Exhibit 10.20
DOCENT, INCORPOPATED
LICENSE AGREEMENT FOR
COMMERCIAL USE OF DOCENT SOFTWARE
This License Agreement for Commercial use of Docent Software ("Agreement") is
made and entered into effective as of the 30th day of December, 1998 ("Effective
Date"), by and between Docent, Incorporated, a Delaware corporation having a
place of business at 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000-0000 ("DI")
and VERITAS Software, Inc., a Delaware corporation having a place of business at
0000 Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000 ("Veritas").
RECITALS
Whereas:
A. DI has created and manufactured the Docent 2.0 Authoring Client (which
includes Docent Outliner and Docent Publisher), the Docent 2.0 Deployment Module
(which includes Docent Server and Docent Reporter) and the Docent 2.0
Registration Module (collectively, the "Software") and the associated end user
documentation for such programs (the "Documentation");
B. Veritas desires to license the Software or the components thereof to
provide fee-per-course-per-student courses to Veritas customers through the
Veritas Customer Education and Training organization (the "Commercial
Purposes"); and
C. DI desires to license to Veritas the Software or the components thereof
according to the terms and conditions set forth herein.
Now, Therefore, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereby agree as follows:
TERMS AND CONDITIONS OF USE
1. License.
(a) Authoring Client License. Subject to the restrictions herein, DI
grants to Veritas a ##### license to use the Docent 2.0 Authoring Client
programs and all updates received from DI (the "Client Software") to create
content and to publish such content for the Commercial Purposes. This license
includes the right to: (i) ##### (ii) make one copy of such Client Software for
archival or backup purposes.
(b) Deployment Module License. Subject to the restrictions herein, DI
hereby grants to Veritas a #####license to use the Docent 2.0 Deployment Module
programs and all updates received from DI (the "Server Software") in order to
make
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
course content created using the Client Software available for the Commercial
Purposes. This license includes the right to make one copy of the Server
Software for archival or backup purposes. Veritas will not be able to use the
Docent Server program until Veritas has received a registration number from DI.
(c) Registration Module License. Subject to the restrictions herein, DI
hereby grants to Veritas a ##### license to use the Docent 2.0 Registration
Module programs and all updates received from DI (the "Registration Software")
in order to make course content created using the Client Software available for
the Commercial Purposes. This license includes the right to make one copy of the
Registration Software for archival or backup purposes.
(d) Acceptance. Veritas acknowledges and agrees that such Software will
be deemed accepted at such time as Veritas orders a license for such program
pursuant to Section 1(a), 1(b) or 1(c) above.
1. License Restrictions. Veritas agrees not to do any of the following: (a)
copy the Software, except as specifically described in this Agreement; (b)
translate the Software; (c) merge the Software with another program or modify
the Software, except as may be specifically described in the Documentation; (d)
reverse-engineer, disassemble, decompile, or make any attempt to discover the
source code of the Software except as otherwise specifically permitted under
applicable law; (e) sublicense, rent, or lease any portion of the Software; or
(f) use the Software for any purposes other than those set forth in Section 1
above.
2. Reserved Rights. DI reserves the right to include, without further notice,
means within the Software to limit Veritas's use of the Software to the
Software's designated uses. In addition, DI reserves the right to audit
Veritas's deployment and use of the Software for compliance with the terms of
this license at any time during Veritas's normal business hours upon reasonable
notice.
3. Commercial License Fees. Veritas will pay license fees to DI as shown in
Appendix A ("Commercial License Fees"). Such payment shall be due thirty (30)
days after Veritas receives an invoice from DI for ##### fees and thirty (30)
days after the end of each calendar quarter for ##### fees. The Commercial
License Fees exclude all applicable sales, use and other taxes and all
applicable export or import fees, customs duties, and similar charges ("Taxes"),
and Veritas will be responsible for payment of all such Taxes. Veritas will
make all payments of the Commercial License Fees to DI free and clear of, and
without reduction for, any withholding taxes; any such taxes will be Veritas's
sole responsibility. If DI offers a platform transfer option for the licensed
Software and Veritas chooses to transfer to such platform, ##### shall be due
for a previously purchased license provided that Veritas ceases all use of the
Software on the predecessor platform.
4. Ownership. DI retains all right, title and interest in the Software, which
is protected by United States and international copyright laws and international
treaty provisions. DI reserves all rights not expressly granted to Veritas in
this Agreement, and the license granted to Veritas
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
2
herein shall in no event be construed as conferring a license to, or rights in,
any DI trademark or patent.
5. Support. Software support is sold separately as "Annual Maintenance" or as
otherwise specified in Appendix A.
6. Term and Termination.
(a) Term. The term of each license granted pursuant to Section 1(a), 1(b)
or 1(c) shall commence upon Veritas's receipt of the Client, Server and/or
Registration Software from DI and shall continue unless terminated as set forth
in Section 7(b).
(b) Termination. Veritas may terminate this Agreement at any time, with
or without cause, upon written notice to DI. DI may terminate this Agreement,
and the licenses granted hereunder, effective immediately upon written notice to
Veritas, if Veritas breaches any provision of this license and does not cure
such breach within fifteen (15) days after receiving written notice thereof from
DI.
(c) Effect of Termination. Upon termination of this Agreement for any
reason, any amounts owed to DI under this Agreement before such termination will
be immediately due and payable and all licenses granted hereunder will
immediately cease, and Veritas must promptly discontinue all use of the
Software, destroy all copies of the Software in its possession, and certify in
writing to DI that it has complied with the foregoing.
