Asp License Agreement With Saleslogix Corporation

EXHIBIT 10.10


**indicates information which has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. Asterisks appear on pages 1 and 2 of Schedule A.


ASP LICENSE AGREEMENT


This ASP License Agreement (the "Agreement") is made and entered into as of the last date set forth below (the "Effective Date") between SalesLogix Corporation, a Delaware corporation ("SLGX"), located at 8800 North Gainey Center Drive, Suite 200, Scottsdale Arizona, 85258, USA, and ebaseOne Corporation, a Delaware Corporation, located at 6060 Richmond Suite 190, Houston, Texas 77057, ("HOST").


RECITALS


WHEREAS, SLGX owns or has the right to grant licenses to certain sales information front office software applications;


WHEREAS, HOST has established ASP offerings which it makes available to end user customers through hosted computer systems; and


WHEREAS, SLGX and HOST wish to enter into an agreement where SLGX shall license HOST to include SLGX software applications within HOST's ASP offerings;


NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, SLGX and HOST hereby agree as follows:


1. Definitions
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Anniversary Date means October 12/th/ of each year commencing in year 2000.


Customer means an end user who is a party to a Customer Agreement, and who cannot re-sell, lease, market, license, sublicense or otherwise distribute the Software or Services to another party.


Customer Agreement means an agreement between HOST and a Customer under which HOST agrees to host the Software on one or more Hosted Systems for remote access and use by the Customer pursuant.


Documentation means the standard online documentation, manuals and other printed materials delivered by SLGX to HOST which relate to the Software.


Hosted Systems means the computer hardware, networking equipment and associated system software on which the Software is installed for remote Use by a Customer in connection with HOST's provision of Services. All Hosted Systems shall be owned or leased by HOST, and shall remain under the control of HOST throughout the Term.


Remote Client means a full working version of the Software that both resides on a single Customer personal computer ("PC") with a local database and allows the Customer to synchronize with and access the Software (and the remote databases contained in the Software) residing on the Hosted Systems.


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Services means Software-related services offered by HOST to a Customer, including Software hosting, training, maintenance, technical support and similar services.


Software means the SLGX computer software products described on Schedule A, as
---------- such schedule may be amended by the parties from time to time, including Documentation and any updated version of such products provided by SLGX to HOST.


Support shall mean those maintenance and technical support services provided by SLGX to HOST as described in detail on Schedule B.
----------


Term shall mean the term of this Agreement (including any extensions and renewals) as defined in Section 10.


Use shall mean the loading, utilization, storage or display of the Software to process a Customer's information and serve Customer's computing needs.


User shall mean an individual who is permitted to have access to and use the Software pursuant to the terms of a Customer Agreement, and shall mean specifically a named or specified (by password, license number or other user identification) individual authorized by Customer to use the Software, regardless of whether the individual is actively using the Software at any given time. The maximum number of Users that may use or access the Software shall be specified in the Customer Agreement. Users may include the employees of Customer or third parties; provided that such third party is limited to use of the
-------- Programs (i) only as configured and deployed by Customer, and (ii) solely in connection with Customer's internal business. Customer may cause a User logon to be permanently reassigned if the original individual identified as the User leaves the employ of Customer, or otherwise ceases to need access to the Software.


Web Client shall mean a thin version of the Software in DHTML format that resides on a Hosted System and which may be accessed by a Customer through the internet.


Workgroup Client shall mean a full version of the Software that resides on a Hosted System and which may be accessed by a Customer through a Microsoft terminal server or Citrix metaframe.


2. License
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2.1 Grant of Licenses. Subject to the terms and conditions of this Agreement, SLGX hereby grants for the duration of the Term, and HOST hereby accepts, a non-transferable, non-exclusive license (without the right to sublicense except as provided in Section 2.7) to install, Use, execute, display and host the Software in object code format on an unlimited number of Hosted Systems in the United States and Canada (and in other countries to which SLGX consents in writing), to lease use of such Software to Customers pursuant to Customer Agreements, to distribute copies of Remote Client to Customers who purchase leases to Remote Client, and to provide Services to Customers.


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2.2 Territory; Non-Exclusivity. The licenses under Section 2.1 shall be worldwide with respect to the location of Customers, and shall permit the installation of Remote Client in any territory, subject to export law restrictions. HOST acknowledges that its appointment as an ASP for the Software shall be entirely non-exclusive; SLGX may increase or decrease the number of authorized ASPs in the vicinity of HOST's locations at any time without notice to HOST.


