DISTRIBUTOR AGREEMENT
by and between
NEON SYSTEMS, INC.
and
dated
TABLE OF CONTENTS
Article 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article 2 License Grant . . . . . . . . . . . . . . . . . . . . . . . . . 2
Article 3 Pricing and Payment . . . . . . . . . . . . . . . . . . . . . . 4
Article 4 Order, Delivery and Acceptance. . . . . . . . . . . . . . . . . 6
Article 5 Representations and Warranties of Licensee. . . . . . . . . . . 7
Article 6 Representations and Warranties of Licensor. . . . . . . . . . . 8
Article 7 Covenants of Licensee . . . . . . . . . . . . . . . . . . . . . 8
Article 8 Covenants of Licensor . . . . . . . . . . . . . . . . . . . . 13
Article 9 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 14
Article 10 Agreement not to Compete; Confidentiality . . . . . . . . . . 15
Article 11 Audits. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Article 12 Limited Warranties. . . . . . . . . . . . . . . . . . . . . . 17
Article 13 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Article 14 Term and Termination. . . . . . . . . . . . . . . . . . . . . 18
Article 15 General . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
EXHIBITS
Exhibit A List of Products
Exhibit B The Territory
Exhibit C Sublicense Agreement
Exhibit D Agreement for Trial
DISTRIBUTOR AGREEMENT
THIS DISTRIBUTOR AGREEMENT (the "Agreement") is made this day of ,
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(the "Effective Date") by and between Neon Systems, Inc., a Delaware
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corporation (the "Licensor"), and , a corporation
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(the "Licensee").
WHEREAS, Licensor is engaged in the development, support and licensing of
certain computer software products, including without limitation the computer
software products listed in EXHIBIT A to this Agreement;
WHEREAS, Licensee desires to obtain from Licensor, and Licensor desires to grant
to Licensee, a non-exclusive, non-transferable right to market, sublicense,
maintain and support the Licensed Products (as defined herein) in the Territory
(as defined herein) in accordance with the terms and conditions set forth in
this Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants set
forth in this Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
ARTICLE 1
DEFINITIONS
1.1. "Customer" means a person or entity that has acquired, or has indicated to
Licensee its interest in acquiring, from Licensee a non-exclusive and
non-transferable Sublicense to use one (1) or more of the Licensed Products
for its business purposes.
1.2. "Documentation" means all visually readable materials published or made
available by Licensor during the term of this Agreement for use by
Customers in connection with the Licensed Products.
1.3. "Emergency Fix" means a temporary correction of a problem in a Licensed
Product reported by Licensee to Licensor that may take the form of a
written instruction or magnetic or optical media.
1.4. "Licensed Product" means any copy, or part thereof, of object code of the
software products listed on EXHIBIT A attached to this Agreement, as well
as any Upgrades or other material distributed to Licensee or any Customer
by Licensor in connection with such software products.
1.5. "Sublicense" means the sublicense agreement to be entered into by
Customers, the form of which is attached hereto as EXHIBIT C, or such form
as otherwise may be approved by Licensor pursuant to this Agreement.
1.6. "Sublicense Copy" means an object code copy of the Licensed Product that
Licensee
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licenses from Licensor and sublicenses to its Customers.
1.7 "Territory" means that geographic area specified in EXHIBIT B attached to
this Agreement.
1.8 "Upgrade" means any revision, adaptation or new version of a Licensed
Product which enhances a Licensed Product and which is offered by Licensor
to registered users of that Licensed Product as an "upgrade."
1.9 "Level 1" support is defined as being able to perform the following task
without assistance:
* Installation of the "licensed products".
* Articulating/presenting to the customer the different options of the
"licensed products."
* Answering basic questions on the architecture of the "licensed
products" and how they work.
* Understanding the customers' environment (software release levels,
hardware and application programs).
* Describing the customers' problems accurately to NEON's support staff
and providing coordination between the customer and the NEON support
staff.
* Providing the basic traces, dumps and diagnostics for customers'
problems to NEON's support staff.
* Searching the NEON Knowledge Data Base, correlating the customer's
problem with those listed in the knowledge data base, and providing
the results of the knowledge base search to the customer to solve
customers' problems.
2.0 "Level 2" support is defined as being able to perform the following task
without assistance:
* Configuring and solving network problems.
* Configuring and installing customer products for both the mainframe
and client environments (for example: configuring APPC for IMS
Transaction Server, configuring Microsoft Transaction Server).
* Providing basic analysis of dumps and traces.
* Recreating the problem.
ARTICLE 2
LICENSE GRANT
Section 2.1. TESTING, DEMONSTRATION AND SUPPORT. Licensor hereby grants to
Licensee a non-exclusive, non-transferable right to use each Licensed Product
and the related Documentation during the term of this Agreement in the Territory
for testing, demonstration to Customers in the Territory, support and
maintenance and non-productive use at Licensee's place of business listed in
this Agreement.
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Section 2.2. SUBLICENSING. Licensor hereby grants to Licensee a
non-exclusive, non-transferable right, during the term of this Agreement, to
market and sublicense in the Territory Sublicense Copies and copies of the
Documentation, together with any copies of promotional and other materials that
Licensor may produce or obtain from time to time to assist Licensee in
marketing, sublicensing and supporting the Licensed Products. Each such
sublicense shall be evidenced by a Sublicense signed by the Customer. Licensee
shall order from Licensor, in accordance with the provisions of Section 4.1
hereof, each Sublicense Copy to be sublicensed to Customers hereunder and shall
not copy or reproduce any Licensed Product or Sublicensed Copy for such purpose
or any other purpose without the express prior written consent of Licensor.
With prior written consent of the Licensor, Licensee may engage in the lease or
rental of the Licensed Products. Licensee shall not engage in the transfer or
loan of the Licensed Products or Documentation
Section 2.3. AGREEMENTS FOR TRIAL. Licensee may make available the Licensed
Products or Documentation to any Customer who wishes to test the Licensed
Products on a trial basis so long as such Customer has entered into an Agreement
For Trial with Licensee in the form attached to this Agreement as EXHIBIT D.
Section 2.4. MAINTENANCE AND SUPPORT AGREEMENTS. Licensee may make available
to Customers maintenance, support and upgrade services only under the terms
contained in the Sublicense or other written maintenance and support agreement
pertaining to such services.
Section 2.5. REVIEW OF ARRANGEMENTS. Licensee shall not enter into any
agreement referred to in this Article 2 with any Customer until each such
agreement has been submitted to and approved by Licensor. Within ten (10)
business days after its receipt of any such agreement, Licensor shall notify
Licensee whether it approves or disapproves of the agreement and, if it
disapproves of the agreement, Licensor shall provide written notice of the
reasons therefor, including any changes that it would require to approve of the
agreement. If Licensor fails to notify Licensee of its approval or disapproval
of any such agreement within such period of time, the agreement shall be deemed
to be approved by Licensor. Licensor's review and approval of any agreement
pursuant to this Section 2.5 shall not relieve Licensee of any of its
obligations under this Agreement, including but not limited to, Sections 2.6,
7.1 and 7.3 hereof.
Section 2.6 TERMS OF AGREEMENTS.
(a) Licensee shall ensure that the terms of any Sublicense, Agreement for Trial
or other agreement executed in connection with the Licensed Products comply
with applicable law and are in such form and substance they do not:
(i) Diminish or limit any of the rights of Licensor or any licensor of
Licensor in the Licensed Products or Documentation;
(ii) Diminish or limit the enforceability of the proprietary rights of
Licensor or any licensor of Licensor in and to the Licensed Products
or Documentation;
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(iii) Convey any rights of ownership in the Licensed Products or
Documentation to any individual or entity other than Licensor or, as
applicable, any licensor of Licensor;
(iv) Permit the use or duplication of the Licensed Products or
Documentation, except as specifically provided in this Agreement or in
the Sublicense; or
(v) Permit disclosure of proprietary information regarding the Licensed
Products or Documentation.
(b) This Agreement and any Sublicense, Agreement for Trial, maintenance and
support or other agreement to be entered into in connection with this
Agreement may not be translated into a language other than English without
the prior written consent of Licensor. In the event that Licensor consents
to any such translation, a copy of the translated document or agreement
shall be provided to Licensor, together with a certificate from Licensee
and the party who translated the same whereby Licensee and such party
jointly and severally certify to Licensor that such translation is a true
and accurate translation from the English version thereof. Notwithstanding
any such translation, the English version of any such translated document
or agreement shall control for purposes of the interpretation and
enforcement thereof, and each translated document or agreement shall
include a provision to that effect.
Section 2.7. NATURE OF GRANT. Licensee shall not have any rights of ownership
or other proprietary rights in the Licensed Products or any Documentation by
virtue of this Agreement, except for the license grants set forth herein.
Section 2.8. TRADEMARKS AND COPYRIGHT. Licensor hereby grants to Licensee a
non-exclusive right to use the trademarks, service marks, trade names,
copyrights, logos and designations (collectively, the "Marks") relating to the
Licensed Products or the Documentation during the term of this Agreement for the
sole purpose of marketing the Licensed Products, provided that such Marks
clearly indicate that Licensor or, as applicable, any licensor of Licensor is
the owner of the Marks whenever the Licensed Product or Documentation is first
mentioned in any written material referencing the Licensed Product and the
proper symbol is used in a superscript following the Marks. Licensor promptly
shall provide a list of all Marks of Licensor or any licensor of Licensor that
relate to the Licensed Products. Upon written request by Licensor, Licensee
shall provide Licensor with samples of any use of the Marks relating to the
Licensed Products, including any documentation and object code copies of the
Licensed Products that Licensee sublicenses to its Customers.
