EXHIBIT 10.13
SOFTWARE DEVELOPMENT LICENSE
AND DISTRIBUTION AGREEMENT
This Software License and Distribution Agreement (the "Agreement") is
entered as of June 3, 1996 (hereinafter "Effective Date') by and between First
Floor Software, Inc., a California corpora tion, with its principal place of
business at 000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter
"First Floor"), and Aurum Software, Inc. a California corporation, with its
principal place of business at 0000 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx, XX 00000
(hereafter "Aurum").
WHEREAS, First Floor markets a product called Smart Bookmarks (defined
below) that allows a single user to monitor, organize, and cache for off-line
viewing information on the Internet. First Floor also markets a product called
InfoServer (defined below) which allows one touch publishing of custom Smart
Bookmark catalogs.
WHEREAS, subject to the terms and conditions contained herein, First Floor
desires to grant and Aurum desires to acquire certain exclusive license and
distribution rights to the Smart Bookmark and InfoServer products in order for
Aurum to resell these products to its Sales Force Automation customers wishing
to implement Internet/Web-based Marketing Encyclopedia Systems.
NOW THEREFORE, in consideration of the foregoing and the promises, mutual
covenants and conditions contained herein, the parties agree as follows:
1. DEFINITIONS.
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a. "Documentation" shall mean the manuals developed by or for First
Floor that are distributed with the products and that describe the installation,
operation and use of the Products.
b. "First Floor Trademarks" shall mean the First Floor trade name,
logo, and other First Floor trademarks as listed in Attachment C or added by
First Floor from time to time in its sole discretion.
c. "InfoServer" shall mean First Floor's custom Smart Bookmark
catalog publishing server software product in object code form, including
associated Documentation. First Floor reserved the right to change, modify or
discontinue InfoServer at any time.
d. "Licensed Products" shall mean an exact object code copy of the
Products in machine readable form together within exact copy of the end-user
documentation included in the definition of such Products.
e. "Products" shall mean First Floor's Smart Bookmarks or InfoServer
product.
f. "Proprietary Rights" shall mean patent rights, copyrights,
trademark rights, trade secret rights and all other intellectual property rights
throughout the world.
g. "Smart Bookmarks" shall mean First Floor's single use Smart
Bookmarks client software product developed specifically for use with
Internet/Web-based Marketing Encyclopedia Systems, in object code form,
including associated Documentation. First Floor reserved the right to change,
modify or discontinue Smart Bookmarks at any time.
h. "Updates" shall mean current version updates, corrections,
revisions, new versions, modifications, and additions to the Products that First
Floor makes commercially available to all of its end users and distributors of
Internet/Web-based Marketing Encyclopedia Systems.
2. License Grant.
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2.1 License. Subject to all the terms of this Agreement, First Floor
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grants to Aurum a non-transferable license:
a. to license Licensed Products only as provided herein and only
directly to end-user customers. However, Aurum may use subdistributors provided
that any such subdistributor may not make copies or use other subdistributors
and shall be bound by an enforceable writing to all the limitations and
restrictions of this Agreement.
b. to use the Products only for the purpose of testing or
demonstrating to prospective end-users in accordance with documentation provided
by First Floor.
c. to exchange Internal Licenses. (200) copies of Smart
Bookmarks will be exchanged for (20) SalesTrack clients and (1) SalesTrack
server to be installed by First Floor.
2.2 License Restrictions. During the term of Exclusivity each party
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is prohibited from announcing or deploying solutions with competitors such that:
(i) Aurum is prohibited from distributing Web-based
client-side technology that (A) manages URLs or any file type or (B) monitors
files for changed and updated information or (C) caches files on a local hard
drive for off-line viewing.
(ii) First Floor is prohibited from distributing the
Products to any competitors ("Competitors") set forth in Attachment A.