2.3 Private-Labeling. SLGX grants HOST a non-exclusive, nontransferable right and license to offer the Software and Services under the following HOST product name and logo: ebaseOne(TM), provided, however, that all SLGX proprietary notifications are included and SLGX's authorship is emphasized with either the tag line "Powered by SalesLogix," or similar branding mutually agreed to by the parties.


2.4 Copying Rights. HOST may make a reasonable number of copies of the Software and Documentation for purposes of installing and maintaining the Software on Hosted Systems, providing copies of Remote Client to Customers, and providing Services to Customers, provided in each case that HOST complies with the requirements of Section 9.3.


2.5 License Restrictions and Limitations. HOST shall lease the Software to a Customer on a per User basis pursuant to a Customer Agreement that: (i) specifies the number of permitted Users; (ii) provides that the lease must be pursuant to one of the configurations described on Schedule A; (iii) contain
---------- substantially the same provisions and protections that HOST uses to lease its own software products of comparable value; and (iv) incorporate and attach the SLGX shrinkwrap license attached as Schedule C, as it may be reasonably amended
---------- by SLGX from time to time, or such other license form or statement as the parties may stipulate to in writing from time to time (the "EULA").


2.6 Lease Procedure. Upon executing a Customer Agreement, HOST shall register the following information with SLGX's Automatic Licensing System ("AL- System"): the Customer' exact corporate name, address, the commencement date of the Software lease, the number of permitted Users, primary contact information for the Customer (including such contact's e-mail information), and the initial lease terms for the relevant Users. HOST shall also follow the same procedure to: (i) record any amendment of a Customer Agreement that increases or decreases (consistent with Section 2.5) the prospective number of Users; (ii) renew or extend the lease term for a User; (iii) register the cancellation of a logon to allow a substituted User (consistent with Section 1.11); or (iv) record the permanent expiration of any User lease. Upon the initial registration of a Customer (and upon the recording of any transaction resulting in an increase of Users), the AL-System shall automatically issue to HOST the necessary number of User logons and license numbers to enable the Customer's designated Users to access and Use the Software. HOST agrees that it will: (i) only disclose to a Customer only those logons and license numbers that have been specifically assigned to the Customer's Users by the AL-System; (ii) not make any other use or disclosure of the logons and license numbers provided by the AL-System; (iii) not seek to circumvent or bypass any logon, license number or any other security or copy protection feature contained in the Software; (iv) adopt and implement reasonable policies to inform and instruct its relevant employees and agents of the restrictions imposed by this Section; and (v) immediately inform SLGX in writing of any attempt or threat by any person to


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crack or circumvent any SLGX or HOST security or copy protection measure relating to the Software.


2.7 HOST Affiliates. HOST shall not sublicense its rights under this Section 2 to a subsidiary, affiliate, VAR, OEM or other sub-distributor (each, a "HOST Affiliate"), or any class of HOST Affiliates, without the prior written consent of SLGX, which consent shall not be withheld unreasonably. In the event SLGX consents to such a sublicense, HOST acknowledges and agrees that it shall: (i) cause the HOST Affiliate to comply with all material terms and restrictions applicable to HOST under this Agreement; and (ii) remain directly and wholly responsible to SLGX for (and to the same extent as if HOST had itself caused) all losses, claims and damages that SLGX incurs as a result of the HOST Affiliate's disclosure or distribution of HOST Confidential Information or breach of any other obligations applicable to HOST under this Agreement.


3. Prices and Payments for Software Leases
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3.1 License Fees. For each lease of Software to a Customer, HOST agrees to pay SLGX the license fees set forth in Schedule A (the "License Fees"), which
---------- shall be calculated on a per User per month basis. The License Fees set forth on Schedule A have been calculated based on the SLGX list prices now in effect
---------- for full licenses to the Software. Approximately 90 days prior to each Anniversary Date the parties shall meet and confer to determine whether the license fees set forth in Schedule A should be reduced for new Customer
---------- Agreements effective on the Anniversary Date to reflect any interim reductions in the SLGX list prices for full licenses to the Software. Any such agreement to change Schedule A shall be reduced to writing and signed by the parties as a
---------- prospective amendment to Schedule A.
----------


