EXHIBIT 10.2
LICENSE AGREEMENT
License # 00-000-00-00
----------------
AGREEMENT made this 28th day of February, 1997, between Template Software, Inc.,
a Virginia corporation having its principal place of business at 00000 Xxxxxxx
Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, ("TEMPLATE SOFTWARE") and
Winstar Telecommunications, Inc. having its principal place of business at 0000
Xxxxxxxx Xxxx, Xxxxx 000 Xxxxx, Xxxxxx Xxxxxx, XX 00000 ("CUSTOMER").
TEMPLATE SOFTWARE has certain proprietary rights to computer software programs
and related documentation ("Licensed Product(s)") which are named in the license
schedule(s) ("License Schedule(s)") which are, from time to time, hereafter
executed by TEMPLATE SOFTWARE and CUSTOMER, and incorporated herein;
CUSTOMER desires to obtain from TEMPLATE SOFTWARE a non-exclusive and non-
transferable license to use the Licensed Product(s) solely for the regular
conduct of CUSTOMER's business; and CUSTOMER recognizes the proprietary rights
of TEMPLATE SOFTWARE in and to the Licensed Product(s).
In consideration of the above premises and the mutual covenants and conditions
contained herein, TEMPLATE SOFTWARE and CUSTOMER covenant and agree as follows:
1. License. TEMPLATE SOFTWARE hereby grants to CUSTOMER, and CUSTOMER hereby
accepts under the terms and conditions set forth in this Agreement, a non-
exclusive and non-transferable license to use the Licensed Product(s). All
references to "this Agreement" shall refer to this License Agreement as
modified and/or supplemented by the License Schedule(s).
2. Term of Agreement. The term of this Agreement will commence upon the date
of its execution and the execution of the respective License Schedule(s),
and remain in force until terminated by the mutual written consent of
TEMPLATE SOFTWARE and CUSTOMER or otherwise as provided under Article 12,
Default.
3. Use of Licensed Product(s).
a. CUSTOMER is authorized to use the Licensed Product(s) for CUSTOMER's
internal operation only (and not for any commercial purpose), to access
the Licensed Product(s) only from the location defined in the respective
License Schedule ("Designated Location"), to install the Licensed
Product(s) only on the computer platforms defined in the respective
License Schedule(s) ("Designated Computer Platform") and to use the
Licensed Product(s) only by the number of authorized users specified in
the respective License Schedule(s) ("# Users").
b. In the event CUSTOMER desires to change the Designated Location and/or
Designated Computer Platform found within any License Schedule, CUSTOMER
will request the prior written approval of TEMPLATE SOFTWARE, which
approval shall not be unreasonably withheld subject to the United States
Department of Commerce Export Restrictions and licensing requirements.
c. TEMPLATE SOFTWARE reserves the right to audit CUSTOMER for, or require
CUSTOMER to certify as to, the number of computer platforms on which
CUSTOMER has the "Licensed Products" installed and the number of Users
of the Licensed Products, no more frequently than every six months upon
five days written notice.
d. CUSTOMER is authorized to make up to 2 back-up copies of the tapes or
disks provided they are used only for back-up purposes, and CUSTOMER
keeps possession of the back-up copies. All information appearing on the
original tapes or disks including the copyright notice must be copied
onto the back-up labels.
e. CUSTOMER may not alter, decompile, disassemble, or reverse engineer the
Licensed Product(s).
4. Assignment of Use. CUSTOMER's rights under this Agreement to the Licensed
Product(s) may not be assigned, licensed or otherwise transferred, either
voluntarily, by operation of law or otherwise, without the prior written
approval of TEMPLATE SOFTWARE.
5. License Fee.
a. In consideration for the license granted, CUSTOMER will pay to TEMPLATE
SOFTWARE a license fee ("License Fee") in the amount (and under the
payment terms) specified in the respective License Schedule(s).
b. The License Fee does not include local, state or federal sales, use,
excise, personal property or other similar taxes or duties, and any such
taxes shall be the sole responsibility of CUSTOMER.
c. The License Fee does not include shipping and handling costs and any
such costs shall be assumed and paid for by the CUSTOMER. Shipping and
Handling costs shall be pursuant to the prices and under the terms in
TEMPLATE SOFTWARE's then current Commercial Price List.
