Exhibit 10.19
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement ("Agreement") is made and
entered into as of this 22nd day of July, 1998, between BroadVision, Inc.
("BroadVision") and
Company USinternetworking
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("Customer"),
Address One USi Plaza
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Xxxxxxxxx, XX 00000-0000
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in consideration of the mutual covenants and conditions contained in this
Agreement, the parties agree as stated herein. The following attachments,
required when applicable, are also part of this Agreement:
A. Current Licensing Practices
B. Required Provisions of Sublicenses
C. [omitted]
D. [omitted]
E. Business Terms
1. LICENSE
A. BroadVision hereby grants to Customer a perpetual (unless
terminated as set forth herein), nonexeclusive, and nontransferable license,
subject to the terms and conditions of this Agreement, to use the object code
for the Software. For the purpose of this Agreement, "Software" shall mean
all versions, including current, previous, and subsequent versions, of all
software products, together with operating instructions, user manuals,
training material, and other documentation as may, in BroadVision's sole
discretion, be supplied to Customer.
B. Customer may use the Software in accordance with BroadVision's
published licensing practices in force at the time of delivery of the
applicable Software products. BroadVision's current licensing practices are
as set forth in Attachment A.
C. Customer may not (a) rent, lease, or loan the Software; (b)
electronically transmit the Software over a network except as necessary for
Customer's licensed use of the Software; (c) use run-time versions of
third-party products embedded in the Software, if any, for any use other than
the intended use of the Software, (d) modify, disassemble, decompile, or
reverse engineer the Software; (e) transfer possession of any copy of the
Software to another party, except as expressly permitted herein; or (f) use
the Software in any way not expressly provided for in this Agreement. There
are no implied licenses. Customer agrees not to exceed the scope of the
licenses granted herein.
D. BroadVision also grants to Customer the right to grant
nontransferable sublicenses to portions of the Software, where such grants
are explicity permitted by BroadVision's licensing practices. Customer shall
require each such sublicensee, before it may use or install the sublicensed
Software, to execute a written license agreement containing, at a minimum,
the required provisions specified in Attachment B. Customer shall indemnify
BroadVision for all losses, costs, damages, expenses, and liabilities caused
by a sublicensee's failure to honor the terms of such sublicense, or by
Customer's failure to include required terms in its sublicense agreements
with its sublicenses.
2. PAYMENT, PRICES.
A. Invoices shall be issued upon delivery of the products or
services, unless specified herein to the contrary, and shall be due and
payable in United States currency upon receipt by Customer. Payment shall be
overdue thirty (30) days after the delivery date specified on the invoice.
Overdue payments shall be subject to a finance charge of one and one-half
percent (1 1/2%) for each month or fraction thereof that the invoice is
overdue, or the highest interest rate permitted by applicable law, whichever
is lower. BroadVision shall also be reimbursed for its collection costs in
the event of late payments, including reasonable attorney's fees.
B. Software will be shipped POB BroadVision's facility in Redwood
City, California, U.S.A., by commercial surface transportation.
Transportation charges in excess of such rates will be billed to Customer.
Software shall be deemed accepted upon delivery.
C. The prices stated in BroadVision quotations are exclusive of any
federal, state, municipal, value-added, foreign withholding or other
governmental taxes, duties, fees, excises, or tariffs now or hereafter
imported on the production, storage, licensing, tale, transportation, import,
expect or use of the Software or any improvements, alterations, or amendments
to the Software. Customer shall be responsible for, and if necessary
reimburse, BroadVision for all such taxes, duties, fees, excises, or tariffs,
except for governmental or
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[CONFIDENTIAL TREATMENT] means that certain confidential information has
been deleted from this document and filed separately with the Securities
and Exchange Commission.
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local taxes imposed on BroadVision's corporate net income.
