Exhibit 10.1
Key for Confidential Portion of Material Filed
----------------------------------------------
**** Text omitted pursuant to a request for confidential treatment filed with
the Securities and Exchange Commission. The complete agreement, containing such
text, has been filed separately with the Securities and Exchange Commission. A
total of 3 pages of text has been omitted pursuant to the confidential treatment
request.
LICENSING AND DISTRIBUTION
AGREEMENT
BY AND BETWEEN
CITRIX SYSTEMS, INC.
AND
V-ONE CORPORATION
JUNE 12, 2000
CONFIDENTIAL
============
2
LICENSING AND DISTRIBUTION AGREEMENT
------------------------------------
This Licensing and Distribution Agreement ("AGREEMENT") is made and entered into
this 12th day of June, 2000 (the "EFFECTIVE DATE"), by and between Citrix
Systems, Inc., a Delaware corporation with a place of business at 0000 X.X. 0xx
Xxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000 ("CITRIX") and V-ONE Corporation, a Delaware
corporation with a place of business at 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 ("V-ONE").
RECITALS
--------
WHEREAS, V-ONE owns the V-ONE SmartGate product and related documents
and supporting software; and
WHEREAS, V-ONE intends to appoint Citrix as a non-exclusive distributor
of the Product (as hereinafter defined) and related documents and supporting
software and provider of certain support services on a worldwide basis, all
pursuant to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, covenants and conditions contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree to the foregoing and as follows:
ARTICLE 1--GENERAL
------------------
1.1 SCOPE OF RELATIONSHIP. Citrix has the right to promote, market,
sublicense (on a perpetual or limited-term basis) and distribute (collectively,
"DISTRIBUTE" or "DISTRIBUTION") the Product (as defined herein) on a worldwide
basis ("TERRITORY"), consistent with the terms and conditions contained herein.
The parties shall provide support and maintenance services for the Product as
more fully described in SECTION 4.2 consistent with the terms and conditions
contained herein.
1.2 DEFINITIONS. Capitalized terms used herein shall have the meanings
ascribed to them in the body of this Master Agreement and/or in the attached
Schedules, Exhibits, Attachments, Addenda and other documents attached hereto,
or as defined in SCHEDULE 1.2.
1.3 CONFLICTS IN INTERPRETATION. The following order of precedence shall
be followed in resolving any inconsistencies between the terms of this Agreement
and the terms of any Schedules, Exhibits, Attachments, Addenda and other
documents attached hereto: (a) first, the terms contained in the body of this
Agreement; and (b) second, the terms of the Schedules, Exhibits, Attachments and
Addenda to this Agreement, provided that no order of precedence shall be applied
among such Schedules, Exhibits, Attachments and Addenda.
ARTICLE 2--RIGHTS, USES AND RESTRICTIONS
----------------------------------------
2.1 PRODUCT LICENSE.
2.1.1 LICENSE TO USE. V-ONE grants a non-exclusive, limited-term, no
fee license to Citrix to (a) use, copy, display or import the Product within the
Territory for the purposes of: (i) marketing, promoting and conducting
demonstrations of the Product; (ii) training users on and with the Product;
(iii) providing support for the Product consistent with the terms of this
Agreement; and (iv) Citrix's internal business purposes; and (b) modify and
prepare derivative works of the Product solely for the purpose of integrating
operation of the Product with Citrix's products; provided, however that neither
Citrix nor its distributors may modify any portion of the code licensed by V-ONE
from RSA Data Security, Inc. ("RSA") (the code licensed to V-ONE by RSA is
hereinafter referred to as "RSA CODE") or any portion of the PKI Developers
Toolkit licensed to V-ONE by Baltimore Technologies Ltd ("BALTIMORE"). (The PKI
Developers Toolkit is hereinafter referred to as "BALTIMORE CODE").
2.1.2 LICENSE TO DISTRIBUTE. V-ONE grants to Citrix the right to
Distribute the Product, including, without limitation, the right to sublicense
the Product, as part of a stand-alone or bundled offering, on a perpetual or
limited-term basis, directly or indirectly, through Third Party original
equipment manufacturers, distributors and resellers, for use by end users ("END
USERS") throughout the Territory. Citrix shall, by written agreement, prohibit
any person or entity to whom it licenses or distributes the Product from: (a)
adding substantial functionality or value to the Product; and (b) private
labeling the Product.
2.1.3 LICENSE TO DEMONSTRATION COPIES. V-ONE grants to Citrix the right
to provide to Third Parties copies of the Product for non-commercial use
("DEMONSTRATION COPIES") consistent with the means and methods Citrix exercises
in its treatment of its demonstration copies for the Citrix MetaFrame product.
2.1.4 RESTRICTIONS. Except as expressly permitted under this Agreement,
Citrix shall not disassemble, reverse compile, reverse engineer or otherwise
translate the Product licensed hereunder; provided, however, that Citrix shall
have the right to change, alter, modify and adapt the Source Code, except any
RSA Code and Baltimore Code, (and compile such modified Source Code, except any
RSA Code and Baltimore Code) if the Source Materials are released to Citrix in
accordance with the terms of the Source Code Escrow Agreement. Citrix shall not
export or re-export the Product, directly or indirectly, either to: (i) any
countries, governments or entities that are subject to the United States' export
restrictions (currently including, without limitation, Cuba, the Federal
Republic of Yugoslavia (Serbia and Montenegro), Iran, Iraq, Libya, North Korea,
and Syria); or (ii) any End User who has been prohibited from participating in
the United States' export transactions by any federal agency of the United
States.. Citrix shall not license or distribute any RSA Code or Baltimore Code
as a stand alone product. The Product, V-ONE Enhancements, Citrix Improvements,
and all modifications to the Product will be designed to ensure that: (a) the
security functions of the RSA Code may only be accessed by the functionality of
the Product so that the RSA Code shall not be directly accessible to End Users
or to software products other than the Product; and (b) application programming
interfaces for the Baltimore Code shall not be directly exposed or passed
through. Neither Citrix nor its distributors or licensees shall remove or
destroy any proprietary trademarks or copyright markings or confidentiality
legends placed on or contained within the Product or any related materials or
Documentation. Any license from Citrix or any of its distributors to the United
States Government or an agency thereof will state that the Product is subject to
limited rights in technical data and restricted rights applicable to commercial
computer software developed entirely at private expense and that any associated
documentation will include a restricted rights legend conforming to the Federal
Acquisition Regulations (FARs) or the Department of Defense Federal Acquisition
Regulations Supplement (DFARS), as applicable, then in effect that apply to
software developed entirely at private expense. Citrix shall indemnify V-ONE for
any breach of the obligations set forth in this Section by Citrix.
2.1.5 V-ONE'S OWNERSHIP RIGHTS RESERVED. Except for the rights granted
in this Article, no title, ownership or intellectual property rights to the
Product including, without limitation, all copyrights, trade secrets and any
other intellectual property and proprietary rights, and all copies thereof, are
transferred to Citrix under this Agreement. This Agreement does not grant Citrix
any proprietary rights in or to the Product. Except for Citrix's related
proprietary rights identified in SECTION 8.5, V-ONE and its third party
licensors shall retain all rights in the Product and in any and all related
intellectual property rights.
2
2.1.6 SOURCE CODE ESCROW AGREEMENT. V-ONE shall deposit Source Code and
other Source Material for all Products (excluding such items for the RSA Code
and Baltimore Code), including, without limitation, a current version of the
Product within twenty (20) calendar days of the Effective Date and subsequent
versions of the Product as such subsequent versions are provided to Citrix,
pursuant to the terms of the Source Code Escrow Agreement ("SOURCE CODE ESCROW
AGREEMENT") attached as EXHIBIT 1 hereto, a copy of which shall be executed by
the parties concurrently with the parties' execution of this Agreement. In
addition, V-ONE shall deposit a written description of all modifications, if
any, made to the RSA Code, Baltimore Code or other third party software embedded
in the Product for such RSA Code, Baltimore Code or other third party software
to function with the Product. The Source Code Escrow Agreement is supplementary
to this Agreement. **** Such Source Code Escrow Agreement provides for the
release of all Source Materials in the event of bankruptcy of V-ONE or V-ONE's
failure to support the Product all in accordance with the terms contained in the
Source Code Escrow Agreement. In the event of a release of Source Materials
under the Source Code Escrow Agreement for any reason, Citrix shall be limited
to use of such Source Materials consistent with the terms and conditions of this
Agreement. V-ONE's obligations under this Section shall survive for two (2)
years following expiration or termination of this Agreement.