6. Limited Publicity. CUSTOMER agrees that TEMPLATE SOFTWARE may identify
CUSTOMER in a list of users of the Licensed Product(s) in media such as
publicity releases, marketing literature and advertising. TEMPLATE SOFTWARE
will refrain from the use of any language which implies endorsement.
7. Warranty of Performance.
a. TEMPLATE SOFTWARE disclaims any warranty that the Licensed Product will
be free from error or will meet CUSTOMER's specific requirements.
CUSTOMER assumes complete responsibility for decisions made or actions
taken based on information obtained by using the Licensed Product. Any
statements made concerning the utility of the Licensed Product shall not
be construed as express or implied warranties.
b. TEMPLATE SOFTWARE DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
c. No employee, agent or representative of TEMPLATE SOFTWARE has the
authority to bind TEMPLATE SOFTWARE to any oral representation or
warranty concerning the Licensed Product(s). Any written representation
or warranty not expressly contained in this Agreement shall not be
enforceable by CUSTOMER.
8. Copyright and Patent Indemnity. TEMPLATE SOFTWARE warrants that it has the
right to grant a license to the Licensed Product(s). TEMPLATE SOFTWARE also
assures CUSTOMER that, to the best of TEMPLATE SOFTWARE's knowledge, the
Licensed Product(s) do not infringe any patent, copyright or trade secret.
In the event any legal proceedings are brought against the CUSTOMER by any
third party claiming an infringement of a patent, copyright, or trade
secret based on CUSTOMER's use of the Licensed Product(s), TEMPLATE
SOFTWARE agrees to defend at TEMPLATE SOFTWARE's own expense any such legal
proceedings relating to such claim or claims and to hold CUSTOMER harmless
from any damages incurred or awarded as the result of settlement or
judgment against the CUSTOMER, provided CUSTOMER gives TEMPLATE SOFTWARE
prompt, written notice within 30 days of any such claim or of the
institution of any such claims against CUSTOMER, and further CUSTOMER
cooperates completely with TEMPLATE SOFTWARE, at TEMPLATE SOFTWARE's
option, to settle or defend such claims.
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Template Software License Agreement
9. Trade Secret, Security and Confidentiality.
a. CUSTOMER acknowledges and agrees that the Licensed Product(s) are
TEMPLATE SOFTWARE's confidential proprietary information and trade
secret whether or not any portion thereof may be validly copyrighted or
patented, and that CUSTOMER shall have no right, title or interest
therein, except as expressly set forth in this Agreement.
b. CUSTOMER will take reasonable precautions to maintain the
confidentiality of the Licensed Product(s), but not less than employed
to protect its own proprietary information.
c. The obligations and agreements set forth in this Article 9 shall survive
termination, for whatever reason, of this Agreement.
10. Maintenance Services. TEMPLATE SOFTWARE agrees to provide maintenance
services ("Maintenance Services") for the period of time and at the prices
stated in the respective License Schedule(s). Maintenance Services include
all new releases of the Licensed Product(s) and access by telephone to
TEMPLATE SOFTWARE's error correction services. TEMPLATE SOFTWARE will
respond to CUSTOMER requests for service in the most expeditious manner
possible and will use reasonable commercial efforts to correct or provide a
workaround for any error reported by CUSTOMER which is replicatable by
TEMPLATE SOFTWARE. In the event TEMPLATE SOFTWARE reasonably finds that the
reported error is not in the Licensed Product(s), or that the error has
resulted from the negligence or modification of the CUSTOMER, the CUSTOMER
will be billed for reasonable travel and living costs incurred by TEMPLATE
SOFTWARE plus support fees at prevailing rates.
11. Liability. Except as provided in Article 8 above, TEMPLATE SOFTWARE shall
in no event be liable for loss of profit, goodwill or other special or
consequential damages suffered by CUSTOMER as a result of CUSTOMER's use of
the Licensed Product(s) even if TEMPLATE SOFTWARE has been advised of such
damages.