ARTICLE 3
PRICING AND PAYMENT
Section 3.1. FEE TO LICENSOR.
(a) Licensee shall pay to Licensor for each Licensed Product of Partitioned
Database Facility for IMS/ESA-TM- (PDF), Speed Load, and Speed Unload
licensed to a Customer a license fee
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equal to the greater of (i) fifty four percent (54%) for PDF and fifty
nine percent (59%) for Speed Load and Speed Unload of Licensor's then
prevailing suggested license fee for such Licensed Product in effect on the
date the product order for such Licensed Product is delivered to Licensor
or (ii) fifty four percent (54%) for PDF and fifty nine percent (59%) for
Speed Load and Speed Unload of all revenues received (without deduction for
value added tax, if any, but excluding any revenues for maintenance or
upgrade services, which revenues are covered in paragraph (c), (d), and (e)
below) by Licensee under the Sublicense applicable to such Licensed
Product.
(b) Licensee shall pay to Licensor for each Licensed Product (except those
listed in paragraph (a) above) licensed to a Customer a license fee equal
to the greater of (i) fifty percent (50%) of Licensor's then prevailing
suggested license fee for such Licensed Product in effect on the date the
product order for such Licensed Product is delivered to Licensor or (ii)
fifty percent (50%) of all revenues received (without deduction for value
added tax, if any, but excluding any revenues for maintenance or upgrade
services, which revenues are covered in paragraph (c), (d), and (e)
below) by Licensee under the Sublicense applicable to such Licensed
Product.
(c) Licensee shall pay to Licensor for maintenance and support provided under
the applicable Sublicense or other written maintenance and support
agreement with or approved by Licensor for each of the Licensed Products a
fee equal to the greater of (a) eighty per cent (80%) of Licensor's then
prevailing maintenance fee for such Licensed Product in effect on the date
that the invoice relating to such maintenance and support agreement or the
renewal thereof is delivered to the Customer if Licensee is providing Level
1 support only as defined in Article 1 herein; or (b) eighty percent (80%)
of all revenues received for such Licensed Product in effect on the date
that the invoice relating to such maintenance and support agreement or the
renewal thereof is delivered to the Customer if Licensee is providing Level
1 support as defined in Article 1 herein.
(d) Licensee shall pay to Licensor for maintenance and support provided under
the applicable Sublicense or other written maintenance and support
agreement with or approved by Licensor for each of the Licensed Products a
fee equal to the greater of (a) fifty per cent (50%) of Licensor's then
prevailing maintenance fee for such Licensed Product in effect on the date
that the invoice relating to such maintenance and support agreement or the
renewal thereof is delivered to the Customer if Licensee is providing Level
1 and Level 2 support as defined in Article 1 herein; or (b) fifty percent
(50%) of all revenues received for such Licensed Product in effect on the
date that the invoice relating to such maintenance and support agreement or
the renewal thereof is delivered to the Customer if Licensee is providing
Level 1 and Level 2 support as defined in Article 1 herein.
(e) If Licensee does not provide "Level 1" or "Level 2" support as defined in
Article 1 herein, Licensee shall pay to Licensor for maintenance and
support provided under the applicable Sublicense or other written
maintenance and support agreement with or approved by Licensor for each of
the Licensed Products a fee equal to the greater of (a) one hundred per
cent (100%) of Licensor's then prevailing maintenance fee for such
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Licensed Product in effect on the date that the invoice relating to such
maintenance and support agreement or the renewal thereof is delivered to
the Customer; or (b) one hundred percent (100%) of all revenues received
for such Licensed Product in effect on the date that the invoice relating
to such maintenance and support agreement or the renewal thereof is
delivered to the Customer.
(f) Licensee shall pay Licensor for upgrades of systems and user upgrades
provided under the applicable Sublicense or other written agreement with or
approved by Licensor for each of the Licensed Products a fee equal to the
greater of (i) fifty four percent (54%) for PDF, fifty nine percent (59%)
for Speed Load and Speed Unload, and fifty percent (50%) for all other
products of Licensor's then prevailing upgrade policy provided under such
Sublicense or (ii) fifty four percent (54%) for PDF, fifty nine percent
(59%) for Speed Load and Speed Unload, and fifty percent (50%) of all
upgrade revenues received (without deduction for value added tax, if any)
by Licensee from a Customer relating to services for user upgrades or
upgrades of systems for such Licensed Product.
(g) Upon the execution of this Agreement by both parties, Licensor shall
provide to Licensee a written statement of Licensor's license fees,
maintenance fees and upgrade fees for Licensed Products then in effect. At
any time and from time to time during the term of this Agreement, Licensor
may increase or decrease such fees upon notice to Licensee at least thirty
(30) days in advance of the date on which any such change is to take
effect. Any such change in fees shall apply to any product order or
request for maintenance, support or upgrade services accepted by Licensor
after the effective date of such change.
Section 3.2. TERMS OF PAYMENT. All fees due to Licensor under this Agreement
shall be paid in U.S. Dollars. Fees due to Licensor hereunder will be payable
on the earlier of (a) ten (10) days after receipt of the payment from the
Sub-Licensee or (b) sixty (60) days after (i) the date of the Sub-License
(which has been approved by Licensor), or (ii) the date maintenance or other
services (upgrades) commence. Any amount that is not paid when due will bear
simple interest from the date after such amount is due until the date payment is
made at a rate equal to the lesser of (a) fourteen percent (14%) per annum or
(b) the maximum rate of interest allowed by applicable law.
Section 3.3. METHOD OF PAYMENT. Both parties shall be required to establish a
lock box with a local banking facility. Customers will be required to remit all
payments to this lock box. Upon receipt of payments, fifty percent (50%) of the
payment will be sent automatically by the bank to Licensor and fifty percent
(50%) to Licensee. Lock box fee will be shared on a 50/50 basis.
ARTICLE 4
ORDER, DELIVERY AND ACCEPTANCE
Section 4.1. ORDER AND DELIVERY. Licensee shall deliver to Licensor product
orders (or other
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documents of similar purpose and effect) in writing that are signed by an
authorized representative of Licensee and that list the quantity, product name,
number, version, license fee, Customer name and address and proposed delivery
date for such order. Licensor shall ship, or arrange for the shipment of,
Licensed Products and Documentation in accordance with Licensee's product orders
received and accepted by Licensor. Licensor shall ship Licensed Products and
Documentation F.O.B. Licensor's place of business; provided, however, that with
respect to any Licensed Product that Licensor licenses from any other licensor,
Licensor may arrange for the shipment of such Licensed Product and related
Documentation F.O.B. such other licensor's place of business. Notwithstanding
the foregoing, Licensor will pay the shipping costs for regular delivery of
Licensed Products by United Parcel Service or such other delivery service
selected by Licensor so long as the related product order has not been submitted
to replace Licensed Products previously shipped to, and lost or damaged by,
Licensee or a Customer. Except as otherwise expressly provided herein, licensee
shall be responsible for all shipping costs for such replacement orders and for
the shipping costs of any expedited delivery of Licensed Products. Licensee
also shall be responsible for all customs fees and other costs and expenses
arising in connection with the shipment to or taking delivery by Licensee of
Licensed Products and documentation as contemplated by this Agreement. Licensor
may require Licensee to prepay, prior to the shipment of any Licensed Products
or Documentation, all such fees, costs and expenses for which Licensee is
responsible. Licensor shall not be liable to Licensee for delays in shipments
due to causes beyond Licensor's reasonable control. Licensor reserves the right
to reject any product order, to cancel any product orders placed by Licensee and
accepted by Licensor and to refus or delay shipment thereof if Licensee fails to
make any payments as provided in this Agreement or otherwise fails to comply
with the terms and conditions of this Agreement. Licensor also reserves the
right to discontinue the licensing of any or all of the Licensed Products at any
time upon ninety (90) days written notice to Licensee, and to cancel any orders
for such discontinued Licensed Products as of the effective date of such
discontinuance without liability of any kind to Licensee or to any other person.
No such cancellation, refusal, delay or discontinuation will be deemed a
termination (unless Licensor so advises Licensee) or breach of this Agreement by
Licensor.
Section 4.2. ACCEPTANCE/REJECTION. With respect to all Licensed Products
ordered under this Agreement, Licensee shall ensure that, on or before the date
of shipment, the applicable Customer shall have duly executed and delivered a
Sublicense or Agreement for Trial (whichever shall be applicable) with respect
to such Licensed Products and that the terms of such Sublicense or Agreement for
Trial obligate the Customer to accept or reject such Licensed Products within a
time period approved by Licensor (which approval may be given pursuant to the
approval by Licensor of the related form of Sublicense or Agreement for Trial
pursuant to Section 2.5 hereof).
