1
EXHIBIT 10.5
[ENTRUST TECHNOLOGIES LOGO]
ENTERPRISE AND CA SERVICES AGREEMENT
This Enterprise and CA Services Agreement ("Agreement") is made between:
Entrust Technologies Inc. ZixIt Corporation
0000 Xxxxxxx Xxxx Xxxx., Xxxxx 000 2711 X. Xxxxxxx Ave., Suite 2850 LB 00
Xxxxx, Xxxxx, X.X.X. 00000 Xxxxxx, Xxxxx, X.X.X. 00000-0000
("Entrust") ("Customer")
This Agreement shall be effective November 6, 2000 ("Effective Date"). Entrust
and Customer agree that the following terms and conditions will apply to the
licenses and services provided under this Agreement and Schedules attached
hereto.
1. DEFINITIONS
(a) "AFFILIATE" of a party means any corporation or other entity that a
party directly or indirectly controls. In this context, a party
"controls" a corporation or other entity if it owns fifty percent (50%)
or more of the voting rights for the board of directors or other
mechanism of control for the corporation or other entity.
(b) "APPLICATION" means a single software product from a single vendor
(either an Entrust product or a third party product) used by an
individual or device which performs a single function such as word
processing or electronic mail. For greater certainty, a utility or
multi-function program shall be considered to consist of multiple
Applications.
(c) "CA SERVICES" means those services described in Schedule C, (Section 2)
which Customer may provide to CA Services Subscribers and CA Services
Subscriber Users.
(d) "CA SERVICES AGREEMENT" means a written agreement between Customer and
a CA Services Subscriber to provide CA Services.
(e) "CA SERVICES SOFTWARE" means the software listed in Schedule C,
(Section 3).
(f) "CA SERVICES SUBSCRIBER" means an entity meeting the requirements of
Schedule C, (Section 1) which entity must have entered into a CA
Services Agreement with Customer. Such entity shall be a CA Service
Subscriber only for so long as such entity continues to contract for
and receive CA Services.
(g) "CA SERVICES SUBSCRIBER USER" in respect of a CA Service Subscriber (i)
that is not a government or government entity, means a customer,
supplier, or other such entity communicating with the CA Services
Subscriber in regard to the business of the CA Services Subscriber,
(ii) that is a government or government entity, means any employees
within the government or government entity, unless Entrust agrees
otherwise in writing.
(h) "CERTIFICATE LICENSE" means a right to use a digital certificate issued
by the Entrust/Authority software (or any connector add-on to the
Entrust/Authority software). The maximum number of digital certificates
issued by the Entrust/Authority software for each type of digital
certificate is set by a Licensing String.
(i) "CERTIFICATION AUTHORITY" means an entity or organization that (i)
creates and signs digital certificates that contain among other things
a subject's public key and other information that is intended to
identify the subject, (ii) makes digital certificates available to
facilitate verification of and communication with subjects named in
such digital certificate, and (iii) creates and digitally signs
certificate revocation lists and/or other forms of revocation
information about digital certificates that have been revoked and which
should no longer be used or relied upon.
(j) "CLIENT ACCESS LICENSE (CAL)" means a user contained in a Single Data
Set who is authorized to sign on and utilize the getAccess software.
(k) "CLIENT SOFTWARE" means the Software listed under the heading "Client
Software" in Schedule A for which the Enterprise has acquired the right
to use under this Agreement in machine-readable object code form only
and associated documentation.
(l) "CONFIDENTIAL INFORMATION" means any business, marketing, technical,
scientific or other information disclosed by either party (including
its Affiliates) which, at the time of disclosure is designated as
confidential (or like designation), is disclosed in
U.S. CASP 5.4 1
October 24, 2000
2
circumstances of confidence, or would be understood by the parties (or
its Affiliates), exercising reasonable business judgment, to be
confidential.
(m) "ENTERPRISE" means, collectively, the Customer and Affiliates of
Customer.
(n) "ENTRUST ENGINE" means a set of files included in an Entrust/Toolkit,
which must be resident on the desktop or server to allow an
Entrust-Ready Application to work. The set of files contains one or
more functions that are compiled, linked and stored separately from the
processes that use them. These files do not need to be compiled with
the main application program. The operating system maps the engines, in
the form of DLLs on the Windows platform or shared libraries on the
unix platform, into the memory/address space of the calling application
when the application is starting or while it is running.
(O) "ENTRUST-READY APPLICATION" means any computer program created by
Customer using an Entrust/Toolkit that does not contain any of the
executable object code modules provided with an Entrust/Toolkit that
implement an Entrust API or any of the Entrust functions including, but
not limited to, encryption, digital signature, and any key management
function, and revisions and updates thereto.