12. Default
a. Failure by TEMPLATE SOFTWARE or CUSTOMER to comply with any term or
condition under this Agreement, or any other default by TEMPLATE
SOFTWARE or CUSTOMER, shall entitle the other party to give the party in
default written notice requiring it to cure such default. If the party
in default has not cured such default within 30 days of such notice, the
notifying party shall be entitled, in addition to any other rights it
may have under this Agreement or otherwise under law, to immediately
terminate this Agreement by written notice to the party in default. Any
subsequent failure by TEMPLATE SOFTWARE or CUSTOMER to comply with any
term or condition under this Agreement shall entitle the other party to
terminate this Agreement immediately with written notification to the
party in default.
b. The right of either party to terminate this Agreement hereunder shall
not be affected in any way by its waiver of or failure to take action
with respect to any previous default.
c. Upon the termination of this Agreement for any reason, the Licensed
Product(s) and any copies thereof shall be destroyed by the CUSTOMER or
returned to TEMPLATE SOFTWARE, and CUSTOMER shall deliver a
certification by a duly authorized officer of CUSTOMER stating to
TEMPLATE SOFTWARE that CUSTOMER no longer has any right to use the
Licensed Product(s) and that the original and all copies of the Licensed
Product(s) have been destroyed or returned to TEMPLATE SOFTWARE.
d. TEMPLATE SOFTWARE has deposited and maintains with an escrow agent a
current copy of the source code of the Licensed Product(s), under which
Customer has specific rights to source code in the event TEMPLATE
SOFTWARE suspends or ceases to carry on regular business provided
TEMPLATE SOFTWARE has current maintenance obligations hereunder. A copy
of the escrow agreement can be provided upon CUSTOMER's written request.
13. Entire Agreement and Amendments
a. This Agreement contains all the agreements and understandings between
the parties hereto with respect to the Licensed Product(s), and no oral
agreements or written correspondence shall be held to affect the
provisions hereof. All subsequent changes, amendments and modifications,
to be valid, must be by written instrument executed by authorized
representatives of TEMPLATE SOFTWARE and CUSTOMER.
b. If any one or more provisions of this Agreement are finally adjudicated
to be unlawful or unenforceable by a court of competent jurisdiction,
then this Agreement shall be construed as if such unlawful provisions
had not been contained herein.
c. This Agreement shall be governed by and construed in accordance with the
laws of the State of Virginia.
14. Construction.
a. A waiver of any breach or default under this Agreement shall not be a
waiver of any other or subsequent breach or default. Failure or delay by
either party to enforce compliance with any term or condition of this
Agreement shall not constitute a waiver of such term or condition.
b. Headings preceding the text of Articles are inserted solely for
convenience of reference and shall not constitute a part of this
Agreement, nor shall they affect the meaning, construction,
interpretation or effect of this Agreement.
c. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties to this Agreement and their respective successors and
assigns.
15. Service of Notice. No notice, consent, waiver or other communication
required or permitted to be sent under this Agreement shall be effective
unless the same is in writing and is delivered by registered or certified
mail, return receipt requested, first-class postage pre-paid, to the
address of the party first set forth in this Agreement. Such notices, if
sent by registered or certified mail, shall be deemed to have been given at
the time of mailing.
TEMPLATE SOFTWARE and CUSTOMER, by their duly authorized officers, have signed
and sealed this Agreement on the day and in the year herein above first written.
TEMPLATE SOFTWARE CUSTOMER:
/s/ Xxxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
---------------------------- ---------------------------------
Signature Signature
Xxxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
---------------------------- ---------------------------------
Name Name
Chief Financial Officer Director - Procurement and Material Management
---------------------------- ------------------------------------------------
Title Title
Privileged and Confidential
AMENDMENT ONE TO LICENSE AGREEMENT BETWEEN TEMPLATE SOFTWARE, INC.
AND WINSTAR TELECOMMUNICATIONS, INC.
Notwithstanding anything to the contrary, this document ("Amendment One") amends
and takes the place of the License Agreement with the Effective Date of February
28, 1997 (the "Agreement"), between Template Software, Inc. ("TEMPLATE
SOFTWARE") and WinStar Telecommunications, Inc. ("CUSTOMER") as set forth below:
1. In the second paragraph from the top, after the word "documentation",
delete the words "(Licensed Product(s))" and after the word "which",
replace the word "are" with "shall be attached hereto and may be" and then
delete the word "hereafter". In the same paragraph, after the word
"CUSTOMER", add the phrase "upon written mutual agreement of the parties".
