Exhibit 10.15
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS
OF THIS DOCUMENT HAVE BEEN REDACTED AN HAVE BEEN
SEPARATELY FILED WITH THE COMMISSION
BEAR XXXXXXX & CO. INC.
ENTERPRISE LICENSE AGREEMENT
This Enterprise License Agreement ("Agreement") is dated this 27th day of May,
1999, by and between Bear Xxxxxxx & Co. Inc. ("Bear Xxxxxxx"), a Delaware
corporation, having offices at 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000, and Tioga
Systems, Inc., ("Tioga"), having offices at 0000 Xxxxxxxxxxx Xxxx, Xxxx Xxxx, XX
00000.
Section 1: GRANT OF LICENSE
1.1 Tioga hereby grants to Bear Xxxxxxx, and Bear Xxxxxxx hereby accepts, a
nonexclusive, nontransferable, perpetual license to install and use the
Licensed Materials described on the Exhibit A. Bear Xxxxxxx may however
assign this agreement to a successor in interest through merger or
acquisition, to a parent or subsidiary, or to a purchaser of all or
substantially all of the assets of the division that is to use the Licensed
Material(s). Any assignment of Bear Xxxxxxx'x interest, other than as
described herein is prohibited without prior written consent of Tioga.
1.2 Bear Xxxxxxx is authorized to use the Licensed Materials on the number of
network computers, workstations and servers specified on Exhibit A for Bear
Xxxxxxx'x own internal business purposes. Bear Xxxxxxx will not otherwise
copy or reproduce the Licensed Materials; except for disaster recovery,
back-up, archival or test purposes. Bear Xxxxxxx may use the Licensed
Materials at other than the specified site at no charge and without penalty
in the following circumstances: (i) if the specified site cannot be used
because equipment or software is inoperable; however, Bear Xxxxxxx shall
notify Tioga within five (5) business days after such relocation or, (ii)
if use of the Licensed Materials is only for testing purposes.
1.3 Bear Xxxxxxx shall not, directly or indirectly, nor shall Bear Xxxxxxx
permit others to: copy, duplicate or furnish to others any physical,
magnetic or optical version of the Licensed Materials provided by Tioga;
remove any copyright or other notice contained or included in the Licensed
Materials or any material provided by Tioga; or change, modify, reverse
engineer, decompile, disassemble or create derivative works from the
Licensed Materials or any other material provided by Tioga: provide, lease,
lend, use for timesharing, service bureau or hosting purposes or otherwise
use or allow others to use the Licensed Materials to or for the benefit of
third parties, modify, or, except to the extent expressly authorized
herein, incorporate into or with other software or create a derivative work
of any part of the License Materials, disseminate information or analysis
(including, without limitation, benchmarks) regarding the quality or
performance of the Licensed Materials from any source, and: use the output
or other information generated by the Licensed Materials (including,
without limitation, output describing the structure of a software program)
for any purpose other than use by the Licensed Materials in accordance with
its specifications. Notwithstanding anything else, Tioga retains all title
to, and, except as expressly licensed herein, all rights to the Licensed
Materials, all copies thereof and all related documentation and materials.
Bear Xxxxxxx must reproduce and include the copyright notice and other
proprietary notices that appear on the original Licensed Materials on any
copies and any media thereof made in accordance with the terms of this
Agreement.
More than one Exhibit A may be incorporated into this Agreement and each Exhibit
A together with the terms and conditions of this Agreement shall constitute
a separate Agreement which is independent from other Exhibit A as
incorporated into this Agreement. Subsidiaries and affiliates of Bear
Xxxxxxx shall have the right to incorporate Exhibit A under this Agreement
provided the terms and conditions of the Agreement are strictly adhered to.
Section 2: CHARGES, FEES, PAYMENT AND INVOICING
2.1 License fees and service fees under this Agreement are specified on the
Exhibit B. The prices and charges hereunder do not include any amount for
taxes or duties. If any duty, sales, use, excise, or other tax, penalties
or interest, except for taxes based upon Tioga's net income, is, or should
ultimately be, assessed against or is required to be collected by Tioga or
by any taxing authority in connection with their performance required
hereunder, Bear Xxxxxxx agrees to pay an amount equal to any and all such
charges, except where Bear Xxxxxxx is exempt by law and Bear Xxxxxxx
provides a bonafide exemption certificate to Tioga.
