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Confidential portions of this Exhibit have been omitted and are identified by
square brackets ([]) and three asterisks (***). Such material has been
separately filed with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
Exhibit 10.9
MICROSOFT CORPORATION
SERVICEWARE KNOWLEDGE BASE LICENSE AGREEMENT
This ServiceWare Knowledge Base License Agreement ("Agreement") is entered
into as of the 29th day of June, 1998 (the "Effective Date") by and between
Microsoft Corporation, a Washington corporation, located at Xxx Xxxxxxxxx Xxx,
Xxxxxxx, Xxxxxxxxxx 00000 ("Microsoft") and ServiceWare Incorporated, located
at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, a Pennsylvania
corporation ("Company").
WHEREAS, Company has a product which consists of structured technical
support articles, which relate to Microsoft and other third party products and
which are targeted at end users in the corporate help desk, home use and small
business markets (collectively referred to herein as "Knowledge Pak");
WHEREAS, Company will provide portions of the Knowledge Pak to Microsoft
which consist of (a) articles pertaining primarily to Microsoft products and
(b) articles originally obtained from Microsoft and subsequently modified by
Company (collectively referred to herein as the "ServiceWare Knowledge Base");
WHEREAS, Company will provide the ServiceWare Knowledge Base to Microsoft
via download over an FTP site on the Internet or via CD format; and
WHEREAS, Microsoft wishes to license such ServiceWare Knowledge Base for
use with on-line support in accordance with the terms of this Agreement.
THEREFORE, the parties agree as follows:
1. License Grant.
a. Company grants to Microsoft and its service providers and other
outsourcing vendors (collectively referred to as "Contractors") a
non-exclusive, worldwide, fully-paid, [***] license to make, use, copy, adapt,
display, broadcast, transmit, distribute the ServiceWare Knowledge Base, in
whole or in part, for Microsoft internal use only.
b. Company grants to Microsoft and its Contractors a non-exclusive,
worldwide, [***] license (i) to make, use, copy, adapt, publicly perform or
display, import, broadcast, transmit and/or distribute the ServiceWare Knowledge
Base, in whole or in part, for use solely in combination with other information
in providing support online via Microsoft's designated support website(s),
including but not limited to the website located at xxxx://xxxxxxxxx.xxx, and
(ii) to sublicense end users of the designated support website(s) the right to
internally use, copy, display, import, transmit and/or distribute on a perpetual
basis those portions of the ServiceWare Knowledge Base obtained by such end
users from the designated support website(s). Microsoft will not remove or
otherwise change any usual disclaimers, copyright notices, trademarks or other
protective notices or hyperlinks on the ServiceWare Knowledge Base licensed to
Microsoft pursuant to this Section. Microsoft acknowledges that the ServiceWare
Knowledge Base will be presented to end users in conjunction with other third
party support content and that Microsoft will not provide a predefined search to
the end users for accessing the ServiceWare Knowledge Base apart from such third
party content, including without limitation the terms "ServiceWare" and
"Knowledge Pak".
c. Company also grants to Microsoft and its Contractors a license during
the term of this Agreement, in connection with use, distribution or promotion
of the ServiceWare Knowledge Base as indicated in Section 1(a) and 1(b), the
worldwide rights to use the Company's name, trademark(s), trade name(s) and/or
logos and to advertise or promote the same in all such media. Notwithstanding
the foregoing, Microsoft shall have no obligation to promote the ServiceWare
Knowledge Base or Company. If Microsoft uses Company's name, trademark(s),
trade name(s) and/or logos in any medium, other than Microsoft internal use or
providing support online, as indicated in Section 1(b), then all such use will
be subject to Company's approval, which approval shall not be unreasonably
withheld.
d. All rights in the ServiceWare Knowledge Base not expressly granted
herein are reserved by COMPANY.