3. SOFTWARE MAINTENANCE
A. BroadVision agrees to provide Customer with software maintenance
subject to the following provisions and conditions:
i. At Customer's request, BroadVision shall provide software
maintenance at prices to be quoted to Customer. Software maintenance shall
include (i) telephone and electronic mail support provided during
BroadVision's normal working hours, and (ii) standard releases containing
improvements or modifications to the Software, where such improvements or
modifications are not priced as separate new products or options ("Standard
Release").
ii. BroadVision shall provide software maintenance for any
Standard Release until 180 days after shipment of the subsequent Standard
Release.
iii. Customer shall designate one or, with BroadVision's prior
written approval, more than one Support Contact Person, who shall be
responsible for communicating support issues to BroadVision. Customer agrees
to provide BroadVision with timely written notification containing all
details of software problems necessary for BroadVision to diagnose such
problems. Customer agrees to cooperate fully in providing BroadVision with
Customer's source code, in machine-readable form, and order materials
necessary to reproduce a reported software problem. Subject to Customer's
security requirements, Customer agrees to provide BroadVision reasonable
direct or remote access and test time on Customer's BroadVision system, for
the purpose of diagnosing reported software problems. If BroadVision provides
on-site services at Customer's request in connection with software
maintenance, Customer shall reimburse BroadVision for all travel and other
reasonable out-of-pocket expenses incurred with respect to such services.
iv. Software maintenance may also include any patch releases
("Patch Releases") that BroadVision, in its sole discretion, makes available.
Patch Releases are intended to address material deviations between the
Software and its published specifications until a Standard Release can be
made available. Customer may install Patch Releases at its option.
v. BroadVision shall not be responsible for maintaining Software
that fails to comply with its published specifications if such noncompliance
is the result of modification of the Software by Customer or third parties.
If BroadVision expands its time on a noncompliance found to be the result of
any of the preceding, Customer shall pay BroadVision for such time at
BroadVision's then-current hourly consulting rate.
B. Unless terminated by either party with at least ninety days
notice, software maintenance will automatically be renewed for successive
one-year periods at BroadVision's then-current prices for software
maintenance. In the event of termination for Customer's breach or Customer's
convenience, all maintenance fees shall be immediately due and payable
without notice; in the event of termination for any other reason, Customer
shall be entitled to a refund of maintenance fees already paid, prorated for
the unused portion of such fees.
C. Annual software maintenance renewal fees are due and payable in
advance; in all other respects payments are subject to the terms and
conditions of the Agreement.
D. If Customer initially declines software maintenance and then
subsequently elects to commence maintenance, or if maintenance for an item of
Software is discontinued at Customer's request and then subsequently renewed,
Customer shall pay the maintenance fees that would have been due for the
period during which maintenance was not provided.
4. TITLE TO SOFTWARE.
A. Customer shall include BroadVision's copyright or proprietary
rights notice on any copies of the software or associated documentation,
including copyright or proprietary rights notices of third parties that are
included on media or in documentation provided by BroadVision. Customer
acknowledges that the Software is the property of BroadVision or its
licensors.
B. Unless otherwise requested by BroadVision, Customer shall ensure
that the phrases, "Personalized by BroadVision One-To-One" shall appear
prominently on the logon screen, splash screen, or other first view of the
Customer's application seen by consumers or other end-users when they enter
such application. The above
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phrase shall be a hypertext link to a URL specified by BroadVision.
Customer's use of the phrase shall be in accordance with BroadVision's
guidelines for use of the xxxx.
5. WARRANTY.
BroadVision warrants that the Software will conform in all material
respects to its written specifications when installed and for 90 days
thereafter. For purposes of this Agreement, the sole source of such
specifications shall be BroadVision's written user documentation. Customer
will notify BroadVision within 10 days after the expiration of the warranty
period of any other nonconformity. Where a material nonconformity exists
within the warranty period, and proper notice has been given to BroadVision,
BroadVision will, as its sole and exclusive liability to Customer, use due
diligence to correct the nonconformity and provide Customer with one copy of
any such corrected version of the Software, or, if BroadVision is unable to
correct such nonconformances within a reasonable period of time, refund all
license fees paid to it for the Software, or the most recent software
maintenance fee paid for the Software, if the nonconformity relates to a
Standard Release delivered pursuant to Section 3 herein. THIS WARRANTY IS IN
LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, AND
BROADVISION EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT.