2.2 Bear Xxxxxxx shall make all payments hereunder to Tioga, in accordance with
instructions on the invoice which includes a due date of 30 days from the
receipt of a proper and correct invoice. Any late payments under this
Agreement shall be subject to a service charge amount equal to 1.5% of the
amount due (calculated on a monthly basis) or the maximum amount allowed by
law, whichever is less.
Section 3: DELIVERY AND INSTALLATION
3.1 Tioga shall deliver to Bear Xxxxxxx, the Licensed Materials within ten (10)
business days from the execution of this Agreement or at a different date
if agreed to by both parties. Accompanying the Licensed Materials will be
one (1) copy of the related Documentation regularly furnished by Tioga.
3.2 Tioga shall provide the amount of training, instruction and consultation
prepaid as set forth in Exhibit B at Tioga's the current rates for such
services, when requested by Bear Xxxxxxx. Such services are to be used at a
time to be mutually agreed upon by the parties and Bear Xxxxxxx shall, in
addition to the amount set forth in Exhibit B, reimburse Tioga for all
reasonable out-of-pocket expenses, including all transportation, lodging,
meals and other expenditures related to providing such services.
Section 4: SUPPORT AND MAINTENANCE
4.1 Support. During the one year period extending from the Effective Date (the
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"Support Period"), and provided Bear Xxxxxxx has paid the applicable annual
support and maintenance fee set forth in Exhibit B, Tioga shall provide
support and maintenance described in Exhibit C. Any patches, updates, etc.
provided as part of Maintenance shall be included within the definition of
the Licenses Materials for the purpose of this Agreement.
4.2 Renewals. Tioga's obligation to provide the above-described support and
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maintenance and Bear Xxxxxxx' obligation to pay the then-current applicable
annual support and maintenance fee shall renew automatically upon each
anniversary of the Effective Date (or such other consolidated Licensed
Materials purchase date agreed to by the parties in writing), unless either
Bear Xxxxxxx or Tioga has given the other party prior written notice of
cancellation at least thirty (30) days prior to the expiration of the then
current term. If Bear Xxxxxxx elects not to renew support and maintenance
for successive terms, Bear Xxxxxxx may reenroll only upon payment of the
applicable annual fee which would have been paid had Bear Xxxxxxx not
terminated support and maintenance.
4.3 Training. Upon Bear Xxxxxxx' request, Tioga will provide training to Bear
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Xxxxxxx in accordance with Tioga's then current training offerings and at
Tioga's then current prices at mutually agreed upon times and locations.
Tioga's current training offerings and their associated prices are set
forth in Exhibit D. In the event training services are provided at
locations other than at Tioga's premises, Bear Xxxxxxx shall be responsible
for all reasonable travel, meals, hotel and other associated expenses
related to providing such training services. If training services are
listed in Exhibit B, Bear Xxxxxxx agrees to pay Tioga for such training
services in accordance with the terms of this Agreement.
4.4 Deployment and Implementation Services. Bear Xxxxxxx shall be responsible
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for deployment and implementation of the Licenses Materials. Bear Xxxxxxx,
at its option, may elect to have Tioga provide deployment and
implementation services at Tioga's then current rates for such services. In
the event provision of deployment and implementation services requires
Tioga's employees to travel to Bear Xxxxxxx'x location or other locations,
Bear Xxxxxxx shall be responsible for all reasonable travel, meals, hotel
and other associated expenses related to providing such deployment and
implementation services. In the event any work product or code is created
in the provision of Deployment and Implementation services, such work
product or code shall be included within Licensed Materials and licensed to
Bear Xxxxxxx under the terms and conditions of this Agreement, and Tioga
shall retain all right, title and interest in and to such work product or
code and any derivatives, enhancements or modifications to the Licensed
Materials created by Tioga. If deployment and implementation services are
listed in Exhibit B, Bear Xxxxxxx agrees to pay Tioga for such deployment
and implementation services in accordance with the terms of this Agreement.
