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EXHIBIT 10.20
TALARIAN SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This Agreement, dated ("Effective Date"), is made between Talarian
("Talarian"), a California corporation doing business at 000 Xxxxxx Xxxxxx, Xxx
Xxxxx, Xxxxxxxxxx 00000-0000, and ________ ("Licensee"), a corporation doing
business at .
RECITALS
A. Talarian is in the business of developing and marketing proprietary
software products which assist in the development of communications and data
management software.
B. Licensee is in the business of developing and marketing
_______________ .
C. Licensee desires to acquire, and Talarian desires to grant Licensee,
a right and license to use Talarian software to develop Licensee's software
application, to embed the runtime version of Talarian software in such software
applications, and to offer, distribute and sublicense such software applications
to Licensee's customers.
Talarian and Licensee agree as follows:
1. DEFINITIONS.
"SmartSockets Development System" means Talarian's proprietary
SmartSockets computer software programs and tools, in object code form only,
which enable a user to develop an application using SmartSockets. The
SmartSockets Development System is more fully described in Exhibit A. The
SmartSockets Development System includes any and all modifications, revisions
and enhancements to the SmartSockets Development System provided to Licensee
under this Agreement and under any SmartSockets maintenance contracts entered
into by Licensee with Talarian.
"SmartSockets Runtime" means those portions of the SmartSockets
Development System, in object code form only, which may be incorporated into and
distributed as part of a Bundled Product under the terms of this Agreement.
"SmartSockets Documentation" means the SmartSockets
Documentation, whether provided in printed form or on machine-readable media,
which is generally provided by Talarian to its licensees in conjunction with and
in support of the SmartSockets Development System or SmartSockets Runtime, all
as described in Exhibit A. The SmartSockets Documentation includes all
modifications, revisions and enhancements to the SmartSockets Documentation
provided to Licensee under this Agreement and under any SmartSockets maintenance
contracts entered into by Licensee with Talarian.
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"Talarian Products" means SmartSockets Development System,
SmartSockets Runtime, and SmartSockets Documentation.
"Licensee Product" means the computer software and/or hardware
and related documentation specified in Exhibit B, which is one or more stand
alone software products marketed by Licensee and created by Licensee without use
of the SmartSockets Development System, or obtained by Licensee from sources
other than Talarian, which may be combined with SmartSockets Runtime to
constitute a complete deliverable and executable Bundled Product.
"Bundled Product" means the combination of a Licensee Product and
SmartSockets Runtime, created by modifying a Licensee Product using the
SmartSockets Development System. The Licensee Product must be linked with
SmartSockets Runtime to produce a single executable product. The Licensee
Products will represent a significant functional and value enhancement to the
Talarian Products, such that the primary reason for an end user to license the
Bundled Products is other than the right to receive a license to use the
Talarian Products included in the Bundled Products. Without limiting the
generality of the foregoing, the Bundled Products may not be products that
compete with the Talarian Products, or any portion thereof.
"End User" means a direct or indirect customer of Licensee who is
authorized by an end user license agreement as specified in Section 3.1 to use a
Talarian Product for the End User's internal business purposes.
"Sublicensees" means a direct or indirect customer of Licensee
who is authorized by a Sublicensee agreement as specified in Section 3.2 to
distribute a Talarian Product as part of the Bundled Products for distribution
to End Users or other Sublicensees.
"Territory" means ________.
"Intellectual Property Rights" means patent rights, copyright
rights (including, but not limited to, rights in audiovisual works and moral
rights), trade secret rights, and any other intellectual property rights
recognized by the law of each applicable jurisdiction.
"Marks" means Talarian's trademarks, trade names, service marks,
and/or service names specified in Exhibit A.
2. LICENSES.
2.1 Grant of License.
(a) Licenses. Subject to all the terms and conditions of
this Agreement, Talarian hereby grants to Licensee, and Licensee hereby accepts
a non-exclusive, nontransferable license:
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(i) to use a number of SmartSockets Development Systems
set forth in Exhibit A on the platform also set forth in Exhibit A and in
conjunction with Licensee Products, to develop, modify, reproduce, generate and
test Bundled Products;
(ii) to market, distribute (directly or through
Sublicensees) and sublicense SmartSockets Runtime, as part of the Bundled
Product, to End Users solely for their own internal business purposes in the
Territory during the term of this Agreement.
