EXHIBIT 10.9
PRIMUS COMMUNICATIONS CORPORATION
SOFTWARE LICENSE AGREEMENT
This Agreement is made by and between Primus Communications Corporation
("Primus"), a Washington corporation, and Licensee (as defined below) and is
dated as of the date set forth below Primus' signature at the end of this
Agreement.
Basis of Agreement.
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X. Xxxxxx has developed Software which allow users to capture, retrieve and
electronically publish solutions to product support problems. The Software
consists of SolutionBuilder(R) software, a client/server application that helps
analysts solve problems by capturing their work during the solution process and
making their results available for use by other analysts, and
SolutionPublisher(TM) software, which allows customers direct access to product
support solutions over the Internet.
B. Licensee seeks to license Primus' Software listed in Exhibit A for use in
its operations and Primus is willing to license Software to Licensee for such
use upon the terms and conditions contained in this Agreement. As more fully
set forth in this Agreement, Licensee may install such Software on its servers,
and allow access to such servers and Software to subsidiaries, employees,
contractors, representatives and customers of Licensee.
Section 1. Definitions.
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1.1 "Authorized Server" means the computers of Licensee designated in Exhibit A
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as Authorized Servers on which the Server Software may be used at the Licensed
Site(s) as the same may be changed from time to time as provided in Section
2.3.2.
1.2 "Authorized User" means any Authorized SB User and/or any Authorized SP
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User.
1.3 "Authorized SB User" means (i) any employee of Licensee, and/or (ii) a
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subsidiary, contractor, customer, agent or representative of Licensee and the
employees of such subsidiary, contractor, customer, agent or representative who
are authorized by Licensee to use the SolutionBuilder portions of the Software
as provided in Sections 2.2 and 2.3.3.
1.4 "Authorized SP User" means a user with respect to whom Licensee has paid a
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license fee for use of the SP Server Software. The maximum number of concurrent
users is specified in Exhibit A.
1.5 "Authorized Workstation" means a computer workstation or terminal of an
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Authorized SB User with respect to which Licensee has paid a license fee for use
of the Client Software. The initial number of Authorized Workstations is set
forth in Exhibit A.
1.6 "Client Software" means that portion of the Software that is designated in
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the Documentation as SolutionBuilder software for use on an Authorized
Workstation.
1.7 "Documentation" means the Software user manuals and other documentation
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supplied to Licensee by Primus pursuant to Section 2.1.
1.8 "License" means the license granted under Section 2.
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1.9 "Licensee" means 3Com Corporation and all wholly owned subsidiaries of
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3Com Corporation.
1.10 "License Term" means the term of the License as set forth in Section 2.7.1
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1.11 "Licensed Site(s)" means the location(s) of the Authorized Server(s)
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designated by Licensee in Exhibit A as the same may be changed from time to time
as provided in Section 2.3.2. A Licensed Site shall be restricted to locations
under the care, custody and control of Licensee.
1.12 "Server Software" means that portion of the Software that is designated in
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the Documentation for use on an Authorized Server.
1.13 "Service Bureau" means the renting, timeshare leasing, or charging of fees
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for access to or use of the Software by Licensee to any third party except as
expressly authorized under Section 2.3.6.
1.14 "SB Server Software" means that portion of the Server Software designated
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in the Documentation as SolutionBuilder Software
1.15 "Software" means the object code version of Primus' computer programs
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(including any third party products licensed by Primus and embedded in Primus'
computer programs) more fully described on Exhibit A, as such Exhibit may be
amended from time to time, including any modifications or future versions of
such software that Primus may provide to Licensee under this Agreement or any
maintenance and support agreement.
1.16 "SP Server Software" means that portion of the Server Software
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designated in the Documentation as SolutionPublisher software.
Section 2. Software License.
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2.1 Delivery. Upon payment to Primus of the license fees specified in Exhibit
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A, or delivery of a valid purchase order with respect to such fees, Primus shall
deliver to Licensee one reproducible master of the Software, and one
reproducible master of the Documentation. Primus shall also deliver paper
copies of the Documentation as specified in Exhibit A. Such Software and
Documentation shall be delivered FOB Licensee's dock in the United States.