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2. Delivery and Acceptance. Company shall deliver the ServiceWare Knowledge
Base to Microsoft no later than _________________, 1998 and all Updates thereto
pursuant to section 3 below. Upon the delivery of the ServiceWare Knowledge Base
and the Updates thereto to Microsoft, Company shall deliver a report accurately
identifying the source of the information contained in the deliverable and if
such information was obtained from publicly available sources under license
grant, through fair use or otherwise (each a "Source Report"). Microsoft shall
have the right to review and approve the ServiceWare Knowledge Base and any
Updates thereto as specified in Section 3 below. If for any reason within
forty-five (45) days of Microsoft's receipt of the ServiceWare Knowledge Base or
any Updates thereto as specified in Section 3 below, Microsoft determines the
ServiceWare Knowledge Base does not meet its acceptance criteria, Microsoft will
return the ServiceWare Knowledge Base or any Updates to Company and Company
shall correct the ServiceWare Knowledge Base or Updates in a form that is
acceptable to Microsoft. Microsoft's acceptance criteria shall be comprised of
the ServiceWare Knowledge Base performing in accordance with (i) the supporting
end user documentation, (ii) the representations and warranties set forth
herein, and (iii) the Updates (as defined in Section 3 below) of the ServiceWare
Knowledge Base containing sufficient breath and depth regarding the use and
usability of Microsoft products and related software and hardware to be no less
than that contained in the ServiceWare Knowledge Base as of the Effective Date.
3. ServiceWare Knowledge Base Updates. Company agrees to provide Microsoft with
commercially available updates, including but not limited to updated articles
and new articles to the ServiceWare Knowledge Base (collectively "Updates"), no
less than once every three (3) months after the Effective Date and will be
provided to Microsoft for download via an FTP site on the Internet and/or via CD
or other media.
4. Payment. In consideration of the license rights and delivery of the Updates
provided under the terms of this Agreement, Microsoft shall pay Company the
amount of [***] which shall be paid as follows:
a. [***] will be paid for the initial year of the Agreement upon (a) the
Effective Date of this Agreement or (b) upon delivery and Microsoft's acceptance
of the ServiceWare Knowledge Base, whichever occurs later.
b. [***] will be due upon the one year anniversary following the Effective
Date.
c. For each subsequent extension, as may be agreed upon by the parties as
set forth in Section 8(e) below, Microsoft shall pay Company no more than the
amount of [***]
Company shall supply Microsoft with a written invoice for all amounts due under
this Agreement, the payment terms of which shall be net thirty (30) days from
Microsoft's receipt of such invoice, unless otherwise noted in this Section.
5. Company's Obligations, Representations and Warranties.
a. Company warrants and represents that the ServiceWare Knowledge Base
provided to Microsoft by Company under this Agreement is not regulated for
export purposes under the International Traffic in Arms Regulations (ITAR) and
that such ServiceWare Knowledge Base is subject to a general license under
Export Administration Regulations and as such no license is required. If at any
time during the term of this Agreement the above statements are no longer
accurate, Company will notify Microsoft in writing of such change in
classification within twenty-four (24) hours of its knowledge of that
inaccuracy.
b. Company warrants that (i) it has sufficient authority to enter into
this Agreement, (ii) it possesses full authority to grant all licenses and
rights conveyed herein and to perform all covenants and duties specified herein;
and (iii) the ServiceWare Knowledge Base (A) does not infringe upon any
copyright held by any third party; (B) does not contain any encryption/encrypted
technology; and (C) to the best of Company's knowledge, after conducting
generally acceptable quality control checks and reasonable due diligence of the
ServiceWare Knowledge Base, the ServiceWare Knowledge Base provided to Microsoft
by
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Company will contain no libelous, defamatory or false or misleading statements,
will not infringe any trade secret or right of privacy or publicity held by any
third party and does not violate any state or federal laws or regulations in the
United States; and (iv) at the time of delivery to Microsoft, the ServiceWare
Knowledge Base and Updates thereto provided to Microsoft, will perform
substantially in accordance with the applicable end user documentation.
