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EXHIBIT 10.7
[VECTRIX LOGO]
CUSTOMER AGREEMENT
TABLE OF CONTENTS
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Section Title Page
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PART I - GENERAL..................................................2
1.1 Definitions ................................................2
1.2 Agreement Structure ........................................3
1.3 Charges and Payment ........................................3
1.4 Changes to the Agreement Terms..............................4
1.5 Mutual Responsibilities ....................................4
1.6 Your Other Responsibilities ................................5
1.7 Patents and Copyrights .....................................5
1.8 Limitation of Liability ....................................6
1.9 Indemnification ............................................6
1.10 Solicitation of Employees...................................6
1.11 Confidentiality.............................................6
1.12 Agreement Termination.......................................6
1.13 Geographic Scope ...........................................7
1.14 Governing Law ..............................................7
1.15 Survival Clause.............................................7
1.16 Timing......................................................7
PART 2 - WARRANTIES...............................................8
2.1 The VECTRIX Warranties......................................8
2.2 Extent of Warranty..........................................8
2.3 Items Not Covered by Warranty...............................9
PART 3 - SERVICES................................................10
3.1 VECTRIX Services...........................................10
3.2 Personnel..................................................10
3.3 Materials Ownership and License............................10
3.4 Renewal....................................................11
3.5 Termination & Withdrawal...................................11
PART 4 - SOFTWARE ...............................................12
4.1 License for Packaged Software..............................13
4.2 Intentionally Omitted......................................13
4.3 Customized Software License Details........................13
4.4 Intentionally Omitted......................................13
4.5 Software Testing ..........................................13
4.6 Software Protection .......................................13
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Schedules
A Deliverable Document
B Milestones
C Vectrix Project Team
D Competitors
E Common Software / Commercial Software
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[VECTRIX LOGO]
CUSTOMER AGREEMENT
Thank you for doing business with us. We strive to provide you with high quality
products and services. If, at any time, you have any questions or problems, or
are not completely satisfied, please let us know. Our goal is to do our best for
you.
This VECTRIX Customer Agreement (called the "Agreement") covers business
transactions you (Home Interiors & Gifts, Inc. or "HIG") may do with us to
license software and acquire services.
This Agreement and its applicable Attachments and Transaction Documents are the
complete agreement regarding these transactions, and replace any prior oral or
written communications between us.
PART I - GENERAL
1.1 DEFINITIONS
COMMERCIAL SOFTWARE is defined in Section 3.3.
COMMON SOFTWARE is defined in Section 3.3.
CONFIDENTIAL INFORMATION is Software and all information proprietary to
the disclosing party contained in or related to the disclosing party's
Software, materials or products including, but not limited to, HIG's
sales methods, customer lists, market surveys, marketing plans,
identities of customers and hostesses, financial plans, and sales
information provided by the disclosing party hereunder or created by or
proprietary to the disclosing party, the disclosing party's software
development tools, and calculations and data formats which have been
created by the disclosing party or are proprietary to the disclosing
party. Confidential Information excludes such information which is in the
public domain at the time of its disclosure to the other party; which has
been rightfully received from a third party without restrictions, or
which the disclosing party has agreed in writing to permit you to
disclose to third parties.
CONSENT is the prior, express, and written consent of a party and which
may be given or withheld in such party's sole discretion.
CUSTOM SOFTWARE is defined in Section 3.3.
DATE OF INSTALLATION is the following:
1. for Software, the latest of:
a. the day after its testing period ends;
b. the second business day after the Software's standard
transit allowance period;
c. the date, specified in a Transaction Document, on which we
authorize you to make a copy of the Software; or
d. the date you distribute a copy of a chargeable component in
support of your authorized use of the Software.
DESIGNATED HARDWARE is either 1) the hardware on which you will use
Software for processing and which we require you to identify to us by
type/model and serial number, or 2) any hardware on which you use the
Software if we do not require you to provide this identification to us.
ENTERPRISE is any legal entity (such as a corporation) and the
subsidiaries it owns by more than 50 percent.
MATERIALS are literary works or other works of authorship (such as
Software listings, Software tools, documentation, reports, drawings and
similar works) that we may deliver to you as part of a Service. The term
"Materials" does not include Software or licensed internal code or source
code.
PRODUCT is Software or any other tangible item you purchase from us.