6. LIMITATION OF LIABILITY.
BroadVision's liability to Customer under this Agreement or for any
other reason relating to the products and services provided under this
Agreement, including claims for contribution or indemnity, shall be limited
to the amount paid to BroadVision, or three (3) times such amount in the
event of claims made pursuant to Section 7 herein, under this Agreement,
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OR ANY REMEDY UNDER THIS
AGREEMENT, CUSTOMER AGREES THAT IN NO EVENT SHALL BROADVISION BE LIABLE FOR
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS
OF USE.
7. INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
BroadVision will defend any action against Customer claiming that
the Software constitutes infringement of a duly issued patent existing or
issued prior to the intital delivery date of the applicable Software,
copyright, trademark, or trade secret. BroadVision shall indemnify Customer
for any reasonable expense incurred by Customer in connection with the
foregoing. BroadVision's obligations under this section are conditioned upon
BroadVision having sole control of any such action, and upon Customer
notifying BroadVision immediately in writing of the claim and giving
authority, information, and assistance necessary to settle or defend such
claim. If the use of the Software infringes or is enjoined, or BroadVision
believes it is likely to infringe or be enjoined, BroadVision may, at its
sole option, (i) procure for Customer the right to continue use of the
licensed Software as furnished; (ii) replace the licensed Software; (iii)
modify the licensed Software to make it non-infringing, provided that the
Software still substantially conforms to the applicable specifications; or
(iv) if BroadVision, after using all commercially reasonable efforts, is
unable to accomplish the foregoing remedies, terminate the license and refund
the license fee for the Software, less a proportional adjustment for the time
the Software was used by Customer, equal to the ratio of the time elapsed
since the delivery date to five (5) years. The indemnity provided herein
shall not apply if the alleged Infringement arises from: (a) the use of other
than a currently supported, unaltered release of the licensed Software; (b)
the use of Software that has been modified or merged with other programs by
Customer; or (c) the use of the licensed Software in combination with
software or hardware not provided under this Agreement. The foregoing states
BroadVision's sole and exclusive liability for patent, copyright, or other
proprietary rights infringement.
8. CONFIDENTIALITY OF SOFTWARE AND DOCUMENTS.
A. Customer shall not reproduce, duplicate, copy, sell, or otherwise
disclose, or disseminate the Software, including operating instructions,
user manuals, and training materials, in any medium except as authorized
herein. Customer may make copies of the Software, in machine readable form,
only as is reasonably necessary for archival and backup purposes.
B. Customer expressly undertaken, using reasonable efforts not less
than it exercises for its own confidential materials, to retain in
confidence, and to require its employees or consultants to retain the
Software in confidence, and will make no use of such information, except
under the terms and during the existence of this Agreement, and only to the
extent that such use is necessary to Customer's employees or consultants in
the course of their employment.
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C. The provisions of this section shall survive the termination of
this Agreement for a period of five (5) years.
D. Customer shall not release the results of any benchmark of the
Software, or of any third party products embedded in the Software, without
BroadVision's prior written approval.
9. AUDIT RIGHTS.
At BroadVision's request, but in no event more than twice annually,
Customer shall provide BroadVision with a report detailing its use of the
Software. No more than once annually, BroadVision may, upon fifteen (15) days
prior written notice, audit Customer's records to ensure that license and
other fees have been properly paid in compliance with this Agreement. Any
such audit will be conducted during regular business hours at Customer's
offices and shall not interfere unreasonably with Customer's business
activities. If an audit reveals that Customer has underpaid its total fees by
more than five percent (5%), then Customer shall pay BroadVision's reasonable
costs of conducting the audit, in addition to the underpaid amount.
10. TERM/TERMINATION.
This Agreement is effective on the earlier of (i) the date of
shipment of the Software or (ii) the date set forth above, and continues
until terminated as provided herein, or by agreement of both parties.
BroadVision may terminate this Agreement upon: (a) any material breach of
this Agreement by Customer that is not cured within 10 days following written
notice thereof; or (b) failure by Customer to pay license fees for Software
under the payment terms specified in this Agreement or as stated on
BroadVision's invoice for such Software. Upon termination of this Agreement
for any of the above reasons, all licenses granted hereunder terminate and
Customer will immediately destroy the Software and all copies in any form.
