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Exhibit 10.3
VALUE-ADDED RESELLER AGREEMENT
Preamble
This International Value-added Reseller Agreement ("Agreement") is entered into
by and between SmartSources.com, Technologies Inc., a corporation organized
under the laws of the country of British Columbia Canada, with its principal
place of business at 2030 Marine Drive, Suite 100, North Vancouver, BC V7P 1D7
(hereinafter referred to as "VAR") and Ultraseek Corporation, a California
corporation, with its principal place of business at 1399 Moffett Park Drive,
Sunnyvale, California 94089-1134 U.S.A. (hereinafter referred to as "Infoseek"
or "Ultraseek").
Recitals
A. Infoseek is a developer and supplier of search engine software products
and desires to appoints VAR as a sales reseller for such products.
B. VAR is a reseller to end users of products compatible with Infoseek
products and adds value to Infoseek products by providing integration
into web designs, intranet development, server hardware sales or
consulting services and desires to serve as Infoseek reseller, all within
the territory hereinafter specified.
NOW, THEREFORE, in consideration of the facts and premises contained in the
above Recitals and the covenants, terms, and conditions set forth in the
Agreement below, the parties hereto agree as follows:
Agreement
1. Definitions. As used herein, the terms listed below shall have the
following meanings:
1.1 "Software" means those computer software products, including
documentation, distributed electronically by Infoseek which are listed in
Attachment A. Infoseek reserves the right to discontinue the
distribution, maintenance or license of any Software and the right to
improve or change the design of any Software, and Infoseek shall not
incur any liability thereby or any obligation to provide such
improvements on Software for which licenses were previously purchased
and/or sold by VAR.
1.2 "Customers" means end users located in the Territory (as defined in
Section 2). Customers exclude anyone acquiring the Software for resale,
whether separately, bundled, or modified.
2. Appointment as VAR. Infoseek hereby appoints VAR and VAR hereby accepts
said appointment as Infoseek's non-exclusive reseller to sell Software
licenses on workstations/computers primarily within the following
geographic area (hereinafter referred to as the "Territory"): UNITED
STATES AND CANADA; such appointment to continue for the term hereinafter
provided and to be subject to the terms and conditions herein.
3. Responsibilities of VAR. Throughout the term hereof:
3.1 Sales Effort. VAR shall use its best efforts to promote, sell, and
otherwise create a market for Software licenses within the Territory,
which may include, without limitation, sales calls, direct mail
solicitation, advertising in technical journals and other publications or
media and participation in trade shows and exhibits, and distribution of
Software evaluation units. The VAR is tasked primarily with providing a
complete software solution to Customers. VAR shall identify an individual
manager whose responsibility it will be to coordinate all efforts of VAR
and act as a liaison person to Infoseek. At its own expenses VAR shall,
in the reasonable judgment of Infoseek, maintain staff, facilities and
inventory capable of achieving sales objectives jointly agreed upon by
Infoseek and VAR from time
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to time. The purchase requirements are specified in Attachment B. VAR shall
maintain sufficient staff to adequately perform the following activities on
behalf of the Software:
Order tracking;
Proactive lead generation and follow up;
Outbound sales calls;
Forecasting; and
First level Pre-Sales Technical Support
3.2 Advertising. Infoseek may from time to time engage in both product and
institutional advertising and merchandising. As a part of this program,
Infoseek may at its discretion include VAR's name in such advertising. VAR
agrees to participate in joint advertising programs with Infoseek, but will
not engage in any advertising of the Software without Infoseek's prior
written permission.
3.3 Guarantees Limited to Those of Infoseek. VAR will make no representation,
guarantees or warranties regarding the performance or functional
characteristics of the Software beyond those stated in Infoseek's
applicable on-line end user license agreement.
3.4 Monthly Reports. VAR shall submit to Infoseek by the fifth (5th) day of
every month reports and forecasts in electronic and hard copy formats
containing such pertinent information about the Customers, and Software and
the distribution thereof within the Territory as Infoseek shall reasonably
request including, without limitation:
a. Distribution reports containing:
1. the volume and dollar amount of Software licenses purchased and
distributed by VAR during the prior month;
2. installation of Software evaluation units at Customer site(s);
and
3. names, addresses (including zip or postal codes) of all
purchasers of Software licenses during the prior month; and
b. Good faith forecasts for license sales of each of the Software products
by month for the next three (3) months. Infoseek may modify the format
and information requirements of the reports from time to time by notice
to VAR.
3.5 Competing Products. It is understood that VAR may offer, sublicense, sell,
distribute, design, or manufacture products which are deemed, in the
reasonable opinion of Infoseek, to be competing with the Software. In such
event Infoseek may be required to withhold certain information from time to
time regarding Infoseek's general marketing strategies and product release
schedules.
3.6 Compliance with Territory Laws. VAR agrees to comply with all applicable
laws and regulations currently existing in the Territory relating to the
Software, and further agrees to take such steps as are necessary to ensure
that the Software and the technical data pertaining thereto, are not
exported to any destination prohibited by applicable laws and regulations
of the United States government and its agencies.
3.7 Not Decompile or Develop Passwords. VAR agrees not to attempt to decipher
or decompile the Software or develop source code for the Software or
knowingly allow others to do so.
3.8 Proprietary Information and Trademarks. VAR shall abide by the provisions
of Section 7 concerning non-disclosure of Proprietary Information (as
therein defined) of Infoseek, conditions of and restrictions upon the use
of Infoseek name and trademarks, and the protection of Infoseek copyrights,
patents, and other proprietary rights.