2.3 Proprietary Rights. Notwithstanding anything else, First Floor
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and its licensors retain (i) all title to, and, except as expressly licensed
herein, all rights to the Products, all copies and derivative works thereof (by
whomever produced) and all related documentation and materials, (ii) all of
their service marks, trademarks, trade names or any other designations (and
notwithstanding anything else herein, Aurum may not use nay trade name or
trademark of First Floor described in Attachment C, and (iii) all copyrights,
patent rights, trade secret rights and other proprietary rights in the Products.
Aurum will have no right to receive any source code with respect to any
Products, except as follows:
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a. First Floor agrees to keep, and maintain current, a copy of the
source code and relevant materials (hereinafter referred to as "Escrow
Materials") for the Products in escrow with a mutually agreeable escrow agent
(the "Escrow Agent"). A copy of the Escrow Materials for each correction,
improvement, enhancement, update and new release of the Products will also be
delivered to the Escrow Agent to be held in escrow; provided, however, that
First Floor need not update the Escrow Materials more frequently than either
twice per year or upon each new major release of the Program. First Floor to
the Escrow Agent. First Floor shall further instruct the Escrow Agent to
confirm the type of Escrow Materials then held, should Aurum so request in
writing; provided, however, the Aurum may make such request no more than once in
any six (6) month period.
Aurum, First Floor and Escrow Agent shall enter into an agreement
setting out the terms of this Section 2.3, and further providing that
immediately upon notification by Aurum of the occurrence of an event described
in Paragraph (b) below and requesting delivery of the Escrow Materials, the
Escrow agent shall immediately give notice thereof to First Floor. If First
Floor does not challenge the request within fifteen (15) days of receipt of such
notice, the Escrow Agent may proceed; otherwise, the matter shall be referred to
a court of competent jurisdiction.
b. First Floor's agreement with the Escrow Agent shall provide that
a copy of the Escrow Materials for the Products will be delivered to Aurum by
the Escrow Agent in the event the (i) First Floor (or its successors or assigns)
ceases doing business as a going concern, or (ii) an involuntary bankruptcy
petition is not discharged within 120 days after the First Floor receives notice
of the filing of the petition and First Floor discontinues supporting the
software for any reason or (iii) First Floor discontinues or is in material
breach of its support obligations for the Software and does not provide
appropriate support ninety (90) days after receiving a request from Aurum to do
so.
c. Upon delivery of the Escrow Materials to Aurum, Aurum shall have
nontransferable, nonexclusive license to use the Escrow Materials to support and
maintain the Products for existing Sublicensees for no other purpose. First
Floor shall retain all ownership right, title and interest in and to the Escrow
Materials, including all patents, copyrights, trademarks, trade secrets and
other intellectual property rights inherent therein. Aurum shall maintain the
Escrow Materials in the strictest confidence and disclose them to employees only
as necessary to exercise its rights granted herein. The object code derived
from the source code is subject to the same restric tions as apply to the
Products distributed under this Agreement.
2.4 End User Restrictions. Without the express consent of First
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Floor, Aurum shall not (i) delete or fail to reproduce any copyright or other
proprietary notices appearing in the Products, (ii) disassemble, decompile or
otherwise reverse engineer the Products or otherwise attempt to learn the source
code, structure , algorithms underlying the Products, (iii) rent or otherwise
provide temporary access to the Products (except for purposes of product
demonstrations or similar promotional activities). If Aurum provides long-term
leasing of the Products the terms and condi tions for re-selling the Products
in the Agreement shall apply. All Aurum distribution licenses or end-user
licenses pertaining to the Products shall prohibit others from doing any of the
foregoing, in
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similar, but no less restrictive terms. Aurum will make no warranty, guarantee
or representation, whether written or oral, on First Floor's behalf.
2.5 End User Licenses. Aurum and its subdistributors shall
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distribute the Products only pursuant to an end user license agreement in form
and content substantially similar to the form attached to this Agreement as
Attachment B. Any material changes to the form shall be subject to First
Floor's prior approval, which shall not be unreasonably withheld or delayed.