(p) "INFRASTRUCTURE SOFTWARE" means the Software listed under the heading
"Infrastructure Software" in Schedule A for which the Enterprise has
acquired the right to use under this Agreement in machine-readable
object code form only and associated documentation.
(q) "LICENSING STRING" means a series of computer-generated characters
provided to Customer by Entrust for the purpose of setting the number
of Certificate Licenses or User Identities for an item of
Infrastructure Software.
(r) "SERVICES" means consulting, installation and training services
provided by Entrust under the terms of this Agreement.
(s) "SINGLE DATA SET" means a unique collection of user names in a
repository (eg. a database) which is supported by the getAccess
software. Replication of the identical collection of user names in a
separate repository for development, testing, back up and load
balancing purposes shall be considered the same Single Data Set. In
addition, the occurrence of the same users or a subset of such users in
a separate directory (e.g., LDAP Directory) used in combination with
the repository is considered the same Single Data Set.
(t) "SOFTWARE" means the Entrust computer software programs listed in
Schedules A and C for which the Enterprise has acquired the right to
use under this Agreement in machine-readable object code form only and
associated documentation. If Enterprise elects to purchase Support, any
Upgrades and Upissues provided to Enterprise pursuant to such Support
shall be deemed to be Software for the purposes of this Agreement.
(u) "SUPPORT" means Software maintenance, Upgrade and Upissue services as
set forth in Schedule B of this Agreement.
(v) "UPGRADE" means a subsequent release of existing Software, other than
those reasonably designated as new products for which Entrust charges
separately, which will generally contain new functionality and
enhancements in addition to bug fixes. Upgrade releases will be
designated by a change in the digit of the release number to the left
of the decimal. e.g. 1.X to 2.Y.
(w) "UPISSUE" means a subsequent release of existing Software which will
generally contain bug-fixes and which will generally not contain major,
new functionality. Upissue releases will be designated by a change in
the digit of the release number to the right of the decimal. e.g. X.1
to X.2.
(x) "USER IDENTITY" means an electronic identity utilized by the
Entrust/Authority software for interaction with Client Software. The
maximum number of electronic identities recognized by the
Entrust/Authority software is set by a Licensing String.
2. ENTERPRISE AND CA SERVICES LICENSES
(a) INFRASTRUCTURE SOFTWARE LICENSES FOR ENTERPRISE USE. Subject to the
terms and conditions of this Agreement, Entrust hereby grants to
Enterprise and Enterprise accepts a non-exclusive, non-transferable,
internal license to use and copy Infrastructure Software to the extent
of the number of copies of Infrastructure Software licensed to
Enterprise and to the extent of the number of User Identities and
Certificate Licenses set by the Licensing String(s) delivered to
Enterprise with or for that copy of Infrastructure Software for
internal communications within the Enterprise and for communications
between Enterprise and third parties concerning Enterprise business
other than CA Services ("Enterprise Use"). If the number of permitted
User Identities or Certificate Licenses for a copy of Infrastructure
Software is not controlled using a Licensing String, Enterprise shall
use such copy of Infrastructure Software to the extent of the number of
User Identities and Certificate Licenses permitted for use with such
copy of Infrastructure Software pursuant to this Agreement. Enterprise
may only use Licensing Strings provided by Entrust and only in
conjunction with the copy of Infrastructure Software for which it was
delivered. Enterprise may not copy or alter a Licensing String.
U.S. CASP 5.4 2
October 24, 2000
3
If Customer licenses the getAccess software, Entrust hereby grants to
Enterprise a non-exclusive, non-transferable, internal license for the
number of Client Access Licenses acquired pursuant to this Agreement
for use in a Single Data Set.
(b) CLIENT SOFTWARE LICENSES AND DISTRIBUTION RIGHT FOR ENTERPRISE USE.
Subject to the terms and conditions of this Agreement, Entrust hereby
grants to the Enterprise and the Enterprise accepts a non-exclusive,
non-transferable license to use and copy the number copies of Client
Software licensed herein solely for Enterprise Use. Enterprise may
distribute Client Software to third parties, provided, however, that:
(i) the Client Software is provided to a third party solely for
Enterprise Use; (ii) Entrust is identified as the source of the Client
Software; and (iii) the Client Software is licensed to third parties
pursuant to the terms and conditions of the shrink wrap license
agreement embedded in or included with the Client Software. Each copy
of Client Software provided to a third party pursuant to this
distribution right shall count as a copy of Client Software granted or
licensed to Enterprise herein. The maximum number of copies of Client
Software for distribution by Enterprise for Enterprise Use is limited
to those copies acquired by Enterprise under this Agreement for such
use.