2.2 Reproduction. Subject to the terms of this Agreement,
Talarian grants Licensee a non-exclusive, non-transferable license during the
term of this Agreement to reproduce Talarian Products for distribution in
accordance with Section 2.1.
2.3 No Reverse Engineering. Licensee will not disassemble,
decompile, or reverse engineer any Talarian Products.
2.4 No Copying. Licensee will not copy or otherwise reproduce any
Talarian Products, in whole or in part, except for making reasonable numbers of
back-up copies or as expressly authorized by this Agreement.
2.5 No Unauthorized Derivative Works. Licensee will not modify
the Talarian Product in any manner, except as it may be expressly directed by
Talarian in writing.
2.6 No Sale of Services. Licensee will not use the Talarian
Products in any manner to provide service bureau, time sharing, or other
computer services to third parties.
2.7 Limited Rights. Licensee's rights in the Talarian Products
will be limited to those expressly granted in this Agreement.
3. OTHER AGREEMENTS, PRICING, AND MARKETING.
3.1 End User Agreement. Licensee may not distribute any Talarian
Products to any End User unless such End User is subject to an end user software
license agreement with Licensee that:
(i) protects Talarian's proprietary rights in the Talarian
Products to at least the same degree as the terms and conditions of this
Agreement;
(ii) requires that such End User not reverse engineer,
reverse compile or disassemble the object code for the Talarian Products;
(iii) requires such End User to comply fully with all
applicable laws and regulations in any of its dealings with respect to the
Talarian Products;
(iv) makes no representations or warranties on behalf of
Talarian; and
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(v) does not grant any rights to such End User beyond the
scope of this Agreement.
Licensee will promptly provide Talarian with reasonable access to such
agreements following Talarian's request.
3.2 Sublicensee Agreement. Licensee may distribute, and may grant
sublicenses of, SmartSockets Runtime to Sublicensees as part of the Bundled
Products for distribution and sublicensing of SmartSockets Runtime as part of
the Bundled Products to End Users, provided that each such Sublicensee executes,
or has already executed, a written Sublicensee agreement with Licensee that:
(i) protects Talarian's proprietary rights in the Talarian
Products to at least the same degree as the terms and conditions of this
Agreement;
(ii) requires that such Sublicensee not reverse engineer,
reverse compile or disassemble the object code for the Talarian Products;
(iii) requires such Sublicensee to comply fully with all
applicable laws and regulations in any of its dealings with respect to the
Talarian Products;
(iv) makes no representations or warranties on behalf of
Talarian; and
(v) precludes the use of the Talarian Products in a
service bureau, time sharing, or other non-licensed basis;
(vi) does not permit distribution or sublicensing of the
Talarian Products beyond the scope of this Agreement; and
(vii) requires such Sublicensee to enter into an end user
software license agreement with its End User that is consistent with the terms
and conditions of the end user software license agreement specified in Section
3.1.
Licensee will promptly provide Talarian with a copy of each such executed
agreement.
3.3 Pricing Freedom. Licensee is, and will remain, entirely free
to determine its End User and Sublicensees prices and fees in its own
discretion.
4. DEMONSTRATIONS, BENCHMARKS, AND EVALUATIONS. Licensee will be
responsible for demonstrations and benchmarks of Talarian Products to, and
evaluations by, its prospective customers. Assistance by Talarian in any
demonstrations or benchmarks will be at Talarian's discretion and at Talarian's
standard rates for its personnel. Licensee may, at no charge, reproduce a
reasonable number of copies of Talarian Products for use by Licensee solely for
the purpose of conducting demonstrations and benchmarks by Licensee personnel or
prospective customers.