Furthermore, if a Licensed Product is to be provided to a government agency or
to anyone that may acquire it pursuant to a government contract or with
government funds, Aurum will ensure, in the case of the U.S. government, that
the attached End-User Software License Agreement (as modified by the Govern
ment License Attachment thereto) is incorporated into any relevant proposals and
contracts and that the provisions of the Government License Attachment are
effectively implemented. In the case of any other government, Aurum will ensure
that the Licensed Products and First Floor's rights are protected to the maximum
extent possible.
3. MARKETING.
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3.1 Joint Marketing.
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a. To promote effective marketing of the Products, the parties will
undertake certain joint marketing activities. All joint marketing activities
shall be subject to the mutual agreement of the parties, but should include:
joint advertising, joint mailings, marketing, press tours, and development of
collateral materials to promote to Product. Furthermore, both Aurum and First
Floor agree to:
(i) Press/Media Activities. A press tour and media blitz for
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Aurum's Internet/Web-based Marketing Encyclopedia System strategy will feature
First Floor as the key agent and off-line viewing technology component.
(ii) Industry Shows and Seminars. For the term of Exclusivity,
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First Floor will be highlighted by Aurum in a similar fashion to that of the
upcoming DCI show on June 13, 1996 where First Floor will be prominently
mentioned in Xxxx Xxxxxxx'x keynote presentation entitled "Internet Enabled
Sales & Marketing" and where Aurum will have a 40 ft. by 30 ft. booth with a
stage presentation, including special focus on the Internet and a demo
substation labeled the "Intra Intelligence" center which will feature First
Floor's Smart Bookmarks product.
(iii) Sales Presence. Aurum will train the entire direct sales
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force on the new Internet/Web-based Marketing Encyclopedia System with Smart
Bookmarks.
(iv) Partner/System Integrator Visibility. Aurum will
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introduce Smart Bookmarks as an integral a part of an Internet/Web-based
Marketing Encyclopedia System Solution to the SFA system integrators, including
CTP, KPMG, E&Y, and Delotte & Touche.
(v) Joint Lead Sharing.
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(vi) Mutual links on Web Sites.
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(vii) Aurum will make reasonable efforts to use "Bulletins" and
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"Monitor Me'" Buttons on Aurum's web site.
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The level of participation marketing efforts accorded to First Floor
in this Section 3.1(a) shall be a least equivalent to the level of participation
afforded to Aurum's similar licensors who are afforded any of the foregoing
privileges.
b. In addition, Aurum agrees that it shall issue with First
Floor a joint press release in a form agreed upon by the parties immediately
upon execution of this Agreement. Aurum agrees that it shall prominently refer
to and credit First Floor in each subsequent release of the Products developed
by First Floor.
3.2 Branding of the Product.
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a. First Floor hereby grants Aurum a license to use the First Floor
trademarks, service marks and trade names (including, but not limited to the
name and logo of First Floor) identified on Attachment C hereto (the
"Trademarks") solely for the purpose of promoting the sales of the Products;
First Floor may add to, delete from or modify the Trademarks from time to time.
Aurum agrees that all advertising and promotional material prominently contain
First Floor's name and logo, and shall otherwise comply with First Floor's
marketing guidelines in effect from time to time. Aurum shall not at any time
do or permit any act to be done which may in any way impair the rights of First
Floor In the trademarks and trade names involved herein. Aurum will discontinue
all use of the Trademarks immediately upon the termination or expiration of this
Agreement, or upon First Floor's specific direction.
b. First Floor may from time to time request and inspect copies of
the Products to confirm Aurum's compliance with the foregoing provisions and
First Floor quality standards then in effect. In the event that First Floor
determines that Aurum is not in compliance with such provisions and standards,
First Floor shall have the right to suspend Aurum's use of the Trademarks until
such time as Aurum meets such standards and provisions to First Floor's
satisfaction.
3.3 Aurum Marketing. Aurum shall diligently market (including,
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without limitation, inclusion of the Products in Aurum's catalogs and other
promotional materials that Aurum may determine is appropriate for the Products),
distribute and support the Products on a continuing basis. In support of
Aurum's marketing efforts, First Floor will supply Aurum with a reasonable
quantity of First Floor's existing sales literature.
