them as may be necessary in
the solicitation of orders for the Bundled Products during the
term of this Agreement. APM shall not knowingly take any
action, or fail to take any action, during the term of this
Agreement, which would adversely affect the validity or
enforceability of Kana's Marks.
iii. In order to preserve and protect the goodwill, reputation and
image of Kana and the Software, APM shall:
(1) Not engage in any deceptive, misleading or unethical
practices, which are detrimental to Kana or the
Software;
(2) Refrain from making any false, misleading or deceptive
representations with regard to Kana or the Software; and
(3) Refrain from making any representations, warranties or
guarantees to End-Customers or prospective End-Customers
or other third parties with respect to the
specifications, features or capabilities of the Software
that are inconsistent with the literature or other
information approved, provided or prepared by Kana.
iv. Immediately following the expiration or termination of this
Agreement for any reason, APM shall discontinue use of the
aforementioned Marks and return, or dispose of, as Kana may
reasonably direct, any signs or other promotional displays
directly or indirectly referencing or relating to Kana and/or
any of the Software or Marks. If, after expiration or
termination of this Agreement, APM makes any further use of
the Marks, such use shall be deemed a breach of this Agreement
for which a remedy at law may not exist. In such case, Kana
shall be entitled to seek immediate injunctive relief from an
appropriate court.
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c. APM agrees that each copy of any Products, and all packaging media
used for their distribution, shall include reproductions of the
copyright notices and other proprietary legends of Kana as Kana
designates, in computer object code format or otherwise, which
accompany such items. APM shall not remove, efface or obscure any
copyright notices or other proprietary notices or legends from any
Kana materials provided herein.
5. Proprietary Notices. APM agrees to maintain and reproduce all copyright
and other proprietary notices on all copies, in any form, of the Software
in the same form and manner that such copyright and other proprietary
notices are included on the Software. Except as expressly authorized in
this Agreement, APM shall not make any copies or duplicates or any
Software without the prior written permission of Kana. APM may make such
backup copies of the Software as may be necessary for APM's lawful use,
provided APM affixes to such copies all copyright, confidentiality, and
proprietary notices that appear on the original.
6. Obligations of APM.
a. APM shall:
i. Integrate the Software into APM's products to create the
Bundled Product;
ii. Promote Kana, and promote and sublicense, install, support
and/or maintain (as hereinafter defined) the Software and the
Bundled Product;
iii. Inform current and potential End-Customers of new Software and
Bundled Product offerings, as well as of enhancements to
current Software;
iv. Include with the Software any and all documentation included
by Kana at time of shipment or as otherwise reasonably
required by Kana prior to the time of shipment;
v. Maintain reasonable demonstration units and facilities for
supporting, marketing and promotion of the Software and the
Bundled Product;
vi. Represent Kana and the Software in a professional, responsive
and favorable manner at all times;
vii. Provide installation, integration and other services to
End-Customers at professional standards;
viii. Promptly transmit to Kana any current or potential
End-Customer complaints concerning Kana or the Software;
ix. Make professional and timely responses to prospective
End-Customer leads to the extent provided by Kana;
x. Use its reasonable efforts to inform Kana of any violations or
infringements under any agreement under which the Bundled
Products are distributed of which APM is aware;
xi. participate in reasonable relationship marketing activities
between Kana and APM as specified in the Guidelines including
but not limited to joint press releases and company logo
exchange;
xii. place the Kana logo and the "Powered by Kana" mark on APM's
website;
xiii. allow Kana to use APM's name as a reference, including without
limitation, use of APM's name in (a) a press release that is
mutually agreed upon in writing, which agreement by APM shall
not be unreasonably withheld and (b) on other promotional
materials as the parties may agree;
xiv. not publish or otherwise distribute the results of any tests,
benchmarking or other analysis of the Products without Kana's
prior written consent;
xv. forthwith notify Kana if it becomes aware that the
arrangements contemplated by this Agreement are or likely to
be in breach of any laws or regulations;
xvi. have any of its personnel engaged in the sale and support of
the Software are certified by Kana pursuant to the section of
this Agreement entitled `TRAINING'; and
xvii. Within thirty (30) days following the Effective Date of this
Agreement, prepare and provide to Kana a written forecast of
anticipated Software licenses under this Agreement for the
next
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twelve (12) months. APM shall prepare and provide an
updated forecast monthly thereafter. Such forecasts are not
binding on Kana or APM.
xviii.
xix. During the term of this Agreement, APM agrees to provide Kana
with a discount on all consulting, implementation and similar
services for APM software licensed by Kana under the
ServiceWare SLA.
7. Support. APM shall provide support to APM's End-Customers subject to the
terms contained herein and subject to the terms at least as favorable to
End-Customers as those contained within the Support Agreement attached
hereto as Exhibit B.
8. Obligations of Kana. Kana shall:
a. make Products available to APM, and for APM's use subject to the
terms of this Agreement;
b. when planning joint marketing events with APM, make reasonable
efforts to actively participate in such events, by, for example,
giving talks, giving information to End-Customers, or helping
organize such events; and
c. furnish to APM, at no charge, reasonable quantities of sales aids,
product briefs, brochures, and similar literature and material
normally made available to End-Customers.
d. Include APM as a "Premier Partner" in Kana's Partner Program and
provide APM with all benefits related to such Partner category.
e. During the term of this Agreement, Kana agrees to provide APM with a
discount on all consulting, implementation and similar services for
Kana software licensed by APM under the Kana SLA.
9. Training.
a. APM shall fulfill the reasonable training requirements as set forth
in the Guidelines, which may be updated in a reasonable manner from
time to time by Kana. In addition, APM shall agree to receive and/or
attend additional sales or technical training as directed by Kana as
reasonably necessary for APM to fulfill its obligations under this
Agreement.
b. The parties shall jointly develop a training plan to allow APM to
meet the foregoing obligations.
c. Kana shall provide APM with reasonable sales or product training at
the discounts set forth in the Guidelines and this Agreement. APM
shall bear all travel, lodging and other related expenses that its
trainees may incur in attending these sessions.
d. In conjunction with APM, Kana will determine the need for
specialized training. If the parties to the Agreement decide that
such training is necessary, Kana will conduct these courses. Cost of
the training shall be at Kana's then-current rates less the
discounts as set forth in the Guidelines.
10. Non-Exclusivity By Kana. Kana may appoint other companies to purchase,
resell, license, sublicense, install, support, maintain and/or otherwise
distribute one or more of its Software, including without limitation,
those that may compete with APM. Kana reserves the sole and exclusive
right to solicit, authorize, approve, disapprove or terminate any current
or prospective reseller. Nothing in this Agreement shall be construed to
prohibit Kana from selling, licensing, sublicensing, installing,
supporting, maintaining and/or otherwise distributing its Software
directly, indirectly, or through other channels.
11. Non-Exclusivity By APM. APM may sell any software or products the
functionality of which is substantially similar to that of any Software,
and may sell any APM product without bundling it with Products.
12. Limited Warranty.
a. Notwithstanding any other provision hereof, Kana's sole and
exclusive warranty with respect to the Products sold hereunder are
set forth in Kana's Limited Warranty Statement delivered with the
Product and such limited warranty shall apply only to the Products
and not to the Bundled Products. APM SHALL NOT MAKE ANY ADDITIONAL
WARRANTY COMMITMENT,
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WHETHER WRITTEN OR ORAL, ON KANA'S BEHALF. APM shall indemnify
Kana for any warranties made in addition to Kana's standard
warranty and for any misrepresentation of Kana's Products.
b. KANA DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING
THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
AGAINST INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR
TRADE PRACTICE.
c. APM DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THOSE
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST
INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE
PRACTICE.
13. Confidential Information.
a. Each party (the "Receiving Party") acknowledges that, during the
term of this Agreement, it may receive from or on behalf of the
other party (the "Disclosing Party"), confidential or proprietary
information relating to the Disclosing Party ("Proprietary
Information"). Such Proprietary Information shall belong solely to
the Disclosing Party and includes, but is not limited to, this
Agreement, trade secrets, know-how, inventions (whether or not
patentable), techniques, processes, programs, ideas, algorithms,
schematics, testing procedures, software design and architecture,
computer code, internal documentation, design and function
specifications, product requirements, problem reports, analysis and
performance information, software documents, and other technical,
business, product, marketing and financial information, plans and
data. The Software and related documentation shall be deemed Kana's
Proprietary Information.
b. During and after the term of this Agreement, the Receiving Party
shall:
i. not use or disclose (except as expressly authorized by this
Agreement) Proprietary Information without the prior written
consent of the Disclosing Party.
ii. take all reasonable measures to maintain the Proprietary
Information in confidence, but no less care than the Receiving
Party uses to protect its own Proprietary Information of like
kind;
iii. disclose Proprietary Information only to those of its
employees and consultants as are necessary for purposes of
this Agreement, and only after such employees and contractors
have agreed in writing to be bound by obligations of
confidentiality substantially equivalent to those contained in
this Agreement;
c. Proprietary Information shall not include information that:
i. becomes public without breach of this Agreement by the
Receiving Party, its officers, directors, employees or agents;
ii. was previously in the Receiving Party's possession (in written
or other recorded form) with no obligation to maintain
confidentiality;
iii. was received by from a third party not under any obligation of
confidentiality to the Disclosing Party; or
iv. was developed by the Receiving Party's employees, agents,
contractors, and/or representatives independently of, and
without reference to, any Proprietary Information.