Section 5: WARRANTIES
5.1 Tioga warrants to Bear Xxxxxxx that for a period of sixty (60) days from
the Effective Date, the Licensed Materials will achieve the functionality
described in the Documentation. Tioga does not warrant, however that Bear
Xxxxxxx use of the Licensed Materials will be uninterrupted or that the
operation of the Licenses Materials will be error-free. Tioga also warrants
that the media containing the Licensed Materials, if any, is free from
defects in material and workmanship and will so remain for ninety (90) days
from the date Bear Xxxxxxx acquired the Licensed Materials. Tioga's sole
liability (and Bear Xxxxxxx exclusive remedy) for any breach of this
warranty shall be, in Tioga's sole discretion, the use of commercially
reasonable efforts: (i) to replace Bear Xxxxxxx' media or Licensed
Materials; or (ii) to advise Bear Xxxxxxx how to achieve the same
functionality with the Licensed Materials as described in the Documentation
through a procedure different from that set forth in the Documentation; or
(iii) if the above remedies are impracticable, to refund the license fee
paid for the Licensed Materials and terminate this Agreement. Tioga shall
have no obligation with respect to a warranty claim unless notified of such
claim and provided evidence of the license purchase within the applicable
warranty period. Tioga will use reasonable commercial efforts to repair,
replace, advise or refund pursuant to the foregoing warranty within thirty
(30) days of being so notified.
5.2 Tioga warrants the Licensed Materials are free from computer viruses
introduced as a result of the gross negligence or intentional acts of
Tioga, its agents or employees and that Tioga, its agents or employees will
not embed any device in the Licensed Materials or take any action to
disrupt or terminate its operation of such Licensed Materials.
5.3 Tioga further warrants that it is the sole owner of, or that it has the
right to license the use of, the Licensed Materials being used for Bear
Xxxxxxx'x purposes, and that it has the right to provide Bear Xxxxxxx with
a nonexclusive license for the use of those Licensed Materials.
5.4 The Licensed Materials (i) is designed to be used prior to, during, and
after the calendar year 2000 A.D.; (ii) will operate during each such time
period without any error or interruption relating to, or the product of,
data or input which includes an indication of or reference to a date ("Date
Data") which represents or references different centuries or more than one
century; (iii) will, under normal use and service, record, store, process
and present calendar dates falling on or after September 9, 1999, January
1, 2000 and February 29, 2000, in the same manner, and with the same
functionality, data integrity and performance, as the Licensed Materials
records, stores, processes and presents calendar dates on or before
September 8, 1999, December 1, 1999 and February 29, 1996; and (iv)
recognizes the year 2000 as a leap year.
5.5 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE LICENSED MATERIALS OR THE
SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING
(WITHOUT LIMITATION) ANY WARRANTY OF NON INFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
Section 6: LIMITATIONS OF LIABILITY
EXCEPT AS STATED HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM
EITHER PARTY'S PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS
AGREEMENT OR ANY OF THE SCHEDULES OR ATTACHMENTS HERETO, OR RESULTING FROM THE
FURNISHING, PERFORMANCE OR USE OR LOSS OF ANY LICENSED PRODUCTS OR OTHER
MATERIALS DELIVERED TO BEAR XXXXXXX THEREUNDER, INCLUDING WITHOUT LIMITATION ANY
INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF
WARRANTY, EVEN IF THE PARTIES HERETO HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
Tioga's liability to Bear Xxxxxxx under any provision of this Agreement shall be
limited to the amounts actually paid by Bear Xxxxxxx to Tioga pursuant to the
Exhibit A and/or subsequent Exhibit A hereto. The existence of more than one
claim shall not enlarge or extend the limit. Bear Xxxxxxx releases Tioga from
all obligations, liability, claims or demands related to the Licensed Materials
supplied by Tioga to Bear Xxxxxxx under this agreement in excess of the
limitation provided for in this section.
The parties acknowledge that the limitations set forth in this section are
integral to the amount of fees charged for the license granted under this
Agreement and services provided in connection with the same, and recognize that
were Tioga to assume any further liability beyond that set forth in this
section, such fees would be substantially higher.
Section 7: DISCLOSURE
7.1 The Licensed Materials and Documentation received by Bear Xxxxxxx from
Tioga under this Agreement are and shall be treated as proprietary and
confidential information of Tioga. Any material or information relating to
the business policies, procedures, customs and forms of Bear Xxxxxxx
including information previously divulged or delivered to Tioga by Bear
Xxxxxxx regarding the aforementioned subject matter and all information and
data which are proprietary to a third party and which the Bear Xxxxxxx is
obligated to treat as confidential obtained by Tioga or its officers,
employees or agents, or disclosed to them in connection with the
performance by Tioga of its obligations under this Agreement, is hereby
designated as confidential and proprietary information of Bear Xxxxxxx.