2.2 CITRIX PRODUCT LICENSE.
2.2.1 LICENSE GRANT. Each Citrix Product may include certain software
in source code form ("SOURCE CODE FRAGMENTS"). Consistent with the terms and
conditions contained in this Agreement, Citrix grants to V-ONE a nonexclusive
and nontransferable license to modify, delete, or replace these Source Code
Fragments within each Citrix Product or, if applicable, to use the ICA 3.0
materials solely in order to develop Citrix Improvements. No other rights to any
Citrix Product, including, without limitation, its source code, are granted.
2.2.2 OWNERSHIP RIGHTS RESERVED. Except as expressly provided for in
SECTION 2.2.1, V-ONE shall not make modifications to, distribute, sublicense,
decompile, reverse engineer or otherwise decode or alter the Citrix Products. No
title, ownership or intellectual property rights to the Citrix Product
including, without limitation, all copyrights, trade secrets and any other
intellectual property and proprietary rights, and all copies thereof, are
transferred to V-ONE under this Agreement. This Agreement does not grant V-ONE
any proprietary rights in or to the Citrix Product.
2.3 LICENSE TO MARKS.
2.3.1 GENERAL. V-ONE grants to Citrix a non-exclusive, limited-use
license to use or sublicense the trademarks and service marks of V-ONE, RSA and
Baltimore related to V-ONE and the Products (collectively, the "MARKS")
consistent with V-ONE's trademark use policy ("TRADEMARK USE POLICY") a copy of
which is attached hereto as SCHEDULE 2.3.1, at the sole discretion of Citrix.
Such Marks may be used or sublicensed for any and all purposes consistent with
the terms of this Agreement, including, without limitation, on or in any
promotional items related to the Products, all containers and packaging used by
Citrix for the Products as well as any brochures, diskettes related to the
Product and any press releases or announcements related to this Agreement.
2.3.2 OWNERSHIP RIGHTS RESERVED. Citrix shall not have any right, title
or interest in the Marks. V-ONE represents and Citrix acknowledges that V-ONE or
its third party licensors owns the Marks and agrees that, at any time during or
after the termination of this Agreement, Citrix shall not assert, claim any
interest in or engage in any activity that may adversely affect the validity of
the Marks.
3
2.3.3 NO CONTINUING RIGHTS UPON TERMINATION. Upon termination of this
Agreement for any reason, Citrix and any of its sublicensors, immediately shall
cease all display, advertising and use of the Marks and thereafter shall not
use, sublicense, advertise or display the Marks or any part thereof.
ARTICLE 3--DISTRIBUTION
-----------------------
3.1 DISTRIBUTION; DEMONSTRATION COPIES.
3.1.1 GENERAL. Citrix has the right to Distribute the Product,
consistent with the terms of SECTION 2.1.2, as determined by Citrix in its sole
discretion. V-ONE shall support Citrix's Distribution efforts consistent with
the terms of this Agreement. Each party will bear its own costs and expenses
incurred in connection with the Distribution of the Product, provided, however,
that V-ONE shall only incur costs and expenses related to its distribution of
the Product to Citrix.
3.1.2 DEMONSTRATION COPIES. Citrix has the right to provide
Demonstration Copies of the Product, consistent with the terms of SECTION 2.1.3,
as determined by Citrix in its sole discretion. Such Demonstration Copies shall
be provided without the imposition of any royalties, fees or charges of any
kind.
3.1.3 LICENSE AGREEMENTS. Citrix and/or its distributors shall provide
the Product to End Users only upon such End User's execution of a license
agreement ("LICENSE AGREEMENT") which shall incorporate the minimum license
terms contained in SCHEDULE 3.1.3 attached hereto.
3.2 FULFILLMENT. No later than six (6) weeks after the Effective Date,
V-ONE shall provide to Citrix no less than three (3) copies of each Product on
three (3) master cds ("MASTER CDS"). V-ONE shall replace any or all defective
Master CDs promptly upon receipt of written notice from Citrix. V-ONE shall
promptly provide Citrix with a new set of Master CDs containing any New Releases
of the Products or Products containing V-ONE Enhancements or Citrix Improvements
when generally released by V-ONE. Citrix shall produce, manufacture, package and
distribute the Products, in its sole discretion, consistent with the terms of
this Agreement, provided, however, that the Products, the Product packaging, the
Documentation and marketing materials shall bear V-ONE, RSA or Baltimore
proprietary notices, as applicable, and Citrix shall attribute V-ONE's, RSA's
and Baltimore's contribution to the Product in accordance with the attribution
guidelines attached hereto as SCHEDULE 3.2.
3.3 MARKETING MATERIALS. Upon Citrix's request, V-ONE will provide
electronic copies: (a) of Documentation; and (b) of sales literature and
marketing materials in languages native to the nations identified in SCHEDULE
4.1.2 and any additional languages upon mutual agreement of the parties at no
additional costs to Citrix. V-ONE hereby grants to Citrix the right to use,
alter and reproduce such Documentation, sales literature and marketing materials
in Citrix's sole discretion consistent with V-ONE's Trademark Use Policy,
provided that Citrix shall make no representations relating to the functionality
of the Product beyond the representations contained in the standard Product
Documentation provided by V-ONE.
3.4 TERRITORIAL RESTRICTIONS, EXPORT CONTROL. Citrix shall be responsible
for compliance with the export control laws and regulations and when required by
such laws and regulations shall obtain, at Citrix's or End User's sole cost and
expense, validated export and re-export licenses required for Product, services
and technical data delivered hereunder ("EXPORT MATERIALS"). V-ONE shall
cooperate in obtaining any necessary Export Materials, including, without
limitation, providing export control classification numbers for the Product.
4
ARTICLE 4--DEVELOPMENT, SUPPORT AND PERSONNEL
4.1 PRODUCT DEVELOPMENT. V-ONE and Citrix agree that joint planning,
cooperation and experienced personnel are necessary to improve and enhance the
Product. Accordingly, during the Term of this Agreement Citrix and V-ONE shall
cooperate and work together as may be reasonably necessary to further develop
and improve the Product, including, but not limited to the following:
4.1.1 PRODUCT. V-ONE shall modify its existing V-ONE SmartGate product
(including related Documentation and supporting software) to conform with the
specifications ("SPECIFICATIONS") and release schedule described in SCHEDULE
4.1.1 attached hereto to create the product ("PRODUCT") and submit each alpha,
beta and gold master candidates releases of such Product for testing in
accordance with SECTION 4.1.4.
4.1.2 V-ONE ENHANCEMENTS. V-ONE shall continually enhance the Products
by integrating V-ONE enhancements ("V-ONE ENHANCEMENTS") into the Products
consistent with: (a) the Specifications, V-ONE enhancement requirements and
release schedule contained in SCHEDULE 4.1.2 attached hereto; and (b) any
additional specifications, enhancement requirements and release schedules
jointly agreed to by the parties. V-ONE shall notify Citrix no less than ninety
(90) calendar days prior to the scheduled release of gold master candidate
releases of any Product containing a V-ONE Enhancement for testing in accordance
with SECTION 4.1.4.
4.1.3 CITRIX IMPROVEMENTS. V-ONE shall improve the Products for Citrix
by integrating Citrix improvements ("CITRIX IMPROVEMENTS") into the Products
consistent with: (a) the Specifications, Citrix improvement requirements and
release schedule contained in SCHEDULE 4.1.3 attached hereto; and (b) any
additional specifications, improvement requirements and release schedules
jointly agreed to by the parties. V-ONE shall notify Citrix no less than ninety
(90) calendar days prior to the scheduled release of gold master candidate
releases of any Product containing a Citrix Improvement for testing in
accordance with SECTION 4.1.4.
