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EXHIBIT 10.8
SOFTWARE LICENSE AGREEMENT
This software License Agreement (the "Agreement") is dated as of March
18, 1999 (the "Agreement Date"), and is by and between SilverStream Software,
Inc., a Delaware corporation with its principal offices at Xxx Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxxxx, XX 00000 ("Licensor") and Firepond, Inc., a Minnesota
corporation, with Its principal offices at 0000 Xxxxxxx Xxxxx, Xxxxxxx, XX 00000
("Licensee").
WHEREAS, Licensor has developed and/or otherwise possesses rights to
certain computer software which It refers to as "SilverStream Designer", and
WHEREAS, Licensee desires to license such software for integration by
Licensee in Its products In anticipation of the execution of a mutually
agreeable ISBN Business Partner Agreement between Licensor and Licensee (the
"ISV Agreement") and Licensor is willing to grant to Licensee a non-exclusive
license for such purposes on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of these premises and the mutual
covenants herein contained, the parties hereby agree as follows:
1. DEFINITIONS.
1.1 "LICENSED SOFTWARE" means the SilverStream Designer software
described in Exhibit A attached hereto in Source Code Form and in Object Code
Form,
1.2 "OBJECT CODE FORM" means a form of software code resulting
from the translation or processing of a computer program in Source Code Form by
a computer into machine language or intermediate code, which thus is in a form
that would not be convenient to human understanding of the program logic, but
which Is appropriate for execution or interpretation by a computer.
1.3 "FIREPOND PRODUCT" means the Firepond Workbench Product
described in Exhibit B attached hereto.
1.4 "SOURCE CODE FORM" Means a form in which a computer program's
logic is easily deduced by a human being with skill In the art, such as a
printed listing of the program or a form from which a printed listing can be
easily generated.
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2. LICENSES
2.1 Subject to the terms and conditions contained herein, Licensor
grants the Licensee, and the Licensee accepts, a worldwide, non-exclusive,
nontransferable right and license to use, copy, modify, enhance and prepare
derivative works of the Licensed Software in Source Code Form and Object Code
Form solely for the purpose of embedding the Licensed Software In the Firepond
Product and a worldwide, nonexclusive, nontransferable right and license (with
the right to sublicense provided the ISV Agreement is In effect) to distribute
the Licensed Software in Object Code Form only. Licensor also grants the
Licensee, and the Licensee accepts, a worldwide, nonexclusive, nontransferable
right and license (with the right to sublicense provided the ISV Agreement is in
effect) to use, copy, modify, enhance, prepare derivative works of and
distribute any user manuals and other documentation supplied by the Licensor,
2.2 Licensee agrees that the Licensed Software will not be sold or
priced separately or listed, or otherwise identified, on a price list as being
available on a standalone basis.
2.3 Licensee and its sublicensees and distributors will only
distribute the Licensed Software in Object Code Form pursuant to license
agreements that provides that the (i) sublicensee shall not disassemble or
reverse engineer the Licensed Software included with the Firepond Product, (ii)
sublicensee Is notified that portions of the software Included in the Firepond
Product have been licensed from Licensor; and (iii) provisions of such license
agreement inure to the benefit of Licensor where applicable.
2.4 In consideration of the licenses granted herein by Licensor,
Licensee shall pay to Licensor the fees and royalties. and purchase the update
and maintenance services, as provided in the ISV Agreement.
2.5 Licensee agrees that the Licensed Software and all derivative
works thereof shall be used only with the Firepond Product in accordance with
the terms of the ISV agreement.
2.6 Under no circumstances shall Licensee distribute any portion
of the Licensed Software in Source Code Form.
3. DELIVERY OF LICENSED SOFTWARE.
Licensor shall provide the Licensee with one (1) complete copy of the
Licensed Software in Source Code Form upon execution of this Agreement. IN
ADDITION, THE LICENSOR SHALL, FOR SO LONG AS THE ISV AGREEMENT IS IN EFFECT AND
CONCURRENTLY WITH ANY RELEASE OF A NEW VERSION OF THE LICENSOR'S APPLICATION
SERVER SOFTWARE (A "NEW VERSION"), DELIVER AN UPDATED VERSION OF THE LICENSED
SOFTWARE WHICH IS FULLY COMPATIBLE
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WITH THE NEW VERSION AND HAS AT LEAST ALL OF THE FUNCTIONALITY OF THE VERSION OF
THE LICENSED SOFTWARE WHICH IS GENERALLY AVAILABLE PRIOR TO THE RELEASE OF SUCH
NEW VERSION.
4. OWNERSHIP OF SOFTWARE
4.1 LICENSED SOFTWARE. Licensor shall retain all its rights, title
and interest in the Licensed Software, except for the license rights granted to
License hereunder and under the terms of the ISV Agreement.
4.2 COPYRIGHT NOTICES. The Licensee shall disclose that portions
of the Firepond Product are licensed from SilverStream and are copyrighted by
SilverStream
5. TERM AND TERMINATION.
5.1 TERM. This Agreement shall commence on the Agreement Date and
shall continue until terminated pursuant to Section 5.2; provided however, that
this Agreement shall terminate automatically at 5:00 p.m. (Boston time) on March
31, 1999 if the parties have not entered Into the ISV Agreement on or before
such date
5.2 GROUNDS FOR TERMINATION. This Agreement may be terminated:
(a) By Licensee upon notice to Licensor,
(b) By either party in the event the other party
materially breaches a Provision of this Agreement and the breaching party fails
to cure such breach within thirty (30) days of the receipt of written notice of
such breach from the non-breaching party.
5.3 EFFECTS OF TERMINATION.
(a) Upon termination of this Agreement, all rights,
obligations and licenses of the parties hereunder shall cease.
(b) Immediately after the termination on the grounds of a
material breach by the Licensee the Licensee shall have no further right to use,
copy, modify, enhance, create derivative works of, or distribute the Licensed
Software, provided, however, that Licensee shall continue to have the right to
use the Licensed Software for the sale purpose of maintaining and supporting the
Licensed Software for its licensees of the Firepond Product and Licensee's end
users shall continue to have the right to use the Licensed Software in
accordance with the terms of their end user license agreements.
(c) The provisions of Sections 6 (Confidentiality), 7
(Warranty and
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Disclaimer of Warranty), 8 (Infringement Indemnification), 9 (Limitations on
Liability), 10 (Compliance with Laws), 11 (Notices), 12 (General Provisions) and
this Section 5 shall survive any termination or expiration of this Agreement
according to their terms.
(d) In the event of the automatic termination of this
Agreement as provided in Section 5.1 above, Licensee shall immediately return to
Licensor all copies of the Licensed Software and related documentation and
destroy all copies of enhancements, and modifications to, and derivative works
of, the Licensed Software and certify in writing to the Licensor to that effect.
6. CONFIDENTIALITY.
6.1 CONFIDENTIAL INFORMATION. The licensee agrees and acknowledges
that in order to facilitate the use of the Licensed Software, Licensor may
disclose to licensee certain confidential information which will be identified
as such in writing ("Confidential Information"). the Licensed Software in Source
Code Form shall be regarded as Confidential Information of licensor whether or
not it is identified in writing as "Confidential."
6.2 PROTECTION OF PROPRIETARY INFORMATION. In order to protect the
confidentiality of the Confidential Information Licensee agrees:
(a) Not to disclose or otherwise permit any other person
or entity access to, in any manner, the Confidential Information, or any part
thereof in any form whatsoever, except that such disclosure or access shall be
permitted to employees and agents of the Licensee requiring access to the
Confidential Information in the course of their work for Licensee, and who have
signed an agreement or agreements obligating them to maintain the
confidentiality of the Confidential Information of third parties in the
Licensee's possession and assigning to Licensee any of their inventions or
developments related to their work for Licensee;
(b) To notify Licensor promptly and in writing of the
circumstances surrounding any suspected possession, use or knowledge of the
Confidential Information or any part thereof at any location or by any person or
entity other than those authorized by this Agreement;
(c) Not to use the Confidential Information for any
purpose other than as explicitly set forth herein; and
(d) To provide in writing to Licensor the name of each
individual ranted access to the Confidential Information prior to the granting
of such access.
6.3 EXCEPTIONS. Nothing In this Section 6 shall restrict the
Licensee with respect to information or data, whether or not identical or
similar to that contained in the
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Confidential Information, if such information or data: (a) was rightfully
possessed by the Licensee before it was received from Licensor; (b) is
independently developed by the Licensee without reference to Licensor's
Confidential Information or data; (c) is subsequently furnished to the Licensee
by a third party not under any obligation of confidentiality with respect to
such information or data, and without restrictions on use or disclosure; or (d)
is or becomes public or available to the general public otherwise than through
any act or default of the Licensee. In addition, nothing in this agreement shall
prohibit Licensee from using information relating to ideas, concepts and
techniques retained In the memories of individual employees or agents without
the aid of any document or other recorded stored Information.
6.4 INJUNCTIVE RELIEF. Because the unauthorized use, transfer or
dissemination of any Confidential Information provided by Licensor to Licensee
may diminish substantially the value of such materials and may irreparably harm
Licensor, if the Licensee breaches the provisions of this Section 6, Licensor
shall, without limiting its other rights or remedies, be entitled to equitable
relief, including but not limited to injunctive relief.
7. WARRANTY AND DISCLAIMER OF WARRANTY.
THE LICENSED SOFTWARE IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY
KIND AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED,
ORAL OR WRITTEN, WITH RESPECT TO THE LICENSED SOFTWARE INCLUDING, WITHOUT
LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE. NOTWITHSTANDING THE FOREGOING, THE
LIMITATIONS ON AND DISCLAIMERS OF REPRESENTATIONS, WARRANTIES AND INDEMNITIES
SET FORTH IN THIS AGREEMENT SHALL NOT BE CONSTRUED TO LIMIT OR QUALIFY ANY
REPRESENTATIONS, WARRANTIES OR INDEMNITIES ON THE OBJECT CODE FORM OF THE
LICENSED SOFTWARE FORTH IN THE ISV AGREEMENT.
8. INFRINGEMENT: INDEMNIFICATION
8.1 Except as provided below, Licensor shall defend and indemnify
Licensee from and against any damages, liabilities, Costs and expenses
(including reasonable attorneys' fees) arising out of any claim that the
Licensed Software infringes a valid United States patent, copyright or other
intellectual property right of a third party, PROVIDED THAT (ii) Licensee shall
have promptly provided Licensor written notice thereof and reasonable
cooperation, information, and assistance in connection therewith, and (ii)
Licensor shall have sole control and authority with respect to the defense,
settlement, or compromise thereof. Should any Licensed Software become or, in
Licensor's opinion, be likely to become the subject of an injunction preventing
its use as contemplated herein, Licensor may, at its option, (1) procure for the
Licensee the right
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to continue using such Licensed Software, (2) replace or modify such Licensed
Software so that it becomes non-infringing, or, if (1) and (2) are not
reasonably available to Licensor, then (3) terminate Licensee's license to the
allegedly Infringing Licensed Software.
8.2 Licensor shall have no liability or obligation to Licensee
hereunder with respect to any patent, copyright trade secret or other
intellectual property infringement, misappropriation or claim thereof based upon
(i) use of the Licensed Software by Licensee or its licensees in combination
with products or software riot provided by Licensor, or (ii) modifications,
alterations or enhancements of the Licensed Software not created by or for
Licensor,
8.3 Except as may otherwise be provided in the ISV Agreement, the
foregoing states the entire liability of Licensor with respect to Infringement
of patents, copyrights, trade secrets and other Intellectual property rights by
the Licensed Software or any part thereof or by Its operation.