Upon termination for any other reason, Customer may continue to use the
Software, provided that Sections 1, 2 (to the extent that any amounts are
owed to BroadVision as of the termination date), 4, 6, 7, 8, 9, and 11 shall
survive the termination of this Agreement, and BroadVision may terminate
Customer's use of the Software upon a material breach of any of the surviving
sections.
11. GENERAL.
A. WAIVER/AMENDMENT. No waiver, amendment, or modification of any
provision of this Agreement shall be effective unless in writing and signed
by the party against whom such waiver, amendment, or modification is sought
to be enforced. No failure or delay by either party in exercising any right,
power or remedy under this Agreement, except as specifically provided herein,
shall be deemed as a waiver of any such right, power, or remedy.
B. ASSIGNMENT. Either party may assign this Agreement to an entity
acquiring substantially all of its assets or merging with it, provided that
such assignee agree in writing to assume all obligations under this
Agreement. Except as set forth above, neither party may assign any of its
rights or delegate any of its obligations under this Agreement to any third
party without the express written consent of the other. Any attempted
assignment in violation of the foregoing shall be void and of no effect.
Subject to the above, this Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto.
C. DISPUTES. The rights of the parties hereunder shall be governed
by the laws of the State of California without giving effect to principles of
conflicts of laws. Any suits brought hereunder may be brought in the federal
or state courts in Santa Xxxxx County, California, and Customer submits to
the jurisdiction thereof. The parties expressly exclude the application of
the 1980 United Nations Convention on Contracts for the international Sale of
Goods, if applicable.
Customer acknowledges that the Software contains trade secrets,
the disclosure of which would cause substantial harm to BroadVision that
could not be remedied by the payment of damages along. Accordingly,
BroadVision will be entitled to preliminary and permanent injunctive relief
and other equitable relief for any breach of BroadVision's intellectual
property rights in the Software.
D. SEVERABILITY, if any provision of this Agreement shall be held by
a court of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement shall remain in full force and effect.
E. EXPORT. Customer acknowledges that the laws and regulations of
the United States restrict the export of the Software. Customer agrees that
it will not export or re-export the Software in any form without first
obtaining the appropriate United States and foreign government approvals.
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F. NOTICE. Any notice, consent, or other communication hereunder
shall be in writing, and shall be given personally, by confirmed fax or
express delivery to either party at their respective addresses:
(i) to BroadVision at:
BroadVision, Inc.
000 Xxxxxxxx
Xxxxxxx Xxxx, XX 00000, XXX
Attn: Chief Financial Officer
(ii) to Customer at:
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Attn:-------------------------
or such other address as may be designated by written notice of either party.
Notice shall be deemed given when delivered or transmitted, or seven days
after deposit in the mail.
G. INDEPENDENT CONTRACTORS. The parties' relationship shall be
solely that of independent contractor and nothing contained in this Agreement
shall be construed to make either party an agent, partner, joint venturer, or
representative of the other for any purpose.
H. FORCE MAJEURA. If the performance of this Agreement, or any
obligation hereunder, except the making of payments, is prevented,
restricted, or interfered with by reason of any act or condition beyond the
reasonable control of the affected party, the party so affected will be
excused from performance to the extent of such prevention, restricting, or
interference.
I. ENTIRE AGREEMENT. This Agreement, including all Attachments
hereto, constitutes the complete and exclusive agreement between the parties
with respect to the subject matter hereof and supersedes all proposals, oral,
or written, all previous negotiations, and all other communications between
the parties with respect to the subject matter hereof. The terms of this
Agreement shall provide notwithstanding any different, conflicting, or
additional terms that may appear in any purchase order or other Customer
document. All products and services delivered by BroadVision to Customer are
subject to the terms of this Agreement, unless specifically addressed in a
separate agreement.
Agreed to by: BroadVision, Inc.