4.1.4 PRODUCT TESTING. Citrix shall have the right to test: (a) each
alpha, beta and gold master candidate releases of the Product against the
Specifications; and (b) each alpha, beta and gold master candidate releases of
the Product, which includes a V-ONE Enhancement and/or a Citrix Improvement,
prior to Distribution of such Product. V-ONE shall use its best efforts to
provide written notice to Citrix within fourteen (14) calendar days prior to the
completion of development of any gold master candidate release of the Product
("TEST PRODUCT"). Upon the completion of development of the Test Product V-ONE
shall provide Citrix with: (c) written results and documentation regarding
V-ONE's testing procedure for the Test Product; and (d) access to such Test
Product at the location identified by Citrix for fourteen (14) calendar days for
Citrix to test such Test Product. Citrix shall review such Test Product and
either indicate its acceptance of such Test Product or provide to V-ONE a
written description of any failure of the Test Product to conform to the
requirements included in SCHEDULE 4.1.1, 4.1.2 and 4.1.3, as applicable.
Following receipt of such written description from Citrix, V-ONE shall use its
best efforts, within fourteen (14) calendar days, to implement changes to such
Test Product based on such written description and re-submit the Test Product to
Citrix for its review. This process shall repeat as reasonably necessary until a
final version of the Test Product has been developed and accepted by Citrix.
"ACCEPTANCE" shall occur when a final version of the Product is developed by
V-ONE in accordance with SECTION 4.1.1 and such Product is accepted by Citrix in
accordance with the terms of this Section. ****
4.1.5 NEW RELEASES. V-ONE shall continue to enhance the Product
producing new releases ("NEW RELEASES") of the Product for all End Users in its
ordinary course of business. V-ONE shall notify Citrix no less than ninety (90)
calendar days prior to the release of any New Releases, provided, however, that
in the event that V-ONE makes minor improvements to the Product, instead of such
ninety (90) calendar day notice, V-ONE shall only be required to provide prompt
5
notice to Citrix as soon as reasonably practicable before the release of such
minor improvements to the Product. V-ONE shall make such New Releases available
to Citrix as such New Releases are made available to any of V-ONE's other
distributors.
4.2 SUPPORT AND MAINTENANCE SERVICES. Citrix and V-ONE shall provide
maintenance services and support services for all Products licensed to or
Distributed by Citrix all in accordance with the terms and conditions set forth
in SCHEDULE 4.2. **** V-ONE shall also provide Updates and Upgrades to Citrix
for the Products as they are made available to V-ONE's customers generally.
V-ONE's obligations under this Section shall survive for two (2) years following
expiration or termination of this Agreement.
4.3 V-ONE PERSONNEL. V-ONE shall provide three (3) qualified personnel
acting as independent contractors ("V-ONE PERSONNEL") for the fees identified in
SCHEDULE 4.3 (the "V-ONE PERSONNEL FEE"), to assist Citrix in the performance of
its obligations under this Agreement, including, without limitation, assisting
in Product development, marketing and support. The initial start date, Citrix
location and identity of the V-ONE Personnel shall be mutually agreed upon by
the parties. The V-ONE Personnel shall work at Citrix locations under the
direction of Citrix in Citrix's sole discretion in accordance with the V-ONE
Personnel requirements ("V-ONE PERSONNEL REQUIREMENTS") contained in SCHEDULE
4.3, provided however, that all V-ONE Personnel shall remain employees of V-ONE
at all times. V-ONE shall retain sole responsibility for the employment,
supervision and control of all V-ONE Personnel, including, without limitation,
payment of salary, withholding taxes, worker's compensation coverage, disability
and all other employment benefits and V-ONE shall indemnify, defend, protect and
hold harmless Citrix for any employment-related claims, brought by any V-ONE
Personnel, except to the extent that such claims are the result of actionable
conduct by Citrix personnel.
4.3.1 REMOVAL OR REPLACEMENT OF V-ONE PERSONNEL BY CITRIX. Citrix may
terminate its use of any or all of the V-ONE Personnel upon thirty (30) calendar
days written notice to V-ONE and the V-ONE Personnel Fee shall be reduced or
eliminated accordingly. Citrix shall have the right to require V-ONE to replace
any V-ONE Personnel whom Citrix deems to be unfit or otherwise unsatisfactory to
perform their duties. If necessary, V-ONE shall act to replace such V-ONE
Personnel immediately. Without limiting the foregoing, designated
representatives from each party shall use their best efforts to meet to discuss
the request and any alternative solutions during the forty-eight (48) hour
period immediately following Citrix's notice to V-ONE of such request for
replacement. Race, gender, age, religion, national origin and other legally
prohibited characteristics shall not be valid grounds for any such request by
Citrix.
4.3.2 REMOVAL/REASSIGNMENT BY V-ONE. V-ONE shall not remove or
temporarily reassign the V-ONE Personnel without using its best efforts to
provide at least ten (10) days prior written notice to Citrix. Unless otherwise
agreed to by Citrix, if V-ONE replaces or reassigns any V-ONE Personnel as
permitted hereunder, the proposed replacement personnel shall possess comparable
experience and training as the individual whom V-ONE proposes to replace. V-ONE
shall use its best efforts to ensure that at no time shall there be a vacancy of
more than five (5) calendar days among the V-ONE Personnel unless otherwise
agreed to by the parties in writing. Provided any replaced V-ONE Personnel
remain in the employ of V-ONE, such individual shall continue to be available by
telephone to answer any questions related to this Agreement.
4.4 CITRIX PERSONNEL TRAINING. V-ONE shall train Citrix personnel for
no additional fees in accordance with the training program and schedule
contained in SCHEDULE 4.4.
6
ARTICLE 5--PAYMENT AND PRICING
------------------------------
****
ARTICLE 6--WARRANTIES
---------------------
6.1 SOFTWARE FUNCTIONALITY WARRANTY; MEDIA WARRANTY. V-ONE represents
and warrants to Citrix that the Products provided under this Agreement shall
function without defect in accordance with the applicable Specifications and
Documentation and that the media related to the Master CD shall be free from
defects in materials and/or workmanship.
6.2 DOCUMENTATION WARRANTY. V-ONE represents and warrants to Citrix that
it has provided to Citrix all Documentation for the Product and that such
Documentation is detailed and complete and accurately describes the functional
and operational characteristics of the Product. V-ONE further represents and
warrants that it will provide to Citrix updated versions of all such
Documentation when it provides to Citrix V-ONE Enhancements or Citrix
Improvements to the Products and that all such updated Documentation will be
complete and accurate and will be at least as detailed as the Documentation
issued to Citrix with the initial version of the Product.
6.3 DISABLING CODE WARRANTY. V-ONE represents and warrants to Citrix that
the Product does not contain and will not receive from V-ONE's data transmission
via modem or any other V-ONE medium any virus, worm, trap door, back door,
timer, clock, counter or other limiting routine, instruction or design that
would erase data or programming or otherwise cause the Product to become
inoperable or incapable of being used in the full manner for which it was
designed and created (collectively, a "DISABLING CODE"). In the event a
Disabling Code is identified, V-ONE shall take all steps necessary, at no
additional cost to Citrix, to: (a) restore and/or reconstruct any and all data
lost by Citrix or an End User as a result of such Disabling Code; and (b)
furnish new copies of the Products without the presence of Disabling Codes.
6.4 EXPORT CLASSIFICATION WARRANTY. V-ONE represents and warrants that
the Software is classified under the Department of Commerce Export
Administration Regulations and the Department of State Regulations and that all
export control classification numbers provided to Citrix for the Product
pursuant to the terms set forth in SECTION 3.4 are complete, accurate and in
accordance with the above-listed regulations.
6.5 SERVICES WARRANTY. V-ONE represents and warrants to Citrix that it
shall perform all services required by this Agreement in accordance with
industry practices and standards generally applicable to such services, which in
no event shall be less than performance of such services with a reasonable
standard of care.