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5. DELIVERY. Talarian will deliver to Licensee a master copy of the
Talarian Products within days of the Effective Date. ----
6. PAYMENTS.
6.1 License Payments. Licensee will pay Talarian the
nonrefundable amounts according to the Fee and Payment schedule specified in
Exhibit C for Licensee's use and distribution of the Talarian Products. All
shipping or other transportation charges for delivery of the Talarian Products
to Licensee, including insurance and special packaging, will also be paid by
Licensee.
6.2 Payments for Maintenance, Support, Updates, and Enhancements
Licensee will pay Talarian the nonrefundable amounts according to the Fee and
Payment schedule specified in Exhibit C for maintenance and support services and
updates and enhancements for the Talarian Products from Talarian under Section
8.2.
6.3 Payment Terms. Licensee will make all payments to Talarian as
according to the Fee and Payment schedule specified in Exhibit C. Payments made
under this Agreement after their due date will incur interest at a rate equal to
1.5% per month or the highest rate permitted by applicable law, whichever is
lower.
6.4 Increases. The amounts specified in Exhibit C reflect
Talarian's current published prices. As Talarian's published list prices are
revised from time to time, the amounts specified in Exhibit C will be deemed
amended accordingly upon days prior written notice to Licensee.
6.5 Taxes. All amounts payable under this Agreement are exclusive
of all sales, use, value-added, withholding, and other taxes and duties.
Licensee will pay all taxes and duties assessed in connection with this
Agreement and its performance by any authority within or outside of the U.S.,
except for taxes payable on Talarian's net income. Talarian will be promptly
reimbursed by Licensee for any and all taxes or duties that Talarian may be
required to pay in connection with this Agreement or its performance.
7. REPORTS AND AUDITS.
7.1 Licensee's Records. Licensee will maintain complete records,
during and for three (3) years after the termination or expiration of this
Agreement, regarding the distribution and sublicensing of the Talarian Products
to each End User and Sublicensees.
7.2 Payment Reports. Within thirty (30) days after the close of
each quarter ending March 31, June 30, September 30 and December 31, Licensee
will deliver to Talarian a report which will provide all information reasonably
necessary for computation and/or confirmation of the payments, if any, due or
credited to Talarian for such quarterly period.
7.3 Audit. An independent certified public accountant selected by
Talarian may, upon reasonable notice and during normal business hours, inspect
the records of Licensee on which such reports are based. If, upon performing
such audit, it is determined that Licensee
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has underpaid Talarian by an amount greater than five percent (5%) of the
payments due Talarian in the period being audited, Licensee will bear all
reasonable expenses and costs of such audit in addition to its obligation to
make full payment under Section 6.
8. MAINTENANCE, SUPPORT, AND TRAINING.
8.1 By Licensee. In addition to the provisions of Section 4,
Licensee will be responsible for providing the following support to its End
Users and Sublicensees: installing the Talarian Products as needed; training End
Users and Sublicensees; and providing all direct first level technical support
to End Users and Sublicensees, including but not limited to diagnosing problems
and using its reasonable efforts to provide solutions.
8.2 By Talarian. Except as provided otherwise in this Agreement
or in a separate written agreement, Talarian shall not be responsible for
providing support to Sublicensees or End Users. Subject to receipt by Talarian
of payments as specified in Section 6.2, Talarian will provide Licensee with:
(i) error corrections for the Talarian Products in
accordance with Talarian's standard maintenance and support policies and
procedures;
(ii) updates and enhancements for the Talarian Products to
the extent that Talarian generally provides such updates and enhancements to
Talarian's customers without separately charging for such updates and
enhancements;
(iii) access to Talarian's "hot-line" for inquiries from
Licensee relating to the Talarian Products between the hours of 8 a.m. and 5
p.m., Pacific Time, on Talarian's business days; and
(iv) training in accordance with the terms and conditions
and pricing specified in Licensors published price list, provided that Licensee
pays the travel and living expenses of Talarian's personnel in connection with
any out-of-town training requested by Licensee.
9. CONFIDENTIALITY.
9.1 Obligations. Licensee agrees:
(i) that it will not disclose to any third party or use
any Talarian Products or other technical information disclosed to it by Talarian
(collectively, "Confidential Information") except as expressly permitted in this
Agreement; and
(ii) that it will take all reasonable measures to maintain
the confidentiality of all Confidential Information in its possession or
control, which will in no event be less than the measures it uses to maintain
the confidentiality of its own information of similar importance.
