Exhibit 99.1
MASTER LICENSE AGREEMENT
AGREEMENT NO.: BF0906
Customer Name: Bluefly,
Inc.
Address:
42 West 39th Street, Floor 9
City, State, Zip: New
York, NY 10018
This Master License
Agreement is entered into by and between Art
Technology
Group, Inc.,
a Delaware
corporation,
having a place of
business at One
Main
Street, Cambridge,
MA 02142 ("ATG") and
the entity identified
above (together
with any future parent
or subsidiary
entities subject to Section 13.8 below)
("Customer"). The
following Addenda (or any amendment thereof) and Order Forms,
constitute a part of Agreement:
As Applicable:
Addendum A:
Maintenance and Support of Programs
Addendum B:
Professional Services
Order Form: ATG
Product and Support Order Form
1.
DEFINITIONS.
"Agreement" means
this Master License Agreement and all related Addenda,
Amendments, Order Form(s), Attachment(s), Exhibit(s) or
Schedule(s), if any.
"Concurrent User" means any employee or independent contractor of Customer (or,
with certain specified Programs, Customer's end-user) who is
permitted to access
and use the Programs. The maximum number of Concurrent Users is
specified in the
Order Form(s).
"Customer" shall mean the entity listed above under "Customer
Name".
"CPU" means a single
processor incorporated
as part of a single
server. Each
core in a multi-core or dual core processor will be treated as a processor/CPU
for the purpose of this Agreement.
"Development License"
shall mean the right and license to create a Web Site;
however, such license shall not be used for production (live) Web
Sites.
"Documentation" means
the user manuals and other documentation for the Programs
normally made available electronically to Customer with the
Programs. Copies
of
the Documentation may be found on the ATG Web Site at
www.atg.com.
"Effective Date"
shall mean the date that ATG signs this Master License
Agreement.
"Enterprise-Wide License" shall mean the right and license to
install and use in
a production, staging
and development
settings an unlimited number of licenses
of such Programs on
any number of CPUs or Servers, for the duration of the ELA
Term (defined below).
"ELA Term" is defined on the applicable Order Form.
"Individual User"
means any employee or
individual independent
contractor of
Customer to whom Customer has issued a personal user ID and password. Customer
shall ensure that only one personal ID is assigned to each
Individual
User and
that no more than
one Individual User uses a single personal user ID and
password. Individual
User does not mean a
corporation, company,
partnership,
association, entity or
organization. The
maximum number of Individual Users is
specified in the Order Form.
"Maintenance",
"Support" or "Maintenance and Support" shall have the
respective
meanings set forth in the Maintenance and Support Addendum.
"Order(s)" or "Order
Form(s)" means the forms furnished by ATG to Customer
evidencing the
purchase of a license to use a Program
or to receive
support
under this Agreement.
"Price List" means the
publication issued
from time to time by ATG describing
the Programs
then available for license by ATG, and related License Fees,
Maintenance Fees and fees for professional services.
"Production License"
shall mean the right and license to run a live Web Site in
a production environment.
"Program(s)" or "Licensed Program(s)" means the machine-readable, binary code
version of the computer software products listed in Order
Form(s) and described
in more detail in ATG's then current Price List, and any and all
modifications,
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corrections or enhancements which become part of such computer
software product,
as licensed by ATG in accordance with the terms of this
Agreement.
"Server" means a computer file server identified by an individual
IP address and
comprised of one or more CPUs.
"Staging or
Testing License" shall mean the right and license to use the
Programs for quality assurance and load testing of a Web Site. Such
Licenses may
not be used for production purposes or "going live."
2. LICENSE
GRANT AND RESTRICTIONS.
2.1
General.
(a)
Perpetual License.
Subject to the terms and limitations set
forth in this
Agreement, ATG grants
to Customer a
worldwide,
non-exclusive,
non-transferable (except as specifically set forth in this
Agreement), perpetual
right and license to use the one or more Programs listed on an
Order Form.
(b)
Enterprise-Wide
License. Subject to
the terms and
limitations
set forth in this Agreement, ATG grants to Customer an
Enterprise-Wide
License
for those Programs
identified as
"Enterprise"
or "ELA" in the
"License Type"
Column of the Order Form. Beginning on the effective date of the applicable
Order Form and ending on the termination date identified on such Order Form
as
the "ELA Term",
Customer shall have the right and license to install and use an
unlimited number of
licenses of such Programs on any number of CPUs or Servers.