In the same paragraph, add the words "shall be" before the words
"incorporated herein".
2. Replace the third paragraph from the top in its entirety with the following:
"CUSTOMER desires to obtain from TEMPLATE SOFTWARE, and TEMPLATE SOFTWARE
represents it is able and willing to deliver to CUSTOMER, a license to use
the Licensed Product(s) (as defined below) according to the terms and
conditions of this Agreement".
3. In the first line of Section 1, delete the phrase ", and CUSTOMER hereby
accepts". In the second line of Section 1, after the word "non-transferable"
add the words ", irrevocable, perpetual, fully paid-up, ". In the same
second line of the same Section 1, after the words "use the", delete the
words "Licensed Product(s)" and replace with the following: "software
described in the License Schedule(s) (License Schedule One is attached
hereto), including any tutorials, development tools and documentation
related thereto (collectively, the "Licensed Product(s)"). Delete the last
sentence of Section 1 in its entirety.
4. In Section 2, replace the words "the date of its execution and the execution
of the respective License Schedule(s) with the words "Effective Date". At
the end of Section 2, add the following: "Notwithstanding any termination as
described in Section 12, in no event shall CUSTOMER lose any of its license
rights with respect to the Licensed Product(s)".
5. In the first line of Section 3.a., after the first word "CUSTOMER", delete
the word "is" and add the words "and CUSTOMER's Affiliates (as defined
below) and agents (but only with respect to activities performed relating to
CUSTOMER) are". In the first line of Section 3.a., after the word
"CUSTOMER's", add the words "or CUSTOMER's Affiliates and agents (but only
with respect to activities performed relating to CUSTOMER)". In the first
line of Section 3.a., delete the words "(and not for any commercial
purpose)" and put a comma after the word "only". In the second line of
Section 3.a., before the word "computer" add the words "number of". At the
end of Section 3.a., add the following: "TEMPLATE SOFTWARE agrees to grant
the same rights to the Licensed Product(s), as are described in this
Agreement, to additional # Users at the fees described in Licensed
Schedule(s). For the purposes of this Agreement, "Affiliates" shall mean,
with respect to any entity, any other entity which owns, is owned by or is
under common ownership with such entity. For the purpose of the preceding
sentence, "own" and its derivatives means, with regard to any entity, the
legal, beneficial, or equitable ownership, directly or indirectly, of fifty
percent (50%) or more of the capital stock (or other ownership interest, if
not a corporation) of such entity ordinarily having voting rights."
6. Add the following at the end of Section 3.b. "Without changing the scope of
the licenses granted hereby as set forth in this Section 3, CUSTOMER shall
have the right to use the Licensed Product(s): (i) for backup and disaster
recovery purposes; (ii) to allow CUSTOMER to utilize facilities management
or outsourcing services at a third party data center; and (iii) for purposes
of parallel
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testing when transferring or using the Licensed Product(s) on new or
additional hardware. Additional fees, if any, that may be incurred on
account of such use will be set forth in the License Schedule(s) attached
hereto."
7. In the second line of Section 3.c., replace the words "six months" with the
word "year". At the end of Section 3.c., add the following: "TEMPLATE
SOFTWARE agrees that during such audit it shall act reasonably and not
unreasonably disrupt CUSTOMER's business activities and shall comply with
all CUSTOMER policies, procedures and confidentiality provisions.".
8. Intentionally omitted
9. Add a new Section 3.f. that states the following: "TEMPLATE SOFTWARE agrees
that CUSTOMER shall have the ongoing right to convert the scope of use of
the Licensed Product(s), or any part thereof, from the current scope
identified in Section 3.a. herein, to a server based license that will allow
CUSTOMER to use the Licensed Product(s) on one or more servers, for back-up,
disaster recovery or any other purpose (without being limited by the number
of users, number of applications, hardware platform, network configuration,
physical location of the Licensed Product(s) or similar criteria) ("Server
Based"), in accordance with Section 3 of the License Schedule attached
hereto."