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9.2 Exceptions. "Confidential Information" will not include
information that:
(i) is in or enters the public domain without breach of
this Agreement;
(ii) Licensee lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure obligation; or
(iii) Licensee develops independently, which it can prove
with written evidence.
9.3 Injunctive Relief. Licensee acknowledges that the Talarian
Products contain trade secrets of Talarian, the disclosure of which would cause
substantial harm to Talarian that could not be remedied by the payment of
damages alone. Accordingly, Talarian will be entitled to preliminary and
permanent injunctive relief and other equitable relief for any breach of this
Section 9.
10. PROPRIETARY RIGHTS.
10.1 Talarian's Ownership.
(a) The Talarian Products are and will remain the sole and
exclusive property of Talarian and its suppliers, if any, whether the Talarian
Products are separate or combined with any other products. Talarian's rights
under this subsection (a) will include, but not be limited to: (i) all copies of
the Talarian Products, in whole and in part; (ii) all Intellectual Property
Rights in the Talarian Products; and (iii) all modifications to, and derivative
works based upon, the Talarian Products.
(b) Subject to Section 10.4(b), Licensee will not delete
or in any manner alter the Intellectual Property Rights notices of Talarian and
its suppliers, if any, appearing on the Talarian Products as delivered to
Licensee. As a condition of the license rights granted to Licensee in this
Agreement, Licensee will reproduce and display such notices on each copy it
makes of any Talarian Product.
10.2 Licensee's Duties. Licensee will use its reasonable efforts
to protect Talarian's Intellectual Property Rights in the Talarian Products and
will report promptly to Talarian any infringement of such rights of which
Licensee becomes aware.
10.3 Third Party Infringement. Talarian reserves the sole and
exclusive right at its discretion to assert claims against third parties for
infringement or misappropriation of its Intellectual Property Rights in the
Talarian Products.
10.4 Trademarks.
(a) If any advertisement or other marketing material used
by Licensee makes any statement as to the technical features or capabilities of
the Talarian Products beyond
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the information provided to Licensee by Talarian, Licensee will first obtain the
written approval of Talarian prior to publishing such advertisement or material.
(b) Nothing in this Agreement grants Licensee any rights
in or to use any of the Marks. Talarian acknowledges that Licensee intends to
use Licensee's own trademarks in connection with Licensee's marketing of the
Talarian Products.
11. WARRANTY.
11.1 Power and Authority. Talarian warrants to Licensee that it
has sufficient right and authority to grant to Licensee all licenses and rights
that Talarian grants under this Agreement.
11.2 Performance Warranty. Talarian warrants, for a period of
thirty (30) days from the Effective Date, that the Talarian Product will
substantially conform to the applicable product documentation provided by
Talarian. The foregoing warranty does not apply to any Talarian Product that has
been modified, combined with other products (including the Licensee Product), or
used improperly. TALARIAN DOES NOT WARRANT THAT THE PRODUCT WILL MEET LICENSEE'S
OR END USER'S REQUIREMENTS, THAT THE PRODUCT WILL OPERATE IN THE COMBINATIONS
THAT LICENSEE MAY SELECT OR USE, THAT THE OPERATION OF THE PRODUCT WILL BE
UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS IN THE PROUDUCT WILL BE
CORRECTED.
11.3 Sole and Exclusive Remedy. FOR ANY BREACH OF THE WARRANTY
CONTAINED IN SECTION 11.2, LICENSEE'S SOLE AND EXCLUSIVE REMEDY WILL BE, AT
TALARIAN'S OPTION EITHER: (A) THE REPLACEMENT OR CORRECTION OF THE DEFECTIVE
PRODUCT WITHIN 30 DAYS OF BEING INFORMED OF THE BREACH OF WARRANTY; OR (B) THE
TERMINATION OF THIS AGREEMENT AND THE REFUND TO LICENSEE OF THE LICENSE FEE PAID
BY LICENSEE TO TALARIAN FOR SUCH DEFECTIVE TALARIAN PRODUCT UNDER THIS AGREEMENT
WITHIN 60 DAYS OF BEING INFORMED OF THE BREACH OF WARRANTY.
