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EXHIBIT 10.32
*** Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 230.406
VITRIA CONTRACT NUMBER: _____________________
[VITRIA TECHNOLOGY, INC. LOGO]
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement (the "Agreement") is entered into
between Vitria Technology, Inc., a Delaware corporation ("Vitria") located at
000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, and Xxxxxxx.xxx, Inc. ("Licensee"), for
the purpose of setting forth the terms and conditions upon which Vitria shall
grant to Licensee a license to use the Products and provide the services listed
on Exhibit A attached hereto.
THE EFFECTIVE DATE OF THIS AGREEMENT IS DECEMBER _____, 1999.
1. DEFINITIONS
"Client" means an application that invokes, typically via a network protocol,
the software functions provided by one or more Servers.
"Client Environment" means a hardware/operating system/graphical user interface
combination on which a Client, or any portion thereof, is run.
"Confidential Information" The confidentiality obligations between the parties
shall not apply to any information (a) which is in the public domain or which
becomes part of the public domain through no fault of the party receiving the
confidential information (the "receiving party"); (b) which is known by the
receiving party prior to the disclosure thereof by the disclosing party (as
established by documentary evidence); (c) which is lawfully received by the
receiving party from a third party who provided such information without breach
of any separate confidentiality obligation owed to the disclosing party; (d)
which is disclosed by the disclosing party to any third party without
restriction on further disclosure; or (e) which is independently developed by
personnel having no access to the disclosing party's confidential information
(as established by documentary evidence). Confidential information also may be
disclosed to third parties as may be required by law in the reasonable judgment
of the receiving party's attorneys. In the event of disclosure under the
preceding sentence, the receiving party promptly shall notify the disclosing
party of the same so that the disclosing party may seek a protective order or
other appropriate remedy, and the receiving party shall not oppose action by the
disclosing party to obtain such an order or remedy.
"DBMS" means a specific database management system on which the Product is run.
"Designated Developer" means a person within Licensee designated by Licensee to
develop applications with the Product.
"Documentation" means the user manuals and operator instructions issued by
Vitria in conjunction with the Products.
"Effective Date" means the date set forth above.
"Host Site" means the Licensee data centers, or other similar facilities that
are functioning as Licensee's outsource facilities to host the computer systems
for the Licensee. Host Site specifically excludes Licensee's customers.
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"Host Product" or "Host Products" means a Product hosted by the Licensee for a
3rd party.
"Order Form" means the Vitria's standard form for ordering Product licenses and
services attached as Exhibit A.
"Price List" means Vitria's standard product list and fee schedule in effect at
the time a Product license or service is ordered by the Licensee.
"Product" or "Products" means the computer software program(s) owned or
distributed by Vitria for which Licensee is granted a license pursuant to this
Agreement, and subsequent Updates thereto, whether in printed or machine
readable form.
"Server" means the specific installed instance of a Product in execution on a
given Server Environment.
"Server Environment" means a hardware/operating system combination (e.g.,
Sun/Solaris) on which the Product, or any portion thereof, is run.
"Site Product" or "Site Products" means the Products under the heading Site
Products on the Exhibit A that are licensed for distribution as specified in
Section 2.4.
"Standard Technical Support" means the technical support services specified in
4.1 and Exhibit B of this Agreement.
"Support Fees" means the fees payable annually for Standard Technical Support.
"Supported License" means a Product license for which the Licensee has a current
order for annual Standard Technical Support.
"Trading Partner" means the entity designated by Licensee who has either a
signed a sublicense agreement with Licensee or directly with Vitria, and is
licensed to receive the Site Products as set forth hereunder.
"Updates" means updated versions of the Products and Documentation which
encompass logical improvements, extensions and other changes to the Products
which are generally made available to Product licensees who are current in their
payment of Support Fees.
