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* Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
EXHIBIT 10.08
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is made effective June 30,
1999 ("Effective Date") by and between Niku Corporation, a Delaware corporation
with offices at 000 Xxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Niku"), and
USinternetworking, Inc., a Delaware corporation with offices at Xxx XXx Xxxxx,
Xxxxxxxxx, XX 00000-0000 ("Licensee").
1. DEFINITIONS.
1.1 "Authorized Users" means the employees or agents of Licensee who
are authorized to use the Software, as defined in Exhibit A.
1.2 "Designated Facility" means the business facility of Licensee
identified in Exhibit A. The Designated Facility may be changed
only with the prior, written consent of an authorized officer of
Niku.
1.3 "End User" means any party licensed by Licensee under this
Agreement to: (a) use, but not to further distribute, the
Software; or (b) access the Software remotely from Licensee's
servers.
1.4 "Documentation" means the on-line help files and written manuals
included with the Software which describe its features and use.
1.5 "License Fee" means the amount to be paid to Niku by Licensee
for the rights granted under this Agreement, as specified in
Exhibit A.
1.6 "Software" means the binary code version of the Niku software
product listed in Exhibit A.
1.7 "Support Fees" means the amount of annual fees to be paid by
License for technical support and maintenance for the Software,
as specified in Exhibit A.
2. DELIVERY. Niku will use reasonable efforts to deliver the Software to
Licensee as soon as practicable after the Effective Date.
3. LICENSE.
3.1 GRANT. Subject to the payment of the License Fee and compliance
with the other terms of this Agreement, Niku grants Licensee a
nonexclusive, nontransferable right and license:
a) to sublicense/distribute unmodified Software and
Documentation to End Users, provided, however, that prior to any
distribution of Software or Documentation, Licensee must enter
into a sublicense agreement with each End User that is
consistent with and not less restrictive than the terms herein;
b) to install and use one copy of each of the Software on a
server computer system at the Designated Facility for purposes
of remote End User system access and Authorized User use..
Licensee may make and maintain up to three (3) copies of the
installed server Software for archival, back-up, and internal
testing purposes, and
NIKU/USINTERNETWORKING CONFIDENTIAL
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c) to use the Documentation in connection with the use of the
Software by Authorized Users.
3.2 THIRD PARTY SOFTWARE. To the extent the Software incorporates
any software licensed by Niku from a third party, Niku grants
Licensee a sublicense that is co-extensive with the rights to
Software granted under Section 3.1.
3.3 RESTRICTIONS. Licensee expressly agrees that it will not:
a) transfer the Software or Documentation to a third party for
any purpose other than off-site storage of archival or back-up
copies, except as set forth in Section 3.1(a);
b) transfer the server Software to a business facility other
than the Designated Facility without the prior, written consent
of Niku.
c) produce a source listing, decompile, disassemble, or
otherwise reverse engineer the Software; or
d) use the Software to provide data processing services,
commercial timesharing, rental, or any similar sharing
arrangement for a third party, except as consistent with Section
3.1.
3.4 PROPRIETARY NOTICES. Licensee shall not remove or obscure any
notices or markings, including without limitation, copyright,
trademark, or confidentiality notices, or ownership notices on
Software and the Documentation, including any screen displayed
by the Software.
3.5 RESERVATION OF RIGHTS. Niku retains rights in and to the
Software and Documentation not specifically granted to Licensee
hereunder, and any use of these items beyond the scope permitted
by this Agreement shall constitute a material breach of this
Agreement.
3.6 RECORDS AND COMPLIANCE. Licensee shall maintain accurate records
relating to the distribution and sublicensing of the Software,
to identify all sublicenses and to otherwise verify Licensee's
compliance with the terms of this Agreement. Licensee shall
provide such records to Niku within 10 days after the end of
each calendar quarter, together with any applicable fees as set
forth in Exhibit A. Niku will have the right to inspect
Licensee's records and the Software at Licensee's facility as
reasonably necessary to verify that Licensee is in compliance
with this Agreement. Niku will provide Licensee with reasonable
notice prior to any inspections. Niku will be limited to
conducting three (3) such inspections in any twelve (12) month
period, and will not unreasonably interfere with Licensee's
business operations. Niku will bear all costs and expenses
associated with the exercise of these rights, unless such
inspection reveals that Licensee is not in compliance with this
Agreement, in which case, Licensee agrees to pay Licensor the
reasonable costs of such inspection plus any additional license
fees related to unauthorized use of the Software.