11.2 Disclaimer of Other Warranties. THE WARRANTIES IN THIS
SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT
NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NONINFRINGEMENT.
12. INDEMNITIES.
12.1 Distribution Indemnity. Subject to the terms of Section
12.2, Licensee agrees to indemnify Talarian against any third party claims
against Talarian for loss, damage, liability, or expense (including but not
limited to attorneys' fees) arising out of any acts or omissions of Licensee or
any Sublicensees in connection with their activities under this Agreement.
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12.2 Infringement Indemnity.
(a) Duty to Indemnify and Defend.
(i) Talarian will indemnify Licensee against, and
will defend or settle at Talarian's own expense, any action or other proceeding
brought against Licensee to the extent that it is based on a claim that the use
of the Talarian Products as licensed in this Agreement infringes any copyright,
any U.S. patent issued as of the Effective Date, or that the Talarian Products
incorporate any misappropriated trade secrets.
(ii) Talarian will pay any and all costs, damages,
and expenses (including but not limited to reasonable attorneys' fees) awarded
against Licensee in any such action or proceeding attributable to any such
claim.
(iii) Talarian will have no obligation under this
Section as to any action, proceeding, or claim unless: (A) Talarian is notified
of it promptly; (B) Talarian has sole control of its defense and settlement; and
(C) Licensee provides Talarian with reasonable assistance in its defense and
settlement.
(b) Injunctions.
(i) If Licensee's use of any Talarian Products
under the terms of this Agreement is, or in Talarian's opinion is likely to be,
enjoined due to the type of infringement or misappropriation specified in
subsection (a) above, then Talarian may, at its sole option and expense, either:
(A) procure for Licensee the right to
continue using such Talarian Products under the terms of this Agreement; or
(B) replace or modify such Talarian Products
so that they are noninfringing and substantially equivalent in function to the
enjoined Talarian Products; or
(C) if options (A) and (B) above cannot be
accomplished despite the reasonable efforts of Talarian, then Talarian may both:
(1) terminate Licensee's rights and
Talarian's obligations under this Agreement with respect to such Talarian
Products, and
(2) refund to Licensee all ongoing
license fees paid by Licensee to Talarian for copies of such Talarian Products
to the extent that Licensee is contractually obligated to return to any End
Users their payments made to Licensee or Sublicensees for such copies.
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(c) Sole Remedy. THE FOREGOING ARE TALARIAN'S SOLE AND
EXCLUSIVE OBLIGATIONS, AND LICENSEE'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT
TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
(d) Exclusions. Talarian will have no obligations under
this Section 12.2 with respect to infringement or misappropriation arising from
(i) modifications to the Talarian Products that were not authorized by Talarian,
(ii) Talarian Product specifications requested by Licensee, or (iii) the use of
the Talarian Products in combination with products not provided by Talarian.
13. LIMITATIONS OF LIABILITY.
13.1 Total Liability. TALARIAN'S TOTAL LIABILITY TO LICENSEE
UNDER THIS AGREEMENT WILL BE LIMITED TO THE PAYMENTS RECEIVED BY LICENSOR FROM
LICENSEE UNDER THIS AGREEMENT.
13.2 Exclusion of Damages. IN NO EVENT WILL TALARIAN BE LIABLE TO
LICENSEE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR
OTHERWISE, AND WHETHER OR NOT TALARIAN HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.
13.3 Failure of Essential Purpose. The parties have agreed that
the limitations specified in this Section 13 will survive and apply even if any
limited remedy specified in this Agreement is found to have failed of its
essential purpose.
14. TERM AND TERMINATION.
14.1 Term. The term of this Agreement will begin on the Effective
Date and will continue for one (1) year unless terminated earlier in accordance
with the provisions hereof.
