* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ORBIX-REGISTERED TRADEMARK- DEVELOPMENT AND RUNTIME LICENSE AGREEMENT
THE ORBIX-Registered Trademark- DEVELOPMENT AND RUNTIME SOFTWARE (THE
"SOFTWARE") AND THE ACCOMPANYING DOCUMENTATION (THE "RELATED MATERIALS")
(COLLECTIVELY, THE "PRODUCT") ARE PROTECTED BY UNITED STATES, IRISH AND
INTERNATIONAL COPYRIGHT LAWS, AND THE COPYRIGHTS AND OTHER INTELLECTUAL
PROPERTY RIGHTS ARE OWNED BY IONA TECHNOLOGIES PLC OF 0-00 XXXXX XXXXXXXX
XX., XXXXXX 0, XXXXXXX. THE PRODUCTS ARE LICENSED BY IONA TECHNOLOGIES INC.,
00 XXXXXXXX XXXXXX, XXXXXXXXX, XX 00000, XXX ("IONA") TO NET PERCEPTIONS OF
00000 Xxxx 00xx Xxxxxx, Xxxxx 000 Xxxxxxxxxxx, XX 00000 ("Customer"). THE
PRODUCT IS COPYRIGHTED AND LICENSED (NOT SOLD).
1. OWNERSHIP
The Software (including any header files and demonstration code that may be
included) and Related Materials, and all associated copyrights and other
intellectual property rights, are the property of IONA Technologies PLC or
its licensors. IONA warrants that it has all the rights necessary to enter
into this Agreement. Customer acquires no title, right or interest in the
Software or Related Materials other than the license granted herein by IONA
and the title to the media upon which the Software is delivered.
2. PROPRIETARY NOTICES
Customer shall not remove any trademark, tradename, copyright notice or
other proprietary notice from the Software or Related Materials, and shall
be responsible for the conservation of the same on all copies of the
Software and Related Materials received under this Agreement and on any
back-up copy of the Software created in accordance with this Agreement.
Customer shall also accurately and faithfully reproduce all reasonable and
customary proprietary notices of IONA on any portion of the Software that
is incorporated in Developed Software (as defined in Section 4 below).
Customer may not reproduce any portion of the Software or Related
Materials, except as permitted by this Agreement.
3. DEVELOPMENT LICENSE
3.1. "Development Software" means the development environment of the
Products and excludes the Runtime Components (as defined below).
3.2. Subject to the terms and conditions of this Agreement, and payment of
the appropriate license fees, IONA hereby grants to Customer a
nonexclusive, nontransferable, limited license to use the Development
Software and Related Materials solely in connection with Customer's
development of CORBA-based application(s) and/or program(s) on the
operating system platform(s) set forth on Schedule A (the "Permitted
Purpose"). Customer acknowledges and agrees that additional licenses
are needed for additional operating system platforms.
3.3. Customer further agrees that a license fee must be paid by Customer to
IONA for each and every employee or consultant of Customer who has
used or will use the Development Software and Related Materials for
the Permitted Purpose (a "Developer"). Once a person becomes a
Developer, he or she shall remain so until it is reasonably expected
by Customer that the Developer will cease to use the Development
Software for a period of six (6) months. In no event may the number
of Developers exceed the number for which license fees have been
received by IONA. Upon request, Customer agrees to certify in writing
that Customer has paid
for a sufficient number of license fees for each Developer. Upon
reasonable notice, IONA will have the right to audit Customer's
compliance with this section.
3.4. The source code of the Software (other than included header files and
demonstration code) and design documentation are confidential and
proprietary information and trade secrets of IONA, its suppliers
and/or licensors, are never considered part of the Software, and are
neither delivered to Customer nor under any circumstances licensed to
Customer hereunder.
3.5. In the event the Software is provided to Customer as an upgrade to a
previous version of the Software, the license granted hereunder
applies to such upgrade only if Customer had previously obtained from
IONA a license to the Software and upon the continued existence in
force of such prior license. In the event such prior license is
terminated for whatever reason, the license to all Software, including
upgrades, granted hereunder is automatically terminated as of the same
date of termination of such prior license.
3.6. At Customer's reasonable request, upon reasonable notice, and at
Customer's expense, IONA will make Customer the beneficiary of a
source code escrow for the Software. Any such escrow shall be
released only in the event that IONA becomes insolvent, files for
bankruptcy, or ceases to conduct its software and service business in
the ordinary course; and upon release, use of the released materials
shall be solely for maintenance and support of the Developed Software
and Customer's end users and for no other purpose whatsoever.
