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EXHIBIT 10.11
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
THIS SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT (this
"Agreement") is effective as of this ______
day of ___________, 2003 by and
between ___________________________, a
________________ limited liability
company ("NEXVU") and
__________________________ ("RESELLER").
RECITALS
A. RESELLER is a Value Added Reseller specializing in
______________________.
B. NEXVU. has developed a solution that monitors, evaluates,
and
recommends ways to improve the performance
of computer based business
applications and the productivity of those
who use these applications.
C. RESELLER believes that the solutions that NEXVU offers would
enhance
the experience of its customers and desires
to offer NEXVU products to the end
users through its marketing and sales
force.
D. NEXVU desires to increase the number of users of the NEXVU
product
and believes that granting RESELLER certain
rights to promote, market and sell
NEXVU product within its network of
customers will add a substantial number of
users to NEXVU's current customer base.
NOW, THEREFORE, for
and in consideration of the foregoing, and the
mutual promises, covenants and
considerations contained herein, the parties
hereto agree as follows:
1. Use and Distribution Rights. Subject to the terms and
conditions
contained herein, NEXVU hereby grants to
RESELLER, a non exclusive, non
transferable limited license and right to
market, promote, and sell NEXVU
Product only to the end users. In
furtherance thereof, NEXVU hereby grants to
RESELLER a non exclusive, non transferable
license to use the NEXVU Product, in
object code format, for marketing,
promotional, demonstration, and support
purposes.
2. RESELLER Revenue Attainment Goals. In return for NEXVU
authorizing
RESELLER to purchase at a discount, market,
promote and sell NEXVU product to
RESELLER end users, RESELLER agrees to meet
certain revenue objectives. Unless
specifically identified in Exhibit A, all
revenue objectives articulated in this
document refer to net revenue to NEXVU.
Hardware revenues generated from the
sale of NEXVU appliances are not calculated
when establishing RESELLER revenue
attainment.
3. End user Use of NEXVU Product. In connection with the sale
and
distribution of the NEXVU Product to an end
user, RESELLER shall require each
end user to enter into an end user license
agreement (whether in "shrink wrap",
"click wrap" or other form) prior to using
the NEXVU Product. RESELLER shall not
make any agreement, statement or take any
other action
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in connection with a sale of a NEXVU
Product that purports to expand, limit or
otherwise change any of NEXVU's product
warranties, available remedies,
disclaimers and limitations of product
liability as set forth herein or in
NEXVU's standard end user license
agreement.
4. Restrictions on Use and Distribution Rights.
(a) RESELLER may not in any way sell, lease, rent, license,
transfer, transmit, sublicense or otherwise distribute the
NEXVU
Product or any part thereof or the right to use the NEXVU Product
or
any part thereof to any person or entity other than an end
user.
(b) RESELLER shall not nor permit any employee or agent to
disassemble, decompile, decrypt or otherwise reverse engineer the
NEXVU
Product, or in any way attempt to learn the source code,
structure,
algorithms or ideas underlying the NEXVU Product.
(c) RESELLER shall not customize, modify, enhance or otherwise
change the
NEXVU Product, or create derivative works based upon the
NEXVU Product, except as authorized by NEXVU in writing.
(d) RESELLER shall not use, copy or distribute (in whole or in
part) the NEXVU Product or make the NEXVU Product available to
unauthorized third parties.
(e) Any right or license not expressly granted to RESELLER is
reserved to NEXVU. Except as expressly set forth herein, no express
or
implied license is granted to RESELLER to use, receive,
reproduce,
copy, market sell, distribute, license, sublicense, lease,
timeshare,
or rent the NEXVU Product or any part thereof.
(f) RESELLER shall not purchase, use, copy or distribute NEXVU
product from any source other than a NEXVU authorized Distributor
or
NEXVU directly. In addition, RESELLER must be approved by a
NEXVU
authorized Distributor in order to sell NEXVU product to an
End-User.
5. RESELLER's Marketing and Customer Support Activities.
(a) RESELLER shall use its reasonable best effort to promote
and sell the NEXVU Product to the end users. RESELLER shall create
and
distribute to its customer base promotional material and
advertisements
regarding the NEXVU Product.
(b) Within thirty (30) days of the date hereof, RESELLER shall
submit to NEXVU a marketing plan for the sale of the NEXVU Product
to
RESELLER's customer base for NEXVU's approval. RESELLER's shall
make
such changes to the marketing plan as NEXVU may reasonable
request.
(c) RESELLER shall submit to NEXVU, at least ten (10) days
prior to the first proposed use thereof, a copy of all advertising
and
promotional materials for the
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NEXVU Product, and all other material proposed to be used in the
offer
or sale of the NEXVU Product (including any images, pictures or
other
content posted on RESELLER's Website). RESELLER must obtain
NEXVU's
written consent to use such advertising, material and content
(which
consent shall not be unreasonably withheld or delayed) and may
not
revise or amend such materials or content without prior written
approval of NEXVU except to the extent any such revision or
amendment
does not materially change such materials or content and does not
alter
the portrayal or use of any of the NEXVU's trademarks.