/s/Xxxxxxx Xxxxxx
---------------------------------
Signature
Xxxxxxx Xxxxxx
---------------------------------
Printed Name
CFO
---------------------------------
Title
Customer: USinternetworking
---------------------------------
Company Name
/s/ Xxxxxxx X. XxXxxxx
---------------------------------
Signature
Xxxxxxx X. XxXxxxx
---------------------------------
Printed Name
President
---------------------------------
Title
ATTACHMENT A TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
BROADVISION LICENSING PRACTICES
BroadVision's current standard licensing practices are as follows for the
products listed below. These practices are in effect as of January 1, 1998.
- BROADVISION ONE-TO-ONE DEVELOPMENT SYSTEM - licensed on a per-user
basis. In other words, each INDIVIDUAL who will use the Development
System to develop BroadVision One-To-One applications must be
separately licensed.
- BROADVISION WEBAPPS - licensed on a per-user basis, similar to the
BroadVision One-To-One Development System. WebApps currently
available include One-To-One Commerce, One-To-One Financial, and
One-To-One Knowledge.
- BROADVISION ONE-TO-ONE DEPLOYMENT SYSTEM - licensing is based on
the maximum number of profiled users permitted to be tracked by
BroadVision One-To-One application.
- DYNAMIC COMMAND CENTER ("DCC") - licensed on a per-user basis. In
other words, each INDIVIDUAL using the DCC must be separately
licensed.
- CONTENT MANAGEMENT CENTER ("CMC") - licensed on a per-user basis,
similar to the DCC.
(NOTE: The DCC and the CMC may be sublicensed to third parties
using Customer's application software in accordance with the
terms of this Agreement.)
ATTACHMENT B TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
REQUIRED PROVISIONS OF SUBLICENSE AGREEMENTS
Each agreement sublicensing the Software entered into between Customer and
Customer's end-users ("End-Users", "End-User License") shall, at a minimum,
state the following:
a. End-Users shall have the right to duplicate the Software only for
backup or archival purposes and to transfer the Software to a
backup computer in the event of computer malfunction. End-Users
shall not make the Software available on any timesharing or other
rental arrangements. End-Users may not transfer their rights under
the End-User License agreement without BroadVision's permission.
b. End-Users shall not cause or permit the reverse engineering,
disassembly, or decompilation of the Software.
c. Title shall not pass to the End-User.
d. The End-User License agreement shall not include warranties,
express or implied, made on behalf of BroadVision.
e. BroadVision shall not be liable for any damages, whether direct,
indirect, incidental, or consequential, arising from the use of
the Software.
f. As the termination of the End-User License, the End-User shall
discontinue use and shall destroy or return the Software to
BroadVision, including all archival or other copies.
g. The End-User License shall state that BroadVision is a thirty-party
beneficiary of the End-User License.
h. The End-User shall not publish any result of benchmark tests run on
the Software.
i. The End-User shall comply fully with all relevant regulations of
the United States Department of Commerce and with the U.S. Export
Administration to assure that the Software is not exported in
violation of the code and regulations.
ATTACHMENT E
BUSINESS TERMS
This Attachment E is incorporated into the Software License and Services
Agreement (the "Agreement") dated the 22nd day of July, 1998 __between
BroadVision, Inc. ("BroadVision") and USINTERNETWORKING ("Partner"). The
terms and conditions contained herein are subject in all respects to the
terms and conditions of that Agreement, except that in the event of a
conflict between the terms of this Attachment E and the Agreement, the terms
of this Attachment E shall govern.
1. DEVELOPMENT LICENSES AND FEES: Partner agrees to purchase the following
development licenses:
_6_ Software Development Kits (SDKs) including One-To-One Knowledge;
One-To-One Commerce, One-To-One Financial, and the Dynamic Command
Center, at [CONFIDENTIAL TREATMENT] cash for a subtotal amount of
[CONFIDENTIAL TREATMENT].
_10_ Dynamic Command Centers (DCC) at [CONFIDENTIAL TREATMENT] each for
a subtotal amount of [CONFIDENTIAL TREATMENT].
_12_ Content Management Centers (CMC) at [CONFIDENTIAL TREATMENT] each for
a subtotal amount of [CONFIDENTIAL TREATMENT].