2.2 Grant of License. Subject to the provisions of this Agreement, Primus
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grants to Licensee a non-exclusive, non-transferable license, without right to
sub-license (except as specified herein), during the License Term, to: (i),
reproduce, distribute and install the Client Software on the then current number
of Authorized Workstations, and reproduce, distribute and install the Server
Software on the then current number of Authorized Servers; (ii) use and allow
Authorized SB Users to use the SB Server Software on Licensee's Authorized
Server(s) and use and allow Authorized SP Users to use the SP Server Software on
Licensee's Authorized Server(s); (iii) use and allow Authorized SB Users to use
the Client Software on Authorized Workstations of Licensee or the Authorized
Users; and (iv) reproduce and use the Documentation in conjunction with
Licensee's use of the Software, and reproduce, use and allow Authorized SB Users
to use the Documentation in conjunction with their use of the Software.
2.3 Reservation. All rights to the Software and Documentation not expressly
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granted to Licensee in this Agreement are reserved by Primus. Without limiting
the generality of the foregoing, Licensee shall use the Software only for the
purposes specified in Section 2.2 and in accordance with the following:
2.3.1 Licensee shall not reproduce, install or use (or permit any Authorized
SB User to reproduce, install or use) the Client Software on any computer
workstations or terminals (whether via network access or other means) in an
aggregate number greater than the then current number of Authorized
Workstations. Licensee may increase the number of Authorized Workstations from
time to time as provided in Section 3.1.1.
2.3.2 Licensee shall not use the Server Software or authorize or permit any
Authorized User to reproduce, install or use the Server Software on any computer
other than an Authorized Server. If Licensee wants to move the Server Software
from an Authorized Server to a different computer of Licensee or wants to move
an Authorized Server with the Server Software to a different Licensed Site,
Licensee must notify Primus promptly following such change with the model and
serial number of the new Authorized Server and/or the address of the new
Licensed Site, as applicable. Licensee need not comply with the above procedure
if the relocation is done temporarily while an Authorized Server is inoperable.
2.3.3 Licensee may provide copies of the Client Software and use of the SB
Server Software on Licensee's Authorized Server for use in accordance with the
terms of this Agreement to its contractors, customers, agents and
representatives who agree to use the Client Software only in conjunction with
Licensee's Authorized Servers. Licensee shall be responsible for any failure by
any Authorized User to comply with the terms of this Agreement. Licensee shall
not make any Client Software available to any person or entity other than to
Licensee's employees or to a subsidiary, contractor, customer, agent or
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representative of Licensee who becomes an Authorized SB User as provided under
this Section 2.3.3.
2.3.4 Licensee shall not remove, obscure or alter any notice of copyright,
patent, trade secret, trademark or other proprietary right appearing in or on
any Software and shall ensure that each copy of all or any portion of the
Software made by Licensee includes such notices.
2.3.5 Licensee shall not modify, translate, decompile, create or attempt to
create, by reverse engineering or otherwise, the source code from the object
code supplied hereunder or use it to create a derivative work or knowingly allow
any third party to do so except that Licensee may integrate the Software with
another computer program for use on the Authorized Workstations and the
Authorized Servers. Any portion of the Software so integrated will be subject
to the terms of this Agreement. Without limiting the generality of the
foregoing, Licensee shall not use Software as a basis to create or develop any
standalone software program to perform the same functions as the Software that
(i) incorporates any portion of the Software or (ii) makes direct function calls
to or operation of which is otherwise dependent upon any portion of the
Software, unless independently developed by Licensee without access or reference
to the Software.
2.3.6 Except as expressly authorized in Sections 2.3.3 or 5.5, Licensee shall
not sublicense, sell, lend, rent, lease, give, transfer, assign, or otherwise
dispose of all or any portion of the Software or any interest in the Software or
use (or cause to be used) the Software as part of a Service Bureau or any
similar purpose. Any such transfer or disposition without such consent shall be
voidable at Primus' option.