4. RUNTIME LICENSE
4.1. Definitions.
4.1.1. The term "Developed Software," as used herein, means any
application or program developed by Customer using the Software
on the operating system platform(s) permitted pursuant to this
Agreement.
4.1.2. The term " Runtime Components," as used herein, means any
software program or components of the Software which are
incorporated in any Developed Software developed by Customer and
which are used in the execution of Customer's Developed Software.
4.2. GRANT OF LICENSE.
4.2.1. IONA hereby grants to Customer, subject to the conditions herein,
a license to use, copy and distribute for use to third parties
the Runtime Components ("Runtime License"), but solely as (i)
part of the Developed Software owned by Customer and (ii) for
execution to the extent Customer has paid the appropriate license
fees set forth on Schedule A. Customer must ensure that any such
third parties have agreed to be bound by terms and conditions no
less strict that in this Agreement and IONA shall be entitled to
enforce the terms of such agreement directly in the event of a
breach thereof. Customer may distribute the Runtime Components
through third parties provided that such distributors are bound
by the terms herein and that Customer remains ultimately liable
for any breaches hereof.
4.2.2. Customer further agrees that the Runtime License granted herein
does not give Customer or any other party any rights other than
those specifically granted herein, and that such License
specifically does not grant the Customer or any other party the
rights to:
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- execute the Software IDL compiler;
- develop and link programs with the Software libraries or classes;
or
- read and use the Software header files.
4.3. LICENSE FEE.
4.3.1. Customer agrees that the appropriate Runtime License fee is
payable by the Customer to IONA for each and every copy of the
Developed Software Customer distributes.
4.3.2. Customer must have a reasonable process in place to ensure that a
Runtime License fee has been paid for each copy of the Developed
Software Customer distributes. Customer will, upon the request
of IONA, certify to IONA the number of Runtime Licenses in use.
Executing, or permitting the execution of, the Runtime Software
on more CPUs than the number of Runtime Licenses granted herein
is a violation of this Agreement
4.3.3. If requested by IONA, Customer shall provide to IONA quarterly
reports of actual sales and forecasts of estimated sales under
this Agreement for each quarter covered hereby. The forecasts
shall be prepared in good faith and reasonably accurate and
detailed based on the best information and shall be transmitted
by means of a mutually agreeable method and format. Each
quarterly forecast shall be delivered not later than the last
business day of the second month in quarter which it covers.
5. COPY RESTRICTIONS AND OTHER RESTRICTIONS
5.1. Customer may make copies of the Development Software in
machine-readable, object code form, as permitted by applicable law,
solely for backup or archival purposes, provided that such copies of
the Development Software shall include all applicable copyright,
trademark and other proprietary notices of IONA in accordance with
Section 2 above. Customer may not copy any of the Related Materials.
Customer may obtain additional copies of any Related Materials from
IONA or an authorized IONA distributor upon payment of the prices in
effect at the time of ordering.
5.2. Customer will not display, disclose or sublicense the Development
Software to third parties, and also will not rent, lease, loan,
modify, adapt, translate, reverse engineer, disassemble or decompile
the Product or any portion thereof, or create derivative works of the
Product (except for derivative works that are Developed Software),
even for purposes of interoperability or error correction. In the
event that Customer wishes information relating to the Software for
purposes of achieving interoperability with independently created
computer software, Customer may make a written request to IONA for
such information. Customer shall promptly report to IONA any actual
or suspected violation of this section and shall take further steps as
may reasonably be requested by IONA to prevent or remedy any such
violation.
6. GOVERNMENT END-USERS
The Software and the Related Materials are "commercial items" as that term
is defined in 48 C.F.R. 2.101 (October 1995) consisting of "commercial
computer software" and "commercial computer software documentation" as such
terms are used in 48 C.F.R. 12.212 (September 1995). Consistent with 48
C.F.R. 12.212 and 48 C.F.R. 227.7202-1, 227.7202-3 and 227.7202-4 (June
1995), if the licensee hereunder is the U.S. Government or any agency or
department thereof, the Software and the Related
-3-
Materials are licensed hereunder (i) only as a commercial item, and (ii)
with only those rights as are granted to all other end users pursuant to
the terms and conditions of this Agreement.
7. SUPPORT
Customer shall purchase from IONA the support services for the Software set
forth on Schedule A, if any, for the additional fees set forth on Schedule
A, if any, and pursuant to the terms and conditions set forth on Schedule
B.