4. PAYMENT TERMS.
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4.1 Royalties. Aurum shall pay First Floor (i) Fifty dollars
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($50.00) for each copy of Smart Bookmark product it distributes, (ii) One
thousand dollars ($1000.00) for each copy of
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InfoServer product it distributes, and (iii) 7% for Support and Maintenance.
Nothing in this Agreement shall be construed as restricting Aurum from reselling
the Products at any resale price it chooses.
4.2 Support and Maintenance. First Floor will provide support and
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maintenance services for so long as this Agreement is in effect under the terms
and conditions set forth in Attachment D. Corrections and updates to the
Product provided under that agreement will be considered Products. If First
Floor materially fails to provide such services for a Product and such failure
continues for more than (10) consecutive days, Aurum shall be entitled to
receive from First Floor, pursuant to an escrow arrangement, a copy of all
source code used by First Floor in the maintenance or support of such Product.
4.3 Payments. Except as provided in the previous section, payments
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shall be made in U.S. dollars within 30 days after the calendar quarter of
distribution. Late payments will bear interest at the rate of 1.5% per month or,
if lower, the maximum rate allowed by law.
5. AURUM COVENANTS. Except as expressly provided herein or as otherwise
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agreed to by the parties and as conditions of Aurum's license hereunder, Aurum
agrees:
a. not to modify, create any derivative work of, or include in any
other software the Products or Licensed Products or any portion thereof.
b. not to delete, alter, add to or fail to reproduce in and on any
Licensed Product and media the name of the Product and any copyright or other
notices appearing in or on any copy, media or master or package materials
provided by First Floor.
c. not to reverse assemble, decompile, reverse engineer or otherwise
attempt to derive source code (or the underlying algorithms, structure or
organization) from the Product or Licensed Product or from any other
information.
d. to use its commercially reasonable efforts to successfully
market, distribute and support (including installation, training and other
support) the Products on a continuing basis and to comply with good business
practices and all laws and regulations relevant to this Agreement or the subject
matter hereof. In its distribution efforts, Aurum will use the then current
names used by First Floor for the Products (but will not represent or imply that
it is First Floor or is a part of First Floor).
e. to keep First Floor informed as to any problems encountered with
the Products and any resolutions arrived at for those problems, and to
communicate promptly to First Floor any and all modifications, design changes or
improvements of the Products suggested by any customer, employee or agent.
f. in addition to and without in any way limiting Aurum's other
obligations hereunder, use all methods to protect First Floor's rights with
respect to the Products, Licensed
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Products and Proprietary Information as it uses to protect its own or any third
party's software, confidential information or rights of a similar nature.
6. CONFIDENTIALITY. Each party agrees that all source code, inventions,
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algorithms, know-how it obtains from the other and all other business, technical
and financial information it obtains from the other are the confidential
property of the disclosing party ("Proprietary Information"). Except as
expressly allowed herein, the receiving party will hold in confidence and not
use or disclose any Proprietary Information and shall similarly bind its
employees and contractors in writing. Notwithstanding the foregoing,
Proprietary Information shall not include any information which (i) is or falls
within the public domain without fault of the recipient; (ii) is hereafter
rightfully obtained by the recipient from a third party without breach of any
obligation to the disclosing party; (iii) the recipient independently develops
by employees without access to or the benefit of any Proprietary Information as
shown by documentary evidence; or (iv) is produced in compliance with applicable
law or the requirement of any judicial, legislative or regulatory authority,
provided that the recipient first gives the disclosing party written notice of
such law or order in order that the disclosing party may have an opportunity to
object and/or attempt to limit such production.