2. LICENSE GRANT
2.1 License and Documentation Rights
2.1.1 Vitria hereby grants to the Licensee, subject to the terms and
conditions of this Agreement, a nonexclusive, nontransferable,
nonassignable and perpetual license to use the Products and
Documentation obtained pursuant to this Agreement. Licensee may
license and install Product licenses designated as "Production"
licenses at the Host Site or a Licensee customer site provided that
such Product licenses (i) may only be used in conjunction with
Licensee's customers applications under the sole management of
Licensee, and (ii) are resident and installed solely at the Host
Site, customer site, or jointly between the Host Site [...***...]
Prior to any installation of the Products at either the Host Site or
a Licensee customer site, Licensee shall ensure that it has a
written agreement with such entity which is at least as restrictive
as this Agreement in the protection of Vitria's rights in and to the
Products. On Vitria's written request, Licensee shall provide a copy
of all such agreements to Vitria.
Any Production Product licenses at the customer sites must be
managed, installed, maintained and under the control of the Licensee
(and may be either directly, or indirectly through the Host Site) at
all times.
2.1.2 The Licensee may make two (2) copies of the Products for archival or
backup purposes. All archival and backup copies are subject to the
provisions of this Agreement and all titles, trademarks, and
copyright and restricted rights notices shall be reproduced in such
copies.
* Confidential Treatment Requested
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2.1.3 The number of Designated Developers, the number of Servers and the
particular Client and Server Environment(s) on which the Products
may be used are limited as set forth in the applicable Order Form.
2.1.4 [...***...]
In order to qualify a referral, Licensee must (i) register the
Software sales opportunity with the appropriate Vitria Regional
Manager and (ii) obtain approval using the Qualifying Order Form
attached as Exhibit C to this Agreement.
[...***...]
2.2 License Restrictions
2.2.1 Transfer. A Product may be transferred to another Licensee location
within the United States and Canada upon written notice to Vitria.
Transfer of a Product outside the United States and Canada shall be
permitted only with Vitria's prior written consent An additional
license fee will be due for a transfer of any Product to a Client
Environment or Server Environment not previously licensed by the
Licensee.
2.2.2 Licensee shall not cause or permit the reverse engineering,
disassembly, or decompilation of the Products.
2.2.3 The Products may be used solely to integrate Licensee's customer's
applications that are installed at a Host Site or customer's site
solely on the Server Environments and Client Environments designated
on the applicable Order Form. Licensee shall ensure that no third
parties, including but not limited to Licensee's customers, have any
rights to access or use the Product licenses designated as
"Development" licenses as set forth in Exhibit A. Any breach by the
Host Site or any of Licensee's customers of the terms of this
Agreement will be considered a breach of this Agreement by Licensee.
2.2.4 Licensee shall not permit any parent, subsidiaries, affiliated
entities or third parties to use the Products except as set forth in
this Section 2.
2.3 Verification. On Vitria's reasonable request, but not more frequently than
semi-annually, the Licensee shall furnish Vitria with a signed statement
verifying that the Products are being used pursuant to the provisions of
this Agreement, and identifying the scope of Licensee's use of the
Products as reasonably requested by Vitria, including without limitation
the Client Environment(s), Server Environment(s) and RDBMS's used by
Licensee, and the number of Designated Developers and users.
2.4. Redistribution of the Site Products.
2.4.1 Vitria shall enable Licensee, through the Vitria FTP site, to
download the designated number of copies of the Site Products for
sublicensing to its designated Trading Partners. As a convenience to
Licensee, and on Licensee's written Notice to Vitria, Vitria will
secure the standard Vitria software licensing agreement directly
with the designated Trading Partner and effect delivery of the Site
Products to the Trading Partner directly from Vitria. Licensee
agrees that certain connectors set forth in Exhibit A may not be
generally commercially available from Vitria as of the Effective
Date, Licensee's receipt of the Connector SDK shall satisfy Vitria's
* Confidential Treatment Requested
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obligation of delivery. If and when additional Connectors listed in
Exhibit A become generally commercially available from Vitria,
trading Partner and Licensee shall be entitled, upon written request
to Vitria, to obtain a license for the named Connector at no
additional fee, [...***...] or [...***...] owed by [...***...]