3.9 Support and Update Services. VAR agrees to provide first level end-user
support for those Customers who have purchased Software licenses from the
VAR in the Territory. In these regards, if a Customer contacts VAR with an
operating problem, VAR shall use its best efforts to solve it; however, if
there is an error in the Software documentation causing such problem, or if
VAR is
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otherwise unable to solve such problem despite its best efforts to do so,
VAR shall notify Infoseek who agrees to use reasonable efforts to solve the
problem and provide to VAR, or directly to the Customer, any necessary
corrections. The foregoing does not constitute a warranty to VAR or to
Customers. If available for the Software licensed hereunder, VAR agrees to
use its best efforts to assure that all Customers purchasing Software
licenses also participate in Infoseek's Support and Update Services plan.
Infoseek's current Support and Update Services plan is described in
Attachment C which may be amended from time to time upon notice from
Infoseek. Infoseek will be responsible for providing Updates (as defined in
Attachment C) to the VAR and the VAR, at Infoseek's option, may be
responsible for providing Updates to Support and Update Services plan
participants.
3.10 Achievement of Objectives. VAR shall use its best efforts to achieve or
exceed the respective Quarterly Purchase Goals shown in Attachment D. VAR
performance against such Quarterly Purchase Goals shall be computed based
upon the total applicable dollars invoiced to VAR by Infoseek during the
applicable quarter, net of Software returns received by Infoseek during
such quarter. These Quarterly Purchase Goals are not intended to be
guarantees, but rather to be objectives, and failure to achieve such
objectives during any quarter may be cause for termination of this
Agreement.
4. Responsibilities of Infoseek. Throughout the term hereof:
4.1 Non-Exclusive VAR. Infoseek may at its discretion sell or permit other
persons to sell Software licenses and Support and Update Services plans
within the Territory.
4.2 Training. Infoseek at its expense may hold training sessions for VAR's
representatives, and upon introduction of new Software, by providing access
to online materials, video training and/or online conferences.
4.3 Products Meet Specifications. Infoseek will supply Software to VAR under
this Agreement which shall substantially conform to the product
specifications as set forth in the applicable Software documentation. The
foregoing does not, in any way, constitute a warranty on the Software; the
sole warranty concerning the Software, if any is set forth in the
applicable on line end user license agreement (the "License") for the
Software. Infoseek current form(s) of License is attached as Attachment E.
Infoseek reserves the right to modify the License from time to time.
4.4 Proprietary Information and Trademarks. Infoseek shall abide by the
provisions of Section 7 concerning protection of its trademarks, copyrights
and patents; and defense of VAR for actions involving persons asserting
that the Software infringes their proprietary rights.
4.5 Support. Infoseek shall honor its obligations pursuant to Paragraph 3.10
above for Customers purchasing Support and Update Services plans from VAR
pursuant to Paragraph 5.4.
5. Terms of Sales.
5.1 Evaluation (Disabled) Copies. Infoseek will provide to VAR an enabling key
and a copy of the software for evaluation, prior to purchase for a period
of up to 30 days.
5.2 Licensed (Enabled) Copies.
a. When VAR has an order from a Customer for the Software, VAR will place
an order with Infoseek. Upon acceptance of such order, Infoseek shall
deliver to the VAR the license key enabling the Software. Upon such
delivery of the Software license key to VAR the sale of the license
shall be deemed completed and VAR shall pay to Infoseek the applicable
amount, pursuant to Attachment A hereto.
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b. Orders pursuant to Paragraph 5.2(a) above may be placed by facsimile
followed by mailing the signed original purchase order. The order may
be accepted by facsimile. Any provisions on a VAR purchase order or
any Customer purchase order and Infoseek sales order are inapplicable
except as to the quantity of Software license orders and orders
accepted.
5.3 Taxes. All prices are in U.S. dollars and are exclusive of taxes. VAR shall
pay all taxes, whether currently or hereafter applicable, assessed or
arising out of transaction, including, without limitation, occupation,
property, excise, value-added sales or use taxes imposed upon the VAR,
Infoseek or the Software, but not including any taxes based upon Infoseek's
net income.
5.4 Infoseek Support and Update Services. Unless otherwise agreed to in
writing, and except and as provided in the License, prices do not include,
and Infoseek shall have no responsibility for, installation and/or
maintenance of the Software. Notwithstanding the foregoing, VAR may
purchase Support and Update Services from Infoseek, if available for the
Software licensed, pursuant to Paragraph 3.9 for a Support and Update
Services plan participant by ordering same.
5.5 Non-price terms. VAR agrees that its acquisition of the Software is
governed by the License. Infoseek agrees to permit VAR to distribute the
Software using the License, and only the License, to its Customers. VAR
agrees that all Software it provides its Customers shall include the
License.
5.6 Price Terms. Prices for Software and Support and Update Services provided
by Infoseek to VAR from time to time hereunder shall be at Infoseek's then
current published retail list prices adjusted by the applicable VAR
discount specified in Attachment A in effect at the time the order is
accepted by Infoseek. Infoseek reserves the right at its sole discretion to
increase or decrease the full list price and the discount specified in
Attachment A at any time upon notice to VAR. Notwithstanding the foregoing,
if Infoseek shall increase the full list prices, Infoseek shall honor the
out-dated prices for any order placed within thirty (30) days of such
increase where the most recent quotation was one property given by VAR to a
Customer based upon the out-dated prices.
5.7 Payment Terms. Payment and payment terms are specified in Attachment A
hereto.