SOFTWARE is the following, including the original and all whole or
partial copies:
1. hardware-readable instructions and data;
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2. components;
3. audio-visual or multi-media content (such as images, text,
recordings, or pictures);
4. printed content;
5. related licensed materials.
The term "Software" includes VECTRIX Software and any non-VECTRIX
Software that we may provide to you.
SERVICE is performance of a task, provision of advice and counsel,
assistance, or access to a resource (including, but not limited to,
access to an information database, advertising, transactions) we make
available to you.
SPECIFICATIONS is a document that provides information specific to a
Product. For VECTRIX Software, we call it "Licensed Software
Specifications" or "License Information."
SPECIFIED OPERATING ENVIRONMENT is the Designated Hardware and Software
with which Software is designed to operate, as described in the
Software's Specifications.
TRANSACTION DOCUMENT is defined in Section 1.2.
1.2 AGREEMENT STRUCTURE
ATTACHMENTS
Some Products and Services have terms in addition to those we specify in
this Agreement. We provide the additional terms in documents called
"Attachments," which are also part of this Agreement. Provisions to the
contrary notwithstanding, no Attachment shall be binding on HIG unless
HIG has given its Consent to such Attachment.
TRANSACTION DOCUMENTS
For each business transaction, we will provide you with the appropriate
"Transaction Documents" that confirm the specific details of the
transaction. Provisions to the contrary notwithstanding, no Transaction
Document shall be binding on HIG unless HIG has given its Consent to such
Transaction Document. The following are examples of Transaction Documents
with examples of the information they may contain:
1. agenda (contract-period duration, start date and total quantity);
2. exhibits (eligible Products by category);
3. invoices (item, quantity, and amount due);
4. proposal (scope of Services, responsibilities, deliverables,
completion criteria, estimated schedule or contract period, and
charges);
5. the Schedules hereto.
CONFLICTING TERMS
If there is a conflict among the terms in the various documents, those of
this Agreement prevail over a Transaction Document and an Attachment; and
the terms of a Transaction Document prevail over those of an Attachment.
In addition to the provisions of Section 1.12 Agreement Termination, HIG
may terminate this Agreement upon thirty (30) days written notice in the
event that HIG and Vectrix are unable to agree in writing to any
Attachment or Transaction Document.
1.3 CHARGES AND PAYMENT
The amount payable for a Product or Service will be based on one or more
of the following types of charges:
1. one-time (for example, the price of Software);
2. recurring (for example, a periodic charge for Custom Software or
measured use of Services);
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3. time and materials (for example, charges for hourly Services); or
4. fixed price (for example, a specific amount agreed to between us
for a custom Service).
Depending on the particular Product, Service, or circumstance, additional
charges may apply (such as special handling or travel related expenses).
We will inform you in advance whenever additional charges apply.
Provisions to the contrary notwithstanding, in no event shall additional
charges apply without HIG's Consent.
Recurring charges for a Product begin on its date of installation.
Charges for Services are billed as expressly agreed in writing by the
parties.
Amounts due, as set forth in Transaction Documents, shall be billed by
bi-weekly invoice and shall be payable within thirty (30) days of receipt
of invoice. You agree to pay accordingly including interest on any late
payment at an annual rate of ten percent (10%) of the late portion of the
amount due.
If any authority imposes a duty, tax, levy or fee, excluding those based
on our net income, upon any transaction under this Agreement, then you
agree to pay that amount as specified in the invoice or supply exemption
documentation. You are responsible for personal property taxes for each
Product from the date we ship it to you.
One-time and recurring charges may be based on measurements of actual or
authorized use (for example, number of users or processor size for
Software, meter readings for maintenance Services.) You agree to provide
actual usage data if we specify. If you make changes to your environment
that impact use charges (for example, change processor size or
configuration for Software), you agree to promptly notify us and pay any
applicable charges. Recurring charges will be adjusted accordingly.
Unless we agree otherwise, we do not give credits or refunds for charges
already due or paid. In the event that we change the basis of
measurement, our terms for changing charges will apply.
If you make any modifications to the Products or Services set forth in
Schedule A hereto that result in an extension in the Launch Date or if
you otherwise extend the Launch Date, we may increase one-time charges
relating to such modification upon prior notice. However, an increase to
one-time charges does not apply to you if: 1) we receive your order
before the announcement date of the increase and 2) one of the following
occurs within three months after our receipt of your order:
1. we make the Software available to you;
2. you make an authorized copy of Software or distribute a chargeable
component of the Software to Designated Hardware; or
3. the Software's increased use charge becomes due.