14. Payment
a. APM shall pay to Kana the amounts, including the minimums, as set
forth in Schedule A. All License and APM Fees are exclusive of
shipping, taxes (other than taxes on Kana's income or net worth),
duties and the like, which shall be paid by APM. All late payments
shall be assessed a service charge of 1.5% per month to the extent
allowed by law. For international shipments, outside the United
States, APM will be responsible in advance for all applicable
shipping charges, taxes, customs charges, duties, brokerage fees or
common carrier charges.
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b. APM shall not be obligated to pay any compensation to any Kana
reseller or distributor that may be entitled to a commission or
other payment arising from sales of Products within the Territory.
15. Term and Termination.
a. This Agreement shall commence on the Effective Date and continue
until December 31, 2001 (the "Initial Term"), unless extended by
written agreement of both parties or sooner terminated as set forth
below.
Either party may, upon twenty (20) days written notice, terminate this Agreement
in the event (a) there is a change of ownership of the other party (i.e.
purchase or sale by one person or other entity) of fifty percent (50%) or more
of such party's market valuation to a competitor of the first party; or (b)
there is an acquisition or transfer of a controlling interest in the other party
to a competitor of the first party and (c) the other party makes a greater than
50% investment (including an acquisition) of a competitor of the first party.
For purposes of this Section, APM's competitors shall consist of [*] and [*],
and their respective affiliates
b. This Agreement may be terminated immediately by either party through
written notice under any of the following conditions:
i. Either party ceases to carry on business as a going concern,
either party becomes the object of the institution of
voluntary or involuntary proceedings in bankruptcy or
liquidation (and such proceedings are not dismissed within
thirty (30) days), or a receiver is appointed with respect to
a substantial part of its assets.
ii. Either party breaches any of the material provisions of this
Agreement and fails to remedy such breach within thirty (30)
days after written notification by the other party of such
breach.
c.
d. Upon termination of this Agreement, all rights and licenses granted
hereunder shall terminate; provided, however, that any licenses
granted to End-Customers prior to termination or expiration to use
the Bundled Products shall survive termination or expiration. In
addition, should APM terminate this Agreement during the Initial
Term due to Section 15.b, then APM shall be entitled to a refund of
all amounts paid for that portion of prepaid royalties and
maintenance fees that are unused.
e. Additionally, upon termination, APM shall immediately return to Kana
all Proprietary Information and data (including all copies thereof)
of Kana then in APM's possession or custody or control including,
without limitation:
i. All technical materials and business plans supplied by Kana;
ii. All manuals covering Products; and
iii. Any customer or prospect lists provided by Kana.
f. Additionally, upon termination, Kana shall immediately return to APM
all Proprietary Information and data (including all copies thereof)
of APM then in Kana's possession or custody or control including,
without limitation:
i. All technical materials and business plans supplied by APM;
ii. All manuals covering APM's products; and
iii. Any customer or prospect lists provided by APM.
g. THE PARTIES AGREE IN THE EVENT OF TERMINATION OF THIS AGREEMENT FOR
ANY REASON, NEITHER PARTY SHALL HAVE ANY RIGHTS TO DAMAGES OF ANY
NATURE RELATED TO SUCH TERMINATION (BUT NOT LIMITING ANY CLAIM FOR
DAMAGES A PARTY MIGHT HAVE ON ACCOUNT OF THE OTHER PARTY'S BREACH OF
THIS AGREEMENT, EVEN IF THE BREACH GAVE RISE TO TERMINATION, SUCH
LIABILITY BEING GOVERNED BY AND SUBJECT TO THE LIMITATIONS SET FORTH
ELSEWHERE IN THIS AGREEMENT), SPECIFICALLY INCLUDING NO RIGHTS TO
DAMAGES FOR COMMERCIAL SEVERANCE PAY, WHETHER BY WAY OF LOSS OF
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FUTURE PROFITS, EXPENDITURES FOR PROMOTION OF ANY PRODUCTS, OR OTHER
COMMITMENTS IN CONNECTION WITH THE BUSINESS AND GOOD WILL OF EITHER
PARTY. EACH PARTY EXPRESSLY WAIVES AND RENOUNCES ANY CLAIM TO
COMPENSATION OR INDEMNITIES FOR ANY TERMINATION OF A BUSINESS
RELATIONSHIP.
16. Audit.
a. APM shall keep full, true, and accurate records and accounts of all
information relevant to APM's use of the Products and APM's
obligations under this Agreement. APM shall make these records
available for audit by Kana upon fifteen (15) days prior written
notice, during regular business hours at APM`s principal place of
business; provided that (i) any such audit shall be conducted in a
manner to minimize any disruption to APM's business, (ii) no more
than two such audits shall be conducted in any twelve month period,
and (iii) all information obtained during such audit shall be the
Proprietary Information of APM.
b. Kana shall have the right, at its reasonable discretion (subject to
any confidentiality or other agreements between APM and
End-Customer) to inspect any work undertaken or performed by APM
related to the Products in order to determine that APM is complying
with the terms of this Agreement; provided that (i) any such
inspection shall be conducted in a manner to minimize any disruption
to APM's business, (ii) no more than two such inspections shall be
conducted in any twelve month period, and (iii) all information
obtained during such inspections shall be the Proprietary
Information of APM.
17. Force Majeure. Neither party shall be liable for any delay or failure in
performance due to events outside the defaulting party's reasonable
control, including without limitation acts of God, earthquake, labor
disputes, shortages of supplies, riots, war, fire, epidemics, or delays of
common carriers or other circumstances beyond its reasonable control The
obligations and rights of the excused party shall be extended on a day to
day basis for the time period equal to the period of the excusable delay.
18. Product Changes. Modifications which do not affect the form, fit, function
or interface of a Product or which Kana reasonably deems necessary to
comply with governmental regulations, to make the Product non-infringing
with respect to any patent, copyright or other proprietary interest may be
made at any time by Kana without prior notice to or consent of APM. Kana
shall notify APM in writing of any Product changes other than those set
forth in the previous sentence at least ninety (90) days prior to the
effective date of the changes. Kana shall not make any change to Products
during the term that would significantly reduce the functionality or
change the interface for the Products.
19. Compliance with Laws. APM shall obtain all licenses, permits and approvals
required by any government and shall comply with all applicable laws,
rules, policies and procedures including requirements applicable to the
use of Products under telecommunications and other laws and regulations,
of any government where the Products are to be sold, used or deployed by
APM or its customers (collectively "Applicable Laws"). APM will indemnify
and hold harmless Kana for any violation or alleged violation of any
Applicable Laws APM. APM shall comply with all Applicable Laws. APM shall
not act in any fashion or take any action or permit or authorize any
action which will render Kana liable for a violation of the U.S. Foreign
Corrupt Practices Act, which prohibits the offering, giving or promising
to offer or give, directly or indirectly, money or anything of value to
any official of a government, political party or instrumentality thereof
in order to assist it or Kana in obtaining or retaining business. APM will
not violate such act in connection with the sale or distribution of Kana
Products and/or services. APM will notify Kana in writing if any of its
owners, partners, principals, officers, and employees are or become during
this term of this Agreement officials, officers or representatives of any
government or political party or candidates for political office.
20. Limited Warranties
a. Limited Software Warranty. Kana warrants that, for a period of sixty
(60) days from the date of delivery of the Software to
End-Customers., (a) the Software will perform substantially in
accordance with the accompanying printed materials, and (b) the
medium upon which the Software
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is provided by Kana to End-Customer shall be free from defects in
material and workmanship under normal use. This warranty covers
only problems reported to Kana during the warranty period.
b. Warranty Tracking. It is APM's obligation to to track Software
warranties for its End-Customers. Kana assumes no responsibility to
monitor or inform APM of the tracking or expiration of applicable
warranties for Software sold or licensed by APM; such responsibility
is solely that of APM.
c. Exclusions From Warranties. KANA DOES NOT WARRANT THAT THE OPERATION
OF ANY SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. THE LIMITED
WARRANTIES PROVIDED HEREIN ARE NON-TRANSFERABLE, CONTINGENT UPON THE
PROPER INSTALLATION AND USE OF THE RESPECTIVE SOFTWARE IN ACCORDANCE
WITH KANA'S SPECIFICATIONS, AND SUBJECT TO ALL LIMITATIONS AND
RESTRICTIONS SET FORTH HEREIN. THESE WARRANTIES DO NOT APPLY TO ANY
SOFTWARE THAT (i) IS IN AN OPERATING ENVIRONMENT THAT DOES NOT
COMPLY WITH KANA'S PREVIOUSLY PUBLISHED SPECIFICATIONS; (ii) HAS
BEEN REPAIRED OR MODIFIED BY PERSONS OTHER THAN KANA OR ITS
AUTHORIZED TECHNICIANS; OR (iii) HAS BEEN DAMAGED OR RENDERED
UNSERVICEABLE BY IMPROPER MAINTENANCE, ABUSE OR NEGLIGENCE ON THE
PART OF OTHERS THAN KANA.
d. Limited Remedies Under Warranties. Subject to the restrictions and
limitations contained herein, and within the applicable warranty
period, Kana shall, at its sole option, repair or replace defective
or nonconforming Software or components thereof; provided however,
that Kana is notified in writing of the defect or nonconformity
within the applicable warranty period. All replaced Software or
components thereof shall become Kana's property. THIS LIMITED REMEDY
CONSTITUTES APM'S SOLE AND EXCLUSIVE REMEDY UNDER THE LIMITED
WARRANTIES.
e. Disclaimer of Other Warranties. THE EXPRESS WARRANTIES SET FORTH
HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE
HEREBY SPECIFICALLY DISCLAIMED.