2.3.7 Licensee shall not export or re-export, directly or indirectly, any
Software in violation of any applicable export control laws. Without limiting
the generality of the foregoing, Licensee shall not export or re-export the
Software to any country to which such export or re-export is prohibited by U.S.
export control laws without obtaining permission of the United States Office of
Export Administration or its successors. At Primus' written request, Licensee
shall provide Primus with any "Letter of Assurance" required to be obtained by
Primus under United States export laws and regulations.
2.3.8 In addition to its reproduction rights with regard to the Client
Software under the License, Licensee may reproduce the Software as necessary for
bona fide back-up or archival purposes only. Licensee shall be responsible for
maintaining current archival copies of Licensee's data and Licensee expressly
releases Primus from liability for any loss of data, corruption or other damage
of such data for any reason, including without limitation, loss, corruption or
damage occurring as result of a failure of the Software to operate as set forth
in the Documentation. This release shall not extend to loss or damage arising
out of Primus' gross negligence or willful misconduct.
2.3.9 Licensee assumes full responsibility for any changes, modifications or
improvements to the Software made by any person other than Primus or Primus'
authorized agent. To the extent that they arise out of any such changes,
modifications or improvements, Licensee hereby releases Primus from all
liability and waives all rights, claims and remedies against Primus, for any and
all damages of any kind or nature, to the extent they result from such acts.
2.3.10 Licensee shall ensure that no more than the maximum number of users
specified in Exhibit A use the SP Server Software at any one time.
2.4 Protection Against Unauthorized Use. Licensee shall promptly notify Primus
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of any unauthorized use of any Software which comes to Licensee's attention. In
the event of any unauthorized use by any Authorized User or any employee, agent
or representative of Licensee or such Authorized User, Licensee shall use
reasonable efforts to terminate such unauthorized use and to retrieve any copy
of the Software in the possession or control of the person engaging in such
unauthorized use. Licensee shall promptly notify Primus of any legal proceeding
initiated by Licensee in connection with such unauthorized use. Primus may, at
its option and expense, participate in any such proceeding and, in such event,
Licensee shall provide such authority, information and assistance related to
such proceeding as Primus may reasonably request to protect Primus' interests,
at Primus' expense.
2.5 No Conveyance of Ownership. This Agreement does not convey to Licensee
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ownership of the Software or any copy of the Software, but only the right to use
the Software in strict accordance with this Agreement. Licensee acknowledges
the representation that Primus and Primus' licensors are the sole and exclusive
owners of the Software; that the Software and all technical data and information
associated therewith constitute trade secrets and are the valuable property of
Primus and its licensors; that the Software is protected by copyright and
trademark; and that Primus and its licensors retain all title and ownership in
the Software.
2.6 Third Party Products. The Software incorporates material which is licensed
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by Primus from Versant Object technology Corporation ("Versant") and which is
used by agreement between Primus and Versant. Licensee acknowledges and agrees
that Versant is a direct and intended third party beneficiary of this Agreement
which may enforce this Agreement directly against Licensee.
2.7 Term and Termination.
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2.7.1 The License Term shall commence upon the date of this License Agreement
and shall continue in perpetuity unless the Agreement is terminated in
accordance with Section 2.7.3.
2.7.2 INTENTIONALLY DELETED
2.7.3 In the event of a material breach or default under this Agreement by
Licensee, Primus may terminate this Agreement by giving Licensee written notice
of the breach or default and Primus' intention to terminate. The Agreement
shall automatically terminate thirty (30) days after delivery of such notice
unless Licensee cures the breach or default before the expiration of the thirty
(30) day period.
2.7.4 After termination of this Agreement, Licensee shall destroy all copies
of the Server Software within five (5) days of such termination, and all copies
of the Client Software and the Documentation within twenty (20) days of such
termination, (including any modified, partial or merged versions) and
immediately thereafter provide Primus with a written certification signed by an
authorized representative of Licensee certifying that all copies of the Software
have been destroyed and all use of the Software has been discontinued.