Prior to any sublicensing by Licensee to a Trading Partner, Licensee
shall ensure that it has a fully executed sublicensing agreement
between such Trading Partner and Licensee in the form and format,
and at least as restrictive as, the Agreement. On Licensee's request
to the Vitria Contracts Manager, Vitria will deliver an electronic
copy of its then current software license agreement to Trading
Partner. Further, for any sublicense agreement directly from the
Licensee to a Trading Partner, Licensee shall ensure that the
license of the Site Product (i) is restricted to use by the Trading
Partner solely for use of automating business processes, between an
internal Trading Partner system and the Licensee, and such Trading
Partner Site Server may not be used by the Trading Partner to
integrate Trading Partner's internal systems or business processes
or for the purpose of hosting, and (ii) may be terminated by
Licensee on 30 days Notice in accordance with Section 2.5. Any
breach of the sublicense agreement by Trading Partner shall be
considered by Vitria to be a breach by Licensee of this Agreement.
Licensee shall promptly Vitria with Notice of any such breach.
2.5 Termination of the Site Product Sublicense Agreements.
If Licensee, in its sole discretion determines that the business model for
the Licensee-to-Trading Partner relationship should be terminated,
Licensee shall give 30 days written Notice to Vitria. Upon such Notice,
Vitria shall terminate all license agreements with the Trading Partners
that it has licensed directly for the Trading Partner Site Server and
Licensee shall terminate all sublicense agreements with the Trading
Partners for the Trading Partner Site Server. Trading Partners shall be
instructed by Licensee and Vitria to return or destroy all copies of the
Trading Partner Site Server bundles in accordance with the applicable
agreement with such Trading Partner.
3. INVOICING, PAYMENT AND TAXES
3.1 Invoicing and Payment
3.1.1 Invoices for payment of all license fees, first year Support Fees or
other fees shall be payable on the dates as set forth in the
applicable Order Form. Unless specified otherwise in an Order Form,
invoices are due and payable net 45 days from Vitria's invoice date.
Licensee will provide Vitria with a written purchase order for
Product licenses and Standard Technical Support Services at the time
of execution of an Order Form. Within 5 days after the Effective
Date of this Agreement, the applicable Order Form and payment to
Vitria of the associated license fees, Support Fees or other fees
set forth in the Order Form, Vitria shall provide access to the
Vitria FTP site to enable Licensee to download the licensed Products
and Documentation.
3.1.2 All fees shall be deemed overdue if they remain unpaid [...***...]
days after they become payable. All overdue amounts shall bear
interest at the rate of one and [...***...] per month or the maximum
legal rate, if less, however, nothing herein shall limit Vitria's
right to terminate this Agreement under Section 6.
3.1.3 Payments shall be in United States dollars. Costs of conversion,
outside collection and related bank charges shall be paid by
Licensee. All shipments by Vitria shall be F.O.B. origin.
3.1.4 If the Licensee's procedures require that an invoice be submitted
against a purchase order before payment can be made, the Licensee
will be responsible for issuing such purchase order [...***...] days
before the payment due date.
3.1.5 Licensee shall reimburse Vitria for all reasonable costs incurred
(including reasonable attorneys' fees) in collecting past due
amounts.
3.1.6 The fees listed in this Agreement do not include taxes; therefore,
Licensee shall be responsible for all taxes, tariffs and
transportation costs related to this Agreement (including
* Confidential Treatment Requested
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any value added or sales taxes) other than taxes on Vitria's income.
The Licensee shall pay or reimburse Vitria for all sales, use,
excise, personal property, value-added, or other federal, state or
local taxes, duties, or any similar assessments based on the
licenses granted or the services provided under this Agreement or on
the Licensee's use of the Products.