6.6 INTELLECTUAL PROPERTY WARRANTY; COPYRIGHT QUESTIONNAIRE WARRANTY.
Except as expressly described in SCHEDULE 6.6 attached hereto, V-ONE is the sole
and exclusive owner with all right, title and interest in and to (free and clear
of any liens or other interests) the Product. V-ONE has sole and exclusive
rights to the use of the Product, subject to existing licenses and sublicenses,
and V-ONE is not contractually obligated to pay any compensation to any third
party for the use of the Product. No claims with respect to the Product have
been asserted or, are threatened by any person, including without limitation (a)
to the effect that the design, development, manufacture, sale, licensing or use
of the Product infringes any copyright, patent, trademark, service xxxx or trade
secret of any third party, (b) against the use by V-ONE of the Product as
currently used or as proposed to be used by V-ONE, (c) challenging the
7
ownership, validity or effectiveness of any part of the Product, or (d) that any
person other than V-ONE has any ownership or economic interest in the Product.
All copyrights held by V-ONE in the Product are valid and subsisting in the
jurisdictions in which they are used or registered. To the knowledge of V-ONE
there is no unauthorized use, infringement or misappropriation of the Product by
any third party, including any employee, former employee, consultant,
distributor or customer of V-ONE. In connection with V-ONE' design, development,
manufacture, sale, licensing or use of the Product, there is no infringement
liability (xxxxxx or inchoate) with respect to, or infringement or violation by,
V-ONE of any copyright or trade secret of another person. The Product is not
subject to any outstanding order, judgment, decree, stipulation or, with the
exception of a license from RSA Data Security, Inc. to V-ONE, an agreement
restricting in any manner the sale or licensing thereof by V-ONE. There is no
outstanding order, judgment, decree or stipulation binding on V-ONE regarding
the Product, and V-ONE is not a party to or bound by any agreement (except for
the RSA license and Baltimore license) restricting the delivery or license of
the Product. V-ONE has delivered a true and accurate Certificate of Originality
and Copyright Questionnaire ("CERTIFICATE OF ORIGINALITY AND COPYRIGHT
QUESTIONNAIRE") to Citrix, which is attached hereto as SCHEDULE 6.6. These
warranties shall survive the expiration or termination of this Agreement.
6.7 WARRANTY OF AUTHORITY. Each party represents and warrants to the other
that it has the right to enter into this Agreement. V-ONE further represents and
warrants that there are no outstanding assignments, grants, licenses,
encumbrances, obligations or agreements (whether written, oral or implied) that
are inconsistent with this Agreement and the rights granted or transferred
herein. This warranty shall survive the expiration or termination of this
Agreement.
6.8 NO INVESTIGATIONS OR LITIGATION. There is not, nor has there been at
any time during the past three years, pending or, to the knowledge of V-ONE,
threatened any action, suit, investigation or proceeding (or any basis therefor)
contesting the validity, ownership or right to use, sell, license, transfer or
otherwise dispose of the portions of the Product developed by V-ONE or alleging
infringement arising therefrom, nor has V-ONE learned that any person is or has
been in the past asserting that any ownership, use, license, production,
development, manufacture, marketing, distribution, lease, sale or other
disposition of the portions of the Product developed by V-ONE conflicts or will
conflict with the rights of any other person.
6.9 CHANGE OF CONTROL WARRANTY. V-ONE represents and warrants to Citrix
that no change of control ("CHANGE OF CONTROL") with respect to V-ONE is being
considered, planned or pending by the Board of Directors, shareholders or
management of V-ONE or by any affiliate of V-ONE.
6.10 MATERIAL MISSTATEMENTS OR OMISSIONS. No representation or warranty by
V-ONE that is contained in this Agreement or in any Schedule, Exhibit or other
Attachment hereto contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements and facts contained
herein or therein not materially misleading.
6.11 WARRANTY DISCLAIMER. THE WARRANTIES SET FORTH IN THIS AGREEMENT AND IN
ANY PROCUREMENT DOCUMENTS ARE THE PARTIES ONLY WARRANTIES AND NO OTHER WARRANTY,
EXPRESS OR IMPLIED, WILL APPLY. EXCEPT AS OTHERWISE PROVIDED FOR HEREIN, V-ONE
SPECIFICALLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE.
8
ARTICLE 7--TERM AND TERMINATION
-------------------------------
7.1 TERM. This Agreement shall remain in effect from the Effective Date
for a period of two (2) years from the Distribution Date (the "INITIAL TERM")
unless terminated earlier pursuant to the terms hereof. Following the Initial
Term, this Agreement shall automatically renew for an additional period of one
(1) year ("FIRST RENEWAL TERM") unless Citrix provides written notice of its
intent not to renew this Agreement to the V-ONE no later than sixty (60)
calendar days prior to the end of the Initial Term. Thereafter, the Agreement
will automatically renew for additional one (1) year periods (the "SUBSEQUENT
TERM") unless either party delivers written notice of its intent not to renew
this Agreement to the other party no later than (60) calendar days prior to the
end of the First Renewal Term or then-current Subsequent Term. The Initial Term,
the First Renewal Term and the Subsequent Term, if any, shall be collectively
referred to as the "TERM". In the event that the RSA license to V-ONE is
terminated, the authority of Citrix to distribute and sublicense any version of
the Product containing RSA Code shall also terminate.
7.2 EVENTS OF DEFAULT. Each of the following shall constitute an event
of default (each, an "EVENT OF DEFAULT"), and the occurrence of one (1) or more
of which shall constitute a material breach of this Agreement that shall allow a
party, as applicable, to seek the rights and remedies set forth in SECTION 7.3.
(A) Either party's material breach of any representation or warranty
set forth in ARTICLE 6 or failure of either party to perform any other material
obligation under this Agreement, provided that such material breach or failure
is not cured within thirty (30) calendar days following receipt of written
notice of such material breach or failure or such shorter period as may be
specified in this Agreement;
(B) As to a party, the institution of bankruptcy, receivership,
insolvency, reorganization or other similar proceedings by or against that party
under any section or chapter of the United States Bankruptcy Code, as amended,
or under any similar laws or statutes of the United States or any state thereof,
if such proceedings have not been dismissed or discharged within thirty (30)
calendar days after they are instituted; or the insolvency or making of an
assignment for the benefit of creditors or the admittance by that party of any
involuntary debts as they mature or the institution of any reorganization
arrangement or other readjustment of debt plan of that party not involving the
United States Bankruptcy Code; or any corporate action taken by the Board of
Directors of that party in furtherance of any of the above actions;
(C) As to a party, appointment of a receiver for all or substantially
all of that party's assets or any corporate action taken by the Board of
Directors of that party in furtherance of the foregoing action; and
(D) Any loss or termination of V-ONE's rights to use the RSA Code or
Baltimore Code.
7.3 RIGHTS AND REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an
Event of Default by or with respect to a party, the other party shall be
entitled to any of the following remedies, as applicable:
(A) terminate this Agreement, provided that such party shall not be
required to terminate this Agreement; and/or
(B) subject to the terms of SECTION 7.5, exercise any remedy available
to such party at law or in equity.
9
Upon a termination of this Agreement for any reason End Users shall have a
continued right to use the Product except where the End User breaches the terms
of the applicable End User Agreement, provided however that: (c) for any
Products licensed on a perpetual basis, the End User has paid for the applicable
license in full; and (d) for any Products licensed on a rental basis, the End
User continues to make payment to Citrix and Citrix continues to pay the
applicable Distribution Fee to V-ONE.
7.4 OTHER RIGHTS UPON TERMINATION. Upon termination of this Agreement by
any party for any reason: (a) Citrix shall cease using V-ONE's Marks; (b) Citrix
shall cease Distribution of the Product and return all Product in their
possession to V-ONE; (c) each party shall return the other party's Confidential
Information; (d) Citrix shall return all Master CDs in its possession to V-ONE,
(e) V-ONE shall deliver to Citrix all Citrix Proprietary Materials in V-ONE's
possession; and (f) in the event termination of this Agreement occurs prior to
sixty (60) calendar days following Acceptance, V-ONE shall return all unearned
Prepaid Fees to Citrix.