2.8 3Com Corporation and Subsidiaries. 3Com Corporation warrants and guarantees
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to Primus that 3Com Corporation and its wholly-owned subsidiaries (collectively,
the "3Com Group") shall each perform their obligations as a Licensee in
accordance with the provisions of this Agreement. 3Com Corporation further
warrants that, by executing this Agreement, 3Com Corporation binds each member
of the 3Com Group as a Licensee under this Agreement.
Section 3. Compensation.
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3.1 Purchase Order.
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3.1.1 Increase in Authorized Workstations. In the event that Licensee wishes
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to increase the number of Authorized Workstations on which the Client Software
may be used, Licensee shall submit a purchase order to Primus for the quantity
of additional Authorized Workstations desired in accordance with Exhibit A.
Such orders shall be placed in minimum blocks of twenty-five (25) units. Upon
acceptance of Licensee's purchase order by Primus, which shall not be
unreasonably withheld, Licensee may reproduce and install the Client Software on
such additional Authorized Workstations and Primus shall deliver Documentation
for the additional workstations in the quantities set forth in Exhibit A, at
Primus' expense.
3.1.2 Increase in Authorized Servers. In the event that Licensee wishes to
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increase the number of Authorized Servers, Licensee shall submit a purchase
order to Primus for the quantity of additional Authorized Servers desired in
accordance with Exhibit A. Such purchase orders shall state the model and
serial number on which the Server Software is to be installed and the location
of the Licensed Site. Upon acceptance of Licensee's purchase order by Primus,
which shall not be unreasonably withheld, Licensee may reproduce and install the
Server Software on such additional Authorized Servers, and Primus shall deliver
Documentation for each additional server in the quantities set forth in Exhibit
A, at Primus' expense.
3.1.3 Increase in Authorized Users. In the event that Licensee wishes to
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increase the number of Authorized Users, Licensee shall submit a purchase order
to Primus for the quantity of additional Authorized Users desired in accordance
with Exhibit A. Upon acceptance of Licensee's purchase order by Primus, which
shall not be unreasonably withheld, Licensee may increase the number of
Authorized
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Users by the additional number and may reproduce the Documentation up to the
total number of Authorized Users.
3.2 License Fee. Licensee shall pay Primus the Software license fees specified
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in Exhibit A. Licensee shall issue a purchase order immediately following
execution of this Agreement by Licensee. Licensee shall pay such license fees
to Primus within thirty (30) days after date of invoice, provided that the
invoice is not issued until the Software or Documentation (as applicable) is
shipped.
3.3 Accounting and Records. Licensee shall keep current, complete and
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accurate records regarding the location, model name, serial number of all
Authorized Servers on which the Server Software is installed and the number of
installations of the Client Software made by Licensee or an Authorized User
under this Agreement and shall provide such information to Primus upon request.
Upon request, Primus' certified public accountant, may inspect, audit, and copy
such records of Licensee related to this Agreement and access the Server
Software at any time during Licensee's regular business hours upon five (5)
business days' prior written notice provided that such right may be exercised no
more than once during any calendar year and solely for determining Licensee's
compliance with the provisions of this Agreement. If any such audit discloses
any understatement of the license fees due, Licensee shall promptly pay to
Primus any deficiency, plus interest at a rate provided in Section 3.4.2 from
the date such payment should have been made until paid. Primus' acceptance of
any payment shall be without prejudice to Primus' rights for statements or
audits hereunder. The certified public accountant shall use any information
received in conjunction with the audit solely for the specific purposes of this
Agreement. Primus shall ensure that, except for purposes of enforcement of this
Agreement, such accountant shall keep confidential all confidential information
of Licensee that such accountant receives or obtains.
3.4 Other Payment Terms.
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3.4.1 Licensee shall be responsible for any applicable sales or use taxes or
any value added or similar taxes payable with respect to the licensing of the
Software to Licensee, or arising out of or in connection with this Agreement,
other than taxes levied or imposed in the United States of America based upon
Primus' income. If Licensee has tax-exempt status, a certificate or other
evidence of such tax exemption shall be provided with Licensee's purchase order.