3.2 Minimum Guaranteed Cumulative Fees. Notwithstanding Section 3.1, HOST hereby commits to pay SLGX, over the Term, the minimum, cumulative non- refundable License Fees set forth in Schedule A (the "Guaranteed Cumulative
---------- Fees"). HOST shall make additional payments to SLGX, to the extent necessary as of the end of a calendar quarter, so that the total License Fees paid to SLGX through the relevant quarter will equal at least the Guaranteed Cumulative Fees obligation as of such date. All additional payments made pursuant to this Section 3.2 shall be regarded as the payment of "License Fees" under this Section 3 and will be credited in full against HOST's License Fee obligations under Section 3.1. If either party's exercise of a termination or non-renewal right granted under Section 10 shall cause the Agreement to terminate effective on a date other than the last date of a calendar quarter, the Guaranteed Cumulative Fees applicable to the end of such quarter shall be recalculated and reduced in direct proportion to the amount by which the quarter was shortened.


3.3 Quarterly Invoice Reports; Calculation of License Fees. By the last date of each calendar quarter, SLGX, using information registered on the AL- System by HOST, shall calculate the License Fees due under this Agreement for the quarter just ending (the "Reported Quarter") and shall prepare and deliver a License Fee invoice report (the "Quarterly Invoice Report") to HOST. The Quarterly Invoice Report shall describe the number of Users per month for whom HOST leased the Software during the Reported Quarter. Where a User lease commenced other than on the first of a calendar month, the quarterly report shall use an


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appropriate fraction in calculating License Fees for the partial month. Also, where a User lease first commenced in the last ten calendar days of a Reported Quarter, SLGX shall defer invoicing the License Fees due for the relevant one-to-ten days until the Quarterly Invoice Report for the next Reported Quarter. Each Quarterly Invoice Report shall calculate and compare License Fees calculated for the Reported Quarter under Section 3.1, License Fees (including additional payments previously required under Section 3.2) paid to date, and the Guaranteed Cumulative Fees applicable to the end of the Reported Quarter, and shall then report the amount of License Fees due from HOST for the Reported Quarter.


3.4 Payment Terms. HOST shall pay the License Fees set forth in the Quarterly Invoice Report within 30 days of receipt of the Quarterly Invoice Report. All other fees and payments due from one party to another under this Agreement shall also be paid within 30 days of invoice. All amounts not paid within 30 days of the relevant invoice shall bear interest at the lesser of 1.5% per month or the highest contract rate allowed by law, from the date due until paid. All License Fees and any other payments hereunder shall be paid in U.S. Dollars.


3.5 Customer Prices. HOST shall remain solely responsible for determining its own retail prices to Customer for Software leases and Services.


3.6 Taxes. HOST shall remain responsible for payment of any and all applicable taxes, excises, duties or charges (other than taxes relating to SLGX's net income) which may arise by virtue of the transactions contemplated by this Agreement.


4. Support Obligations
-------------------


4.1 HOST Support of Customers. HOST will provide technical and maintenance support to Customers and to any authorized HOST Affiliates. SLGX will provide direct support only to HOST, as described below.


4.2 SLGX Support of HOST. During the Term, and for so long thereafter as HOST continues to lease the Software to Customers and pay License Fees as provided in Section 10, SLGX shall provide HOST with the Support described in Schedule B. In connection with providing Support, SLGX will use its reasonable ---------- efforts to make the Software perform substantially in accordance with the Documentation. However, HOST acknowledges that inevitably some errors may exist in the Products, and the presence of such errors shall not be a breach of this Section. HOST specifically acknowledges that this Agreement will involve one of the first Uses of the Software to date through a remote access hosting structure and that the parties may, in the first several months following the Effective Date, encounter unanticipated problems or support issues relating to running the Software in a large scale hosting environment.


4.3 Support of Hosted Systems. HOST shall be solely responsible, at its own expense, for the acquisition, installation, operation and maintenance of the Hosted Systems, including any hardware and third party software (other than third party software products embedded in the Software) necessary or useful for hosting or Use of the Software. HOST shall identify and promptly inform SLGX of any design or programming errors or omissions in the


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Software of which it becomes aware and consult with SLGX regarding necessary corrections and or modification.


5. Start-Up Obligations
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5.1 Delivery of Master Disks. Upon execution of this Agreement and the Non-disclosure agreement, SLGX shall promptly deliver to HOST master disks containing the Software in object code format.