7.5 LIMITATION OF LIABILITY. EXCEPT FOR EITHER PARTY'S BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS CONTAINED IN ARTICLE 8 OR ITS INDEMNIFICATION
OBLIGATIONS CONTAINED IN ARTICLE 9, EACH PARTY'S TOTAL LIABILITY TO THE OTHER
FOR ANY CAUSE OF ACTION, CLAIM OR DAMAGE ARISING OUT OF OR RELATING TO THE
CAPABILITIES OF THE PRODUCT OR EITHER PARTY'S PERFORMANCE UNDER THIS AGREEMENT
SHALL IN NO EVENT IN THE AGGREGATE EXCEED AN AMOUNT EQUAL TO TWO MILLION AND
FIVE HUNDRED THOUSAND DOLLARS ($2,500,000).
NEITHER PARTY (INCLUDING EITHER PARTIES LICENSORS) SHALL BE LIABLE TO THE OTHER
OR TO ANY END USER OR OTHER THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 8--CONFIDENTIALITY AND OWNERSHIP
----------------------------------------
8.1 CONFIDENTIAL INFORMATION. "CONFIDENTIAL INFORMATION" shall include
the following categories of information whether disclosed orally or not marked
as confidential: (a) this Agreement; (b) the Product; (c) all financial and
operational information, and other matters relating to the operation of the
parties' businesses, including information relating to actual or potential
customers and customer lists, customer usage or requirements, business and
customer usage forecasts and projections, accounting, finance or tax information
or pricing information; (d) any information relating to the corporate and/or
operational structure of any party; and (e) the Citrix Products, including,
without limitation, Citrix application programming interfaces and information
related to Citrix's ICA protocol. Confidential Information shall not include any
information that is: (f) publicly available or later becomes available other
than through a breach of this Agreement; (g) known to the party that has
received Confidential Information (the "RECEIVING PARTY") or its employees,
agents or representatives prior to such disclosure or is independently developed
by the Receiving Party or its employees, agents or representatives subsequent to
such disclosure; or (h) subsequently lawfully obtained by the Receiving Party or
its employees. The Receiving Party agrees: (i) not to directly or indirectly
disclose, copy, distribute, republish or allow any third party to have access to
any Confidential Information of the party that has disclosed Confidential
Information to the Receiving Party (the "DISCLOSING PARTY"); and (j) to exercise
the same degree of care and protection with respect to the Confidential
Information of the Disclosing Party that the Receiving Party exercises with
respect to its own Confidential Information which in no event shall be less than
a reasonable standard of cure. Either party may disclose Confidential
10
Information: (k) to its employees and authorized agents who have a need to know
consistent with the terms of SECTION 8.3; and (l) if so required by law
(including court order or subpoena), provided that such disclosure is made in
accordance with the terms of SECTION 8.2. Unless otherwise authorized, upon the
earlier of termination of this Agreement or request of the Disclosing Party, the
Receiving Party shall promptly return the Disclosing Party's Confidential
Information.
8.2 NOTIFICATION OBLIGATION. If the Receiving Party becomes aware of
any unauthorized use or disclosure of the Confidential Information of the
Disclosing Party, the Receiving Party shall promptly and fully notify the
Disclosing Party of all facts known to it concerning such unauthorized use or
disclosure. In addition, if the Receiving Party or any of its employees or
agents are requested or required (by oral questions, interrogatories, requests
for information or documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any of the Confidential Information
of the Disclosing Party, the Receiving Party shall not disclose the Confidential
Information without providing the Disclosing Party at least twenty-four (24)
hours prior written notice of any such request or requirement so that the
Disclosing Party may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. If, in the absence of a
protective order or other remedy or the receipt of a waiver by the Disclosing
Party, the Receiving Party or any of its employees are nonetheless, in the
written opinion of the Receiving Party's counsel (a copy of which opinion shall
be delivered to the Disclosing Party), legally compelled to disclose
Confidential Information to any tribunal or otherwise stand liable for contempt
or suffer other censure or penalty, the Receiving Party or its employees may,
without liability hereunder, disclose to such tribunal only that portion of the
Confidential Information that such counsel advises the Receiving Party that it
is legally required to disclose. Notwithstanding the foregoing, the Receiving
Party shall exercise its best efforts: (a) to preserve the confidentiality of
the Confidential Information including, without limitation, by cooperating with
the Disclosing Party to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded the Confidential
Information by such tribunal; and (b) to take such action as may be required to
protect any further disclosure of Confidential Information.
8.3 EMPLOYEE/AGENT ACKNOWLEDGMENT. Neither party shall disclose
Confidential Information to any employee, agent or representative of theirs
unless and until such employee, agent or representative has been made aware that
his or her obligations under this Agreement are subject to confidentiality
restrictions and unless such employee, agent or representative is the subject of
a written confidentiality or non-disclosure agreement, which provides at least
as much protection for the Confidential Information as the terms and conditions
contained herein.
8.4 RESIDUALS. The terms of confidentiality under this Agreement shall not
be construed to limit either party's right to independently develop or acquire
products without use of the other party's Confidential Information. Further,
either party shall be free to use for any purpose the Residuals resulting from
access to or work with such Confidential Information, provided that such party
shall maintain the confidentiality of the Confidential Information as provided
therein, except as otherwise explicitly permitted by this Agreement and to the
extent that disclosure is inherent from selling, licensing or otherwise
disposing of a product using or incorporating such Residuals. The term
"RESIDUALS" means information in non-tangible form which may be retained by
persons who have had access to the Confidential Information, including ideas,
concepts, know-how or techniques contained therein. Neither party shall have any
obligation to limit or restrict the assignment of such persons or to pay
royalties for any work resulting from the use of Residuals or the sale of
products using or incorporating Residuals. However, the foregoing shall not be
deemed to grant to either party a license under the other party's copyrights or
patents, other than as expressly provided in ARTICLE 2.
11
8.5 PROPRIETARY RIGHTS. Except for: (a) the Citrix Improvements; (b)
any software developed under SECTION 4.1.3 by either party; (c) any software
developed under SECTION 2.1.1 by either party (excluding any pre-existing
Product software or related V-ONE proprietary information); or (d) any software
developed using Citrix's Confidential Information, including, without
limitation, Citrix application programming interfaces and information related to
Citrix's ICA protocol (collectively, the "CITRIX PROPRIETARY MATERIALS"), all
rights in and to the Product and V-ONE Enhancements shall remain in and inure to
the benefit of V-ONE or V-ONE's licensors including, without limitation, all
copyrights, trademarks, patents, trade secrets and any other proprietary rights.
All rights in and to the Citrix Proprietary Materials shall remain in and inure
to the benefit of Citrix or Citrix's licensors including, without limitation,
all copyrights, trademarks, patents, trade secrets and any other proprietary
rights. To the extent, if any, that the ownership and rights in and relating to
the Products, V-ONE Enhancements or Citrix Proprietary Materials do not
automatically vest in applicable party identified above by virtue of this
Agreement, or otherwise, (a) for Products and V-ONE Enhancements, Citrix hereby
transfers and assigns to V-ONE all rights, title and interest Citrix may have in
and to the Products and V-ONE Enhancements; and (b) for Citrix Proprietary
Materials, V-ONE hereby transfers and assigns to Citrix all rights, title and
interest V-ONE may have in and to the Citrix Proprietary Materials. The parties
shall cooperate as necessary to allocate and assign any and all proprietary
rights in and to any software developed in relation to this Agreement consistent
with the terms of this Section.