(c) CERTIFICATE LICENSES, USER IDENTITIES AND DISTRIBUTION RIGHT
FOR ENTERPRISE USE. Subject to the terms and conditions of this
Agreement, Entrust grants to Enterprise a non-exclusive,
non-transferable license to use the number of Certificate Licenses and
User Identities licensed herein to Enterprise for Enterprise Use. A
User Identity or Certificate License may not be assigned to more than
one user, server or network node. Once a User Identity or Certificate
License has been issued it may not be altered or re-deployed. Customer
may license and distribute Certificate Licenses and User Identities to
third parties solely for Enterprise Use. The maximum number of User
Identities and Certificate Licenses for licensing and distribution by
Customer for Enterprise Use is limited to those acquired by Customer
under this Agreement for such use. The User Identities and Certificates
Licenses licensed or distributed to third parties shall not contain any
trademarks, tradenames, logos or any other designations of Entrust. All
User Identities and Certificate Licenses distributed for Enterprise Use
must be issued by Enterprise. Certificate Licenses must be time
limited. A Certificate License which expires may not be renewed,
instead, a new Certificate License must be issued. Each User Identity
or Certificate License used or distributed shall count as one (1) User
Identity or one (1) Certificate License granted or licensed herein.
(d) INFRASTRUCTURE SOFTWARE LICENSES FOR CA SERVICES. Subject to the terms
and conditions of this Agreement, Entrust hereby grants to Customer and
Customer accepts a non-exclusive, non-transferable, internal license to
use and copy the Infrastructure Software to the extent of the number of
copies of Infrastructure Software licensed to Customer and to the
extent of the number of User Identities and Certificate Licenses set by
the Licensing String(s) delivered to Customer with or for that copy of
Infrastructure Software to provide CA Services to CA Services
Subscribers and CA Services Subscriber Users. If the number of
permitted User Identities or Certificate Licenses for a copy of
Infrastructure Software is not controlled using a Licensing String,
Customer shall use such copy of Infrastructure Software to the extent
of the number of User Identities and Certificate Licenses permitted for
use with such copy of Infrastructure Software pursuant to this
Agreement. The maximum number of copies of Infrastructure Software for
use by Customer for the provision of CA Services is limited to those
acquired by Customer pursuant to this Agreement for such use. Customer
shall only use Licensing Strings provided by Entrust and only in
conjunction with the copy of Infrastructure Software for which such
Licensing Strings were delivered. Customer shall not copy or alter a
Licensing String and may not provide the Infrastructure Software to any
CA Services Subscribers or any CA Services Subscriber Users.
(e) RIGHT TO DISTRIBUTE CA SERVICES SOFTWARE FOR CA SERVICES. Subject to
the terms and conditions of this Agreement, Entrust grants to Customer
a non-exclusive, non-transferable license to distribute CA Services
Software to (i) CA Services Subscribers solely for use with the CA
Services provided by Customer to such CA Services Subscribers, (ii) CA
Services Subscriber Users solely for use with the CA Services provided
by Customer to such CA Services Subscriber Users, and (iii) CA Services
Subscribers for re-distribution by such CA Services Subscribers to CA
Services Subscriber Users solely for use with the CA Services provided
by Customer to such CA Services Subscriber Users. Such distribution
rights are granted to Customer and CA Services Subscribers provided
that; (i) Entrust is identified as the source of the CA Services
Software, (ii) the CA Services Software is licensed to CA Services
Subscribers and CA Services Subscriber Users pursuant to the terms and
conditions of the shrink wrap license agreement embedded in or included
with the CA Services Software. Customer shall give notice to CA
Services Subscribers, prior to delivery, that the CA Services Software
is for use only in conjunction with the CA Services. The maximum number
of copies of CA Services Software for distribution by Customer for CA
Services is limited to those acquired by Customer under this Agreement
for such use. In the case of CA Services Software that is subject to a
Restricted Use License (as described in Section 2(j)), Customer shall
give notice of such restriction, prior to delivery, to each (i) CA
U.S. CASP 5.4 3
October 24, 2000
4
Services Subscriber, and (ii) CA Services Subscriber User, of the
applicable restrictions. Each copy of CA Services Software distributed
by Customer to (i) a CA Services Subscriber, or (ii) a CA Services
Subscriber User, shall count as one (1) copy of CA Services Software
licensed hereunder. Each copy of CA Services Software distributed to a
CA Services Subscriber for further re-distribution to a CA Services
Subscriber User shall count as one (1) copy of CA Services Software
licensed hereunder.