The obligations of confidentiality contained in this Section 7 shall not
apply to information which: (i) is known to a party at the time of
disclosure as proven by written records of the receiving party; (ii) is
independently received by a party without obligations of confidentiality
from a third party which has the legal right to give such information; or
(iii) is generally known to third parties through no fault or action of the
receiving party.
7.2 The parties agree not to use or copy the other's confidential information
unless such use or copying is approved by, and for the benefit of, the
other party.
7.3 Using the Licensed Material and Documentation or any part of the data
therein in original or remanipulated form for the purpose of creating any
form of list, directory, reporting service whether for internal use or
release to persons outside the Bear Xxxxxxx organization, is expressly
prohibited.
7.4 Each party hereto will take all reasonable steps to assure that the
confidential information of the other party shall not be disclosed by them
to others, in whole or in part, without the prior written permission of the
other party. Such prohibition on disclosures shall not apply to
disclosures by Bear Xxxxxxx to its employees and agents, provided such
disclosures are reasonably necessary to Bear Xxxxxxx'x use of the Licensed
Materials and provided further that Bear Xxxxxxx shall take all reasonable
steps to insure that the Licensed Materials are not disclosed by such
employees in contravention of this Agreement.
Section 8: TITLE
Tioga shall retain title to the Licensed Material and Documentation including
all versions and embodiments thereof and all additions and modifications
thereto. Tioga does not by this Agreement convey any proprietary interest
therein to Bear Xxxxxxx. Bear Xxxxxxx agrees that the Licensed Materials'
Documentation and any derivative works thereof, including all changes made
thereto by anyone and any materials related thereto that are supplied by or
developed by Tioga, are the valuable property of Tioga. Bear Xxxxxxx further
agrees to treat the Licensed Materials and related materials accordingly and
agrees diligently to preclude all access to the Licensed Materials except as
provided herein, to keep the same confidential, by using the same care and
discretion that Bear Xxxxxxx uses with respect to its own confidential
property. Bear Xxxxxxx agrees to keep all property of Tioga free and clear of
all claims, liens and encumbrances.
Section 9: INDEMNIFICATION
9.1 Tioga agrees to defend Bear Xxxxxxx and at Tioga's option, settle any
action or proceeding of any kind or description based upon a third party's
claim of copyright or trademark infringement asserted against Bear Xxxxxxx
by such third party based upon the use of the Licensed Materials by Bear
Xxxxxxx, provided: (i) the Licensed Materials are used as provided by
Tioga; (ii) Tioga shall have received from Bear Xxxxxxx notice of said
claim within ten (10) days of assertion thereof and, (iii) Tioga is given
sole control to direct the investigation, defense and settlement of each
such claim. The foregoing obligation of Tioga does not apply with respect
to those portions of the Licensed Materials (i) which are modified after
shipment by any party other than Tioga, if the alleged infringement relates
to such modification, (ii) combined with any non-Tioga products, processes
or materials where the alleged infringement relates to such combination,
(iii) where the allegedly infringing activity continues after Tioga has
notified Licensee thereof or after Tioga has informed Bear Xxxxxxx of
modifications that would have avoided the alleged infringement, (iv) where
Bear Xxxxxxx' use of the Licensed Materials is incident to an infringement
not resulting primarily from the Licensed Materials, or (v) infringement
based on use of version other
than the then current version of the Licensed Materials if such
infringement could have been avoided by use of the then current version.
Bear Xxxxxxx shall cooperate fully with Tioga in connection with the
foregoing. If notified of said claim within ten (10) days of assertion
thereof brought against Bear Xxxxxxx based on an allegation that Bear
Xxxxxxx' use of the Licensed Materials constitutes infringement, Tioga will
pay reasonable attorney fees, associated with resolving such claim and any
amounts finally awarded in settlement, if any, provided that Tioga shall
have sole control of the resolution of any such claim and all negotiations
for its settlement. Any settlement made by Tioga under this Section 9
shall not adversely affect Bear Xxxxxxx' ability to exercise the license
rights granted hereunder without Bear Xxxxxxx'x prior written consent.