10. After Section 3, add a new Section entitled "New Section" that states the
following:
"New Section. Acceptance
a. TEMPLATE SOFTWARE represents that each Licensed Product(s), as set
forth in the License Schedule(s): (i) conforms to the specifications and
documentation included in the Licensed Product(s) and otherwise with the
terms of this Agreement and will operate with other Licensed Product(s) in
accordance with this paragraph a; (ii) meets or exceeds (or will meet or
exceed in the case of 7.g. and 7.h.) the warranties set forth in Section 7
of this Agreement; (iii) contains no material errors or defects; (iv)
operates in accordance with (i)-(iii) above for the desktop and server
environments, for the relational database environment, and for the server
environment, as such environments are described in the License and Services
Schedule(s); and (v) will meet such other specific criteria as the parties
may mutually develop and agree upon in writing (with (i)-(v) above
collectively defined as the "Acceptance Criteria").
b. TEMPLATE SOFTWARE shall certify, in a signed writing to CUSTOMER, that
each individual Licensed Product(s), as set forth in the License Schedule(s)
(including, but not limited to, a separate certification for development and
run-time licenses), meets with the Acceptance Criteria (the "Acceptance").
The foregoing is the sole manner in which Acceptance may occur. Upon
Acceptance, the License Fee (as defined in Section 5.a. herein) for the
applicable Licensed Product(s) shall be due and owing by CUSTOMER in the
amount set forth in the License Schedule(s). In the event that a run-time
version of a particular Licensed Product(s) does not meet Acceptance but a
development version of the Licensed Product(s) previously met with
Acceptance, then TEMPLATE SOFTWARE promptly shall refund any amounts paid by
CUSTOMER with respect to such prior development version."
11. Delete the original Section 4 in its entirety and replace with the
following: "This Agreement shall be binding on the parties hereto and their
respective successors and assigns. Neither party may, or shall have the
power to, assign this Agreement without prior written consent of the other,
except that either party may assign its rights and obligations under this
Agreement without approval of the other party to an entity that acquires all
or substantially all of the assets of the assigning party or to any parent,
subsidiary or affiliate or successor in a merger or acquisition of such
party; provided that in no event shall such assignment relieve the assigning
party from its obligations under this Agreement.
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Privileged and Confidential
12. In Section 5.a., after the word "granted,", add the words "and upon
Acceptance,". In the same Section 5.a., replace the word "pay" with "owe"
and delete the words "(and under the payment terms)"
13. In Section 5.b., add the following as a new sentence. "In no event shall
CUSTOMER be responsible for any taxes based upon TEMPLATE SOFTWARE's income
or gross receipts".
14. Delete Section 5.c. in its entirety and add the following as a new Section
5.c.: "All undisputed invoices shall become due and payable within thirty
(30) days of receipt of such invoice by CUSTOMER."
15. Add the following as a new Section 5.d.: "With respect to amounts owed to
CUSTOMER by TEMPLATE SOFTWARE, if any, CUSTOMER shall have the right, upon
written notice to TEMPLATE SOFTWARE, to set-off that amount as a credit
against charges otherwise payable to TEMPLATE SOFTWARE".
16. Add the following as a new Section 5.e. "CUSTOMER may withhold payment of
disputed invoices, or of any disputed charge or amount on any invoice,
presented by TEMPLATE SOFTWARE, so long as such amount is disputed in good
faith. In order for an amount to be deemed disputed in good faith under this
Section 4.8, CUSTOMER must present written notification of any such good
faith dispute within thirty (30) days of receipt of the applicable invoice
involving such dispute, or the particular dispute will be deemed undisputed.
CUSTOMER and TEMPLATE SOFTWARE shall negotiate in good faith with respect to
any such disputed amounts and shall attempt to settle the dispute within
thirty (30) days."
17. Add the following as a new Section 5.f. "Undisputed amounts that remain
unpaid for more than thirty (30) days from the due date shall accrue
interest at the rate of one percent (1%) per month."
18. In Section 6, in the first line after the word "that" add the following: ",
upon prior CUSTOMER approval which shall not be unreasonably withheld,".
19. In Section 7.a., delete the first sentence in its entirety.
20. Add the word "OTHER" after the word "ALL" in Section 7.b. and move Section
7.b. (as amended) to a new Section 7.i. . Delete the last sentence of
Section 7.c. and move Section 7.c. (as amended) to a new Section 7.j. .
