U.S. Software License Agreement
This U.S. Software License Agreement (the "Agreement") is made and
entered into by and between MicroStrategy Incorporated, a Delaware
corporation having its principal place of business at 0000 Xxxxxx Xxxxxxxx
Xxxxx, Xxxxxx, XX 00000 ("MSTR"), and Xxxxxxxx.xxx Incorporated, a Delaware
corporation having its principal place of business at 0000 Xxxxxxxxxxxxx
xxxxx, Xxxxxx, Xxxxxxxx 00000 ("SDC"), (each one individually a "Party" and,
collectively, the "Parties"). The effective date of this Agreement shall be
the date last signed below (the "Effective Date").
WITNESSETH
WHEREAS, MicroStrategy Incorporated and certain of its subsidiaries desire
to realign their worldwide corporate structure in accordance with their separate
lines of business, the "Xxxxxxxx.xxx Business" and the "MicroStrategy Business";
and
WHEREAS, the entities now enter into various agreements and make certain
mutual promises as described in the "Agreement and Plan of Reorganization" by
and among MicroStrategy Incorporated, MicroStrategy International Limited,
MicroStrategy International II Limited, Xxxxxxxx.xxx Incorporated, and
Xxxxxxxx.xxx International Limited dated October 17, 2000 to effectuate this
realignment and reorganization; and
WHEREAS, MSTR has developed the suite of software known as the
MicroStrategy platform (as further defined below) and other technology related
to a personalized information network. SDC desires to acquire rights in the
MicroStrategy platform; and
WHEREAS, SDC is currently using the MicroStrategy platform in certain
existing projects which the Parties agree SDC should be permitted to continue.
NOW, THEREFORE, in consideration of the premises set forth above and the
covenants set forth below, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions
As used in this Agreement, capitalized terms will have the meanings set forth
below.
1.1 "Affiliate" means a company that provides Services to its customers via
an affiliation with SDC and that has signed an affiliation agreement with SDC.
1.2 "MicroStrategy Platform" means all existing and future MicroStrategy
products that are made generally available including, without limitation, the
MicroStrategy E-Business platforms known as MicroStrategy 6.0 and MicroStrategy
7.0 (or any derivative works thereof), MicroStrategy Intelligence Server,
MicroStrategy Web Server, MicroStrategy Broadcast Server, MicroStrategy
Architect, MicroStrategy Administrator, MicroStrategy Agent, MicroStrategy
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Web, MicroStrategy InfoCenter, MicroStrategy Transactor, MicroStrategy
Broadcaster, MicroStrategy Telecaster, the MicroStrategy Software Development
Kit (SDK) and the MicroStrategy eCRM 6 application. The MSTR Products shall
include, at no charge to SDC, all upgrades and bug fixes as are made generally
available through MicroStrategy technical support.
1.3 "Intellectual Property (IP) Rights" means all patents, copyrights,
trade names, trademarks, trade secrets, or any other intellectual property
rights, whether registered or unregistered essential to undertake the activities
licensed hereunder.
1.4 "Services" means syndicated information services covering a broad range
of content distributed to end users through a network of affiliates, as well as
offering targeted advertising and e-commerce offers to consumers through a
network of affiliates or through a specific affiliate and offering reporting on
subscriber information. Services may also mean the provision of customized
services to a specific affiliate using any combination of syndicated data and/or
data provided by the affilate and the information is sent by SDC directly to
consumers on behalf of the affiliate. Services specifically exclude the ability
of SDC to host applications (e.g., eCRM applications and business intelligence
applications) that analyze customer data that is unrelated to Subscription Data
and that would essentially compete with MicroStrategy's products and offerings.
Subscription Data is any information about a subscriber that is collected as a
part of delivering the Services.
1.5 "Software" means those certain software modules that make up the MSTR
Platform, and any related technical documentation.
1.6 "Subsidiary" means a corporation or other legal entity: (i) the
majority of whose shares or other securities entitled to vote for election of
directors (or other managing authority) is now or hereafter controlled by such
company either directly or indirectly; or (ii) which does not have outstanding
publicly traded shares or securities but the majority of whose ownership
interest representing the right to manage such corporation or other legal entity
is now or hereafter owned and controlled by such company either directly or
indirectly; but any such corporation or the other legal entity shall be deemed
to be a Subsidiary of such company only as long as such control or ownership and
control exists.