9. LIMITATIONS ON LIABILITY
9.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA,
OR PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT
OF OR IN CONNECTION WITH THE USE OR PERFORMANCE Or THE LICENSED SOFTWARE,
9.2 Licensee will immediately inform Licensor as soon as Licensee
becomes aware of any threatened or actual liability claim by a third party
relating to the Licensed Software,
10. COMPLIANCE WITH EXPORT LAWS.
Licensee shall not export, directly or indirectly, the Licensed
Software, or other information or materials provided by Licensor hereunder, to
any country for which the United States or any other relevant jurisdiction
requires any export license or other governmental approval at the time of export
without first obtaining such license or approval.
11. NOTICES
Any notice or communication from one party to the other shall be in
writing and either personally delivered or sent via facsimile or certified mail,
postage prepaid and return receipt requested addressed, to such other party at
the address specified below or such other address as either party may from time
to time designate in writing to the other party.
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If to Licensor: SilverStream Software, Inc.
Xxx Xxxxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn.: President
with a copy to: Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: Xxxx X. Xxxxx, Esq.
If to the Licensee: Firepond Inc,
HQ Waltham
Bay Colony Corporate Center IV
0000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxxx
with a copy to: Xxxxxxx, Procter and Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxx III, P.C.
No change of address shah be binding upon the other party hereto until
written notice thereof is received by such party at the address show herein. All
notices shall be in English and shall be effective upon receipt.
12. GENERAL PROVISIONS.
12.1 FORCE MAJEURE. In the event that either party is prevented
from performing, or is unable to perform, any of its obligations under this
Agreement due to any cause beyond the reasonable control of the xxxxx invoking
this provision, the affected party's performance shall be excused and the time
for performance shall be extended for the period of delay or inability to
perform due to such occurrence.
12.2 WAIVER. The waiver by either party of a breach or a default of
any provision of this Agreement by the other party shah not be construed as a
waiver of any succeeding breach of the same or any other provision, nor shall
any delay or omission on the part of either party to exercise or avail Itself of
any right, power or privilege that it has, or may have hereunder operate as a
waiver of any right power or privilege by such party.
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12.3 NO AGENCY; INDEPENDENT CONTRACTORS. Nothing contained in this
Agreement shall be deemed to imply or constitute either party as the agent or
representative of the other party, or both parties as joint ventures or partners
for any purpose.
12.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without regard to its choice of low provisions.
12.5 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Exhibits
attached hereto constitute (together with the ISV Agreement if one is in effect)
the entire agreement between the parties with regard to the subject matter
hereof. No waiver, consent modification or change of terms of this Agreement
shall bind either party unless in writing signed by both parties, and then such
waiver, consent, modification or change shall be effective only in the specific
instance and for the specific purpose given.
12.6 MISCELLANEOUS. All rights and licenses granted under or
pursuant to this Agreement by Licensor to Licensee are, and shall otherwise be
deemed to be, for purposes of Section 365(n) of the United States Bankruptcy
Code (the "Code"), licenses to rights in "intellectual property," as defined in
the Code.
12.7 HEADINGS. Captions and headings contained in this Agreement
have been included for ease of reference and convenience and shall not be
considered in interpreting or construing this Agreement.
12.8 COSTS, EXPENSES AND ATTORNEYS' FEES. If either party commences
any action or proceeding against the other party to enforce or interpret this
Agreement, the prevailing party in such action or proceeding shall be entitled
to recover from the other party the actual costs, expenses and reasonable
attorneys' fees (including all related costs and expenses), incurred by such
prevailing party in connection with such action or proceeding and in connection
with obtaining and enforcing any judgment or order thereby obtained.
IN WITNESS WHEREOF, the parties, have caused this Agreement to be
executed by their duly authorized representatives.
SILVERSTREAM SOFTWARE, INC. FIREPOND, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------- -----------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Director, Channel Sales Title: Secretary
Date: 3/31/99 Date: 3/31/99
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EXHIBIT A
LICENSED SOFTWARE
This Exhibit A is incorporated in its entirety as part of this Software
License Agreement between Licensor and Licensee.
LICENSED SOFTWARE:
The SilverStream Designer Source Code
Packages that begin with the following files;
[ * * * ]
[ * * * ] Confidential treatment has been requested for the bracketed
portions. The confidential redacted portion has been filed
separately with the Securities and Exchange Commission.
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EXHIBIT B
FIREPOND PRODUCT
This Exhibit B is incorporated in its entirety as part of this
Software License Agreement between Licensor and Licensee.
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BUSINESS PARTNER AGREEMENT
Partner FirePond, Inc.
Partner Address: 0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Incorporated in the State of: Minnesota
Telephone: 000-000-0000 000-000-0000
Fax:
e-Mail: URL:
This Agreement and the Exhibits which form part of it set forth the terms
applicable to you as a SilverStream Business Partner. By signing this Agreement
Partner agrees to the General Terms and the Exhibits applicable to each category
selected below.
Partner Category:
[X] SilverStream Independent Software Vendor (ISV) Partner
This Agreement takes effect as of the last date written below.
SILVERSTREAM SOFTWARE, INC. PARTNER FIREPOND, INC.
Signature /s/ Xxxx X. Xxxxx Signature /s/ Xxxxxx X. Xxxxxxxx
----------------------- ----------------------
Name (please print) Xxxx X. Xxxxx Name (please print) Xxxxxx X. Xxxxxxxx
Title Director, Channel Sales Title Secretary
Date 3/31/99 Date 3/31/99
SilverStream Software, Inc. Xxx Xxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx,
XX 00000, XXX.
Tel (000) 000 0000, Fax (000) 000 0000
Confidential 1998
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1. APPOINTMENT
SilverStream appoints Partner as a non-exclusive member of the SilverStream
Business Partner Program in the Territory for the category(s) selected
(individually a "Category") on the face page of this Agreement. SilverStream and
Partner acknowledge their respective benefits and obligations as outlined in the
Exhibits attached hereto. SilverStream may in all Categories (but not in the ISV
Category) from time to time change the terms and conditions as outlined in
Exhibits by giving the Partner 30 days notice. Partner represents that it meets
or will meet within 60 days of the date hereof the program requirements
specified in Exhibit B and agrees to maintain such qualification during the
period of this Agreement.
2. TERM
This Agreement shall be for an initial term of One (1) years ("Initial Term")
commencing on the date hereof and this Agreement shall automatically renew for
FOUR subsequent one (1) year periods unless terminated as elsewhere herein
provided.
3. GRANT OF LICENSES
3.1 Subject to the terms and conditions of the Agreement, SilverStream
hereby grants to the Partner, and the hereby accepts, the license set
forth in Exhibit A for the Products as designated in Exhibit A. To the
extent permitted herein, the distribution of any Product by Partner AND
ITS DISTRIBUTORS, RESELLERS AND PARTNERS shall be subject to the terms
and conditions of SilverStream's shrink-wrap sublicense agreements
under which each end user sublicensee agrees: (i) to operate and
process the Product for its own business purposes only, without the
rights to further sublicense; (ii) not to copy or reproduce the
Product, in whole or in part, except as permitted in writing; (iii) not
to modify, adapt, translate, decompile, disassemble or reverse engineer
(except to the extent SilverStream is required by applicable law to
allow you to reverse engineer the software) the Product in any manner,
and (iv) that the sublicense agreement inures to the benefit of
SilverStream, and that SilverStream may directly enforce the terms of
the sublicense agreement in order to protect its interest in the
Products.
3.2 EXCEPT AS PROVIDED IN A CERTAIN SOFTWARE LICENSE AGREEMENT DATED THE
DATE HEREOF (THE "SOURCE CODE AGREEMENT") NEITHER Partner nor any
persons or entities who directly or indirectly purchase or license
Products from or who have the Products marked to them by, the Partner
in accordance with this Agreement ("Customers") shall have any right to
create derivative works of the Products.
3.3 Title to and ownership of the Products, including all patents,
copyrights and property rights applicable thereto, shall at all times
remain solely and exclusively with SilverStream or its licensors, and
neither the Partner nor any Customer shall take any action inconsistent
with such title and ownership.
3.4 SilverStream, may at its option, make available to Partner certain
software, media and/or related documentation for products or versions
of products not generally commercially available ("Pre-released
SOFTWARE"). Partner agrees to use Pre-released Software for testing and
evaluation purposes only, and to treat Pre-released Software as
Confidential Information and trade secrets subject to the provisions of
this Agreement. Partner agrees to abide by the terms of the shrink-wrap
license associated with such Pre-released Software.
Confidential 1998
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4. PRICES, PAYMENT AND AUDIT
4.1 Partner agrees to pay the "Partner Price" as a license fee for each
Product ordered hereunder. The Partner Price shall equal SilverStream's
suggested MSRP ("Base Price") for Products ordered, less the applicable
discount (the "Discount"), set forth in the North American Price List
("Price List") in Exhibit C. All Base Prices and Partner Prices are in
U.S. Dollars and F.O.B. SilverStream's point of shipment. All payments
from Partner to SilverStream shall be made in U.S. Dollars. Payments
from Canadian Partners may be made in Canadian Dollars if the
SilverStream invoice to the Partner is prepared by SilverStream in
Canadian Dollars.
4.2 SilverStream in its sole discretion, shall have the right from time to
time, to change the Base Prices and Discounts and/or add or delete
products to or from the Price List by giving 30 days' prior written
notice to the Partner. Orders accepted by SilverStream prior to the
effective date of any such change and scheduled for delivery within 30
days following receipt by SilverStream shall be processed at the lower
of (i) the Base Prices and/or Partner Prices in effect on the date of
acceptance of the order or (ii) the Base Prices and/or Partner Prices
in effect on the scheduled shipment date.
4.3 The payment terms for Product ordered shall be net thirty (30) days and
if Partner fails to pay any amounts when due, the Partner shall pay
SilverStream a late payment charge equal to 1.5% per month or if lesser
the maximum amount permitted by law. SilverStream reserves the right to
require full or partial payment in advance, or to revoke any credit
previously extended, if, in SilverStream's judgment, the Partner's
financial condition does not warrant proceeding on the terms specified.
4.4 SILVERSTREAM SHALL HAVE THE RIGHT, SUBJECT TO REASONABLE ADVANCE
NOTICE, AND NO MORE OFTEN THAN ONCE PER CALENDAR YEAR, TO HAVE AN
INDEPENDENT AUDITOR OF NATIONALLY RECOGNIZED STANDING ACCEPTABLE TO
PARTNER (WHICH ACCEPTANCE MAY BE CONDITIONED UPON APPROPRIATE
UNDERTAKINGS REGARDING CONFIDENTIALITY BUT SHALL NOT IN ANY EVENT BE
UNREASONABLY WITHHELD) inspect such books and records of Partner, at
Partner's principal place of business, as are necessary to verify the
reports provided by Partner to SilverStream. Any such audit shall be at
the expense of SilverStream, unless such audit discloses an
underpayment by the Partner in excess of TEN PERCENT (10%) IN ANY
THREE-MONTH PERIOD, IN WHICH CASE PARTNER shall reimburse SilverStream
for such expenses. Any underpayment by Partner shall be promptly paid
to SilverStream together with interest as provided in this Section.
5. TAXES AND IMPORT DUTIES
Base Prices and Partner Prices are exclusive of all federal, state, municipal,
excise, sales, use, value added, property and other similar taxes and import
duties, now in force or enacted in the future by any community of nations or any
nation or political subdivision, all of which shall be paid by the Partner,
except for such taxes as are imposed on SilverStream's income, which shall be
paid by SilverStream. The Partner is responsible for obtaining and providing to
SilverStream any certificate of exemption or similar document required to exempt
any sale from sales, use or similar tax liability.