The representations and warranties contained in this Section 5 are continuous in
nature and shall be deemed to have been given by Company at execution of this
Agreement and at each delivery of the ServiceWare Knowledge Base and any updates
provided under Section 3 thereto. These representations and warranties shall
survive termination or expiration of this Agreement.
c. EXCEPT AS SET FORTH IN THIS SECTION 5, COMPANY HEREBY DISCLAIMS ALL
OTHER WARRANTIES REGARDING THE SERVICEWARE KNOWLEDGE BASE, EXPRESS OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
6. Indemnification.
a. Company agrees to indemnify, defend, and hold Microsoft and its
affiliates, and each of their successors, officers, directors and employees
harmless from any damages, costs, liabilities or claims arising out of or in
connection with any action, claim or suit brought against Microsoft that if
taken to be true would be a result of a breach of Company's representations and
warranties set forth in Section 5(b) above (except for Company's breach of its
obligation under Section 2(iii) above to deliver Updates containing sufficient
breath and depth regarding the use and usability of Microsoft products and
related software and hardware, for which this indemnification obligation shall
not apply), provided that Microsoft gives Company (i) written notice of such
claim or suit, (ii) the sole authority to defend and settle the same, provided
that if such settlement shall have a material adverse effect on Microsoft's
rights under this Agreement, Microsoft shall have the right to consent to the
applicability of such settlement agreement to Microsoft, which consent shall not
be unreasonably withheld, and (iii) at Company's expense, any information or
assistance requested by Company in connection with such defense or settlement].
Microsoft may, at its option and at no expense to Company, participate in and/or
observe the defense of such claim or suit.
b. If the use of the version of the ServiceWare Knowledge Base provided
to Microsoft by Company under this Agreement is enjoined by an order of a court
of competent jurisdiction or, if Company believes that such an order is likely,
then Company, at no expense to Microsoft, may use reasonable commercial efforts
to (i) procure for Microsoft the right to continue using such version in
accordance with this Agreement or (ii) modify such version so that it becomes
non-infringing. If (i) or (ii) above are not available to Company, Company shall
refund to Microsoft all amounts paid to Company by Microsoft hereunder during
the prior twelve (12) month period without limiting any other rights or remedies
available to Microsoft. Company shall have no liability for any damages
resulting from any infringement claim after providing written notice to
Microsoft that it should cease such activity due to such a claim if Microsoft
does not cease such activity.
c. Company shall have no liability under any provision of this Agreement,
including without limitation the indemnification provisions set forth in this
Section 6, with respect to (i) any performance problem or claim of infringement
to the extent directly attributable to the Licensed Materials (as defined in the
Non-Exclusive License Agreement (as defined below)) provided by Microsoft to
Company under the terms of that certain Non-Exclusive License Agreement between
Microsoft and Company of even date herewith (the "Non-Exclusive License
Agreement") or (ii) Microsoft's improper modification to the informational
content contained in the ServiceWare Knowledge Base.
7. Disclaimer of Damages and Limitation of Liability.
a. IN NO EVENT WILL MICROSOFT, ITS AFFILIATES, CONTRACTORS OR SUPPLIERS
BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL
DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS
PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY
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OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF THEY HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. EXCEPT AS SPECIFICALLY PROVIDED IN THE FOLLOWING SENTENCE, IN NO
EVENT WILL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR
CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION,
OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF THEY HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF LIABILITY FOR
CERTAIN TYPES OF DAMAGES PROVIDED IN THE PRECEDING SENTENCE SHALL NOT APPLY TO
INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES ARISING FROM
COMPANY'S BREACH OF ANY OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN
SECTION 5(b) ABOVE (EXCEPT FOR COMPANY'S BREACH OF ITS OBLIGATION UNDER SECTION
2(iii) ABOVE TO DELIVER UPDATES CONTAINING SUFFICIENT BREATH AND DEPTH
REGARDING THE USE AND USABILITY OF MICROSOFT PRODUCTS AND RELATED SOFTWARE AND
HARDWARE, FOR WHICH THE DISCLAIMER OF DAMAGES AS STATED IN THE PRECEDING
SENTENCE SHALL APPLY).