4. SERVICES
4.1 Standard Technical Support Services
4.1.1 So long as Vitria continues to offer similar support services to its
other Product licensees, and subject to payment by the Licensee of
the applicable Standard Technical Support Fees, Vitria will provide
annual Standard Technical Support for Supported Licenses as follows
in accordance with the terms set forth in Exhibit B.
4.1.2 Vitria will provide telephone consultation at Vitria's service
location, to assist the Licensee in identifying, verifying and
resolving problems in the use and operation of the Product.
Telephone assistance services shall be limited to those Licensee
personnel indicated in the Order Form, as amended from time to time
by Licensee upon written notice to Vitria.
4.2 Consulting and Training Services
4.2.1 Licensee may order on-site consulting services from Vitria at
Vitria's then-standard consulting rates in accordance with Vitria's
then standard Professional Services Agreement. Any scheduled service
dates will be agreed upon mutually, subject to availability of
Vitria personnel.
4.2.2 Licensee may schedule and enroll in Vitria's standard training
courses provided by Vitria. Such training courses shall be rendered
in accordance with and subject to the terms of this Agreement . All
consulting and training services must be utilized by Licensee within
six (6) months following the date ordered by Licensee.
4.2.3 Unless otherwise agreed to by the parties in writing, Vitria
consulting services will be limited to transferring knowledge to and
mentoring Licensee's staff on "best practices" concerning the
Products, and reviewing and providing input on Licensee's design and
implementation of applications developed and deployed using the
Products. Development and deployment of Licensee's applications will
remain at all times under Licensee's control and direction. Ultimate
responsibility for development and deployment of such applications
is with Licensee, and Vitria will not be liable to Licensee or any
third party for any delay in completion or noncompletion of any
Licensee application.
5. OWNERSHIP AND NONDISCLOSURE
5.1 Ownership
5.1.1 Licensee acquires only the right to use the Products and
Documentation, and does not acquire any rights of ownership. All
rights, title, and interest in and to the Products and
Documentation, including without limitation all intellectual
property rights therein, shall at all times remain with Vitria and
its licensors.
5.1.2 Applications and other software that Licensee develops using the
Products, and all changes or modifications to such applications and
other software, will remain the sole property of Licensee. Vitria
shall have no interest in such applications or other software or
such changes or modifications.
5.2 Nondisclosure
5.2.1 The parties agree, on behalf of themselves, their affiliated
companies, and their employees, independent contractors and
consultants, that they shall not use, except as otherwise expressly
permitted hereunder, or disclose to any third person, including any
of its affiliates, or to any employee of the receiving party without
a need to know, either during or after the term of this Agreement,
any Confidential Information.
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5.2.2 The parties and their respective employees, independent contractors
and consultants shall use the same degree of care as used to protect
its own confidential information of a similar nature, but in no
event less than reasonable care, to avoid disclosure of Confidential
Information.
5.2.3 In the event of a breach of this Section 5.2, money damages will not
be an adequate remedy, and therefore, in addition to any other legal
or equitable remedies, the disclosing party shall be entitled to
seek an injunction or other equitable relief against such breach
without necessity of posting bond or security, which is expressly
waived.
5.3 Authorized Disclosure. Either party may disclose the general existence and
nature of this Agreement, but may not disclose the specific terms of this
Agreement without the prior consent of the other party.
6. TERM AND TERMINATION
6.1 Term. This Agreement and each license granted hereunder shall continue in
perpetuity, unless terminated as provided in Paragraph 6.2 below or
otherwise agreed by the parties.
6.2 Termination. The Licensee may terminate this Agreement or any license at
any time. Vitria may terminate this Agreement or any license upon written
notice if the Licensee breaches this Agreement and fails to correct the
breach within thirty (30) days following written notice specifying the
breach.
6.3 Effect of Termination. The termination of this Agreement or any license
shall not limit either party from pursuing any other remedies available to
it, including injunctive relief, nor shall such termination relieve the
Licensee's obligation to pay all fees that accrued prior to such
termination.