At the end of the ELA Term, Customer shall certify to ATG in
writing the number
of CPUs, Servers or Concurrent Users in active production and use
and Customer's
right and license to continue to use such Programs shall be
perpetual, but shall
be limited to such certified CPUs and Servers.
(c)
License Types. Depending on the Program identified on the
Order,
unless otherwise specified in the applicable Order, a copy of the
Program(s) may
be used in only one of
the following
ways: (1) only on the number of CPUs
associated with
certain Server(s)
identified in the
applicable
Order (or on
replacement Server(s)
identified to ATG in writing); or (2) only on the number
of named Servers
identified in the applicable Order; or (3) not to exceed the
number of Individual Users or Concurrent Users identified in the
Order Form. The
foregoing limitations
shall not apply to an
Enterprise License
during the ELA
Term.
(d)
Restrictions.
(i)
No Hosting
Rights/ASP
Rights. Customer may use the
Programs only to host
its own Internet
site(s) to which third parties may have
access and may not
provide hosting, service bureau or application service
provider services to third parties.
(ii)
Backup Copies.
If a licensed Server is temporarily
inoperable, Customer
may transfer the Programs to another Server having use of
no more than the same number of CPUs as were in the licensed
inoperable Server,
but only until the
inoperable
Server becomes functional or is permanently
replaced. A backup
copy of the Program may also be used for disaster recovery
purposes. Customer may
not copy the Programs,
except for the disaster recover
purposes specified above, unless specifically authorized by ATG in writing.
The
foregoing limitations
shall not apply to an
Enterprise License
during the ELA
Term.
(e)
Supplemental Program Use Restrictions. Supplemental modules are
delivered with and may
be required in order to run certain Programs including
the ATG Content Administration, ATG Commerce, Adaptive Customer
Assistance, ATG
Forum and Adaptive Customer Outreach product modules (collectively, the
"Restricted
Programs"). If
Customer has purchased a Restricted Program
containing supplemental modules, it may only:
(i)
access the
functionality of those
modules for which it
has specifically purchased a license;
(ii) where
required for proper
functioning of the Restricted
Programs, use the supplemental modules to run the Restricted
Program(s);
(iii) use
the Restricted Programs on certain designated
servers ("Designated
Servers"), provided
that, during the ELA Term, it may use
the Restricted Programs on any servers;
(iv) use
the search
engine supplied with the Restricted
Programs to index and access content managed by those Restricted
Programs; and
(v)
use other ATG Programs for which Customer has obtained a
Production license, on
the Designated
Server(s) (other than for the purpose of
running the Restricted Program(s)).
3. TITLE.
3.1
The Programs furnished
under this Agreement
are licensed, not
sold, to Customer. ATG
and its suppliers possess all right, title and interest
in and to the Programs, trademarks, service marks, trade names, trade dress,
trade secrets and Documentation, and Customer acknowledges that it receives
no
such right, title or
interest except for
the limited right of use described in
this Agreement.
3.2
Customer shall do nothing inconsistent with ATG's title to the
Programs, and shall
not reproduce
(except as
specifically
permitted by this
Agreement), decompile,
disassemble,
or reverse
assemble any portion of the
Programs or otherwise
derive its source
code, except to the extent that such
activity is expressly permitted by applicable local law.
4. ORDERING
PROGRAMS AND SERVICES.
4.1
Ordering. An Order
will be binding on both parties when signed
by authorized
representatives
of each party. Each Order shall include the
following information: 1) each Program
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licensed or to which
Maintenance
shall apply, 2) the Server on which such
Program will be used, its location and IP address, 3) the number of
CPUs in each
licensed Server or
Enterprise-Wide
License, and 4) the
fees applicable to the
number of CPUs in each licensed Server and/or covered by
Maintenance
services.
No additional or different terms in any purchase order or similar
document shall
modify the terms of this Agreement whether or not signed by
ATG.
4.2
Additional Licenses. Program licenses are based on the number
of
CPUs in the licensed Server or the number of seats. If Customer
adds one or more
CPUs to a licensed
Server or additional seats, Customer shall notify ATG
promptly (but in no
event less than ten (10) days) of such addition and
immediately purchase a
license based on the additions. The foregoing shall not
apply to an Enterprise
License during the ELA Term, during which time Customer
may freely add CPUs, servers and/or seats.