21. Add a new Section 7.b. that states the following: "TEMPLATE SOFTWARE
represents, warrants and covenants that: (i) it has all rights, power and
authority (including all rights needed to include, incorporate or embed any
third party software) to enter into this Agreement and to license the
Licensed Product(s) to CUSTOMER; and (ii) neither the Licensed Product(s),
deliverables or any other materials provided to CUSTOMER, or any part of the
foregoing, infringes any patent, copyright, trademark, service xxxx, trade
secret or other proprietary right of a third party."
22. Add a new Section 7.c. that states the following: "TEMPLATE SOFTWARE
represents, warrants and covenants that the Licensed Product(s) shall not
contain:(i) any coded instructions, routine, or other method intentionally
included by TEMPLATE SOFTWARE to enable any person or computer system,
including authorized or unauthorized users and terminals, to bypass any log-
in and any security feature of the Licensed Product(s) or the computer
systems on which the Licensed Product(s) is installed; (ii) any code
intentionally included by TEMPLATE SOFTWARE that, when activated in
accordance with a predetermined method, date or event, causes the Licensed
Product(s) to cease to operate, to operate in a degraded manner, to damage
or destroy data or code, or otherwise deleteriously affect the functioning
of the Licensed Product(s), other programs or the computer system on which
the Licensed Product(s) is installed, or with which the computer system is
in
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Privileged and Confidential
communication; or (iii) any code or instructions intentionally included by
TEMPLATE SOFTWARE to cause the Licensed Product(s), other software, or the
computer systems on which the Licensed Product(s) is installed, to perform
an unauthorized function or to operate in an unauthorized manner."
Notwithstanding the foregoing, the Licensed Product(s) may contain license
management features so long as such features allow TEMPLATE SOFTWARE to
monitor, but not to disable or otherwise interrupt, the operation of the
Licensed Product(s).
23. Add a new Section 7.d. that states the following: "TEMPLATE SOFTWARE
represents, warrants and covenants that the Licensed Product(s) will operate
and continue to operate in proper date order sequence and will be compliant
with the documentation and other specifications before, during and after the
year 2000".
24. Add a new Section 7.e. that states the following: "TEMPLATE SOFTWARE
represents, warrants and covenants that the Licensed Product(s) will be
accompanied by complete documentation that shall be sufficient to allow a
reasonably knowledgeable information technology professional (trained in a
manner substantially equivalent to TEMPLATE SOFTWARE's internal training) to
use, support, modify and maintain the Licensed Product(s)".
25. Add a new Section 7.f. that states the following: "TEMPLATE SOFTWARE
represents, warrants and covenants that for a period of six (6) months from
the date that each Licensed Product(s) meets with Acceptance, that such
Licensed Product(s) shall perform in accordance with this Agreement,
including the Acceptance Criteria and Exhibits ("Warranty Period"). The
Warranty Period shall be deemed to continue thereafter for so long as
CUSTOMER continues to subscribe to TEMPLATE SOFTWARE's Maintenance Services,
as such services are described in the attached License Schedule(s). During
the Warranty Period, CUSTOMER agrees to provide TEMPLATE SOFTWARE with
written notification as to the specifics of any nonconformity or defect in
the Licensed Product(s) and TEMPLATE agrees to promptly repair such
nonconformity or defect free of charge. During such Warranty Period,
TEMPLATE SOFTWARE shall respond to all identified nonconformities and
defects in the manner set for in Section 4 of License Schedule 1 hereto."
26. Add a new Section 7.h. that states the following: "TEMPLATE SOFTWARE
represents, warrants and covenants that the Licensed Product(s) will be
capable of operating in accordance with the Acceptance Criteria on Oracle
7.3.2 by July 1997 and, provided CUSTOMER is then under a paid maintenance
agreement with TEMPLATE SOFTWARE, future general releases of same within six
(6) months of such general release, until July, 2002."
