TERMS AND CONDITIONS FOR BANTU PRODUCTS AND SERVICES

Transcription

1 All references to Bantu, Inc. (Bantu) in these Terms and Conditions should be read as Contractor (immixtechnology, Inc.), acting by and through its supplier, Bantu. TERMS AND CONDITIONS FOR BANTU PRODUCTS AND SERVICES 1. Term. This Agreement shall continue in effect until terminated in accordance with the terms of Section Definitions. In addition to the terms otherwise defined in this Agreement, the following terms shall have the meanings set forth below: A. "Bantu Software" means the object code version of computer software and related documentation and/or services, including but not limited to any modifications or additions provided to Distributor by Bantu. B. "End User" means a person who is authorized by the Licensee pursuant to the License Agreement to access and use the Software for the Licensee s internal business purposes and without the right to sublicense or redistribute. C. "Enhancements" means each new release of the Bantu Product containing system enhancements that is made commercially available by Bantu to its licensees. Enhancements shall not include any improvements to the Bantu Product which are only furnished to the market by Bantu as separately priced, optional or extra cost improvements. D. Intellectual Property Rights" means patent rights, copyright rights (including, but not limited to, moral rights), trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction. E. "Maintenance" means that Bantu shall use its commercially reasonable efforts to correct defects in the Bantu Product within a reasonable period of time in accordance with Bantu's then-current service level guidelines ("Support Guidelines") or to replace Distributor's copy of the Bantu Product with another non-defective copy of the Bantu Product in Bantu's sole discretion. 3. License. BANTU hereby grants to Licensee a nonexclusive, nontransferable license to access and use the Bantu Instant Messaging and Presence Management Platform in object code form, proprietary software ("Software"), the supporting materials ("Licensed Materials"), (collectively, "Product"). The parties acknowledge that there may be additional Attachments A subsequent to the execution of this Agreement, and such additional attachments shall be incorporated herein upon their execution by both parties. All such authorized users are End-Users for purposes of this Agreement. 4. Scope of Use; Restrictions. A. In no event shall the term Licensee include any related party of Licensee, unless expressly agreed to in writing by both parties. B. Licensee agrees to limit access to the Product to the scope and purpose as well as to the End-Users, and to prohibit access to the Product by other parties and to use commercially reasonable efforts to ensure that its End-Users use the Product only as authorized by this Agreement and for no other purpose. Licensee s commercially reasonable efforts obligations as provided herein shall include, but not be limited to, establishing procedures to monitor access to and enforce the terms of use of the Product. Licensee shall be responsible for any failure of any of Licensee s End-Users to comply with the terms and conditions of this Agreement. Licensee shall be solely responsible for configuring its system to protect its own information. C. Licensee may not copy or otherwise reproduce the Product. Licensee is prohibited from (a) modifying the Product, (b) distributing, sublicensing or otherwise transferring the Product directly or through third parties, (c) altering or removing any copyright or other proprietary rights notices on the Product; and (d) using (or causing to be used) the Software for rental, or immixtechnology, Inc. Page 1 reformatted

2 as a part of a commercial time-sharing or service bureau operation. Licensee shall not decompile, disassemble, or reverseengineer the Software. 5. Nondisclosure. Licensee understands and agrees that the Product contains confidential and proprietary information and data of BANTU and its licensors ("Confidential Information"). During and subsequent to the term of this Agreement, Licensee shall protect such Confidential Information to the same degree that it protects Confidential Information pertaining to its own business, and shall not disclose Confidential Information to any third party except consultants or auditors that sign a nondisclosure agreement which similarly protects Confidential Information from further disclosure, unless Licensee is otherwise required by applicable law to disclose Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information which: (1) is at the time of disclosure, or thereafter lawfully becomes, a part of the public domain through no act or omission of Licensee; or (2) was in Licensee s possession as shown by written records prior to the disclosure and had not been obtained by Licensee either directly or indirectly from BANTU; (3) is hereafter lawfully disclosed to Licensee by a third party who did not acquire the information directly or indirectly from BANTU, or (4) required to be disclosed pursuant to law or government regulation, provided the receiving party uses reasonable efforts to give the disclosing party reasonable notice of such required disclosure. The foregoing rights and obligations shall apply reciprocally with regard to information, which is designated as confidential by Licensee. 6. Consulting Services. At Licensee's request, BANTU may, to the extent reasonably practical, provide mutually-agreed upon installation, configuration, integration, customization, testing, training, systems integration and other standard consulting services related to the Product that BANTU regularly provides during the twelve (12)-month period. 7. Modifications. BANTU may, upon Licensee's request and subject to the reasonable availability of BANTU personnel, provide professional consulting and/or development services relating to the Product to Licensee that are outside the scope of Section 6 above, subject to terms and conditions, including, but not limited to, the additional fees that Licensee shall pay BANTU for providing such services, that are mutually agreed upon in writing by the parties. 8. Maintenance and Support Plan. A. General. Provided that Licensee has paid the Support Plan Fees as defined herein, for the period, ( Renewal Terms ), Licensee shall be enrolled in BANTU's Maintenance and Support Plan ("Maintenance Plan") that entitles two support desk employees of Licensee and two (2) back-up employees (collectively, "Designated Contacts") to Maintenance and Enhancement (described below) for the Software. Licensee shall notify BANTU in writing of the name(s) of its Designated Contacts, and Licensee may change such Designated Contacts upon written notice to BANTU. B. Maintenance and Support. i."maintenance" Provided Licensee has paid the Support Plan Fees to Bantu, Bantu shall provide Maintenance for the Bantu Products. Maintenance shall include access to Enhancements, as defined below, as well as access to bug fixes as part of standard software updates which are made generally commercially available by Bantu. ii. Support Provided Licensee has paid the Support Plan Fees to Bantu, Licensee shall identify two (2) technical personnel to whom Bantu shall provide Support for the Bantu Products (Licensee s Designated Contacts ). Licensee shall notify Bantu in writing of the name(s) of its Designated Contacts, and Licensee may change such Designated Contacts upon written notice to Bantu. iii. "Enhancements" Provided Licensee has paid the Support Plan Fees to Bantu, Bantu shall upon written request from Licensee provide to Licensee one (1) copy of each Enhancement and corresponding technical documentation. immixtechnology, Inc. Page 2 reformatted