ARTICLE 9--INDEMNIFICATION
--------------------------
9.1 GENERAL. For third party claims relating to personal injury (including
death) and property damage caused by the negligent or intentional acts of a
party or its employee or agents, such party ("INDEMNITOR") shall indemnify,
defend and hold the other party and its subsidiaries, affiliates, directors,
officers, shareholders, employees, representatives, agents, attorneys,
successors and assigns (collectively, the "INDEMNIFIED PARTIES") harmless from
and against any and all claims, liabilities, obligations, judgments, causes of
actions, costs and expenses (including reasonable attorneys' fees). After
receiving notice of a claim for which indemnity may be sought, a party receiving
the notice shall promptly advise the indemnifying party of any such claim, suit
or proceeding. The Indemnitor shall, at its own expense, promptly undertake
defense of such claim, suit or proceeding and thereafter maintain such defense
provided that the Indemnitor shall have the sole right to control the defense
and settlement of any claim. Nothing contained in this Section, however, shall
bar a claim for contributory negligence.
9.2 PROPRIETARY RIGHTS INFRINGEMENT INDEMNIFICATION.
9.2.1 V-ONE INDEMNIFICATION. V-ONE agrees to indemnify, defend and hold
Citrix and Citrix's Indemnified Parties harmless from and against any claim,
suit or proceeding alleging that the Product constitutes a misappropriation or
infringement upon any patent, copyright, trademark, trade secret or other
intellectual property right of any third party provided that Citrix, after
receiving notice thereof, shall promptly advise V-ONE of any such claim, suit or
proceeding and that V-ONE shall have the sole right to control any defense and
settlement of such claims. If the Product or any part thereof is held to
infringe upon any patent, trademark, copyright, trade secret or other
intellectual property right of any third party, V-ONE shall, at its option and
sole expense, within thirty (30) calendar days of such injunction or
interference, either: (a) procure for Citrix and its End Users, as applicable,
the right to continue using such Product free of any liability for infringement
or violation; (b) replace or modify such Product in use with Citrix and its End
Users with a non-infringing product of equivalent or better functionality; or
(c) in the event V-ONE is unable, after exercising its best efforts to implement
one of the options set forth in subsection (a) or (b) above, accept return of
the Product at V-ONE's sole cost and expense and refund to Citrix, the amount
paid by an End User for the Product.
12
9.2.2 CITRIX INDEMNIFICATION. Citrix agrees to indemnify, defend and
hold V-ONE and V-ONE's Indemnified Parties harmless from and against any claim,
suit or proceeding alleging that the any modification to the Product made by
Citrix constitutes a misappropriation or infringement upon any patent,
copyright, trademark, trade secret or other intellectual property right of any
third party provided that V-ONE, after receiving notice thereof, shall promptly
advise Citrix of any such claim, suit or proceeding and that Citrix shall have
the sole right to control any defense and settlement of such claims.
9.3 INDEMNIFICATION RESPONSIBILITIES. A party seeking indemnification
pursuant to this Agreement shall give a reasonably detailed written notice with
the addition of the relevant pleadings, letters or other documents, to the
Indemnitor regarding the assertion of any claim or demand, and the commencement
of any action, suit or proceeding in respect of which indemnity may be sought
hereunder, and shall provide, in addition to the aforesaid, to the Indemnitor,
such information with respect thereto as the Indemnitor may reasonably request.
However, no failure to give such notice shall relieve the Indemnitor of any
liability hereunder, subject to the applicable law. The Indemnitor shall have
the right to undertake the defense if any such claim asserted by a third person,
and the Indemnified Parties shall reasonably cooperate in such defense and make
available such personnel, records and materials reasonably requested by the
Indemnitor in connection therewith at the Indemnitor's expense. The Indemnified
Parties shall be entitled to reasonably participate in such defense, but shall
not be entitled to indemnification with respect to the costs and expenses of
such defense if the Indemnitor shall have assumed the defense of the claim with
counsel reasonably satisfactory to the Indemnified Parties. The Indemnitor shall
have no right to waive any legal defense to any claim, demand, action, suit or
proceeding asserted by a third person without the written consent of the
Indemnified Parties.
9.4 FAILURE TO DEFEND. If a party: (a) does not assume the defense of an
indemnified claim pursuant to the above Sections hereof; or (b) having so
assumed such defense, unreasonably fails to defend against such indemnified
claim, the other party may assume the defense of such indemnified claim. In such
event, the other party shall be entitled under this Article, as part of its
damages, to reimbursement for the costs of such defense.
9.5 SETTLEMENT. The party controlling the defense of an indemnified claim
shall have the right to consent to the entry of judgment with respect to, or
otherwise settle, such indemnified claim with the prior written consent of the
other party, which consent shall not be unreasonably withheld, provided,
however, that the Indemnitor may settle any claim without the consent of the
Indemnified Parties: (a) if the sole relief awarded is monetary damages; (b) the
Indemnitor shall solely bear any amount to be paid or debited in accordance
therewith; (c) the settlement fully releases all Indemnified Parties; and (d)
the settlement does not include any admission on its or any Indemnified Parties'
behalf or otherwise prejudice any of its or their rights. The Indemnitor shall
not be liable for any claim settled without its prior written consent, which
consent may not be unreasonably withheld.
9.6 PARTICIPATION. Citrix and V-ONE shall cooperate in the defense or
prosecution of any indemnified claim. Citrix or V-ONE, as the case may be, shall
have the right to participate, at its own expense, in the defense or settlement
of any Infringement Claim. If either party has been advised by the written
opinion of counsel to the other party that the use of the same counsel to
represent both V-ONE and Citrix would present a conflict of interest, then each
party may retain its own counsel and such counsel will cooperate in all respects
with the defense of such indemnified claim.
ARTICLE 10 -- DISPUTE RESOLUTION
--------------------------------
10.1 PROJECT MANAGER LEVEL PERFORMANCE REVIEW. Empowered individuals with
the necessary authority to settle any active disputes shall meet as often as
shall reasonably be required to review the performance of the parties under this
Agreement and to resolve any disputes. Written minutes of such meetings shall be
13
kept by V-ONE for review and approval by Citrix. If these representatives are
unable to resolve a dispute within ten (10) calendar days after the initial
request for a meeting, then the dispute shall be submitted to an executive-level
performance review as described in SECTION 10.2.
10.2 EXECUTIVE-LEVEL PERFORMANCE REVIEW. Face-to-face negotiations shall
be conducted by senior executive officers of Citrix and V-ONE. If these
representatives are unable to resolve the dispute within ten (10) calendar days
after the representatives have commenced negotiations, or twenty (20) calendar
days have passed since the initial request for negotiations at this level, then
the parties may agree in writing to submit the dispute to mediation.
10.3 VOLUNTARY, NON-BINDING MEDIATION. If executive-level performance review
is not successful in resolving the dispute, the parties may, but shall not be
obligated to, mutually agree in writing to submit the dispute to non-binding
mediation. Mediation must occur within five (5) business days after the parties
agree to submit the dispute to mediation, and the duration of the mediation
shall be limited to one (1) business day. The parties mutually shall select an
independent mediator experienced in software development and software
distribution disputes, and each shall designate a representative(s) to meet with
the mediator in good faith in an effort to resolve the dispute. The specific
format for the mediation shall be left to the discretion of the mediator and the
designated party representatives and may include the preparation of agreed-upon
statements of fact or written statements of position furnished to the other
party.
10.4 CONTINUED PERFORMANCE. Except where clearly prevented by the area in
dispute, both parties shall continue performing their obligations under this
Agreement while the dispute is being resolved under this Article unless and
until the dispute is resolved or until this Agreement is terminated as provided
herein.
10.5 EQUITABLE RELIEF. Notwithstanding anything contained in this Agreement
to the contrary, the parties shall be entitled to seek injunctive or other
equitable relief whenever the facts or circumstances would permit a party to
seek such equitable relief in a court of competent jurisdiction.
ARTICLE 11--MISCELLANEOUS
-------------------------
11.1 NOTICES. Any notice required or permitted to be delivered pursuant to
this Agreement shall be in writing and shall be deemed delivered: (a) upon
delivery if delivered in person; or (b) upon transmission if sent via
telecopier, with a confirmation copy sent via reputable international overnight
courier, and in each case addressed as follows:
If to Citrix:
Citrix Systems, Inc.