(f) RIGHT TO DISTRIBUTE CERTIFICATE LICENSES AND USER IDENTITIES FOR CA
SERVICES. Subject to the terms and conditions of this Agreement,
Entrust grants to Customer a non-exclusive, non-transferable license to
license and distribute Certificate Licenses and User Identities to (i)
CA Services Subscribers, solely for use with the CA Services provided
by Customer to such CA Services Subscribers, (ii) CA Services
Subscriber Users, solely for use with the CA Services provided by
Customer to such CA Services Subscriber Users, and (iii) CA Services
Subscribers for re-distribution by such CA Services Subscribers to CA
Services Subscriber Users solely for use with the CA Services provided
by Customer to such CA Services Subscriber Users. The maximum number of
User Identities and Certificate Licenses for licensing and distribution
by Customer for CA Services is limited to those acquired by Customer
under this Agreement for such use. Each User Identity or Certificate
License distributed by Customer to (i) a CA Services Subscriber, or
(ii) a CA Services Subscriber User, shall count as one (1) User
Identity or one (1) Certificate License issued hereunder. A User
Identity or Certificate License licensed and/or distributed by Customer
for CA Services may not be assigned to more than one (1) user, server,
or network node. If any User Identity or Certificate License used in
the provision of the CA Services is subject to a Restricted Use License
(as described in Section 2(j)), Customer shall provide notice of such
restriction, prior to delivery, to each CA Services Subscriber and/or
CA Services Subscriber User, as the case may be. The User Identities
and Certificates licenses licensed and/or distributed to CA Services
Subscribers and/or CA Services Subscriber Users shall not contain any
trademarks, tradenames, logos, or any other designations of Entrust.
Each User Identity or Certificate License deployed to a CA Services
Subscriber for further redistribution to a CA Services Subscriber User
shall count as one (1) User Identity or one (1) Certificate License
issued hereunder. All User Identities and Certificate Licenses to be
used for the CA Services must be issued by Customer. Customer shall be
entitled to use Certificate Licenses and User Identities as required by
a copy of Infrastructure Software to enable the operation of such copy
of Infrastructure Software within any Certificate Authorities that
Customer is entitled, pursuant to this Agreement, to operate for the
provision of CA Services.
(g) RESTRICTIONS ON PROVISION OF CA SERVICES. In no event shall Customer
provide CA Services in Japan, except Customer may distribute CA
Services Software in Japan to employees of a non-Japanese CA Services
Subscribers whose global corporate headquarters are not located in
Japan.
(h) ENTRUST/TOOLKIT LICENSES. Subject to the terms and conditions of this
Agreement, Entrust hereby grants and Customer accepts a non-exclusive,
non-transferable, internal license to use and make copies of each
Entrust/Toolkit for the purpose of developing Entrust-Ready
Applications that are to be used with the Software. Entrust licenses to
the Customer the non-exclusive right to use and make multiple copies of
any Entrust APIs incorporated into Entrust-Ready Applications by way of
an Entrust/Toolkit. Customer shall not otherwise sell, license,
distribute or in any other manner commercially exploit any part of an
Entrust/Toolkit (including the Entrust Engines). Customer shall not
modify or distribute any part of an Entrust Engine, or any parts
thereof. Any attempt to use information received as a part of an
Entrust/Toolkit for any other purpose including, but not limited to,
creation of an emulator of an item of Software constitutes a material
breach of this Agreement.
(i) OTHER SOFTWARE LICENSES. For all Software for which licensing terms are
not provided elsewhere in this Section 2, subject to the terms and
conditions of this Agreement, Entrust hereby grants to the Enterprise
and the Enterprise accepts a non-exclusive, non-transferable, internal
license (i) to make the number of copies of such Software as licensed
herein, and (ii) to use each copy of such Software as set forth in its
documentation. Entrust/Access software is a third party product and if
Enterprise has acquired a license to such software pursuant to this
Agreement, the terms of such license shall be those terms and
conditions contained in the shrink wrap license accompanying or
embedded in such software.