27. Delete Section 8 in its entirety and replace with a new Section 8 that
states the following:
"Indemnities.
a. TEMPLATE SOFTWARE agrees to indemnify, defend at its expense and hold
harmless CUSTOMER and its officers, directors, employees, agents,
successors and assigns from any and all claims, actions, damages,
liabilities, costs and expenses, including reasonable attorney's fees and
expenses, arising from or related to the following: (i) any breach of any
representation, warranty or covenant made by TEMPLATE SOFTWARE under this
Agreement; (ii) any breach of the confidentiality obligations hereunder
by TEMPLATE SOFTWARE; (iii) any claim of infringement made against
CUSTOMER or its representatives of any patent, copyright, trademark,
trade secret or other proprietary right relating to the Licensed
Product(s), documentation and/or other materials provided by TEMPLATE
SOFTWARE; and (iv) any claim of misappropriation of proprietary
information alleged to have occurred because of CUSTOMER's (or its
designated representatives) use of the Licensed Product(s), documentation
and/or other materials provided by TEMPLATE SOFTWARE.
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Privileged and Confidential
b. If such claim or threatened claim of infringement is made, then
TEMPLATE SOFTWARE shall use best efforts to (i) procure for CUSTOMER the
right to use the Licensed Product(s), and/or other materials provided by
TEMPLATE SOFTWARE claimed to be infringing such that they are free of any
liability for infringement, but if not possible then; (ii) replace the
Licensed Product(s) with a non-infringing substitute complying in all
material respects with all the requirements of this Agreement."
26. Move Section 9.c. to a new Section 9.d. and replace the original Section
9.c. with the following: "TEMPLATE SOFTWARE agrees to keep and protect as
confidential any non-public information that it receives or obtains with
respect to CUSTOMER."
27. In the first line of Section 10, before the words "(Maintenance Services)",
add the words "as described in the License Schedule(s) attached hereto".
28. Before the last line of Section 10, add the following: "The Maintenance
Services period shall be one year in duration and shall commence on the date
of expiration of the Warranty Period. The Maintenance Services shall
automatically renew for subsequent one year periods, and TEMPLATE SOFTWARE
represents that it will continue to offer such Maintenance Services, unless
CUSTOMER cancels same upon notice to TEMPLATE SOFTWARE on or before the
anniversary date of such period. The annual fee for Maintenance Services
shall be equal to fifteen percent (15%) of the License Fee for the
particular Licensed Product(s) as set forth in the License Schedule(s) and
shall be payable to TEMPLATE SOFTWARE annually in advance. Annual
maintenance fee increases shall be limited to the lesser of the previous
calendar year's annual average U.S. Consumer Price Index (CPI), For All
Urban Consumers, All Items (1982-1984=100), as published by the Bureau of
Labor Statistics of the United States Department of Labor (or such similar
index if the CPI is no longer used), or three percent (3%).
29. Delete the last line of Section 10 in its entirety.
30. Add the following at the end of Section 11: "CUSTOMER shall in no event be
liable for loss of profit, goodwill or other special or consequential
damages suffered by TEMPLATE SOFTWARE relating to this Agreement, even if
CUSTOMER has been advised of the possibility of such damages."
31. In the first line of Section 12.a., before the word "term", add the word
"material". In the first and carryover second line of Section 12.a., delete
the words ", or any default by TEMPLATE SOFTWARE or CUSTOMER,".
32. In Section 12.a., replace the word "default" wherever it appears with the
words "material breach". Delete the last sentence of Section 12.a. in its
entirety.
33. Delete Section 12.c. in its entirety.
34. In Section 13.a., after the first sentence, add the following: "This
Agreement (including any License Schedule(s) referred to herein) supersedes
all prior agreements and representations, whether written or oral, with
respect to the subject matter of this Agreement between the parties,
including that certain Memorandum of Understanding between the parties with
the effective date of February 28, 1997."
35. In Section 13.c., replace the word "State" with the word "Commonwealth" and
add the phrase "without reference to conflict of laws principles" onto the
end of the sentence.
[SIGNATURE PAGE FOLLOWS]
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Privileged and Confidential
Except for the amendments stated herein, the terms and conditions of the
Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment One to
be executed by their respective duly authorized representatives, as of
February 28, 1997, as set forth below:
WinStar Telecommunications, Inc. Template Software, Inc.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
-------------------- ----------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx
---------------- ------------------
Title: Director- Procurement Title: Chief Financial Officer
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and Material Management
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6