3 Enhancements shall not mean improvements to the Bantu Product announced by Bantu as separately priced, optional or extra cost improvements. C. Reinstatement. In the event that Licensee terminates its enrollment in Support Plan, Licensee may re-enroll in Support Plan by accepting the then-current version of Software and paying: (1) the then-current Support Plan Fee; and (2) a reinstatement fee equal to the cumulative annual Support Plan Fees that would have been invoiced during the period the Support Plan was terminated. D. Wavier of BANTU s Obligations. BANTU shall have no obligation to provide Support, Maintenance, Enhancements or Database Updates for the Software to Licensee if: (1) the Software was not used in accordance with BANTU s then current published specifications; (2) Software was modified by Licensee; (3) Licensee s computer malfunctioned and the malfunction caused a defect in the Software; or (4) any other cause within the control of Licensee caused a defect in Software. 9. Reserved. 10. General. A. Restricted Rights. The Software is commercial computer software. If Licensee is a U. S. Government agency, this Agreement is binding on government users in accordance with federal law. Use, duplication, or 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 of DFAR Manufacturer is Bantu Inc., 1819 L Street, #100, Washington, DC, If this Product is licensed on behalf of any unit or agency of the United States Government, the following provisions apply: The Government agrees: (i) if the Product is supplied to the Department of Defense (DoD), the Product is classified as "Commercial Computer Software" and the government is acquiring only "RESTRICTED RIGHTS" as that term is defined in Clause (c) of the DFARS; and (ii) if the Product is supplied to any unit or agency of the United States Government other than DoD, the government's rights in the Product and its documentation will be defined in Clause (c)(2) of the FAR, or in the case of NASA, in Clause (d) of the NASA Supplement to the FAR (or any successor regulations). B. Notices. Any notice required or permitted to be sent under this Agreement shall be sent by certified mail, return receipt requested, via a nationally recognized express courier service, personal delivery, or facsimile to BANTU or to Licensee at the addresses set forth in this Agreement or as changed in accord with this section. Such notices shall be effective when received. C. Severability. Any provision of this Agreement that is held to be invalid by a court of competent jurisdiction shall be reformed to accomplish its original intent to the maximum extent permitted by law, and the remaining provisions shall remain in full force and effect. D. Force Majeure. Neither party shall be liable to the other party for failure or delay in fulfilling its obligations under this Agreement to the extent that such failure or delay is due to causes beyond its control. E. Waiver. Failure or delay by either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition. F. Inspection/Acceptance. The Contractor (immixtechnology, Inc.) can only, and shall only tender for acceptance those items that substantially conform to the software manufacturer s ( Bantu ) published specifications. Therefore, items delivered shall be considered accepted upon delivery. The Government reserves the right to inspect or test any supplies or immixtechnology, Inc. Page 3 reformatted