(j) PROVISIONS COVERING ALL SOFTWARE. Enterprise does not acquire any
rights, express or implied, in the Software, other than those rights
specified in this Agreement. Enterprise may make additional copies of
each item of Software, but only for back-up or archival reasons. Each
permitted copy of all or part of an item of Software must include all
copyright notices, restricted rights legends, proprietary markings and
the like exactly as they appear on the copy delivered by Entrust to
Enterprise. Enterprise may not host, time-share, rent, lease, sell,
license, sublicense, assign, distribute or otherwise transfer an item
of Software, except as provided in this Agreement. The Software and all
modifications, enhancements and derivative works thereof, including all
right, title and interest (and all intellectual proprietary rights
therein) remain the sole and exclusive property of
U.S. CASP 5.4 4
October 24, 2000
5
Entrust and/or its third-party licensors. Any third party software
included with the Software may be used only with the Software unless
otherwise authorized in writing by Entrust. If third party software is
subject to a separate license agreement, then such separate agreement
shall apply to Enterprise's use of the third party software. Enterprise
shall not copy, modify, adapt or merge copies of the Software except as
provided in this Agreement. Enterprise shall not translate, reverse
engineer, de-compile or disassemble the Software except to the extent
that law explicitly prohibits this restriction notwithstanding a
contractual restriction to the contrary. If Enterprise obtains User
Identities under this Agreement that (i) have been bundled together
with Client Software or CA Services Software, or (ii) are authorized
for use with a specific number of Applications (in the case of a single
Application, referred to as a Single Application Bundle (SAB)), such
User Identities shall be restricted for use only with the Client
Software or CA Services Software with which such User Identities were
bundled or with the number of Applications for which such User
Identities were authorized ("RESTRICTED USE LICENSE").
3. SUPPORT AND SERVICES
(a) SUPPORT. Entrust shall provide Support to Customer in accordance with
the terms and conditions set forth in Schedule B. The fees for Support
to be provided by Entrust to Customer are set forth in Schedule A.
Customer shall provide CA Services Subscribers and CA Services
Subscriber Users with support services.
(b) SERVICES. Upon Customer's request, Entrust will provide Services to
Enterprise pursuant to a mutually agreed upon Statement of Work
("SOW").
4. PRICE AND PAYMENT
(a) PRICE. The fees for Software and Support are set forth in Schedule A.
Unless otherwise stated, all fees excludes applicable federal, state,
provincial, use, value-added and local taxes (excluding taxes based
upon Entrust's net income) and the costs relating to the delivery of
the Software. Customer shall pay to Entrust the amount of any such tax
or additional costs.
(b) PAYMENT. Unless otherwise stated in Schedule A, all Software fees are
payable on delivery and all Support fees are payable annually, in
advance. All amounts payable under this Agreement shall be paid by the
Customer to the invoicing Affiliate of Entrust within thirty (30) days
of the date of invoice. Unpaid invoices more than thirty (30) days
overdue may be subject to an interest charge of one percent (1%) per
month or the maximum rate legally permitted, whichever is less.
5. ORDERS AND DELIVERY
(a) SOFTWARE ORDERS. Customer shall be entitled to order Software, User
Identities and Certificate Licenses pursuant to a purchase order
document accepted by Entrust. Such Software, User Identities and
Certificate Licenses shall be deemed delivered pursuant to terms of
this Agreement. A purchase order shall be in writing and identify the
Software being ordered, the quantity of User Identities or Certificate
Licenses required (if applicable) and the shipping and invoicing
locations. Upon receipt of a new Licensing String, the Customer shall
stop using and destroy the previous Licensing String for the Software.
All terms and conditions on a purchase order document shall be of no
contractual effect between the parties.
(b) DELIVERY. Entrust or one of its Affiliates shall deliver Customer's
order, F.O.B. shipping point, to a location specified by the Customer
within thirty (30) days of receipt of such order, subject to the
receipt of all required documentation, including any required export
and import permits. Thereafter, Customer shall be responsible for and
bear all expenses (including taxes) related to making the permitted
number of copies and distributing such copies as permitted in this
Agreement. Customer will be the importer of record for the Software.
6. SOFTWARE WARRANTY
(a) SOFTWARE WARRANTY. Entrust warrants that (i) for a period of ninety
(90) days from the date of delivery, each item of Software will perform
in substantial accordance with the documentation delivered with such
Software, and (ii) at the time of delivery, Entrust shall have used
commercially reasonable efforts to cause the Software to be free of any
known computer virus or harmful, malicious, or hidden program, data, or
other computer instructions whose purpose is to disrupt, damage, or
interfere with the use of computer and telecommunications software or
hardware for their normal purposes.
(b) EXCEPTIONS TO WARRANTY. Notwithstanding the foregoing, Entrust shall
have no obligation to fix errors in the Software caused by accident,
misuse, abuse, improper operation, misapplication, or any other cause
external to the Software, or if such repair service would constitute an
excluded service pursuant to the Support provisions.
(c) REMEDY FOR BREACH OF WARRANTY. Except as specifically stated herein,
Entrust's sole liability and the Enterprise's sole and exclusive remedy
for breach of the provisions of this warranty section shall be, at
Entrust's option, to (i) repair or replace the Software which does not
meet Entrust's warranty and which is returned to Entrust, or (ii) take
return of the Software and refund the price paid for the Software.