_3_ CPU deployment licenses at [CONFIDENTIAL TREATMENT] each for a
subtotal amount of [CONFIDENTIAL TREATMENT].
The above Development Licenses are discounted [CONFIDENTIAL TREATMENT]
for a subtotal of [CONFIDENTIAL TREATMENT]. Development licenses may be used
by Partner for training, demonstration, and development purposes. Development
SDK licenses are licensed on a "per developer" basis. These licenses may also
be used to develop systems for multiple projects, provided each licenses is
used by only one named developer.
In addition to the above Development Licenses purchased for
[CONFIDENTIAL TREATMENT]. Partner agrees to pre-pay [CONFIDENTIAL TREATMENT]
to purchase additional quantities of above products only, or as prepayment
against license fees, payable to BroadVision as a result of Partner hosting
applications for third parties using only the above products. This amount is
non-refundable and guaranteed. Partner will receive a [CONFIDENTIAL TREATMENT]
discount on the purchase price of such products. BroadVision agrees that
[CONFIDENTIAL TREATMENT] of the [CONFIDENTIAL TREATMENT] prepay will be spent
on marketing activities with an equal amount to be budgeted and spent by
Partner for marketing activities.
When the [CONFIDENTIAL TREATMENT] allotted for products of the
[CONFIDENTIAL TREATMENT] prepay has been depleted, Partner may purchase
additional BroadVision products. Amount paid for such products will include a
percentage discount off of BroadVision's then current local list price as
specified in the following table. BroadVision agrees that
[CONFIDENTIAL TREATMENT] of any additional net license fees will be set aside
for joint marketing activities, and partner agrees to set aside an equal
amount.
NET ADDITIONAL LICENSE FEES DISCOUNT OFF OF BROADVISION'S
PAID TO BROADVISION BY PARTNER LIST PRICE
---------------------------------- ----------------------------------
[CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT]
---------------------------------- ----------------------------------
[CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT]
---------------------------------- ----------------------------------
[CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT]
---------------------------------- ----------------------------------
2. MAINTENANCE AND TECHNICAL SUPPORT
Partner will be the primary contact for Maintenance and Support to users of
applications built using Software ("End-Users"). For licenses purchased on
behalf of End-Users, Partner will provide first-line support to End-Users of
the integrated value-added solution, and BroadVision will provide second-line
support to Partner. First line support is the provision of services across
the interface between the End-User and the supplier for all support and
maintenance related issues. Second line support is the provision of services
across the interface between the End-User and the integrator for all support
and maintenance related issues specifically where BroadVision products are
concerned. Partner will purchase maintenance, including "9x5" or "24x7"
support, for Software licenses at the price of [CONFIDENTIAL TREATMENT] of
the then current local list price at time of license purchase. If requested,
maintenance and technical support fees for "24x7" support are available and
are [CONFIDENTIAL TREATMENT] of the then current local list price at time of
license purchase. In the case where BroadVision supplies support directly to
the End-User, BroadVision charges [CONFIDENTIAL TREATMENT] for 9x5 support,
and [CONFIDENTIAL TREATMENT] for "24x7" support, of the then current local
list price at time of license purchase. For the initial purchase of
[CONFIDENTIAL TREATMENT] in net license fees, the maintenance charge will be
[CONFIDENTIAL TREATMENT], or [CONFIDENTIAL TREATMENT], for 9x5 support.
3. TRAINING
Sales training will be provided to partner at no additional cost. Technical
training may be purchased at a [CONFIDENTIAL TREATMENT] discount from
BroadVision.
4. PAYMENT
Payment of all initial fees for the amount of [CONFIDENTIAL TREATMENT], plus
applicable taxes on licenses of [CONFIDENTIAL TREATMENT], plus
[CONFIDENTIAL TREATMENT] in maintenance, will be terms net 30 days.