21. Indemnification.
a. APM agrees, at its own expense, to defend or, at its option, to
settle, any claim or action brought against Kana to the extent it is
based on a claim that (i) APM has intentionally or recklessly
misrepresented the Product, or (ii) an APM product as used within
the scope of the license granted by APM infringes or violates any
patent, copyright, trademark, or trade secret of a third party, and
will indemnify and hold Kana harmless from and against any damages,
costs and fees reasonably incurred (including reasonable attorneys'
fees) that are attributable to such claim or action or which are
assessed against Kana in a final judgment. Kana agrees that APM
shall be released from the foregoing obligation unless Kana provides
APM with: (i) prompt written notification of the claim or action
provided that failure to provide such notice will relieve APM of its
obligation only to the extent prejudiced thereby.; (ii) sole control
and authority over the defense or settlement thereof; and (iii) all
reasonably available information, assistance and authority to settle
and/or defend any such claim or action. Notwithstanding the
foregoing, APM shall have no liability hereunder based on (i) use of
a superseded or modified release of the APM product, except for such
alteration(s) or modification(s) which have been made by APM or
under APM's direction, if such infringement would have been avoided
by the use of a current unaltered release of the Software that Kana
has provided to Customer, or (ii) the combination, operation, or use
of any APM product with programs not furnished by APM if such
infringement would have been avoided by the use of the APM product
without such programs.
b. Kana agrees, at its own expense, to defend or, at its option, to
settle, any claim or action brought against APM to the extent it is
based on a claim that the Software or Product as used within the
scope of this Agreement infringes or violates any patent, copyright,
trademark, or trade secret of a third party, and will indemnify and
hold APM harmless from and against any damages, costs and fees
reasonably incurred (including reasonable attorneys' fees) that are
attributable to such claim or action
Page 9 of 14
<PAGE> 10
or which are assessed against APM in a final judgment. APM
agrees that Kana shall be released from the foregoing
obligation unless APM provides Kana with: (i) prompt written
notification of the claim or action provided that failure to
provide such notice will relieve Kana of its obligation only
to the extent prejudiced thereby; (ii) sole control and
authority over the defense or settlement thereof; and
(iii) all reasonably available information, assistance and
authority to settle and/or defend any such claim or action.
Notwithstanding the foregoing, Kana shall have no liability
hereunder based on (i) use of a superseded or modified release
of the Software, except for such alteration(s) or
modification(s) which have been made by Kana or under Kana's
direction, if such infringement would have been avoided by the
use of a current unaltered release of the Software that Kana
has provided to Customer, or (ii) the combination, operation,
or use of any Software furnished under this Agreement with
programs not furnished by Kana if such infringement would have
been avoided by the use of the Software without such programs.
In the event that an injunction is obtained against APM
prohibiting use of the Software by reason of Kana's
infringement of a patent, copyright or other intellectual
property right of any third party, Kana will, at its option
and expense, either (a) secure for APM the right to continue
using the Software; (b) replace or modify the Software to make
it non-infringing; or (c) direct APM to discontinue using the
Software, and provide APM with a refund of the fees paid
therefore, prorated over a five (5) year period from the
Effective Date.
c. THE FOREGOING INDEMNITIES REPRESENT THE SOLE REMEDY FOR EACH
INDEMNIFIED PARTY WITH RESPECT TO THE MATTERS COVERED BY SUCH
INDEMNITIES.
22. Limitation of Liability. EXCEPT FOR CLAIMS ARISING UNDER SECTION 21,
NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF THE PARTIES AND
THEIR SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE SHALL BE LIMITED TO THE
MONEY PAID TO KANA UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH
PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY.
THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. IN NO
EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, OR ANY
OTHER INDIRECT DAMAGES, WHETHER ARISING IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH PARTY OR ITS SUPPLIERS HAVE BEEN
INFORMED OF THE POSSIBILITY THEREOF.
23. Notices. All notices required or permitted under this Agreement will be in
writing and will be deemed given: (a) when delivered personally; (b) when
sent by confirmed facsimile (followed by the actual document in air
mail/air courier); (c) three (3) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid (or six (6)
days for international mail); or (d) one (1) day after deposit with a
commercial express courier specifying next day delivery (or two (2) days
for international courier packages specifying 2-day delivery), with
written verification of receipt. All communications will be sent to the
addresses set forth on the cover sheet of this Agreement or such other
address as may be designated by a party by giving written notice to the
other party pursuant to this paragraph.
24. General.
a. Choice of Law. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the
State of Delaware, United States of America as if performed wholly
within the state and without giving effect to the principles of
conflict of law. The parties specifically disclaim the UN Convention
on Contracts for the International Sale of Goods.
b. No Waiver. No waiver of rights under this Agreement by either party
shall constitute a subsequent waiver of this or any other right
under this Agreement.
c. Assignment. Neither this Agreement nor any rights under this
Agreement, other than monies due or to become due, shall be assigned
or otherwise transferred by either party (by operation of law or
otherwise) without the prior written consent of the other party.
This Agreement shall bind and inure to the benefit of the successors
and permitted assigns of the parties.
Page 10 of 14
<PAGE> 11
d. Severability. In the event that any of the terms of this Agreement
become or are declared to be illegal or otherwise unenforceable by
any Court of competent jurisdiction, such term(s) shall be null and
void and shall be deemed deleted from this Agreement. All remaining
terms of this Agreement shall remain in full force and effect.
e. Attorneys' Fees. In any suit or proceeding relating to this
Agreement, the prevailing party will have the right to recover from
the other its reasonable costs and reasonable fees and expenses of
attorneys, accountants, and other professionals incurred in
connection with the suit of proceeding, including costs, fees and
expenses upon appeal, separately from and in addition to any other
amount included in such judgment. This provision is intended to be
severable from the other provisions of this Agreement, and shall
survive and not be merged into any such judgment.
f. No Agency. This Agreement does not create any agency, partnership,
joint venture or franchise relationship. Neither party has the right
or authority to, and shall not, assume or create any obligation of
any nature whatsoever on behalf of the other party or bind the other
party in any respect whatsoever.
g. During the term of this Agreement, neither party shall, directly or
indirectly, solicit to hire any employee of the other party that is
involved in the integration, implementation and other worked
associated with this Agreement, except with the prior written
consent of such other party; provided, however, that neither party
shall be prevented from (i) soliciting to hire employees through
classified advertising or (ii) hiring any employee of the other so
long as such hiring was not initially solicited, directly or
indirectly, by the proposed hiring party.
h. Survival. Sections 3.a, 13, , 15.e, , 21, 22, 23 and 24 shall
survive the termination of this Agreement.
i. Sole Agreements. This Agreement, the Kana SLA and the ServiceWare
SLA represent the complete agreement between the parties hereto
concerning the subject matter of this Agreement, the Kana SLA and
the ServiceWare SLA and replaces any prior oral or written
communications between the parties. There are no conditions,
understandings, agreements, representations, or warranties,
expressed or implied, which are not specified herein. This Agreement
may only be modified by a written document executed by the parties
hereto. Any orders accepted or Products delivered by Kana after the
date of this Agreement is signed by APM but before the Effective
Date, shall upon the Effective Date be deemed covered by the terms
and conditions of this Agreement, except for any deviations in
price.
Page 11 of 14
<PAGE> 12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed. Each party warrants and represents that its respective signatories
whose signatures appear below have been and are on the date of signature duly
authorized to execute this Agreement.
Kana Communications, Inc. ("Kana") Serviceware Technologies, Inc. ("APM")
/s/ Franklin P. Huang /s/ Mark Finkel
---------------------------------- --------------------------------------
Authorized Signature Authorized Signature
Franklin P. Huang Mark Finkel
---------------------------------- --------------------------------------
Name Name
September 22, 2000 September 22, 2000
---------------------------------- --------------------------------------
Date Date
Kana Communications, Inc. Serviceware Technologies, Inc.