4. LICENSE FEE. Licensee will pay Niku the License Fee in the amount and
according to the terms specified in Exhibit A. Unless otherwise
specifically provided otherwise in Exhibit A:
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(i) the License Fee will be due and payable in full within thirty (30)
days after receipt of the Software by Licensee; and (ii) a late charge
of one and one half percent (1.5%) per month or the highest rate
permitted by law, whichever is lower, will apply to an overdue balance.
5. SERVICES.
5.1 SUPPORT. Subject to the payment of Support Fees, Licensee will
be entitled to receive technical support and maintenance under
Niku's standard terms and conditions, as set forth in Exhibit B.
Niku will provide 7x24x365 pager support for "critical" and
"serious" nonconformances in Software in accordance with Exhibit
B. Licensee shall be responsible for technical support and
maintenance of End Users.
5.2 CONSULTING & TRAINING SERVICES. Niku may provide consulting and
training services to Licensee related to the implementation and
use of the Software for its applications services provider
business. Any such services will be billed on a time and
materials basis unless the parties expressly agree otherwise in
writing. Any consulting or training services acquired from Niku
will be bid separately from the Software licenses granted under
this Agreement, and Licensee may acquire either without
acquiring the other.
6. TERM AND TERMINATION.
6.1 TERM. This Agreement commences on the Effective Date and will
remain in force and effect unless terminated in accordance with
this Article.
6.2 TERMINATION. This Agreement may be terminated as follows:
a) By either party upon thirty (30) days written notice
specifying breach if the other party fails to comply with any of
the material terms or conditions of this Agreement unless,
within the period of notice, all specified breaches have been
cured.
b) By Niku immediately in the event Licensee becomes subject to
any bankruptcy or insolvency proceeding, becomes insolvent or
subject to control by a trustee, receiver or similar authority
or has wound up liquidated, voluntarily or otherwise.
6.3 EFFECT OF TERMINATION FOR LICENSEE'S BREACH. Subject to the
terms of this Agreement, in the event of termination of this
Agreement due to a breach by Licensee, the rights and licenses
granted to Licensee will immediately terminate and Licensee will
have no further right to use the Software. Within thirty (30)
days after termination, Licensee must return all copies of the
Software and Documentation in its possession or control to Niku,
or permanently destroy or disable all such copies. If requested
by Niku, a duly authorized officer of Licensee will certify in
writing to Niku that Licensee has taken such action.
6.4 EFFECT OF TERMINATION FOR NIKU'S BREACH. In the event of
termination of this Agreement due to a breach by Niku, and
without limiting Licensee's right in accordance with this
Agreement to obtain remedies for Niku's breach, the rights and
licenses granted to Licensee will survive to the extent
necessary for Licensee to continue using the Software as
permitted under this Agreement. Such continuing
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rights are subject to Licensee's continued compliance with the
terms of this Agreement, including payment of any portion of the
License Fee outstanding as of the termination. Nothing will
require Niku to provide any technical support or maintenance to
Licensee after termination.
6.5 SURVIVAL. Rights and obligations under this Agreement which by
their nature should survive, will remain in effect after
termination hereof.
6.6 If this Agreement terminates, Niku will continue to provide, and
Licensee will continue to pay Niku for, service and support to
End Users in accordance with this Agreement and for the term of
the end-user agreements existing at the time of termination.
7. CONFIDENTIALITY.
7.1 Either party may disclose to the other party technical, product,
financial and business information which the disclosing party
("Disclosing Party") considers to be confidential ("Confidential
Information"). Information will be considered "Confidential
Information" if it is clearly marked as confidential or verbally
identified as confidential at the time of disclosure.