Section 4.3. REJECTION. If a Customer properly rejects any Licensed Product
in accordance with the applicable Sublicense or Agreement for Trial, Licensee
shall give Licensor prompt written notice of such rejection and, upon Licensor's
request, either shall arrange for the return of all copies of such Licensed
Product to Licensor or shall provide evidence reasonably satisfactory to
Licensor that all such copies have been destroyed or rendered unusable.
Licensor thereupon shall refund to Licensee any license fee previously paid to
Licensor by Licensee for such Licensed Product.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF LICENSEE
Section 5.1. AUTHORITY. Licensee represents and warrants that it is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization and that it is duly
qualified to transact business and is in good standing in each jurisdiction in
which such qualification is required by applicable law, except where the failure
to be so qualified would not have a material adverse effect on Licensee or the
assets of Licensee. Licensee represents and warrants that it has all requisite
power and authority to execute this Agreement and to consummate the transactions
contemplated hereby and that this Agreement has been duly executed and delivered
by Licensee and constitutes a valid and binding obligation of Licensee
enforceable in accordance with its terms.
Section 5.2. ABILITY TO PERFORM. Licensee represents and warrants that it has
sufficient facilities, resources and personnel to adequately perform its
obligations under this Agreement and that no existing arrangement, contractual
or otherwise, will cause Licensee to breach the terms of this Agreement or
prevent Licensee from fulfilling its obligations under this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF LICENSOR
Section 6.1. AUTHORITY. Licensor represents and warrants that it is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and that it is duly qualified to
transact business and is in good standing in each jurisdiction in which such
qualification is required by applicable law, except where the failure to be so
qualified would not have a material adverse effect on Licensor or the assets of
Licensor. Licensor represents and warrants that it has all requisite power and
authority to execute this Agreement and to consummate the transactions
contemplated hereby and that this Agreement has been duly executed and delivered
by Licensor and constitutes a valid and binding obligation of Licensor
enforceable in accordance with its terms.
Section 6.2. RIGHT TO LICENSE THE LICENSED PRODUCTS. Licensor represents and
warrants that, to its knowledge and belief, the use of each of the Licensed
Products and the Documents by Licensee or a Customer will not constitute an
infringement or other violation of any copyright, trade secret, trademark,
patent or other intellectual property rights or any proprietary information or
nondisclosure or other rights of any third party. Licensor represents and
warrants that no existing contract to which it is a party will cause Licensor to
breach the terms of this Agreement or prevent Licensor from fulfilling its
obligations under this Agreement.
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ARTICLE 7
COVENANTS OF LICENSEE
Section 7.1. DUTIES OF LICENSEE. Licensee shall be solely responsible for
using its best efforts to cause the proper advertising, demonstration, shipment,
export and collection of payment relating to the Licensed Products in the
Territory. The duties of Licensee include without limitation the following:
(a) Advertising the Licensed Products in appropriate media, contacting and
developing Customers by telephone and otherwise, providing information
concerning Licensed Products to Customers and advising Customers on
the selection and use of the Licensed Products.
(b) Providing competent instruction to Customers regarding the use and
installation of the Licensed Products.
(c) Complying with Licensee's warranty obligations as set forth in its
agreements with Customers.
(d) Employing skilled technicians experienced in the computing industry
and familiar with the Licensed Products and Documentation to provide
technical support and assistance.
(e) Providing information, including by means of telephone support, to
Customers as to the proper procedures and persons to contact to enable
the proper installation and operation of the Licensed Products and
providing responsive answers to questions and problems regarding the
use and operation of the Licensed Products.
(f) Sending at Licensee's expense qualified and appropriate personnel of
Licensee to participate in a one-time training session to be conducted
by or on behalf of Licensor for the benefit of Licensee and Licensee's
personnel. Such training session shall be conducted without charge
therefor by Licensor (although Licensee shall be responsible for the
expenses of travel, lodging and meals for employees attending such
training session).
(g) Enforcing the terms of each Agreement for Trial and Sublicense with
each of its Customers, including without limitation ensuring the
destruction or the return to Licensee of all Licensed Products,
Documentation and related materials in the possession of any such
Customer upon termination of the Sublicense between Licensee and such
Customer.
(h) Notifying Licensor of any modifications required for any Sublicense or
Agreement for Trial to comply with applicable law and, subject to the
provisions of Section 2.5 hereof, making appropriate modifications to
such Sublicense or Agreement for Trial such that such Sublicense or
Agreement for Trial will comply with applicable law.
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(i) Informing Licensor of any statute, regulation, rule or other law
pending or enacted in the Territory that might affect the import,
licensing or use of the Licensed Product or the intellectual property
rights associated with the Licensed Product or the Documentation in
the Territory and assisting Licensor in complying with such laws.
(j) Keeping complete and accurate records of Licensee's Customers, leads
to prospective Customers, the number and type of any Licensed Products
licensed by Licensee, the number and type of Licensed Products
sublicensed to Customers and such related operating and financial data
as Licensor reasonably may request from time to time for the purpose
of monitoring the Licensed Products, the use, marketing and
sublicensing thereof by Licensee, and the provision of maintenance,
support and upgrade services therefor.
Section 7.2. DOCUMENTATION. Licensee shall represent accurately and
completely the Licensed Products to Customers as to quality, function, purpose
and compatibility in accordance with the Documentation whenever the Licensed
Products are referenced, demonstrated or advertised. Licensee shall obtain
prior written approval from Licensor for all materials other than the
Documentation to be used by Licensee in connection with trials, demonstrations
and agreements relating to the Licensed Products, and such approval shall not be
unreasonably withheld or delayed by Licensor. Licensee shall give Licensor and
any licensors of Licensor appropriate credit for the authorship of the Licensed
Products and Documentation at any seminar, trade show or other presentation of
the Licensed Products.
Section 7.3. EXPORTING AND SHIPMENT.
(a) If any approval with respect to this Agreement, or the registration
hereof, shall be required at any time during the term hereof, with
respect to giving legal effect to this Agreement in the Territory, or
with respect to compliance with exchange regulations or other
requirements so as to assure the right of remittance abroad of United
States dollars pursuant to Section 3.2 hereof, Licensee immediately
shall take whatever steps may be necessary in this respect, and any
charges incurred in connection therewith shall be paid by Licensee.
Licensee shall keep Licensor currently informed of its efforts in this
connection. Licensor shall be under no obligation to ship, or cause
to be shipped, Licensed Products or Documentation to Licensee until
Licensee has provided Licensor with satisfactory evidence that any
such approval or registration is not required or that it has been
obtained.
(b) Licensee shall comply fully with all applicable laws, rules and
regulations in connection with its performance under this Agreement
and the marketing, sublicensing, maintenance and support of the
Licensed Products and Documentation, and Licensee shall adopt such
policies and procedures as may be required thereby. Without limiting
the generality of the foregoing, Licensee shall comply fully with the
export control laws of the United States of America and prevailing
regulations which may be issued from time to time by the United States
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Department of Commerce, the Office of Munitions Control, the United
States Department of State, and any other export and/or import control
regulations of the United States of America and those countries
involved in transactions concerning the exporting, importing and
reexporting of any Licensed Products or Documentation licensed or
sublicensed pursuant to this Agreement. Licensee also shall comply
with the United States Foreign Corrupt Practices Act and shall
indemnify Licensor from any failure by Licensee to comply therewith.
Such indemnification shall survive any expiration or termination of
this Agreement.
(c) Without limiting any other provision of this Section 7.3, Licensee
shall obtain prior written approval, for itself or on behalf of
Licensor (or, if applicable, any licensor of Licensor) as the case may
be, from Licensor and any required export licenses or other approvals
from the United States Department of Commerce, Office of Export
Administration or other applicable domestic or foreign governmental
agency before any Licensed Product or Documentation is exported by
Licensee or Licensor (or, if applicable, any licensor of Licensor), as
the case may be, from the United States. Licensee shall not sell,
export, reexport, transfer, divert or otherwise dispose of any such
product or technical data, directly or indirectly, to any person or
firm, or country or countries, prohibited by the laws or regulations
of the United States of America, by the laws of Licensee's
jurisdiction of incorporation or organization or by any other
applicable laws. Licensee also shall comply with any and all
applicable import laws and regulations and registration requirements
applicable in any jurisdiction in which Licensee conducts any
activities under or in connection with this Agreement. Licensee also
shall obligate its Customers to comply with all of the foregoing laws
and regulations.
(d) Licensor and Licensee each shall cooperate fully with the other and
any governmental authorities by giving consents or information or
providing or executing such documents as reasonably may be required to
comply fully with applicable laws, rules or regulations existing now
or in the future.
(e) Licensee shall not solicit the sublicensing of any Licensed Product or
Documentation, or any part thereof, in any location other than the
Territory without prior written approval of Licensor.
Section 7.4. TAXES AND TARIFFS.
(a) Licensee shall pay any and all taxes (other than taxes on Licensor's
net income) tariffs, import and export duties or other fees imposed or
assessed in connection with the transactions contemplated by this
Agreement, including the delivery of Licensed Products and
Documentation to Licensee and the shipment of Licensed Products and
Documentation to Customers.