740 Bay Road 333 Allegheny Avenue
Redwood City, CA 94063 Oakmont, PA 15139
Attention: General Counsel Attn: Corporate Counsel
Facsimile: (650) 474-8507 Facsimile: (412) 826-0577
Page 12 of 14
<PAGE> 13
Schedule A
Payments and Royalties
KANA PRODUCT
Products Covered. Only the Kana Response product is available under the terms of
this OEM Agreement. Upon signing, Kana shall promptly provide ServiceWare with a
Master Disk of the Kana Response product from which ServiceWare may make
additional copies for use under the terms of this Agreement. License keys shall
be requested separately from Kana pursuant to a process to be established
between the parties.
Provided ServiceWare is current on maintenance and support payments,
Kana shall provide additional Master Disks shortly after updates to the
applicable Kana Product are made generally available.
OEM PRICING AND PAYMENT
1. QUARTERLY ROYALTY. Within seven (7) days following the end of each
calendar quarter beginning with the quarter ended September 31, 2000,
ServiceWare shall pay Kana a royalty (the "Quarterly Royalty") equal to [*]
percent ([*]%) of the gross license revenue, as recognized in accordance with
ServiceWare's then standard accounting procedures, for the eService Suite
product line (and excluding other product lines such as RightAnswers.com) of
ServiceWare for the quarter just ended (the "ServiceWare Gross License
Revenue"). The Quarterly Royalty shall be calculated as follows:
Quarterly Royalty = [*]% times (ServiceWare Gross License Revenue minus
[*])
(The definition of [*] is set forth below under "Seat Limitation/[*])
Such Quarterly Royalty shall be accompanied by a report detailing the
amounts of all transactions involving Kana and Bundled Products to support the
Quarterly Royalty calculation, including the quantities and pricing and
application of the Initial and other guaranteed Orders, and such other
information as Kana may reasonably request.
II. SEAT LIMITATION/ [*]. Except as set forth in this Section II,
ServiceWare may not sublicense or otherwise distribute more than [*] seats of
any Kana Product to any single End-Customer. In order to accommodate any
End-Customer that desires more than [*] seats of any Kana Product, the following
pricing shall apply:
a. For each additional seat above [*] for any End-Customer ("[*]"),
ServiceWare shall pay to Kana a royalty equal to [*] percent ([*]%) of the then
applicable territorial list price for the seat (the "[*]"). Such payment shall
be made no later than the earlier of (i) forty-five (45) days after the
draw-down of the seats from Master Disk and (ii) the date of payment of the
Quarterly Royalty in which such seats are reflected.
b. "[*]" shall mean the revenue that ServiceWare recognizes from the
sublicense of the applicable [*]; provided however, that in calculating the [*],
any discounts or premiums applied to the [*] shall be consistent with other
discounts/premiums provided to the applicable End-Customer.
III. MINIMUM COMMITMENT. ServiceWare agrees that Kana shall receive at
least $[*] in revenue under this Agreement on or prior to June 15, 2001 (the
"Minimum Commitment").
Page 13 of 14
<PAGE> 14
A. INITIAL ORDER. Effective the signing of this OEM Agreement,
ServiceWare hereby orders $[*] of Kana Products under the
Master Disk. Such $[*] shall be non-refundable (except as
expressly set forth in the Agreement) and shall be paid
immediately upon signing. This Initial Order may be used by
ServiceWare to satisfy any End-Customer orders (whether a
Quarterly Royalty order or a [*] order) for a period of twelve
(12) months following the effective date of the Initial Order,
and shall be credited against any Quarterly Royalty or a [*]
due for orders placed within such twelve months.
B. SECOND ORDER. Effective June 15, 2001, ServiceWare hereby
orders $[*] Kana Products under the Master Disk. Such $[*]
shall be non-refundable (except as expressly set forth in the
Agreement) and shall be paid on June 15, 2001. This Second
Order may be used by ServiceWare to satisfy any End-Customer
orders (whether a Quarterly Royalty order or a [*] order) for
a period of twelve (12) months following the effective date of
the Second Order, and shall be credited against any Quarterly
Royalty or a [*] due for orders placed within such twelve
months.
IV. SUPPORT FEES.
ServiceWare agrees to provide Level 1 and 2 support to End-Customers.
Kana shall provide Level 3 support as well as updates and upgrades are provided
under this OEM Agreement in accordance with the "Support Schedule.". The fees
("Support Fees") for such maintenance and support services shall equal [*]
percent ([*]%) of the royalties, calculated and paid as follows:
1. For the Initial Order, a Support Fee equal to [*]% of the
Initial Order (ie, $[*]) shall be due with thirty (30) days of
the Initial Order. Such Support Fee shall cover support for
the Initial Order from the Effective Date through December 31,
2001.
2. For the Second Order, a Support Fee equal to [*]% of the $[*]
Order prorated for the remainder of 2001 (i.e. $[*]) shall be
paid within thirty (30) days of the Second Order and shall
cover support through December 31, 2001.
3. To the extent that the prepaid licenses are exceeded and
additional licenses are required the same mechanism will apply
whereby Kana will provide 90 days at no charge and then bill
at a prorated amount until the end of the Initial Term of
December 31, 2001.
After December 31, 2001, should the parties agree to extend or renew the
Agreement, Serviceware can renew maintenance for the entire amount of licenses
purchased at the rate of [*]% annually.
Page 14 of 14
<PAGE> 15
[KANA COMMUNICATIONS, INC. LOGO]
KANA COMMUNICATIONS, INC.
MASTER SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is effective as of ______________,
200__ ("Effective Date"), and is made by and between: KANA COMMUNICATIONS, INC.,
a Delaware corporation , with its principal place of business at 740 Bay Road,
Redwood City, California 94063 ("KANA") and, SERVICEWARE TECHNOLOGIES, INC., a
Delaware corporation, with its principal offices at 333 Allegheny Avenue,
Oakmont, Pennsylvania, 15139 ("CUSTOMER").
Whereas, Customer wishes to obtain a license to use the software product
identified in Schedule A and associated documentation provided by Kana under
this Agreement (collectively, the "Software"); the parties agree as follows:
1. License.
a. Subject to the terms of this Agreement, and upon execution by Customer of
this Agreement and an Order, Kana grants to Customer a nonexclusive,
perpetual (except as provided in Section 8 of this Agreement),
nontransferable, nonsublicensable, license to allow the maximum number of
Users to access and use the Software solely for Customer's business
operations in the designated Territory and only in accordance with the
standard documentation supplied with the Software by Kana or as otherwise
agreed to by the parties , subject to Schedule A.
b. User means each unique person or automated program that is enabled to
access the Software. Territory shall be the United States unless otherwise
specified in Schedule A. Order means the document substantially in the form
of Schedule D hereto, by which Customer orders Software, Maintenance,
Support, and/or Services, which shall be in a form of an addendum to this
Agreement and signed by both Customer and Kana.
c. Upon execution by Kana and Customer of additional Orders, and subject to
Customer being in compliance with its obligations under this Agreement,
Customer agrees to pay the additional License Fee and Maintenance Fees
therefor, and Kana agrees to license additional Software to Customer, or to
increase the maximum number of Users authorized for any particular
Software. The prices set forth on Schedule A expire as set forth on
Schedule A.
2. Ownership of Software. As between the parties, title to and ownership of the
Software, all proprietary rights therein, any accompanying printed materials and
all copies and portions thereof shall be and at all times remain in Kana and its
third party licensors. The Software and accompanying printed materials are
protected by copyright, trademark and trade secret laws and international treaty
provisions. Nothing in this Agreement shall grant to Customer any ownership or
title to the Software.
3. Customer Obligations. Customer agrees that it shall not, nor shall it permit
any third party to, (a) distribute, rent, sell or otherwise transfer the
Software to any third party, provided that Customer may allow its third party
consultants to use the Software solely to support Customer's use of the Software
as provided herein, but only to the extent such consultants have executed an
agreement with Customer which provides at least as much protection for Kana as
the terms of this Agreement; (b) use the Software for the benefit of any third
party in a service bureau or outsourcing capacity; (c) reverse assemble, reverse
compile or reverse engineer the Software, or otherwise attempt to discover any
Software source code or underlying Proprietary Information (as defined below);
(d) remove, efface or obscure any copyright notices, logos or other proprietary
notices or legends in the Software (whether Kana's or its third party partners)
or from any Kana materials; (e) export or re-export, or allow the export or
re-export of any Proprietary Information (as defined below) or any copy or
direct product thereof in violation of any restrictions, laws or regulations;
(f) copy the Software except as expressly permitted in this Agreement for
Customer's use and for a reasonable number of copies of the Software for
Customer's non-production back-up or archival purposes; or (g) use the Software
for delivering UCE. "UCE" means any unsolicited commercial electronic mail
message that was sent without the recipient previously registering with or
transacting with the sender. Customer shall comply with all applicable laws and
restrictions and
<PAGE> 16
regulations of the United States or any foreign agency or authority.