You receive the benefit of a decrease in charges for amounts that become
due on or after the effective date of the decrease.
Services for which you prepay must be used within the applicable contract
period. Unless we specify otherwise, we do not give credits or refunds
for unused prepaid Services.
1.4 CHANGES TO THE AGREEMENT TERMS
In order to maintain flexibility in our business relationship, we may
change the terms of this Agreement by giving you one (1) month's written
notice. However, these changes are not retroactive. They apply as of 30
days after HIG's receipt of such notice, and only to new orders and
provided, that upon any and all such changes, HIG may terminate this
Agreement upon thirty (30) days written notice. Part 1 of this Agreement
contains additional provisions for changes to the terms of individual
Service transactions.
For a change to be valid, both of us must sign it. Additional or
different terms in any written communication from either party (such as
an order or invoice) are void.
Vectrix may not assign, delegate, or otherwise transfer its service
obligations or duties under this Agreement. Any attempt to do so is void.
Notwithstanding the foregoing, Vectrix may subcontract a Service, or any
part of it, to subcontractors selected by Vectrix.
1.5 MUTUAL RESPONSIBILITIES
Both of us agree that under this Agreement:
1. except as provided in Section 3.3, neither of us grants the other
the right to use its trademarks, trade names, or other
designations in any promotion or publication without prior written
consent;
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2. each is free to enter into similar agreements with others;
3. each grants the other only the licenses and rights specified
herein. No other licenses or rights (including licenses or rights
under patents) are granted;
4. each may communicate with the other by electronic means and such
communication is acceptable as a signed writing. An identification
code (called a "user ID") contained in an electronic document is
sufficient to verify the sender's identity and the document's
authenticity, so long as such electronic communication is
subsequently confirmed by facsimile transmission;
5. each will allow the other reasonable opportunity to comply before
it claims that the other has not met its obligations;
6. neither of us is responsible for failure to fulfill any
obligations due to causes beyond our control;
7. This Agreement may be transferred or assigned in the event of a
change of control, merger or acquisition of either party.
1.6 YOUR OTHER RESPONSIBILITIES
You agree:
1. Except as otherwise provided, not to assign, or otherwise
transfer, this Agreement or your rights under this Agreement,
delegate your obligations, or resell any Service, without our
prior written consent which shall not be unreasonably withheld.
Any attempt to do so is void;
2. that you are responsible for the results obtained from the use of
the Products and Services; and
3. to comply with all applicable export and import laws and
regulations.
1.7 PATENTS AND COPYRIGHTS
For purposes of this Section 1.7, the term "Product" includes Materials
(alone or in combination with Products we provide to you as a system),
licensed internal code or source code.
Except as expressly provided herein, if a third party claims that a
Product (including without limitation Materials) we manufactured and
provided to you infringes that party's patent or copyright or
misappropriates a trade secret, we will defend you, and HIG's employees,
directors, officers and representatives against that claim at our expense
and pay all damage, loss, judgment, liability or expense (including, but
not limited to, reasonable attorney's fees) provided that you:
1. promptly notify us in writing of the claim; and
2. allow us to control, and cooperate with us, in the defense and any
related settlement negotiations.
If such a claim is made or appears likely to be made, you agree to permit
us to enable you to continue to use the Product, or to modify it without
materially changing the functionality, or replace it with one that is at
least functionally equivalent. If we determine that none of these
alternatives is reasonably available, you agree to return the Product to
us on our written request. We will then give you a credit equal to:
1. for Software, the amount paid by you
2. for Materials, the amount you paid us for the Materials.
This is our entire obligation to you regarding any claim of infringement.
CLAIMS FOR WHICH WE ARE NOT RESPONSIBLE:
We have no obligation regarding any claim based an any of the following:
1. anything you provide which is incorporated into a Product,
2. your modification of a Product, or Software's use in other than
its Specified Operating Environment,
3. the combination, operation, or use of a Product with other
products not provided by us as a system, or the combination,
operation, or use of a Product with any product, data, or
apparatus that we did not provide, or
4. Infringement by a non-VECTRIX product alone, as opposed to its
combination with Products we provide to you as a system.
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5. Infringement by the Product as developed or modified in accordance
with Schedule A hereto, except for our intentional --
infringement.