7.2 The party receiving the Confidential Information ("Receiving
Party") will not reproduce in any form, or provide, disclose, or
give access to Confidential Information to any third party, or
to any employee or agent not having a legitimate need to know
it, and shall not use the Confidential Information for any
purpose other than performing its obligations and exercising its
rights under this Agreement.
7.3 This Agreement imposes no obligation upon the Receiving Party
with respect to Confidential Information which the Receiving
Party can establish by legally sufficient evidence: (i) was in
the possession of, or was known by, the Receiving Party prior to
its receipt from the Disclosing Party, without an obligation to
maintain its confidentiality; (ii) is or becomes generally known
to the public without violation of this Agreement; (iii) is
obtained by the Receiving Party from a third party having the
right to disclose it, without an obligation to keep such
information confidential; or (iv) is independently developed by
the Receiving Party without the use of Confidential Information
and without the participation of individuals who have had access
to the Confidential Information.
7.4 The Disclosing Party retains ownership of the Confidential
Information. The Receiving Party does not acquire any rights in
Confidential Information under this Agreement, except the
limited right to use as described above.
7.5 The Receiving Party's confidentiality obligations with respect
to the Confidential Information shall survive the termination of
this Agreement and will continue for a period of five (5) years
from the Effective Date, provided that the obligation to
maintain the confidentiality of any Niku source code shall be
perpetual.
8. WARRANTY AND DISCLAIMER.
8.1 Niku warrants to Licensee that the Software will perform in
substantial accordance with the Documentation for a period of
one (1) year from the date the Software is delivered to
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Licensee. If the Software does not perform as warranted, Niku
will attempt to correct the Software, or if a correction is not
reasonably possible , to replace the Software free of charge. If
Niku is unable to make the Software perform as warranted, Niku
will terminate this Agreement and refund the License Fee. This
warranty is made to and for the sole benefit of Licensee, and
will be enforceable against Niku only if:
a) all modifications, alterations or additions to the
Software made by Licensee, if any, have been made using
tools or utilities included in the Software or otherwise
provided by Niku; and
b) Licensee has not made or caused to be made any
modifications, alterations, or additions to the Software
that cause it to deviate from the Documentation.
8.2 Niku represents and warrants to Licensee that the media upon
which the Software is provided will be free from defects and
viruses, and will function properly under ordinary use for a
period of ninety (90) days.
8.3 Niku warrants to Licensee that the Software will record, store,
process and calculate any information dependent on or relating
to dates on or after January 1, 2000 in the same manner, and
with the same functionality, data integrity and performance, as
such Software records, stores, processes, calculates and
presents calendar dates on or before December 31, 1999. This
warranty does not apply if any hardware, third party software or
data used by Customer in conjunction with the Software does not
meet the same performance standards as those stated for the
Software in this Section 8.2.
8.4 OTHER THAN THE EXPRESS WARRANTIES IN SECTION 8.1 THROUGH 8.3,
NIKU DOES NOT MAKE AND DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTIES OR CONDITIONS WITH RESPECT TO THE SOFTWARE INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. No agent of Niku is authorized to
modify these limitations.
8.5 With respect to the warranties set forth in this Section 8,
Licensee may disclose to its End Users the preceding warranties
and may pass such warranties in Licensee's name. Any breach of
the foregoing warranty claims by such End Users will be
considered as a warranty claim that Licensee may bring under
this Section 8.
9. INDEMNITY.
9.1 INDEMNIFICATION BY NIKU. Niku will (a) defend Licensee against a
claim that the Software or Documentation infringes a patent,
copyright, trade secret or other proprietary right in the United
States and (b) indemnify Licensee for damages, costs and
reasonable attorneys' fees finally awarded against Licensee,
provided that: (i) Licensee notifies Niku in writing within
twenty (20) days of the claim; (ii) Niku has sole control of the
defense and all related settlement negotiations, provided that
Licensee may participate in the defense or settlement of the
claim at its own expense; and (iii) Licensee provides Niku with
the assistance, information, and authority reasonably necessary
to perform the above. Reasonable out-of-pocket expenses incurred
by Licensee in providing such assistance will be reimbursed by
Niku.