14.2 Events of Termination. Either party will have the right to
terminate this Agreement if:
(a) the other party breaches any material term or
condition of this Agreement and fails to cure such breach within thirty (30)
days after written notice;
(b) the other party becomes the subject of a voluntary
petition in bankruptcy or any voluntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors; or
(c) the other party becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing.
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14.3 Effect of Termination.
(a) Upon termination or expiration of this Agreement,
Licensee will (except as specified in subsection (b) below) immediately return
to Talarian or (at Talarian's request) destroy all copies of the Talarian
Products and other Confidential Information in its possession or control, and an
officer of Licensee will certify to Talarian in writing that Licensee has done
so.
(b) Upon termination or expiration of this Agreement,
Talarian will have the option, in its sole discretion, of:
(i) electing, at any time, to offer maintenance and
support for the Talarian Products directly to End Users and/or Sublicensees in
accordance with Talarian's standard terms and conditions for such services; or
(ii) permitting Licensee to continue to provide
maintenance and support for the Talarian Products to its End Users and/or
Sublicensees upon the terms and conditions of Section 8.1 and continue to use
copies of the Talarian Products, to the extent needed to provide such services,
pursuant to a limited license agreement to be entered between Talarian and
Licensee promptly following such termination or expiration.
14.4 No Damages for Termination. NEITHER PARTY WILL BE LIABLE TO
THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL
DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN
ACCORDANCE WITH ITS TERMS. LICENSEE WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY
COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS AGREEMENT UNDER
THE LAW OF THE TERRITORY OR OTHERWISE, OTHER THAN AS EXPRESSLY PROVIDED IN THIS
AGREEMENT. Neither party will be liable to the other on account of termination
or expiration of this Agreement for reimbursement or damages for the loss of
goodwill, prospective profits or anticipated income, or on account of any
expenditures, investments, leases or commitments made by either party or for any
other reason whatsoever based upon or growing out of such termination or
expiration.
14.5 Nonexclusive Remedy. The exercise by either party of any
remedy under this Agreement will be without prejudice to its other remedies
under this Agreement or otherwise.
14.6 Survival. The rights and obligations of the parties
contained in Sections 9 (Confidentiality), 10 (Proprietary Rights), 13
(Limitations of Liability), and 14.3(b) (Effect of Termination), and the
licenses granted to End Users, by Licensee and Sublicensees prior to the
Agreement's termination or expiration effective date will survive the
termination or expiration of this Agreement.
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15. COMPLIANCE WITH LAW. Each party agrees to comply with all applicable
laws, rules, and regulations in connection with its activities under this
Agreement. Each party shall comply with all applicable international, national,
state, regional and local laws and regulations in connection with its activities
under this Agreement. Without limiting the foregoing, Licensee acknowledges that
all Talarian Products, including documentation and other technical data, are
subject to export controls imposed by the U.S. Export Administration Act of
1979, as amended (the "Act"), and the regulations promulgated thereunder.
Licensee shall not export or reexport (directly or indirectly) any Talarian
Products or documentation or other technical data therefor without complying
with the Act and the regulations thereunder.
16. PUBLICITY. Talarian may include Licensee's name in Talarian's
customer list. Talarian may also use Licensee's name and the names of the
Bundled Products in Talarian promotional literature and marketing materials,
provided that Talarian will obtain Licensee's prior approval, such approval will
not be unreasonably withheld.
17. GENERAL.
17.1 Assignment. This Agreement will bind and inure to the
benefit of each party's permitted successors and assigns. Licensee may not
assign this Agreement, by operation of law or otherwise in whole or in part,
without Talarian's written consent, which consent will not be unreasonably
withheld. Any attempt to assign this Agreement without such consent will be null
and void.
17.2 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of California applicable to
agreements entered into, and to be performed entirely, within California between
California residents. Any suit hereunder will be brought solely in the federal
or state courts in the Northern District of California and Licensee hereby
submits to the personal jurisdiction thereof.
17.3 Severability. If any provision of this Agreement is found
invalid or unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in force.