1.8 LIMITATION OF LIABILITY
IN NO EVENT WILL VECTRIX'S TOTAL LIABILITY HEREUNDER, FOR INDEMNIFICATION
CLAIMS OR OTHERWISE, OR FOR ACTUAL, INCIDENTAL, PUNITIVE, INDIRECT, OR
ANY ECONOMIC CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OR COSTS, EXCEPT
IN THE CASE OF INTENTIONAL ACTS OF BODILY INJURY, EXCEED THE TOTAL FEES
PAID BY HIG TO VECTRIX UNDER THE TERMS OF THIS AGREEMENT.
1.9 INDEMNIFICATION
Both parties agree to indemnify and hold the other party and the other
party's employees, directors, officers and representatives harmless from
any damage, loss, judgment, liability or expense (including reasonable
attorney's fees) arising out of any claim, suit, action or judgment
asserted based on a party's acts and/or omissions that result in a breach
of this Agreement. In the event a party is notified of an action of any
type in which, based on the previous sentence, the other party shall be
indemnified by the first party, the first party agrees to indemnify the
other party and promptly notify them of such damage, loss, judgment,
liability or expense in writing and give authority and full information
and assistance for the defense of the same by counsel mutually agreed to.
1.10 INTENTIONALLY OMITTED
1.11 CONFIDENTIALITY
Each party agrees that it, using utmost care, shall hold in confidence
for the other party and shall not, except as permitted by this Agreement
and in order to carry out its rights and obligations under this
Agreement, use or disclose to any other party or allow any other party to
inspect, copy or use any of the other party's Confidential Information
disclosed by the other party in connection with this Agreement, except as
required by law.
1.12 AGREEMENT TERMINATION
You may terminate this Agreement on written notice to us following the
expiration or termination of your obligations. Provisions to the contrary
notwithstanding, HIG may terminate this Agreement (in its entirety or in
part) for any reason or for no reason upon ten (10) days written notice;
provided HIG pays for all work performed by Vectrix through the date of
termination. The parties agree that the work will continue at its present
levels during the notice period.
Either of us may terminate this Agreement in the event of a material
breach of this Agreement and the failure to remedy such breach within
thirty (30) days after written notice of such breach is given by the
non-breaching party.
Any terms of this Agreement, which by their nature extend beyond the
Agreement termination, remain in effect until fulfilled and apply to both
of our respective successors and permitted assignees, including, but not
limited to, Sections 1.7 through 1.11 and Section 3.3.
1.13 GEOGRAPHIC SCOPE
All your rights, all our obligations, and all licenses (except for
licensed internal code and as specifically granted) are valid worldwide.
1.14 GOVERNING LAW
The laws of the State of Texas govern this Agreement.
Nothing in this Agreement effects any statutory rights of consumers that
cannot be waived or limited by contract.
1.15 SURVIVAL CLAUSE
The covenants contained in Section 1.7 through 1.11 and Section 3.3 shall
survive beyond the termination of this Agreement.
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1.16 TIMING
Attached hereto as Schedule B are the timing milestones for our
performance of Services and Products, including production and delivery
of the Custom Software, under this Agreement. Such milestones are subject
to any changes requested by you and agreed to in writing by us in the
Services and Products, including the Custom Software, which such
agreed-upon changes shall be made a part of Schedule A to this Agreement,
and your responsibility to provide, in a timely manner, information to us
that we need or reasonably request in order to provide and deliver
Services and Products, including the Custom Software. Timing in
performance under this Agreement is of the essence.
1.17 FORCE MAJEURE
If the performance of any part of this Agreement by either party is
prevented, hindered, delayed or otherwise made impracticable by reason of
any flood, riot, fire, judicial or governmental action, labor disputes,
act of God or any other causes beyond the control of either party, that
party shall be excused from such to the extent that it is prevented,
hindered or delayed by such causes.
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[VECTRIX LOGO]
CUSTOMER AGREEMENT
PART 2 - WARRANTIES
2.1 THE VECTRIX WARRANTIES
WARRANTY FOR VECTRIX SOFTWARE
For Software, we warrant that when it is used in the Specified Operating
Environment, it will perform in accordance with its Specifications.
During the Warranty Period, we will provide Services to correct defects
in the Software without charge.
If the Software does not function as warranted during the first year
after such date the Software is actually launched (the "Warranty
Period"), we will have breached this Agreement.
