Oem Agreement

OEM AGREEMENT


This OEM Agreement ("Agreement") is between Emony Ltd. ("Emony") and BackWeb Technologies Ltd. ("BackWeb"). The terms of this Agreement shall apply to each Program license granted and to all services provided by BackWeb under this Agreement.


I. DEFINITIONS


1.1 "APPLICATION SPECIFIC PROGRAM" shall mean a Program which can only be
used as integrated into the Application Program. "APPLICATION
PROGRAM(S)" shall mean Emony's software application, mainly comprised of
a server software that runs on the distributors server machine, and a
client software application that is running on the distributor's
customers' machines.


1.2 "COMMENCEMENT DATE" means the date on which the Master Copy of the
Program licenses is delivered to Emony, or, if previously delivered to
Emony, shall mean the Effective Date of this Agreement.


1.3 "DOCUMENTATION" means the standard user guides and manuals for
installation and use of the Program software that is provided by BackWeb
with the delivery of the Master Copy of the Programs.


1.4 "FULL USE" shall mean versions of the Program with all functions intact.


1.5 "ORDER FORM" means the document by which Emony orders consulting and
training services, and which is agreed to by the parties. The Order Form
shall reference the Effective Date of this Agreement.


1.6 "PLATFORM" for the server portion of the Programs means the PC
Compatible computer running the any of the following operating systems:
Windows (NT, 2000, and all Windows operating systems as they become
commercially available), Unix, Solaris and Linux.


1.7 "PROGRAM" means the BackWeb Foundation software running on the Platform
in object code form and distributed by BackWeb, and the media,
Documentation and Updates therefore.


1.8 "SUBLICENSE" shall mean a nonexclusive, nontransferable right granted by
Emony to a business entity, individual or end user to use the object
code copy of the Application Specific Programs only in conjunction with
and in support of an Application Program. "Sublicensee" shall mean a
third party who is granted a Sublicense by Emony.


1.9 "TECHNICAL SUPPORT" means Program support provided under BackWeb's
policies in effect on the date Technical Support is ordered.


1.10 "UPDATE" means a subsequent release of the Program made generally
available to BackWeb's supported customers. Update shall not include any
release, option or future product that BackWeb licenses separately.


1.11 "USER" "shall mean an employee or independent contractor of the
Sublicensee, as applicable, who is authorized by the Sublicensee to use
the Programs for the Sublicensee's business operations.


1.12 "TERRITORY" for distribution of the Programs shall mean all countries
worldwide, subject to U.S. export law.


II. PROGRAMS.


2.1 LICENSE TO INTEGRATE AND DISTRIBUTE. During the Term of this Agreement,
subject to the payment of the applicable fees specified in Article V,
BackWeb grants to Emony a nonexclusive, nontransferable License to use
the Full Use version of the Programs in object code form on the
designated Platform for the following purposes only:


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A. (i) Integrating the Programs with the Application Program (the
integrated solution hereinafter is referred to as the
"Application Packages") for the purpose of distributing the
Application Packages, (ii) reproducing the Programs to the
extent necessary for safekeeping, archival and distribution
purposes, (iii) demonstrating the Programs to potential
Sublicensees solely in conjunction with the Application Programs
or the Application Package, and (iv) providing training and
technical support to employees and customers solely in
conjunction with the Application Programs;


B. to use the Documentation provided with the Programs in support
of Emony's authorized use of the Programs;


C. to allow third parties to use the Programs for Emony's
operations as set forth herein so long as Emony ensures that use
of the Programs is in accordance with the terms of this
Agreement; and


D. to permit Emony by using the Program to deliver its Application
Program, any part thereof and any updates, upgrades and
enhancements thereto to Emony's clients.


In consideration of the grant of such rights, Emony commits to using its
best efforts to complete the integration described above and to bring
such integrated solution to the market. Other than as set forth above,
Emony may not use the License for any internal data delivery operations
or for any other purpose.


Promptly after the Effective Date of this Agreement, BackWeb shall
deliver to Emony one (1) copy of the software media and Documentation
("Master Copy") for each Program currently available in production
release as of the Effective Date of this Agreement for the Platform.
Emony shall have the right to use the Master Copy (i) to make the number
of copies necessary, to allow Emony to use the Programs as licensed
under this Agreement, and to market and distribute the Programs as set
forth in this Agreement; and (ii) to make a reasonable number of copies
of the Program for backup and archival purposes only. All titles,
trademarks and copyright and restricted rights notices shall be
reproduced in such copies. Emony shall not copy or use the Programs
(including the Documentation) except as specified in this Agreement.