0000 X. X. 0xx Xxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telecopier: 000-000-0000
If to V-ONE:
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: CFO
Telecopier: 000-000-0000
14
11.2 NO SOLICITATION. During the Initial Term and the Renewal Term, if any,
and for a period of six (6) months after termination or non-renewal and
expiration of this Agreement, neither party shall employ or solicit, directly or
indirectly, any past or present employee of the other party, which for purposes
of this Section shall not include general, broadly disseminated, written
solicitations offering employment.
11.3 FORCE MAJEURE. Each party shall be excused from performance under
this Agreement and shall have no liability to any other party for any period it
is prevented from performing any of its obligations, in whole or in part, as a
result of delays caused by the other parties or by an act of God, war, civil
disturbance, court order, third party performance or non-performance, or other
cause beyond its reasonable control and such non-performance shall not be a
default under, or grounds for termination of, this Agreement.
11.4 AGENCY. No party hereto shall make any representations or warranties
or incur any liability on behalf of the other. No party is the agent,
representative or partner of any other party.
11.5 RELATIONSHIP OF PARTIES. The parties acknowledge that they are
independent contractors, and nothing set forth in this Agreement shall be deemed
or construed to render the parties as joint venturers, partners or employer and
employee. Under no circumstances shall Citrix be considered the employer of any
V-ONE personnel, including, without limitation the V-ONE Personnel referenced in
SECTION 4.3, nor shall V-ONE have any right with respect to any employee of
Citrix.
11.6 THIRD-PARTY LICENSORS. RSA Data Security, Inc. shall be an express
third party beneficiary of this Agreement for the purpose of protecting its
proprietary rights in the RSA Code and the other protections expressly provided
herein to it as a licensor to V-ONE.
11.7 GOVERNING LAW; EXCLUSIVE JURISDICTION. This Agreement, and all the
rights and duties of the parties arising from or relating in any way to the
subject matter of this Agreement or the transaction(s) contemplated by it, shall
be governed by, construed, and enforced in accordance with the law of the State
of Florida (excluding any conflict of laws provisions of the State of Florida
which would refer to and apply to substantive laws of another jurisdiction). Any
suit or proceeding relating to this Agreement, including arbitration proceedings
if agreed to, shall be brought only in Dade County, Florida. EACH PARTY CONSENTS
TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND
FEDERAL, LOCATED IN DADE COUNTY, FLORIDA.
11.8 SEVERABILITY. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any other part
or provision of this Agreement.
11.9 WAIVER. No delay or omission by any party to exercise any right
occurring upon any non-compliance or default by any other party with respect to
any of the terms of this Agreement shall impair any such right or power or be
construed to be a waiver thereof. A waiver by any of the parties hereto of any
of the covenants, conditions or agreements to be performed by the other shall
not be construed to be a waiver of any succeeding breach thereof or of any
covenant, condition or agreement herein contained.
11.10 EQUITABLE RELIEF. Any breach of a party's obligations under this
Agreement with respect to the proprietary rights or Confidential Information of
any other party will cause such party irreparable injury for which there are
inadequate remedies at law, and, therefore, such party shall be entitled to
equitable relief in addition to all other remedies provided by this Agreement or
available at law.
15
11.11 ATTORNEYS' FEES. In the event of an alleged breach of this Agreement,
the prevailing party shall be entitled to reimbursement of all of its costs and
expenses, including reasonable attorneys' fees, incurred in connection with such
dispute, claim or litigation, including any appeal therefrom.
11.12 COUNTERPARTS. This Agreement may be executed in one (1) or more
duplicate originals, all of which together shall be deemed one and the same
instrument.
11.13 BINDING NATURE AND ASSIGNMENT. Subject to all other provisions herein
contained, this Agreement shall be binding on the parties and their successors
and permitted assigns. V-ONE shall not assign, delegate, or otherwise transfer,
in whole or in part, this Agreement nor any rights hereunder, without the prior
written consent of Citrix, which shall not be unreasonably withheld. A transfer
shall include, for purposes of this Agreement, any change in the control of
V-ONE, by stock acquisition, asset transfer, reorganization or other corporate
transaction which results in the change in control of shareholders, directors or
management.
11.14 MEDIA RELEASES AND PUBLIC DISCLOSURES OF AGREEMENT.
11.14.1 PUBLIC DISCLOSURES OF AGREEMENT. Except as may be required by
law, neither party shall disclose to any Third Party the terms and conditions of
this Agreement without the prior written approval of the other party, which
approval may be denied in such party's sole discretion. The parties acknowledge
that this Agreement or portions hereof may be required to be disclosed in
filings with the United States Securities and Exchange Commission ("SEC").
Having acknowledged the foregoing, the parties shall: (a) prior to filing any
document with the SEC, agree upon a redacted version of this Agreement (which in
the event of a dispute between the parties shall be the most redacted version of
the Agreement) that, if required, may be filed with the SEC; and (b) submit a
request to SEC that such portions and other provisions of this Agreement receive
confidential treatment under the laws, rules and regulations of the SEC or
otherwise be held in the strictest confidence to the fullest extent permitted
under the laws, rules or regulations of any other applicable governing body.
11.14.2 MEDIA RELEASES. Neither party shall issue any statement, press
release, marketing, advertising or other promotional materials arising under or
related to this Agreement without the prior written approval of the other party,
which approval may be denied in each party's reasonable discretion. Once
approved, the press release, marketing, advertising or promotional materials may
be used by a party for the original purpose for which it was intended until such
approval is withdrawn with reasonable prior notice. Notwithstanding the
foregoing, Citrix may issue any statement, press release, marketing, advertising
or other promotional materials related to the Products Distributed hereunder in
its sole discretion without the prior approval of V-ONE; provided, however, that
in the event such materials contain a V-ONE Xxxx, such Marks shall used in
accordance with SECTION 2.2.
11.15 SURVIVAL. Either parties obligations under this Agreement, which by
their nature survive termination, including, without limitation, confidentiality
and indemnification obligations, shall survive the termination or expiration of
this Agreement.
11.16 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement and all Schedules and
Exhibits, including any Attachments thereto, are incorporated herein by this
reference and are an integral part of this Agreement and shall be read and
interpreted together with this Agreement as a single document. References to the
"Agreement" shall include all Schedules, Exhibits, Attachments and Addenda. This
Agreement, together with all of the Schedules, Exhibits, Attachments and Addenda
hereto, sets forth the entire, final and exclusive agreement between the parties
relative to the subject matter hereof and supersedes all previous oral and
written proposals, negotiations, representations or understandings concerning
such subject matter. This Agreement may be modified only pursuant to a writing
executed by an authorized representatives of V-ONE and Citrix. The parties
16
expressly disclaim the right to claim the enforceability or effectiveness of any
oral modifications to this Agreement or any amendments based on course of
dealing, waiver, reliance, estoppel or other similar legal theory.
IN WITNESS WHEREOF, the parties have caused this Licensing and
Distribution Agreement to be executed by their duly authorized representatives
as of the date set forth above.
CITRIX SYSTEMS, INC. V-ONE CORPORATION
By:/s/ Xxxxxx Xxx By:/s/ Xxxxxxxx X. Xxxxxxx
------------------------------- -----------------------------------
Its: General Counsel Its: Chief Financial Officer
------------------------------ -----------------------------------
17
SCHEDULE 1.2
------------
DEFINITIONS
-----------
"ACCEPTANCE" is defined in SECTION 4.1.4.
"AFFILIATE(S)" means any person, firm, corporation (including, without
limitation, service corporation and professional corporation), partnership
(including, without limitation, general partnership, limited partnership and
limited liability partnership), limited liability company, joint venture,
business trust, association or other entity that now or in the future, directly
or indirectly controls, is controlled with or by or is under common control with
a party. For purposes of the foregoing, "control" shall mean, with respect to:
(a) a corporation, the ownership, directly or indirectly, of more than fifty
percent (50%) of the voting power to elect directors thereof or, for purposes of
foreign corporations, if less than fifty percent (50%), the amount allowed by
applicable law; and (b) any other entity, the power to direct the management of
such entity.