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9.2 EXCLUSIONS. Niku shall have no liability for any claim of
infringement based on: (i) use of a superseded or altered
release of some or all of the Software or any modification
thereof furnished under this Agreement including, but not
limited to, Licensee's failure to use corrections, fixes, or
enhancements made available by Niku; (ii) the combination,
operation, or use of some or all of the Software or any
modification thereof with information, software, specifications,
instructions, data, or materials ("Material") not furnished by
Niku to the extent the infringement would have been avoided by
not combining, operating, or using the Software or the
modification thereof, with such Material; (iii) any change, not
made by Niku, to Software or any modification thereof; or (iv)
Licensee's misuse of the Software or any modification thereof.
9.3 INFRINGEMENT. If the Software is held or is believed by Niku to
infringe, Niku shall have the option, at its expense, to: (i)
modify the Software to be non-infringing; (ii) obtain for
Licensee a license to continue using the Software; or (iii)
terminate this Agreement and refund a pro rata portion of the
License Fee. The pro rata portion to be refunded shall be
determined by amortizing the Licensee Fee evenly over a three
(3) year period from the Effective Date.
9.4 END USERS. With respect to the indemnity set forth in this
Section 9, Licensee may disclose to its End Users the preceding
indemnity and may pass such indemnity in Licensee's name. Any
indemnification claims by such End Users will be considered as
an indemnification claim that Licensee may bring under this
Section 9.
9.5 EXCLUSIVE REMEDY. Sections 9.1 through 9.4 state Niku's entire
liability and Licensee's exclusive remedy for claims of
infringement of intellectual property rights related to the
Software. 9.6
9.6 INDEMNIFICATION BY LICENSEE. Except as provided under Section
9.1, Licensee will (a) defend Niku against any breach of the
representation and warranty set forth in Section 11.11(b) and
any claims arising from a third party's use of Software and (b)
indemnify Niku for damages, costs and reasonable attorneys' fees
finally awarded against Niku, provided that: (i) Niku notifies
Licensee in writing within twenty (20) days of the claim; (ii)
Licensee has sole control of the defense and all related
settlement negotiations; and (iii) Niku provides Licensee with
the assistance, information, and authority reasonably necessary
to perform the above. Reasonable out-of-pocket expenses incurred
by Niku in providing such assistance will be reimbursed by
Licensee.
10. LIMITATION OF LIABILITY.
10.1 LIMITATIONS. Except for express undertakings to indemnify, or
breach of obligations concerning the use of Confidential
Information, or breach of the scope of the license rights
granted hereunder, and to the extent not prohibited by
applicable law:
a) IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY TO THE
OTHER FOR DAMAGES (REGARDLESS OF THE FORM OF THE ACTION,
WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED
$200,000; AND
b) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT,
PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN
CONNECTION
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WITH OR ARISING OUT OF THIS AGREEMENT, INCLUDING LOSS OF
BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC
ADVANTAGE, HOWEVER IT ARISES, WHETHER IN CONTRACT OR TORT,
EVEN IF THAT PARTY HAS BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.
10.2 ALLOCATION OF RISK. The parties acknowledge that the foregoing
limitations of liability represent a reasonable and negotiated
allocation of risk as between the parties, that these
limitations constitute an integral part of this Agreement, and
that absent these limitations the parties would not have
executed this Agreement. These limitations will apply
notwithstanding the failure of the essential purpose of any
limited remedy.
11. GENERAL.
11.1 NOTICES. All notices required by this Agreement must be
delivered in person or by means evidenced by a delivery receipt
to the address specified below or as otherwise notified in
writing and will be effective upon receipt.
To Niku: To Licensee:
Niku Corporation USinternetworking, Inc.
000 Xxxxxxx Xxxxxx One USi Plaza
Xxxxxxx Xxxx, XX 00000 Xxxxxxxxx, XX 00000-0000
Attn: President Attn: General Counsel
11.2 GOVERNING LAW. Any action related to this Agreement will be
governed by New York law and controlling U.S. federal law. In
the event of any disagreement under this Agreement, the parties
agree to use good faith efforts to resolve such disagreement
before commencing any legal action.