2.2 DISTRIBUTION A. SUBLICENSE RIGHTS. BackWeb hereby grants Emony a
nonexclusive, nontransferable license to market and grant Sublicenses of
the Application Specific Programs in the Territory for the purpose of
distributing software:


1. Sublicense Application Specific Programs with the applicable
Application Program in the Application Package for use on Platform to
Sublicensees for the purpose of software distribution; and


2. Make and deliver to the Sublicensee a single copy of the Application
Specific Programs in the Application Package for each Sublicense
granted. Each Sublicensee shall have the right to make a reasonable
number of copies of the Program to support each such Sublicensee's use,
subject to a written Sublicense agreement as specified in Section 2.2.B.


B. SUBLICENSE AGREEMENTS. Emony shall distribute the Application Package
solely through a written Sublicense agreement that includes at a minimum
the contractual provisions set forth below:


1. Restrict use of the Program in object code form limited to the
maximum number of Application Specific Program Users reported to
BackWeb for the Sublicensee's own internal business operations;


2. Prohibit use of the Application Specific Programs for any
purposes other than in conjunction with or in support of the
Application Program;


3. Prohibit (i) assignment, timesharing or rental of the Programs
and (ii) the reverse engineering, disassembly or decompilation
of the Programs;


4. Prohibit title to the Program from passing to the Sublicensee;


5. Disclaim Emony's liability for any indirect, incidental or
consequential damages arising from the use of the Programs and
make clear that the Programs are distributed to the end user
only by Emony;


6. Require the end user to comply with U.S. export laws and
regulations connected with the Programs; and


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7. Require the Sublicensee, at the termination of the Sublicense,
to discontinue use and destroy or return to Emony the
Application Specific Programs, Documentation and all archival or
other copies of the Program.


Emony shall use all reasonable means and efforts to enforce the terms of
its written agreements and to ensure that the Programs are used in
accordance with terms of this Agreement.


C. DOCUMENTATION. With respect to Documentation for Application
Packages, Emony shall be responsible for providing documentation to
Sublicensees. Emony shall have the right to incorporate portions of the
Documentation into Emony's documentation, subject to the provisions of
this Agreement.


2.3 LIMITATIONS ON USE. Emony may not relicense, rent or lease the Programs
or use the Programs for third-party training, commercial time-sharing,
rental or service bureau use, or outsourcing for third parties. Emony
shall not cause or permit the reverse engineering, disassembly or
decompilation of the Programs, except to the extent required to obtain
interoperability with other independently created software or as
specified by law.


2.4 TITLE. BackWeb shall retain all title, copyright and other proprietary
rights in the Programs and any modifications or derivative works made to
the Programs. Emony and the end users do not acquire any rights, express
or implied, in the Programs or modifications or derivative works
thereto, other than those specified in this Agreement.


Emony shall retain all title, copyright and other proprietary rights in
its Applications Program and any modifications or derivative works made
to the Applications Program developed by Emony to the extent that such
Applications Program do not contain the Programs. BackWeb does not
acquire any rights, express or implied, in the Application Programs or
modifications or derivative works thereto, other than those specified in
this Agreement.


2.5 VERIFICATION. Emony shall maintain books and records in connection with
its Program use and Sublicensing activity during the term of this
Agreement and for two (2) years thereafter. BackWeb may audit Emony's
records to determine whether Emony has complied with the terms of this
Agreement. Any such audit shall be conducted by independent auditors
selected by BackWeb and approved by Emony who shall perform their audit
during Emony's regular business hours at Emony's facilities and shall
not unreasonably interfere with Emony's business activities and not more
than twice in every calendar year. If an audit reveals that Emony has
underpaid fees to BackWeb, Emony shall be invoiced for such underpaid
fees. If the underpaid fees are in excess of five percent (5%), then
Emony shall pay BackWeb's reasonable costs of conducting the audit.