5.8 Orders. All orders are subject to acceptance by Infoseek. Infoseek agrees
that so long as VAR is not in breach of this Agreement, Infoseek will
promptly accept orders from VAR for current items. Prices for all Software
ordered shall be based on the Attachment A discount in effect on the date
Infoseek accepts the order from VAR.
6. Placement of Orders and Delivery
No Consequential or Incidental Damages. Upon acceptance of orders placed by
VAR, Infoseek will exercise its reasonable efforts to deliver the Software
license keys enabling the Software in accordance with such orders, but if,
for any cause, Infoseek should fail to make such deliveries or fail to make
them within the time specified in the orders, Infoseek shall not be liable
for any damages by reason of such failure or delay. IN NO EVENT SHALL
INFOSEEK BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES DUE TO DELAYS IN
DELIVERY HOWEVER CAUSED.
7. Proprietary Information/Nondisclosure: Trademarks.
7.1 Nondisclosure of Proprietary Information. VAR acknowledges that, in the
course of acquiring and distributing the Software and performing its duties
under this Agreement, it will obtain information relating to the Software,
and to Infoseek which is of a confidential and proprietary nature and
therefore requires that certain steps be taken to ensure its protection.
The term "Proprietary Information" shall mean all information Infoseek
discloses to VAR which has been either characterized in writing as
confidential at the time of its disclosure or orally characterized as
confidential at the time of disclosure and such characterization is
confirmed in writing within fifteen (15) days of such disclosure, except
for information which:
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a. is previously rightfully known to the VAR without restriction on
disclosure; or
b. is or becomes, from no act or failure to act on the VAR part,
generally known in the relevant industry; or
c. is disclosed to the VAR by a third party as a matter of right and
without restriction on disclosure.
The VAR shall have the burden of proving by clear and convincing evidence
that one (1) of the foregoing three (3) exceptions applies and shall notify
Infoseek of any proposed disclosure in reliance upon any of such exceptions
at least fifteen (15) days in advance specifying the proposed disclosure
and the relevant exception(s).
Although certain information may be generally known in the relevant
industry, the fact that Infoseek uses same may not be so known and in such
instance would comprise Proprietary Information if so characterized.
Furthermore, the fact that various fragments of information or data may be
generally known in the relevant industry does not mean that the manner in
which the Infoseek combines them, and the results obtained thereby, are so
known and in such instance would also comprise Proprietary Information if
so characterized. Such Proprietary Information may include, not by way of
limitation, trade secrets, know-how, inventions, techniques, processes,
programs, schematics, theories of operation, software source documents,
data, customer lists, financial information, and business, sales and
marketing plans and data.
VAR shall at all times, bot during the term of the Agreement and for a
period of at least four (4) years after its termination, keep in confidence
and trust all such Proprietary Information, and shall not use such
Proprietary Information other than in the course of its duties under this
Agreement, nor shall VAR disclose any of such Proprietary Information
without the written consent of Infoseek. VAR shall not disclose Proprietary
Information to any consultant to or employee of VAR who does not have the
need to know same to perform work for VAR and who is not party to an
agreement with VAR to maintain the confidentiality of the Proprietary
Information.
7.2 Use of Infoseek's Name. Subject to Section 7.3 below, VAR is permitted to
use the name and logo of Infoseek and Ultraseek Server for all proper
purposes in the sale of Software licenses and the performance of VAR duties
under this Agreement. As per Section 8.7 below upon termination of this
Agreement for any reason, VAR shall discontinue the use of Infoseek and
Ultraseek Server name and logo in any sign or advertising and thereafter
shall not use the name(s) or logo(s) directly or indirectly in connection
with its business, nor use any other name, title or symbol so nearly
resembling the Infoseek or Ultraseek Server name or logo as to be likely to
lead to confusion or uncertainty or to deceive the public.
7.3 Use of Trademark
a. It is expressly agreed that the ownership and all right, title and
interest in and to any trademark, trade name, patent, copyright or
other proprietary right relating to the Software is and shall remain
vested solely in Infoseek; provided, however, that as permitted by
this Agreement, VAR may use any existing or future trademark, trade
name, patent, copyright or other proprietary right relating to the
Software, such use to be limited to sublicensing, promoting, selling,
installing or maintaining the Software. VAR shall continually use its
best efforts to protect Infoseek trademarks, trade names, patents,
copyrights, and other proprietary rights, but shall not be required to
initiate legal action against third parties for infringement thereof
provided VAR notifies Infoseek of any infringement of which it has
actual knowledge. VAR shall not use, directly or indirectly, in whole
or in part, Infoseek name or any other trade name or trademark that is
owned or used by Infoseek ("Marks") in connection with any product
other than the Software, without the prior written consent of
Infoseek. Upon notice from Infoseek of its objection to any improper
or incorrect use of such Marks, VAR shall correct or change such
usage. VAR shall indemnify and hold Infoseek harmless from any and all
liability, charges and/or costs of defending against claims arising
from the intentional improper use by VAR of such Marks after Infoseek
has in writing objected to VAR use of them.
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b. All use by VAR of the Marks shall inure exclusively to the benefit of
Infoseek and Infoseek shall retain the exclusive right to apply for and
obtain registration of the Marks in all states of the United States and
all countries of the world. Upon request of Infoseek, VAR shall assist
Infoseek, but not bear the expense of, securing patents, trademarks,
trade names or copyrights in the Territory in which Software licenses
are or will be sold under this Agreement, for technology or products
developed by Infoseek, or names or material originated by Infoseek.