If the parties agree in writing that Primus shall ship Software or Documentation
outside the United States, and that Licensee shall pay related fees to Primus
from outside the United States, then the provisions of subsection 3.4.1.2 shall
apply. Neither party shall be under any obligation to enter into any such
agreement by virtue of this Agreement.
3.4.1.2 If applicable law of any country from which Licensee pays fees
to Primus, or to which Licensee ships Software to Licensee, requires Licensee to
withhold any income taxes levied by the country authorities on payments to be
made pursuant to this Agreement ("Withholding Taxes"), Licensee shall take
advantage of the reduced Withholding Tax provided for by the country/United
States tax treaty then in force and shall be entitled to deduct such Withholding
Tax from the payments due to Primus under this Agreement. Licensee shall
promptly effect payment of the Withholding Tax to the appropriate tax
authorities and shall transmit to Primus within 15 days of such payment official
tax receipts or other evidence issued by the appropriate tax authorities
sufficient to enable Primus to support a claim for income tax credits in the
United States. Licensee further shall assist Primus at Primus' expense, upon
request, if Primus contests to the country government in question, by
appropriate legal or administrative proceedings, the validity or amount of the
Withholding Tax. In the event that Primus does not receive official tax
receipts within 30 days, Primus shall have the right to invoice Licensee for
such Withholding Tax and Licensee agrees to pay such amounts upon receipt of
invoice.
3.4.2 A finance charge of one percent (1%) per month will be charged on
amounts not paid within forty-five (45) days after the date specified in Section
3.2.
Section 4. Warranties and Remedies.
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4.1 Warranties.
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4.1.1 Primus warrants to Licensee for a period of one hundred twenty (120)
days from the date of shipment by Primus that the media on which the Software is
distributed will be free from defects in materials and workmanship;
4.1.2 Primus warrants to Licensee for a period of one hundred twenty (120)
days from the date of shipment of such Software by Primus to Licensee that the
Software shall perform in all material respects in accordance with the
applicable specifications set forth in the Documentation delivered by Primus and
in attachments or exhibits to this Agreement; and
4.1.3 Primus warrants to Licensee that the Software does not infringe any
valid copyright, patent, trademark, trade secret or other intellectual property
of a third party arising under the laws of the United States. Primus warrants to
Licensee that, to the best of Primus' knowledge, the Software does not infringe
any valid third party copyright existing in any of the following countries: the
United Kingdom; Singapore.
4.1.4 Without limiting the foregoing, Primus does not warrant that the
Software is free from all bugs, errors, or omissions. The warranties set forth
in this Section 4.1 apply only to the latest release of the Software made
available by Primus to Licensee. Such warranties shall automatically terminate
if the Software has been subjected to damage or abuse or Licensee modifies or
operates the Software in any manner inconsistent with the Documentation.
4.1.5 Primus represents and warrants that it is the true owner of the
Software and possesses all rights, authority and permission to grant the rights
and uses to Licensee permitted under this Agreement, including, such rights from
Primus' licensor(s) to sublicense any of its material incorporated into the
Software.
4.2 Performance Remedy. If any Software subject to the warranties set forth in
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Section 4.1 fails to comply with the warranty set forth in Sections 4.1.1 or
4.1.2 and Licensee provides written notice of the same within the warranty
period, Primus will either repair or, at its option, replace any non-complying
media or Software. If Primus is unable to correct the noncompliance within
thirty (30) days of receipt of such written notice from Licensee, Primus may,
after consultation with Licensee, promptly refund all of the license fees paid
for the Software, in full satisfaction of Licensee's claims for media or
Software failure, and immediately terminate the License. Such consultation
shall include, at a minimum, negotiation between the parties to determine terms
under which Licensee may continue to use the non-conforming Software, and under
which Primus may continue work to remedy such non-conformity without incurring a
commercially unreasonable loss. Upon such termination, Licensee shall return or
destroy the Software as provided for under Section 2.7.4. Any replacement media
or Software will be warranted for an additional one hundred twenty (120) day
period.