III. SERVICES


3.1 TECHNICAL SUPPORT SERVICES FOR EMONY. During the Term of this Agreement,
BackWeb shall provide "Silver-level" Technical Support services, as
defined in Exhibit B, to Emony for the standard version of the Programs.
Any support for customizations may be acquired from BackWeb's consulting
services organization at fees to be mutually agreed upon by the parties.


3.2 TECHNICAL SUPPORT SERVICES FOR SUBLICENSEES. Emony will be responsible
for any assistance needed by Sublicensees to install the Programs.
Further, Emony is responsible for providing all first-line technical
support, training and consultation services to its end users. In
consideration of the payment of Technical Support services fees to
BackWeb as specified in Article V, Emony shall have the right to use the
BackWeb Technical Support services acquired to provide technical support
services to its Sublicensees; BackWeb shall only be responsible for
providing second line support services to Emony so that Emony can
support its Sublicensees. Any questions from Emony's Sub licensees will
be referred by BackWeb to Emony.


3.3 CONSULTING AND TRAINING SERVICES. BackWeb will provide to Emony
consulting and training services agreed to by the parties under the
terms of this Agreement. Except as otherwise agreed by the parties, all
consulting services and training services shall be billed on a time and
materials basis.


3.4 INCIDENTAL EXPENSES. For any on-site services requested by Emony, Emony
shall reimburse BackWeb for actual, reasonable travel and out-of-pocket
expenses incurred.


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IV. COOPERATIVE DEVELOPMENT AND MARKETING


4.1 TECHNICAL COOPERATION. During the Term of this Agreement, BackWeb will
assist Emony with the technical know-how reasonably necessary to
facilitate the integration of the Application Specific Program and the
Application Program. Such assistance shall be at BackWeb's standard
consulting rates and be subject to a mutually agreed upon Statement of
Work ("SOW"). Each party shall provide a technical contact (each, being
a "Technical Contact"), who shall have as the primary technical liaisons
between the parties and shall act to ensure the free flow of information
subject to appropriate confidentiality undertakings by the parties and
the personnel implementing this Agreement and further subject to the
applicable SOW. The parties agree that the Technical Contacts for the
parties shall be as follows:


FOR BACKWEB: FOR EMONY:
Bill Heye Sharon Peleg
BackWeb Technologies Ltd. Emony Ltd.
2225 Sheppard Ave. E 11 Amal St.
Suite 1401 Afek Industrial Park
Toronto ON M2J5C2 Rosh Ha'ayin 48092
Canada Israel
Telephone: 416-498-2158 Telephone: (03) 9022433, ext 126
Facsimile: 416-490-8601 Facsimile: (03) 9022434
Email: bill@backweb.com Email: Sharon.peleg@redbend.com


BackWeb and Emony may each change their appointed Technical Contacts by
written notification to the other party.


4.2 DEVELOPMENT SCHEDULE. BackWeb and Emony agree to work together as is
necessary for the integration of the Programs and the Application
Programs and in furtherance thereof agree to provide regular updates to
one another and to meet at least quarterly to discuss status of
development and integration effort.


4.3 BRANDING. The parties acknowledge and agree that any Application Program
incorporating the Program shall be branded with Emony's branding and
BackWeb's marks as follows: Emony agrees to include the BackWeb logo
"Powered by BackWeb" in any place that Emony's names or logo appears
when the Application Specific Program operates and on all Emony
collateral concerning the Application Packages. Emony shall retain any
of BackWeb's trademarks, trademark notice or copyright notices on the
Programs and shall not remove such marks from any portions of the
Programs.


4.4 PRESS RELEASE. Within 30 days after the Effective Date of this
Agreement, Emony and BackWeb shall issue a joint press release mutually
agreed upon by the parties announcing the parties' cooperation and
describing terms of this Agreement hereunder. Upon successful
integration of the Application Specific Program with the Application
Programs, Emony shall cooperate with BackWeb to be the subject of a
BackWeb customer success story for publication on BackWeb's web site.
Emony agrees that BackWeb may use the Emony's logo on BackWeb's web
site, collateral and related marketing materials to show that Emony is a
partner of BackWeb.


4.5 NONSOLICITATION OF PERSONNEL. Each party agrees that during the term of
this Agreement and for a period of two (2) years thereafter, it will not
solicit, contact for the purposes of hiring or communicate with for the
purposes of hiring, ...