BETA WEB APPLICATION AGREEMENT
This Beta Web Application Agreement (this "Agreement") is made and entered into as of the ________ day of ________ (the "Effective Date") by and between ________ ("Primary Provider") and ________ ("Web Vendor"). Web Vendor and Primary Provider may be referred to individually as a "Party" and collectively as the "Parties."
WHEREAS, Primary Provider sells or provides to its end-user customers certain equipment, software products and related services which are used or installed at the customers' sites, including [describe the equipment, products or services] (the "Basic Installation"); and
WHEREAS, Web Vendor sells and provides certain Web-based applications via the Internet, including [describe the applications] (the "Web Service"), which can be combined with the Basic Installation to create an "Integrated Solution" for use by the same customers; and
WHEREAS, the Parties desire to conduct a "beta test" in which one or more existing customers using the Basic Installation (the "Beta Users") test the use of the Web Service as part of an Integrated Solution (collectively, the "Beta"); and
WHEREAS, during the Beta, the Parties desire to continue discussions regarding a possible business relationship between the Parties regarding a joint offering of the Integrated Solution, subject to terms and conditions to be agreed by the Parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:
1. Responsibilities of the Parties.
1.1 Delivery, Test, and Monitoring Systems. Prior to installation and delivery of the Web Service to any Beta User, the Parties will work together to establish systems for the delivery, testing and monitoring of the Web Service in combination with the Basic Installation, based on the protocol described in Schedule 1.1 hereto [omitted]. Each party will provide the equipment, services and other services necessary to carry out such systems.
(a) Subject to the terms and conditions of this Agreement, Web Vendor hereby grants Primary Provider a nonexclusive, nonassignable license, during the Term, to make, use, have used, execute, transmit, display, perform, transfer and create derivative works with respect to any programming, technology, or intellectual property provided by Web Vendor with respect to the Web Services, in any medium or form of distribution, and to authorize others to do some or all of the foregoing in connection with the performance of this Agreement, for the purposes of (i) offering the Web Service to Beta Users in combination with the Basic Installation to Beta Users and allowing Beta Users to use and access the Integrated Solution pursuant to this Agreement, (ii) using the Integrated Solution both internally and externally for training, sales demonstration and support, to the extent Primary Provider is expected or permitted to engage in such activities pursuant to this Agreement, and (iii) using Web Services for the purposes of integration, development and testing of the Integrated Solution.
(b) Each Party shall be responsible for obtaining any additional licenses or authorizations determined to be necessary by such Party for development and operation of its Test Systems, beyond those granted hereunder.
1.3 Specifications, Milestones, Schedule and Launch.
(a) Each party will use commercially reasonable efforts to render performance in accordance with the technical specifications set forth in Schedule 1.3(a) hereto, including specified service levels [omitted]. Any revisions to such specifications shall be in writing and signed by the Project Manager for each Party.
(b) Each Party will use commercially reasonable efforts to meet the milestone schedule set forth in Schedule 1.3(b) hereto [omitted] so that the Beta is available for launch to Beta Users by [specify date].
1.4 Phased Approach. Initially the Beta will be limited to a mutually agreed number of Beta Users for the purpose of testing the Integrated Service and gathering feedback from Beta Users. Next, the Parties plan to expand the audience and establish a process for roll-out and coordination of support functions. Next, the Parties plan to integrate delivery, testing and monitoring systems in order to improve efficiency and provide coverage for the widest possible audience of end-user customers.
1.5 Availability. Web Vendor will use commercially reasonable efforts to have the hosted applications and monitoring services that are the basis for the Web Service ready for use, accessible, and capable of operation from the hours of [e.g., 8AM to 8PM EST Monday through Friday] during the course of the Beta, except for scheduled maintenance and construction.
1.6 Beta Users. The parties will work together to identify prospective Beta Users. Primary Provider will have the final decision regarding which customers using the Basic Installation are chosen to participate as Beta Users.1.6
1.7 In Call Support. Web Vendor agrees to provide "in call support" to Beta Users during the Beta at no charge. Web Vendor will use commercially reasonable efforts to resolve basic issues relating to the Integrated Solution including usage, how-to questions and quality problems. Web Vendor will provide Primary Provider, though use of an on-line log accessible to Primary Provider, with a brief description of each call received, including a description of the problem and any associated resolution. When Web Vendor is unable to resolve a given problem, Web Vendor will direct the Beta User to a Web feedback forum and/or "Level 2 Support" based on the protocol set forth in Schedule 1.7 [omitted].
1.8 Training. Primary Provider will provide Web Vendor operators with training regarding the Basic Installation portion of the Integrated Solution. This training will be focused on providing the skills necessary to resolve basic issues during In Call Support as outlined in Section 1.7. This training may be provided on site in [identify location] or via a Web conference at the election of Primary Provider.
2. Costs. Each Party shall be responsible for its own expenses associated with the Beta and this Agreement. For purposes of clarification, Web Vendor will provide the Web Service and In Call Support for the Beta at no charge.
3.1 General. As between the Parties, (i) Primary Provider will own all rights and title to the Basic Installation and its systems for delivery, testing and monitoring the Basic Installation, and any enhancements and improvements thereto, and derivative works thereof, and all proprietary rights therein, and (ii) Web Vendor will own all rights and title to the Web System and its systems for delivery, testing and monitoring the Web System, and any enhancements and improvements thereto, and derivative works thereof, and all proprietary rights therein.