6. MASTER DISKS AND AUTHORIZED LICENSE CODES
Master Disks and authorized license codes. Partner is authorized to distribute
Application Deployment Servers and is authorized to make Evaluation Copies and
Demonstration Copies of the Software and copies of the Software to be licensed
as Application Deployment Servers from the Master Disks ("Master Disks") and
authorized license codes that SilverStream will make available to Partner.
Partner may make a reasonable number of Evaluation and Demonstration copies that
may be distributed without Royalties provided that the Partner receives no
revenue associated with the Evaluation and Demonstration Copies and Evaluation
and Demonstration Copies contains a license code, as provided by SilverStream,
that causes the Software to cease functioning 60 days after installation.
Partner must maintain adequate security over Master Disks and authorized license
codes and shall allow only a limited number of employees to make copies from
Master Disks. Partner shall fully account for all copies of the Software.
Partner shall not modify or alter and proprietary rights notices contained
within the Software. Partner is strictly prohibited from providing access or
transferring the Master Disks or license codes to any third party.
Confidential 1998
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7. OBLIGATIONS OF THE PARTNER
Partner shall undertake all obligations set forth as Program Requirements on
Exhibit B.
8. WARRANTIES
SILVERSTREAM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR
ORAL, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
SILVERSTREAM'S LIABILITY FOR DAMAGES TO THE PARTNER FOR ANY CAUSE WHATSOEVER
REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED THE AGGREGATE
PAID FOR PRODUCTS UNDER THIS AGREEMENT. EXCEPT FOR LIABILITY FOR DAMAGES ARISING
UNDER SECTIONS 3, 4, AND/OR 11.1 FOR WHICH NOT LIMITATION SHALL APPLY, PARTNER'S
LIABILITY FOR DAMAGES TO SILVERSTREAM FOR ANY CAUSE WHATSOEVER, REGARDLESS OF
THE FORM OF ANY CLAIM OR ACTION, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE
AGGREGATE PAID BY PARTNER FOR PRODUCTS UNDER THIS AGREEMENT. EXCEPT FOR
PARTNER'S LIABILITY FOR DAMAGES TO SILVERSTREAM ARISING UNDER SECTIONS 3 OR
11.1, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF DATA, PROFITS OR USE OF THE
PRODUCTS, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL
LOSS DAMAGES ARISING HEREUNDER EVEN IF SILVERSTREAM HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SILVERSTREAM BE LIABLE TO
CUSTOMERS OR OTHER THIRD PARTIES NOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO:
(i) DAMAGES CAUSED BY THE PARTNER'S FAILURE TO PERFORM COVENANTS AND
RESPONSIBILITIES, BY REASON OF SILVERSTREAM'S NEGLIGENCE OR OTHERWISE; (ii)
DAMAGES CAUSED BY REPAIRS OR MODIFICATIONS DONE WITHOUT SILVERSTREAM'S WRITTEN
APPROVAL; OR (iii) LOSS OF DATA, OR PROFITS OR USE OF THE PRODUCTS OR ANY
SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSS DAMAGES IN
CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS. THE PARTNER SHALL
INDEMNIFY SILVERSTREAM AGAINST ALL SUCH CLAIMS ASSERTED BY ITS CUSTOMERS OR
OTHER THIRD PARTIES AGAINST SILVERSTREAM.
Indemnification by the Partner. To the extent a claim or action is brought
against SilverStream based on or related to the Partner's failure to observe or
perform its obligations under this Agreement, including its obligation to notify
customers of limitation and disclaimers of warranties and liabilities, the
Partner shall defend and hold SilverStream harmless from and against any and all
damages, costs and expenses, including reasonable attorney's fees, suffered by
or awarded against SilverStream.
9. PATENTS AND TRADEMARKS
9.1 INFRINGEMENT INDEMNIFICATION BY SILVERSTREAM. IN THE EVENT OF ANY
ACTION OR CLAIM ALLEGING THAT THE PRODUCTS INFRINGE ANY PATENT,
COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY
RIGHTS OF ANY THIRD PARTY, SILVERSTREAM SHALL INDEMNIFY, DEFEND AND
HOLD THE PARTNER HARMLESS FROM ALL CLAIMS, LIABILITIES, DAMAGES,
EXPENSES, JUDGEMENTS AND LOSSES (INCLUDING REASONABLE ATTORNEYS' FEES)
ARISING FROM SUCH ACTION OR CLAIM AT ITS EXPENSE AND PAY ALL COSTS AND
DAMAGES FINALLY AWARDED IN SUCH ACTION OR SETTLEMENT WHICH ARE
ATTRIBUTABLE TO SUCH CLAIM. SilverStream MAY ASSUME sole control of the
defense of any such action and all negotiations for its settlement or
compromise. The Partner shall cooperate fully with SilverStream in the
defense, settlement or compromise of any such action. In the event that
a final injunction is obtained against the Partner's use of the Product
by reason of infringement of a valid patent, copyright, trade secret or
other intellectual property right, or if in the REASONABLE opinion of
SilverStream the Product is likely to become the subject of a
successful claim of such infringement, SilverStream shall, at its
option and expense, (i) procure for the Partner and its Customers the
right to continue using the Product, (ii) replace or modify the Product
so that it becomes non-infringing so long as its functionality is
essentially unchanged, or (iii) if neither (i) and (ii) are reasonably
available to SilverStream, terminate the license for the Products AND
REFUND ALL LICENSE FEES PAID TO SILVERSTREAM
Confidential 1998
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HEREUNDER.
9.2 Notwithstanding the foregoing, SilverStream shall have no liability to
the Partner to the extent that any infringement or claim thereof is
based upon (i) use of any Product in combination with equipment or
software not supplied by SilverStream where the Product would not
itself be infringing, (ii)compliance with designs, specifications or
instructions of the Partner or any of its Customers, (iii) use of any
Product in any application or environment for which its was not
designed or contemplated hereunder, (iv) modifications of the Products
by anyone other than SilverStream, or (v) any claims or infringement of
any patent, copyright or trade secret in which the Partner or any
affiliate of the Partner has an interest or license.
9.3 THE FOREGOING INDEMNIFICATION PROVISIONS STATE THE ENTIRE LIABILITY OF
SILVERSTREAM WITH RESPECT TO INFRINGEMENT OR ALLEGED INFRINGEMENT OF
PATENTS, COPYRIGHTS, TRADEMARKS, TRADE SECRETS AND OTHER INTELLECTUAL
PROPERTY OR PROPRIETARY RIGHTS BY THE PRODUCTS.
9.4 INFRINGEMENT, INDEMNIFICATION BY THE PARTNER. THE PARTNER SHALL
INDEMNIFY, DEFEND AND HOLD HARMLESS SILVERSTREAM AGAINST ALL CLAIMS,
LIABILITIES, DAMAGES, EXPENSES, JUDGMENTS AND LOSSES (INCLUDING
REASONABLE ATTORNEYS' FEES) ARISING FROM INFRINGEMENT OR ALLEGED
INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER
INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT AS A RESULT OF COMPLIANCE BY
SILVERSTREAM WITH THE DESIGNS, SPECIFICATIONS OR INSTRUCTIONS OF THE
PARTNER OR ANY OF ITS CUSTOMERS.
9.5 OWNERSHIP OF PATENTS AND TRADEMARKS. ALL PATIENTS, TRADEMARKS, TRADE
NAMES, COPYRIGHTS, DOMAIN NAMES AND DESIGNS IN RELATION TO THE PRODUCTS
AND THE LITERATURE SUPPLIED IN CONNECTION THEREWITH SHALL BE AND REMAIN
THE PROPERTY OF SILVERSTREAM, OR THE OWNER OF SUCH AS APPLICABLE AND NO
RIGHTS TO DUPLICATE SUCH PROPERTY SHALL ACCRUE TO THE PARTNER UNLESS
EXPRESSLY PROVIDED HEREIN OR UNLESS WRITTEN PERMISSION IS GRANTED BY
SILVERSTREAM.
9.6 USE OF SILVERSTREAM'S TRADE NAMES AND TRADEMARKS. THE PARTNER AGREES AS
FOLLOWS WITH RESPECT TO ANY MARKINGS, COLORS, LOGOS OR OTHER INSIGNIA
WHICH ARE CONTAINED ON OR IN OR AFFIXED TO PRODUCTS AT THE TIME OR
SHIPMENT (COLLECTIVELY, WITH ANY DOMAIN NAME INCLUDING THE WORD
SILVERSTREAM, THE "SILVERSTREAM MARKS").
9.6.1 SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT,
SILVERSTREAM HEREBY GRANTS TO PARTNERS DURING THE TERM OF THIS
AGREEMENT A NON-ASSIGNABLE AND NON-TRANSFERABLE RIGHT AND
LICENSE TO USE THE SILVERSTREAM MARKS IN THE CONDUCT OF ITS
BUSINESS IN A STYLE AND MANNER APPROVED BY SILVERSTREAM IN
WRITING PRIOR TO SUCH USE. PARTNER MAY, IN ADVERTISING,
PROMOTIONAL MATERIALS, LETTERHEADS, INVOICES, AND OTHER
APPROPRIATE DOCUMENTS, DESCRIBE ITSELF AS AN "AUTHORIZED
PARTNER FOR SILVERSTREAM SOFTWARE PRODUCTS." PARTNER SHALL
FORWARD TO SILVERSTREAM FOR ITS PROMPT REVIEW AND APPROVAL ANY
AND ALL FORMS OF PROPOSED ADVERTISING OR PROMOTIONAL MATERIALS
OF PARTNER WHICH INCLUDE A SILVERSTREAM XXXX.
9.6.2 PARTNER AGREES IT IS NOT AUTHORIZED UNDER THIS AGREEMENT TO
USE ANY SILVERSTREAM MARKS IN CONNECTION WITH ANY BUSINESS
CONDUCTED BY THE PARTNER OTHER THAN THE BUSINESS OF RESELLING
PRODUCTS IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
9.6.3 PARTNER WILL NOT, DURING OR AFTER THE TERM OF THIS AGREEMENT,
CLAIM ANY OWNERSHIP OR SIMILAR INTEREST IN ANY OF THE
SILVERSTREAM MARKS.
9.6.4 NOTHING HEREIN SHALL GIVE PARTNER ANY RIGHT, TITLE, OR
INTEREST IN THE SILVERSTREAM MARKS EXCEPT THE RIGHT TO USE THE
NAME DURING THE TERM OF THIS AGREEMENT AND IN ACCORDANCE WITH
ITS TERMS. ANY USE OF THE SILVERSTREAM MARKS BY OR WITH THE
AUTHORITY OF PARTNER SHALL INURE TO THE BENEFIT OF
SILVERSTREAM.
9.6.5 PARTNER AGREES IT SHALL NOT, AND IT SHALL NOT CAUSE OR ASSIST
ANY THIRD PARTY TO, REGISTER OR ATTEMPT TO REGISTER, IN ITS
OWN NAME OR OTHERWISE, ANY OF THE SILVERSTREAM MARKS OR ANY
OTHER TRADEMARKS, SERVICE MARKS, OR SLOGANS OWNED BY OR
ASSOCIATED WITH SILVERSTREAM OR ANY DERIVATIVE OF ANY OF
THESE. IN THE EVENT THAT PARTNER SECURES OR HAS SECURED IN ANY
JURISDICTION ANY RIGHTS TO ANY OF THE SILVERSTREAM MARKS OR
ANY OF SUCH OTHER MARKS OR SLOGANS WHICH ARE PRIOR TO OR
GREATER THAN THE RIGHTS OWNED BY SILVERSTREAM, THEN PARTNER
SHALL IMMEDIATELY
Confidential 1998
16
NOTIFY SILVERSTREAM OF SAME AND, UPON WRITTEN REQUEST FROM
SILVERSTREAM, HEREBY ASSIGNS ALL PARTNER'S RIGHT, TITLE AND
INTEREST THEREIN TO SILVERSTREAM (OR ITS DESIGNEE).