8. LIMITED WARRANTY
8.1. IONA warrants that the Software will conform to published
specifications for a period of ninety (90) days from the date Customer
has obtained the Software.
8.2. IONA warrants that the medium on which the Software is
recorded is free from defects in materials or workmanship under
normal use and service for a period of ninety (90) days from the
date Customer has obtained the Software. If Customer discovers any
physical defects in the medium on which the Software is recorded,
IONA will replace such medium at no charge to Customer, provided
that Customer returns the item to be replaced with proof of payment
to IONA during the ninety (90) day period after Customer has
obtained the Software. This warranty gives Customer specific legal
rights. Customer may also have rights which vary from jurisdiction
to jurisdiction. THIS RIGHT OF REPLACEMENT IS CUSTOMER'S EXCLUSIVE
REMEDY AND IONA'S ONLY LIABILITY FOR ANY DEFECTS IN THE MEDIUM.
8.3. IONA warrants that the Software will record, store, process, manage
and present calendar dates (and data or functions involving or based
on calendar dates) falling on or after January 01, 2000 in the same
manner and with the same functionality, accuracy, data integrity and
performance as the Software records, stores, processes, manages and
presents calendar dates (and data involving or based on calendar
dates) falling on or before December 31, 1999. IONA SPECIFICALLY
DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR
THE RESULTS OF USE WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT THE
OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT
AS EXPRESSLY SET FORTH ABOVE, THE PRODUCT IS PROVIDED TO CUSTOMER "AS
IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE SUITABILITY, QUALITY AND
PERFORMANCE OF THE PRODUCT IS WITH CUSTOMER AND NOT WITH IONA. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO
SUCH EXCLUSION MAY NOT APPLY TO YOU.
9. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY
9.1. Any action brought against Customer, its third party distributors or
its end users on a claim that the Products infringe any patent,
copyright, or other intellectual property rights or the trade secret
or the proprietary rights of a third party shall be defended by IONA
at its expense. IONA shall pay any costs, damages and settlements and
reasonable legal fees finally awarded against Customer in such action
and which are attributable to such claim provided always that Customer
notifies IONA promptly in writing of each claim and IONA may control
fully the
-4-
defence and/ or the settlement of such claim, provided that Customer
shall not be bound to any settlement that it has not approved in
writing.
9.2. Without prejudice to Sub-Section 9.1, should the Products become, or
in IONA's reasonable opinion are likely to become, the subject of a
claim as aforesaid then IONA may either: (I) procure for Customer the
right to continue using the Products; (II) replace the Products with
non-infringing material; (III)modify the Products to make them
non-infringing; or (IV) remove the Products and refund to Customer all
fees and sums paid by Customer in respect thereof prorated based on a
product lifetime of 60 months.
9.3. IONA shall have no liability for any claim of infringement based on:
(a) use of other than a current release of the Products if such
infringement would have been avoided by use of a current release,
or(b) use or combination of the Products with non- IONA programs or
data if such infringement would have been avoided by the use of the
Products without those other programs or data. The foregoing states
the entire liability of IONA with respect to any claim of infringement
regarding the Products.
10. LIMITED LIABILITY
IN NO EVENT SHALL IONA, ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES
(INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, DATA, GOODWILL OR
OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE
SOFTWARE, EVEN IF FORSEEABLE OR IF IONA HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL IONA BE RESPONSIBLE OR HELD LIABLE FOR
ANY DAMAGES RESULTING FROM PHYSICAL DAMAGE TO TANGIBLE PROPERTY OR DEATH OR
INJURY OF ANY PERSON WHETHER ARISING FROM IONA'S NEGLIGENCE OR OTHERWISE.
BECAUSE SOME JURISDICTIONS DO NOT ALLOW CERTAIN OF THE ABOVE EXCLUSIONS OR
LIMITATIONS OF LIABILITY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
EXCEPT FOR LIABILITY UNDER SECTION 9 ABOVE, IN THE EVENT THAT IONA IS HELD
LIABLE UNDER THIS AGREEMENT, IONA'S, ITS SUPPLIERS' AND LICENSORS'
LIABILITY SHALL BE LIMITED TO THE PRICE PAID BY THE CUSTOMER FOR THE
PRODUCT SUPPLIED.
11. ASSIGNMENT
This Agreement and any rights granted hereunder may not be assigned,
sub-licensed or otherwise transferred by either party without the prior
written consent of the other party, which consent shall not be unreasonably
withheld. . IONA may assign or transfer its rights and obligations under
this Agreement at any time without notice to or the consent of Customer.