(b) In the event that Licensee is required by law to withhold any form of
tax, tariff or duty from any amount payable to Licensor under this
Agreement, then Licensee
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shall pay or reimburse Licensor for any such amount required to be
withheld and provide Licensor with copies of all documentation,
including any receipts, prepared or required in connection with such
withholdings and shall provide to Licensor all assistance requested by
Licensor in applying for relief from such withholding obligations and
in substantiating corresponding tax, duty or tariff credits or
deductions which may be available to Licensor with respect to such
withholding under applicable law.
Section 7.5. BOOKS AND RECORDS. Licensee shall keep proper records and books
of account concerning the sublicensing and any reproduction of the Licensed
Products that are adequate to determine the amount of fees owed to Licensor and,
for a period of five (5) years following termination of this Agreement, Licensee
shall preserve such records and books in a safe place and make available the
same for inspection and copying by Licensor upon Licensor's written request.
Section 7.6. MONTHLY REPORT. On or prior to the first (2nd) business day of
each calendar month, Licensee shall deliver to Licensor a written report
certified as true and correct by an authorized officer of Licensee stating (a)
each Agreement for Trial entered into by Licensee during the previous calendar
month, together with the expected revenues, if any, to Licensee under each such
agreement, (b) each Sublicense entered into by Licensee during the previous
calendar month, together with the expected revenues to Licensee under each such
Sublicense, (c) each maintenance and support agreement entered into by Licensee
during the previous calendar month, together with the expected revenues to
Licensee under each such agreement, (d) a list of invoices (for licensing fees,
maintenance and support or other services), together with the dollar amounts
thereof, sent by Licensee to each Customer during the previous calendar month
and (e) a 90 day forecast. Licensee shall attach to each such report copies of
each Agreement for Trial, Sublicense and maintenance and support agreement
referenced therein that were entered into during the previous calendar month.
Section 7.7. FINANCIAL STATEMENTS. Licensee shall provide (but shall not be
obligated to do so more frequently than twice annually) to Licensor financial
statements, credit ratings or other evidence of Licensee's financial condition
promptly upon written request of Licensor.
Section 7.8. REPLACEMENTS. Licensee shall honor any proper refund or
replacement requests received for the Licensed Products from its Customers
pursuant to a Sublicense. Upon receipt of any properly returned Licensed
Products, Licensor shall refund to Licensee the license fee paid by Licensee to
Licensor for such Licensed Products. Licensee shall instruct its Customers to
direct all return or refund requests directly to Licensee rather than Licensor.
Section 7.9. MODIFICATIONS. Licensee shall not make any modifications to or
derivations of any Licensed Product without the prior written consent of
Licensor, except in the case of an Emergency Fix. Licensee shall not reverse
engineer or otherwise attempt to reproduce the source code of any Licensed
Product. In the event that Licensee makes any modification, alteration or
enhancement to any Licensed Product or Documentation (including but not limited
to an Emergency Fix), such modification, alteration or enhancement, including
all intellectual property rights thereto, will be and remain the sole and
exclusive property of Licensor. Licensee shall provide written notice to
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Licensor of any changes desired by Licensee to any Licensed Product or
Documentation and, if any such change is incorporated into the Licensed Product
or Documentation, it shall be the property of Licensor.
Section 7.10. COPYRIGHT AND OTHER PROPRIETARY NOTICES. Licensee shall ensure
that the copyright, trademark and any other proprietary notices of Licensor or,
as applicable, any licensor of Licensor, or other legends contained in or on any
copies of the Licensed Products or Documentation remain in or on the original
Licensed Product or Documentation and any copies of such product or
documentation reproduced by Licensee. The existence of any copyright, trademark
or other proprietary notices in or on any Licensed Product or Documentation
shall not be construed as a publication of the Licensed Product or
Documentation.
Section 7.11. NO ENCUMBRANCES. Licensee shall not allow the Licensed Products
or Documentation to become encumbered by any means, such as through the leasing,
transferring, renting or loaning of the Licensed Products or Documentation .
Section 7.12. NO INCONSISTENT WARRANTIES. Licensee shall not make or pass on
to its Customers any warranty or representation on behalf of Licensor
inconsistent with or in addition to the limited warranty contained in the
Sublicense.
Section 7.13. DISPUTES BETWEEN LICENSEE AND CUSTOMERS. Licensee shall notify
Licensor promptly concerning any threatened legal proceedings between Licensee
and a Customer and of any legal notices served on, or legal actions commenced
against, Licensee regarding the Licensed Products or Documentation which might
affect the Licensed Products or Documentation, the rights and obligations of the
parties under this Agreement or Licensor. Licensee shall not institute
proceedings or enter into a compromise with any third party with whom it is in
dispute concerning the Licensed Products or Documentation without the prior
written consent of a duly authorized officer of Licensor, which consent shall
not be unreasonably withheld or delayed by Licensor.
Section 7.14. TRANSLATION. Licensee shall not translate any portion of the
Licensed Products, including any Documentation, into any other language without
the prior written permission of Licensor.
Section 7.15. INTELLECTUAL PROPERTY REGISTRATION; NOTICE OF INFRINGING USES AND
CLAIMS. Without the prior written consent of Licensor, Licensee shall not
register, apply for registration or in any other way attempt to obtain any
intellectual property rights relating to any Licensed Product, any Documentation
or any part thereof or take any action that materially and adversely affects
such rights held by Licensor. Promptly upon becoming aware thereof, Licensee
shall inform Licensor of any infringement of, or challenge to, Licensee's use of
the proprietary rights associated with the Licensed Products or the
Documentation. In no event shall Licensee take any action regarding such
infringement or challenge without the prior written consent of Licensor.
Licensee agrees that Licensor shall have the right, but not the obligation, at
any time, to initiate or assume control of the prosecution of any infringement
of or the defense of any challenge to Licensee's use of such proprietary rights.
If any action or proceeding to terminate any infringement or defend any
challenge to the use of such proprietary rights is initiated or assumed by
Licensor, Licensee shall
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cooperate with and assist Licensor in the commencement, prosecution or defense,
and resolution of such action or proceeding, and for that purpose, Licensee
shall execute any documents deemed necessary by Licensor in the reasonable
opinion of Licensor. If Licensor elects to prosecute or defend an infringement
action, it shall be entitled to retain any recovery. If Licensor does not elect
to prosecute or defend such action within a reasonable time after being notified
thereof by Licensee, Licensee shall have the right to do so at its own expense
and shall be entitled to retain any recovery.
`
ARTICLE 8
COVENANTS OF LICENSOR
Section 8.1. Licensor shall furnish or deliver to Licensee the following
materials and services:
(a) A copy of each Licensed Product, including any Upgrades as they become
available, for purposes of testing, demonstration, support and
maintenance pursuant to Section 2.1 hereof.
(b) Copies of the Documentation, which Licensee at Licensee's expense may
copy (provided that all Marks contained in or on the Documentation
indicating the ownership thereof also are included in or on such
copies) and distribute in the Territory.
(c) Technical assistance in correcting errors in the Licensed Products on
an ongoing basis as Licensee reasonably may request; provided that
Licensor shall be responsible for providing technical assistance only
to Licensee and Licensee shall be responsible for providing technical
assistance to any Customer of Licensee.
ARTICLE 9
INDEMNIFICATION
Section 9.1. INDEMNIFICATION OF LICENSOR. Licensee hereby agrees to defend
and indemnify Licensor and Licensor's officers, directors, employees,
stockholders, agents and representatives against, and agrees to hold them
harmless from, any loss, liability, claim, damage or expense (including
reasonable legal fees and expenses incurred therein or in enforcing the
indemnity), as incurred, for or on account of or arising from or in connection
with or otherwise with respect to any act or omission by Licensee in marketing,
sublicensing, maintaining and supporting the Licensed Products and any breach of
any representation, warranty or covenant of Licensee contained in this Agreement
or any document delivered in connection herewith.
Section 9.2. INDEMNIFICATION OF LICENSEE. Licensor hereby agrees to defend
and indemnify Licensee and Licensee's officers, directors, employees,
stockholders, agents and representatives against, and agrees to hold them
harmless from, any loss, liability, claim, damage or expense (including
reasonable legal fees and expenses incurred therein or in enforcing the
indemnity), as incurred, for or on account of or arising from or in connection
with or otherwise with respect to any breach of any representation, warranty or
covenant of Licensor contained in this Agreement or any
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document delivered in connection herewith or Licensor's gross negligence or
intentional misconduct.
Section 9.3. INDEMNIFICATION PROCEDURE. Promptly after acquiring knowledge of
any loss, action, suit, investigation, proceeding, demand, assessment, audit,
judgment or claim against Licensor or Licensee, or as to which Licensor or
Licensee may be liable, a party entitled hereunder to be indemnified shall give
written notice thereof to the party obligated hereunder to provide
indemnification. The indemnifying party at its own expense promptly shall
defend, contest or otherwise protect against any damage, loss, deficiency,
liability, claim, encumbrance, penalty, cost, expense, action, suit,
investigation, proceeding, demand, assessment, audit, judgment or claim made by
a third party against which such indemnifying party has agreed to indemnify any
indemnified party, and each indemnified party shall provide the indemnifying
party all necessary and reasonable cooperation in said defense.