U.S. CASP 5.4 5
October 24, 2000
6
7. INTELLECTUAL PROPERTY
(a) INTELLECTUAL PROPERTY INDEMNITY. Entrust shall defend Customer from any
claims by third parties that the Software furnished and used within the
scope of this Agreement infringes upon or misappropriates a Canadian,
United States or European patent, trademark, copyright, trade secret or
other proprietary right (a "Claim"), and will pay any damages,
settlements, costs, and expenses, including without limitation court
costs and reasonable attorney's fees, finally awarded against Customer
by a court or arbitrator in any proceeding related to such Claim,
provided, however, that the Customer (i) gives to Entrust prompt
written notice of each Claim threatened or received by the Customer,
(ii) gives to Entrust the sole right to control and direct the
investigation, defense and settlement of such Claim, and (iii) has not
compromised or settled the Claim.
(b) MITIGATION BY ENTRUST. If (i) Entrust becomes aware of an actual or
potential Claim, or (ii) Customer provides Entrust with notice of an
actual or potential Claim, Entrust may (or in the case of an injunction
against Customer, shall), at Entrust's sole option and expense:
(i) procure for the Customer the right to continue to use the
affected portion of the Software;
(ii) modify or replace the affected portion of the Software with
functionally equivalent or superior software so that
Customer's use is non-infringing; or
(iii) if (i) or (ii) are not commercially reasonable, take return of
the affected portion of the Software and pay to Customer the
cost of the affected portion of the Software depreciated over
a three (3) year period from the date of acquisition on a
straight line basis less any outstanding moneys owed on such
affected portion of the Software.
(c) EXCEPTIONS TO INDEMNITY. Entrust shall have no liability, and shall be
indemnified and held harmless by the Customer against any Claim in
respect of any Software if:
(i) such Software is used by the Enterprise outside the scope or
the license granted in this Agreement or in a manner or for a
purpose other than that for which it was supplied, as
contemplated by Entrust's documentation;
(ii) such Software is modified by the Enterprise without the
written consent of Entrust;
(iii) such Software is used by the Enterprise in combination with
other software not provided by Entrust and the infringement
arises from such combination or the use thereof; or
(iv) the Claim relates to the use of any version of the Software
other than the current, unaltered release, if such Claim would
have been avoided by the use of a current unaltered release of
the Software.
(d) LIMIT TO INDEMNITY. THE PROVISIONS OF THIS ARTICLE 7 STATE THE SOLE AND
EXCLUSIVE LIABILITY OF ENTRUST, AND THE SOLE AND EXCLUSIVE REMEDY OF
ENTERPRISE WITH RESPECT TO ANY CLAIM OF THE NATURE DESCRIBED HEREIN.
ENTRUST'S TOTAL CUMULATIVE LIABILITY TO ENTERPRISE FOR ANY CLAIM OR
INDEMNITY UNDER THIS ARTICLE 7 SHALL NOT EXCEED ONE MILLION
($1,000,000.00) U.S. DOLLARS.
8. LIMITATION OF LIABILITY
(a) NO OTHER WARRANTIES OR REMEDIES. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS AGREEMENT, ENTRUST DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES
AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE
OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR
FITNESS FOR A PARTICULAR PURPOSE.
(b) LIMITATION OF LIABILITY. IN NO EVENT SHALL ENTRUST OR ENTERPRISE
(INCLUDING SUCH PARTY'S AFFILIATES, SUBCONTRACTORS, AGENTS, SUPPLIERS,
DIRECTORS OR EMPLOYEES) BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF
PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER
SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT (INCLUDING
FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF
LIABILITY. EXCEPT ENTRUST'S INDEMNITY OBLIGATIONS IN SECTION 7, IN NO
EVENT SHALL ENTRUST'S TOTAL CUMULATIVE LIABILITY PURSUANT TO THIS
AGREEMENT EXCEED THE LICENSE FEES PAID BY CUSTOMER TO ENTRUST HEREIN.
U.S. CASP 5.4 6
October 24, 2000
7
(c) NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY'S
LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES
ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II)
DAMAGES ARISING FROM A PARTY'S INFRINGEMENT OF THE OTHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS, OR (III) CLAIMS FOR INJURY TO INDIVIDUALS
OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE NEGLIGENCE OF SUCH PARTY
OR ITS EMPLOYEES, SUBCONTRACTORS OR AGENTS.