1.7 "Territory" shall mean the United States.
2. License Grants
2.1 Object Code License. Subject to the terms and conditions of this
Agreement, MSTR hereby grants to SDC a nonexclusive, nontransferable,
royalty-free license, without right of sublicense except as set forth in Section
2.3 below, to make, use, and provide access to the Software (in
machine-executable object code form only) only for use within SDC's normal
business operations to support and operate the Services and for SDC's internal
business intelligence needs.
2.2 Source Code License. MSTR hereby grants to SDC a nonexclusive,
nontransferable, perpetual, and royalty-free license, without right of
sublicense, to use the Software in source code form to develop and maintain
derivative works of the Software only for use within SDC's normal business
operations to support and operate the Services in the Territory. MSTR further
grants to SDC a nonexclusive, nontransferable, perpetual, worldwide
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and royalty-free license, without right of sublicense to use and provide
access to the derivative works of the Software to support and operate the
Services in the Territory. Nothing in this Agreement shall give SDC any
right to make the source code of the MSTR platform available to any third
party.
2.3 License Restrictions. SDC shall not authorize others to reverse
compile, reverse engineer or otherwise disassemble the Software or derivative
works of the Software. SDC agrees to take no actions inconsistent with or
exceeding the scope of the license grant set forth in Sections 2.1 and 2.2.
Specifically, SDC shall not permit any third party access to the Source Code of
the Software. Except for the rights expressly granted in this Agreement, all
rights to the Software and any Intellectual Property Rights therein are reserved
by MSTR. When SDC makes the Software available to a third party as part of the
Services, SDC must do so solely through a written sublicense agreement, either
in a written form or a "click-wrap" form ("End User License Agreement"), which
shall be in the form provided by MicroStrategy or in a form prepared by SDC so
long as such End User License Agreement includes, at a minimum, contractual
provisions at least as restrictive as the following, which:
(a) Disclaim MicroStrategy's liability for damages, whether
direct or indirect, incidental or consequential, arising from the use of the
Software.
(b) Require end users to use a commercially reasonable degree
of care to protect the Confidential Information of MicroStrategy and prohibit
End Users from, directly or indirectly, (1) using any Confidential
Information of MicroStrategy to create any computer software program or user
documentation which is substantially similar to any Software, or (2) using or
disclosing Confidential Information of MicroStrategy.
(c) The End User License Agreement shall not cause
MicroStrategy to be liable for any taxes or duties, however designated or
levied (including but not limited to sales, use and personal property).
(d) Notwithstanding any provisions to the contrary contained in
this Agreement and for the avoidance of doubt, SDC shall have the right to
use and/or sublicense the Software solely for the purpose of licensing or
offering the Services as defined in the U.S. Software Licensing agreement to
a third party that relicenses the Services for example an OEM relationship.
MicroStrategy reserves the right to amend the minimum required contractual
provisions set forth in this Section upon ninety (90) days' advance written
notice, provided such amended provisions shall apply only to End User License
Agreements executed by SDC subsequent to the expiration of the ninety
(90)-day notice period.
2.4 Assignment and Transfer. SDC may not assign this Agreement or transfer
Software to an Affiliate without prior written consent of MicroStrategy.
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2.5 Audit.
(a) Certification. At MicroStrategy's written request, not
more frequently than once per year, SDC shall furnish MicroStrategy with a
signed certification verifying that the Software is being used pursuant to
the provisions of this Agreement.
(b) Audit. MicroStrategy may, at its expense, audit SDC's use
of the Products. Any such audit shall be conducted during regular business
hours at SDC's facilities and shall not unreasonably interfere with SDC's
business activities.
3. Ownership.
3.1 Ownership. As between SDC and MSTR, SDC acknowledges that MSTR owns all
right, title and interest in the MSTR Platform, and to the Software and
derivative works created pursuant to Section 2.2.
3.2 Proprietary Rights Notices. SDC shall not alter, obscure or remove any
copyright notices or any other proprietary rights notices incorporated in the
Software delivered to SDC.
4. Confidentiality
The parties agree to treat all confidential information exchanged by
the parties as confidential as set forth in the U.S. Mutual Non-Disclosure
Agreement in effect between the parties and incorporated in this Agreement by
reference.