Section 9.4. FURTHER REMEDIES FOR INFRINGEMENT. If Licensee is prevented from
its normal use of any Licensed Product or Documentation by injunction or court
order arising from, relating to or in connection with any alleged or actual
infringement on the intellectual property rights of a third party relating to
any Licensed Product or Documentation, then Licensor at its option and in
addition to the above indemnity and at no expense, loss or damage to Licensee
shall (a) replace such Licensed Product or Documentation free of any such
infringement, (b) modify such Licensed Product or Documentation so that it is
free of any such infringement or (c) procure for the benefit of Licensee,
whether by license or other release of claim of infringement, the right to
market and sublicense Sublicense Copies and copies of the Documentation.
ARTICLE 10
AGREEMENT NOT TO COMPETE; CONFIDENTIALITY
Section 10.1. NONCOMPETITION. Each of Licensor and Licensee understands and
acknowledges that Licensor shall be entitled to protect and preserve the going
concern value of Licensor's business to the extent permitted by law and that
Licensor would not have entered into this Agreement absent the provisions of
this Section 10.1 and, therefore, each of Licensor and Licensee agrees that
during the term of this Agreement Licensee shall not engage in, represent in any
way or be connected with, directly or indirectly, any business competing with
the Licensed Products.
-15-
Section 10.2. CONFIDENTIAL INFORMATION. Licensee understands and agrees that
the Licensed Products and any related information marked "Confidential"
constitute valuable intellectual property and trade secrets and embody
substantial creative efforts and confidential information, ideas and expressions
that Licensor owns or has obtained a right to license. The Licensed Products
and related information marked "Confidential" are referred to collectively in
this Agreement as the "Confidential Information." Licensee shall observe at
all times complete confidentiality with regard to the Confidential Information
held by Licensee and shall not permit or authorize access to or disclosure of
any such Confidential Information to any other person or entity other than such
party's employees and consultants who have executed confidentiality agreements
with terms substantially similar to this Agreement. This Section 10.2 will not
apply to any Confidential Information that is required to be disclosed by
applicable law or any Confidential Information that becomes (a) public other
than by virtue of a breach of this Section 10.2 or (b) available to Licensee
from another source that is not subject to a confidentiality agreement with
Licensor.
Section 10.3. UNAUTHORIZED USE. Licensee shall notify Licensor promptly in
writing of the existence of any circumstances surrounding any unauthorized or
prohibited knowledge, possession or use of the Confidential Information by any
person or entity.
Section 10.4. REMEDY. Notwithstanding any other provision of this Agreement,
each of the parties to this Agreement understands and agrees that the remedy of
indemnity payments pursuant to this Agreement and other remedies at law would be
inadequate in the case of any breach of the covenants contained in this
Article 10 and Licensee agrees that Licensor shall be entitled to equitable
relief, including the remedy of specific performance, without posting of bond or
other security, with respect to any breach or attempted breach of such
covenants.
-16-
ARTICLE 11
AUDITS
Section 11.1. AUDITS. During the term of this Agreement and the five (5) year
period immediately following termination of this Agreement, Licensor will have
the right, at its own expense, to audit and examine Licensee's records
concerning either (a) the sublicensing and any reproduction of the Licensed
Products, the provision of maintenance and support and upgrade services for any
Licensed Products and the resulting fees due to Licensor or (b) compliance by
Licensee with its obligations as to confidentiality under this Agreement. Any
such audit shall be conducted during normal business hours, upon at least three
business days prior written notification to Licensee stating the purpose of the
audit and in such a manner so as to not unreasonably interfere with Licensee's
business operations. Licensor shall keep any and all information derived from
any audits confidential, except as may be reasonably required to enforce
Licensor's rights and Licensee's obligations hereunder. Licensor shall not use
such information for any purpose other than the purpose of the audit as stated
in such party's written notification for such audit and except as may be
reasonably required to enforce Licensor's rights and Licensee's obligations
hereunder. If an audit of Licensee's records and books of account reveals that
Licensee has underpaid the fees due under this Agreement to Licensor for the
period under audit, Licensee shall pay to Licensor promptly the amount of the
underpayment. If the amount of underpayment for the period under audit exceeds
five percent (5%) of the total amount owed for such period, Licensee shall
reimburse Licensor for all costs and expenses incurred by Licensor in connection
with performing the audit.
ARTICLE 12
LIMITED WARRANTIES
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Section 12.1. PERFORMANCE. For twelve (12) months after delivery of any
Licensed Product to a Customer, Licensor warrants that each Licensed Product
will perform in all material respects as described in the applicable
Documentation. If Licensee or any Customer discovers any material errors or
discrepancies in the Licensed Products from the Documentation during the twelve
(12) month warranty period, Licensee shall notify Licensor promptly in writing
of such material error or discrepancy in sufficient detail to enable Licensor to
recreate the material error or discrepancy. With respect to any Licensed
Product that is delivered to a Customer pursuant to an Agreement for Trial and
that subsequently is sublicensed to such Customer pursuant to a Sublicense, the
twelve (12) month warranty period shall commence on the date that such Licensed
Product is sublicensed to the Customer.
Section 12.2. DUTIES UNDER WARRANTY. If Licensee or any Customer discovers any
material error in any Licensed Product or any material discrepancy in the
Licensed Product from the Documentation that results in a material loss of
performance in the Licensed Product within the twelve (12) month warranty
period, then Licensor shall provide Licensee with the correction or method of
resolving such error or discrepancy; provided that Licensor shall not be
responsible for any error or discrepancy caused by failure to use the Licensed
Products as specified in the Documentation or any modifications made to any
Licensed Product by or on behalf of a party other than Licensor. If such error
or discrepancy is not resolved within thirty (30) days after Licensee's written
notice to Licensor, then Licensee as its sole remedy may (a) extend the
correction period to a date which is agreeable to Licensor and Licensee or (b)
return all copies of the Licensed Product to Licensor with a certification by an
authorized representative of Licensee that all copies have been returned to
Licensor or have been destroyed and that Licensee has not retained any copies
thereof and Licensor shall refund to Licensee the amount paid by Licensee to
Licensor for such Licensed Product. Licensee shall pay for all services
rendered by Licensor in connection with the Licensed Products or Documentation
that are not covered or at the applicable time are no longer covered by the
warranty described in this Agreement.
12.3. EXCLUSIVE REMEDIES. THE REMEDIES SPECIFIED ABOVE SHALL BE THE SOLE
AND EXCLUSIVE REMEDIES OF LICENSEE REGARDING THE LICENSED PRODUCTS.
LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR
SPECIFICALLY MAKES NO REPRESENTATIONS REGARDING THE SUITABILITY OF THE
LICENSED PRODUCTS FOR THE REQUIREMENTS OF ANY CUSTOMER CONCERNING
CAPACITY, INTERCONNECTIVITY, EXPANDABILITY OR PERFORMANCE.
-18-
ARTICLE 13
LIABILITY
Section 13.1. LIMIT OF LIABILITY. Licensor's total liability to Licensee under
any provision of this Agreement shall be limited to the license fee actually
paid by Licensee to Licensor for the Licensed Product giving rise to the
liability. The existence of claims or suits in respect of more than one
Licensed Product shall not enlarge or extend the limit. The parties to this
Agreement acknowledge that each of them relied upon the inclusion of this
limitation in consideration of entering into this Agreement. IN NO EVENT SHALL
LICENSOR BE LIABLE TO LICENSEE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF, OR INABILITY TO USE, THE
LICENSED PRODUCTS OR ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO
LOSS OF PROFIT OR OTHER MONETARY LOSS, LOSS OR INTERRUPTION OF DATA OR COMPUTER
TIME, ALTERATION OR ERRONEOUS TRANSMISSION OF DATA OR PROGRAM ERRORS, EVEN IF
LICENSOR HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE 14
TERM AND TERMINATION
Section 14.1. TERM. This Agreement shall be effective from and after the
Effective Date until the earlier of (i) its termination in accordance with the
provisions of Section 14.2 or (ii) March 31, 2000. Thereafter, this Agreement
shall continue automatically for periods of one (1) year unless either party
otherwise notifies the other party in writing no later than sixty (60) days
prior to the expiration of the initial term or any extension thereof.
Section 14.2. TERMINATION.
(a) Either party to this Agreement may terminate this Agreement:
(1) Immediately upon written notice if the other party to this
Agreement becomes insolvent, is the subject of a petition in
bankruptcy that is not resolved within thirty (30) days, admits
in writing its inability to pay its debts, makes an assignment
for the benefit of creditors, ceases doing business or attempts
an unauthorized assignment of this Agreement; or
(2) Immediately upon written notice if the other party to this
Agreement defaults in the performance of any obligation under
this Agreement, including failure to promptly pay any amount due
hereunder, and fails to cure such default within thirty (30) days
after delivery of written notice specifying the default (with any
termination as a result of Licensee's failure to pay amounts due
under this Agreement resulting in the acceleration of Licensee's
obligation pay all sums due to Licensor under this Agreement).