3.2 New Development. Subject to Section 3.1, each Party will own all rights and title to any new software, technology, and derivative works that such Party develops in connection with the Beta, including any documentation or other materials related thereto.
3.3 Joint Work Not Intended. The Parties do not intend to jointly create any intellectual property pursuant to this Agreement; if any such intellectual property is inadvertently jointly developed, the Parties will negotiate and execute a separate written agreement(s) that will allocate ownership and usage rights for such intellectual property.
4. Public Statements.
4.1 Confidentiality. Neither Party will make, and each Party will direct its representatives not to make, directly or indirectly, any public comment, statement or communication (including press releases and the like) with respect to, or otherwise to disclose or permit the disclosure of the existence of discussions regarding this business arrangement, this Agreement or the terms thereof, without the prior written consent of the other Party. If either Party is required by law to make any such comment, statement, communication or disclosure ("Disclosure"), it shall first provide to the other Party the content of the Disclosure, the reasons that such Disclosure is required by law and the time and place that the Disclosure will be made, and shall redact mutually agreed upon portions prior to such Disclosure, as applicable.
4.2 Press Release. Notwithstanding the provisions of Section 4.1 above, in the event the Parties mutually agree upon a press release regarding their planned business arrangement, the Parties will mutually agree upon the timing and content of such press release.
5. Representations/Warranty. Each Party represents and warrants to the other Party that: (i) such Party has the full corporate right, power and authority to enter into the Agreement and to perform the acts required of it hereunder; (ii) the execution of the Agreement by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; (iii) when executed and delivered by such Party, the Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) such Party acknowledges that the other Party makes no representations, warranties or agreements related to the subject matter hereof that are not expressly provided for in the Agreement. Additionally, each Party warrants to the other Party that it possesses qualified personnel and such other resources as are necessary to perform all services to be provided under this Agreement. Notwithstanding the foregoing, it is mutually agreed that the Beta is primarily for testing purposes, and all products and services are provided "AS IS." EXCEPT AS EXPRESSLY PROVIDED ABOVE, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Project Management. In connection with the Beta, each Party hereby assigns project manager to manage its respective obligations hereunder, including to assist with administrative, economic and technical issues associated with the Beta. For Web Vendor, the project manager shall be [insert name], and for Primary Provider, the project manager shall be [insert name].
7. Term and Termination.
7.1 Term. This Agreement shall be in effect for [define Term--e.g., a period of six (6) months, subject to renewal from month to month as agreed to by both Parties], provided that, in the event the Beta does not commence on or before [insert date], this Agreement shall terminate immediately, unless otherwise agreed in writing by the Parties.
7.2 Termination. Either Party shall have the right to terminate this Agreement in the event that the other Party commits a material breach of this Agreement and any such breach remains uncured thirty (30) days after written notice thereof.
7.3 Termination for Convenience. Each Party reserves the right to terminate this Agreement for convenience upon thirty (30) days' written notice to the other Party.
7.4 Effect of Termination. Upon termination or expiration of the Beta, (i) neither Party shall have any obligation to provide the other with continued access to its products, services or systems, and (ii) each Party shall return or destroy any Confidential Information provided by the other Party for the purposes of the Beta unless agreed otherwise.
8. Confidentiality. This agreement, the associated Beta, and any access to customer or prospect lists, systems and support information as required for either party to conduct the Beta or provide support to Beta Users, shall be considered Confidential Information of the disclosing party subject to and treated by the receiving party in accordance with the Confidential Exchange Agreement attached hereto as Exhibit D [omitted].
9. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED OR IMPLIED HEREIN, NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES SUFFERED BY THE OTHER OR BY ANY ASSIGNEE OR OTHER TRANSFEREE OF THE OTHER, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 Governing Law. This Agreement, and the relationship between the parties arising herefrom or related hereto, shall be governed and construed under the laws of the State of [insert jurisdiction], without regard to its conflicts of law principles.
10.2 Force Majeure. During the term of this Agreement, neither Party shall be in default of its obligations to the extent that its performance is delayed or prevented by causes beyond its reasonable control, including but not limited to acts of God, natural disasters, bankruptcy of a contractor, supplier or service provider, strikes and other labor disturbances, acts of war or civil disturbance.
10.3 Assignment. Neither Party may assign this Agreement or its rights or obligations under this Agreement to a third party without the prior written consent of the other Party.
10.4 Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, nationally recognized overnight courier or facsimile transmission or by registered mail, return receipt requested. Notices shall be sent to the signatories of this Agreement at the addresses set forth at the beginning of this Agreement or such other address as either Party may specify in writing. Notices shall be effective upon receipt.
10.5 No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties.
10.6 Non-Exclusivity. This is a non-exclusive agreement. Nothing contained herein shall be deemed to restrict either Party from quoting, offering to sell or selling to others. Nothing contained in this Agreement precludes or in any way limits either Party from entering into similar agreements with other entities, including, but not limited to, agreements between Web Vendor and other companies related to other interoperability projects or integrated offerings.
10.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement may only be changed by mutual agreement of authorized representatives of the Parties in writing.
10.8 Waiver. No failure on the part of either Party to exercise, and no delay in exercising any right or remedy hereunder, shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy granted hereby or by law.
10.9 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which, when taken together, shall constitute one and the same instrument. The Parties may sign and deliver this Agreement by facsimile transmission. Each Party agrees that the delivery of this Agreement by facsimile shall have the same force and effect as delivery of original signature pages and that each Party may use such facsimile signatures as evidence of the execution and delivery of the Agreement by all Parties to the same extent that an original signature could be used.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the Effective Date.