5. Warranty
5.1. Limited Exclusivity. MSTR warrants that for a period of three years
from the execution of this Agreement it will not both grant a software license
and provide MSTR consulting services pursuant to which MSTR builds an
application for a customer that would allow the non-MSTR controlled entity to
compete directly with Xxxxxxxx.xxx as a provider of syndicated information
services to a network of affiliates. MSTR further warrants that for a period of
three years from the execution of this Agreement, it will not create a
syndicated information service for distribution through a network of affiliates
that competes directly with the Services.
5.2. Rights Ownership. MSTR warrants that it owns, free and clear of all
liens or encumbrances, or has valid licenses in the Software and that it has
full legal right to grant to SDC the licenses contained herein.
5.3. Disclaimer of Warranties. MSTR offers no warranties other than those
specifically set in this Section and to the extent permitted by law specifically
disclaim all others, including merchantability and fitness for a particular
purpose.
5.4. No Additional Warranties. SDC shall make no warranties on behalf of
MSTR and agrees to indemnify and hold MSTR harmless from any claims based on
warranties given in violation of this Agreement.
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6. Indemnification
6.1 Indemnification of SDC. MSTR shall defend and indemnify SDC,
against and hold SDC harmless from any and all claims that the MicroStrategy
Platform infringes a United States patent or copyright of a third party
provided that SDC: (i) promptly notifies MSTR in writing of any such claim;
(ii) allows MSTR to have sole control of the defense and all related
settlement negotiations; and (iii) provides MSTR with the information,
authority and assistance necessary to perform MSTR's obligations under this
Section. In the event the MicroStrategy Platform is held or believed to
infringe, MSTR may, at its sole option: (i) obtain for SDC a license to
continue using the MicroStrategy Platform product, (ii) replace or modify the
MicroStrategy Platform product so that it becomes noninfringing while
retaining substantially similar functionality; or (iii) if neither (i) nor
(ii) can be reasonably effected by MSTR, credit to SDC the prices paid for
the MicroStrategy Platform product during the twelve (12) months prior to the
credit, provided that such MicroStrategy Platform product are returned to
MSTR in an undamaged condition and all licenses to such MicroStrategy
Platform product are terminated.
6.2 Excluded Claims. Notwithstanding Section 6.1 above, MSTR shall
not be liable to SDC for any claim arising from or based upon the
combination, operation or use of any MicroStrategy Platform product with
equipment, data or programming not supplied by MSTR (including the SDC
software and services) or for other than an intended purpose as set forth in
the User Documentation, or arising from any alteration or modification of the
MicroStrategy Platform product, if the claim would not have arisen without
such alteration or modification.
6.3 Indemnification of MSTR. SDC shall defend and indemnify MSTR
(including paying all reasonable attorneys' fees and costs of litigation)
against and hold MSTR harmless from any and all claims by any other party
resulting from SDC's negligent or tortious acts, omissions or
misrepresentations relating to the marketing, sublicensing, distribution,
demonstration, evaluation or use of the MicroStrategy Platform products,
regardless of the form of action provided that MSTR: (i) promptly notifies
SDC in writing of any such claim; (ii) allows SDC to have sole control of the
defense and all related settlement negotiations; and (iii) provides SDC with
the information, authority and assistance necessary to perform SDC's
obligations under this Section.
7. Limitation of Liability
EXCEPT FOR BREACHES OF SECTIONS 2 AND 4 HEREOF, IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL
DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST SAVINGS, LOSS OF
COMPUTER TIME, DESTRUCTION OR DAMAGE OF RECORDS, WHETHER SUCH CLAIM IS IN
CONTRACT OR IN TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
The provisions of this Agreement allocate the risks between MicroStrategy and
SDC. MicroStrategy's pricing reflects this allocation of risk and the
limitation of liability specified in this Agreement.
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8. Termination
8.1 Termination. The Agreement will terminate at the option of the
non-breaching Party upon thirty (30) days written notice if the other Party
breaches or defaults on any material obligation under this Agreement and fails
to cure such breach or default during such 30-day period.
8.2 Obligation Upon Termination. Upon termination of this Agreement, each
Party shall promptly return to the other all Confidential Information of the
other Party then in its possession.