4.3 Infringement Remedy. Primus shall defend Licensee against any proceeding
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based upon any failure to satisfy the warranty set forth in Section 4.1.3,
provided that (a) Licensee notifies Primus of the proceeding promptly after it
has commenced, (b) Primus has exclusive control over the defense and settlement
of the proceeding, (c) Licensee provides such assistance in defense of the
proceeding as Primus may reasonably request, at Primus' reasonable expense, and
(d) Licensee complies with any settlement or court order made in connection with
the proceeding (e.g., relating to the future use of any infringing Software),
provided Primus complies with the provisions for remedying the problem as
specified below. Further, Primus shall: (i) indemnify Licensee against any and
all damages, costs, and attorneys' fees finally awarded against Licensee in any
infringement proceeding under this Section 4.3, (ii) reimburse the expenses
reasonably incurred by Licensee to provide the assistance requested by Primus
under (c) above, and (iii) if the action is settled, pay any amounts agreed to
by Primus in settlement of any claims of infringement. Primus shall have no
liability under Section 4.1.3 or this Section 4.3 for any claim of infringement
arising out of Licensee's modification of the Software or for any claim arising
out of the combination of the Software with a program, product, or material not
furnished by Primus, to the extent such infringement would not have occurred but
for such modification or combination. In the event that use of the Software
becomes, or in Primus' reasonable opinion is likely to become, the subject of a
claim of infringement of copyright, patent, trademark, trade secret or other
intellectual property of a third party, it is Primus' option to remedy
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the situation by: (i) procuring the continuing right of Licensee to use the
Software; (ii) replacing or modifying the Software in a functionally equivalent
manner so that it no longer infringes; or (iii) with Licensee's consent,
terminating the License and refunding to Licensee an amount equal to the
depreciated License fee paid by Licensee (calculated on a straight line basis
over a three (3) year life). Upon such termination, Licensee shall return or
destroy the Software as provided for under Section 2.7.4.
4.4 Exclusivity; Disclaimer. Primus makes no representation or warranty with
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regard to the Software or other items furnished under this Agreement, except as
set forth in Section 4.1. The obligations of Primus under Sections 4.2 and 4.3
are the sole and exclusive remedies of Licensee regarding any noncompliance with
the warranties set forth in Section 4.1. EXCEPT AS SPECIFICALLY SET FORTH IN
THIS SECTION 4, PRIMUS DISCLAIMS AND LICENSEE WAIVES AND RELEASES ALL RIGHTS AND
REMEDIES OF LICENSEE, AND ALL WARRANTIES, OBLIGATIONS, AND LIABILITIES OF
PRIMUS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
BUG, ERROR, OMISSION, DEFECT, DEFICIENCY, OR NONCONFORMITY IN ANY SOFTWARE,
WARRANTY SERVICES, OR OTHER ITEMS FURNISHED UNDER THIS AGREEMENT, INCLUDING BUT
NOT LIMITED TO ANY: (A) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE; (B) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING, OR USAGE OF TRADE;OR (C) CLAIM OF INFRINGEMENT.
4.5 Excused Performance; Force Majeure. If the performance of this Agreement
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is adversely restricted by reason of any circumstances beyond the reasonable
control and without the fault or negligence of the party affected, then the
party affected, upon giving prompt written notice to the other party, shall be
excused from such performance on a day-to-day basis to the extent of such
restriction (and the other party shall likewise be excused from performance of
its obligations on a day-to-day basis to the extent such party's obligations
relate to the performance so restricted); provided, however, that the party so
affected shall use all commercially reasonable efforts to avoid or remove such
causes of non-performance and both parties shall proceed whenever such causes
are removed or cease.
Section 5. Miscellaneous.