(b) Licensor may terminate this Agreement:
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(1) upon thirty (30) days prior written notice if, during the first
year of the term hereof, Licensee does not enter into Sublicenses
and other agreements relating to the Licensed Products with
Customers that result in fees payable to Licensor hereunder in an
aggregate amount equal to or greater than $200,000. Licensor may
give any such notice of termination at any time after the first
year of the term hereof; or
(2) upon thirty (30) days prior written notice if (i) Licensee enters
into an agreement or other arrangement (or series of related
agreements or arrangements) that results in or provides for the
merger of Licensee with another entity or the sale or transfer of
substantially all of the assets of Licensee, or (ii) any owner or
owners of capital stock or other equity interests in Licensee
enter into an agreement or arrangement (or series of related
agreements or arrangements) that results in or provides for the
sale or transfer of a majority of the capital stock or other
equity interests in Licensee.
Section 14.3. DUTIES UPON TERMINATION. Upon the termination or expiration of
the term of this Agreement, the parties to this Agreement shall have the
following rights and obligations:
(a) Within five (5) days of written demand by Licensor to Licensee,
Licensee shall return or destroy all copies of the Licensed Products
and any materials associated with the Licensed Products in Licensee's
possession or control, except that Licensee may retain sufficient
copies of each Licensed Product in object code form to enable Licensee
to meet its maintenance and support obligations to its Customers, if
any.
(b) Licensee immediately shall cease any use, sublicensing or distribution
of the Licensed Products or the Documentation.
(c) Within five (5) days of Licensor's written request, Licensee shall
certify in a writing reasonably acceptable to Licensor that except as
set forth in this Agreement all copies of the Licensed Products and
related material have been delivered to Licensor, destroyed or
rendered unusable.
(d) Licensee shall not use any Licensed Product or Documentation as part
of any other product that Licensee may use, sublicense or distribute
and Licensee shall cease any use of the Marks.
(e) All valid Sublicenses, Agreements for Trial and maintenance and
support agreements by and between Licensee and its Customers will
remain and continue in full force and effect for the remainder of
their respective terms, and at Licensor's option and upon Licensor's
request Licensee shall assign to Licensor its rights in any and all
such agreements with respect to the Licensed Products or
Documentation;
-20-
provided that if Licensor fails to provide reasonable support to any
Customer, Licensee may continue to support such Customer without
payment of fees to Licensor.
(f) Licensee promptly shall account for and pay to Licensor all amounts
due and owing pursuant to the terms of this Agreement and provide
Licensor with all outstanding reports due under this Agreement.
(g) Licensee immediately shall cease holding itself out as having any
connection with any Licensed Product or Licensor, unless Licensee at
that time has a connection with Licensor by reason other than this
Agreement.
(h) Licensee shall report to Licensor in reasonable detail the status of
all negotiations with Customers or leads to Customers and all services
which Licensee is obligated to provide to any Customers.
Section 14.4. RIGHTS NOT EXHAUSTIVE. The rights and remedies of Licensor
included in this Article 14 shall not be exclusive and are in addition to
any other rights and remedies provided by law or equity.
Section 14.5. SURVIVAL. The provisions of Articles 9, 10 and 11, the next
to last sentence of Section 7.3(b), Section 7.5, Section 14.3 and this
Section 14.5 and all obligations of Licensee to pay any amounts to Licensor
under this Agreement will survive the termination of this Agreement.
ARTICLE 15
GENERAL
Section 15.1. NATURE OF RELATIONSHIP. The relationship existing between
Licensee and Licensor is one of an independent contractor, and this
Agreement shall not be construed as creating a partnership, joint venture,
agency relationship or as granting a franchise under federal or any state
law. Each of Licensee and its officers, employees or other representatives
shall not enter into or attempt to enter into any obligation on behalf of
Licensor. Licensee shall not make any representations to any Customers
with respect to the Licensed Products and Documentation, including without
limitation representations as to any warranty, covenant or other terms or
conditions relating to licensing of the Licensed Products, unless such
representations are made (a) in strict accordance with this Agreement or
(b) with the prior written consent of Licensor.
Section 15.2. NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed delivered (i) when delivered if delivered
personally or by overnight courier or telecopier with proof of delivery or (ii)
five (5) days after such communication is deposited in the postal system of the
United States or the jurisdiction of organization of Licensee with postage
prepaid, if mailed by registered or certified airmail (return receipt requested)
to the parties to this Agreement at the following addresses (or at such other
address for a party as shall be specified by like notice):
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(a) if to Licensor, to
Neon Systems, Inc.
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxx 00000
Attn: President
and
(b) if to Licensee, to
Section 15.3. INTERPRETATION. When a reference is made in this Agreement to an
Article, Section, subsection or Exhibit, such reference shall be to an Article,
Section, subsection or Exhibit of this Agreement unless otherwise indicated.
The table of contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes" or "including" are
used in this Agreement, such term shall be deemed to be followed by the words
"without limitation." All accounting terms not defined in this Agreement shall
have the meanings determined by generally accepted accounting principles.
Section 15.4. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties to this Agreement and delivered to the other parties to this
Agreement, it being understood that all such parties need not sign the same
counterpart. For purposes hereof, delivery shall be deemed effective upon
exchange of signed copies of this Agreement by facsimile, provided that
originally signed counterparts of this Agreement are transmitted promptly to the
other parties hereto.
Section 15.5. ENTIRE AGREEMENT; LIMIT ON THIRD PARTY BENEFICIARIES. This
Agreement (including the documents and instruments referred to herein) (a)
constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, between the parties hereto with respect
to the subject matter hereof and (b) is not intended to confer upon any person
(including any Customer) other than the parties hereto any rights or remedies
hereunder, except as provided in Article 9.
Section 15.6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES OF
AMERICA.
Section 15.7. JURISDICTION AND VENUE. In case of any dispute between the
parties to this Agreement relating to or arising out of the interpretation or
performance of this Agreement, the dispute shall be
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finally settled in Houston, Texas (unless Licensor and Licensee consent to
another location) by arbitration under the rules of Conciliation and Arbitration
of the International Chamber of Commerce by one or more arbitrators appointed in
accordance with such rules. The arbitrators shall decide the issues presented
to them in applying the substantive laws of the State of Texas. The cost of any
such arbitration hearings shall be apportioned by the arbitrators. The award of
the arbitrators in writing shall be final and binding upon the parties to this
Agreement and shall not be appealed from or contested in any court. No party
hereto, in connection with any proceedings held pursuant to this Section 15.7,
shall be required to furnish any bond. Should either party hereto fail to
appear or be represented at the arbitration proceedings after due notice in
accordance with such rules, then the arbitration may nevertheless render a
decision in the absence of said party, and such decision shall have the same
force and effect as if the absent party had been present, whether or not it
shall be adverse to the interests of said party. Any award rendered hereunder
may be entered for enforcement, if necessary, in any court of competent
jurisdiction, the party against whom enforcement is sought bearing the expenses
(including attorney's fees) of enforcement.
Section 15.8. ASSIGNMENT. Licensee may not assign this Agreement or any of its
rights, interests or obligations hereunder without the prior written consent of
Licensor. Licensor may assign this Agreement and any or all of its rights,
interests and obligations hereunder without the consent of Licensee. Subject to
the first sentence of this Section 15.8, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties to this Agreement and
their respective successors and permitted assigns.
Section 15.9. SEVERABILITY. If any provision of this Agreement, or any portion
of any provision hereof, shall be deemed invalid or unenforceable pursuant to a
final determination of any court of competent jurisdiction or as a result of
future legislative action, such determination or action shall be construed so as
not to affect the validity or enforceability hereof and shall not affect the
validity or effect of any other portion hereof.
Section 15.10. AMENDMENT. This Agreement may be amended only by a written
instrument duly signed by each of the parties hereto.
Section 15.11. WAIVER. Any of the terms, covenants, representations,
warranties or conditions of this Agreement may be waived only by a written
instrument signed by the party to this Agreement waiving compliance. No waiver
by any party to this Agreement of any condition or breach of any term, covenant,
representation or warranty contained in this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be construed as a further or
continuing waiver of any such condition or breach or a waiver of any other
condition or of the breach of any other term, covenant, representation or
warranty set forth in this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
LICENSOR:
NEON SYSTEMS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LICENSEE:
-----------------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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EXHIBIT A
LIST OF PRODUCTS
AFFINITIES SERVER for CICSplex
DB24x7
DYMANIC INDEX UTILITY
ENTERPRISE DIRECT
PARTITION DATABASE FACILITY FOR IMS/ESA
SHADOW DIRECT
SHADOW WEB SERVER
SPEED LOAD
SPEED UNLOAD
-00-
XXXXXXX X
XXX XXXXXXXXX
Xxx Xxxxxxxxx included is _____________________.
-26-
EXHIBIT C
SOFTWARE LICENSE AGREEMENT
Software License Agreement Number: XXXX
This Agreement is made as of the XXst day of XXXX, 0000 between:
NEON Systems, Inc. (A Delaware Corporation)
00000 Xxxxxxxxx Xxxxxxx Xxxxx 000
Xxxxx Xxxx, Xxxxx 00000 (Hereinafter "NEON")
and
Customer's Corporation
Street Address
City, State Zip Code (Hereinafter "Licensee")
1. DESCRIPTION
This Software License Agreement (the "Agreement") establishes the
terms and conditions which the parties have agreed for the licensing of NEON's
software products, maintenance, and accompanying documentation ("Product(s)").
This Agreement is entered into for the purpose of establishing the General Terms
and Conditions under which Licensee shall hereafter license Products from NEON.