7. Limited Warranty. DI represents and warrants to Veritas that for a period
of ninety (90) days from Veritas's first purchase of a license to each Software
program pursuant to Section 1(a), 1(b) or 1(c) above (the "Warranty Period"),
the Software will perform substantially in accordance with its associated
Documentation. Any written or oral information or advice given by DI dealers,
distributors, agents, or employees will in no way increase the scope of this
warranty, and the warranty is void if failure of the Software is due to
modification, abuse, misapplication or accident. If Veritas reports a material
reproducible failure of the Software to conform to the Documentation during the
Warranty Period, Veritas's sole and exclusive remedy shall be the reasonable
efforts of DI to make the Software conform to the documentation. If DI is
unable to make the Software conform to the above warranty, DI will refund the
##### which Veritas paid for the non-conforming Software upon Veritas's
certification that it has destroyed all copies, and ceased all use, of the non-
conforming Software. Any replacement Software will be warranted for the
remainder of the original 90-day warranty period or for 30 days from the date
Veritas received the replacement, whichever is longer.
8. Disclaimer of Warranty. DI DISCLAIMS, ON BEHALF OF ITSELF AND ITS
SUPPLIERS, ALL EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS RELATED TO ANY
EVALUATION LICENSE AND, EXCEPT AS SET FORTH IN SECTION 8, DI DISCLAIMS, ON
BEHALF OF ITSELF AND ITS SUPPLIERS, ALL OTHER WARRANTIES AND CONDITIONS, EITHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES
OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR
NONINFRINGEMENT. DI DOES
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
3
NOT WARRANT THAT THE SOFTWARE WILL MEET VERITAS'S NEEDS OR THAT IT WILL OPERATE
IN COMBINATION WITH SOFTWARE OWNED BY VERITAS (OTHER THAN THE PLATFORM/DATABASE
SPECIFIED IN THE DOCUMENTATION).
9. Limited Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF
INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO
USE THE SOFTWARE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. EITHER PARTY'S AGGREGATE CUMULATIVE LIABILITY, WHETHER IN
CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL OF
THE ##### FEES PAID TO ##### HEREUNDER, PROVIDED THAT THIS LIMITATION DOES NOT
APPLY TO ANY ##### FEES PAYABLE BY ##### UNDER THIS AGREEMENT.
10. Export. Veritas may not download or otherwise export or re-export the
Software except in full compliance with all applicable laws and regulations.
11. U.S. Government End Users. The Software is a "commercial item," as that
term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial
computer software" and "commercial computer software documentation," as such
terms are used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the U.S.
Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and
48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End
Users acquire the Software with only those rights set forth herein.
12. Benchmark Tests. Veritas will not publish any performance or benchmark
data related to the Software without DI's prior written consent.
13. Notices. All notices permitted or required under this Agreement shall be
in writing and shall be by personal delivery, telegram, telex, telecopier,
facsimile transmission, or by certified or registered mail, return receipt
requested, and shall be deemed given upon personal delivery, five (5) days after
deposit in the mail, or upon acknowledgement of receipt of electronic
transmission. Notices to DI shall be sent to the address set forth at the end
of this Agreement or such other address as DI may specify in writing. Notices
to Veritas shall be sent to the last address of Veritas in DI's possession, or
such other address as Veritas may specify in writing.
14. General. Nothing herein shall be construed as creating any agency,
partnership, or other form of joint enterprise between the parties. This
Agreement is governed and interpreted in accordance with the laws of the State
of California, excluding its conflict of law rules. The United Nations
Convention on Contracts for the International Sale of Goods is expressly
disclaimed. If any provision of this Agreement shall be deemed invalid by a
court of competent jurisdiction, then such provision shall be deemed modified to
the minimum extent necessary to make it enforceable, and the validity of the
remaining provisions of this Agreement shall not be affected. This Agreement is
the entire and exclusive agreement between DI and Veritas with respect to the
Software and supersedes all prior agreements (whether written or oral) and other
communications
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
4
between DI and Veritas with respect to the Software. This Agreement shall not
be modified except by a subsequently dated written amendment signed on behalf of
Veritas and DI by their duly authorized representatives, and any purchase order
or other document purporting to supplement the provisions of this Agreement
shall be void.
In Witness Whereof, the undersigned have caused this Agreement to be executed by
their respective authorized representatives.
Docent, Incorporated: Veritas Software, Inc.:
/s/ Xxxxx X. X'Xxxxxx /s/ #####
------------------------------ ---------------------------------
Authorized Signature Authorized Signature
Xxxxx X. X'Xxxxxx #####
------------------------------ ---------------------------------
Printed Name Printed Name
Vice President & CFO #####
------------------------------ ---------------------------------
Title Title
Dec. 30, 1998 Dec. 30, 1998
------------------------------ ---------------------------------
Date Date
##### CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION
5
Appendix A
Commercial License Fees
License Fee for Docent 2.0 Authoring
Client, Docent 2.0 Deployment Module and
Docent 2.0 Registration Module: $#####
Annual Maintenance Fee for Docent 2.0
Authoring Client and Docent 2.0
Deploying Module: $#####
Annual Maintenance Fee for Docent 2.0 Modifications to or support of the Docent
Registration Module: 2.0 Registration Module will be provided by
Docent at #####
Per-course-per-user Royalty: #####
A-1