5.
PAYMENT.
5.1
Fees for Software Licenses. ATG will invoice Customer for
those
amounts set forth in the Order Form upon delivery of a permanent
license key for
the Programs or upon
written authorization to extend the use of the
Programs
(the "License Fees").
5.2
Fees for Maintenance and Support. ATG will invoice Customer and
Customer shall pay ATG
annually in advance
for Maintenance
and Support
(the
"Maintenance Fees").
5.3
Fees for Professional
Services. ATG shall invoice Customer
biweekly for
Services performed during the preceding two weeks (the
"Professional Services Fees").
5.4
General. Customer shall pay all amounts due under this
Agreement
to ATG in U.S. dollars
within thirty (30)
days from the date of receipt of the
invoice, unless
otherwise specified herein or in the applicable Order Form. ATG
may charge interest on overdue amounts at the rate of one and
one-half percent
(1.5%) per month or the highest lawful rate, whichever is less. In the event
that ATG must
institute legal
proceedings
to collect fees due under this
Agreement, Customer
shall be liable for all reasonable attorneys fees and other
costs associated therewith. Customer shall be responsible for all
taxes incurred
with respect to the delivery of ATG's products and services,
except those taxes
based on ATG's income or payroll. If any foreign governmental entity imposes a
withholding tax or VAT on amounts payable to ATG under this
Agreement, amounts
payable to ATG shall be grossed-up so that ATG actually receives
the amounts set
forth on the Order.
6. TERM OF
AGREEMENT.
This Agreement
will begin on the Effective Date and will continue
unless terminated as described herein.
7.
TERMINATION.
7.1
Termination for Breach. Either party (the "Terminating
Party")
may immediately terminate this Agreement or suspend any rights
granted hereunder
upon notice to the other in the event that: (a) the other party breaches any
material term of this
Agreement including the obligation to pay amounts due
under this Agreement
and such breach is not cured within thirty (30) days after
notice from the
Terminating
Party (provided that, to the extent that ATG
terminates this Agreement pursuant to this Section 7.1(a),
it will
immediately
repay to Customer a pro rata portion of any payments made in advance for time
periods extending
beyond the termination
date); or (b) upon the
other party's
dissolution, liquidation,
composition, financial reorganization
or
recapitalization with creditors, assignment for the benefit of
creditors, or the
appointment of a receiver, trustee, custodian, or similar
agent for the party's
business or property.
7.2
Termination without Cause. Customer may terminate this
Agreement
without cause by providing thirty (30) days advance written notice
to ATG.
7.3
Obligations upon Termination. On expiration or termination
under
section 7.1 or 7.2,
each party
shall promptly remit to the other all unpaid
monies due under this Agreement. Notwithstanding the foregoing, if
the Agreement
is terminated,
Customer shall have the right to continue to use, subject to
the
terms and conditions of this Agreement, the Programs previously purchased and
paid for hereunder
(although Customer shall have no right to license additional
copies of the Programs).
7.4
Survival. In addition
to those provisions which by their nature
are intended to survive any termination or expiration of this Agreement or
any
license granted
hereunder,
Sections 2
(License Grant and Restrictions), 3
(title), 5 (Payment), 7.3 (Obligations Upon Termination, 8
(Confidentiality),
9
(Right to Audit), 10
(Limitation
of Warranty and
Liability),
11 (Warranty,
Remedy and Restrictions), 12 (Indemnification and Infringement) and
13 (General)
of this Agreement shall specifically survive such termination or
expiration. It
is expressly
understood and agreed
that Customer has been
granted a perpetual
license to certain
Programs as set forth in Section 2.1, and such license shall
survive any termination of this Agreement.
8.
CONFIDENTIALITY.
The parties
agree not to permit
access to or to
disclose the other
party's Confidential
Information,
except to its authorized employees and
contractors who are
bound by confidentiality agreements with terms no less
restrictive than those
of this Section 8 and
who need to use or have access to
the other party's
Confidential
Information as permitted by this Agreement. A
receiving party
shall use at least the
same degree of care in
protecting the
other party's
Confidential
Information as such
party generally
exercises in
protecting its own most valuable proprietary information and shall inform its
employees having
access to the
Confidential
Information of its
confidential
nature. In no event
shall a party use less than a reasonable degree of care in
protecting
Confidential
Information.