9.6.6 PARTNER AGREES TO NOTIFY SILVERSTREAM IN WRITING OF ANY
APPARENT INFRINGEMENT OF ANY OF THE SILVERSTREAM MARKS WHICH
COMES TO THE ATTENTION OF PARTNER.
9.6.7 UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, ALL RIGHTS
AND LICENSES GRANTED TO PARTNER HEREUNDER SHALL TERMINATE AND
REVERT IMMEDIATELY TO SILVERSTREAM AND PARTNER SHALL
IMMEDIATELY CEASE USING THE SILVERSTREAM MARKS.
9.6.8 PARTNER ACKNOWLEDGES AND AGREES THAT THE SILVERSTREAM MARKS
HAVE A UNIQUE CHARACTER GIVING THEM A PECULIAR VALUE, THE LOSS
OF WHICH CANNOT REASONABLY OR ADEQUATELY BE COMPENSATED FOR BY
MONETARY DAMAGES, AND THAT THE VIOLATION BY PARTNER OF THE
PROVISIONS HEREOF CONCERNING THE SAME OR OF SILVERSTREAM'S
RIGHTS THEREIN ARE LIKELY TO CAUSE SILVERSTREAM IRREPARABLE
DAMAGES AND INJURY. PARTNER HEREBY EXPRESSLY AGREES THAT
SILVERSTREAM WILL BE ENTITLED TO EQUITABLE RELIEF TO PREVENT
OR CURE ANY VIOLATION OR INFRINGEMENT OR THREATENED VIOLATION
OR INFRINGEMENT OF SILVERSTREAM'S RIGHTS IN THE SILVERSTREAM
MARKS.
10. TERMINATION, DEFAULT AND REMEDIES
10.1 AFTER THE INITIAL TERM AND FOR THE NEXT FOUR ANNUAL RENEWALS
THIS AGREEMENT MAY BE TERMINATED BY THE PARTNER, WITHOUT
CAUSE, UPON WRITTEN NOTICE TO SILVERSTREAM GIVING 90 DAYS
NOTICE, AT ANY TIME DURING THE TERM OF THIS AGREEMENT.
10.2 AFTER THE INITIAL TERM, AND THE FOUR ANNUAL RENEWALS THIS
AGREEMENT MAY BE TERMINATED BY EITHER PARTY, WITHOUT CAUSE,
UPON WRITTEN NOTICE TO THE OTHER PARTY GIVING 90 DAYS.
10.3 UPON THE OCCURRENCE OF ANY OF THE FOLLOWING ACTS OR EVENTS
("EVENTS OF DEFAULT"), THE PARTNER SHALL BE IN DEFAULT AND
BREACH OF THIS AGREEMENT.
10.3.1 WHERE APPLICABLE, THE FAILURE TO MEET THE FINANCIAL
REQUIREMENTS AS SET FORTH ON EXHIBIT B WHICH IS NOT CURED
WITHIN THIRTY (30) DAYS AFTER WRITTEN NOTICE THEREOF FROM
SILVERSTREAM.
10.3.2 FAILURE TO MAKE ANY MATERIAL PAYMENT WHEN DUE HEREUNDER WHICH
FAILURE REMAINS UNCURED FOR THIRTY DAYS (30) DAYS AFTER NOTICE
THEREOF FROM SILVERSTREAM.
10.3.3 FAILURE TO COMPLY WITH THE MATERIAL TERMS HEREOF OR TO PERFORM
IN ALL MATERIAL RESPECTS ANY OF ITS COVENANTS, OBLIGATIONS OR
RESPONSIBILITIES UNDER THIS AGREEMENT WHICH FAILURE REMAINS
UNCURED FOR THIRTY (30) DAYS AFTER NOTICE THEREOF FROM
SILVERSTREAM.
10.3.4 DISSOLUTION, TERMINATION OF EXISTENCE, LIQUIDATION, INSOLVENCY
OR BUSINESS FAILURE OF THE PARTNER OR THE INSTITUTION OF ANY
BANKRUPTCY PROCEEDING AGAINST OR BY THE PARTNER, OR THE
APPOINTMENT OF A CUSTODIAN OR RECEIVER FOR THE PARTNER OR ANY
PART OF ITS PROPERTY IF SUCH BANKRUPTCY PROCEEDING OR
APPOINTMENT IS NOT TERMINATED OR DISMISSED WITHIN THIRTY (30)
DAYS.
10.3 UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, SILVERSTREAM, IN ITS SOLE
DISCRETION, SHALL HAVE THE RIGHT TO (i) IMMEDIATELY TERMINATE, BY
WRITTEN NOTICE, THIS AGREEMENT AND/OR ANY SOFTWARE LICENSE GRANTED TO
THE PARTNER, (ii) CANCEL ANY OR ALL UNFILLED ORDERS FOR PRODUCTS
SUBMITTED BY THE PARTNER, AND (iii) EXERCISE ANY OTHER REMEDY WHICH MAY
BE AVAILABLE AT LAW OR IN EQUITY.
10.4 Upon the termination of this Agreement, the Partner shall (i) cease
immediately from acting as a Partner of SilverStream and abstain from
making further distributions of Products, (ii) pay to SilverStream, in
full within 30 days of such termination, all amounts owed to
SilverStream, (iii) cooperate with SilverStream in completing all
outstanding obligations to Customers, and (iv) cease making use of any
printed material, trademarks, trade name or domain name identified with
SilverStream without the express written consent of SilverStream. The
provisions set forth in Sections 8, 9.6.7, 9.6.8, 10 and 11 shall
survive the termination of this Agreement.
10.4 Silver stream shall have no liability to the Partners for
damages of any kind, including indirect, incidental or
consequential damages, on account of the termination or
expiration of this Agreement IN ACCORDANCE WITH ITS TERMS.
Without limiting the generality of the foregoing, SilverStream
shall not be liable to the Partner for reimbursement or
damages for the loss of
Confidential 1998
17
goodwill, prospective profits or anticipated sales, or on
account of any expenditures, investment, leases or commitments
made by the Partner or for any other reason whatsoever based
upon, or growing out of, such termination or expiration.
10.5 THE REJECTION OF THIS AGREEMENT OR THE LICENSE OF THE PRODUCT GRANTED
HEREUNDER PURSUANT TO XXXXXXX 000 XX XXX XXXXXX XXXXXX BANKRUPTCY CODE
(THE "CODE") BY SILVERSTREAM OR A TRUSTEE IN A BANKRUPTCY PROCEEDING
UNDER THE CODE CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND
ENTITLES PARTNER, AT ITS OPTION, TO TERMINATE THIS AGREEMENT AND THE
LICENSE OF THE PRODUCT GRANT HEREUNDER UPON WRITTEN NOTICE.
11. GENERAL
11.1 Proprietary Information. No proprietary information disclosed by either
party to the other in connection with this Agreement shall be disclosed
to any person or entity other than the recipient party's employees or
agents directly involved with the recipient party's use of such
information (in accordance with the terms hereof) who are bound by
written agreement to protect the confidentiality of such information,
and such information shall otherwise be protected by the recipient
party from disclosure to others. Information will not be subject to
this provision if it is or becomes a matter of public knowledge without
the fault of the recipient party, if it was a matter of written record
in the recipient party's files prior to disclosure to it by the other
party, if it was or is received by the recipient party from a third
person under circumstances permitting ITS DISCLOSURE BY THE RECIPIENT
PARTY OR IF IT IS INDEPENDENTLY developed by the recipient party. Upon
termination of this Agreement, each party shall promptly deliver to the
other all proprietary information of the other party in the possession
or control of such party and all copies thereof. The obligations under
this Section shall continue for a period of five (5) years after the
termination of the Agreement.
11.2 ALL RIGHTS AND LICENSES GRANTED UNDER OR PURSUANT TO THIS AGREEMENT BY
SILVERSTREAM TO PARTNER (INCLUDING THE LICENSE OF THE PRODUCT GRANTED
HEREUNDER) ARE, AND SHALL OTHERWISE BE DEEMED TO BE, FOR PURPOSES OF
SECTION 365(n) OF THE CODE, LICENSES TO RIGHT IN "INTELLECTUAL
PROPERTY, " AS DEFINED UNDER THE CODE. THE PARTIES HERETO FURTHER AGREE
THAT IN THE EVENT OF THE COMMENCEMENT OF BANKRUPTCY PROCEEDINGS BY OR
AGAINST SILVERSTREAM UNDER THE CODE, PARTNER SHALL BE ENTITLED, AT ITS
OPTION, TO RETAIN ALL OF ITS RIGHTS UNDER THIS AGREEMENT (INCLUDING THE
LICENSE OF THE PRODUCT GRANTED HEREUNDER) PURSUANT TO CODE SECTION
35(n).
11.3 Force Majeure. In the event that either party fails to perform any of
its obligations under this Agreement due to any act of God, fire,
casualty, flood, war, strike, lock out, failure of public utilities,
injunction or any act, exercise, intervention of governmental
authority, epidemic, insurrection, or any other cause beyond the
reasonable control of the party invoking this provision, then, except
for Partner's obligation to make payments to SilverStream hereunder,
the affected party's performance shall be excused and the time for
performance shall be extended for the period of delay or inability to
perform due to such occurrence.
11.4 COMPLIANCE WITH U.S. GOVERNMENT REGULATIONS. THE PARTIES AGREE TO
COMPLY WITH ALL U.S. STATE AND FEDERAL LAWS, REGULATIONS OR ORDERS
PERTAINING TO THE FULFILLMENT OF THIS AGREEMENT INCLUDING, BUT NOT
LIMITED TO EXPORT CONTROL LAWS, ANTI-BOYCOTT LAWS, AND THE FOREIGN
CORRUPT PRACTICES ACT, WHICH PROHIBITS CERTAIN PAYMENTS TO PARTIES WHO
ARE NOT THE PARTNER.
11.5 APPLICABLE LAW AND JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS.
11.6 RELATIONSHIP OF THE PARTIES. THE PARTNER ACKNOWLEDGES THAT BOTH PARTIES
HERETO ARE, INDEPENDENT CONTRACTORS AND THAT THE PARTNER WILL, ON ITS
OWN BEHALF, SOLICIT ORDERS FOR PRODUCTS ONLY AS AN INDEPENDENT
CONTRACTOR. THE PARTNER SHALL NOT REPRESENT ITSELF AS A PARTNER, JOINT
VENTURE, AGENT, EMPLOYEE OR GENERAL REPRESENTATIVE OF SILVERSTREAM. THE
PARTNER ACKNOWLEDGES THAT IT SHALL HAVE NO RIGHT, POWER OR AUTHORITY TO
IN ANY WAY OBLIGATE SILVERSTREAM TO ANY CONTRACT OR OTHER OBLIGATION.
11.7 ENTIRE AGREEMENT. THIS AGREEMENT (TOGETHER WITH THE SOURCE CODE
AGREEMENT AND THE ESCROW AGREEMENT) CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN SILVERSTREAM AND THE PARTNER WITH RESPECT TO THE
Confidential 1998
18
SUBJECT MATTER HEREOF AND SHALL NOT BE AMENDED, ALTERED OR CHANGED
EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE PARTIES HERETO.