7. WARRANTY AND DISCLAIMER. First Floor warrants that, for a period of
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ninety (90) days from delivery to Aurum, the Products when operated as directed,
will substantially conform to the accompanying Documentation, and the media on
which the Products are supplied will be free from defects in material and
workmanship. First Floor's sole liability for any breach of this warranty shall
be to repair or replace any defective software or media, or, if the above
remedies are impracticable, to refund the license fees paid for the defective
Product units. Repaired, corrected or replaced Products shall be covered by
this limited warranty for the period remaining under the warranty that covered
the original Product. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT FIRST
FLOOR MAKES NO WARRANTIES TO ANY PERSON WITH RESPECT TO THE PRODUCTS OR ANY
SERVICES OR LICENSES AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
8. LIMITED LIABILITY. EXCEPT IN THE CASE OF A BREACH OF SECTION 6 OR 2.2
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WITH RESPECT TO FIRST FLOOR'S INDEMNITY OBLIGATIONS HEREIN, IN NO EVENT WILL
EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA OR
COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. EXCEPT WITH
RESPECT TO FIRST FLOOR'S INDEMNITY OBLIGATIONS, IN NO EVENT WILL FIRST FLOOR BE
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE AUTHORITY FOR ANY
AMOUNTS IN EXCESS OF THE GREATER OF THE AGGREGATE OF THE AMOUNTS PAID TO FIRST
FLOOR HEREUNDER OR TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000).
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9. RELATIONSHIP OF PARTIES. The parties hereto are independent
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contractors. Nothing contained herein or done in pursuance of this Agreement
shall constitute either party the agent of the other part for any purpose or in
any sense whatsoever, or constitute the parties as partners or joint venturers.
Each part is solely responsible for all of its employees land agents and its
labor costs and expenses arising in connection herewith.
10. ASSIGNMENT. This Agreement and the rights hereunder are not
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transferable or assignable without the prior written consent of the parties
hereto, except for rights to payment and except to a person or entity who
acquires all or substantially all of the assets or business of a party, whether
by sale, merger or otherwise. The license provided hereunder is not
sublicensable or transferable by Aurum except that Aurum may provide licenses to
end-users in accordance with the provisions of this Agreement and may use
subdistributors to do so.
11. TERM AND TERMINATION.
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11.1 Term. This Agreement shall have a term of twelve (12) months
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(commencing on the Effective Date) unless terminated earlier as provided herein.
11.2 Term of Exclusivity. The Term of Exclusivity shall commence on the
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Effective Date and shall terminate on September 30, 1996. An extension to the
Term of Exclusivity will be mutual and will be negotiated in good faith by both
parties.
11.3 Termination. Either party shall have the right to terminate this
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Agreement immediately, upon written notice, in the event the other party: (i)
materially breaches a material provision of this Agreement and fails to cure
such breach within thirty (30) days of written notice; (ii) terminates or
suspends its business for a period of more than 3 calendar months; or (iii)
becomes subject to any bankruptcy or insolvency proceeding under federal or
state statute, provided, however, that the parties specifically agree that they
and any Trustee in Bankruptcy shall abide by the terms of Section 365(n) of the
Bankruptcy Code with respect to the licenses granted pursuant to this Agreement.
11.4 Effect of Termination.
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a. Upon expiration or termination to this Agreement, then:
(i) all rights and licenses granted herein shall
terminate except that end user licenses granted by Aurum or its subdistributors
prior to termination shall remain in effect in accordance with their terms and
except that Aurum and its subdistributors may continue to distribute the
Products for a period of one hundred eighty (180) days to meet bona-fide orders
granted prior to termination, and to sublicense existing inventory of packaged
Products, and subject to Aurum's obligation to make payments hereunder. Aurum's
license to use the Products shall also continue in effect only to the extent
necessary to provide support and maintain existing customers;
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(ii) Aurum shall return to First Floor, or destroy, all of
First Floor's Proprietary Information; and
(iii) the provisions of Sections 2.3, 2.4, and 6 through 13
shall remain in effect.
b. Remedy. Termination is not the sole remedy under this
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agreement and, whether or not termination is effected, all other remedies will
remain available.