12. DURATION
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12.1. This Agreement shall be effective from the date of delivery to
Customer and shall remain in force for three (3) years unless
terminated by IONA as provided in Section 13. In the event that the
parties are unable to reach mutually agreeable terms for the renewal
(or non-renewal) of this Agreement during the six (6) month period
prior to the expiration hereof, this Agreement, this Agreement shall
automatically renew, with the same terms and conditions, for one (1)
additional year.
13. TERMINATION
13.1. In addition to the termination provisions of Section 3.5 herein, this
Agreement and the license granted hereunder may be terminated by IONA
upon written notice to Customer in the event Customer breaches any of
the provisions of this Agreement, which breach has not been remedied
within thirty (30) days of notification thereof. Failure to pay
monetary amounts shall not be subject to the above thirty day cure
period, but rather shall be remedied within fifteen (15) days of
notice thereof.
13.2. Upon termination of this Agreement and of the license granted
hereunder, Customer shall cease any further use of the Software, and
must return to IONA or destroy, as requested by IONA, all copies of
the Software and Related Materials in any form in Customer's
possession or control.
13.3. All licenses granted by Customer in respect of Developed Software
shall continue in full force and effect in accordance with this
Agreement, notwithstanding the expiration hereof.
13.4. The provisions of Sections 1, 2, 8, 9, and 10 through 15 and the
definitions of this Agreement shall survive the termination of this
Agreement (for any reason). Customer must promptly pay to IONA any
amounts payable by Customer and damages, if any, incurred by IONA.
14. EXPORT ADMINISTRATION ACT.
Customer agrees that unless prior written authorization is obtained from
the United States Bureau of Export Administration, or the United States
Export Administration Regulations explicitly permit the re-export without
such written authorization, or from any other applicable governmental
authority it will not export, re-export, or transship, directly or
indirectly, the Product or any technical data disclosed or provided to
Customer, or the direct product of such technical data, to country groups
Q, S, W, Y or Z (as defined in the Export Administration Regulations) or to
any other country as to which the US or other Government has placed an
embargo against the shipment of products, or types of products, which is in
effect during the term of this Agreement.
15. GENERAL
15.1. AMENDMENT; WAIVER: No modification or waiver of any provision of this
Agreement shall be binding on either party unless specifically agreed
upon in a writing signed by both parties hereto. Any failure or delay
by IONA to exercise or enforce any of the rights or remedies granted
hereunder will not operate as a waiver thereof. No waiver by IONA of
any breach of this Agreement will operate as a waiver of any other or
subsequent breach.
15.2. SEVERABILITY: If any provision of this Agreement is found invalid or
unenforceable, that provision will be reformed, construed and enforced
to the maximum extent permissible, and the other provisions of this
Agreement will remain in full force and effect.
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15.3. LAW AND JURISDICTION: This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts and the parties hereby irrevocably submit to the venue
and jurisdiction of the courts of the Commonwealth of Massachusetts.
15.4. ENTIRE AGREEMENT: Customer has read this Agreement and agrees to be
bound by its terms, and further agrees that this Agreement constitutes
the complete and entire agreement of the parties and supersedes all
previous communications, oral or written, and all other communications
between them relating to the subject matter hereof. No
representations or statements of any kind made by either party, which
are not expressly stated herein, shall be binding on such party.
Signed /s/ Xxxxxxx Xxxxx Signed /s/ Xxxxxx Xxxxxxxx
---------------------- ----------------------
Name XXXXXXX XXXXX Name XXXXXX XXXXXXXX
---------------------- ----------------------
Title SR-VP Title CFO
---------------------- ----------------------
Date 7/9/98 Date 7/9/98
---------------------- ----------------------
FOR AND ON BEHALF OF IONA FOR AND ON BEHALF OF CUSTOMER
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SCHEDULE A - FEE SCHEDULE
DEVELOPMENT LICENSING
Qty (2) Orbix Development License Seats [*]
Platform: Solaris MT
List Unit Price: [*]
Discount Percentage: [*]
Discount Unit Price: [*]
Qty (2) Annual Software Support [*]
Orbix Development License Seats
Platform: Solaris MT
List Unit Price: [*]
Qty (1) Orbix Development License Seats [*]
Platform: Digital UNIX
List Unit Price: [*]
Discount Percentage: [*]
Discount Unit Price: [*]
Qty (1) Annual Software Support [*]
Orbix Development License Seats
Platform: Digital UNIX
List Unit Price: [*]
Qty (2) Orbix Development License Seats [*]
Platform: WindowsNT
List Unit Price: [*]
Discount Percentage: [*]
Discount Unit Price: [*]
Qty (2) Annual Software Support [*]
Orbix Development License Seats
Platform: WindowsNT
List Unit Price: [*]
Qty (1) OrbixWeb Development License Seats [*]
Platform: Solaris MT
List Unit Price: [*]
Discount Percentage: [*]
Discount Unit Price: [*]
Qty (1) Annual Software Support [*]
OrbixWeb Development License Seats
Platform: Solaris MT
List Unit Price: [*]
-----------
TOTAL DEVELOPMENT LICENSING [*]
[continued]
-8-
* Confidential treatment requested for redacted portion.