11.8 WAIVERS. NO DELAY OR OMISSION ON THE PART OF EITHER PARTY TO THIS
AGREEMENT IN REQUIRING PERFORMANCE BY THE OTHER PARTY OR IN EXERCISING
ANY RIGHT HEREUNDER SHALL OPERATE AS A WAIVER OF ANY PROVISION HEREOF
OR OF ANY RIGHT OR RIGHTS HEREUNDER; AND THE WAIVER, OMISSION OR DELAY
IN REQUIRING PERFORMANCE OR EXERCISING ANY RIGHT HEREUNDER ON ANY ONE
OCCASION SHALL NOT BE CONSTRUED AS A BAR TO OR WAIVER OF SUCH
PERFORMANCE OR RIGHT, OR OF ANY RIGHT OR REMEDY UNDER THIS AGREEMENT,
ON ANY FUTURE OCCASION.
11.9 NOTICES. FOR PURPOSES OF THIS AGREEMENT, AND FOR ALL NOTICES AND
CORRESPONDENCE HEREUNDER, THE ADDRESSES OF THE RESPECTIVE PARTIES HAVE
BEEN SET OUT AT THE BEGINNING OF THIS AGREEMENT, AND NO CHANGE OF
ADDRESS SHALL BE BINDING UPON THE OTHER PARTY UNTIL WRITTEN NOTICE
THEREOF IS RECEIVED BY SUCH PARTY AT THE ADDRESS SHOWN HEREIN. ALL
NOTICES SHALL BE EFFECTIVE UPON RECEIPT IF DELIVERED BY COURIER SERVICE
AND FIVE DAYS AFTER MAILING IF SENT BY REGISTERED MAIL.
11.10 SEVERABILITY. IF ANY PROVISION OF THIS AGREEMENT SHALL FOR ANY REASON
BE HELD ILLEGAL OR UNENFORCEABLE, SUCH PROVISION SHALL BE DEEMED
SEPARABLE FROM THE REMAINING PROVISIONS OF THIS AGREEMENT AND SHALL IN
NO WAY AFFECT OR IMPAIR THE VALIDITY OR ENFORCEABILITY OF THE REMAINING
PROVISIONS OF THIS AGREEMENT.
11.11 COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS, EACH OF
WHICH SHALL BE DEEMED AN ORIGINAL BUT ALL OF WHICH SHALL CONSTITUTE ONE
AND THE SAME INSTRUMENTS.
11.12 ESCROW. SILVERSTREAM AND FIREPOND AGREE TO ESTABLISH AN ESCROW ACCOUNT
FOR ALL SOFTWARE AND DOCUMENTATION WITH DATA SECURITIES INTERNATIONAL
("DSI") WITHIN FOURTEEN (14) DAYS AFTER THE EXECUTION DATE OF THE ISV
BUSINESS PARTNER AGREEMENT. THE ESCROW AGREEMENT SHALL BE SUBSTANTIALLY
IN THE FORM OF THE ATTACHMENT X ATTACHED HERETO.
Confidential 1998
19
--------------------------------------------------------------------------------
RSA A $[ * * * ] prepaid RSA license fee is due upon
execution of the license. This advance royalty will
be forwarded to RSA in full to the benefit of the ISV
partner. Additional royalties, based on reports
submitted by the ISV partner, will be made, to the
benefit of the ISV partner by RSA by SilverStream
according to the terms of the SilverStream/RSA
licensing agreement. Should the license agreement
between RSA and SilverStream be terminated, the ISV
partner has three months to negotiate a license
agreement directly with RSA for redistribution of RSA
components. The balance of any prepaid license fees
will be continued under such a license agreement. The
ISV partner may continue to redistribute the RSA
licensed components within the SilverStream
Application Server during this three-month period.
SilverStream shall report RSA license fee based on
the net sales price by applying a percentage of net
sales price of [ * * * ]% and a per copy/unit
minimum of $[ * * * ]. All prepaid amounts may be
offset against license fees accrued at a rate of
[***] ($[ * * * ]) for each ($[ * * * ]) of
license fees accrued until prepayments are exhausted.
--------------------------------------------------------------------------------
Advance Royalty A NON-REFUNDABLE ADVANCE ROYALTY OF $[***] PAYABLE IN
THREE (3) INSTALLMENTS OF $[***] EACH SHALL BE DUE
(i) UPON THE EXECUTION OF THIS AGREEMENT, (ii) THIRTY
(30) DAYS AFTER THE DATE OF THIS AGREEMENT, AND (iii)
SIXTY (60) DAYS AFTER THE DATE OF THIS AGREEMENT.
ADVANCE ROYALTY SHALL BE OFF SET AGAINST ACTUAL
ROYALTY REPORTED PURSUANT TO THE PRICE LIST ON
SCHEDULE C AND THE TERMS OF THIS AGREEMENT.
--------------------------------------------------------------------------------
Reporting ISV Partner must report to SilverStream all monthly
revenue from the Bundled Product within 14 days of
the end of each such month. Reports must be completed
on a template to be provided from time to time by
SilverStream which shall include, but not be limited
to, the following:
1) the total number of copies/units of each of the
Bundled Products' licensed or distributed by ISV
Partner during the month,
2) the total license fees accrued,
3) the sales location (by zip code in the US and by
country for all international sales) for all
copies/units licensed or distributed during the
month.
--------------------------------------------------------------------------------
Update Assurance ISV PARTNER MUST PURCHASE ANNUAL UPDATE ASSURANCE @
15% OF THE MOST-RECENT PRE-PAID ROYALTY AMOUNT,
PAYABLE ON SAME SCHEDULE AS ADVANCED ROYALTIES ABOVE.
--------------------------------------------------------------------------------
Payments Royalties are to be calculated as per the attached
price list. All royalty payments are due within 30
days at the end of each month. All payments are to be
made in US dollars and must be made by wire transfer
or a check drawn on a US bank. ISV Partner is
responsible for all credit and collections from ISV
customers. Nonpayment to ISV Partner by its customer
does not affect payments to SilverStream.
--------------------------------------------------------------------------------
Technical Support ISV partner must maintain a SilverStream Level 2
support contract during the life of the Agreement.
--------------------------------------------------------------------------------
Use of SilverStream Marks Notwithstanding the provision of section 9 to the
contrary, the SilverStream Marks that may be used by
the ISV Partners are limited to the ISV log kit
provided by SilverStream. The SilverStream ISV logo
must be displayed on all Bundled Product packaging,
documentation, marketing literature and advertising.
Confidential 1998
[ * * * ] Confidential treatment has been requested for the bracketed
portions. The confidential redacted portion has been filed
separately with the Securities and Exchange Commission.
20
--------------------------------------------------------------------------------
Bundled Product The Bundled Product is defined as the
SilverStream Application Server embedded with the
following ISV products and for the applications
listed below:
The Bundled Product shall be deemed to include any
enhancements, thereto and new versions, thereof.
--------------------------------------------------------------------------------
Native Drivers SilverStream will supply native database
drivers as available. No third party drivers are
included with this license.
SILVERSTREAM SOFTWARE, INC.
LICENSE AGREEMENT FOR SILVERSTREAM PRODUCTS
--------------------------------------------------------------------------------
SilverStream Products
Single Developer Pack: Includes 1 SilverStream Server and Designer Software and
1 Sybase SQL Anywhere Server Software licensed for use, on a stand alone basis,
all of one Computer. Group Developer Packs: Includes 1 SilverStream Server and
Designer Software licensed for either 5 or 10 concurrent users, 1 Sybase SQL
Anywhere Server Software licensed for 10 concurrent users.
SilverStream Application Server: Includes 1 SilverStream Server licensed for use
on one computer with the number of Processors indicated on the product
packaging.
--------------------------------------------------------------------------------
This is a legal agreement (this "Agreement") between you (either an individual
or an entity) and SilverStream Software, Inc. ("SilverStream") governing the use
of the accompanying SilverStream Products (one or more of which his identified
above) which may include certain software programs ("Software") and other
written materials and "online" or electronic documentation ("Documentation").
BY INSTALLING THE SOFTWARE, YOU ACKNOWLEDGE, THAT YOU HAVE READ ALL OF THE TERMS
AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY
THEM. YOU UNDERSTAND THAT, IF YOU PURCHASED THE SILVERSTREAM PRODUCT FROM AN
AUTHORIZED RESELLER OF SILVERSTREAM, THAT RESELLER IS NOT SILVERSTREAM'S AGENT
AND IS NOT AUTHORIZED TO MAKE ANY REPRESENTATIONS OR WARRANTIES ON
SILVERSTREAM'S BEHALF NOR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS
AGREEMENT. IN ADDITION, YOU ACKNOWLEDGE THAT, UNLESS OTHERWISE AGREED BY THAT
RESELLER IN WRITING OR PROHIBITED BY LAW, THE LIMITATIONS OF WARRANTIES AND
LIABILITY SET FORTH IN THIS AGREEMENT ALSO APPLY TO AND BENEFIT THAT RESELLER.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT DO NOT INSTALL THE SOFTWARE.
IN SUCH CASE PROMPTLY RETURN THE ENTIRE SILVERSTREAM PRODUCT(S), INCLUDING THE
DOCUMENTATION, TO THE PLACE YOU OBTAINED THEM FOR A FULL REFUND.
Confidential 1998
21
1. LICENSE GRANT. SilverStream and its suppliers hereby grant you a personal,
non-exclusive, non-transferable license (the "License") to use the Software, and
Documentation, all in accordance with the terms and conditions of this
Agreement. SilverStream and its supplier retain title to all copyright,
trademarks, trade names and other intellectual property rights, in the Software
and Documentation. You are not granted any right, title, or interest in the
Software, or Documentation, except the right to use them in accordance with this
Agreement.
2. GENERAL USE LIMITATIONS. When operated, the Server Software included in
SilverStream Product I (identified above) must be resident only on ONE SERVER
computer and all sessions must run on the same one server computer. When
operated, the Server Software included in SilverStream Products II and III
(identified above) must be resident only on ONE SERVER computer. You may also
make a copy of the Software for backup and archival purposes. You may use the
Software included in SilverStream Products II and III in a multiple-user
arrangement or remote access arrangement (limited by the number of concurrent
sessions, or processors, as identified above, or on the product package, for
each such Package). You may not rent or lease the Software but you may transfer
the Software from one server computer to another provided the Software is in use
on only one server computer at a time. The Software is "in use" on a server
computer when it is loaded into temporary memory (i.e., RAM) or installed into
the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that
server computer.
NOTE ON JAVA SUPPORT. The Software contains support for program written in Java.
Java is not designed or intended for use in online control of aircraft, air
traffic, aircraft navigation or aircraft communications; or in the design,
construction, operation or maintenance of any nuclear facility. You acknowledge
that you are not licensed to use the Software for such purposes and you warrant
that you will not use the Software for such purposes.
3. COPYRIGHT. The Software is owned by SilverStream or its suppliers and is
protected by United States and other applicable copyright law and international
treaty provisions. Therefore, you may not copy (except as otherwise expressly
permitted by this Agreement or by United States and other applicable copyright
law) the Software and Documentation. Except as expressly permitted by this
Agreement, you may not modify, adapt, translate, decompile, disassemble, or
reverse engineer (except to the extent SilverStream is required by applicable
law to allow you to reverse engineer the Software) the Software in any manner,
you may not merge or embed the Software into any other computer program or work,
and you may not create derivative works of the Software or the Documentation.
4. SPECIFIC RESTRICTIONS. You may not remove or alter, and you shall reproduce
on any permitted copies, SilverStream's or its suppliers' copyright notices and
other intellectual property rights notices included in the Software or
Documentation.
If any Software or Documentation is acquired by or on behalf of a unit or agency
of the United States Government, the government agrees that such Software or
Documentation is "commercial computer software" or "commercial computer software
documentation" and that, absent a written agreement to the contrary, the
Government's rights with respect to such Software or Documentation are limited
by the terms of this License Agreement, pursuant to FAR ss. 12.212(a) and its
successors regulations and/or DFARS ss. 227.7202-1(a) and its successor
regulations, as applicable.