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5.1 Limitation of Remedy. IN NO EVENT SHALL EITHER PARTY BE LIABLE (WHETHER IN
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TORT, NEGLIGENCE, CONTRACT, WARRANTY, PRODUCT LIABILITY OR OTHERWISE) FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS OR
SAVINGS ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR
THE USE, INABILITY TO USE OR RESULTS OF USE OF THE SOFTWARE EVEN IF EITHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.2 Limitations of Liability. Except for Primus' obligations under Section
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4.3, neither party's liability (whether in tort, negligence, contract, warranty,
product liability or otherwise) with regard to this Agreement or any Software or
other items furnished under this Agreement shall exceed the license fees paid by
Licensee to Primus under this Agreement.
5.3 Injunctive Relief. Each of Licensee and Primus acknowledges that their
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respective obligations with respect to the use and provision of the Software are
essential elements of the transactions contemplated in this Agreement; that, but
for the agreement of each of them to comply with such obligations, the other
would not have entered into this Agreement; and that damages will be an
inadequate remedy if the other violates the terms of this Agreement, or
otherwise fails to perform its obligations hereunder. Accordingly, each of them
shall have the right, in addition to any other rights each of them may have, to
obtain in any court of competent jurisdiction, temporary, preliminary and
permanent injunctive relief to restrain any breach, threatened breach, or
otherwise to specifically enforce any of the obligations in this Agreement.
5.4 Notices. Any notice or other communication under this Agreement given by
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either party to the other party shall be deemed to be properly given if given in
writing and delivered in person or mailed (return receipt requested), properly
addressed and stamped with the required postage, to the intended recipient at
its address specified herein, or sent via confirmed facsimile and confirmed by
first class mail. Either party may from time to time change its address by
giving the other party notice of the change in accordance with this Section 5.4.
5.5 Assignment. Neither party shall assign any of its rights under all or any
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part of, this Agreement, directly, by operation of law, or otherwise, without
the prior written consent of the other party, which shall not be unreasonably
withheld. Subject to the foregoing restriction on assignment by both parties,
this Agreement shall be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns.
5.6 Nonwaiver. Any failure by either party to insist upon or enforce
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performance by Licensee of any of the provisions of this Agreement or to
exercise any rights or remedies under this Agreement or otherwise by law shall
not be construed as a waiver or relinquishment of either party's right to assert
or rely upon the provision, right, or remedy in that or any other instance;
rather the provision, right, or remedy shall be and remain in full force and
effect.
5.7 Attorney's Fees and Expenses. In the event of any proceeding under this
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Agreement, the prevailing party in any such proceeding shall be entitled to
reasonable attorney's fees and expenses, including the full cost of any
arbitration, trial and any appeal.
5.8 Reference. Licensee authorizes Primus to disclose that it is a customer
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and agrees to be a reference account for Primus. Notwithstanding, Primus shall
obtain Licensee's prior written consent before using Licensee's name in any
advertising, marketing materials, press releases, published articles or reports,
or other similar types of documents distributed or announcements made to the
public.
5.9 Applicable Laws; Forum. This Agreement shall be interpreted, construed,
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and enforced in accordance with the laws of the State of Washington without
reference to its choice of law rules and not including the 1980 UN Convention on
Contracts for the International Sale of Goods. Plaintiff party may only
commence or prosecute a suit, proceeding, or claim to enforce the provisions of
this Agreement relating to the Software, or other items furnished under this
Agreement, or otherwise arising under or by reason of this Agreement, in a court
of competent jurisdiction in the state of the defendant party, Washington if
Primus is the defendant party and California if Licensee is the defendant party.
5.10 Entire Agreement. This Agreement constitutes the entire agreement,
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and supersedes any and all prior agreements and representations between Primus
and Licensee related to the Software and other items furnished under this
Agreement. Licensee acknowledges and agrees that it has read, negotiated and
agreed to all of the provisions of this Agreement including without limitation
Sections 4.4, 5.1 and 5.2. This Agreement may not be amended except by a
written instrument executed by both parties.