Except as described in the previous sentence, VAR agrees not to obtain
or attempt to obtain by any manner whatsoever any right, title or
interest in or to any of the Marks or any mark or name confusingly
similar thereto. VAR shall, and hereby does assign to Infoseek any and
all proprietary interests it may obtain under the law of any
jurisdiction in the Territory in the name and/or trademarks or words
associated with Infoseek, or the Software, due to use or registration
by VAR of such names, trademarks or words in the Territory. Unless
otherwise agreed to in writing by Infoseek VAR shall sell Software
licenses only under the Marks affixed thereon or on the packages in
which they are delivered and VAR shall not have the right to eliminate
such Marks or add any other trademark, copyright or patent notice, or
trade name thereto.
7.4 Ownership of Improvements. VAR hereby agrees to communicate promptly to
Infoseek any and all modifications, design changes or improvements to the
Software suggested by any Customer, employee, consultant or agent of VAR.
VAR may not modify the Software in any way without the prior written
consent from Infoseek.
7.5 Return of Materials Upon Termination. As per Paragraph 8.6b. below, upon
termination of this Agreement at any time, for any reason, VAR shall
immediately return to Infoseek all Proprietary Information (including all
copies thereof) then in the possession or custody or control of VAR.
7.6 Infringement. Infoseek agrees to defend or settle at its option any action
at law against VAR to the extent arising from a claim that a permitted use
of the Software under this Agreement infringes any U.S. patent, U.S.
copyright or other U.S. intellectual property right, provided VAR gives
Infoseek notice of any such claim within ten (10) days of VAR notice
thereof and Infoseek has control of such defense or settlement negotiations
and VAR provides reasonable assistance in its defense. In the event of
such a claim of infringement, Infoseek, at its option, may provide VAR with
substitute Software to replace Software then on order by VAR. Infoseek
will not be liable under this Section 7.6 if the infringement arises (a)
out of Infoseek's compliance with VAR's written instructions for the
marking, labeling, or design of Software or (b) out of VAR's activities
after Infoseek has notified VAR that Infoseek believes in good faith that
VAR activities will result in such infringement. Infoseek's liability to
VAR under this Section 7.6 shall be limited to the amount paid to Infoseek
by VAR for the Software causing the infringement giving rise hereto. The
foregoing states the entire liability of Infoseek with respect to
infringement of copyrights, trademarks or other intellectual property
rights.
8. Term and Termination.
8.1 Term. This Agreement shall be effective on the date executed by Infoseek,
(the "Effective Date") and shall continue in full force and effect for
twelve (12) months thereafter (the "Initial Term"). Notwithstanding the
foregoing, this Agreement may be terminated pursuant to the following
Section 8.2. Infoseek reserves the right to revise the Quarterly Purchase
Goals as defined in Attachment E at the end of the Term. Any renewal of
this Agreement shall be upon mutually agreeable pricing, terms and
conditions mutually agreed upon by both parties and specified in an
Amendment to this Agreement.
8.2 Termination.
a. Mutual Consent. This Agreement may be terminated at any time upon
mutual consent of the parties, evidenced by a written agreement signed
by an authorized officer or representative of VAR and by an officer of
Infoseek.
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b. For Cause. Either party may terminate this Agreement upon written
notice to the other party without advance notice if the other party:
i. materially breaches the terms of this Agreement (and without any
attempt to list all material breaches, any delinquency by VAR in
transmitting any due payment or status reports to Infoseek is
hereby deemed to be a material breach of this Agreement by VAR)
and such default continues uncorrected for a period of thirty (30)
days after notice in writing thereof to such other party (or in
the case of monies due ten (10) days); or
ii. becomes insolvent or is adjudged as bankrupt; makes an assignment
for the benefit of creditors; has a receiver appointed; files a
petition of bankruptcy; initiates reorganization proceedings;
causes or permits to occur any similar event under the laws of its
domicile; or ceases to conduct its operations in normal course of
business.
c. Upon Merger. This Agreement shall be subject to immediate termination
upon the occurrence of any of the following unless Infoseek provides
prior written consent thereto, which consent will not be unreasonably
delayed or withheld:
i. VAR is acquired, merged into, or consolidated with another
corporation or organization; or
ii. VAR sells, transfers or leases all or any substantial part of its
assets except in the ordinary course of business; or
iii. One valid reason for Infoseek withholding its consent is
reasonable doubt that VAR's successor assignee can adequately
perform VAR's duties under this Agreement or carries competing
software.
d. Failure to Meet Goals. This Agreement may be terminated by Infoseek
upon thirty (30) days notice if VAR fails to meet the Quarterly
Purchase Goals specified on Attachment D for any quarter.
e. For Convenience. Either party may terminate this Agreement for its
convenience upon at least thirty (30) days prior written notice to the
other party.
8.3 Procedure Upon Termination. Upon the effective date of such termination,
neither party shall have any further or other obligation to the other,
except as follows:
a. Processing Accepted Orders. Provided termination has not occurred
pursuant to Paragraph 8.2b. hereof, Infoseek shall process and complete
all orders received and confirmed prior to the notice of such
termination. If termination has occurred pursuant to Paragraph 8.2b.
hereof, Infoseek may, but shall not be obligated to, process such
orders.
b. Payment of Sums Due. VAR shall pay any and all sums then owing to
Infoseek hereunder, including all sums payable on account of orders
completed under Section 8.4 above.
c. Proprietary Information
i. Maintain Confidentiality of Proprietary Information. For a period
of not less than four (4) years after said termination, VAR agrees
to maintain in the strictest of confidence any and all Proprietary
Information which is received from Infoseek during the term
hereof, and to refrain from disclosing the same to any third party
for such period.
ii. Return of Proprietary Information. VAR shall immediately return
all Proprietary Information and leads (including all copies
thereof) then in VAR's possession. See Section 7.5.