Whenever Licensee licenses Product(s) from NEON, NEON and Licensee shall
execute one or more ordering documents ("Product Schedule"), which shall be
attached hereto and incorporated herein by reference. In any such case, the
Agreement between NEON and Licensee for the licensing of such Products shall
consist of the applicable Product Schedule, as it pertains to the specific
Products, and this Agreement. No Product shall be furnished to Licensee by
virtue of this Agreement alone, but shall require the issuance of a Product
Schedule. Multiple Products may be licensed to Licensee under the same Product
Schedule. In every case, a license number shall be designated therein for each
Product Licensed under the Product Schedule, and such License number shall be
deemed to identify a separate and individual License for each such Product as
if a separate instrument had been executed for each Product. Further, any
reference in this Agreement to a License shall be deemed to refer solely to the
License for an individual Product, even if such Product(s) is Licensed to
Licensee through the use of a Product Schedule containing multiple Licenses.
2. GRANT
NEON grants to Licensee a non-exclusive, nontransferable license ("License(s)")
to use each Product described in the Product Schedule on the CPU designated in
the Product Schedule, which CPU must be owned or leased by Licensee ("CPU") and
installed in the United States or Canada. Licensee agrees that the Product
described in the Product Schedule is licensed for the exclusive use of Licensee
and is not transferable.
3. TERMS
The terms of this Agreement shall commence on the date it becomes effective
("Effective Date") as indicated above and shall continue in effect until
terminated as set forth in this Agreement. The Product Schedule shall become
effective on the date the Product is first placed in production by Licensee or
on a date mutually agreeable to NEON and Licensee.
4. TERMINATION
Licensee may terminate this Agreement upon thirty (30) days written notice to
NEON. NEON may immediately terminate the License(s) without further obligation
or liability if Licensee:
(a) fails to pay an amount due hereunder and continues to be delinquent for a
period of thirty (30) days after the last day on which payment is due or;
(b) a petition alleging insolvency is filed by or against Licensee or a
receiver is appointed for any part of Licensee's business, or its assets
are assigned for the benefit of creditors; or
1
EXHIBIT C
Page 1 of 5
(c) if Licensee commits any other material breach of this Agreement and fails
to remedy such material breach within thirty (30) days after written notice
by NEON of such breach; or
(d) if Licensee violates Article 13 herein.
The termination of this Agreement shall not effect; (i) the obligation of either
party pursuant to any License which has not been terminated, and which shall
remain in effect; (ii) the survival of the representations, warranties, and
covenants contained herein. Upon the termination of any License, Licensee shall
return to NEON the Product and all related documentation and copies thereof.
Licensee shall promptly certify in writing to NEON that all copies of the
Product have been removed from each CPU upon which the Product was installed,
and that any copies not returned have been destroyed.
Termination of this Agreement, any License granted hereunder, or the Maintenance
Option shall not release either party from the obligation of Article 13 herein.
5. CHANGE IN CPU
Licensee understands that each Product shall be limited to usage only with the
CPU specified in the applicable Product Schedule. However, the Product may be
transferred temporarily to another computer for backup purposes when the
specified CPU is rendered inoperable due to malfunction, initiation of a
disaster recovery program or for routine maintenance. A successor CPU of the
same CPU level as that specified on the Product Schedule may be substituted at
no additional cost, provided NEON is notified as to the model and serial number
of the successor CPU and use of the predecessor CPU is discontinued.
By written notice to NEON, Licensee may designate, as the CPU, another computer
owned or leased by Licensee and located within the same country as the original
CPU. If the new CPU is of a higher Level than the previously designated CPU,
both parties agree to execute a new Product Schedule(s) reflecting the changes
and Licensee agrees to pay an upgrade fee based on NEON's then current price
list and upgrade policy and, at the next maintenance anniversary date, to pay
the maintenance charge based upon the new CPU Level. If the new CPU is of a
lower Level, both parties agree to execute a new Product Schedule(s) with
maintenance charges at the lower Level effective on the next maintenance
anniversary date.
6. LICENSE FEE
The License Fee payable by Licensee for a License shall be the License Fee in
effect for the designated License Code contained on the applicable Product
Schedule. All License Fees are payable in United States Dollars. Payments for
all Licenses shall be due upon receipt of invoice.
7. TAXES
There shall be added to the License Fee for each License the amount of any
applicable taxes, however designated or levied, based upon such License Fee or
upon the License, including Federal, State, and Local excise sales, use or
personal property taxes or taxes designated or levied by any foreign government
(but excluding any taxes based on NEON's gross, net income or gross receipts).
All such taxes shall be the sole responsibility of Licensee. Licensee shall
indicate on each Product Schedule its location for sales/use tax purposes and
whether or not it is exempt from sales/use taxes.
8. LICENSE TYPE
Licensee's License to use the Product shall be designated on the Product
Schedule as a Perpetual License (P). Upon payment of the one-time fee specified
in the Product Schedule, Licensee shall have a Perpetual right to use the
Product on the CPU. The Perpetual License will be invoiced upon acceptance by
NEON.
9. WARRANTY
NEON warrants for each Product licensed to Licensee that it has the right to so
License such Product. NEON also warrants that the media on which the Product is
furnished will be, under normal use, free from defects in materials and
workmanship. NEON warrants from the Effective Date, for a period of twelve (12)
months, that, when any Product remains unmodified by Licensee and is used in the
Standard
2
EXHIBIT C
Operating Environment contained in the applicable user manual or equivalent
documentation ('Documentation"), in accordance with the instructions contained
in the Documentation, the Product shall perform the functions described in the
Documentation.
Page 2 of 5
To the extent that any add-on components are separately licensed from NEON for
use in connection with the Product(s), or any Product, this warranty does not
extend to such add-on components.
Changes in the Operating Systems and future improvements of the Product(s) (see
MAINTENANCE AND FUTURE IMPROVEMENTS) may result in changes in said Standard
Operating Environment. If a Product(s) does not function as described in the
Documentation, Licensee has as its sole and exclusive remedy the right to
require NEON, at NEON's expense, to provide programming services at NEON's
corporate offices to bring the Product(s) into conformance with the
specifications in the Documentation. In the event a Product deficiency with the
scope of the specifications in the Documentation is found by NEON to be not
correctable, then Licensee shall have the option to terminate the applicable
License with a refund equal to the amount paid by Licensee to NEON for use of
the Product, less an amount equal to the License Fee divided by twelve (12)
months multiplied by the number of months during which the Product has been used
in production by Licensee.
NEON does not warrant that the operation of the Product will be uninterrupable
or error free, or that all software defects can be corrected.
If Licensee under a Perpetual License changes Levels within the same family line
of products (where applicable) there shall be no new warranty period.
This warranty shall not apply if: (a) the Product is not used in accordance
with NEON's instructions; (b) a Product defect has been caused by any of
Licensee's malfunctioning equipment; (c.) any other cause within the control of
Licensee causes the Product to malfunction; or (d) Licensee has made
modifications to the Product not expressly authorized in writing by NEON.
No employee, agent, or representative of NEON has authority to bind NEON to any
oral representations, or warranties concerning the Product. Any written
representation or warranty not expressly contained in this Agreement shall not
be enforceable.
This warranty is in lieu of all other warranties. There are no other express or
implied warranties, including those of merchantability or fitness for a
particular purpose, regarding this Agreement or any Product(s) licensed
hereunder.
10. INDEMNIFICATION FOR INFRINGEMENT
NEON maintains that, to the best of its knowledge, the Product will not infringe
upon or violate any U.S. patent, copyright, trademark, trade secret, or other
right of any third party. NEON agrees to defend, at its own expense any claim
against Licensee asserting a patent, copyright, trademark, trade secret, or
violation which concerns any Product used within the scope of the License
hereunder. NEON shall indemnify Licensee against any loss, expense, liability
or damages awarded against Licensee as a result of such infringement actions.
However, Licensee must promptly notify NEON in writing after Licensee first
receives notice of any such claim, action, or allegation of infringement, and,
NEON shall have sole control of the defense of any action and all negotiations
for its settlement or compromise, with the reasonable assistance of Licensee.
NEON shall not be liable for any costs or expenditure incurred by Licensee
without NEON's prior written consent.
If an injunction or order is obtained against Licensee's use of any Product by
reason of the allegations of infringement, or, if in NEON's opinion, the Product
is likely to become the subject of a claim of infringement, NEON shall, at its
expense, and in the following order of precedence, first:
(a). Procure for Licensee the right to continue using the Product; or
3
EXHIBIT C
(b). Modify or replace the Product with a compatible, functionally equivalent,
non-infringing Product; or
(c). If neither (a) nor (b) is practical, NEON shall remove the Product from
Licensee's CPU. NEON shall issue to Licensee a credit for the perpetual
License equal to a pro0rata adjustment of the Perpetual License fee of the
Product based on a thirty-six (36) month estimated Product life from the
original Product effective date. Thereafter, termination shall proceed in
accordance with the terms of Article 4.
Page 3 of 5
11. LIMITATIONS OF LIABILITY AND ACTIONS
In no event shall NEON be liable to any party for any damages caused by
Licensee's failure to perform its responsibilities under this Agreement. NEON
shall not be liable to Licensee or any other person, firm or corporation for any
loss or special, indirect, incidental or consequential damages, including
without limitation lost profits, loss of time, money, data or goodwill or any
other claim or demand by or against Licensee which may rise out of the
furnishing, performance, or use of any item or service provided under any
License.