4 services that have been delivered. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. If repair/replacement or re-performance will not correct the defects or is not possible, the Government may seek an equitable price reduction or adequate consideration for acceptance of nonconforming supplies or services. The Government must exercise its post-acceptance rights- (1) Within the warranty period; and (2) Before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item. G. No Third Party Beneficiaries. It is the intention of the parties that no person or entity other than Licensee and Licensor is or will be entitled to bring any action to enforce any provision of this Agreement against either of the parties. The rights and obligations in this Agreement will be solely for the benefit of, and shall be enforceable only by, the parties and their permitted successors and assigns. H. Independent Parties. BANTU and any third party providing software, equipment or services in conjunction with this Agreement, if applicable, are independent parties. Unless such third party software is incorporated in Software, neither BANTU nor such third party shall be liable for the performance or failure to perform of the other. In addition, BANTU and Licensee are independent parties and neither party shall be deemed to be an agent of, or have any authority to act on behalf of, the other party. I. Export of Products. Licensee agrees that it will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Product, or any technical information about the Product, to any country for which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States Government approval, unless the appropriate export license or approval has been obtained. J. Counterparts. This Agreement may be executed in as many counterparts as may be required, and all counterparts shall collectively constitute a single Agreement. A facsimile or other legally sufficient signature of or on behalf of one or more of the parties hereto shall be deemed an original signature for all purposes. 11. Termination. Upon termination of this Agreement by Licensee for any reason, Licensee shall discontinue use of the Product, and any portion thereof, and return such Product and any and all other BANTU Confidential Information in its possession to BANTU, or, at BANTU s option, destroy such Product, including all upgrades thereto, and such other BANTU Confidential Information and all copies or partial copies thereof. 12. Promotion. Licensee acknowledges and agrees that BANTU may publicize Licensee's implementation of the Product in Bantu's promotional materials, including, without limitation, on BANTU's website, in its marketing materials and in any other media provided that Licensee's Confidential Information is not disclosed, and Licensee provides its approval, which will not be unreasonably withheld. BANTU may include Licensee on a client list without Licensee's prior approval. Licensee hereby grants BANTU a nontransferable, nonexclusive license during the term of this Agreement to use the trademarks, service marks, logo and/or other proprietary marks of Licensee for the sole purposes set forth in this Section and in accordance with Licensee's usage guidelines provided by Licensee to BANTU. Except as required by applicable law, Licensee shall not disclose the terms and conditions of this Agreement to any third party, except auditors or consultants of Licensee with a need to know such information. immixtechnology, Inc. Page 4 reformatted

5 Support Guidelines a. Standard Maintenance and Support. 1. Standard Maintenance shall include Software access to generally commercially released Software Upgrades. 2. Standard Support shall include Bantu s commercially reasonable efforts to support Company s Designated Contacts (as defined in the Agreement and below) to address and respond to Software and Service Issues as defined and in the time frames set forth below in Section 2. i. "Support" shall mean that BANTU shall provide to Designated Contacts reasonable technical telephone consultation relating to the operation of the Software during BANTU s normal business hours, as defined below. BANTU's Support obligations hereunder shall constitute second tier support only; in no event shall BANTU be obligated to provide any support directly to End-Users. ii. Bantu shall not be responsible for providing support to End Users. Subject to receipt by Bantu of the Support Fee as defined in the Agreement, Bantu will provide the support desk employees of Company and two (2) back-up employees (collectively, "Designated Contacts") with Support (as described below) for the Products. Company shall notify Bantu in writing of the name(s) of its Designated Contacts, and Company may change such Designated Contacts upon notice to Bantu. iii. Bantu shall have no obligation to provide Support for the Products to Company to the extent: (1) the Products were not used in accordance with the specifications provided to Company; (2) Products were modified by Company in a manner not contemplated by this Agreement; (3) Company s computer malfunctioned and the malfunction caused a defect in the Products; or (4) any other cause within the control of Company caused a defect in Products. b. Standard Support Availability Times General Service Hours Office Hours 9 a.m. 6 p.m. EST 24/7 Emergency Pager Number Support during Office Hours c. Standard Support Issue Response Times 1. Major Bug involving Site Loss, Inability to Reach Web Servers from Any Location: i. Emergency Pager Notification ii. Response Time, within 30 minutes 2. Feature Not Working as Documented: i. Pager, Voice, during Office Hours ii. Response Time, within 4 hours 3. Response Time: For standard support, Response Time set forth herein is the time within published business hours from which Bantu receives notice of a issue from Company, after which Company can expect a returned call to begin problem resolution. Company may choose to obtain Premium Support (7 by 24 hour support), under which Response Time is the time from which Bantu receives notice of the issue from Company until Bantu calls back. d. Updates/Upgrades: All Product updates and upgrades will occur during a mutually agreed upon maintenance window. e. Premium Maintenance and Support: During the Term of this Agreement, the Parties may also negotiate and agree in writing for Licensor to provide Premium Maintenance and Support services, which might include software and database monitoring and other additional services, the fees for which would be mutually agreed by the Parties. immixtechnology, Inc. Page 5 reformatted