5. OTHER TERMS
Partner will inform BroadVision of sales activities regarding BroadVision
applications to prospects with annual revenues greater than
[CONFIDENTIAL TREATMENT]. Partner will purchase at least
[CONFIDENTIAL TREATMENT] of licenses for each new customer using a
BroadVision application. Partner may use BroadVision current list prices as
of the date of signing until December 31st, 1998. As of January 1st, 1999,
Partner must use any new BroadVision product price lists within 45 days of
BroadVision publishing and distributing new price lists to Partner. Once
Partner puts a user of a particular application/user license into production,
it is located into inventory. That application/user license is fungible in
that it can be assigned to another client end user, but the money in the pool
of funds is not. Partner cannot exchange client/user licenses of one type for
licenses of another type after they have been put into production. For
example, Partner cannot exchange One-To-One Commerce licenses for CPU
deployment licenses.
Agreed to by:
Partner: /s/ XXXXXXX X XXXXXXX BroadVision: /s/ XXXXXXX XXXXXX
---------------------- ------------------
Xxxxxxx X. XxXxxxx Xxxxxxx Xxxxxx
---------------------- ------------------
Name Name
President CFO
---------------------- ------------------
Title Title
[BROADVISION LETTERHEAD]
Xx. Xxxxxxx Xxxxxxxxx
USINTERNETWORKING
One USi Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
July 22nd, 1998
Dear Xxxxxxx,
Attachment E, "Business Terms" of the Software License and Services Agreement
dated July 22nd 1998 is amended to include the following statement which is
inserted in the second paragraph in Section 1, after the sentence "This amount
is non-refundable and guaranteed." Inserted sentence is as follows:
"Partner has unlimited use and quantities of above licenses upon request until
the prepay amount is depleted."
By signing and returning you agree to this amendment of Attachment E.
Sincerely,
USINTERNETWORKING: /s/ XXXXXXX X. XXXXXXXXX
-------------------------
Signature
/s/ XXXXXXX XXXXXX
------------------ Xxxxxxx X. Xxxxxxxxx
XXXXXXX XXXXXX -------------------------
CFO Printed Name
VP Product Development
-------------------------
Title
ATTACHMENT E
BUSINESS TERMS
This Attachment E is incorporated into the Software License and Services
Agreement (the "Agreement") dated the 30 day of September 1998 __ between
BroadVision, Inc. ("BroadVision") and USINTERNETWORKING ("Partner"). The
terms and conditions contained herein are subject in all respects to the
terms and conditions of that Agreement, except that in the event of a
conflict between the terms of this Attachment E and the Agreement, the terms
of this Attachment E shall govern.
1. DEVELOPMENT LICENSES AND FEES: Partner agrees to purchase the following
developmental licenses:
_11_ Software Development Kits (SDKs) including One-To-One
Knowledge, One-To-One Commerce, One-To-One Financial, and the
Dynamic Command Center, at [CONFIDENTIAL TREATMENT] each for
a subtotal amount [CONFIDENTIAL TREATMENT].
_10_ Dynamic Command Centers (DCC) at [CONFIDENTIAL TREATMENT]
each for a subtotal amount of [CONFIDENTIAL TREATMENT].
_12_ Content Management Centers (CMC) at [CONFIDENTIAL TREATMENT]
each for a subtotal amount of [CONFIDENTIAL TREATMENT].
_7_ CPU deployment licenses at [CONFIDENTIAL TREATMENT] each for a
subtotal amount of [CONFIDENTIAL TREATMENT].
The above Development Licenses are discounted [CONFIDENTIAL TREATMENT]
for a subtotal of [CONFIDENTIAL TREATMENT]. Development licenses may be used
by Partner for training, demonstration, and development purposes. Development
SDK licenses are licensed on a "per developer" basis. These licenses may also
be used to develop systems for multiple projects, provided each licenses is
used by only one named developer.
In addition to the above Development Licenses purchased for
[CONFIDENTIAL TREATMENT], Partner agrees to pre-pay [CONFIDENTIAL TREATMENT]
to purchase additional quantities of above products only, or as prepayment
against license fees, payable to BroadVision as a result of Partner hosting
applications for third parties using only the above products. This amount is
non-refundable and guaranteed. Partner will receive a [CONFIDENTIAL TREATMENT]
discount on the purchase price of such products. BroadVision agrees that
[CONFIDENTIAL TREATMENT] of the [CONFIDENTIAL TREATMENT] prepay will be spent
on marketing activities with an equal amount to be budgeted and spent by
Partner for marketing activities.