We warrant that we will not install or develop any viruses, timers,
clocks, counters, backdoors or other routines that could erase data or
programming associated with the Software, cause the web site for which it
was designed to become inoperable or incapable of being used in the
manner for which it was designed, or create a breach of security or
confidentiality through the Software, except that this warranty shall not
cover any actions by persons other than us that cause data or programming
to be erased or cause a breach of security or confidentiality.
WARRANTY FOR VECTRIX SERVICES
For each VECTRIX Service, we warrant that we will perform it:
1. In a professional and technically competent manner, using
reasonable care and skill, and
2. according to its current description (including any completion
criteria) contained in this Agreement, an Attachment, or a
Transaction Document.
WARRANTY FOR SYSTEMS
Where we provide Products to you as a system, we warrant that they are
compatible and will operate with one another. This warranty is in
addition to our other applicable warranties.
Vectrix further warrants that:
1. except for third party Software, neither the Software nor
Materials will intentionally infringe or misappropriate the
proprietary rights of any third party,
2. it will not provide any third party Software or Materials without
HIG's Consent or without obtaining HIG's Consent to any relevant
Third Party License (hereafter defined),
3. for all third party Software and materials that it does provide,
Vectrix possess all rights necessary to grant the rights granted
to HIG in connection with this Agreement,
4. Vectrix has the requisite staff and equipment to perform its
obligations arising out of this Agreement,
5. the Product will allow on-going correction and modification,
6. the Product is fit for the purpose for which the web-site was
designed,
7. the personnel identified in Schedule C, attached hereto, will
remain on the Project (hereafter defined) through the earlier of
project completion, termination by HIG, or termination of such
personnel's employment.
2.2 EXTENT OF WARRANTY
Our warranties will be voided by misuse, accident, modification by other
than Vectrix, unsuitable physical or operating environment, operation in
other than the Specified Operating Environment, improper maintenance by
you, removal or alteration of Product or parts identification labels, or
failure caused by a product for which we are not responsible.
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THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
2.3 ITEMS NOT COVERED BY WARRANTY
We do not warrant uninterrupted operation of a Product or Service.
Unless we specify otherwise, we provide non-VECTRIX Products, and
non-VECTRIX SERVICES WITHOUT WARRANTIES OF ANY KIND. However, non-VECTRIX
manufacturers, suppliers, or publishers may provide their own warranties
to you.
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[VECTRIX LOGO]
CUSTOMER AGREEMENT
PART 3 - SERVICES
3.1 VECTRIX SERVICES
Services may be either standard offerings or customized to your specific
requirements. Each Service transaction may include one or more Services
that:
1. expire at task completion or an agreed upon date;
2. automatically renew as another transaction with a specified
contract period, renewals will continue until either of us
terminates the Service; or
3. do not expire and are available for your use until either of us
terminates the Service.
3.2 PERSONNEL
Each of us is responsible for the supervision, direction and control of
our respective personnel.
We reserve the right to determine the assignment of our personnel;
provided, however, that our personnel set forth in Schedule C hereto
shall fulfill the functions set forth opposite their respective names on
Schedule C hereto as such functions relate to our providing Services to
you hereunder. Notwithstanding the prior sentence, we shall not be in
breach of the prior sentence if any of such personnel do not fulfill such
functions as a result of illness, injury, death, resignation or other
termination of employment, or if you request they be removed from so
fulfilling such functions.
3.3 MATERIALS OWNERSHIP AND LICENSE
"HIG Materials" means any and all materials and information provided by
HIG to Vectrix including without limitation, any and all confidential
materials, content, photos, software, designs, graphics, and Software HIG
has provided to Vectrix necessary for interfacing between HIG proprietary
systems and the Project (hereafter defined). HIG is and shall remain the
exclusive owner of all right, title, and interest in and to the HIG
Materials and nothing in this Agreement shall be construed as granting
any right to Vectrix in regard to the HIG Materials other than as
necessary for Vectrix to perform its obligations under this Agreement.
Products delivered to you under this Agreement shall be categorized as
follows:
"Custom Software" shall be defined to include (i) the original content,
and executable files including, without limitation, source code of the
project that we will develop on your behalf under this Agreement (the
"Project"), and any text or graphics we develop; (ii) the graphical user
interface (which includes, but is not limited to, content, images,
typography, and page layout) and the application interface to your point
of sale (collectively, the "Look and Feel"); and (iii) any and all
documentation developed under this Agreement.