Except as provided in Article 10 herein, in no event shall NEON's liability for
direct damages resulting from the use of a Product exceed the amount paid by
Licensee to license the use of that Product. No action, regardless of form,
may be brought by either party more than one year after the cause of action has
accrued, except that any action by NEON for nonpayment of amounts owed it by
Licensee for a License may be brought within the applicable period permitted by
law, and any action against Licensee for violation of the provisions under
CONFIDENTIALITY AND LIMITATIONS ON USE may be brought within one year of the
date when NEON has actual knowledge thereof.
12. PROGRAM PRODUCT MATERIALS
NEON shall produce one (1) copy of each Product licensed to Licensee in
machine-readable form and shall transfer such copy to Licensee, along with a
copy of NEON's current Documentation. If any copy of any Product is damaged or
destroyed, NEON shall replace it for Licensee without any additional charge.
Such materials shall be subject to the limitations on the use thereof contained
in CONFIDENTIALITY AND LIMITATIONS ON USE.
Licensee understands and agrees that some Products can be readily modified by
Licensee but that any such modifications not expressly authorized in writing by
NEON shall operate to void the performance warranties contained in WARRANTY and
may render the Product inoperable and subsequent maintenance and improvements
unusable. Any such modification is done at Licensee's sole risk and expense.
13. CONFIDENTIALITY AND LIMITATIONS ON USE
Licensee agrees to receive and hold in confidence and not disclose in any manner
to third parties any Product or any other materials delivered to it or
information disclosed to it by NEON under any License. Licensee shall use any
Product and any such materials and information and all information, courseware,
reference materials and other products, if any, resulting from the user thereof
or created therefrom ("Other Products") only internally within its own company
in the pursuit of its own internal business interests. Licensee shall not sell,
lease, license or to otherwise transfer with or without consideration, any such
Product or such materials or information or such other Products to any third
party or permit any third party to reproduce or copy or otherwise use or see any
such product or such materials or information or such other products in any
form, and shall use its best efforts to ensure that no improper or unauthorized
use of any such other Product is made.
Licensee will not modify, create derivative works, translate, reverse engineer
or decompile the Product, in whole or in part, nor create or attempt to create,
by reverse engineering or disassembling of the design, algorithms or other
proprietary trade secrets or otherwise, the source code version of the Product.
14. MAINTENANCE, SUPPORT, AND IMPROVEMENTS
Licensee may elect to enroll in the Maintenance, Support, and Future
Improvements Option (the "Maintenance Option"). The Maintenance Option will
provide for:
(a). Corrections to Product code in order to rectify any malfunctions to Product
in order to bring such Product into substantial conformity with the
operating specifications for the most current version of
4
EXHIBIT C
the Product, unless Licensee's unauthorized modifications prohibits or
materially hampers such corrections or causes the malfunction;
(b). Telephone support to Licensee in order to assist Licensee with locating,
and on its own, correcting problems with the Product or answer questions;
(c). Update Products, at NEON's sole discretion and so long as it is technically
feasible, as required to operate under new releases of the operating system
and other system software with which the Product is designed to operate;
Page 4 of 5
(d). Extensions, enhancements, and other changes that NEON, at its sole
discretion, makes or adds to the Product and which NEON furnishes, without
charge, to all other customers of the Product; and
(e). Replacement of the Product at no charge in the event the media becomes
destroyed or damaged so that the Product becomes unusable.
For a Perpetual License installment, maintenance, support and future
improvements to the Product (excluding add-on components) are included in the
License Fee and there is no charge for twelve (12) months following the
Effective Date of the License("Maintenance Effective Date"). Maintenance for
add-on components will be charged at the next annual maintenance anniversary
date and will be based on the then current license fee of the licensed add-on
component. Thereafter, for a Perpetual License, Licensee will be deemed to
have elected the Maintenance Option for each annual Maintenance Period unless
Licensee terminates the Maintenance Option at the end of an annual Maintenance
Period by written notice from Licensee to NEON at least thirty (30) days prior
to expiration of such annual Maintenance Period. NEON shall xxxx Licensee the
then current charge for the next year of the Maintenance Option. Licensee must
pay the invoice, which shall be due thirty (30) days from date of invoice to
remain enrolled in the Maintenance Option. NEON reserves the right to change
its charge for the Maintenance Option at any time upon thirty (30) days written
notice to Licensee, provided, that the charge does not exceed the amount
regularly charged by NEON to other licensed users of the Product. Any such
changes shall not take effect until the completion of the current Maintenance
Period.
The annual Maintenance Option fee for each License shall be set forth in the
applicable Product Schedule as a percentage amount of the standard License Fee
for a Perpetual License in effect at the beginning of each maintenance year for
use of that Product on the same Level of CPU. If Licensee's Maintenance Option
for a Product is terminated or lapses at anytime, Licensee may reinstate the
Maintenance Option for such Product by paying a reinstatement fee calculated as
follows: The then current License Fee is multiplied by the then current
maintenance percentage and divided by six (6), then multiplied by the number of
months during
which Licensee was not enrolled in the Maintenance Option. Additionally,
Licensee must pay the annual charge for the Maintenance Option for the next year
in advance.
16. NON-DISCLOSURE OF TERMS
Licensee shall not divulge the terms of this Agreement to any third party or
publicly announce the existence of this Agreement or release any publicity
thereto.
17. ENTIRE AGREEMENT
The entire agreement between the parties with respect to the licensing of a
Product is contained in this Agreement and the applicable Product Schedule, and
there are no understandings, agreements, or representations not specified
therein with respect to a License or the Products and/or services purchased
thereunder. Modifications or amendments to this Agreement or a Product Schedule
may be made only in writing signed by both parties. This Agreement and all
Product Schedules hereunder shall be governed by and interpreted under the laws
of the State of Texas. This Agreement and each License may not be transferred or
assigned by either party without the prior written consent of NEON.
NEON SYSTEMS, INC. LICENSEE
5
EXHIBIT C
By: By:
-------------------------------- -----------------------------------
Name: Xxx Xxxx Name:
Title: Vice President Title:
Date: Date:
------------------------------ ---------------------------------
Page 5 of 5
6
EXHIBIT D
TRIAL AGREEMENT
This TRIAL LICENSE AGREEMENT, ("TRIAL AGREEMENT"), by and between NEON Systems,
Inc., ("NEON") and ,
------------------------------------------------------
("CUSTOMER"), establishes a license for CUSTOMER to evaluate NEON's product,
("PRODUCT"). NEON hereby grants to CUSTOMER a
--------------------------------
nonexclusive, nontransferable, royalty-free license to use the PRODUCT for a
day period commencing on and ending on ("TRIAL
----- ------------- -------------
PERIOD"), on the designated CPU as described below:
CPU MODEL NUMBER: LOCATION:
---------------------- ----------------------
CPU SERIAL NUMBER:
---------------------- ----------------------
WARRANTIES AND LIMITS ON LIABILITY
The PRODUCT and related user documentation ("DOCUMENTATION") are provided to
CUSTOMER on a strictly as is basis, and NEON make no warranties, expressed or
implied, including but not limited to any warranty of merchantability of fitness
for a particular purpose, relating to the PRODUCT and/or DOCUMENTATION during
the TRIAL PERIOD. Further, NEON shall have absolutely no liability for and
damages resulting from CUSTOMER's use of the PRODUCT and/or DOCUMENTATION under
this TRIAL AGREEMENT.
TERMINATION
Unless NEON and CUSTOMER enter into a mutually acceptable PERPETUAL LICENSE
AGREEMENT governing the rights and obligation of the parties with respect to the
PRODUCT, the license granted hereunder shall terminate automatically at the end
of the TRIAL PERIOD, and upon such termination, CUSTOMER shall return all copies
of the PRODUCT and DOCUMENTATION to NEON.
CONFIDENTIALITY AND LIMITATION ON USE
CUSTOMER agrees to receive and hold in confidence and not disclose in any manner
to any person, firm or entity, except for employees of CUSTOMER with a need to
know the PRODUCT, DOCUMENTATION or any other materials delivered to it or
information disclosed to it hereunder. CUSTOMER will not modify, create
derivative works, translate, reverse engineer or decompile the Software, in
whole or in part, nor create or attempt to create, by reverse engineering or
disassembling of the design, algorithms or other proprietary trade secrets or
otherwise, the source code version of the Software. CUSTOMER shall use the
PRODUCT, DOCUMENTATION, and any such materials and information delivered or
disclosed to it hereunder only internally within its own company for evaluation
purposes. CUSTOMER's obligation of confidentiality hereunder shall survive the
expiration of the TRIAL PERIOD or the termination of the time during which
PRODUCT, DOCUMENTATION, and other products are in the CUSTOMER's possession.
NEON SYSTEMS, INC.
By By
--------------------------------- --------------------------------
Name Xxx Xxxx Name
--------------------------------
Title Vice President of Sales and Marketing Title
--------------------------------
Date Date
---------------------------------- --------------------------------
NEON Systems, Inc. - triagmt/2/97