6.4 Return of Products upon Termination. Upon termination of any license
granted under this Agreement, the Licensee shall (i) cease using the
applicable Products, and (ii) represent in writing to Vitria within one
month after termination that the Licensee has destroyed or has returned to
Vitria the Products, Documentation and all copies. This requirement
applies to copies and storage in all forms, partial and complete, in all
types of media and computer memory, and whether or not modified or merged
into other materials.
7. WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
7.1 Infringement Indemnity
7.1.1 Vitria will defend and indemnify the Licensee against all costs
(including reasonable attorneys' fees and subject to provisions of
Section 7.6) arising from a claim that Products furnished and used
within the scope of this Agreement infringe a United States
copyright or United States patent provided that (i) the Licensee
notifies Vitria in writing within 30 days of the claim, (ii) Vitria
has sole control of the defense and all related settlement
negotiations, and (iii) the Licensee provides Vitria with the
assistance, information, and authority necessary to perform the
above; reasonable out-of-pocket expenses incurred by the Licensee in
providing such assistance will be reimbursed by Vitria.
7.1.2 Vitria shall have no liability for any claim of infringement based
on (i) use of a superseded or altered release of Products if such
infringement would have been avoided by the use of a current
unaltered release of the Products that Vitria provides to the
Licensee, or (ii) the combination, operation, or use of any Products
furnished under this Agreement with programs or data not furnished
by Vitria if such infringement would have been avoided by the use of
the Products without such programs or data.
7.1.3 In the event the Products are held or are believed by Vitria to
infringe, Vitria may, at its sole option, and at its expense, to (i)
modify the Products to be non-infringing, (ii) obtain for the
Licensee a license to continue using the Products, (iii) substitute
the Products with other software reasonably suitable to Licensee, or
(iv) terminate the license for the infringing Products and refund
the license fees paid for those Products. This Section 7.1 states
Vitria's entire liability for infringement.
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7.2 Product Warranty
7.2.1 Except as stated below, for each Supported License Vitria warrants
that each Product will perform the functions described in the
associated Documentation when operated on the specified platform for
a period of 30 days from the date of shipment of such Product to
Licensee.
7.2.2 Vitria does not warrant that each Product will meet Licensee's
requirements, that the Products will operate in the combinations
which Licensee may select for use or with all non-Vitria software
used by Licensee, that the operation of each Product will be
uninterrupted or error-free, or that all Product errors will be
corrected. Vitria will undertake to correct any reported error
condition in accordance with its then-current Standard Technical
Support policies. Vitria shall have no obligation to undertake
correction of errors caused by Licensee modifications to the
Product. Licensee's sole and exclusive remedy for Product
nonconformity shall be recovery of the license fees paid to Vitria
for such nonconforming Product.
7.2.3 As an accommodation to the Licensee, Vitria may supply the Licensee
with (i) preproduction releases of Products labeled "Alpha," "Beta"
or otherwise, which are not suitable for production use, and (ii)
shareware items containing code developed by Vitria and/or its
Licensees and partners. Notwithstanding anything to the contrary in
this Agreement, such preproduction releases and shareware are
provided to Licensee "as is" without warranty of any kind, express
or implied, and neither party will be responsible to the other for
any losses, claims or damages of whatever nature arising out of
Licensee's use of such items. Standard Technical Support does not
include support or updating of shareware items. Licensee will
promptly report any error condition discovered in a preproduction
release, and provide Vitria with appropriate test data if necessary
to resolve problems encountered by Licensee with a preproduction
release.
7.3 Media Warranty. Vitria warrants all media delivered to Licensee to be free
of defects in materials and workmanship under normal use for 90 days from
the Effective Date. Replacement of media without charge is the Licensee's
sole and exclusive remedy in the event of a media defect.
7.4 Services Warranty. Vitria warrants that its Standard Technical Support,
consulting and other services will be of a professional quality conforming
to generally accepted industry standards and practices. This warranty
shall be valid for 90 days from completion of service. For any breach of
the above warranty, Licensee's exclusive remedy and Vitria's entire
liability shall be (i) the re-performance of the services, or (ii) if
Vitria is unable to perform the services as warranted, recovery of the
fees paid to Vitria for such deficient services.