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d. Non-use of Name and Trademarks. Except and only to the extent
permitted in Section 7.3, VAR shall immediately discontinue the use of
the name, trade name, trademark, signs, symbols, stationery,
advertising or anything else that might make it appear that VAR is
still sublicensing, handling, selling or promoting the Software.
Thereafter, VAR will not use, either directly or indirectly, any
trademark or trade name owned by Infoseek or any other name, title,
expression or mark so nearly resembling the same as to be likely to
lead to confusion or uncertainty or to deceive the public.
e. No Consequential Damages. It is further agreed and understood that
Infoseek shall not be liable to VAR in the event of termination,
expiration or failure to agree upon an extension of the term of this
Agreement, for compensation, reimbursement or damages on account of
the loss of prospective profits, or anticipated sales, or on account
of expenditures, investments, leases or commitments in connection with
the business or goodwill of VAR.
f. Treatment of VAR Customers. Irrespective of any termination, Infoseek
shall not take any action which would intentionally harm Customers of
VAR licensing Software subsequent to the termination of this
Agreement. In this regard, Infoseek will honor its warranty contained
in Section 10 and in the License, will respond to requests for
information from such Customers, and will honor its duties pursuant to
Paragraph 3.9 to VAR.
9. Warranty.
9.1 License. The warranty Infoseek is providing to VAR on the performance and
quality of the Software, if any, is contained in the License. There is no
warranty associated with the Infoseek's fulfillment of any support
responsibility it may have pursuant to Paragraph 3.9.
9.2 No Upgrade Duty. Except as may be provided in Paragraph 3.9, it is
understood that Infoseek shall have no responsibility to upgrade its
Software under its warranty obligation or otherwise through the
installation or provision of new or improved software programs or packages.
9.3 No Implied or Other Express Warranties. THE FOREGOING WARRANTY IS EXPRESSLY
IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY
OTHER OBLIGATION ON THE PART OF INFOSEEK IN THIS REGARD, AND SHALL
CONSTITUTE VAR'S SOLE RIGHT AND REMEDY UNDER THIS AGREEMENT WITH RESPECT TO
A DEFECTIVE PRODUCT.
9.4 No Consequential Damages. Infoseek shall not be liable, under any legal
theory, tort, contract, or otherwise, to VAR, its distributors, dealers,
agents or Customers, for lost profits or special, incidental or
consequential damages associated with the Software, even if Infoseek shall
have been advised of the possibility of such damages.
10. Miscellaneous.
10.1 Independent Contractor. VAR and Infoseek are and at all times shall be and
remain independent contractors as to each other, and at no time shall
either be deemed to be the agent of the other, and no joint venture,
partnership, agency or other relationship shall be created or implied
hereby or herefrom. Except as is expressly set forth herein, each party
shall bear full and sole responsibility for its own expenses, liabilities,
costs of operation and the like. Neither party has or shall have the power
to bind the other party or to assume or to create any obligation or
responsibility, express or implied, on behalf or in the name of the other
party.
10.2 Assignment. The rights of VAR under this Agreement may not be assigned, in
whole or in part, by operation of law or otherwise, without the prior
express written consent of Infoseek which consent may be withheld for any
reason, and any attempted assignment of rights, duties or obligations
hereunder without such consent shall be null and void.
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10.3 Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties, their successors and permitted assigns.
10.4 Severability. If the application of any provision or provisions of this
Agreement to any particular facts or circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then (a)
the validity and enforceability of such provision or provisions as
applied to any other particular facts or circumstances and the validity
of other provisions of this Agreement shall not in any way be affected or
impaired thereby and (b) such provision(s) shall be reformed without
further action by the parties to make such provision(s) valid and
enforceable when applied to such facts and circumstances.
10.5 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which together shall constitute
one agreement.
10.6 Notices. Any notice, request, demand, or other communication required or
permitted hereunder shall be in writing and shall be given by personal
delivery, U.S. mail, certified, or registered, postage prepaid, return
receipt requested or international courier service as applicable, to the
parties at their respective addresses first set forth above, or to any
party at such other addresses as shall be specified in writing by such
party to the other party. All notices, requests or communications shall
be deemed effective upon the personal delivery, or two (2) business days
following deposit in the U.S. mail or three (3) business days following
deposit in an international courier service.
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NOTICES TO INFOSEEK: NOTICE TO VAR:
Ultraseek Corporation Smartsources.com, Inc.
Attention: Legal Department Attention: Legal Department
1399 Moffett Park Drive 2030 Marine Drive, Suite 100
Sunnyvale, CA 94089 USA North Vancouver, BC V7P 1D7
Tel: (408) 543-6000 Tel: (604) 986-0889
Fax: (408) 734-9358 Fax: (604) 904-8362
</TABLE>
10.7 Paragraph Headings. The paragraph and subparagraph headings in this
Agreement are solely for convenience and shall not be considered in its
interpretation.
10.8 Limitation of Liability. Any provision herein to the contrary
notwithstanding, in no event shall Infoseek be liable for incidental or
consequential damages and in no event shall the liability of Infoseek
arising in connection with any Software or support hereunder (whether
such liability arises from a claim based on contract, warranty, tort or
otherwise) exceed the actual amount paid by VAR to Infoseek for such
Software licenses or support delivered hereunder.