11.2 RELATIONSHIP. This Agreement is not intended to create a
relationship such as a partnership, franchise, joint venture,
agency, or employment relationship. Neither party may act in a
manner which expresses or implies a relationship other than that
of independent contractor, nor bind the other party.
11.3 ATTORNEY'S FEES. In addition to any other relief, the prevailing
party in any action arising out of this Agreement will be
entitled to reasonable attorney's fees and costs.
11.4 ASSIGNMENT. Neither party may assign or otherwise transfer any
of its rights or obligations under this Agreement, without the
prior written consent of the other party.
11.5 WAIVER. Any express waiver or failure to exercise promptly any
right under this Agreement will not create a continuing waiver
or any expectation of non-enforcement.
11.6 SEVERABILITY. If any provision of this Agreement is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way
be affected or impaired thereby, and will be interpreted, to the
extent possible, to achieve the purposes as originally expressed
in the invalid, illegal or unenforceable provision.
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11.7 EXPORT CONTROL. The Software and Confidential Information may be
subject to U.S. export control laws and export or import
regulations in other countries. Licensee agrees to comply
strictly with all such laws and regulations and acknowledges
that it has the responsibility to obtain such licenses to
export, re-export, or import the Software and Confidential
Information as may be required after delivery to Licensee.
11.8 FORCE MAJEURE. A party is not liable under this Agreement for
non-performance, if the non-performance is caused by events or
conditions beyond that party's control, and provided the party
makes reasonable efforts to perform under the circumstances.
This provision does not relieve Licensee of its obligation to
make any payments then owing.
11.9 ENTIRE AGREEMENT. This Agreement is the parties' entire
agreement relating to its subject matter. It supercedes all
prior or contemporaneous oral or written communications,
proposals, conditions, representations and warranties and
prevails over any conflicting or additional terms of any quote,
order, acknowledgement, or other communication between the
parties relating to its subject matter during the term of this
Agreement. No modification to this Agreement will be binding,
unless in writing and signed by a duly authorized representative
of each party.
11.10 TRADEMARKS. Neither party will use the other party's trade
names, trademarks, service marks or logos ("Marks") without such
party's permission. Use of each party's Marks will inure to the
owner's benefit.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
NIKU CORPORATION USINTERNETWORKING, INC.
By By
--------------------------------- --------------------------------------
Name: Name:
------------------------------ -----------------------------------
Title: Title:
----------------------------- ----------------------------------
The Exhibits to this Agreement are:
Exhibit A - Software Specific Terms
Exhibit B- Support Terms and Conditions
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EXHIBIT A
SOFTWARE SPECIFIC TERMS
1. SOFTWARE PRODUCT DESCRIPTION: Niku for IT Consulting, version 2.1
2. AUTHORIZED USERS. Licensee will be authorized to designate as Authorized
Users up to [***] - whether as Licensee [***] or
[***], or [***].
3. DESIGNATED FACILITY.
USinternetworking, Inc.
Xxx XXx Xxxxx
Xxxxxxxxx, XX 00000-0000
0000 XxXxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxxxx 000
0000 XX Xxxxxxxxx
0xx Xxxxx
0-00 Xxxxxx, 0-Xxxxx
Xxxx-XX, Xxxxx 000-0000
4. LICENSE FEE. Within thirty (30) days of the Effective Date, Licensee
will pay Niku a nonrefundable license fee of $985,000 for [***] licenses
that Licensee, at its discretion or as the parties specifically agree in
the future, may use internally or sublicense to End-Users according to
the terms of this Agreement.
5. SUPPORT FEES. Within ninety (90) days of the Effective Date, Licensee
will pay Niku $118,200 of the License Fee - for support for of its
internal use licenses during the first [***] of this Agreement.
Beginning September 30, 2000, and every twelve (12) months thereafter,
Additional Support Fees, also calculated at twelve percent (12%) of the
License Fee, will be billed to Licensee, and will become payable in full
within thirty (30) days of the invoice.