7.5 Limitations of Warranties. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU
OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.6 Limitation of Liability. IN NO EVENT SHALL VITRIA BE LIABLE FOR LOSS OF
PROFITS, REVENUE OR PRODUCT USE, OR LOSS OR INACCURACY OF DATA, AND IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN
IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT WITH RESPECT TO SECTION 7.1, VITRIA'S LIABILITY FOR DAMAGES
HEREUNDER, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A
WARRANTY, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY THE LICENSEE
UNDER THIS AGREEMENT FOR THE RELEVANT LICENSE OR SERVICE. IF SUCH DAMAGES
RESULT FROM THE LICENSEE'S USE OF A PRODUCT, SUCH LIABILITY SHALL BE
LIMITED TO LICENSE FEES PAID BY THE LICENSEE FOR THE RELEVANT PRODUCT.
7.7 Year 2000 Compliance. Vitria confirms that Product will record, store,
process and present calendar dates falling on or after January 1, 2000, in
the same manner and with the same functionality as it performed before
January 1, 2000 and that such Software will be interoperable with other
software provided that such other software functions in accordance with
its specifications
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and stores, processes and presents calendar dates falling on or after
January 1, 2000 in the same manner and with the same functionality as it
performed before January 1, 2000.
7.8 The provisions of this Section 7 allocate the risks under this Agreement
between Vitria and the Licensee. Vitria's pricing reflects this allocation
of risk and the limitation of liability specified herein.
8. GENERAL TERMS
8.1 Appendices; Counterparts. All recitals and appendices are hereby
incorporated into this Agreement. This Agreement may be executed in any
number of counterparts and/or duplicate originals.
8.2 Assignment. Licensee may not assign this Agreement without the prior
written consent of Vitria, which consent will not be unreasonably
withheld. Any purported assignment in contravention of this section is
null and void. A transfer of a controlling interest in the equity of
Licensee shall be deemed an assignment for purposes of this subsection.
Subject to the foregoing, this Agreement will bind and inure to the
benefit of any successors or assigns.
8.3 Attorney's Fees. The prevailing party in any suit under this Agreement
shall recover all costs, expenses and reasonable attorney fees incurred in
such action.
8.4 Controversies. Before either party commences any action against the other
party, it shall give written notice to the other party of its intention to
file a claim, and the senior management of the parties then shall meet in
good faith to resolve the dispute.
8.5 Definitions and Section Headings. Singular terms shall be construed as
plural, and vice versa, where the context requires. Section headings are a
matter of convenience and shall not be considered part of this Agreement.
8.6 Entire Agreement. This Agreement is the complete and exclusive statement
of the understandings of the parties, and it supersedes and merges all
prior proposals and understandings, whether oral or written, relating to
the subject matter of this Agreement. This Agreement may not be modified
except in writing, signed by an officer of Vitria and a duly authorized
representative of Licensee, and expressly referring to this Agreement.
This Agreement takes precedence over any purchase order issued by either
party, which may be accepted by the other party for administrative
convenience only.
8.7 Export. The parties shall comply with the Export Laws. Neither party will
export or re-export directly or indirectly (including via remote access)
any part of the Deliverables, or any Confidential Information to any
country for which a validated license is required under the Export Laws
without first obtaining a validated license.
8.8 Force Majeure. Neither party will be responsible for failure of
performance, other than for an obligation to pay money, due to causes
beyond its control, including, without limitation, acts of God or nature;
labor disputes; sovereign acts of any federal, state or foreign
government; or shortage of materials.
8.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, but without giving
any effect to the choice of law principles thereunder.
8.10 Independent Contractors; Nonexclusive. Vitria and Licensee are independent
contractors and will so represent themselves in all regards. Neither party
may bind the other in any way. Nothing in this Agreement will be construed
to make either party the agent or legal representative of the other or to
make the parties partners or joint venturers.
