EXHIBIT 10.11
SecureWeb Toolkit/(TM)/Developer & Joint Development Agreement
Effective as of July 23, 1996, ( Effective Date"), Xxxxxx Systems, Inc. a
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Delaware corporation with offices at 0000 Xx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx
("Xxxxxx") and Active Software, Inc., a California corporation with principal
offices at 0000 X. Xxxxxxxxx Xxxx. Xxxxx 000, Xxxxxxxx Xxxx, XX 00000 ("Active")
agree as follows:
1. BACKGROUND
1.1 Active is developing a suite of products which allow end users to access
various data sources/sinks ("Legacy Applications") from WWW browsers (Netscape's
in particular) by using Java applets to connect to an "Information Broker"
communicating with the Legacy Applications through a series of "Adapters"
(together labeled "the Active Products"). Active intends to offer a
communications security option, utilizing the SSL protocol, at all levels of the
Active Products including the Information Broker, the Adapters, and the WWW
browser Java applets.
1.2 Active intends to license Terisa's SecureWeb Toolkit and rights to create
derivative works thereof solely for the purpose of providing communications
security to the servers (Information Brokers) and viewers (Adapters and browser
lava applets) which make up the Active Products.
1.3 Since secure communications between Product will require support for SSL
at the browser point of access and Netscape does not currently support Java
access to the browser's own SSL facilities, Xxxxxx and Active intend to co-
develop a "Plug-in" to the Netscape browser which will allow SSL-based
communications from Java applications ("SSL-for-Java Plug-in" or just "Plug-
in").
1.4 Active's need for a SSL-for-Java capability is urgent and critical to its
product strategy. However, Active's need for the SSL-for-Java Plug-in is
speculative (likely to be temporary) given the possibility that Netscape may
eventually provide such a capability native to its browser. Active chooses to
develop the Plug-in to eliminate the risk that Netscape will not provide the
capability soon enough to meet Active's needs.
1.5 Terisa's interest in an SSL-for-Java Plug-in is speculative on two
grounds: first, there may not be a market for such a product: second, any
prospective market for such a product would be eliminated if Netscape provides a
native capability in its browser. Xxxxxx chooses to cooperate in the development
of the Plug-in primarily to meet Active's needs as a Xxxxxx customer, and
secondarily to potentially exploit the possibly temporary market for the Plug-
in.
1.6 Active anticipates that they will redistribute to third parties, at most,
one thousand units of its Information Broker product (which Xxxxxx considers
servers for the purpose of licensing) incorporating the SecureWeb Toolkit in its
first year of operation. Additionally, Active estimates that in actual
configurations, that there will be well less than ten Adapters (which Xxxxxx is
willing to consider clients for the purpose of licensing) per Information
Broker.
1.7 Active intends to embed the Plug-in into its Active Products. Xxxxxx
intends to own all rights to the Plug-in and possibly license it as a Xxxxxx
product to third parties.
2. DEFINITIONS
2.1 "Confidential Information" means (i) the Toolkit in source code form and
(ii) the SecureWeb library API documentation and (iii) any other confidential or
proprietary information labeled as confidential either at the time of delivery
or on Exhibit A hereto, or, if disclosed verbally or by examination, identified
as confidential at the time and reduced to writing within 30 days thereafter.
2.2 "Computer" means one computer system under the control of a single
instance of an operating system.
2.3 "Interface Modifications" means any ports, interfaces, and other software
required to incorporate the RSA Source Code into the Toolkit as modified by
Active under the terms of this Agreement.
2.4 "Licensed Computers" means the specific computers designated by Active and
identified by manufacturer, model, serial number and location as the licensed
computers for the purpose of running specific forms of the Toolkit and/or Secure
Products.
2.5 "RSA Component" means the software component of the RSA Software known as
TIPEM.
2.6 "RSA Software" means software for public key cryptography licensed to
Xxxxxx by RSA Data Security Inc. to Xxxxxx ("RSA Software") and sublicensed by
Xxxxxx to Active within the Toolkit.
2.7 "RSA Source Code" means the source code form of the RSA Component, which
source code shall be deemed to be Confidential Information.
2.8 "Secure Product(s)" means Server Products, and Viewer Products.
2.9 "Server Product" means software developed by or for Active which acts as a
web network communication server and which incorporates portions of the Toolkit
in object code form together with substantial additional value in the form of
software.
2.10 "Site" means the office of Active located at the following address: 0000
X, Xxxxxxxxx Xxxx. Xxxxx 000, Xxxxxxxx Xxxx, XX 00000.