6. TRAINING SERVICES AND FEE. Any training service to be provided by Niku
and associated fees will be negotiated separately by the parties.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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EXHIBIT B
NIKU CORPORATION
STANDARD SOFTWARE SUPPORT TERMS AND CONDITIONS
1. COVERED SOFTWARE.
a. Licensee agrees to purchase, and Niku agrees to furnish, software
maintenance services (the "Support Services") in support of Licensee's use of
software licensed by Niku to Licensee under the terms and conditions of the
attached Software License Agreement (the "Agreement"), subject to these Standard
Software Support Terms and Conditions (the "Support Terms"). The software
covered by this is specified in Exhibit A to the Agreement (the "Software"). All
corrections, updates, improvements, modifications and new versions of Software
furnished to Licensee (the "Updates") will be considered Software within the
meaning of the Agreement, and Licensee's use of the Updates will be governed
thereby.
b. The terms of the Agreement governing confidential information,
Software warranties and disclaimers, indemnification against intellectual
property claims, limitations of liability, notice, governing law, independent
contractor status, assignment, waiver, severability, export control, force
majeure, and integration of terms are incorporated herein by reference and will
govern the Support Terms. Any capitalized terms which are not separately defined
in these Support Terms, will have the same meaning as specified in the
Agreement.
2. SUPPORT SERVICES. For the term of this Agreement and subject to the
exclusions listed in Section 4 below, Niku will provide the following services
with respect to the Software: (a) Niku will attempt to correct within a
reasonable time any reported failure of the Software to substantially conform to
or perform substantially in accordance with the Documentation; (b) Niku will
furnish Licensee, at no additional charge, except for taxes, insurance, shipping
and handling, with all Updates which are released generally by Niku to its
licensees; (c) Niku will provide Licensee with 24x7x365 pager support for all
"critical" and "serious" (as defined below) nonconformances in the Software; and
(d) Niku will provide Licensee with telephone, facsimile and e-mail based
support to assist Licensee in its use of the Software.
3. SERVICE STANDARDS.
a. The Software's failure to substantially conform to Niku's user
documentation will be divided into three classes of severity: (i) a "critical"
nonconformance shall be any nonconformance causing a complete failure of the
Software or the Licensee's computer accessing the Software; (ii) a "serious"
nonconformance shall be any nonconformance which seriously impairs the
functionality of the Software (this includes any critical nonconformance for
which a work-around or detour solution has been devised or identified); and
(iii) a "minor" nonconformance shall be any nonconformance which does not
seriously impair the functionality of the Software.
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b. Niku will provide a response to a report of the above-described
nonconformity by Licensee according to the following response schedule: (a) all
critical nonconformity's shall be responded to by Niku within one (1) hour of
that time that Licensee first reports such nonconformity's to Niku; (b) all
serious nonconformity's shall be responded to by Niku within five (5) hours of
the date that Licensee first reports such nonconformity's to Niku; and (c) all
minor nonconformity's shall be responded to by Niku within three (3) days of the
date that Licensee first reports such nonconformity's to Niku. Niku's duty to
respond shall consist of (i) delivery of an existing or new update, modification
or enhancement to correct such nonconformance; or (ii) identification of a
workaround or detour solution; or (iii) a request for more information for
purposes of analyzing or verifying the nonconformance; or (iv) delivery of a
plan for correcting the nonconformance.
c. Niku will use all reasonable efforts to reach closure on all
nonconformity's reported by the Licensee to Niku in accordance with the
following schedule: (i) critical nonconformity's shall be closed within two (2)
hours of notice to Niku; (ii) serious nonconformity's will be closed within
twelve (12) hours of notice to Niku; and (iii) minor nonconformity's will be
closed in next regular Software update generally distributed by Niku to all
licensees. "Closure" or "closed" consists of Niku providing an update or new
documentation to the Software which eliminates the nonconformance or provides a
work-around solution which enables the user to easily avoid the nonconformance.
