EXHIBIT 10.17
BUILD-IT LICENSE AGREEMENT BETWEEN IBM AND NETOBJECTS
1. Ownership and License.
The software product formerly marketed by Wallop Software, Inc. as "Build-IT
version 2.7 for the Enterprise" ("Software") is owned by International
Business Machines Corporation ("IBM") and is copyrighted and licensed, not
sold.
IBM grants NetObjects, Incorporated ("you") a world-wide, non-exclusive,
non-transferable, copyright license to:
1) reproduce and create derivative works from the object code and source code
versions of the Software; and 2) distribute the Software and derivative works
thereof, in object code only, and only when you provide some "value-add" with
the Software or derivative work thereof ("Bundle"). Examples of value-add
would be other software or hardware products. No license to any other IBM
intellectual property is granted hereunder.
IBM wishes to continually improve upon the Software. You agree to provide to
IBM a copy of any modifications to the Software that you develop or otherwise
receive ("Software Modifications") by sending a copy of all such Software
Modifications, in source code and object code form, to IBM. You hereby grant
to IBM and its subsidiaries a world-wide, non-exclusive, non-transferable,
royalty-free license to execute, reproduce, create derivative works from and
distribute the Software Modifications and derivative works thereof.
2. Termination
IBM may request, upon one hundred twenty (120) days written notice that you
discontinue further distribution of the Software and that you delete or
destroy all copies of the Software you possess except:
a) for one copy that may be kept in your archives for reference purposes; and
b) you may distribute any inventory of Bundles on hand at the time of such
termination, provided you make available to IBM an accounting of such
inventory promptly upon termination; and
c) you may continue to distribute Bundles for a period of up to three
(3) months after termination to fill any orders received in the normal course
of business by you prior to the effective date of termination.
Any licenses to the Software that you granted to your customers prior to such
termination will continue to be in effect following such termination.
3. Warranty Disclaimer and Limitation of Liability
IBM represents and warrants that it has the right to grant the licenses
granted to you hereunder. IBM licenses the Software to you on an "AS IS"
basis, without warranty of any kind. Except as provided above in this Section
3, IBM HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS, EITHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IBM WILL
NOT BE LIABLE FOR ANY DIRECT DAMAGES OR FOR ANY SPECIAL, INCIDENTAL, OR
INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST
PROFITS OR SAVINGS), EVEN IF IBM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IBM will not be liable for the loss of, or damage to, your records
or data, the records or data of any third party, or any damages claimed by
you based on a third party claim.
You agree to distribute the Software and any derivative works thereof under a
license agreement that: 1) is sufficient to notify all licensees of the
Software and any derivatives thereof that IBM and its subsidiaries assume no
liability for any claim that may arise regarding the Software or any
derivative works thereof; and 2) that disclaims all warranties, both express
and implied, from IBM regarding the Software and any derivative works thereof.
4. Payment
For each Bundle distributed by you, you will pay to IBM [***] ([***]%) of the
gross revenue you receive for the Bundle, net of discounts and returns ("Net
Revenue"), provided that for each copy of the Software that is distributed by
you, you will pay to IBM a minimum of [***] dollars ($[***]) and a maximum of
[***] dollars (i.e., if [***]% of the Net Revenue is less than [***] dollars
($[***]), you will pay to IBM a royalty of [***] dollars ($[***]), and if
[***]% of the Net Revenue is more than [***] dollars ($[***]), you will pay
to IBM a royalty of [***] dollars ($[***])).
You shall provide to IBM, within forty-five (45) days after the conclusion of
each calendar quarter, a quarterly accounting, and payment based on such
accounting, of all royalties accruing to IBM for all copies of Software
distributed externally or installed internally during such calendar quarter
by you or your distributors.
5. General
All confidential information shall be exchanged under the terms of the
Agreement for the Exchange of Confidential Information between the parties,
dated April 30, 1996.
This Agreement is governed by the laws of the State of New York. You and IBM
each waive its rights to a jury trial in any resulting litigation. Neither
party may assign this agreement without the prior written consent of the
other.
This Agreement does not grant You or your licensees the right to use any IBM
trademark or name.
This Agreement is the only understanding and agreement we have regarding your
use of the Software. It supersedes all other communications, understandings
or agreements we may have had prior to this Agreement. Any reproduction of
this Agreement made by reliable means (for example, photocopy or facsimile)
is an original.
ACCEPTED AND AGREED TO:
NETOBJECTS, INC. INTERNATIONAL BUSINESS MACHINES
CORPORATION
BY: /s/ X. Xxxxxxx BY: /s/ X.X. Xxxxxxxx
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NAME: X. Xxxxxxx NAME: X.X. Xxxxxxxx
--------------------------------- -----------------------------
TITLE: VP Finance TITLE: Asst. General Counsel
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DATE: Feb. 2, 1999 DATE: Feb. 2, 1999
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***Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