5. TERM. The License is effective upon your acceptance of these terms and
conditions by breaking the seal on the CD-ROM envelope and installing the
Software indicating acceptance and will continue in effect until terminated
either (a) by you, at any time by notifying SilverStream in writing, or (b)
automatically, upon your failure to comply with any term or condition of this
Agreement. You agree that, upon termination of this Agreement, you will promptly
destroy or return to SilverStream all copies of the disk, the Documentation or
the Software including copies made by or for you. You will purge or otherwise
remove all electronic and magnetic copies of the Software and Documentation from
any computer, storage medium, or other device on which the same may be stored or
maintained.
6. SUPPORT SERVICES. SilverStream may provide you with support services related
to the Software
Confidential 1998
22
("Support Services") pursuant to a SilverStream Support Services Agreement. Any
supplemental software code provided to you as part of the Support Services shall
be considered part of the Software and subject to the terms and conditions of
this Agreement.
7. LIMITATION OF WARRANTIES. You assume responsibility for the selection of the
Software to achieve your intended results and for the installation and use of,
and the results obtained from, the Software. Neither SilverStream nor any of its
suppliers warrants that the functions or features contained in the Software will
meet your requirements or that the operation of the Software will be
uninterrupted or error free.
THE SOFTWARE AND MEDIA ARE BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.
SILVERSTREAM AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED,
OR STATUTORY INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES AS TO
RIGHT OF THIRD PARTIES OR NON-INFRINGEMENT. Some jurisdiction do not allow the
exclusion of implied warranties, so the above exclusion may not to you. This
warranty gives you specific legal rights, and you may also have other rights
which vary from jurisdiction to jurisdiction.
8. LIMITATION OF LIABILITY. To the maximum extent permitted by applicable law,
in no event shall SILVERSTREAM OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR EXEMPLARY 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 THE USE
OF OR INABILITY TO USE THE SILVERSTREAM OR ITS SUPPLIERS HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. In any case, SilverStream's entire liability
under any provision of this Agreement shall be limited to the amount actually
paid by you for the SilverStream Products, provided however, if you have entered
into a SilverStream Support Services Agreement. SilverStream's entire liability
regarding Support Services shall be governed by the terms of that agreement.
Because some jurisdiction do not allow the exclusion or limitation of liability,
the above limitations may not apply to you.
9. TAXES. You agree to be responsible for and to pay, and to reimburse
SilverStream on request if SilverStream is required to pay, any sales, use, or
other tax (excluding any tax that is based on SilverStream's net income), duty,
or other charge of any kind or nature that is levied or imposed by any
governmental authority on your purchase of the SilverStream Product, the
License, or your use of the Software or Documentation.
10. EXPORT RESTRICTIONS. THIS LICENSE AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY
LAWS, REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED
STATES OF AMERICA OF THE SILVERSTREAM PRODUCT (OR COMPONENTS THEREOF) OR OF
INFORMATION ABOUT THE SILVERSTREAM PRODUCT WHICH MAY BE IMPOSED FROM TIME BY THE
GOVERNMENT OF THE UNITED STATES OF AMERICA. NOTWITHSTANDING ANYTHING CONTAINED
IN THIS AGREEMENT TO THE CONTRARY, YOU SHALL NOT EXPORT OR RE-EXPORT, DIRECTLY
OR INDIRECTLY, ANY SILVERSTREAM PRODUCT (OR COMPONENT THEREOF) OR INFORMATION
PERTAINING THERETO TO ANY COUNTRY TO WHICH SUCH EXPORT OR RE-EXPORT IS
RESTRICTED OR PROHIBITED, OR AS TO WHICH SUCH GOVERNMENT OR ANY AGENCY THEREOF
REQUIRES AN EXPORT LICENSE OR OTHER GOVERNMENTAL APPROVAL AT THE TIME OF EXPORT
OR RE-EXPORT WITHOUT FIRST OBTAINING SUCH LICENSE OR APPROVAL.
11. GENERAL. This Agreement is the complete and exclusive statement of the
agreement between SilverStream and you, and this Agreement supersedes any prior
proposal, agreement, or communication, oral or written, pertaining to the
subject matter of this Agreement. This Agreement shall be governed by the laws
of the Commonwealth of Massachusetts and of the United States of America,
excluding (i) its conflicts of law principles, and (ii) the United National
Convention on Contracts for the International Sale of Goods. all questions
concerning the terms and conditions of this Agreement should be directed to
SilverStream in writing addressed to
Confidential 1998
23
SilverStream Software, Inc., Xxx Xxxxxxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, XX 00000,
Xxxxxx Xxxxxx.
All disputes arising out of or relating to this Agreement shall be finally
settled by arbitration under the rules of commercial arbitration of the American
Arbitration Association ("Rules"). Both parties shall bear equally the cost of
the arbitration (exclusive of legal fees and expenses, all of which each party
shall bear separately). All decisions of the arbitrator(s) shall be final and
binding on both parties and enforceable in any court of competent jurisdiction.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF A BREACH BY A PARTY OF ITS
OBLIGATIONS HEREUNDER, THE NON-BREACHING PARTY MAY SEEK INJUNCTIVE OR OTHER
EQUITABLE RELIEF IN ANY COURT OF COMPETENT JURISDICTION. YOU ACKNOWLEDGE THAT
INFRINGEMENT OR UNAUTHORIZED COPYING WOULD CAUSE IRREPARABLE HARM TO
SILVERSTREAM.
Confidential 1998
24
SOURCE CODE ESCROW AGREEMENT
This Agreement (the "Agreement") is made as of __________, 1999 among
SilverStream Software, Inc. ("Licensor") and Data Securities International, Inc.
("Escrow Agent"), with the respective addresses set forth in Exhibit A attached
hereto, and Licensor's customers who become parties to this Agreement pursuant
to Section 16 below ("Licensees").
1. Background. Licensor has licensed or will license the Licensed Program
(as defined below) to each Licensee pursuant to a written software
license agreement, including any related Source Code license agreements
(a "License Agreement"). Licensor has agreed to place in escrow the
Source Code (as defined below) for the Licensed Program, to be released
to Licensees upon the occurrence of certain events as hereinafter
described.
2. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) Licensed Program. The computer program(s), consisting of a
series of instructions or statements in machine readable,
object code form only, licensed to Licensees by Licensor
pursuant to License Agreements.
(b) Source Code. The version of the source code used by Licensor
to generate the Licensed Program, contained on one or more
magnetic tapes or other media, together with a print-out of
the source code listing.
(c) Documentation. Explanatory information, whether in
machine-readable form or otherwise, which would assist a
software engineer in understanding the structure, purpose and
operation of the Source Code.
(d) Information. The Source Code and the Documentation.
(e) Update Event. The delivery to Licensees of any new release of
the Licensed Program or the expiration of twelve months since
the most recent Update Event if the Source Code has been
modified in the interim.
(f) Update Information. All information, including without
limitation additional and/or replacement Source Code and
Documentation, necessary to bring the Information in escrow
prior to an Update Event into compliance with the definition
of Information contained in Section 2(d) after the occurrence
of such Update Event. The term "Information" shall be deemed
to include any such Update Information for the purposes of
this Agreement.
(g) Impact Event. An Impact Event shall consist of (a) any
rejection or termination of a License Agreement or this
Agreement by Licensor or its successors or representatives in
breach of the provisions of a License Agreement or this
Agreement, including in all events any rejection or
termination of the License Agreement or any proposal to do so
under Title 11 of the United States Code, as now constituted
or hereafter amended (the "Bankruptcy Code"), or any other
federal or state bankruptcy, insolvency, receivership, or
similar law; (b) failure of
25
a trustee, including Licensor as debtor in possession, in any
bankruptcy case hereafter filed by or against Licensor either
to assume the License Agreement and this Agreement within
fifteen (15) days after the filing of the initial bankruptcy
petition or to perform the License Agreement and this
Agreement within the meaning of Section 365(a)(4)(i) of the
Bankruptcy Code; (c) the termination of substantially all of
Licensor's ongoing business operations relating to the subject
to the License Agreement and this Agreement; and (d) any
liquidation of Licensor, or any sale, assignment, or
foreclosure of or upon assets that are necessary for the
performance by Licensor of its responsibilities under the
License Agreement and this Agreement.
3. Appointment of Escrow Agent. Escrow Agent is hereby appointed and
accepts appointment to act as escrow agent hereunder.
4. Fees of Escrow Agent.
(a) All fees of Escrow Agent in connection with its duties
hereunder shall be paid by and shared equally by Licensor.
(b) Escrow Agent's fees for the initial year of service are due in
full within sixty (60) days after the execution of this
Agreement. Annual renewal fees will be due in full upon
receipt of invoice unless otherwise specified by the invoice.
Late payments are subject to interest at the rate of one and
one-half percent per month (18% per annum) from the due date.
(c) Escrow Agent's fees will be specified in its standard fee
schedule as modified from time to time. Escrow Agent shall
notify Licensor at least ninety (90) days prior to any
increase in its fees. For any service not listed on its
standard fee schedule, Escrow Agent shall provide a price
quotation prior to rendering such service.
5. Representation and Warranties. Licensor represents and warrants to each
Licensee as follows:
(a) Licensor is the owner of, and holder of all rights in, the
Source Code, and has the right to enter into and perform this
Agreement, to grant each Licensee the license granted pursuant
to Section 10 (a) of this Agreement and to deposit the
Information under the terms of this Agreement. Licensor
represents and warrants to each Licensee that the Source Code
deposited with Escrow Agent will at all times be the source
code version of the current release of the licensed Program,
as offered to the Licensees from time to time.
(b) The Information initially deposited hereunder is (and the
Update Information deposited after any Update Event will be)
reasonably sufficient to enable a software engineer, skilled
in the art of computer programming and without recourse to
collateral sources of assistance other than commercially
available
-2-
26
computer programs, to independently compile the Licensed
Program and to modify the Licensed Program. Licensor further
represents and warrants that the Licensed Program does not
involve any proprietary languages or programming components
that such engineer could not reasonably be expected to
understand, except to the extent the Source Code contains
sufficient commentary to enable such contractor to understand
and use such language or components. Licensor further
represents and warrants that the Source Code includes all of
the devices, programming, and documentation necessary for the
maintenance, use, modification and/or enhancement of the
Licensed Program by the Licensees upon release of the Source
Code pursuant to this Agreement, except for devices,
programming, and documentation commercially available to the
Licensees on reasonable terms through readily known sources
other than the Licensor.
6. EXCEPT AS STATED ABOVE, THE LICENSOR DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESSED OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE INFORMATION,
INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL LICENSOR BE LIABLE FOR SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF
PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, ARISING OUT OF OR WITH
RESPECT TO THIS AGREEMENT OR THE INFORMATION.
7. Deposit of Information into Escrow. Within ten (10) days after the
execution of this Agreement by Licensor and Escrow Agent, Licensor
shall deliver to Escrow Agent one copy of the Information in one or
more sealed packages (a "Deposit"), each of which shall be separately
labeled and accompanied by a separate written list of its contents in
the form of Exhibit B attached hereto (an "Exhibit B") [See note] [need
to see]. Thereafter, within ten (10) days after the occurrence of any
Update Event, Licensor shall deliver one copy of the Update Information
in a sealed package to Escrow Agent accompanied by an Exhibit B. Each
Exhibit B shall be signed by Licensor prior to submission to Escrow
Agent. Upon the delivery of any Update Information to Escrow Agent,
Licensor may instruct Escrow Agent to return to it any previously
delivered Information (other than the most recent and one previous
version of the Information) which is no longer necessary to satisfy
Licensor's obligations under this Agreement.