9. CONFIDENTIALITY
(a) TREATMENT OF CONFIDENTIAL INFORMATION. Enterprise acknowledges that the
Software (and any information incorporated therein or related thereto)
is the Confidential Information of Entrust. Enterprise shall not
disclose the results of any benchmark tests of the Software to any
third party without the prior written approval of Entrust. Each party
(including its Affiliates) shall retain the Confidential Information of
the other party (including its Affiliates) in confidence and shall use
and disclose it solely for the purpose of, and in accordance with, this
Agreement. Each party (including its Affiliates) shall only disclose
Confidential Information of the other party (or any of its Affiliates)
to those of its employees with a need to know such Confidential
Information. Each party (including its Affiliates) shall use the same
degree of care as it uses to protect its own confidential information
of a similar nature, but no less than reasonable care, to prevent the
unauthorized use or disclosure of the other party's (or any of its
Affiliates) Confidential Information.
Neither party (or any of its Affiliates) shall be bound by any
obligations restricting disclosure and use set forth in this Agreement
with respect to Confidential Information of the other party (or any of
its Affiliates), or any part thereof, which:
(i) was known to the receiving party (or any of its Affiliates)
prior to disclosure;
(ii) was lawfully in the public domain prior to its disclosure, or
becomes publicly available other than through a breach of this
Agreement;
(iii) was disclosed to the receiving party (or any of its
Affiliates) by a third party, provided that such third party
is not in breach of any confidentiality obligation in respect
of such information; or
(iv) is independently developed by the receiving party (or any of
its Affiliates).
(b) If the receiving party (or any of its Affiliates) is compelled pursuant
to legal, judicial, or administrative proceedings, or otherwise
required by law, to disclose Confidential Information of the disclosing
party (or any of its Affiliates), the receiving party (or, if
applicable, its Affiliates) shall use reasonable efforts to (i) seek
confidential treatment for such Confidential Information, and (ii)
provide prior notice to the disclosing party (or, if applicable, its
Affiliates) to allow the disclosing party (or, if applicable, its
Affiliates) to seek protective or other court orders.
10. TERM AND TERMINATION
(a) TERM. This Agreement shall commence on the Effective Date and shall
continue in effect unless terminated as set out herein.
(b) TERMINATION BY ENTRUST. Entrust may terminate this Agreement with
notice if the Customer:
(i) assigns or attempts to assign this Agreement or any of the
Customer's rights hereunder to a third party except in
accordance with Section 11(h);
(ii) fails to correct a material breach of its obligations to
Entrust within thirty (30) days after written notification
from Entrust of such material breach;
(iii) files a bankruptcy petition or has such a petition filed
involuntarily against it, becomes insolvent, makes an
assignment for the benefit of creditors, consents to the
appointment of a trustee, or if bankruptcy reorganization or
insolvency proceedings are instituted by or against the
Customer.
(c) TERMINATION BY CUSTOMER. Customer may terminate this Agreement with
notice if Entrust:
(i) assigns or attempts to assign this Agreement or any of
Entrust's obligations hereunder to a third party except in
accordance with Section 11(h);
(ii) fails to correct a material breach of its obligations to
Customer within thirty (30) days after written notification
from the Customer of such material breach; or
(iii) files a bankruptcy petition or has such a petition filed
voluntarily against it, becomes insolvent, makes an assignment
for the benefit of creditors, consents to the appointment of a
trustee, or if bankruptcy, reorganization or insolvency
proceedings are instituted by or against Entrust.
U.S. CASP 5.4 7
October 24, 2000
8
(d) EFFECTS OF TERMINATION. In the event of such termination by Entrust,
the Customer shall destroy or return immediately the Software and all
copies thereof to Entrust. In the event of such termination by
Customer, Customer shall be entitled to use the Software licensed prior
to the date of termination provided that Customer complies with the
terms of this Agreement in respect to the use of such Software.
(e) SURVIVAL. In addition to this Section, Sections 1, 6, 7, 8, 9 and 11
shall survive any termination or expiration of this Agreement. All
payment obligations shall survive any termination or expiration of this
Agreement.
11. GENERAL
(a) AUDIT RIGHTS. The Customer shall keep reasonable records relating to
(i) the number of copies of Software made, used or distributed by
Enterprise; and (ii) the number of User Identities and Certificate
Licenses issued, used or distributed by Enterprise. A chartered or
certified public accountant selected by Entrust may, upon reasonable
notice and during normal business hours, but no more often than once a
year, inspect the records of the Customer.
(b) U.S. GOVERNMENT END-USERS. The Software is a "commercial item" as that
term is defined at 48 C.F.R. 2.101 (JAN 1998), 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.
Government end users acquire the rights set out in this Agreement for
the Software consistent with: (i) for acquisition by or on behalf of
civilian agencies, the terms set forth in 48 C.F.R. 12.212 (SEPT 1995);
or (ii) for acquisition by or on behalf of units of the Department of
Defense, the terms set forth in 48 C.F.R. 227.7202.