RUNTIME/DEPLOYMENT LICENSING
INSTALLED MAINTENANCE BASE
For a one-time royalty fee of [*], payable net 30 from execution date of
the Agreement, Net Perceptions may deploy Orbix Runtime Components within the
Developed Software (internal code name of "Cleveland") to the Net Perception
installed base as of October 1, 1998.
Installed Base Royalty Fee [*]
-----------
DEVELOPMENT & INSTALLED BASE DEPLOYMENT LICENSING [*]
PERCENTAGE OF REVENUE ROYALTY
For deployment of Orbix Runtime Components to Net Perceptions End Users after
October 1, 1998, deployment royalties shall be based on a set percentage of
net revenue (expressly excluding support and maintenance revenues) derived
from the product(s) in which IONA products are embedded.
Percentage of Net Revenue Royalty Rate:
Orbix (C++) [*]
DEPLOYMENT SOFTWARE SUPPORT
Deployment licenses are not subject to software support. So long as Orbix
development licenses are under a current support agreement, updates and upgrades
received for those development licenses are deployable to each licensed runtime.
-9-
* Confidential treatment requested for redacted portion.
SCHEDULE B - TERMS FOR SUPPORT AND MAINTENANCE
ORBIX-Registered Trademark- TECHNICAL SUPPORT AND MAINTENANCE TERMS
1. IONA OBLIGATIONS
1.1 IONA will provide an electronic mail Technical Support service for the
Customer between the hours of 4.00 am and 5.30 p.m. Eastern Standard Time (EST),
Monday to Friday, excluding Public Holidays. IONA will provide a single
Internet mail address to which all Technical Support queries may be directed.
IONA will use all commercially reasonable efforts to resolve any support issues
in a timely manner.
1.2 IONA will provide a FAX Technical Support service for the Customer
between the hours of 4.00 am and 5.30 p.m. Eastern Standard Time (EST), Monday
to Friday, excluding Public Holidays. IONA will provide a single FAX number to
which all Technical Support queries may be directed.
1.3 Telephone Technical Support and Technical Support outside of the hours
specified in paragraphs 1.1 and 1.2 can be provided subject to written agreement
between IONA and the Customer on specific terms and fees payable.
1.4 For the duration of the period in which Customer has purchased support,
IONA will provide to the Customer, free of further charge, copies of Minor and
Point Releases to the Products. "Minor Release" shall mean the release of an
IONA Product where, if the product version number is designated as x.y.z, the
digit represented by "y" is changed to one digit higher. A Minor Release
normally includes minor feature and functionality changes and enhancements.
"Point Release" shall mean the release of an IONA Product where, if the product
version number is designated as x.y.z, the digit represented by "z" is changed
to one digit higher. A Point Release normally consists of bug fixes and error
corrections.
1.5 Expedited resolution of software malfunctions can be provided subject to
written agreement between IONA and the Customer on specific terms and fees
payable.
1.6 IONA is not required offer the services of any named individual in
respect of the above Technical Support undertakings except as IONA and Customer
may specifically agree in writing.
2 CUSTOMER RESPONSIBILITIES
2.1 Customer will nominate one representative who will be the primary
representative for the purposes of technical support and will be the named
recipient of software updates. The Customer may change the nominated
representative at any time by notifying IONA in writing.
2.2 The Customer will direct initial support queries to the electronic mail
address or FAX number set forth below and will not direct such queries directly
to IONA personnel.
3 PAYMENT
All fees for technical support and maintenance for each year of support are to
be invoiced at the commencement of the year and shall be payable as set forth in
the Agreement.
4 CONTACT DETAILS
4.1 The IONA Technical Support FAX number is: x000-0-000 5244; or
x0 000 000 0000
4.2 The IONA Technical Support electronic mail address is: xxxxxxx@xxxx.xxx
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