4. Confidentiality. Each party acknowledges that, during the term of this
Agreement, it (the "Receiving Party") may receive from or on behalf of the other
party (the "Disclosing Party"), information relating to the Disclosing Party
("Proprietary Information"). Such Proprietary Information shall belong solely to
the Disclosing Party and includes, but is not limited to, the terms of this
Agreement (but not the existence of this Agreement), trade secrets and other
technical, business, product, computer programs, marketing and financial
information, development plans and any data not previously known that should
reasonably be considered confidential or proprietary. The Software shall be
deemed Kana's Proprietary Information. During and after the term of this
Agreement, the Receiving Party shall: (i) not use (except as expressly
authorized by this Agreement) or disclose Proprietary Information without the
prior written consent of the Disclosing Party; (ii) take all reasonable measures
to maintain the Proprietary Information in confidence; and (iii) disclose
Proprietary Information only to those of its employees and consultants who have
a confidentiality obligation in writing to the Receiving Party and who are
necessary for the use expressly licensed hereunder. Proprietary Information
shall not include information that: (i) becomes public without breach of this
Agreement by the Receiving Party, its officers, directors, employees or agents;
(ii) was previously in the Receiving Party's possession (in written or other
recorded form) with no obligation to maintain confidentiality; (iii) was
received from a third party not under any obligation of confidentiality to the
Disclosing Party; or (iv) was developed by the Receiving Party's employees,
agents, contractors, and/or representatives independently of, and without
reference to, any Proprietary Information.
5. Services. Kana may provide professional services including customizations,
modifications, or additions to the Software (as provided in a Statement of Work
("SOW"), agreed to in writing by the parties) training (as described in Schedule
C hereto) and installation for the Software (collectively, the "Services").
Services may be amended from time to time by mutual agreement of the parties on
a written request ("Change Request"). To the extent that any work of authorship,
or invention derived from or directly relating to the Software is developed in
the course of performance under this Agreement either party ("Work Product")
Customer shall own such Work Product provided however that (i) Customer grants
to Kana an unlimited, world-wide permanent, irrevocable, royalty-free, fully
paid-up license to such Work Product (except to the extent that Work Product
includes any technology of Customer not acquired from Kana under this
Agreement); (ii) Customer agrees not to raise any claim or action against Kana
for the infringement of any rights of Customer in such Work Product(except to
the extent that Work Product includes any technology of Customer not acquired
from Kana under this Agreement); and (iii) to the extent that such Work Product
contains or reflects any Proprietary Information of Kana, Customer shall treat
such Work Product as Proprietary Information of Kana and not disclose such Work
Product to any third party. Notwithstanding anything to the contrary in this
Section 5, the provisions of this Section 5 shall not extend to any output,
reports or campaigns created, any screen modifications or rules established by
Customer in using the Software. Kana warrants that, for a period of thirty (30)
days from the date of delivery to Customer of any Work Product that such Work
Product will conform to the specifications provided in the relevant SOW.
Warranty support for any Work Product, will be provided by the Kana Consulting
group, and will be available only during regular business hours.
6. License Fee; Payment; Audit. Customer shall pay the license fee for the
Software licensed in an Order as set forth in Schedule A hereto ("License Fee").
Customer shall pay the fee for any Services provided as set forth in an Order as
set forth in Schedule A hereto("Services Fee"). Customer shall reimburse Kana
for all reasonable out-of-pocket expenses actually incurred by Kana in
performance of the installation and training services. Unless otherwise provided
herein, fifty percent (50%) of all payments of all License Fees, Services Fees
and expenses are due and payable immediately upon the execution of the
applicable Order, and the remaining fifty percent (50%) is due and payable
thirty (30) days after the date of Kana's invoice. All payments hereunder shall
be made in U.S. Dollars in the United States. All such Fees are non-refundable
and are exclusive of shipping, taxes, duties and the like, which shall be paid
by Customer. All late payments shall be assessed a service charge of 1.5% per
month to the extent allowed by law. Customer shall keep, maintain and preserve
accurate records relating to Customer's obligations hereunder. Such records
shall be maintained as confidential, but shall be available for inspection and
audit as provided herein. Kana shall have the right upon, five days prior
written notice, to have an independent auditor examine Customer's relevant,
records and use of the Software for the purpose of verifying Customer's
compliance with its obligations under this Agreement. Kana shall pay the fees
and expenses of the auditor for the examination; provided that should any
examination disclose a greater than five percent (5%) shortfall in the payments
due Kana for the period being audited, Customer shall pay the reasonable fees
and expenses of the auditor for that examination.
Page 2 of 5
<PAGE> 17
7. Maintenance. Maintenance for the Software, and all upgrades and new versions
thereof, shall be provided to Customer pursuant to the Maintenance terms set
forth in Schedule B hereto.
8. Termination. The license granted herein is effective unless terminated as
provided in Schedule A or as otherwise terminated herein:
a. Termination by Customer. Customer may terminate this Agreement at any time
upon written notice to Kana, provided that such termination will not limit
Customer's payment obligations hereunder to the extent arising prior to
such termination.
b. Termination by Kana. Kana may terminate this agreement if Kana determines
that (i) Customer has materially breached the terms of this Agreement; and
(ii) Customer fails to cure that breach within thirty (30) days of Kana's
notice to Customer. Notwithstanding the foregoing, Kana may immediately
terminate this Agreement if it is determined that Customer has failed to
materially comply with the terms and conditions Sections 3 (c) or 4 of this
Agreement.
c. Effect of Termination. Upon termination of this Agreement, all licenses and
rights granted hereunder shall terminate, Customer will cease all use of
the Software, and Customer shall immediately return to Kana, the Software,
all duplicates, and any Proprietary Information, together with any and all
documents, notes and other materials relating to the Software, including,
without limitation, all copies and extracts of the foregoing and all
documentation and copies thereof, along with a signed written statement
certifying that Customer has returned to Kana, and is no longer in
possession of, any Software, duplicates, related documentation or any
copies, portions or derivatives of any of the foregoing. Upon termination,
Sections 2, 3, 4, , 5, 6, 8.c, 10, 13, and 14 will otherwise survive and
remain in effect.
9. Warranties.
a. Software Warranty. Kana warrants that, for a period of sixty (60) days from
the date of each Order (i) the Software identified in such Order will
materially perform in accordance with the accompanying documentation; (ii)
the medium upon which the Software is provided by Kana to Customer shall be
free from defects in material and workmanship under normal use; and (iii)
the Software is designed to be used prior to, during, and after the year
2000 and that it will operate during such time periods without error
relating to date data which represent or reference different centuries or
more than one century. Notwithstanding the foregoing, Customer acknowledges
and agrees that the Software does not identify or remedy Year 2000 problems
in third party operating systems or other applications not included in the
Software and that the Software operates with the date information it
receives. The foregoing Year 2000 Compliance Warranty shall not apply to
Year 2000 problems caused by such external sources. Customer's sole and
exclusive remedy for any breach of the foregoing Warranty shall be to have
Kana modify such Software to correct the defect giving rise to such breach
within a reasonable period, not to exceed an additional sixty (60) days
from Kana's receipt of written notification of such defect from Customer
("Cure Period"). If, within said Cure Period, Kana determines that it is
unable to modify the defective Software in such a way as to correct said
defect, then Kana may terminate the License of such Software Product by
giving written notice thereof to Customer within ten (10) days following
the end of the Cure Period. In such event, Customer shall be entitled to a
refund, upon the return of the Software to Kana, of any License Fee paid by
Customer for such Software together with any unused, prepaid Maintenance
Fees paid by Customer to Kana for such Software Products. Customer is not
entitled to receive updates, releases and new versions of the Software
under Kana's warranty obligations hereunder
b. Disclaimer. EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE AND ANY RELATED
SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE,
NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Remedies and Damages. ANY LIABILITY OF KANA WILL BE LIMITED TO
PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE OR IS IMPRACTICAL, TO
REFUND OF THE LICENSE AND MAINTENANCE FEES. NEITHER PARTY SHALL BE RESPONSIBLE
OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND
CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR
Page 3 of 5
<PAGE> 18
ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO
LOSS OF REVENUES, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OR INACCURACY OF
DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SOFTWARE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY'S LIABILITY EXCEED
THE AMOUNT PAID BY CUSTOMER FOR THE SOFTWARE. THE FOREGOING IS NOT HOWEVER
INTENDED TO LIMIT THE LIABILITY OF EITHER PARTY ARISING AS A RESULT OF, (a) THE
NEGLIGENT ACTS OF EMPLOYEES OF SUCH PARTY WHICH ARE UNRELATED TO THE USE OR
PERFORMANCE OF THE SOFTWARE PRODUCT, AND WHICH RESULT IN PERSONAL INJURY OR
PROPERTY DAMAGE, OR (b) THE BREACH OF EITHER PARTY'S CONFIDENTIAL OR PROPRIETARY
INFORMATION, INTENTIONAL OR OTHERWISE, WHICH IS DETERMINED TO BE INCURABLE.