8. Acceptance and Storage of Information.
(a) Upon receipt of any Information hereunder, Escrow Agent shall
visually match the accompanying Exhibit B to the labels on the
Deposit. Escrow Agent shall not be responsible for verifying
the contents of the Deposit or validating the accuracy of
Licensor's labeling of the Deposit. If Escrow Agent determines
that there is a discrepancy between the Exhibit B and the
labels on the Deposit, Escrow Agent shall notify Licensor
within five (5) days after receipt thereof, and Licensor shall
promptly correct such discrepancy. Acceptance of the
Information shall occur when Escrow Agent determines that
Exhibit B matches the labels on the Deposit.
[Note: The referenced Exhibit B was never attached to this agreement, is not
part of the contract, and therefore has not been filed.]
-3-
27
Upon acceptance, Escrow Agent shall sign Exhibit B and mail
copies thereof to Licensor and each Licensee.
(b) After acceptance, Escrow Agent shall store and maintain the
Information in such an environment or facility as Escrow Agent
determines, in its discretion, is suitable for the safekeeping
of the Information. Escrow Agent shall not permit any person
to have access to the Information other than in accordance
with this Agreement, and shall maintain security measures, in
accordance with reasonable professional standards, to prevent
unauthorized access to the Information. Escrow Agent shall not
release Information except in accordance with the provisions
of this Agreement.
9. Inspection of Information. Each Licensee shall have the right at its
sole expense from time to time during the term of this Agreement, upon
reasonable notice to Escrow Agent and Licensor, to designate a
representative to inspect, test and review the Information in the
presence of a representative of Escrow Agent and a representative of
Licensor, if Licensor so chooses, during normal business hours for the
purpose of determining the completeness and adequacy of the
Information. Such representative shall be an independent accounting or
consulting firm, which is reasonably acceptable to Licensor. As a
condition to such inspection, such representative shall execute a
customary confidentiality agreement in form and substance reasonably
acceptable to Licensor.
10. Release and Delivery of Information.
(a) A Licensee may request in writing that Escrow Agent deliver
the Information to such Licensee upon the occurrence of any of
the following events (a "Triggering Event"):
(i) If Licensor materially breaches its support and
maintenance obligations for the Licensed Program
under any written agreement between Licensor and such
Licensee and such breach remains uncured for ninety
(90) days after delivery of written notice thereof to
Licensor; or
(ii) If Licensor ceases to offer support and maintenance
services for the Licensed Program and such cessation
continues for ninety (90) days after delivery of
written notice thereof to Licensor, unless Licensor
shall have made arrangements for the continuation of
support and maintenance services for the Licensed
Program by another qualified party;
(iii) Any failure by Licensor to deliver to Escrow Agent
any required Update Information within sixty (60)
days after an Update Event, or, with respect to any
Licenses that have License Agreements for Source
Code, the failure of Licensor to deliver Update
Information to such Licensee within thirty (30) days
after an Update Event or the public announcement by
the Licensor that it will cease to market or license
the Licensed Programs; or
-4-
28
(iv) The occurrence of an Impact Event.
(b) Upon receipt by Escrow Agent of notice from Licensee of a
Triggering Event together with the applicable release request
fee, Escrow Agent shall promptly deliver a copy of such notice
to Licensor. Escrow Agent shall have ten (10) days after
delivery of such notice to Licensor, deliver the Information
to such Licensee, unless within such ten (10) day period, such
Licensee's entitlement to receive the Information under this
Agreement shall be resolved by arbitration to Section 15 of
this Agreement, and Escrow Agent shall retain possession of
the Information pending the final determination by the
Arbitration Panel, which determination may be relied upon by
Escrow Agent without further inquiry. In the event that
Licensor or its successors or representatives rejects or
terminates the License Agreement or this Agreement in breach
of the provisions thereof or hereof, including as contemplated
under Section 365 of the Bankruptcy Code, it is acknowledged
that this Agreement contemplates the manner in which Licensee
may retain its rights in the Licensed Programs, including
associated intellectual property rights, if a Licensee chooses
to do so in accordance with Section 365(n) of the Bankruptcy
Code.
11. Possession, Use and Protection of the Information.
(a) If the Information is released to a Licensee pursuant to this
Agreement, Licensor hereby grants to Licensee a non-exclusive,
royalty-free, irrevocable, perpetual, non-assignable license
to possess, use, modify, maintain and update the Information
consistent with the terms of its License Agreement. Except as
set forth in Section 10(b), such Licensee shall not disclose,
market, license, sell, distribute, sublicense or in any other
manner make the Information available to third parties.
(b) Each Licensee acknowledges and agrees that title to the
Information shall remain confidential and proprietary to a
Licensor. If the Information is released to a Licensee
pursuant to this Agreement, the Information shall be received
and held by such a Licensee consistent with the terms of its
License Agreement. Such Licensee shall limit use of and access
to the Information to its employees (or third parties
reasonably acceptable to Licensor) as are directly involved in
the use, support, modification, enhancement and maintenance of
the Licensed Program and who are bound by written agreement to
preserve the confidentiality thereof. Such Licensee shall
promptly report to Licensor any actual or suspected violation
of this Section 10 and shall take all reasonable further steps
requested by Licensor to prevent or remedy any such violation.
(c) If, following the release of the Information to a Licensee,
Licensor subsequently establishes pursuant to Section 15 that
the conditions which constituted a Triggering Event no longer
exist, such Licensee shall immediately cease use of such
Information and return such Information (and all copies
thereof) to Escrow Agent together with Exhibit B. Upon Escrow
Agent's acceptance of such
-5-
29
Information in accordance with Section 8(a), such Information
shall be held in escrow in accordance with this Agreement
until another Triggering Event shall have occurred.
12. Termination.
(a) This Agreement shall continue in effect with respect to a
Licensee until the termination or expiration of the License
Agreement between Licensor and such Licensee unless sooner
terminated by the written agreement of Licensor and such
Licensee or for non-payment of Escrow Agent's fees pursuant to
Section 12(b) below.
(b) This Agreement shall have an initial term of one year,
commencing on the date set forth above in the first sentence
of this Agreement (the "Effective Date"). This Agreement shall
automatically be renewed for additional one-year periods upon
receipt by Escrow Agent of the specified renewal fees. The
initial "Renewal Date" of this Agreement is one year from the
Effective Date and in succeeding years is one year from the
most recent Renewal Date. In the event that the renewal fees
are not received within thirty (30) days prior to the Renewal
Date, Escrow Agent shall notify Licensor and each Licensee
that this Agreement will expire on the Renewal date unless the
renewal fees are paid. If Escrow Agent does not receive the
renewal fees by the Renewal Date, this Agreement shall expire
on the Renewal Date without further notice and without
liability of Escrow Agent to the parties of this Agreement.
(c) If this Agreement expires or is otherwise terminated with
respect to a Licensee, all duties and obligations of Escrow
Agent to such Licensee shall terminate, and if this Agreement
expires or is otherwise terminated with respect to all
Licensees, all duties and obligations of Escrow Agent or
Licensor and all Licensees shall terminate. If Licensor
requests the return of the information upon expiration or
termination of this Agreement with respect to all Licensees,
Escrow Agent shall return the Information to Licensor only
after Escrow Agent's outstanding invoices and deposit return
fees have been paid. If such fee(s) are not received by Escrow
Agent within thirty (30) days after expiration or termination
of this Agreement with respect to all Licensees, Escrow Agent
shall, at its option, destroy or return the Information to
Licensor.
13. Responsibilities and Liabilities of Escrow Agent. Escrow Agent shall
not be liable under this Agreement with respect to the condition or
contents of the Information or for any action taken or omitted in
compliance with this Agreement in good faith and in the exercise of
Escrow Agent's own good judgment or in reliance on advise of Escrow
Agent's counsel or for any other cause unless a court of competent
jurisdiction finds that Escrow Agent's conduct was (i) willful
misconduct, (ii) fraudulent, (iii) grossly negligent, (iv) in bad faith
or (v) in disregard of or contrary to the terms of this Agreement.
Escrow Agent shall be obligated only for the performance of such duties
as are specifically set forth in the Agreement and may rely and shall
be protected by in
-6-
30
relying or refraining from acting on any order or instrument reasonably
and actually believed by it to be genuine and to have been signed or
presented by the proper party or parties. Escrow Agent shall not be
responsible for or be required to enforce any of terms or conditions of
any agreement between Licensor or any Licensee. Escrow Agent shall not
be responsible or liable in any manner whatsoever for the performance
by Licensor or any Licensee of their respective obligations under this
Agreement.
14. Resignation and Discharge; Successor Escrow Agent.
(a) Escrow Agent may resign at any time, effective on such date
specified in a written notice of resignation delivered to
Licensor and each Licensee at least ninety (90) days prior to
such effective date. Escrow Agent may be discharged at any
time, with or without cause, by written agreement of Licensor
and a majority in number of Licensees, effective upon receipt
of written notice of such discharge from Licensor. The
resignation or discharge of Escrow Agent shall not affect the
right of Escrow Agent to be paid for its services through the
date of resignation or discharge.
(b) In the event of the resignation or discharge of Escrow Agent,
Licensor shall appoint a successor Escrow Agent (who shall be
reasonable acceptable to a majority of Licensee), and such
successor Escrow Agent shall assume the rights, powers and
responsibilities of Escrow Agent hereunder upon its written
agreement to act as Escrow Agent hereunder and to become a
party hereto.
(c) Escrow Agent's obligations hereunder shall terminate upon the
effective date of its resignation or discharge, except that it
shall continue to hold the Information in accordance with its
Agreement until a successor Escrow Agent is appointed, at
which time Escrow Agent shall deliver Information to such
successor Escrow Agent. If no successor Escrow Agent is
appointed within thirty (30) days after the effective date of
such resignation or discharge, Escrow Agent shall deliver the
Information to the Arbitration Panel pursuant to Section 15,
shall give written notice of the same to Licensor and each
licensee and shall have no further responsibility with respect
thereto.
15. Indemnification. Licensor and severally, each Licensee release, agree
to indemnify and hold Escrow Agent harmless against any loss, liability
or expense incurred by Escrow Agent as a result of any action taken or
omitted in compliance with this Agreement in good faith and in the
exercise of Escrow Agent's own good judgment or in reliance on advise
of Escrow Agent's counsel or for any other cause unless a court of
competent jurisdiction finds that Escrow Agent's conduct was (i)
willful misconduct, (ii) fraudulent, (iii) grossly negligent, (iv) in
bad faith or (v) in disregard of or contrary to the terms of this
Agreement.
16. Arbitration. Any dispute regarding the occurrence or non-occurrence of
a Triggering Event shall be submitted to arbitration before a panel of
arbitrators selected in accordance with the commercial rules of the
American Arbitration Association (the "Arbitration
-7-
31
Panel"). If the Arbitration Panel determines that a Triggering Event
has occurred with respect to a Licensee, Escrow Agent shall immediately
release the Information to such Licensee, provided that if it is
subsequently determined pursuant to a final adjudication of the dispute
that a Triggering Event has not occurred, Licensee shall immediately
cease use of the Information, shall return the Information to Escrow
Agent, and shall destroy all other copies of the Information, or any
part thereof, in its possession. If the Arbitration Panel determines
that a Triggering Event has not occurred, Escrow Agent shall continue
to hold the Information in accordance with this Agreement. The
proceedings of the Arbitration Panel will be held, and any
determination of the Arbitration Panel shall be deemed to have been
made, in Boston, Massachusetts. All questions of law shall be decided
in accordance with the laws of the Commonwealth of Massachusetts. All
questions of law shall be decided in accordance with the laws of the
Commonwealth of Massachusetts.