c. IN NO EVENT SHALL THE TOTAL LIABILITY OF MICROSOFT OR ANY OF ITS
AFFILIATES, CONTRACTORS OR SUPPLIERS UNDER THIS AGREEMENT, WHETHER FOR TORT
(INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), STRICT LIABILITY, BREACH OF
CONTRACT, BREACH OF WARRANTY OR OTHERWISE, IN THE AGGREGATE, EXCEED THE SUM OF
SEVEN HUNDRED FIFTY THOUSAND DOLLARS (US$750,000.00) UNDER THIS AGREEMENT.
d. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY UNDER THIS
AGREEMENT, WHETHER FOR TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), STRICT
LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHERWISE, IN THE
AGGREGATE, EXCEED THREE MILLION DOLLARS (US$3,000,000), PLUS ANY AMOUNTS
EXPENDED DEFENDING AGAINST SUCH INDEMNIFIED CLAIMS PURSUANT TO SECTION 6 ABOVE.
THE LIMITATION OF LIABILITY OF COMPANY PROVIDED IN THE PRECEDING SENTENCE SHALL
NOT APPLY TO COMPANY'S BREACH OF SECTION 5(b) ABOVE (EXCEPT FOR COMPANY'S
BREACH OF ITS OBLIGATION UNDER SECTION 2(iii) ABOVE TO DELIVER UPDATES
CONTAINING SUFFICIENT BREATH AND DEPTH REGARDING THE USE AND USABILITY OF
MICROSOFT PRODUCTS AND RELATED SOFTWARE AND HARDWARE, FOR WHICH THE THREE
MILLION DOLLAR (US$3,000,000) LIABILITY CAP AS STATED IN THE PRECEDING SENTENCE
SHALL APPLY) OR OBLIGATIONS UNDER SECTION 6(a) ABOVE, IN WHICH CASE IN NO EVENT
SHALL THE TOTAL LIABILITY OF COMPANY UNDER THIS AGREEMENT IN THE AGGREGATE,
EXCEED TWELVE MILLION DOLLARS (US$12,000,000), PLUS ANY AMOUNTS EXPENDED
DEFENDING AGAINST CLAIMS OF INFRINGMENT PURSUANT TO SECTION 6 ABOVE.
8. Term and Termination.
a. This Agreement will commence as of the Effective Date and continue
for a period of two (2) years, unless earlier terminated as provided for
hereunder.
b. Either party may terminate this Agreement with cause upon thirty (30)
days written notice to the other party advising the other party of the nature
of the default, provided that such default is not thereafter cured within such
thirty (30) day period.
c. Beginning one year from the Effective Date, either party may
terminate this Agreement without cause or obligation to the other party at any
time upon giving ninety (90) days' notice to the other party.
d. In the event Microsoft terminates this Agreement at any time with
cause or Company terminates this Agreement without cause after the first year
of the Agreement, then Company shall refund a pro rata portion
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of the monies paid by Microsoft under this Agreement. In the event this
Agreement is terminated with cause, any such refund will be in addition to any
other remedies Microsoft may have in law or equity as a result of Company's
breach. Any refund due to Microsoft under this Section shall be based upon the
number of days remaining in the term of the Agreement at a rate of Two Thousand
Seven Hundred Dollars ($2,740) per day.
e. Following the initial two (2) year term, the term of this Agreement
shall be deemed extended for additional one (1) year periods only upon written
agreement by the parties. In the event of renewal, Microsoft shall pay Company
the yearly fee as set forth in Section 4(c).
f. Upon termination of this Agreement, Microsoft shall promptly remove
any ServiceWare Knowledge Bases it may have posted on web servers under the
terms of this Agreement.
9. Notices. All notices, authorizations and requests in connection with this
Agreement will be deemed given on the day they are: (a) deposited in the U.S.