Because some jurisdictions do not allow the exclusion or limitation of liability
of consequential or incidental damages, the above limitation may not apply.
11. Government Use. If Customer is a unit or agency of the government, or
acquiring the Software with government funds, the software and documentation are
provided subject to Kana's standard commercial license; provided, however, that
for any contracts with non-defense agencies subject to the FAR, the Government
shall have the rights set forth in subparagraph (c) of FAR 52.227-19,
"Commercial Computer Software-Restricted Rights," as applicable.
12. Intentionally omitted.
13. Equitable Relief. Each party acknowledges and agrees that due to the unique
nature of the other Party's Proprietary Information, there may be no adequate
remedy at law for any breach of its obligations hereunder, that any such breach
may allow Customer or third parties to unfairly compete with Kana resulting in
irreparable harm to Kana and, therefore, that upon any such breach or threat
thereof, Kana shall be entitled to seek injunctions and other appropriate
equitable relief, in addition to whatever remedies it may have at law.
14. Miscellaneous. This Agreement is not assignable or transferable by Customer,
and any such attempted assignment or transfer shall be void and without effect.
This Agreement shall become effective as of the Effective Date and only upon its
execution by both Kana and Customer. Each party will be and act as an
independent contractor and not as an agent or partner of, or joint venturer
with, the other party for any purpose related to this Agreement or the
transactions contemplated by this Agreement, and neither party by virtue of this
Agreement will have any right, power or authority to act or create any
obligation, expressed or implied, on behalf of the other party. This Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware without regard to the conflicts of law provisions thereof and without
regard to the United Nations Convention on the International Sales of Goods.
Venue for proceedings initiated against Kana shall be in San Mateo County,
California, and venue for proceedings initiated against Customer shall be
Allegheny County, Pennsylvania. In any action to enforce this Agreement the
prevailing party will be entitled to costs and attorneys' fees. Any notice
required or permitted hereunder shall be in writing and will be deemed to have
been effectively given: (i) immediately upon personal delivery or facsimile
transmission to the parties to be notified, (ii) one (1) day after deposit with
a commercial overnight courier with tracking capabilities, or (iii) three (3)
days after deposit with the United States Postal Service, by registered or
certified mail, postage prepaid to the respective addresses of the parties as
set forth above. The waiver by either party of a breach of this Agreement or any
right hereunder shall not constitute a waiver of any subsequent breach of this
Agreement; nor shall any delay by either party to exercise any right under this
Agreement operate as a waiver of any such right. If any provision of this
Agreement shall be adjudged by any court of competent jurisdiction to be
unenforceable or invalid, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable. This Agreement constitutes the entire
agreement between the parties hereto related to the subject matter hereof, and
any and all written or oral agreements are expressly cancelled. Any
modifications of this Agreement must be in writing and signed by both parties
hereto. Invoices, acknowledgements, purchase orders and other similar documents
relating to products or services subject to this Agreement shall be binding only
with respect to quantities ordered, the particular type of products or services
ordered. Pre-printed purchase order terms and any other additional terms, and
any terms in conflict with this Agreement, shall be void and of no effect.
Notwithstanding anything else to the contrary in this Agreement, neither party
shall be responsible for any matter beyond its reasonable control.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
Page 4 of 5
<PAGE> 19
KANA COMMUNICATIONS, INC.
By __________________________________
_____________________________________
Name (Print)
_____________________________________
Title
CUSTOMER
By _________________________________
_____________________________________
Name (Print)
_____________________________________
Title
Page 5 of 5
<PAGE> 20
[KANA COMMUNICATIONS, INC. LOGO]
SCHEDULE B
KANA COMMUNICATIONS, INC. MAINTENANCE SUPPORT TERMS
Kana Communications, Inc. ("Kana") will provide Maintenance Support (as
described below) for the Software (licensed in Schedule A to Customer's Software
License Agreement).
1. SUPPORT
Kana shall make available the following Maintenance Support for the Software to
Customer upon payment by Customer to Kana of the associated Maintenance Fee.
Maintenance Support shall include (i) World Wide Web based support to cause the
Software to perform in accordance with its documentation in all material
respects, (ii) telephone support services for diagnosis of problems or
performance deficiencies of the Software and cause the Software Product(s) to
perform in accordance with the documentation in all material respects, available
to Customer during Kana's normal business hours, defined as 6:00 AM through 6:00
PM pacific time (excluding holidays and weekends), (iii) distribution of
upgrades and bug fixes as are distributed generally by Kana at no additional
charge to Kana's other software maintenance customers for such Software, and
(iv) Kana will use diligent efforts to cure, as described below, reported and
reproducible errors in the Software. Kana utilizes the following four (4)
severity levels to categorize reported problems:
SEVERITY 1 CRITICAL BUSINESS IMPACT
The impact of the reported deficiency is such that the Customer is unable to
either use the Software or reasonably continue work using the Software. Kana
will commence work on resolving the deficiency within one (1) hour of
notification and will engage staff continuously until a resolution is achieved.
SEVERITY 2 SIGNIFICANT BUSINESS IMPACT
The impact of the reported deficiency is such that important features of the
Software are not working properly while other areas of the Software are not
impacted, and such deficiency has created a significant, negative impact on the
Customer's productivity or service level. Kana will commence work on resolving
the deficiency within two (2) hours of notification and will engage staff during
business hours until an acceptable resolution is achieved.
SEVERITY 3 SOME BUSINESS IMPACT
The impact of the reported deficiency is such that important features of the
Software are unavailable, but an alternative solution is available or
non-essential features of the Software are unavailable with no alternative
solution. The customer impact, regardless of product usage, is minimal loss of
operational functionality or implementation resources. Kana will commence work
on resolving the deficiency within one (1) business day of notification and will
engage staff during business hours until an acceptable resolution is achieved.
SEVERITY 4 MINIMAL BUSINESS IMPACT
The impact of the reported deficiency is such that Customer submits a Software
information request, software enhancement or documentation clarification which
has no operational impact. The implementation or use of the Software by the
Customer is continuing and there is no negative impact on productivity. Kana
will provide an initial response regarding the request within one (1) business
day.
With respect to severity one (1) reported deficiencies, Kana may, with the
concurrence of the Customer, elect to send senior support or development staff
to the Customer location to accelerate problem resolution. Kana will be
responsible for the costs associated with this escalated problem resolution if
the problem is determined to be related to supported Software. Kana may, in its
sole discretion, offer 24x7 Premium Support for any Software to Customer. In the
event that Customer elects to purchase such Premium Support for any Software,
Customer shall be entitled to receive telephone support for Severity 1 (Critical
Business Impact) problems for such Software 24 hours per day, 365 days per year.
Kana Communications, Inc.
Software Support and Maintenance Terms
Page 1
<PAGE> 21
2. UPGRADES
So long as Customer has met all of its obligations hereunder (including, without
limitation, its obligation to pay the Maintenance Fee for the then current
term), Kana will provide the Customer with patches, updates, releases and new
versions of the Software along with other generally available technical
material. These maintenance materials including the Software may not be used to
increase the licensed number of versions or copies of the Software. The Customer
agrees not to transfer any prior version of the Software to any third party. All
patches, updates, release and new versions shall be considered part of the
Software and shall be subject to the license agreement related to the Software.
Kana shall be responsible only for correcting errors in the Software. Errors
attributable to Kana shall be those that are reproducible by Kana, through the
use of reasonable efforts, on Software that has not been modified or operated in
a manner not approved by Kana. Kana is not required to provide any Maintenance
Support services relating to problems arising out of (i) Customer's failure to
implement supported versions of the Software that are provided to Customer under
this Agreement; (ii)changes to the operating system or environment except as
permitted under the documentation provide with the Software; (iii) any
alterations of or additions to the Software performed by parties other than Kana
or at the direction of Kana; (iv) use of the Software in a manner for which it
was not designed, as set forth in documentation provided with the Software; (v)
accident, negligence, or misuse of the Software by a party other than Kana; (vi)
introduction of data into any database used by the Software by any means other
than the use of the Software; or (vii) use of the Software on equipment or in
connection with third party software other than for which it was designed and
licensed for use on. If it is determined that the problem was not related to the
supported Software, and Customer requests Kana to do further work, then Customer
hereby agrees to pay reasonable travel and lodging expenses in addition to
Kana's standard consulting rates. Unless otherwise agreed to by the parties,
travel time will be charged at consulting rates.
3. CUSTOMER OBLIGATIONS
Customer shall (i) obtain appropriate training for the Software as set forth in
Schedule C; (ii) shall retain a reasonably qualified database administrator
("DBA") and shall ensure that such DBA is trained on the Kana Software; (iii)
shall retain a reasonably qualified system administrator and shall ensure that
such system administrator is trained on the Kana Software and on any third party
products and platforms that are part of the configured environment for the
Software; (iv) have all Designated Contacts (as defined below) trained on the
Kana Software as set forth in Schedule C; and (v) allow Kana remote access to
Customer's computers running the Software solely for the purposes of providing
support and maintenance as provided herein, at times and for durations that are
mutually agreeable to the parties.