9.2 Should the Licensed Materials, become, or in Tioga's opinion are likely to
become, the subject of a claim of infringement, Tioga shall have the right,
at Tioga's option and expense, either: (i) to procure for the Bear Xxxxxxx
the right to continue using the Licensed Materials; (ii) to replace or
modify the same so that they become non-infringing; or, if after Tioga uses
its commercially reasonable efforts to accomplish (i) and (ii) and is
unable to do so, then; (iii) to grant the Bear Xxxxxxx a refund of the
unused portion of the license fees.
9.3 Both parties agree to indemnify, defend and hold harmless the other party,
its employees, agents and/or authorized representatives for any actual
damages, liabilities, costs and expenses, including reasonable attorneys
fees, due to claims alleging damage to the other parties property or injury
or death to any persons, arising directly out of the other parties', or the
other parties employee's, agent's or subcontractor's negligence in
performing the services contemplated under this Agreement.
Section 10: TERMINATION
10.1 In the event a party hereto materially defaults in the performance of any
of its duties or obligations hereunder, which default shall not be
substantially cured within thirty (30) days after notice is given to the
defaulting party specifying the default, then the party not in default may,
by giving notice thereof to the defaulting party specifying the default,
terminate this Agreement for cause. Notwithstanding the foregoing, with
respect to any such material default that cannot be reasonably cured within
thirty (30) days, if the defaulting party in good faith promptly proceeds
to commence curing said default and thereafter proceeds with all diligence
substantially to cure the same, the defaulting party shall have up to
another thirty (30) days (for a total of sixty (60) days) substantially to
cure such default. If such material default is not substantially cured
prior to the end of the second thirty (30) days, the party not in default
may, by giving notice thereof, terminate this Agreement for cause as of a
date specified in such notice of termination.
10.2 This agreement shall expire in the event Bear Xxxxxxx does not have any
active support services pursuant to Section 4 above. Additionally, Either
party hereto may have the right to terminate this Agreement and/or the
license granted hereunder, in the event that the other party: (i)
terminates or suspends its business, (ii) becomes subject to any bankruptcy
or insolvency proceeding under Federal or state statute, (iii) becomes
insolvent or becomes subject to direct control by a trustee, receiver or
similar authority, (iv) has liquidated, voluntarily or otherwise, or (v)
transfers, assigns or otherwise conveys control of itself, without the
prior written consent of the other party hereto.
Section 11: PUBLICITY
Tioga agrees to submit to Bear Xxxxxxx all advertising, sales promotion and
other publicity matter relating to this Agreement wherein Bear Xxxxxxx'x name is
mentioned or language is used from which the connection of Bear Xxxxxxx'x name
therewith may be inferred or implied; and Tioga further agrees not to publish or
use such advertising, sales promotion, or publicity matter without the prior
written consent of Bear Xxxxxxx.
Section 12: MONITORING
Tioga acknowledges that, as is the custom and practice in Bear Xxxxxxx'x
industry, from time to time Bear Xxxxxxx monitors and/or records certain
telephone lines and other communications devices going into or out of Bear
Xxxxxxx'x premises, and to the extent that any such monitoring and/or recording
occurs relating to any telephone call and other communication going into or out
of Bear Xxxxxxx'x premises involving Tioga or any of its employees, agents and
sub-contractors, then Tioga, on behalf of its self and its employees, agents and
sub-contractors, consents thereto or will ensure such other party consents
thereto.
Section 13: EXPORT RESTRICTIONS
Bear Xxxxxxx understands and acknowledges that certain technology licensed
hereunder may be subject to regulation by agencies of the U.S. government,
including the U.S. Department of Commerce, which prohibit export or
diversion of certain products and technology to certain countries. Bear
Xxxxxxx warrants that it will comply in all respects with the export
restrictions applicable to any materials or technology provided hereunder
and will otherwise comply with the Export Administration Regulations or
other United States laws and regulations in effect from time to time.
Section 14: MISCELLANEOUS
14.1 Any waiver, amendment or modification of any provisions of this Agreement
and/or any Exhibits and Attachments (if any) hereto shall not be effective
unless made in writing and signed by both parties. No failure or delay by
either party with respect to exercising any of its rights hereunder shall
operate as a waiver thereof.
14.2 If any provision of this Agreement is declared or found to be invalid,
illegal, unenforceable or void, then both parties shall be relieved of all
obligations arising under such provision, but only to the extent that such
provision is invalid, illegal, unenforceable or void, it being the intent
and agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it valid, legal
and enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is valid, legal and
enforceable and achieves the same objective. Each party agrees that it
will perform its obligations hereunder in accordance with all applicable
laws, rules and regulations now or hereafter in effect.