10.9 Force Majeure. If the performance of this Agreement or any obligation
hereunder (except payment of monies due) is prevented, restricted or
interfered with by reason of fire or other casualty or accident; strikes
or labor disputes; inability to procure raw materials, power or supplies;
war or other violence; any law, order proclamation, regulation,
ordinance, demand or requirement of any governmental agency or
intergovernmental body; or any other act or condition whatsoever beyond
the reasonable control of the parties hereto, the party so affected, upon
giving notice to the other party, shall be excused from such performance
to the extent of such prevention, restriction or interference for a
period of up to four (4) months.
10.10 Waiver. A waiver by either party of any term or condition of this
Agreement or any breach thereof, in any one instance, shall not be deemed
or construed to be a waiver of such term or condition or any subsequent
breach thereof.
10.11 Entire Agreement: Amendment. This instrument contains the entire
integrated Agreement between the parties hereto and supersedes all prior
negotiations, representations or agreements, whether
<PAGE> 10
written or oral. It may be amended only by a written instrument signed by
a duly authorized officer of each party. Any conflicting provision
contained in any unilateral document shall be null and void.
10.12 Choice of Law and Forum. Except for that body of law governing choice of
law, this Agreement shall be governed by, and construed in accordance
with, internal laws of the State of California which govern transactions
between California residents. The parties agree that any suit or
proceeding in connection with, arising out of or relating to this
Agreement shall be instituted only in a court (whether federal or state)
located in Santa Clara County in the State of California, and the
parties, for the purpose of any such suit or proceeding, irrevocably
agree and submit to the personal and subject matter jurisdiction and
venue of any such court in any such suit or proceeding and agree that
service of process may be effected in the same manner notice is given
pursuant to Paragraph 11.6 above.
10.13 Incorporation of Attachments. The Attachments referred to herein and
annexed hereto are incorporated and made part of this Agreement.
Authorized Signatures
In order to bind the parties to this Agreement, their duly authorized
representatives have signed their names below on the dates and at the places
indicated.
SmartSources.com, Inc. Ultraseek Corporation
("VAR") ("Infoseek")
By: /s/ Nathan Nifco By: /s/ Laura R. Beauchesne
------------------------------ -----------------------------------
Name: Nathan Nifco Name: Laura R. Beauchesne
------------------------------ -----------------------------------
Title: CEO Title: VP & Deputy General Counsel
------------------------------ -----------------------------------
Date: May 5, 2000 Date: May 5, 2000
------------------------------ -----------------------------------
<PAGE> 11
Attachment A
SOFTWARE/PAYMENTS
A. SOFTWARE:
Ultraseek Server & CCE (currently v. 3.1)
B. CURRENT LIST PRICE
See Infoseek's then current applicable published U.S. Retail Price List
for the Software
C. DISCOUNT LEVEL* (off of Infoseek's then current applicable published
U.S. Retail Price List):
Total Cumulative %
Volume Discount
---------------- -----------
less than $10K 10%
$10K-100K 20%
greater than $100K 30%
*Volume and discounts shall not apply to Software support sales.
D. Payment for VAR's initial order is due and payable upon execution of this
Agreement by VAR, and payments for all subsequent quarterly orders are due
and payable upon placement of such orders. Payment remittance shall be to:
Bank: Bank of America
San Francisco, CA
ABA Number: 121000358 (DOMESTIC TRANSACTIONS ONLY)
Account Name: Infoseek Corporation
Account Number: 12335-30390
Swift ID BOFAUS6S (FOREIGN TRANSACTIONS ONLY)
<PAGE> 12
Attachment B
Purchase Requirement
A. VAR agrees to acquire one (1) prepaid license for the Software specifically
as restricted:
Each license is to be resold only to companies for intranet
or public web site use (only for content that is owned or controlled by the
Customer.)
B. No U.S. or federal government sales under GSA, except as expressly allowed
by Infoseek in writing in advance.
C. Assignment of licenses is subject to Infoseek's prior written approval
(Infoseek issues the license keys).
D. No sales to educational institutions except as expressly allowed by
Infoseek in writing in advance.
<PAGE> 13
Attachment C
Support and Update Plan Services
Infoseek acknowledges that neither VAR nor Customer has a license to source code
for the Software and therefore, if VAR or Customer is unable to make the
necessary correction to the Program Error, Infoseek shall then, within a
reasonable timeframe, acknowledge via the same communications media receipt of
the problem description and in the timeframes specified below, use commercially
reasonable efforts to correct the Program Error. Infoseek's Program Error and
Support obligations as specified herein shall apply to the Software release
corresponding to the then current Software release or, for a six (6) month
period after purchase by Customer and delivery of a new major release to the
prior sequential release of the Software product.
Program Error Severity Levels
Program Error Category Calendar Day Acknowledgment Time
---------------------- --------------------------------
Level 1
Critical (system down, data corruption) One (1) day by email
Level 2
Major business impact Two (2) days
Level 3
Some business impact but workaround Thirty (30) days
available
Level 4
Minimal impact Sixty (60) days
<PAGE> 14
Attachment D
Quarterly Purchase Goals
Quarterly Purchase Goals ($U.S.)