4. WARRANTY
Kana will undertake all reasonable efforts to provide technical assistance under
this agreement and to rectify or provide solutions to problems where the
Software does not materially function as described in the Software
documentation, but Kana does not guarantee that the problems will be solved or
that any item will be error-free. These terms are only applicable to Kana
Software running under the environments specified in the release notes for that
product. Kana shall make available Maintenance Support for the then current and
preceding major release of the Software, provided that Kana may discontinue any
Software and stop offering support for any such Software twelve (12) months
after such discontinuance. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, CONDITIONS OR PROMISES TO CUSTOMER OR ANY THIRD PARTY, EXPRESS OR
IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, OR ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM AND
PRACTICE OR TRADE USAGE. EXCEPT AS PROVIDED ABOVE, THE SERVICES AND MAINTENANCE
ARE PROVIDES "AS IS".
5. PAYMENT
Pursuant to the terms of the Software License Agreement, Customer shall pay the
maintenance fee for the Maintenance Support ("Maintenance Fee") as set forth in
Schedule A to the Software License Agreement, provided, however, that the
Maintenance Fee for the initial Maintenance Term for any Software shall be due
and payable with the License Fee for such Software. The Maintenance Fee for each
renewal term shall be at the then current rates for Maintenance Support of the
Software and shall be due on or before the renewal date.
Kana Communications, Inc.
Software Support and Maintenance Terms
Page 2
<PAGE> 22
6. TERM
The Maintenance Term for the Software shall commence on the Effective Date of
the Software License Agreement and shall run for a one (1) year period, with
automatic renewal for one-year periods on each anniversary of the Effective
Date, unless either party provides written notice of termination within sixty
(60) days prior to such anniversary date. Any current Maintenance Term may be
terminated by Kana for non-payment or material breach which continues uncured by
Customer within the cure period outlined in the License Agreement. All
Maintenance Fees paid or due are non-refundable unless Kana has materially
breached the maintenance terms and has failed to cure the breach after 30 days
written notice, in which case the prorated portion of any prepaid unused
Maintenance Fee would be refundable. Termination of Maintenance shall not
terminate Customer's rights to use the Software as provided in the license
Agreement.
7. GENERAL
Times by which Kana will perform under this agreement shall be postponed
automatically to the extent that Kana is prevented from meeting them by causes
beyond its reasonable control. Kana shall have no obligation to respond to
requests for maintenance for Customer from anyone other than the following
Designated Contacts and such requests shall not apply to determining Kana's
response time:
Contact 1
Name:
-------------------------
Telephone #:
-------------------------
E-mail Address:
----------------------
Contact 2
Name:
------------------------
Telephone #:
-------------------------
E-mail Address:
----------------------
During the term of this agreement, the Customer may delete and add Designated
Contacts by sending notification in writing on Customer's letter head and
addressed to Kana's Director of Support. Kana may rely on such notice to make
the change.
Kana Communications, Inc.
Software Support and Maintenance Terms
Page 3
<PAGE> 23
[KANA COMMUNICATIONS, INC. LOGO]
SCHEDULE C
KANA COMMUNICATIONS, INC. TRAINING OPTIONS
THE KANA KNOWLEDGE CENTER
The Kana Knowledge Center offers premier instructional programs. The programs
will be made for the fees provided on Schedule A to the Master License
Agreement, or, if no fees are provided, at Kana's standard training fees.
LEARNING TRACKS
Based on your work experience and responsibility, learning tracks provide a
suggested path for all training participants. Our learning tracks are divided
into five categories, End User, Technical/Environmental, Functional, Developer,
and Architect.
------------------ -------------------------------------------------------------
TRACK TRACK DESCRIPTION
------------------ -------------------------------------------------------------
End User Who is the End User?
An End User or individual who uses Kana products on a daily
basis. For example, the Customer Service Agent who uses Kana
Response to answer email or the Marketing Manager that sends
out direct mail from Kana Connect.
What is the End User Track?
The End User track provides comprehensive training to these
individuals, thereby providing them with the knowledge and
tools to effectively perform their job.
------------------ -------------------------------------------------------------
Functional Who is the Functional User?
The Functional User is typically the individual who performs
analysis and solution design. The Functional User will
receive a strong understanding of the product and all
administration and configuration associated to that product.
They will also learn the product workflow and content design.
What is the Functional Track?
Understanding an organization's business environment and how
the Kana solution can support and improve the organization,
is the main objective behind the Functional track. Through
these courses, Functional Users will learn to design and
implement an efficient and effective solution for their
clients.
------------------ -------------------------------------------------------------
Technical/ Who is the Technical User?
Environmental Technical Users will learn how to prepare the environment for
an install as well as complete the installation and
configuration of all administration modules. They will also
learn how to handle system-related administration, including
modifying registry keys, server parameters, and settings. The
Technical User should be familiar with the OS, Internet
protocols, database administration, and SQL.
What is the Technical Track?
A well-trained Technical User will optimize system
performance and processing, thereby reducing costs resulting
from poor system performance. In addition, as your business
grows and changes the Technical User will be become an
invaluable asset when your solution requires advanced
configuration. The technical track will provide the knowledge
and tools necessary to conduct this level of support.
------------------ -------------------------------------------------------------
Developer Who is the Developer?
The Developer is typically called the Integrator or the
Applications Developer. The Developer will learn to develop
and implement integration scenarios and customization models
on the Kana product.
The Application Developer should have extensive experience
with a programming language like Java, Visual Basic, or C++.
Knowledge of Active Server Pages is also important. In
addition, they should be comfortable with SQL as well as
database applications, including the use of Views.
What is the Developer Track?
Training provided through the Developer track prepares the
Developer to extend the product functionality through
customizations and integration to best suit an organization's
unique business requirements.
------------------ -------------------------------------------------------------
Architect Who is the Architect?
The architect will provide system design plans and project
scope. The architect should have several years of development
experience, as well as expertise in project management and
application scope and design. They should have a good
understanding of all underlying technologies.
What is the Architect Track?
By providing extensive, diverse training on all aspects of
the product, this track will provide the architect with the
knowledge to design an integrated and customized Kana
Solution.
------------------ -------------------------------------------------------------
<PAGE> 24
COURSES
----------------------------- --------------------------------------------------
COURSE BY KANA PRODUCT COURSE DESCRIPTION
----------------------------- --------------------------------------------------
KANA RESPONSE
----------------------------- --------------------------------------------------
Installation, This is the core module for understanding Kana
Configuration & Response from a technical perspective and having
Troubleshooting the ability to install, configure, and
troubleshoot the solution.
Appropriate audience: Technical/Environmental and
Architect
----------------------------- --------------------------------------------------
Kana Data Model Understanding the Kana Data Model is critical for
reports administrators as well as administrators
needing to access data directly from our database.
This course provides a detailed look at our data
model, including foreign key relationships, views,
and stored procedures.
Appropriate audience: Technical/Environmental,
Architect, and Developer
----------------------------- --------------------------------------------------
Developing Your Content Providing a methodology on content and workflow
development is key to a successful implementation.
This course describes the information gathering
process consultants will complete with customers
that will provide them with a highly effective
solution for their particular business needs.
Appropriate audience: Functional and Architect
----------------------------- --------------------------------------------------
End User Train the For partners that will be conducting end user
Trainer training as part of the implementation, we
provide train-the-trainer programs that enable you
to conduct various aspects of training as part of
the implementation. In addition, we provide
various tools and resources that partners can use
while conducting this training. The
train-the-trainer program is handled on an onsite,
customized basis only.
Appropriate audience: Functional
----------------------------- --------------------------------------------------
CSR Web-based Training Agent Training provides CSRs and other end users
the skills necessary to use our client
applications to answer email. This application is
available in a WBT on our website.
Appropriate audience: End User
----------------------------- --------------------------------------------------
KANA CLASSIFY
----------------------------- --------------------------------------------------
Building & Deploying a This course discusses all aspects involved with
Model implementing the Kana Classify advanced automation
technology. It covers pre-installation issues, the
building of Kana Classify models, using Kana
Classify with the Rules Engine, and advanced
debugging techniques.
Appropriate audience: Technical/Environmental,
Architect, and Developer
----------------------------- --------------------------------------------------
KANA FORMS
----------------------------- --------------------------------------------------
Installation, To obtain a conceptual understanding about Kana
Configuration & Forms, this course provides a brief overview on
Troubleshooting Kana Forms features and functionality. This course
primarily focuses on the process of installing and
configuring Kana Forms. In addition, this course
offers helpful advice on troubleshooting potential
issue after and during the install and
configuration of Kana Forms.
Appropriate audience: Technical/Environmental,
Architect, and Developer
----------------------------- --------------------------------------------------
KANA CONNECT
----------------------------- --------------------------------------------------
Architecture & Kana Connect: Architecture and Deployment is a
Deployment training program intended for various groups of
audience to understand the product from functional
and technical perspectives. The course will cover
a wide range of topics related to Kana Connect
from Electronic Direct Marketing (EDM) concepts to
demonstration of system installation.