2.11 "Toolkit" means either or both of Terisa's SecureWeb Viewer Toolkit (the
"Viewer Toolkit") and/or Terisa's SecureWeb Server Toolkit (the "Server
Toolkit") as further identified in Exhibit A: Description
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as * . A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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of the SecureWeb Viewer and Server Toolkits, and related user manuals and other
documentation ("Documentation") and any Updates thereto as supplied by Xxxxxx
hereunder. "Updates" means any releases, updates, enhancements, or error
corrections for a software program provided by Xxxxxx to Active pursuant to
Section 5 below.
2.12 "Viewer Product" means software developed by or for Active which works
with a World Wide Web browser to communicate over the network with a Server
Product and which incorporates portions of the Toolkit in object code form
together with substantial additional value in the form of software.
3. GRANT OF LICENSE FOR DEVELOPMENT OF SECURE PRODUCTS
3.1 License for Secure Product Development. Subject to the terms of this
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Agreement. Xxxxxx grants to Active and Active accepts a nonexclusive,
nontransferable, nonassignable, worldwide license to use, display, copy, modify
and prepare derivative works of those of the following forms of the Toolkit as
selected by Active on the accompanying License Order Form:
3.1.1 The Viewer Toolkit in object code form (i) solely for the purposes of
developing Viewer Products and for testing, supporting, and maintaining such
Viewer Products; and (ii) solely on five (5) Licensed Computers by no more than
four (4) developers.
3.1.2 The Server Toolkit in object code form (i) solely for the purposes of
developing Server Products and for testing, supporting, and maintaining such
Server Products; and (ii) solely on five (5) Licensed Computers by no more than
four (4) developers.
3.1.3 The SecureWeb Toolkit in source code form (i) for use solely at the Site;
and (ii) solely for the purposes of developing, supporting, and maintaining
Secure Products for the following platforms: Win 95, Windows NT, Macintosh,
Solaria, Hewlett Packard, Silicon Graphics.
3.2 License to the RSA Source Code for Porting to New Platforms. If Active has
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selected i) a limited license to the RSA Source Code on the accompanying License
Order Form; and ii) licensed the SecureWeb Toolkit in source code form (2.1.3),
then subject to the terms of this Agreement Xxxxxx grants to Active and Active
accepts a nonexclusive, nontransferable, nonassignable, worldwide license,
without the right to grant sublicenses, to use, copy and modify the RSA Source
Code, solely at the Site and solely as required for the limited purpose of
porting the RSA Component to new platforms and for no other purpose or use
whatsoever.
3.3 Grant of License to the Plug-in. Upon approval and acceptance of the SSL-
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for-Java Plug-in as described in Paragraph 4.2, Xxxxxx shall xxxxx Active a non-
exclusive, irrevocable, world-wide (subject to applicable laws), royalty-free
license to distribute the SSL-for-Java Plug-in for use with Active's Products.
3.4 Archival Copies. Active may make one(1) copy of each Toolkit for archival
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purposes
4. LIMITATIONS ON LICENSES
4.1 No Right To Distribute. This SecureWeb Toolkit Developer Agreement does
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not give Active any right to sublicense or distribute the Toolkit or Active's
Secure Products. Such rights shall be provided upon execution of the SecureWeb
Distribution Agreement.
4.2 No Reverse Engineering. Active shall not modify, reverse engineer,
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decompile, disassemble or otherwise attempt to derive source code from the
Toolkit or any part thereof which was delivered to Active solely in object code
form.
4.3 Integration of Object Code. Secure Products must be designed so that an
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experienced programmer cannot easily access the security functions provided by
the Toolkit in order to use them with software that is not a Secure Product.
Active agrees (i) that Secure Products will not make the security functions of
the Toolkit directly accessible to the user, (ii) not to include in the
documentation or provide to third parties any description of the interface
between the security portions and other parts of a Secure Product and (iii) not
to design or distribute the security portions of a Secure Product as a
dynamically linked module such as a Dynamic Link Library (DLL) unless it
satisfies all of the following requirements: (a) no function call into the
module can have a similar name or provide substantially the same function as any
Toolkit API function call; (b) the module must have substantial additional value
in the form of program logic; and (c) Active has obtained Terisa's written
approval. Xxxxxx agrees to respond within 10 business days to such requests,
such approval not to be unreasonable withheld. Xxxxxx will permit Active to make
the specifications of an approved dynamically linked security module public, if,
in Terisa's sole judgment, Active has either constructed the module so that it
will not function with software other than a Secure Product or the module
includes additional software that makes it difficult to use it with any software
other than the Secure Product.