Mail, postage paid, certified or registered, return receipt requested; or (b)
sent air express courier, charges paid and addressed as follows:
Company: ServiceWare, Inc
000 Xxxxxxxxx Xxx
Xxxxxxx XX 00000
Attention: Xxxx XxXxxxxxx, CFO
Microsoft: Microsoft Corporation
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
Attention: ___________________
With a copy to: Law and Corporate Affairs
10. Miscellaneous.
a. In the event that any provision of this Agreement is found invalid or
unenforceable pursuant to judicial decree or decision, the remainder of this
Agreement shall remain valid and enforceable according to its terms. The
parties intend that the provisions of this Agreement be enforced to the fullest
extent permitted by applicable law. Accordingly, the parties agree that if any
provisions are deemed not enforceable, they shall be deemed modified to the
extent necessary to make them enforceable.
b. Any waiver, amendment, or modification of any right, remedy or other
term under this Agreement will not be effective unless in writing and signed by
the party against whom enforcement is sought.
c. This Agreement shall be construed and controlled by the laws of the
State of Washington, and Company and Microsoft further consent to jurisdiction
by the state or federal courts sitting in the state where defendant is
incorporated. Process may be served on either party by U.S. Mail, postage
prepaid, certified or registered, return receipt requested, or by such other
method as is authorized by law.
d. If either Microsoft or Company employs attorneys to enforce any
rights arising out of or related to this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees and costs, including expert
witness fees.
e. Company and Microsoft may not assign this Agreement (by operation of
law or otherwise), or any portion thereof, to any third party unless the other
party expressly consents to such assignment in writing, such consent not to be
unreasonably withheld. Any attempted assignment without such consent shall give
the other party the right to terminate this Agreement effective upon written
notice. For purposes of this Agreement, a merger, consolidation, or other
corporate reorganization, or a transfer or sale of any or all of a party's
stock, or of all or substantially all of its assets, shall not be deemed to be
an assignment requiring consent from the other party, provided such transaction
is not with a competitor of the other party.
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f. This Agreement does not establish the relationship of a partnership,
joint venture, franchise, or principal and agent among the parties, and neither
party shall have any authority to incur obligations or take other actions on
behalf of the other party to this Agreement.
g. The parties' exchange of confidential information, if any, during the
term of this Agreement shall be governed by the terms and conditions of the
Microsoft Corporation Standard Non-Disclosure Agreement ("NDA") between the
parties, effective January 7, 1977, attached hereto as Exhibit A. The parties
agree that the terms and conditions of that NDA shall be mutual, and govern
Company's disclosure of confidential information, if any, to Microsoft as well.
h. The parties hereto agree that this Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior and contemporaneous communications. It shall not be
modified except by a written agreement dated subsequent hereto and signed on
behalf of Company and Microsoft by their respective duly authorized
representatives. Neither this Agreement nor any written or oral statements
related hereto constitute an offer, and this Agreement shall not be legally
binding until executed by both parties.
i. No waiver of any breach of any provision of this Agreement will
constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver will be effective unless made in
writing and signed by an authorized representative of the waiving party.
j. Company and Microsoft each acknowledge that the limitations and
exclusions contained in this Agreement have been the subject of active and
complete negotiation between the parties and represent the parties' agreement
based upon the level of risk to Company and Microsoft associated with their
respective obligations under this Agreement and the payments to be made to
Microsoft and credits to be issued to, and services to be provided to, Company
pursuant to this Agreement. The parties agree that the terms and conditions of
this Agreement shall not be construed in favor of or against any party by reason
of the extent to which any party or its professional advisors participated in
the preparation of this Agreement.
k. Sections 1, 5, 6, 7, 8, 9 and 10 shall survive termination or
expiration of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement by an
authorized representative of each party as of the later of the dates indicated
below.
MICROSOFT CORPORATION SERVICEWARE, INCORPORATED
/s/ Xxxx X. Xxxxxx /s/ Xxxx Xxxxxx
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Name Name
Group Vice President Chairman and CEO
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Title Title
6-29-98 17 June 1998
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Date Date
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