12. INFRINGEMENT. While First Floor has conducted no investigations
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whatsoever, it is not aware of any infringement that will result from
distribution of Licensed Products in accordance with the terms hereof. If Aurum
becomes aware of a potential infringement or claim thereof, it will immediately
notify First Floor. First Floor agrees to defend Aurum from any claim, suit or
proceeding alleging that the Products (Indemnified Items"), when used and
distributed in accordance with the terms and conditions of this Agreement,
infringes any patent, copyright, trade secret, trademark or other intellectual
property right of any third party and agrees to pay any liabilities, damages,
costs and expenses (including the actual fees of attorneys and other
professionals and all related costs and expenses) awarded in any such claim,
suit or proceeding provided that Aurum gives First Floor prompt written notice
of any such claim, grants First Floor the sole control of the defense and any
related settlement negotiations, cooperates with First Floor in the defense of
any such claim and does not agree to settle any such claim without First Floor's
prior written consent. If it is adjudicatively determined that the Products, or
any part thereof, infringe any patent, copyright, trade secret, trademark or
other intellectual property right, or is the use of the Products, or any part
thereof, is, as a result, enjoined, then First Floor may, at its expense ,
either (i) procure for Aurum the right to use and distribute the Products as
provided herein (ii) replace the Products with other non-infringing products
which substantially meet the specifications for the Products; or (iii) suitably
modify the Product so that they are not infringing; provided that the modified
software substantially meets the specifications for such Products.
Notwithstanding the foregoing, First Floor shall have no liability to Aurum if
the infringement results form (a) use of the Product in combination with other
software if the Product alone would not have been so infringing, (b)
modifications to the Product not made by First Floor if such infringement would
have been avoided by the absence of such modification or (c) use of other than
the version of the Product most recently offered to Aurum if such infringement
would have been avoided by use of current version.
13. GENERAL
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a. Amendment and Waiver. Except as otherwise expressly provided
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herein, any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or in any particular
instance and either retroactively or prospectively) only with the written
consent of the parties. However, it is the intention of the parties that this
Agreement be controlling over additional or different terms of any purchase
order, confirmation, invoice or similar document, even if accepted in writing by
both parties, and that waivers and amendments shall be effective only if made by
non-pre-printed agreements clearly understood by both parties to be an amendment
or waiver.
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b. Governing Law and Legal Actions. This Agreement shall be
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governed by and construed under the laws of the State of California and the
United States without regard to conflicts of laws provisions thereof and without
regard to the United Nations Convention on Contracts for the International Sale
of Goods. The sole jurisdiction and venue for actions related to the subject
matter hereof shall be the California state and U.S. federal courts having
within their jurisdiction Santa Xxxxx County. Both parties consent to the
jurisdiction of such courts and agree that process may be served in the manner
provided herein for giving of notices or otherwise as allowed by California
state or U.S. federal law. In any action or proceeding to enforce rights under
this Agreement, the prevailing party shall be entitled to recover costs and
attorneys' fees.
c. Headings. Headings and captions are for convenience only and are
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not to be used in the interpretation of this Agreement.
d. Notices. Notices, consents and approvals under this Agreement
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shall be sufficient only if in writing personally delivered, delivered by a
major commercial rapid delivery courier service or mailed by certified or
registered mail, return receipt requested to a party at its addresses first set
forth herein or as amended by notice pursuant to this subsection. If not
received sooner, notice by mail shall be deemed received 5 days after deposit in
the U.S. mails.
e. Entire Agreement. This Agreement supersedes all proposals, oral
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or written, all negotiations, conversations, or discussions between or among
parties relating to the subject matter of this Agreement and all past dealing or
industry custom.
f. Severability. If any provision of this Agreement is held to be
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illegal or unenforceable, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
g. Nondisclosure of Terms. Except to the extent required by law or
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in connection with required disclosures to prospective investors or otherwise in
connection with an acquisition, merger, financing or public offering, neither
party will disclose the terms of this Agreement without written approval from
the other party.