8.3 Survival. Sections 4, 5, 6, 8.3, and 9 shall survive any termination,
expiration or cancellation of this Agreement.
9. Dispute Resolution
9.1 General Provisions.
(a) If a dispute arises out of or relates to this Agreement, or
the breach, termination or validity thereof, the parties agree to submit the
dispute to a sole mediator selected by the parties or, at any time at the
option of a party, to mediation by the American Arbitration Association
("AAA"). If not thus resolved, it shall be referred to a panel of three
arbitrators selected by the parties within thirty (30) days of the mediation,
or in the absence of such selection, to AAA arbitration which shall be
governed by the United States Arbitration Act. The ruling of any such panel
shall be binding.
(b) Any award made (i) shall be an award affording such remedy
as is deemed equitable, just and within the scope of this Agreement; (ii)
shall be with findings as to issues (including but not limited to patent
validity and/or infringement) or a statement of the reasoning on which the
award rests; (iii) may in appropriate circumstances include injunctive
relief; (iv) shall be made within four (4) months of the appointment of the
arbitrator; and (v) may be entered in any court.
(c) The requirement for mediation and arbitration shall not be
deemed a waiver of any right of termination under this Agreement and the
arbitrator is now empowered to act or make any award other than based solely
on the rights and obligations of the parties prior to any such termination.
(d) The arbitrator shall determine issues of arbitrability but
may not limit, expand or otherwise modify the terms of this Agreement.
(e) This Agreement shall be interpreted in accordance with the
laws of the Commonwealth of Virginia exclusive of its conflict of laws
provisions and the place of mediation and arbitration shall be Fairfax County.
(f) Each party shall bear its own expenses but those related to
the compensation and expenses of the mediator and arbitrator shall be borne
equally.
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9.2 Relationship Between Parties. Nothing contained in this Agreement shall
be construed as creating a joint venture, partnership, agency, or employment
relationship between the Parties, and neither Party will have the right to bind
the other or incur any obligation on the other's behalf without the other's
prior written consent.
9.3 Waiver. The failure of either Party to exercise any right
granted herein or to require any performance of any term of this Agreement or
the waiver by either Party of any breach of this Agreement, shall not prevent
a subsequent exercise or enforcement of the term or be deemed a waiver of any
subsequent breach of the same or any other term of this Agreement.
9.4 Headings. The section headings appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any such section nor in any way affect this
Agreement.
9.5 Assignment. Neither party may assign this Agreement without the prior
written consent of the other party. Notwithstanding the foregoing to the
contrary, either party may assign any of its rights or obligations hereunder to
any one or more of its Subsidiaries. Each party acknowledges that it shall
continue to be obligated if and to the extent that a permitted assignee under
this paragraph fails to perform the obligations that such party has assigned.
Any attempted assignment in violation of this paragraph without consent shall be
null and void
9.6 Export Control. The Parties acknowledge that the distribution of the
Software, any derivative works thereof, and any technical data related thereto,
is subject to the export control laws of the United States of America, including
the U.S. Bureau of Export Administration regulations, as amended, and each
hereby agrees to obey any and all such laws. The Parties agree not to take any
actions that would cause either Party to violate the U.S. Foreign Corrupt
Practices Act of 1977, as amended.
9.7 U.S. Government Restricted Rights. Products acquired with United
States Federal Government funds or intended for use within or for any United
States federal agency are provided with "LIMITED RIGHTS" and "RESTRICTED
RIGHTS" as defined in DFARS 252.227-7013 and/or FAR 52.227-19.
9.8 Entire Agreement. This Agreement and the exhibits attached hereto
constitute the complete, final and exclusive understanding of the Parties
regarding the subject matter hereof and cancels and supersedes any and all prior
negotiations, correspondence, understandings and agreements, whether oral or
written, between the Parties respecting the subject matter thereof.
In Witness whereof, the parties hereto have executed this Agreement as
of the Effective Date.
MicroStrategy Incorporated Xxxxxxxx.xxx Incorporated
Signed: /s/Xxxx X. Xxxxx Signed: /s/Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx Name: Xxxx X. Xxxxx
Title: CFO Title: CFO
Dated: 10/17/2000 Dated: 10/17/2000
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