14.3 Headings are for reference purposes only.
14.4 Neither party shall be liable, or have recourse, in respect to any delay in
delivery or failure to deliver the Licensed Materials or any other
materials used in connection therewith provided by Tioga, or of the non-
performance or delay in performance of any term or condition of this
Agreement directly or indirectly resulting from any cause beyond the
control of Tioga. Such causes shall include, but not be limited to, acts of
God, strikes, lockouts, riots, acts of war, epidemics, governmental
regulations superimposed after the fact, fire, communication failures,
power failures, earthquakes or other disasters.
14.5 Tioga may, upon advance notice of at least ten (10) business days, conduct
and audit during regular business hours to verify compliance with the terms
of this Agreement, which shall be conducted at Tioga's expense unless the
results establish that inaccuracies from the audit have resulted in
underpayment to Tioga of more than 10% of the amount actually due, in which
case Bear Xxxxxxx shall pay all amount due and bear the expense of the
audit.
14.6 Any notices required or permitted to be sent hereunder shall be served
personally or by registered or certified mail, return receipt requested or
by facsimile with confirmation of receipt; to the addresses stated below:
Bear, Xxxxxxx & Co. Inc. Tioga Systems, Inc.
000 Xxxxx Xxxxxxxxx Xxxx 0000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxx Xxxx, XX 00000
Attn: IS-Contracts & Acquisitions Attn: Xxxx Xxxxxxx
14.7 The laws of the State of New York shall govern and the parties consent and
submit to the jurisdiction and venue of the State or Federal Courts located
in New York.
14.8 Both parties acknowledges that it has read this Agreement, its Exhibits
and Attachments (if any), understands it and agrees to be bound by its
terms, and further agrees that it is the complete and exclusive statement
of the Agreement, which supersedes and merges all prior proposals,
understandings and all other agreements, oral and/or written, between the
parties relating to this Agreement. This Agreement may not be modified or
altered except by a written instrument duly executed by both parties.
IN WITNESS WHEREOF, the parties, by their duly authorized representatives, have
caused this Agreement to be duly executed and delivered as of the day and year
first above written.
Bear, Xxxxxxx & Co. Inc. Tioga Systems, Inc.
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/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxx Xx.
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Signature Signature
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx Xx.
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Print or Type Name Print or Type Name
Senior Managing Director Vice-President of Sales
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Title 5/27/99 Title 5-27-99
EXHIBIT A
LICENSED MATERIALS
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I. Description and Specifications of Software:
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Tioga Self-Healing System(TM) Version 1.2 in object code format.
II. Number of Network Computers and Workstations Licensed
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Catalogue Number and Program Name Number of Authorized Copies
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11-00001 Tioga/Desktop Agent See Scope Below
11-00002 Tioga/Mobile Agent See Scope Below
11-00006 Server Agent See Scope Below
11-00011 Tioga/Administration and One (1)
Healing Console - Enterprise
License
Scope: This is an Enterprise License deal with a term of three (3) years. Bear
Xxxxxxx may deploy any mixture of Desktop, Mobil, and/or Server agents as long
as the total number of authorized copies does not exceed 10,000 during the
term of the agreement. At the end of the three years, Bear Xxxxxxx will have a
perpetual right to use the number of licenses deployed during the term of this
agreement.
Bear, Xxxxxxx & Co. Inc. Tioga Systems, Inc.
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/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxx Xx.
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Signature Signature
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx Xx.
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Print or Type Name Print or Type Name
Senior Managing Director Vice-President of Sales
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Title 5/27/99 Title 5-27-99
EXHIBIT B
PAYMENT TERMS AND FEE SCHEDULE
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I. Payment Terms:
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The Fees described in VI. below will become due and payable upon the earlier to
occur of; (i) the acceptance by Bear Xxxxxxx of the initial rollout of the
Company's software on approximately 300 desktops at Bear Xxxxxxx whereby Tioga
will notify Bear Xxxxxxx in writing of the completion of the initial rollout and
Bear Xxxxxxx will have 10 business days to notify Tioga in writing of non-
acceptance of the initial rollout or (ii) after 30 days from the Effective date.
By mutual agreement, both Companies may extend the 30 day acceptance period
descibed in (ii) above.