17. Addition of Licensees. Licensor may, in its sole discretion and without
obtaining the consent of Escrow Agent or any Licensee, add its
customers as Licensees under this Agreement. Licensor and each such
customer so added shall execute a Counterpart Signature Page to this
Agreement substantially in the form of Exhibit C attached hereto, which
shall be promptly delivered to Escrow Agent. Escrow Agent shall
acknowledge receipt of such Counterpart Signature Page by signing it
and returning copies to Licensor and such Licensee, and such Licensee
shall thereafter be deemed a "Licensee" for all purposes of this
Agreement.
18. Notices. All notices required or permitted hereunder shall be given in
writing and shall be deemed delivered upon (1) delivery by messenger or
overnight courier service or (ii) three (3) days following the date of
mailing by registered or certified mail, postage prepaid, addressed to
Licensor or Escrow Agent at the applicable address set forth on the
applicable Counterpart Signature Page. Any party may change its address
by ten (10) days' written notice given to the other party in the manner
set forth in this Section 17.
19. Governing Laws. This Agreement is made in and shall be construed in
accordance with the laws of the Commonwealth of Massachusetts.
20. No Waiver. No delay or omission by any party in exercising any right
under this Agreement shall operate as a waiver of that or any other
right. A waiver or consent given by a party on any one occasion shall
be effectively only in that instance and shall not be construed as a
bar or waiver of any right on any other occasion.
21. Severability. In the event that any provision of this Agreement shall
be invalid, illegal or otherwise unenforceable, the validity, legality
and enforceability of the remaining provisions shall in no way be
affected or impaired thereby.
22. Successors and Assigns. Neither Licensor nor any Licensee may assign
this Agreement without the written consent of the other, except that no
such consent shall be required for an assignment in connection with the
sale of all or substantially all of a party's business by merger, sale
of stock, sale of assets or otherwise. Escrow Agent may not assign this
-8-
32
Agreement without the written consent of Licensor and a majority number
of Licensees (including Firepond). Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the
parties, their respective executors, administrators, successors and
assigns.
23. Amendment. This Agreement may be amended or modified only by a written
instrument executed by Escrow Agent, Licensor and a majority in number
of Licensees (including Firepond).
24. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute but one agreement binding on the parties.
25. Captions. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the
scope or substance of any section of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a sealed
instrument as of the day and year set forth above.
SILVERSTREAM SOFTWARE, INC.
By: ____________________________
Title: ___________________________
DATA SECURITIES INTERNATIONAL, INC.
By: ____________________________
Title: ___________________________
-9-
33
Exhibit A
DESIGNATED REPRESENTATIVES
Notice to Licensor: Invoices should
Should be addressed to: be addressed to:
Licensor: SilverStream Software, Inc. SilverStream Software, Inc.
Address: One Burlington Xxxxx Xxx Xxxxxxxxxx Xxxxx
Xxxxx 000 Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Chief Financial Officer Attn: Chief Financial Officer
Designated Representative: Xxxxx X. Xxxxx
Telephone 000-000-0000
Fax: 000-000-0000
Deposits and notices to Escrow Agent Invoice inquiries and payments
should be addressed to: to Escrow Agent should be addressed to:
Escrow Agent: Data Securities International, Inc.
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Designated Representative: ____________________________
Telephone: ____________________________
Fax: ____________________________
-10-
34
SILVERSTREAM INDEPENDENT SOFTWARE VENDORS (ISV) PARTNER PROGRAM OVERVIEW 10/1/98
Program Benefits SILVER ISV STERLING ISV
------------------------------------------------------------------------------------------------------------------------------------
FINANCIAL BENEFITS
------------------------------------------------------------------------------------------------------------------------------------
1. PRODUCT PURCHASE OPTIONS
ISV "authenticated" Master Disk for deployment No Yes, see discount schedule
software purchases
------------------------------------------------------------------------------------------------------------------------------------
BUSINESS DEVELOPMENT BENEFITS
------------------------------------------------------------------------------------------------------------------------------------
1. SOFTWARE
Access to Evaluation Software Pool (for customer NA NA
evaluations)
Free "Not-For-Resale" Software (for internal use only) Group Developer Pack - 5 (GDP-5): Group Developer Pack - 10 (GDP-10):
$[ * * * ] MSRP $[ * * * ] MSRP
NFR Software Updates (with paid program renewal) Yes Yes
Automatic Inclusion in Beta Programs No Yes
Additional NFR Software (for internal use only) [ * * * ]% discount (purchased [ * * * ]% discount (purchased
from SilverStream) from SilverStream)
------------------------------------------------------------------------------------------------------------------------------------
2. SALES SUPPORT
ISV Lead Referrals (as available) No Yes
Joint Sales Presentations with SilverStream Field Sales No Yes
(in new as well as existing accounts)
------------------------------------------------------------------------------------------------------------------------------------
3. TECHNICAL SUPPORT
Technical Support Level Level 2 Level 2
Free Support Incidents No 5 annually
Discount on Additional Support Incidents [ * * * ]% [ * * * ]%
Access to private Support area of SilverStream Web Site Yes Yes
Access to private Partner newsgroup on SilverStream No Yes
Web Site
Toll-Free Technical Support Hotline No Limited
------------------------------------------------------------------------------------------------------------------------------------
4. TRAINING
Partner and Product Training
- SilverStream University Partner Training $[ * * * ] for SE track, $[ * * * ] $[ * * * ] for SE track, $[ * * * ]
for Application Engineering track for Application Engineering track
- SilverStream Programming Fundamentals Course At a SilverStream public At a SilverStream public
training center training center
Access to private Training area of SilverStream No Yes
Web Site
------------------------------------------------------------------------------------------------------------------------------------
5. MARKETING SUPPORT
Private Partner "Micro-Site" in conjunction with No Limited; at SilverStream's
discretion
SilverStream Web Site
Market Development Funds (subject to advance approval) No Limited; at SilverStream's
discretion
Participation in Trade Shows (as available) No Limited; at SilverStream's
discretion
Access to SilverStream prospect database via bonded No Limited; at SilverStream's
mailhouse (for mailings, etc.) discretion
Promotion of Partner Services to other SilverStream No Yes
Partners
Discounts on CD-based SilverStream demos No Yes
Free Product Literature No 50 SilverStream product brochures
------------------------------------------------------------------------------------------------------------------------------------
OTHER BENEFITS
------------------------------------------------------------------------------------------------------------------------------------
1. REFERENCE MATERIALS/COMMUNICATIONS
SilverStream Partner Manual Yes Yes
SilverStream Partner Electronic News Bulletins Yes Yes
Discounts to attend SilverStream User Conference No Yes
Free copy of Third-Party SilverStream Reference Books No Yes
(as available)
------------------------------------------------------------------------------------------------------------------------------------
2. INCENTIVE PROGRAMS
Notification of special product bundles with No Yes
SilverStream Distributors and Co-Marketing Partners
Participation in Partner Incentive Programs run by No Yes
SilverStream
Leverage SilverStream Co-Marketing and Co-Selling No Yes
Partners
------------------------------------------------------------------------------------------------------------------------------------
3. AFFILIATION/IDENTIFICATION
SilverStream On-Line Applications Catalog Listing Listing + Profile + Sterling Logo
(as appropriate)
Use of SilverStream Partner logo (according to Yes Yes
published guidelines)
SilverStream Partner Plaque No Yes
------------------------------------------------------------------------------------------------------------------------------------
[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been filed separately with the
Securities and Exchange Commission.
35
SILVERSTREAM INDEPENDENT SOFTWARE VENDORS (ISV) PARTNER PROGRAM OVERVIEW 10/1/98
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT B
Program Requirements SILVER ISV STERLING ISV
------------------------------------------------------------------------------------------------------------------------------------
GENERAL REQUIREMENTS
------------------------------------------------------------------------------------------------------------------------------------
1. BUSINESS FOCUS Focus on Fortune 2000 and small Focus on Fortune 1000 or selected
businesses verticals
------------------------------------------------------------------------------------------------------------------------------------
2. OTHER AFFILIATIONS / CERTIFICATIONS (RECOMMENDED) Microsoft Site Builder Network, Microsoft Site Builder Network,
Certified Professional Certified Professional
Netscape Worldwide Affiliate Netscape Worldwide Affiliate,
Lotus Business Partner Solution Expert
(Member/Qualified Levels) Lotus Business Partner
JavaSoft Developer (Premium Level)
JavaSoft Developer
Oracle Developer
Powersoft PowerChannel
------------------------------------------------------------------------------------------------------------------------------------
INFRASTRUCTURE REQUIREMENTS
------------------------------------------------------------------------------------------------------------------------------------
1. TRAINING (SILVERSTREAM CERTIFICATION AND AUTHORIZATION) Required: Required:
Individuals become "Certified" by: SilverStream Programming Fundamentals SilverStream Programming
- Attending appropriate training course(s) Course Fundamentals Course
- Submitting Certification application 1 attendee 2 attendees
- Passing Certification exam
Partner organizations with the appropriate number of SilverStream University Partner SilverStream University Partner
"Certified" individuals become "Authorized" Training Training
Partner must maintain appropriate number of 1 attendee, Application Engineering 1 attendee, Application
Certifications in order to maintain Authorization track Engineering track
Required number of Certified SilverStream Developers 1 2
------------------------------------------------------------------------------------------------------------------------------------
2. TECHNICAL SUPPORT First-line technical support for First-line technical support for
developed applications developed applications
Customer training for developed
applications
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3. INTERNET E-MAIL ACCESS Required Required
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ENROLLMENT REQUIREMENTS
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1. Enrollment Open enrollment; SilverStream Open enrollment; SilverStream
acceptance required acceptance required
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2. DOCUMENTATION
Initial Enrollment Completed SilverStream Partner Completed SilverStream Partner
Application Application
Completed Credit Application Completed Credit Application
Signed Partner Agreement Signed Partner Agreement
(with appropriate Addenda) (with appropriate Addenda)
Copy of State Tax Exemption Copy of State Tax Exemption
Certificate Certificate
3 Customer References
Annual Sales/Business Plan
Annual Renewal Updated SilverStream Partner Updated SilverStream Partner
Application Application
Annual Sales/Business Plan
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3. FEES
Initial Enrollment Fee $[ * * * ] $[ * * * ]
Annual Renewal Fee $[ * * * ] $[ * * * ]
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[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been filed separately with the
Securities and Exchange Commission.
36
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SILVERSTREAM SOFTWARE
ISV PRICING
(ALL PRICES IN U.S. $)
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EXHIBIT C
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ISV POLICIES:
See ISV Contract for details. Major provisions include:
1. ISV must create "bundled product" which embeds Silverstream products, and
cannot sell Silverstream products separately, nor as components
2. Specific ISV territory will be pre-defined as part of ISV Agreement
3. ISV must pay a mutually-agreed upon, non refundable pre-paid royalty to
Silverstream, plus $[***], to be forwarded by Silverstream to RSA
4. All ISV Agreements require:
Monthly sales out reports and royalty payments
Annual update assurance @ 15% of the most-recent pre-paid royalty
amount, payable in advance
A current Support Assurance contract (Level 2) during the entire term
of the ISV contract
5. Contract Term extension is available for ISVs meeting agreement terms (by
mutual agreement)
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ISV MAXIMUM
PRODUCT PRODUCT PRE-PAID DISCOUNT CONTRACT
CATEGORY CODE ROYALTY OFF MSRP TERM
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ISV NA [ * * * ] [ * * * ] 5 years
ISV NA [ * * * ] [ * * * ] 1 year
ISV NA [ * * * ] [ * * * ] 1 year
ISV NA [ * * * ] [ * * * ] 1 year
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[***] Confidential treatment has been requested for the bracketed portions.
The confidential redacted portion has been filed separately with the
Securities and Exchange Commission.