"API" means an interface that makes the functionality of the Product available
for productive use with another program and/or product, but does not, in and of
itself, provide functionality of the Product.
"AGREEMENT" is defined in the first paragraph of this Agreement.
"BALTIMORE" is defined in SECTION 2.1.1.
"BALTIMORE CODE" is defined in SECTION 2.1.1.
"BALTIMORE SEAL" is defined in SCHEDULE 3.2.
"CERTIFICATE OF ORIGINALITY AND COPYRIGHT QUESTIONNAIRE" is defined in SECTION
6.6.
"CHANGE OF CONTROL" means: (a) any transaction or combination of transactions as
a result of which either a person, an entity or a group of persons and/or
entities that customarily has acted in concert and that presently is in control
of V-ONE ceases to be in control of V-ONE; or (b) the sale, exchange or other
disposition (including disposition in full or partial dissolution) of the stock
of V-ONE or the assets of V-ONE that constitute a substantial or material
business segment of V-ONE; or (c) the divestiture, in whole or in part, of the
business unit or division of V-ONE that has provided the Products and/or
Maintenance Services to Citrix. A Change of Control shall not include any public
stock offering.
"CITRIX" means Citrix Systems, Inc., its Affiliates and their permitted
successors and assigns.
"CITRIX IMPROVEMENTS" is defined in SCHEDULE 4.1.3.
"CITRIX PRODUCTS" means the Citrix client software in binary format for ICA 3.0
protocol support, as such products may be adapted by V-ONE for use in the
Product pursuant to this Agreement, and includes all related Citrix application
programming interfaces, Citrix Product Releases, Citrix Version Releases, and
Citrix Update Releases provided by Citrix to V-ONE in connection with this
Agreement.
"CITRIX PRODUCT RELEASE" means a release of a Citrix Product that is designated
by Citrix in its sole discretion as a change in the digit(s) to the left of the
decimal point in the Citrix Product version number, ({x}.xx).
"CITRIX PROPRIETARY MATERIALS" is defined in SECTION 8.5.
"CITRIX UPDATE RELEASE" means a release of a Citrix Product that is designated
by Citrix in its sole discretion as a change in the hundredths digit in the
Citrix Product version number, (x.x{x}).
"CITRIX VERSION RELEASE" means a release of a Citrix Product that is designated
by Citrix in its sole discretion as a change in the tenths digit in the Citrix
Product version number, (x.{x}x).
"CONFIDENTIAL INFORMATION" is defined in SECTION 8.1.
"DEMONSTRATION COPIES" is defined in SECTION 2.1.3.
"DISABLING CODE" is defined in SECTION 6.3.
"DISCLOSING PARTY" is defined in SECTION 8.1.
"DISTRIBUTE" or "DISTRIBUTION" is defined in SECTION 1.1.
"DISTRIBUTION DATE" is defined in SECTION 5.5.3.
"DISTRIBUTION FEES" is defined in SECTION 5.1.
"DOCUMENTATION" means, collectively: (a) all of the written, printed, electronic
or other format materials published or otherwise made available by V-ONE that
relate to the functional, operational and/or performance capabilities of the
Product; and (b) all user, operator, system administration, technical, support
and other manuals and all other written, printed, electronic or other format
materials published or otherwise made available by V-ONE that describe the
functional, operational and/or performance capabilities of the Product.
Documentation shall not include Source Code.
"EFFECTIVE DATE" is defined in the first paragraph of this Agreement.
"END USERS" means a person or entity using the Product for its internal
purposes.
"EVENT OF DEFAULT" is defined in SECTION 7.2.
"EXPORT MATERIALS" is defined in SECTION 3.4.
"FIRST RENEWAL TERM" is defined in SECTION 7.1.
"ICA" means the Citrix architecture and proprietary protocols that define
communications between server computers and workstations or terminals such that
the intelligence and memory resident in the workstation or terminal is
efficiently exploited. ICA protocols relate to functions including, but not
limited to the following: distributed Windows graphical user interface, full
screen text, virtual channels, data packet framing, compression, and encryption.
"INDEMNIFIED PARTIES" is defined in SECTION 9.1.
"INDEMNITOR" is defined in SECTION 9.1.
"INITIAL TERM" is defined in SECTION 7.1.
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"LEVEL 1 SUPPORT SERVICES", "LEVEL 2 SUPPORT SERVICES" and "LEVEL 3 SUPPORT AND
MAINTENANCE SERVICES" are defined in ATTACHMENT A TO SCHEDULE 4.2.
"LICENSE AGREEMENT" is defined in SECTION 3.1.3.
"LOCKING TECHNOLOGY" technology that "unlocks" or "enables" functionality to
make such functionality available for productive use.
"MAINTENANCE FEE" is defined in SECTION 5.2.
"MARKS" is defined in SECTION 2.3.1.
"MASTER CDS" is defined in SECTION 3.2.
"MINIMUM PAYMENTS" is defined in SECTION 5.1(A).
"MINIMUM RENTAL PAYMENTS" is defined in SECTION 5.1(B).
"NEW RELEASES" is defined in SECTION 4.1.5.
"OEMS" shall mean any person or entity that privately labels the Product for
distribution.
"PAYMENT DATE" is defined in SECTION 5.5.2.
"PAYMENT PERIOD" is defined in SECTION 5.5.2.
"PREPAID FEES" is defined in SECTION 5.5.1.
"PRODUCT" means the object-code version of V-ONE's SmartGate product (including
related Documentation and supporting software), which conforms with the
Specifications, and any and all modifications, V-ONE Enhancements and Citrix
Improvements thereto.
"QUARTERLY MINIMUM" is defined in SECTION 5.5.3.
"RECEIVING PARTY" is defined in SECTION 8.1.
"RESIDUALS" is defined in SECTION 8.4.
"RSA" is defined in SECTION 2.1.1.
"RSA CODE" is defined in SECTION 2.1.1.
"SEC" is defined in SECTION 11.14.1.
"SEAT" means an instance of the client version of the Product that has been
enabled in the Product authentication database.
"SOURCE CODE" means computer software in the form of source statements for the
Product including, without limitation, all software in the form of electronic
and printed human-readable, mnemonic or English-like program listings, including
printed and on-line descriptions of the design of such software including,
without limitation, data definition models, indices, structure tables, system
flow charts, program flow charts, defined terms, file layouts, program
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narratives, global documentation (including global variables) and program
listings.
"SOURCE CODE ESCROW AGREEMENT" is defined in SECTION 2.1.6.
"SOURCE CODE FRAGMENTS" is defined in SECTION 2.2.1.
"SOURCE MATERIALS" is defined in the Recitals to the Source Code Escrow
Agreement attached as EXHIBIT 1.
"SPECIFICATIONS" is defined in SECTION 4.1.1.
"SUBSEQUENT TERM" is defined in SECTION 7.1.
"SUPPORT SERVICES" is defined in SCHEDULE 4.2.
"SUPPORT AND MAINTENANCE SERVICES" is defined in SCHEDULE 4.2.
"TERM" is defined in SECTION 7.1.
"TERRITORY" is defined in SECTION 1.1.
"TEST PRODUCT" is defined in SECTION 4.1.4.
"TRADEMARK USE POLICY" is defined in SECTION 2.3.1.
"UPDATES" means improvements to the Product that do not constitute Upgrades such
as bug fixes, patches and process changes.
"UPGRADES" means improvements to the Product that include new features as well
as improvements and enhancements to existing features or the Product, which
shall include New Releases.
"V-ONE" means V-ONE Corporation, and its permitted successors and assigns.
"V-ONE ENGINEER" collectively, "V-ONE ENGINEERS" is defined in SCHEDULE 4.3.
"V-ONE ENHANCEMENTS" is defined in SECTION 4.1.2.
"V-ONE PERSONNEL" is defined in SECTION 4.3.
"V-ONE PERSONNEL FEE" is defined in SECTION 4.3.
"V-ONE PERSONNEL PAYMENTS" is defined in SECTION 5.4.
"V-ONE PERSONNEL REQUIREMENTS" is defined in SECTION 4.3.
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