(d) RESELLER shall make no representations, warranties or
claims regarding the NEXVU Product which are false, misleading
or
inconsistent with the representations, warranties or
descriptions
provided by NEXVU. RESELLER shall not make any agreement, statement
or
take any other action in connection with a sale of a NEXVU Product
that
purports to expand, limit or otherwise change any of NEXVU's
product
warranties, available remedies, disclaimers and limitations of
product
liability as set forth herein or in NEXVU's standard end user
license
agreement.
(e) RESELLER shall not be required to provide service and
support to the end users, including telephone and web based support
to
end users.
(f) In performing its obligations under this Agreement,
RESELLER shall at all times comply with the provisions of
applicable
federal, state and local laws and regulations.
6. Co Branding. NEXVU hereby grants RESELLER the right to co brand
the
NEXVU Product in connection with offering
them to the end users. Co branding
shall mean the use of the product name that
RESELLER and NEXVU mutually agree
upon to remarket the NEXVU Product to the
end users, followed by the use of
NEXVU's name in a phrase such as "Powered
by NEXVU". The parties shall mutually
agree on the language, marks, names, logos
and other matters concerning the co
branding of the NEXVU Product.
Press Releases. Neither of the parties
shall, without the prior approval of the
other, make any press release or other
public announcement concerning the
transactions contemplated by this
Agreement.
RESELLER agrees to participate in NEXVU
public relations initiatives, including
news releases, media interviews, and/or
trade show appearances. RESELLER also
agrees to allow NEXVU to use its name as a
customer reference in news releases,
Web site materials, and in press
interviews.
7. Fees and Payment.
(a) RESELLER agrees to pay its NEXVU Authorized Distributor
for Product(s) sold by RESELLER to Distributor net thirty (30)
days.
Distributor shall have no obligation to ship Products where any
amount
of RESELLER obligation to Distributor is past due or where RESELLER
is
otherwise in default of any of its obligations to
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Distributor or NEXVU hereunder in any material respect.
Distributor
shall have no liability to RESELLER for failure to supply any
Product
for lack of payment.
(b) In connection with the sale of the NEXVU Product to an end
user, RESELLER shall cause the end user to pay the agreed upon
price
directly to RESELLER. RESELLER also agrees to pay NEXVU or the
NEXVU
authorized distributor for the product at the agreed upon
pricing/discount schedule set forth and stated in Exhibit A.
8. Protection of Proprietary Information.
(a) NEXVU retains all right, title and interest in and to the
NEXVU Product, and any patent, copyright, trade secret,
trademark,
service mark or other intellectual property or proprietary rights
in
the NEXVU Product (the "NEXVU Property"). NEXVU grants only
those
rights and licenses expressly provided for in this Agreement and
does
not thereby transfer any title or ownership interest in the
NEXVU
Property. Except as agreed by NEXVU in connection with the co
branding
as contemplated by Section 5, RESELLER shall not remove or alter,
or
cause or allow to be removed or altered, any trademark, trade
name,
service mark, copyright notice or other proprietary rights notice
or
legend appearing in or on any of the NEXVU Property. RESELLER shall
not
register or attempt to register any of NEXVU's trademarks,
service
marks, logos, domain names or brands, or substantially or
confusingly
similar trademarks, logos, domain names or brands, anywhere in
the
world.
(b) RESELLER recognizes the validity of NEXVU's trademarks and
trade names (collectively, the "Trademarks") and acknowledges that
such
Trademarks are the sole property of NEXVU. Except for the
limited
rights set forth in Section 4(c), RESELLER is not being granted
or
conveyed any license or proprietary rights in such Trademarks
hereunder, and shall not infringe upon, dilute or harm NEXVU's
rights
in its Trademarks. RESELLER shall not use any Trademarks in
connection
with the sale, marketing and promotion of the NEXVU Products other
than
those used by NEXVU or its supplier or authorized by NEXVU in
writing.
RESELLER shall not use the Trademarks in any manner without
submitting
such proposed use to NEXVU and obtaining prior written approval
thereof
from NEXVU
(which consent shall not be unreasonably withheld or
delayed).
(c) Upon any termination of the Agreement, RESELLER agrees to
discontinue immediately all use of the Trademarks and to destroy
or
deliver to NEXVU (at NEXVU's election) all advertisements,
brochures,
displays, designs, posters, and, other promotional materials in
RESELLER possession or control that contain any such Trademark or
that
refer to the NEXVU Product.
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9. Mutual Confidentiality
(a) Each party acknowledges that both NEXVU and RESELLER offer
commercially valuable products respectively, and the design and
development of which reflects the effort of skilled experts,
the
investment of considerable time and money and that the loss of
competitive advantage due to unauthorized disclosure or
unauthorized
use of any Trade Secrets (as defined herein) and other
Confidential
Information (as defined herein) relating thereto is
significant.
Accordingly, each party covenants and agrees that it shall not,
without
the prior written consent of the other or as set forth herein,
directly
or indirect, disc