First Quarter $10,000
Second Quarter $25,000
Third Quarter $50,000
Fourth Quarter $100,000
<PAGE> 15
Attachment E
Ultraseek Server License Agreement
INFOSEEK CORPORATION
ONLINE LICENSE AGREEMENT
Ultraseek Server-Product Version 3.1
1. LICENSE
a. Subject to the terms and conditions of this Online License Agreement
(the "Agreement"), Ultraseek Corporation ("Infoseek") grants to You a
non-transferable, non-exclusive, limited license to use on a single
server the Ultraseek Server Product Version 3.1 in binary executable
form only (the "Software"), and the documentation therefor
(collectively the "Product"), solely in conjunction with the permitted
use hereunder. Such use shall be solely to (i) provide an index of
content You select for search only by Your employees and Your
contractors; or (ii) provide an index of content created or maintained
by You and located on a public Web server maintained by You for search
by the public. Such license specifically excludes the use of the
Software to index content on any other public Web servers for use by
the public. This license shall be limited to indexing the number
("Number") of documents, sites and collections, respectively, specified
on Your contract, purchase order, or invoice. If You desire to increase
the Number, You may do so by notifying Infoseek and paying the
applicable price. A license key which enables the Software may be
forwarded to You electronically. The term "Software" includes the Adobe
Acrobat Toolkit and related documentation, and any upgrades, modified
versions, updates, additions, and copies thereof.
b. The Software includes the expat XML Parser Toolkit (the "Expat
Module"). The source code for the Expat Module is available under the
terms and conditions of the Mozilla Public License Version 1.1 (the
"Mozilla License"). The source code for the Expat Module and a copy of
the Mozilla License are available on the World Wide Web at
http://www.jclark.com/xml/expat.html and
http://www.mozilla.org/NPL/NPL-1 1Final.html, respectively. Any rights
You may have in the source code for the Expat Module under the Mozilla
License shall not be deemed to be limited or altered by the terms and
conditions of this Agreement. Any terms related to the XML Module
herein which differ from the terms of the Mozilla License are offered
by Infoseek only and not by the developer or any contributor to the
Expat Module.
c. The HTML and Python source code included in the Product may be used
only in conjunction with the Software and modifications to such source
code may be made to facilitate use of the Software; provided, however,
such use and modifications shall be subject to all the terms and
conditions of this Agreement.
d. You may make one backup copy of the Software, provided the backup copy
is not used on any computer. Any copies that you are permitted to make
pursuant to this Agreement must contain the same copyright and other
proprietary notices that appear on or in the Software.
e. Nothing herein shall be construed as granting license rights to the
Software for any other purpose, including, without limitation, a
general Internet or general intranet search service.
f. THE PRODUCT MAY NOT BE USED, COPIED, TRANSFERRED, OR MODIFIED
EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT.
2. TERM
The term of the license granted herein is perpetual unless terminated upon
default or as otherwise set forth herein. You may terminate this Agreement
and the license hereunder at any time by
<PAGE> 16
destroying Your copy of the Product, including backup copies. Such license
and this Agreement will also terminate automatically upon Your breach of
any provision of this Agreement. Upon any such termination You must
immediately destroy all complete and partial copies of the Product,
including all backup copies hereof.
3. TITLE; CONFIDENTIALITY; RESTRICTED USE
All right, title and interest (including copyright) in and to the Product
shall remain in Infoseek and/or its licensors. The Product is also
protected by United States Copyright law and international treaty
provisions. Portions of the Software may be patented under U.S. Patent
5,659,732. The Product and the structure, organization and code of the
Software are confidential and proprietary information of Infoseek and/or
its licensors. You agree to take adequate steps to protect the Product from
unauthorized disclosure or use. You acknowledge that the source code of the
Software remains a confidential trade secret of Infoseek and/or its
licensors. Except as expressly permitted herein, You agree not to adapt,
translate or modify the Software. You agree not to decipher, decompile,
disassemble, reverse engineer or otherwise attempt to discover the source
code of the Software, or to knowingly allow others to do so, except to the
extent applicable laws specifically prohibit such restriction. You also
agree not to alter the Number or create license keys which enable the
Software, or to knowingly allow others to do so. Trademarks shall be used
in accordance with accepted trademark practice, including identification of
trademark owner's name. Such use of any trademark does not give You any
rights of ownership in that trademark. Except as stated above, this
Agreement does not grant You any intellectual property rights in the
Software. Any trademark, trade name, copyright, or other proprietary
notices, legends, symbols, or labels appearing on or in the Software
provided to You shall not be removed or altered and shall be accurately
reproduced by You on any and all copies of the Software. Title, ownership
rights, and intellectual property rights in and to the content accessed
through the Software are the property of the applicable content owner and
may be protected by applicable copyright or other law. This Agreement
grants no rights to such content and Infoseek disclaims any responsibility
arising out of or related to any access to intellectual property provided
or furthered by use of the Software. If the Software is provided for
demonstration and evaluation purposes, it may be used by You for no longer
than thirty (30) days (or such longer period authorized by Infoseek in
writing), in order for You to determine whether to purchase a license to
enabled Software.
4. WARRANTY DISCLAIMER
INFOSEEK ASSUMES NO RESPONSIBILITY FOR THE SELECTION OF THE PRODUCT TO
ACHIEVE ANY INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE
PRODUCT OR FOR VERIFYING THE RESULTS OBTAINED FROM USE OF THIS PRODUCT.
INFOSEEK AND ITS LICENSORS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR
RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. INFOSEEK MAKES NO
REPRESENTATIONS ABOUT THE SUITABILITY OF THE PRODUCT, OR ABOUT ANY CONTENT
OR INFORMATION MADE ACCESSIBLE BY THE SOFTWARE, FOR ANY PURPOSE. THE
PRODUCT IS PROVIDED "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES,
INCLUDING, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT, OR THAT THE OPERATION OF THE PRODUCT WILL BE
UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE. INFOSEEK SHALL NOT BE LIABLE UNDER
ANY THEORY FOR ANY DAMAGES SUFFERED BY YOU OR ANY USER OF THE PRODUCT.