HIG shall own all right, title, and interest in and to the Custom
Software (including, without limitation, ownership of copyright) and
Vectrix hereby assigns, transfers, and conveys all right, title, and
interest in and to the Custom Software that HIG does not acquire by
operation of law. The Custom Software is more fully described in Schedule
A hereto. Vectrix shall, without further consideration, execute such
documents as HIG may reasonably request in order to effectuate or confirm
HIG's ownership of the Custom Software including, without limitation,
execution of an assignment of the Custom Software to HIG.
"Common Software" shall be defined to include executable files developed
other than for HIG, owned or licensed by us to perform tasks that are
common or similar to other development applications including, but not
limited to, (i) Software engines used to develop or host the Project
whether developed or owned by Vectrix; (ii) Software developed by Vectrix
necessary for the operation of the Project, excluding Custom Software;
and (iii) manuals, documents, and other Material that is not Custom
Software, provided to you with the Software. We have all right, title,
and interest (including ownership of copyright) into the Common Software.
We will deliver one copy of the specified Common Software to you. We
grant you an irrevocable, perpetual, nonexclusive, nontransferable except
in the event of merger, acquisition or change of control of HIG,
royalty-free,
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fully paid-up, worldwide license to use, possess, execute, reproduce,
display, perform, and distribute copies of Common Software within your
Enterprise and in connection with the Project only. License for source
code of Common Software is not included. You agree not to modify,
disassemble, decompile or otherwise reverse engineer the Common Software.
"Commercial Software" shall be defined to include commercially available
general purpose executable files that we own or have obtained a license
to use in the development or hosting of your Project. This Agreement does
not extend our license to use or our ownership of Commercial Software to
you. Each of us agrees to reproduce the copyright notice and any other
legend of ownership on any copies made under the licenses granted in this
Section 3.3.
Copyright or trademark materials, such as logos, screen shots,
description of services and others shall be used for the purposes of
marketing the fact that we performed services for you and a brief
description of those services. We retain no other right or interest in
these materials.
If (a) we shall be adjudicated as bankrupt, (b) on order appointing a
receiver of us shall be made, or an order shall be made approving a
petition or answer seeking our reorganization, under any applicable
bankruptcy law, and in any such case shall not be stayed within ten (10)
days, (c) we shall institute proceedings for a voluntary bankruptcy or
shall apply for, or consent to, the appointment of a receiver, or shall
make an assignment for the benefit of creditors, for the purpose of
seeking a reorganization under federal bankruptcy laws, then you shall be
entitled to, and we shall promptly deliver to you, the source code for
the Common Software. Such source code shall be deemed Confidential
Information under this Agreement and we shall be deemed to have granted
to you, an irrevocable, perpetual, non-exclusive, transferable,
worldwide, royalty-free, fully paid-up license to use and possess the
source code of such Common Software for the sole purpose of modification
in connection with modifying or supporting your website and for no other
purpose, including, but not limited to, resale, modification for resale,
display, distribution, reproduction, preparation of derivative works of
(except in support of your website), or the design or development of any
other website.
If we no longer support, develop, or otherwise use, or intend to support,
develop, or otherwise use, any of the Common Software, then upon your
written request, we shall promptly deliver the source code to you and
shall be deemed to have granted to you, an irrevocable, perpetual,
non-exclusive, transferable, worldwide, royalty-free, fully paid-up
license to use and possess the source code of such Common Software for
the sole purpose of modification in connection with modifying your
website and for no other purpose, including, but not limited to, resale,
modification for resale, display, distribution, reproduction, preparation
of derivative works of (except in support of your website), or the design
or development of any other website.
We agree not to duplicate or provide the Look and Feel of the Custom
Software to any of the competitors set forth on Schedule D hereto.
3.4 RENEWAL
Renewable Services renew automatically for a same length contract period
unless either of us provides written notification (at least one (1) month
prior to the end of the current contract period) to the other of its
decision not to renew.
3.5 TERMINATION AND WITHDRAWAL
Either of us may terminate a Service if the other does not meet its
obligations concerning the Service as set forth in this Agreement.
You may terminate a non-expiring Service, without adjustment charge, on
one (1) month's written notice to us, provided you have met all minimum
requirements specified in the applicable Attachments and Transaction
Documents.