Appropriate audience: Functional,
Technical/Environmental and Architect
----------------------------- --------------------------------------------------
KANA CONDUITS
----------------------------- --------------------------------------------------
Kana Conduits SDK This course provides an introduction to developers
and integrators on how to develop custom
application and integration using Kana Conduits.
Appropriate audience: Architect and Developer
----------------------------- --------------------------------------------------
Core Conduits This course provides an introduction for
developers and integrators on how to develop core
conduits to extend the functionality and provide
enterprise integration for the Kana Response
product.
Appropriate audience: Architect and Developer
----------------------------- --------------------------------------------------
<PAGE> 25
[KANA COMMUNICATIONS, INC. LOGO]
SCHEDULE D
KANA COMMUNICATIONS, INC. ORDER FORM
AMENDMENT NO. ___
TO
SOFTWARE LICENSE AND MAINTENANCE AGREEMENT
This Amendment No. __ ("Amendment") to the Software License and Maintenance
Agreement ("Agreement") dated _________ by Kana Communications, Inc. ("Kana")
and _________ ("Customer") is entered into as of this __ day of ______, 200_.
WHEREAS, Customer desires to purchase license to Software and/or Services
(collectively, "Products") as provided in the Agreement,
NOW THEREFORE, the parties agree as follows:
Customer agrees to purchase the Products set forth below, for the fees set forth
in the Agreement, subject to the terms of the Agreement, provided, however, that
if no Products are specified hereunder, the Products shall be as specified on
Schedule A to the Agreement.
All other terms of the Agreement shall continue in effect as set forth therein.
In the event of any conflict between the terms of this Addendum and the
Agreement, the terms of the Agreement shall prevail.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed by their proper representatives thereunto duly authorized.
KANA COMMUNICATIONS, INC. CUSTOMER ("______________")
By: ______________________________ By: _______________________________
Name: ____________________________ Name: _____________________________
Title: ___________________________ Title: ____________________________
<PAGE> 26
EXHIBIT A TO AMENDMENT NO. __
[IDENTIFY PRODUCTS PURCHASED]
<PAGE> 27
SUPPORT
Level 1 Support
Support provided by SERVICEWARE to it's End Users, either by telephone, modem or
on site, for the purpose of providing "how-to" information, environmental
problem isolation or correction of End User errors.
Level 2 Support
Support provided by SERVICEWARE to its End Users, either by telephone, modem or
on-site, for the purpose of diagnosing, product isolation and duplication of
technical problems and providing preventive maintenance in accordance with
Serviceware service and maintenance guidelines. Support includes installation or
replacement of hardware and installation or reinstallation of software and/or
patches. Support also includes diagnosis of difficulties caused by or related to
Local Area Network or external telecommunications connectivity or devices.
Level 3 Support
Support provided by Serviceware Technical Support either by telephone or modem,
when SERVICEWARE'S Level 2 Support activities have failed to solve a problem, .
Such support includes advanced diagnostic services. Level 3 Support will provide
a complete resolution, a temporary fix or alternative procedure restoring full
service. When a temporary fix or alternative procedure is provided, a complete
resolution will be supplied as soon as practical thereafter Level 3 Support will
also submit Defects to Kana.
Development/Engineering Support
Support provided by KANA Engineering to KANA Technical Support when Level 3
Support is not successful, and passed on to SERVICEWARE, to provide higher level
diagnostic services and corrective action that may include the development of
patches or other product design or modification changes. Kana will also accept
Defects from Serviceware Level 3 Support for resolution provided that they are
clearly identified to have been a function of the Kana product.
OEM maintains an organization and process to provide support for the Software.
Support under this Agreement shall include (i) diagnosis of problems or
performance deficiencies of the Software and (ii) a resolution of the problem or
performance deficiencies of the Software. OEM will provide telephone software
support 24 hours a day, 365 days per year. OEM will use diligent efforts to
cure, as described below, reported and reproducible errors in the Software. OEM
utilizes the following four (4) severity levels to categorize reported problems:
SEVERITY 1 CRITICAL BUSINESS IMPACT
The impact of the reported deficiency is such that the End-Customer is unable to
either use the Software or reasonably continue work using the Software. OEM will
commence work on resolving the deficiency within one-half hour of notification.
SEVERITY 2 HIGH BUSINESS IMPACT
Important features of the Software are not working properly and there are no
acceptable, alternative solutions. While other areas of the Software are not
impacted, the reported deficiency has created a significant, negative impact on
the End-Customer's productivity or service level. OEM will commence work on
resolving the deficiency within one (1) hour of notification.
<PAGE> 28
SEVERITY 3 MEDIUM BUSINESS IMPACT
Important features of the Software are unavailable, but an alternative solution
is available or non-essential features of the Software are unavailable with no
alternative solution. The End-Customer impact, regardless of product usage, is
minimal loss of operational functionality or implementation resources. OEM will
commence work on resolving the deficiency within one (1) business day of
notification.
SEVERITY 4 LOW BUSINESS IMPACT
End-Customer submits a Software information request, software enhancement or
documentation clarification which has no operational impact. The implementation
or use of the Software by the End-Customer is continuing and there is no
negative impact on productivity. OEM will provide an initial response regarding
the request within one (1) business week.
SUPPORT FOR OEM Kana will maintain an organization and process to provide
support for the Software . Support shall include (i) diagnosis of problems or
performance deficiencies of the Software and (ii) a resolution of the problem or
performance deficiencies of the Software. Kana will provide telephone software
support on a business day basis. Business day is defined as 6:00 AM through 6:00
PM pacific time, excluding holidays and weekends with provisions for 24by7
Emergency phone support for Critical and High Business Impact Calls with
Response times of 30 minutes for Critical and 60 minutes for High. OEM shall be
permitted access to remotely accessible tools and/or informational databases if
and when they become available.
MAINTENANCE
During the term of this agreement, Kana will provide the OEM with copyrighted
patches, updates, releases and new versions of the Software along with other
generally available technical material. These maintenance materials including
the Software may not be used to increase the licensed number of versions or
copies of the Software. OEM agrees not to use or transfer the prior version but
to destroy or archive the prior version of the Software. All patches, updates,
release and new versions shall be considered part of the Software and shall be
subject to the license agreement related to the Software. The foregoing and any
other support to be provided by Kana is subject to payment to Kana of the
support fees set forth on Exhibit A. Kana will provide Serviceware the same
level of service(s) as above during the Warranty period.
SERVICEWARE'S OBLIGATIONS BEFORE REQUESTING SERVICE FROM KANA
In all cases, prior to requesting support from KANA, OEM shall take steps to
ensure that a problem is not caused by the End-Customer's operating system,
telephone system, telephony service provider, Local Area Network or
software/hardware not furnished by KANA. OEM shall also attempt to correct the
problem by utilizing its KANA-trained personnel to perform system diagnosis and
shutdown/restart procedures to diagnose or correct problems in accordance with
KANA service and maintenance guidelines.
ESCALATION PROCEDURE
KANA shall incorporate a procedure to prioritize each service call received from
OEM and, when appropriate, notify KANA Management and, as agreed, OEM management
to ensure serious system problems are communicated and resolved promptly.
Unless otherwise noted, all hours are clock hours not business hours.
Critical - 30 min. response.
High - 60 min. response.
Medium - 1 business day
Low - 5 business days
<PAGE> 29
TRAINING AND TROUBLESHOOTING TOOLS AND GOALS
OEM should have access to Kana End-User and Maintenance training, including Kana
internal training courses to prepare and enable OEM Support Personnel to deliver
the services as stated in the Description section under Level 1, 2 and 3
Support. OEM will also have access to Kana troubleshooting tools and guides in
support of products resold under this agreement. In connection with training,
Kana will make available to OEM general courseware, syllabus, laboratory
exercises, tests and post training evaluations. forms Pricing for such training
shall be as set forth on Exhibit A. To the extent available, Kana will provide
OEM with WEB access to information and documentation.
REPORTING
KANA shall offer SERVICEWARE reports on the number of calls received from
SERVICEWARE and status of defects affecting SERVICEWARE'S sites, including
current open and closed calls and their associated priority. Information shall
be provided in a format and at a frequency mutually agreed to by SERVICEWARE and
KANA. KANA may, based upon report information, recommend that SERVICEWARE'S
personnel attend refresher training classes if the number of calls for
assistance has been unusually high.
EXCLUSIONS
Kana shall not be responsible for correcting any errors not attributable to
Kana. Kana is not required to provide any Support relating to problems arising
out of:
a. altered, damaged, or modified Software;
b. Software that is not the most current release or the
immediately previous release, or where it is within 6 months
following the release of the current release, the second
release prior to the current release;
c. Software problems caused by OEM or End-Customer's negligence,
abuse, or misapplication, by use of the Software other than as
specified in the Documentation, or by other causes beyond the
control of Kana; or
d. Software installed on any computer hardware or operating
system not supported by Kana.