4. EXCLUSIONS. The Support Services do not include: (a) repair,
replacement, correction or adjustment of any malfunction caused by: (i)
modification or repair of the Software by anyone other than Niku; or (ii)
accident, catastrophe, abuse, misuse or user error; (b) new products for which
Niku establishes a separate license fee; (c) any expendable items, such as tape
cartridges, magnetic media, and similar items or supplies; or (d) any software
design, development, installation, implementation, or consulting services.
5. LICENSEE DUTIES. Throughout the term for which Licensee has paid for
Support Services, at Licensee's request, Licensee will: (a) provide Niku with
remote log-in access to the computer system(s) on which the Software is
installed at the Licensee's facility so that Niku can perform diagnostic, error
correction, and software downloading services; (b) cooperate with Niku in
identifying the cause of any claimed failure of the Software to substantially
conform to or perform substantially in accordance with the Documentation,
including without limitation, providing Niku with such documentation and other
information concerning any such claimed failure as Niku may reasonably request;
and (c) allow Niku remote and on-site access to the Software and Licensee's
associated equipment for the purpose of performing services under these Support
Terms.
In addition, Licensee will provide front-line support to its End Users. Licensee
will be responsible for and bear all expenses associated with providing
front-line support and Updates to its End Users. Front-line support includes but
is not limited to, call receipt, entitlement verification, call screening,
installation assistance, problem identification and diagnosis and product defect
determination. Licensee agrees that any documentation distributed by Licensee to
its End Users will clearly and conspicuously state that End Users should call
Licensee for technical support for the Software.
6. SERVICE HOURS. The support described in section 2 (c) of this
Agreement will be provided by Niku to Licensee by telephone, facsimile or email
during the business hours of 8:00
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a.m. to 5:00 p.m. US Pacific Standard Time, Monday through Friday, excluding
Niku's public holidays. Notwithstanding the foregoing, critical or serious
nonconformances in Software will be supported on a 24x7x365 basis by pager.
7. PRICES, INVOICING AND PAYMENT. If Licensee decides to purchase
support and maintenance services, Licensee will pay the annual fees specified in
the Agreement. In addition, Licensee will pay all taxes, excluding taxes based
on Niku's net income, payroll, all freight, shipping and insurance costs
associated with delivery of materials to Licensee under this Agreement and all
preapproved travel, lodging, meal and other incidental expenses specifically
incurred by Niku and agreed to by Licensee for furnishing maintenance and
support services to Licensee "on-site" at the Licensee's facility. Software
maintenance fees are payable annually in advance. Niku will invoice Licensee for
the initial fifteen (15) month's Support Fees upon acceptance of the Software,
and Niku will invoice Licensee for additional Support Fees pertaining to each
succeeding twelve (12) month period at or about the commencement of such period.
Niku will invoice Licensee for other charges permitted under this Agreement at
or about the times such charges are incurred; except for payment for the initial
Support Fees, which shall be payable ninety (90) days after invoice, all Support
Fees invoices shall be paid by Licensee within thirty (30) days of receipt.
8. CHANGE IN SUPPORT FEES. Effective upon any twelve (12) month
anniversary of the Effective Date, Niku may increase the amount of the Support
Fees relating to the Software, unless provided otherwise in Exhibit B; provided,
however, that no such increase shall exceed [***] of the amount of the Support
Fees for the twelve (12) month period immediately preceding the effective date
of such increase.
9. TERM AND TERMINATION. These Support Terms shall become effective as
of the Effective Date and shall continue in effect for the initial term
specified above and thereafter for successive one (1) year renewal terms until
terminated as provided in this section. Either party may terminate this
Agreement as of the end of its initial term, or as of the end of any renewal
term, by written notice to the other party at least thirty (30) days prior to
the effective date of termination. In the event that Licensee's license to use
the Software is terminated by Niku or Licensee pursuant to the Agreement, these
Support Terms shall also terminate as to such Software and Niku will refund to
Licensee the amount of any Support Fees already paid with respect to such
Software for service beyond the effective date of termination, prorated on a
daily basis.
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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