When the [CONFIDENTIAL TREATMENT] allotted for products of the
[CONFIDENTIAL TREATMENT] pre-pay has been depleted, Partner may purchase
additional BroadVision products. Amount paid for such products will include a
percentage discount off of BroadVision's then current local list price as
specified in the following table. BroadVision agrees that
[CONFIDENTIAL TREATMENT] of any additional net license fees will be set aside
for joint marketing activities, and partner agrees to set aside an equal
amount.
NET ADDITIONAL LICENSE FEES DISCOUNT OFF OF BROADVISION'S
PAID TO BROADVISION BY PARTNER LIST PRICE
---------------------------------- ----------------------------------
[CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT]
---------------------------------- ----------------------------------
[CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT]
---------------------------------- ----------------------------------
[CONFIDENTIAL TREATMENT] [CONFIDENTIAL TREATMENT]
---------------------------------- ----------------------------------
2. MAINTENANCE AND TECHNICAL SUPPORT
Partner will be the primary contact for Maintenace and Support to users of
applications built using Software ("End-User"). For licenses purchased on
behalf of End-Users, Partner will provide first-line support to End-Users of
the integrated value-added solution, and BroadVision will provide second-line
support to Partner. First line support is the provision of services across
the interface between the End-User and the supplier for all support and
maintenance related issues. Second line support is the provision of services
across the interface between the End-User and the integrator for all support
and maintenance related issues specifically where BroadVision products are
concerned. Partner will purchase maintenace, including "9x5" or "24x7"
support, for Software licenses at the price of [CONFIDENTIAL TREATMENT] of
the then current local list price at time of license purchase. If requested,
maintenance and technical support fees for "24x7" support are available and
are [CONFIDENTIAL TREATMENT] of the then current local list price at time of
license purchase. In the case where BroadVision supplies support directly to
the End-User, BroadVision charges [CONFIDENTIAL TREATMENT] for 9x5 support,
and [CONFIDENTIAL TREATMENT] for "24x7" support, of the then current local
list price at time of license purchase. For the initial purchase of
[CONFIDENTIAL TREATMENT] in net license fees, the maintenance charge will be
[CONFIDENTIAL TREATMENT], for 9x5 support. However, maintenance obligations
on SDKs will not commence until the licensed user (a) completes BroadVision
training or (b) commences using the SDK, whichever occurs first.
3. TRAINING
Sales training will be provided to partner at no additional cost. Technical
training may be purchased at a [CONFIDENTIAL TREATMENT] discount from
BroadVision.
4. PAYMENT
Payment of all initial fees for the amount of [CONFIDENTIAL TREATMENT], plus
applicable taxes on licenses of [CONFIDENTIAL TREATMENT], will be payable
[CONFIDENTIAL TREATMENT] immediately upon execution of this Agreement and the
balance on or before December 15, 1998.
5. OTHER TERMS
Partner will inform BroadVision of sales activities regarding hosting
BroadVision applications to prospects with annual revenues greater than
[CONFIDENTIAL TREATMENT]. Partner will purchase at least
[CONFIDENTIAL TREATMENT] of licenses for each new customer using a
BroadVision application. Partner may use BroadVision current list prices as
of the date of signing until December 31st, 1998. As of January 1st, 1999,
Partner must use any new BroadVision product price lists within 45 days of
BroadVision publishing and distributing new price lists to Partner. Once
Partner puts a user of a particular application/user license into production,
it is locked into inventory. That application/user license is fungible in
that it can be assigned to another client/end user, but the money in the pool
of funds is not. Partner cannot exchange client/user licenses of one type for
licenses of another type after they have been put into production. For
example, Partner cannot exchange One-To-One Commerce licenses for CPU
deployment licenses.
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Agreed to by:
Partner: /s/Xxxxxxx X. XxXxxxx BroadVision, /s/Xxxxxxx Xxxxxx
---------------------------- ---------------------
Signature Signature
Xxxxxxx X. XxXxxxx
---------------------------- ---------------------
Name Name
President CFO
---------------------------- ---------------------
Title Title
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