4.4 RSA Software Not Separable. Active agrees not to (i) use the RSA Source
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Code separately from the Toolkit (whether in source or object code form) or
(ii) modify the RSA Source Code or (iii) access RSA Software's functions in any
way other than through Terisa's interface, except that, provided Active has
selected a license to the RSA Source Code per Paragraph 2.2, Active may then
directly access and modify the RSA Software as required to create Interface
Modifications for the sole purpose of porting the Toolkit to a new platform and
provided that the resulting Secure Product retains substantial value from
portions of the Toolkit other than the RSA Software itself. Active hereby agrees
not to assert against Xxxxxx or RSA any patent rights Active may have now or in
the future with respect to any interfaces developed by Xxxxxx or RSA without
reference to the
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source code developed by Active for Active's Interface Modifications. Active is
not granted the right hereunder to distribute, and Active agrees not to
distribute, the RSA Source Code.
4.5 Certificates. Active shall not use the RSA Software to issue electronic
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certificates to identify users and verify data integrity unless such right is
granted to Active pursuant to an agreement with VeriSign, Inc., a Delaware
corporation, or its successors in interest.
4.6 Preservation of Notices. Active agrees not to remove or destroy any
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proprietary, trademark or copyright markings, or confidentiality legends placed
upon or contained within the Toolkit or any related materials or documentation.
Additionally, Active shall reproduce all of Terisa's proprietary notices on all
copies of the Toolkit or portions thereof made by Active in the same manner that
Xxxxxx includes such notices or in any other manner reasonably requested by
Xxxxxx. Active agrees to insert and maintain a copyright notice in the name of
Active or Xxxxxx within each Secure Application and any related materials or
documentation.
5. JOINT DEVELOPMENT
5.1 Development of the Plug-In. In exchange for discounts in license fees for
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the Terisa's SecureWeb Toolkit products, access thereto, and limited technical
assistance (as further described herein), Active shall author and develop the
Plug-in and technical documentation in accordance with Terisa's reasonable
commercial software product standards. All Plug-in product development plans
must be reviewed and approved by Xxxxxx prior to development and/or distribution
by Active.
5.2 Toolkit Delivery and Start of Development. Xxxxxx shall deliver to Active
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copies of the SecureWeb/(TM) /Toolkit in both source and object code forms upon
execution of this Agreement and SecureWeb Distribution Agreement. Active shall
begin engineering development of the alpha-test Plug-in no later than July 30,
1996.
5.3 Plug-in Delivery and Acceptance. Active shall deliver to Xxxxxx an alpha-
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test Plug-in no later than four months after the effective date of this
Agreement for Terisa's review, approval, and acceptance. If Xxxxxx fails to
approve and accept such Plug-in, Xxxxxx shall provide Active instructions so
that Active can promptly implement the necessary modifications and resubmit the
alpha-test Plug-in for Terisa's approval/acceptance.
5.4 Delivery of Code, and Documentation. With regard to the Plug-in, Active
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shall provide Xxxxxx will all Plug-in source code, object code, documentation,
test programs, and related information, in a timely fashion throughout the
development period.
5.5 Press Releases. Periodically during the development of the Active
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Products, Active and Xxxxxx, either separately or jointly shall issue press
releases announcing the joint development relationship envisioned by this
Agreement. Wording of any press release which mentions the name of the other
party is subject to prior approval by such party.
6. CONFIDENTIALITY
6.1 Nondisclosure. Active agrees not to disclose Confidential Information to
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any other party without Terisa's written permission or to use any Confidential
Information for any purpose other than exercising its rights hereunder. Active
agrees to promptly report to Xxxxxx any unauthorized use or disclosure. The
provisions of this Section a shall not apply to the extent that such information
(i) is or becomes known to the public from a source other than Active, or (ii)
is shown by documentary evidence to have been know by Active prior to its
receipt from Xxxxxx. A copyright notice in and of itself shall not constitute
evidence of a publication or public disclosure. Active acknowledges that the
restrictions contained in this Section 4 are reasonable and necessary to protect
Terisa's legitimate interests and that any violation of these restrictions will
cause irreparable damage to Xxxxxx within a short period of time and Active
agrees that Xxxxxx will be entitled to injunctive relief against each violation.