h. Export Control. Aurum shall comply with all export laws and
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restrictions and regulations of the Department of Commerce of other United
States or foreign agency or authority, and shall not export or reexport, and
shall cause each of its distributors to agree not to export or reexport, any
Product or any direct product thereof in violation of any such restrictions,
laws or regulations, or to Cuba, Libya, North Korea, Iran, Iraq or any country
for which the U.S. has imposed an embargo on export of commodities; Aurum shall
obtain any necessary licenses and/or exemptions with respect to the export from
the U.S. of all material or items deliverable by First Floor and shall
demonstrate to First Floor compliance with all applicable laws and regulations.
i. Recitals and Attachments. The recitals set forth above and the
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attached Attachments and Schedules shall be deemed to be a part of this
Agreement as though such provisions and attachments had been set forth in full
in this Agreement.
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j. Counterparts. This Agreement may be executed in any number of
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counter parts, each of which shall be deemed an original instrument, by all of
which together shall constitute only one and the same instrument. Execution and
delivery of this Agreement by exchange of facsimile copies bearing the facsimile
signature of a party hereto shall constitute a valid and binding execution and
delivery of this Agreement by such party. Such facsimile copies shall
constitute enforceable original documents.
AURUM:
By: /s/ Xxxx X. Xxxxxxx
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Name Xxxx X. Xxxxxxx
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Title CEO
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Date 6/10/96
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FIRST FLOOR SOFTWARE, INC.
By /s/ Xxxx Xxxx
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Name Xxxx Xxxx
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Title V.P. Business Dev.
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Date 6/3/96
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ATTACHMENT A
COMPETITORS
Siebel Systems
Xxxxx Control Systems, Inc.
Saratoga Systems, Inc.
Clarify
The Vantive Corporation
SalesKit Software Corporation
Salesoft, Inc.
Scopus Technology, Inc.
Metropolis Software, Inc.
Borealis
Sales Tech
FasTech
ATTACHMENT B
END USER LICENSE AGREEMENT
[Aurum's End Use License Agreement goes here]
GOVERNMENT LICENSE ATTACHMENT
This attachment relates to and is incorporated into the above referenced
Agreement. Capitalized terms in this attachment that are defined in the
Agreement have the same meaning as in the Agreement. The entire Agreement (as
modified by this Government License Attachment) must be attached to and
incorporated into any relevant government contract.
The software and accompanying documentation are deemed to be "commercial
computer software" and "commercial computer software documentation,"
respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as
applicable. Any use, modification, reproduction, release, performing, displaying
or disclosing of the software and accompanying documentation by the U.S.
Government shall be governed solely by the terms of this Agreement and shall be
prohibited except to the extent expressly permitted by the terms of this
Agreement.
ATTACHMENT C
FIRST FLOOR SOFTWARE TRADEMARKS
The First Floor Trademarks shall mean the tradename "First Floor", together
with such other trademarks and logos (including trademark symbols) as may be
specified by First Floor from time to time.
Artwork and usage specifications for use of the First Floor Trademarks
shall be no more burdensome to Aurum, and at least as flexible, as those
typified by standard industry practice.
ATTACHMENT D
SUPPORT AND MAINTENANCE
1. Definitions. In addition to the terms defined below, capitalized
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terms used herein without definition shall have the meanings assigned to such
terms in the Agreement to which this document is attached.
(A) "Error Correction" shall mean either a software modification or
addition, that, when made or added to the Product, eliminates the adverse effect
of a Product Problem, or a procedure or routine that, when observed in the
regular operation of the Product, eliminates the practical adverse effect of a
Product Problem.
(B) "Product Problem" shall mean a reproducible error condition that
causes the Product not to function in accordance with the published
specifications then applicable to the Product.
2. Support. Aurum shall provide all "front-line" telephone, facsimile
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and electronic mail support to end users of the Product. First Floor will
provide Aurum with direct technical telephone support. This support will
include direct telephone support from First Floor, Monday through Friday, during
First Floor's normal business hours (First Floor holidays excepted). First
Floor may also provide support via Internet mail access, and facsimile.