17.4 Force Majeure. Except for payments due under this Agreement,
neither party will be responsible for any failure to perform due to causes
beyond its reasonable control (each a "Force Majeure"), including, but not
limited to, acts of God, war, riot, embargoes, acts of civil or military
authorities, denial of or delays in processing of export license applications,
fire, floods, earthquakes, accidents, strikes, or fuel crises, provided that
such party gives prompt written notice thereof to the other party. The time for
performance will be extended for a period equal to the duration of the Force
Majeure, but in no event longer than sixty (60) days.
17.5 Notices. All notices under this Agreement will be deemed
given when delivered personally, sent by confirmed facsimile transmission, or
sent by certified or registered U.S. mail or nationally-recognized express
courier, return receipt requested, to the address shown below or as may
otherwise be specified by either party to the other in accordance with this
section.
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17.6 Independent Contractors. The parties to this Agreement are
independent contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency between the parties. Neither party will have
the power to bind the other or incur obligations on the other's behalf without
the other's prior written consent.
17.7 Waiver. No failure of either party to exercise or enforce
any of its rights under this Agreement will act as a waiver of such rights.
17.8 Entire Agreement. This Agreement and its exhibits are the
complete and exclusive agreement between the parties with respect to the subject
matter hereof, superseding and replacing any and all prior agreements,
communications, and understandings (both written
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and oral) regarding such subject matter. This Agreement may only be modified, or
any rights under it waived, by a written document executed by both parties. The
parties have caused this Agreement to be executed by their duly-authorized
representatives as of the Effective Date.
17.9 Source Code Escrow. Licensee acknowledges that Talarian has
deposited the source code for the Talarian Products into an escrow account
pursuant to that certain Software Deposit Agreement between Talarian Corporation
and National Safe Depository ("NSD"), dated October 9, 1992 ("Escrow
Agreement"). Licensee will have the right to enroll as a beneficiary of the
Escrow Agreement upon payment to NSD of the applicable fees. Licensee will have
the right to file for release of such source code in accordance with the terms
of the Escrow Agreement upon the occurrence of any "Event of Default" as defined
therein.
IN WITNESS WHEREOF, this Agreement has been duly executed by authorized
representatives of the parties hereto.
Licensee: Talarian:
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By: By:
------------------------------- --------------------------------------
Name: Name:
----------------------------- ------------------------------------
Title: Title:
---------------------------- -----------------------------------
Date: Date:
----------------------------- ------------------------------------
Address: Address:
-------------------------- ---------------------------------
Facsimile: Facsimile:
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EXHIBIT A
All SmartSockets software and documentation, including but not limited to:
SMARTSOCKETS DEVELOPMENT SYSTEM
1. SmartSockets Development Interfaces and Libraries
C/C++
Java (native)
ActiveX Components
2. SmartSockets Run-time and Development Components
Rtserver
Rtmonitor
And the following products under development or consideration, if and when
released:
3. Secure SmartSockets
Secure SmartSockets (Kerberos Integration)
Integration of other security products (e.g., RSA, other PKI technology)
4. SmartSockets Queuing Products (currently under development)
SmartQueue
SmartQueue for IBM MQSeries
SmartQueue for MSmq
Note: Documentation supplied contains the definitive description of the
components of the SmartSockets Development System.
SMARTSOCKETS DOCUMENTATION
Hard copy
FrameMaker and HTML files
Training material
SCOPE OF LICENSE
1. Number of SmartSockets Development Systems:
2. Development Platform:
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EXHIBIT B
Licensee Products
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EXHIBIT C
Payments
1. INITIAL LICENSE FEES.
a. AMOUNT:
b. DUE DATE:
2. LICENSE FEES.
a. AMOUNT:
b. DUE DATE:
3. MAINTENANCE AND SUPPORT FEES.
a. AMOUNT: $ _____ annually
b. DUE DATE:
Initial Period: Thirty days after Effective Date.
Subsequent Periods: Ninety days prior to the
commencement of the support period.
c. LAPSE: Licensee may reinstate maintenance and support
services after a lapse by paying a reinstatement fee equal
to the maintenance and support fees for the lapsed period
plus the annual maintenance and support fees set forth in
3(a).
4._____UPDATES AND ENHANCEMENTS.
5._____TRAINING.
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