You may terminate a renewable Service or an expiring maintenance Service,
without adjustment charge, on written notice to us provided you have met
all minimum requirements, specified in the applicable Attachments and
Transaction Documents and any of the following circumstances occur:
1. you permanently remove the eligible Product for which the Service
is provided from productive use within your Enterprise;
2. the eligible location, for which the Service is provided, is no
longer controlled by you (for example, because of sale or closing
of the facility);
3. an increase in the Service charges, either alone or in combination
with prior increases over the previous twelve months, if more than
the maximum specified in the applicable Service Transaction
Document. If no maximum is specified, then this circumstance does
not apply.
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For all other circumstances, you may terminate an expiring or renewable
Service on one (1) month's written notice to us but such termination will
result in adjustment charges equal to the lesser of:
1. the charges remaining to complete the contract period; or
2. one of the following, if specified in the Transaction Document:
a. the charges remaining to complete the contract period
multiplied by the adjustment factor specified, or
b. the amount specified In the Transaction Document.
You agree to pay us for all Services we provide and any Products and
Materials we deliver through Service termination.
We may withdraw a renewable or non-expiring Service or support for an
eligible Product on three months' written notice to you. If we withdraw a
Service for which you have prepaid and we have not yet fully provided it
to you, we will give you a prorated refund.
Any terms which by their nature extend beyond termination or withdrawal
remain in effect until fulfilled and apply to respective successors and
permitted assignees.
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[VECTRIX LOGO]
CUSTOMER AGREEMENT
PART 4 - SOFTWARE
4.1 LICENSE FOR PACKAGED SOFTWARE
We provide certain Software together with their own license agreements.
This Software is licensed under the terms of the agreements provided with
them (each agreement is a "Third Party License"). Any conflicts between
the terms of the Software license agreements and this Agreement are to be
controlled by the language of the Software license agreement. Provisions
to the contrary notwithstanding, no Third Party License shall be binding
on HIG unless HIG has given its Consent to such Third Party License.
4.2 LICENSE FOR COMMON SOFTWARE - INTENTIONALLY OMITTED
4.3 SOFTWARE LICENSE DETAILS
Under each license of Software, including Common Software, and subject to
Section 3.3.we authorize you to:
1. use the Software to the extent of authorizations you have
acquired;
2. make and install copies of the Software to support the level of
use authorized herein, provided you reproduce the copyright
notices and any other legends of ownership on each copy or partial
copy; and
3. use any portion of the Software we: 1) provide in source form, or
2) mark restricted (for example, "Restricted Materials of
VECTRIX") only to:
a. resolve problems related to the use of the Software, and
b. modify the Software so that it will work together with
other products.
ACTIONS YOU MAY NOT TAKE
You agree not to:
1. reverse assemble, reverse compile, or otherwise translate the
Software; or
2. sublicense, rent, or lease the Software.
4.4 INTENTIONALLY OMITTED
4.5 SOFTWARE TESTING
We provide a testing period for certain Software to help you evaluate if
they meet your needs. If we offer a testing period, it will start, 1) the
second business day after the Software's standard transit allowance
period, or 2) on another date specified in a Transaction Document. We
will inform you of the duration of the Software's testing period in the
applicable Transaction Document.
4.6 SOFTWARE PROTECTION
For each Software not owned by HIG, you agree to:
1. ensure that anyone who uses it (accessed either locally or
remotely) does so only for your authorized use and complies with
this Agreement's terms regarding Software; and
2. maintain a record of all copies and provide it to us at our
written request.
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4.7 LICENSE TERMINATION
You may terminate the license for Software on one (1) month's written
notice, or at any time during the Software's testing period.
Licenses for certain replacement Software may be acquired for an upgrade
charge. When you acquire the replacement Software, you agree to terminate
the license of the replaced Software when charges become due, unless we
specify otherwise in writing.
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[VECTRIX LOGO]
CUSTOMER AGREEMENT
By signing below for our respective Enterprises, both of us agree to the terms
of this Agreement. Once signed 1) any reproduction of this Agreement, an
Attachment, or Transaction Document made by reliable means (for example,
photocopy or facsimile) is considered an original and 2) all Products and
Services you order under this Agreement are subject to it.
AGREED TO: AGREED TO:
VECTRIX CORPORATION HOME INTERIORS & GIFTS, INC.
By: By:
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Printed Name Printed Name
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Date Date
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