"Confidential
Information"
includes
documents, data,
software
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and information which,
when provided by one
party to the other: a) are clearly
identified as
"Confidential"
or "Proprietary" or are marked with a similar
legend; b)
are disclosed orally or visually, identified as Confidential
Information at the time of disclosure and confirmed as Confidential
Information
in writing within 10
days; or c) a
reasonable person
would understand
to be
confidential or proprietary at the time of disclosure. Results of benchmark and
other tests run by Customer and resulting from use of the Programs shall be
deemed ATG Confidential Information and treated in
accordance with the terms of
this Section.
Notwithstanding the foregoing, the receiving party shall have
no
obligation of
confidentiality with
respect to any
information which:
(a) is
already known
to the receiving party at the time of disclosure; (b) is or
subsequently becomes publicly available through no wrongful act of
the receiving
party; (c) is
disclosed or provided to the receiving party by a third party
without restriction;
or (d) is developed
independently by the
receiving party
without use of or access to the disclosing party's Confidential
Information.
9. RIGHT TO
AUDIT.
Customer shall keep complete and accurate records to permit an
accurate
assessment of Customer's compliance with its permitted Program usage. At any
time upon thirty
days notice, but not more than once per year
unless ATG has
reason to believe that a violation has occurred, ATG may audit Customer's usage
of the Programs
and Maintenance services, either by reviewing Program use
on-site, by telephone
or by means of a self-audit. Such audit shall take place
at a date and time calculated so as to not unreasonably interfere with
Customer's business
operations.
ATG will comply with
all reasonable
security
requirements of
Customer and will
furnish Customer with a copy of its audit
report upon written
request. If an audit
reveals that Customer has used any
Program beyond
the scope of its license, or has failed to pay associated
Maintenance Fees applicable to its use of the Programs, Customer
shall cure such
breach within 30 days of written notice by paying such additional License Fees
or Maintenance
Fees as necessary to cure the breach in
accordance
with this
Agreement. ATG shall
pay the costs of any third party conducted audit, unless
the audit reveals
material (greater than
five percent (5%))
unlicensed use of
any Program, in which case Customer will pay the reasonable costs
of the audit.
10.
LIMITATION OF WARRANTY AND LIABILITY.
10.1
Warranty Limitations.
EXCEPT FOR THE EXPRESS WARRANTIES MADE IN
SECTION 11,
ATG MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED
WARRANTIES OF ANY KIND
AND ATG SPECIFICALLY
DISCLAIMS AND EXCLUDES ALL OTHER
REPRESENTATIONS OR
WARRANTIES,
EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE,
INCLUDING WITHOUT
LIMITATION, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE; IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE,
COURSE
OF DEALING, OR USAGE OF TRADE; OR STATUTORY REMEDY. NO STATEMENT
WHETHER MADE BY
ATG'S EMPLOYEES,
AGENTS OR OTHERWISE,
SHALL BE DEEMED TO BE
A WARRANTY BY ATG
FOR ANY PURPOSE
OR TO GIVE
RISE TO ANY
LIABILITY ON THE PART OF ATG UNLESS
SPECIFICALLY CONTAINED IN THIS AGREEMENT.
10.2
Exclusion of
Consequential and
Related Damages.
EXCEPT FOR A
PARTY'S BREACH
OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 AND ANY
LIABILITY FOR INDEMNIFICATION ARISING UNDER SECTION 12, IN NO
EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR OTHERWISE FOR ANY
INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF
PROFITS, LOSS OF
DATA OR USE OF DATA OR
INTERRUPTION OF
BUSINESS, EVEN IF SUCH PARTY OR ITS
REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS.
10.3
Limitation of
Liability. EXCEPT FOR
A PARTY'S
INDEMNIFICATION
OBLIGATIONS UNDER SECTION 12 AND AMOUNTS OWED HEREUNDER, IN NO
EVENT WILL EITHER
PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT, WHETHER
IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY,
EXCEED THE TOTAL
FEES
PAID BY CUSTOMER TO ATG UNDER THIS AGREEMENT.
11.
WARRANTY, REMEDY AND RESTRICTIONS.
11.1 ATG
Warranty. ATG
represents and w