8.11 Notices. Notices will be delivered to a party's address stated in the
signature block of this Agreement, or to another address which a party
properly notified the other that notices should be sent.
8.12 Restricted Rights. The Vitria software provided to Licensee hereunder are
"commercial items" as that term is defined at 48 C.F.R. 2.101 (October
1995) consisting of "commercial computer software" and "commercial
computer software documentation" as such terms are used in 48 C.F.R.
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12.212 (Sept 1995) and are provided to the U.S. Government only as a
commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202 (June 1995), all U.S. Government End Users acquire the Vitria
software and its associated documentation with only those rights set forth
therein.
8.13 Severability. If any provision of this Agreement is found by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of
the Agreement shall continue in full force and effect. However, should
either party reasonably conclude that a provision held to be invalid or
unenforceable was a material inducement to its entering into this
Agreement, and the loss of that provision has deprived it of the benefit
of the bargain reached upon execution of this Agreement, then that party
may, upon 10 days prior written notice, terminate this Agreement.
8.14 Waiver. The waiver of one breach or default shall not constitute the
waiver of any subsequent breach or default, and shall not act to amend or
negate the rights of any party.
LICENSEE: XXXXXXX.XXX, INC. VITRIA:
ADDRESS: Vitria Technology, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Main Phone 000 000-0000
/s/ XXXXXX X. XXXXXX
-------------------------------- -------------------------------------
Signature Signature
Xxxxxx Xxxxxx, CEO
-------------------------------- -------------------------------------
Printed Name/Title Printed Name/Title
12-17-99
-------------------------------- -------------------------------------
Date Date
Vitria-Contracts/Legal approval:
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MAINTENANCE SERVICES
TERMS AND CONDITIONS
This attachment relates to and is incorporated into the above-referenced
Software License Agreement between Vitria Technology Inc. and the named Licensee
(the "Agreement"). Capitalized terms not specifically defined below have the
same meaning as in the Agreement.
1. MAINTENANCE SERVICES
In consideration for the fees described in Section 4 below, Vitria will provide
the services described below ("Maintenance Services").
(a) Technical Support. During normal business hours (8:00 a.m. to 6:00 p.m.
Pacific Time, except Vitria published holidays) Vitria shall provide Licensee
technical support for the installation and use of the Software, the
identification of Software and/or Documentation problems and the reporting of
Bugs. Licensee shall designate two (Expert level support) or four (Enterprise
level support) technical contacts to request and receive support services from
Vitria. Additional Licensee contacts can be designated in the Product Schedule
for Vitria's then current fee. Licensee shall notify Vitria in writing of any
changes to the designated Licensee contacts.
(b) Software Updates. Vitria will make available to Licensee each minor and
major functional release of the Software. These releases are generally available
without additional charge to its maintenance customers and which is intended to
replace a prior Software release. A major functional release is indicated by a
change in the first digit of a version number, i.e. from 4.0.0 to 5.0.0; a minor
functional release is indicated by a change in the second digit, i.e. from 4.0.0
to 4.1.0. Maintenance releases, which are indicated by a change in the third
digit of a version number, i.e. from 5.0.1 to 5.0.2, are provided as needed in
response to Licensee inquiry.
(c) Bug Fixes. Vitria shall exercise commercially reasonable efforts to correct
any reproducible malfunction of the Software reported to Vitria by Licensee that
prevents the Software from performing in accordance with the operating
specifications described in the then current Documentation (a "Bug").
2. CONDITIONS OF SERVICE
(a) Retirement of Releases. Vitria provides Maintenance Services for a Software
product version from the date the version becomes generally available until such
version is retired. Vitria retires prior commercial releases of the Software as
follows: (i) one month after the commercial release of the subsequent
maintenance release; (ii) no sooner than six (6) months after the commercial
release of a new minor functional release; (iii) no sooner than twelve (12)
months after the commercial release of a new major functional release. In all
cases, Vitria will provide support services with respect to questions regarding
the "how-to" use of a retired release of the Software for twelve (12) months
following its retirement.