II. Software License Fees
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Item Fees
---- ----
License Fees [***]
Licenses beyond the 10,000 limit may be purchased in blocks of 1000 for a price
of [***]/License.
III. Technical Support Fee Schedule
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Item Fees
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Standard Technical Support (Year 1) [***]
Standard Technical Support (Year 2) [***]
Standard Technical Support (Year 3 - [***]%) [***]
IV. Deployment and Implementation Fee Schedule
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V. Training
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VI. Payment of Fees
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All fees are due and payable net 30 days from receipt of invoice. Payments are
due according to the following schedule:
. [***] due June 30, 1999.Includes- First installment payment on software
license fees and payment of six months of product maintenance for 1999.
. [***] due September 30, 1999. Second installment payment on software
license fees and payment of second six-months product maintenance for the
remainder of 1999 through May 2000.
. [***] Maintenance Fee due May 31, 2000
. [***] Maintenance Fee due May 31, 2001
. Beginning May 31, 2002, Maintenance fee due annually in advance at a rate
of [***]% of license fees billed to date (increased annually based on the
percentage increase reflected in the CPI).
Bear, Xxxxxxx & Co. Inc. Tioga Systems, Inc.
------------------------------- ------------------------------
/s/ Xxxxx X. Xxxxxxxxx /s/ Xxxxxx Xxxxxx Xx.
------------------------------- ------------------------------
Signature Signature
Xxxxx X. Xxxxxxxxx Xxxxxx Xxxxxx Xx.
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Print or Type Name Print or Type Name
Senior Managing Director Vice-President of Sales
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Title 5/27/99 Title 5-27-99
[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
EXHIBIT C
SUPPORT
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Standard Technical Support
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Support Hours
Tioga will provide support from 8AM to 6PM Pacific time, Monday
through Friday
Response Time
Tioga will respond to customer inquiries within 24 hours
Contact Methods
Tioga will provide a 1-800 number support line
Tioga will provide e-mail support
Contacts
Customer is allowed one named contact per TAC (Tioga Administration
Console) User License purchased
Customer receives a reasonable amount of phone and e-mail support for
those contacts
Software Maintenance for product purchased
Customer will receive software patches and maintenance releases
Customer will receive major releases that are generally made available
by Tioga without charge
Product Information
Customer will receive quarterly product information updates
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT
This Amendment is entered into as of March __, 2000 ("Amendment Effective
Date") by and between Xxxxxxx.xxx, Inc., a Delaware corporation, formerly doing
business as Tioga Systems, Inc. ("SPRT") and At Home Corporation, doing
business as Excite@Home, a Delaware corporation ("EAH"). This Amendment
modifies the OEM Agreement dated as of July 14, 1999, by and between SPRT and
EAH (the "Agreement") to provide the terms for SPRT's development of an
extension to its Product and for the parties to participate in certain co-
marketing efforts with respect to such extension, in accordance with the terms
of this Amendment.
1. Definitions. As used in this Amendment, the following terms have the
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following meanings. Capitalized terms used but not defined in this Amendment
have the meanings specified in the Agreement.
1.1 Product Extension. "Product Extension" means the version of the
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Product that SPRT will develop pursuant to this Amendment.
1.2 Initial Term. "Initial Term" means the 36-month period beginning
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with the Amendment Effective Date.
1.3 Referred Customers. "Referred Customers" means the customers of
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SPRT that have purchased licenses to the Product Extension and that are referred
to SPRT by EAH in accordance with this Amendment.
1.4 Net Revenue. "Net Revenue" means the amount collected by SPRT for
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SPRT's sale of licenses to the Product Extension to Referred Customers, [***]
(a) [***]% for sales expenses, and (b) any associated freight charges,
insurance and other costs of shipping and handling, taxes and duties.
1.5 Preliminary Specifications. "Preliminary Specifications" means
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the preliminary specifications for the Product Extension set forth in Exhibit A
to this Amendment.
1.6 Renewal Term. "Renewal Term" means the 12-month period after the
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Initial Term or Renewal Term, as applicable, of this Amendment.
1.7 Specifications. The "Specifications" means the specifications for
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the Product Extension agreed upon by the parties pursuant to Section 2.1 of this
Amendment.
1.8 Term. "Term" means the Initial Term and any and all Renewal
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Terms.
* CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION.
1 Xxxxxxx.xxx CONFIDENTIAL