(c) EXPORT RESTRICTIONS. The Software and related information is subject to
export and import restrictions. Customer shall comply with any laws
which may impact Customer's right to export, import or use the Software
or related information (including, without limitation, United States
and Canadian export laws). Customer shall not use the Software or
related information for any purposes prohibited by export laws,
including, without limitation, nuclear, chemical or biological weapons
proliferation. Customer shall be responsible for procuring all required
permissions for any subsequent export, import or use of the Software or
related information.
(d) INCLUSION OF AFFILIATES. Each party warrants that it has the authority
to bind its Affiliates to the provisions of this Agreement. Entrust may
use one or more Affiliates to perform its obligations under this
Agreement, provided that such use will not affect Entrust's obligations
hereunder. Customer may extend the rights designated for Affiliates
under this Agreement to its Affiliates, provided that any such
Affiliates agree to comply with the obligations, and otherwise be
subject to the terms and conditions, of this Agreement and that
Customer shall cause each such Affiliate to comply with the terms and
conditions of this Agreement to the full extent as if the Affiliate
were a party hereto, and that any act or omission relating to this
Agreement (including without limitation a breach hereof) by such
Affiliate shall constitute an act or omission of Customer.
(e) NOTICE. Any notice to be given hereunder shall be given in writing by
prepaid receipted mail, facsimile, or overnight courier, and shall be
effective as follows (i) in the case of facsimile or courier, on the
next business day, and (ii) in the case of receipted mail, five (5)
business days following the date of deposit in the mail.
(f) FORCE MAJEURE. Neither party shall be deemed in default hereunder or
liable for any loss or damage resulting from delays in performance or
from failure to perform or comply with the terms of this Agreement due
to any causes beyond its reasonable control, which causes include but
are not limited to acts of God or the public enemy; riots and
insurrections, war, accidents, fire, strikes and other labor
difficulties (whether or not the party is in a position to concede to
such demands), embargoes, judicial action, lack of or inability to
obtain export permits or approvals, necessary labor, materials, energy,
utilities, components or machinery, acts of civil or military
authorities.
(g) WAIVER. The failure of a party to claim a breach of any term of this
Agreement shall not constitute a waiver of such breach or the right of
such party to enforce any subsequent breach of such term.
(h) ASSIGNMENT. Neither the Customer nor Entrust shall assign this
Agreement, any interest herein or any rights hereunder without the
prior written consent of the other party, except that:
(i) the Customer may assign this Agreement to any party which
acquires all or substantially all of its related business by
merger, sale of assets, or otherwise or to an Affiliate of
Customer; and
(ii) Entrust may assign this Agreement to any party which acquires
all or substantially all of its related business by merger,
sale of assets, or otherwise or to an Affiliate of Entrust.
(i) SEVERABILITY. In the event that any provision of this Agreement is
found to be invalid, void or
U.S. CASP 5.4 8
October 24, 2000
9
unenforceable, the parties agree that unless such provision materially
affects the intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall not affect the validity of this
Agreement nor the remaining provisions herein.
(j) THIRD PARTY BENEFICIARIES. Customer hereby acknowledges that there may
be third party beneficiaries to this Agreement. To the extent that this
Agreement contains provisions that relate to the use of Software in
which such third parties have an interest, such provisions are made
expressly for the benefit of such third party beneficiaries and are
enforceable by such third-party beneficiaries in addition to being
enforceable by Entrust.
(k) GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Texas, U.S.A., without regard to its conflict of law
principles. The jurisdiction for any legal action shall be exclusively
a state or federal court in Dallas County, Texas, U.S.A. The
application of the United Nations Convention on Contracts for the
International Sale of Goods to this Agreement is expressly excluded.
(l) ENTIRE AGREEMENT. This Agreement and the Schedules hereto constitute
the entire agreement between the parties on the subject matter hereof
and supersede all prior agreements, communications and understandings
of any nature whatsoever, oral or written including any shrink wrap
license included with the Software. This Agreement may not be modified
or waived orally and may be modified only in a writing signed by a duly
authorized representative of both parties.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the Effective
Date.
ENTRUST TECHNOLOGIES INC. ZIXIT CORPORATION
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXXXX
------------------------------------- ----------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxxx
----------------------------------- ----------------------
Title: Exec. V.P. Global Sales & Service Title: S.V.P.
---------------------------------- ----------------------
Date: 11/6/00 Date: 11/6/00
----------------------------------- -----------------------
U.S. CASP 5.4 9
October 24, 2000