5.11 Exhibits. The Exhibits listed below shall form a part of this Agreement:
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Exhibit A - Product and Fee Schedule
IN WITNESS WHEREOF, the parties hereto each acting with proper authority have
executed this Agreement as indicated below.
PRIMUS COMMUNICATIONS CORPORATION LICENSEE: 3COM CORPORATION
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Xxxxxxx, XX 00000
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000-000-0000
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By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Name (Print) Xxxxxx X. Xxxxxx
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Title: President and Chief Title SUP - CIO
Executive Officer
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Date 6-27-97 Date 6/25/97
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PRIMUS COMMUNICATIONS CORPORATION
SOFTWARE LICENSE AGREEMENT
EXHIBIT A
PRODUCT AND FEE SCHEDULE
INITIAL ORDER
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PRODUCT # AUTHORIZED # AUTHORIZED # AUTHORIZED DISTRIBUTION FEE
WORKSTATIONS SERVERS USERS TERM
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SolutionBuilder [*] (See Note 1) N/A N/A $[*]
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SolutionPublisher N/A (See Note 1) [*] N/A $[*]
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Note 1: Licensee shall notify Primus of the number of Authorized Servers as
soon as reasonably practicable following contract execution
Licensee shall pay Primus license fees totalling $[*], and maintenance and
support fees totalling $[*], for an aggregate of $[*]. Primus shall invoice
Licensee as soon as practicable following execution of this Agreement. Licensee
shall pay the aggregate fees in the following amounts, and on the following
dates:
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PAYMENT AMOUNT PAYMENT DATE
(US $)
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[*] May 31, 1997
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[*] August 31, 1997
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[*] October 31, 1997
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[*] December 31, 1997
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TOTAL US $[*]
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ADDITIONAL ORDERS
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SolutionBuilder. Primus hereby grants Licensee the option, for a period
commencing on the date of this Agreement and ending on December 31, 1999 (the
"Option Period"), to increase the number of Authorized Workstations at the
prices set forth in the table below. The prices depend upon the number of
Authorized Workstations for which Licensee has acquired rights under this
Agreement. Licensee may exercise its rights under this option at any time and
from time to time during the Option Period, by following the procedure described
in Section 3.1.1 of this Agreement. Licensee shall pay Primus all additional
license fees due with respect to additional Authorized Workstations within
thirty (30) days of receipt of Primus' invoice.
NO. OF AUTHORIZED WORKSTATIONS FEE PER AUTHORIZED WORKSTATION (US $)
[*] [*]
[*] [*]
[*] [*]
SolutionPublisher. Primus hereby grants Licensee the option, for the duration of
the Option Period, to increase the number of Authorized SP Users from [*] to
[*], for a purchase price of [*] US Dollars (US $[*]). Licensee may exercise its
rights under this option at any time and from time to time during the Option
Period, by following the procedure described in Section 3.1.3 of this Agreement.
Licensee shall pay Primus all additional license fees due with respect to
additional Authorized SP Users within thirty (30) days of receipt of Primus'
invoice.
[*] = omitted, confidential material, which material has been separately filed
with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
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The SolutionBuilder and SolutionPublisher options described above shall be
collectively and individually referred to as the "Option."
AUTHORIZED SERVERS
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MODEL # SERIAL # LICENSED SITE (Street/City/State/Phone)
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* * *
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* To be provided by Licensee as soon as reasonably practicable after contract
execution
DOCUMENTATION MANUALS
---------------------
Primus shall deliver the following manuals to Licensee in accordance with
Section 2.1 of the Agreement:
1 user guide for every 10 Authorized Workstations; 1 system
administrator guide for every 100 Authorized Workstations; 1
SolutionReports guide for every 50 Authorized Workstations; 1
installation guide for every 100 Authorized Workstations
This Exhibit is hereby approved and accepted:
Primus Communications Corporation
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By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx Name (Print): Xxxxxx X. Xxxxxx
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Title: President and Chief Title: SUP - CIO
Executive Officer
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Date: 6/27/97 Date: 6/25/97
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