(b) Use of Software. Licensee's use of any Software provided by Vitria as part
of Maintenance Services shall be governed by the terms of the Agreement. Vitria
may change the services included in Maintenance Service at any time, effective
as of the commencement of any renewal period.
3. TERM AND TERMINATION
(a) Term. Maintenance Service shall be provided for a term of one (1) year from
the delivery date of Software under Licensee's initial Product Schedule and
shall be extended each year for one (1) additional year unless terminated by
either party as provided herein.
(b) Termination. Licensee may terminate Maintenance Service at the end of the
term by giving written notice to Vitria at least thirty (30) days prior to the
end of any such term. Vitria may suspend or cancel Maintenance Service if
Licensee fails to make payment pursuant to Section 4 below. Either party may
terminate Maintenance Service if the other party breaches any of the Maintenance
Service terms and conditions and the breach is not remedied within thirty (30)
days after receiving written notice of the breach. In the event the Agreement is
terminated, Maintenance Service will also terminate automatically.
4. FEES AND PAYMENT
11
(a) Fees. The fee for the first year of Maintenance Service for any Software
licensed is specified in the applicable Product Pricing Schedule. The
applicable fee for any renewal period shall be Vitria's then prevailing price.
For Software licensed after Licensee's initial order, the term of Maintenance
Service will be set, and the fee will be pro-rated, so that the coverage
periods for all Software licensed to Licensee and covered by Maintenance
Services will coincide. When ordered, Maintenance Service must be ordered for
all of the Software on a Product.
(b) Payment. Maintenance Service fees will be billed on an annual basis,
payable in advance and due within [...***...] days of the date of invoice.
(c) Lapse of Coverage. In the event that coverage for Maintenance Service
lapses as a result of termination by Licensee for any reason or by Vitria for
Licensee's non-payment, renewal of such service will require payment by
Licensee of a reinstatement fee to Vitria equal to [...***...] of the sum of
the fees for any previously unpaid contract period(s) plus full payment for the
pending annual period.
5. EXCLUSIONS. Vitria shall have no obligation to support:
(a) Software modified without Vitria's written consent;
(b) Use of the Software other than in accordance with the Documentation;
(c) Software installed on any computer hardware or in combination with other
software, except as specified in the Documentation.
6. LIMITATION OF LIABILITY. Vitria's aggregate liability for damages from any
cause of action whatsoever relating to Vitria's obligations to provide
Maintenance Service shall by limited to the amount paid by Licensee for such
services for the applicable year. Vitria's liability shall be further limited
as provided in the Agreement.
7. SERVICE CONTRACT. THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT
AND NOT A PRODUCT WARRANTY. THIS ATTACHMENT IS AN ADDITIONAL PART OF THE
AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO
THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.
Targeted Accelerated Response Times: (excluding Vitria's holidays)
-------------------------------------------------------------------------------
Priority Failure Description Initial Response Time Status
Expert Enterprise Updates
-------------------------------------------------------------------------------
1 1 Enterprise-critical
(Product is not functioning) 2 business 1 business By customer
hours hours agreement
-------------------------------------------------------------------------------
2 Severe Impact - Product 4 business 2 business Once per
inconsistency which signifi- hours hours business day
cantly decreases Customer
productivity (periodic work
stoppages, feature crashes)
-------------------------------------------------------------------------------
3 Degraded Operations: Product 8 business 4 business Once every
inconsistency which slightly hours hours 3 business
impairs customer productivity days
(Customer can work around
problem)
-------------------------------------------------------------------------------
4 Minimal Impact: desired change next next Release
in Product (documentation business business notes or
update, cosmetic defects, day day plan for
enhancement requests) next release
-------------------------------------------------------------------------------
* CONFIDENTIAL TREATMENT REQUESTED
12
[Schedules Omitted]