(A) Each part agrees to promptly notify the other part of any
problems encountered with the Product and any resolutions arrived at for those
problems.
(B) Aurum shall use reasonable efforts to communicate to First Floor
material modifications, design changes or improvements of the Product suggested
by any customer, employee or agent.
(C) To ensure that Aurum support personnel are familiar with the
Product, First Floor will, from time to time, provide training programs for such
personnel, at no cost to Aurum. Training will be conducted at Aurum's facilities
(or such other locations as the parties may agree upon). The content of such
programs shall be determined by the parties.
3. Product Maintenance. During the term of this Agreement, First Floor
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agrees to use commercially reasonable efforts to provide Error Corrections for
all Product Problems reported by Aurum to first Floor, according the response
objectives established in this Section 3. If Aurum submits a Product Problem to
First Floor for resolution, Aurum shall provide to First Floor a detailed
description of the Product Problem. Aurum and First Floor shall prioritize any
such Product Problem submitted to First Floor for resolution in accordance with
the hierarchy described below. Aurum shall supply any additional information
reasonably requested by First Floor and Aurum shall make its support personnel
available (at no cost to First Floor) to assist in the problem identification
and resolution. Aurum will use reasonable efforts to provide a focal point for
communicating Product Problems to First Floor.
(A) Definitions. The response time objectives are defined as
follows:
(i) "Critical". End User is unable to use the Product,
resulting in critical impact on operations. For example: Data is corrupted; no
obvious workaround; requires program or design changes; causes a system failure,
corrupts operating system or hardware.
(ii) "Serious". End-user is able to use the Product but is
severely restricted. For example: Causes program failure; workaround is awkward
or inefficient; misleading output. System crashes may also be classified as
serious if caused by an unusual or unlikely set of commands.
(iii) "Medium". End use can use the product with limitations
that are not critical to overall operations. For example: the workaround is
acceptable and does not seriously impact operations; prevents a user from using
a preferable procedure; confusing interface; externals not affected.
(iv) "Low". End-use can circumvent the problem and use the
product with only slight inconvenience. For example: The workaround becomes the
permanent solution; correct use is obvious.
(B) Response Objective. First Floor will respond to a reported
Product Problem as follows:
(i) With respect to a Critical Problem, First Floor will use
reasonable efforts to acknowledge (i.e. calling Aurum back to scope and define
the Product Problem and make a first attempt at problem resolution) within one
(1) working hour and provide a response (i.e. making further attempts to resolve
the problem; this may include exchange of code and documentation of trouble
shooting work completed) within one (1) working day and a solution with ten (10)
working days of receiving notice of the Product Problem. If a solution cannot
reasonably be provided within ten (10) days of receiving notice of the Product
Problem, First Floor shall develop and present a plan to Aurum to provide a
solution as soon as reasonably practical. Such plan will be mutually agreed
upon and include First Floor's best efforts for a timely solution.
(ii) With respect to a Serious Problem, First Floor will use
reasonable efforts to acknowledge within four (4) working hours and provide a
response within ten (10) working days and a solution within ten (10) working
days of receiving notice of the Product Problem. If a solution cannot
reasonably be provided within ten (10) days of receiving notice of the Product
Problem, First Floor shall develop and present a plan to Aurum to provide a
solution as soon as reasonably practical.
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(iii) With respect to a Medium or Low Problem, First Floor will
use reasonable efforts to provide an Error Correction as soon as reasonably
practical, provided, however, that if a subsequent release of the Product is
then under development, such Error Correction may be incorporated into that next
release.
(C) Ongoing Product Problem. If, after expiration of the time
periods set forth in Section 2(B) above, First Floor has not resolved a Critical
or Serious Problem, Aurum may suspend the payment of any Royalties or minimum
royalty payments payable under Section 4 of the Agree ment, until such time as
the Product Problem has been resolved. Under no circumstances are any payments
already paid or due pursuant to this Agreement ever refundable or credited as a
results of any ongoing or unresolved Product Problems.
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