5.2 Training. SLGX shall provide HOST with the "Start-Up" training on the terms and conditions described in Schedule A. HOST shall develop an internal training course for its employees regarding the Use and support of the Software, which will be consistent with SLGX's then-current training policies for the Software.


6. Continuing Obligations
----------------------


6.1 Product Managers. Each party shall appoint at least one appropriately qualified full-time product manager, whose sole responsibility shall be to define and market the Services and monitor its party's performance under this Agreement.


6.2 Joint Promotions. During the Term, HOST and SLGX will jointly promote and market their respective products and service offerings, including but not limited to providing for mutual customer reference sites, mutual brand awareness promotions, joint sales efforts, presentations and/or demonstrations, all as agreed to between the parties from time to time.


6.3 Safety and Security. HOST shall at all times maintain and enforce at the site of all Hosted Systems safety and security procedures that are at least: (a) equal to industry standards for such locations; (b) as rigorous as those procedures which are in effect for other similar locations then owned or controlled by HOST; and (c) compliant with any reasonable safety and security requirements requested by SLGX during the Term.


6.4 Customer License Enforcement. HOST shall use its best efforts to assist SLGX in the protection of SLGX's legal rights and to enforce the EULA. HOST shall cooperate fully with SLGX in any action by SLGX in the event of an actual or threatened violation of SLGX's proprietary rights by a Customer.


6.5 Marketing Practices. Each party shall (a) perform its obligations in a manner that will preserve the reputation and promote the goodwill, name, and interests of the other party and its products and service offerings; (b) avoid deceptive, misleading, or unethical practices that are or might be detrimental to the other party, its products or service offerings, or the public, including but not limited to disparagement of the other party or its products or service offerings; (c) make no false or misleading representation with respect to the other party's products or service offerings; (d) not publish or use any misleading or deceptive advertising material; and (e) make no representations with respect to the other party's products or service offerings that are inconsistent with the literature distributed by the other party, including all warranties and disclaimers contained in such literature.


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7. Warranties; Limitations on Liability
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7.1 SLGX Limited Warranties. SLGX represents and warrants to HOST that SLGX has sufficient right, title and interest in and to the Software to enter into this Agreement; and that all Software distributed to HOST is and shall be free and clear of all liens.


7.2 Limitation of Warranties. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND DOCUMENTATION PROVIDED BY SLGX INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


7.3 Limitation on SLGX Liability. EXCEPT IN THE EVENT OF MISUSE OR APPROPRIATION OF HOST'S CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY, AND EXCEPT FOR ITS INFRINGEMENT INDEMNIFICATION OBLIGATIONS, SLGX'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION IN CONTRACT, TORT OR STRICT LIABILITY, SHALL BE LIMITED TO THE LICENSE FEES PAID BY HOST DURING THE 12 MONTHS PRIOR TO SUCH EVENT.


7.4 No Consequential Damages. EXCEPT IN THE EVENT OF ONE PARTY'S MISUSE OR APPROPRIATION OF ANOTHER PARTY'S CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY, AND EXCEPT FOR THE PARTIES' RESPECTIVE INFRINGEMENT INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


7.5 HOST Actions. SLGX shall have no obligation to Customers arising from any warranty given by HOST, HOST Affiliates, or their agents or employees.


8. Indemnification
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8.1 SLGX Indemnification. SLGX agrees, for as long as the Software is leased by Customers from HOST, at SLGX's expense to defend or settle and hold harmless HOST from, any third party claim that the leasing of the Software (but not including any other goods, Services or other parts of the Hosted Systems provided by HOST) infringes any patent, copyright, trade secret, trademark, or proprietary right existing under the laws of the United States or Canada or any state or territory thereof. The indemnification obligation in this Section shall be effective only if HOST is not in default of its License Fee payment obligations to SLGX. To reduce or mitigate damages, SLGX may at its own expense procure the right for HOST to continue leasing and distributing the Software or replace it with a non-infringing product with substantially equivalent functionality. If SLGX supplies a non-infringing update or version of the Software, HOST shall promptly supply the same to its Customers and install the same on it


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Hosted Systems. SLGX's indemnification obligations under this Section shall not apply to an infringement claim that occurs because of and would not have occurred but for: (i) modifications m ...