INFOSEEK MAKES NO REPRESENTATION THAT INFOSEEK WILL SUPPORT THE PRODUCT
AND/OR WILL ISSUE UPDATES OR ENHANCEMENTS TO THE PRODUCT. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE
ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, TO THE EXTENT
PERMISSIBLE, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 90 DAYS FROM
THE DATE OF DELIVERY OF THIS PRODUCT. THIS WARRANTY GIVES YOU SPECIFIC
LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO
JURISDICTION.
<PAGE> 17
5. For license verification purposes. You acknowledge that the Software may
electronically transmit to Infoseek summary data relating to use the
Software including, but not limited to, the number of sites, documents and
collections indexed, and number of queries. Such transmittals shall not
contain any information regarding specific hosts, documents, or queries,
and shall be used solely for the purposes of license verification.
6. You agree that the Software will not be shipped, transferred or exported
into any country or used in any manner prohibited by the United States
Export Administration Act or any other export laws, restrictions or
regulations. Infoseek is not responsible for paying any sales or use tax
imposed at any time whatsoever on the license of the Product.
7. LIMITATION OF LIABILITY
REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS
ESSENTIAL PURPOSE, IN NO EVENT WILL INFOSEEK OR ITS LICENSORS BE LIABLE
(i) FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES
(INCLUDING, BUT NO LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), EVEN
IF INFOSEEK SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE;
OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER
INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE PRODUCT. THIS LIMITATION
OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO
THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO
YOU.
8. This Agreement is personal to You. The license granted hereunder does not
include the right to sublicense and may not be assigned, by operation of
law or otherwise, or transferred without the prior written consent of
Infoseek. Any attempted assignment in derogation hereof shall be null and
void. You may not loan, rent, or lease the Software. Upon termination, the
following sections of this Agreement will survive: 3, 4, 7, 8, 11, and 12.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California, U.S.A., excluding its choice of law
provisions and, as to matters affecting copyrights, trademarks and patents,
by U.S. federal law. This Agreement will not be governed by the United
Nations Convention on Contracts for the International Sale of Goods, the
application of which is hereby expressly excluded. If any part of this
Agreement is found void and unenforceable, it will not affect the validity
of the balance of the Agreement, which shall remain valid and enforceable
according to its terms.
9. This license does not grant to You any right, ;license or interest in and
to any modifications, enhancements, or updates to the Product. Updates, if
available, may be obtained by You at Infoseek's then current standard
pricing, terms, and conditions.
10. U.S. Government Rights: The U.S. Federal Government and entities procuring
this Product on behalf of the Government hereby agree that this Product
qualifies as commercial computer software and computer software
documentation within the meaning of the acquisition regulation(s)
applicable to this procurement. The terms and conditions for this Agreement
shall pertain to the Government's use and disclosure of this Product, and
shall supersede any conflicting contractual terms or conditions. The
following additional statement applies only to procurements governed by
DFARS Subpart 227.4 (October 1988): "Restricted Rights -- Use, duplication
and disclosure by the Government is subject to restrictions as set forth in
subparagraph (c)(1) (ii) of the Rights in Technical Data and Computer
Software clause at DFARS 252.227-7013 (OCT. 1988). Contractor is Infoseek
Corporation, 1399 Moffett Park Drive, Sunnyvale CA 94089 USA.
11. High Risk Activities. The Software is not fault-tolerant and is not
designed, manufactured or intended for use or resale as on-line control
equipment in hazardous environments requiring fail-
<PAGE> 18
safe performance, such as in the operation of nuclear facilities, aircraft
navigation or communication systems, air traffic control, direct life
support machines, or weapons systems, in which the failure of the Software
could lead directly to death, personal injury, or severe physical or
environmental damage ("High Risk Activities"). Infoseek specifically
disclaims any express or implied warranty of fitness for High Risk
Activities. You will not knowingly use the Software for High Risk
Activities.
12. THIS IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU
AND INFOSEEK RELATING TO THE USE OF THE PRODUCT. THE TERMS AND CONDITIONS
OF THIS AGREEMENT SHALL PREVAIL NOTWITHSTANDING ANY VARIANCE WITH ANY
PURCHASE ORDER OR OTHER WRITTEN INSTRUMENT SUBMITTED BY YOU WHETHER
FORMALLY REJECTED BY INFOSEEK OR NOT.
13. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE
TO BE BOUND BY ITS TERMS AND CONDITIONS, IF APPLICABLE, "YOU" OR "YOUR" AS
REFERRED TO HEREINABOVE MEANS THE ENTITY OR COMPANY (THE "COMPANY") AT
WHICH THE SOFTWARE IS INSTALLED PURSUANT TO THIS AGREEMENT. IN SUCH EVENT,
YOU WARRANT AND REPRESENT THAT AS THE INDIVIDUAL CLICKING ON THE "ACCEPT"
BUTTON ON THE LICENSE AGREEMENT PAGE OF YOUR INSTALLATION AND/OR INSTALLING
THE SOFTWARE YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF
THE COMPANY.
You may contact Infoseek at: Ultraseek Corporation, 1399 Moffett Park Drive,
Sunnyvale CA 94089 USA, Telephone: (408) 543-6000, Facsimile: (408) 734-9350.
Infoseek, Ultraseek, Ultraseek Server, and the Infoseek logos are trademarks of
Infoseek Corporation which may be registered in certain jurisdictions. Abode
and Acrobat are trademarks of Abode Systems Incorporated. Copyright (c) 2000
Ultraseek Corporation. All rights reserved.