6.2 Security. Active agrees to use the source code for the Toolkit under
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carefully controlled, secure conditions for the purposes set forth in this
Agreement, and to inform all employees who are given access to the source code
for the Toolkit that such materials are confidential trade secrets of Xxxxxx and
are licensed to Active as such. Active shall restrict access to the source code
of the Toolkit to those employees and contractors of Active who have agreed to
be bound by a confidentiality obligation which incorporates the protections and
restrictions substantially as set forth therein, and who have a need to know in
order to carry out the purposes of this Agreement. Upon request by Xxxxxx,
Active shall provide Xxxxxx with the names of all individuals who have accessed
such materials, and shall take all actions reasonably required to recover any
such materials in the event of loss or misappropriation, or to otherwise prevent
their unauthorized disclosure or use. Active shall be fully responsible for the
conduct of all its employees, contractors, agents and representatives who may in
any way breach this Agreement
7. SUPPORT AND UPGRADES
7.1 Initial Technical Assistance. Xxxxxx shall provide Active reasonable and
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appropriate technical assistance consisting of one half day per week beginning
with execution of this Agreement and extending two months thereafter. If Active
is unable to develop an alpha-test Plug-in within the two month development
period, Active shall assign more of its own personnel resources to the Plug-in
development project before requesting additional technical assistance from
XXXXXX.
7.2 Post-Alpha Technical Assistance. Subsequent to the alpha-test stage,
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Terisa's technical assistance will be
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reduced to a level equivalent to Terisa's standard support as further described
in Exhibit B: Extended Support.
7.3 Updates. If Xxxxxx chooses to field a product based-upon or derived-from
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the Plug-in, Xxxxxx will provide Active with source and object code that it
makes available to its other customers, for the period of three (3) years after
the completion of alpha test but no longer than the term of this Agreement.
Active shall provide Xxxxxx with Plug-in updates in source and object code form
for the period of three (3) years after the completion of its own Plug-in alpha
test but no longer than the term of this Agreement.
8. LICENSE FEES
8.1 Total License, Support and Distribution Fees. Active shall pay Xxxxxx
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[*] in exchange for: (i) the license rights to Terisa's standard SecureWeb
Toolkit as described in section 2.1 above, for use in Active's products (ii)
technical assistance described above, (iii) one year of Terisa's standard
"source licensee technical support", (iv) twelve months of redistribution rights
for the Active products incorporating Terisa's SecureWeb Toolkit as further
described in the Distribution Agreement, the term of which is to begin upon the
first revenue shipment from Active or six months after execution of the
Agreements, whichever occurs first.
8.2 Payment Schedule. Such fee shall be nonrefundable and shall be deemed
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earned and due as follows: i) one half no later than thirty days after execution
of this Agreement; and ii) the remainder no later than three months after
execution of this Agreement.
8.3 Annual Redistribution Fees. One year after the Effective Date, Active
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shall pay Xxxxxx redistribution fees in accordance with Terisa's standard run-
time redistribution fees for Server Secure Products. If Active distributes more
than ten (10) Viewer Secure Products (Adapters) per Information Broker to any
given customer, Active shall also pay Xxxxxx a run-time distribution fee in
accordance with Terisa's standard run-time redistribution fee schedule as
provided on the attached License Order Form (subject to standard price increases
which shall not exceed ten percent (10%) per year). For example, if a customer
orders twenty (20) Information Brokers, Active may deliver 200 viewers
(Adapters) without fee, but Active must pay a runtime fee Xxxxxx for the 201st
copy and each additional copy thereafter.
8.4 Annual Software Support. Active shall pay Xxxxxx an annual software
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support fee of [*] deemed earned and due one year after the Effective Date,
and on the anniversary of that date each year thereafter.
8.5 Taxes. In addition to other payments due under this Agreement, Active
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shall pay any taxes, duties or charges of any kind (including any withholding or
value added taxes) imposed by any federal, state or local governmental entity
for products or services provided under this Agreement, excluding only taxes
based solely on Terisa's net income, unless Active provides Xxxxxx with a valid
tax exemption certificate authorized by the appropriate taxing authority.
9. HARDWARE
9.1 Active will maintain at its own site a list of the Licensed Computers
under each subsection of Section 3 and will make the list available to Xxxxxx,
at Terisa's request. Active will not use the Toolkit on any computer which is
not the Licensed Computer for such Toolkit. Active will use reasonable efforts
to make sure that the Secure Products are not used on computers which are not
Licensed Computers. Xxxxxx reserves the right to insert software in future
releases to ensure compliance with this provision. A single back-up or
replacement computer may be used as a substitute for a Licensed Computer at any
time provided that within seven (7) days Active updates the list of Licensed
Computers
10. OWNERSHIP OF RIGHTS AND PUBLICITY.
10.1 Terisa's Rights in the Plug-in. Xxxxxx shall assume all right and license
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in the Plug-in including copyright, trademark, and patent rights (if any).
10.2 Rights in Trademarks. By reason of this Agreement or the performance
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hereof, Active shall acquire no rights of any kind in any Xxxxxx trademark,
trade name, logo or product designation under which the Toolkit were or are
marketed and Active shall not make any use of the same for any reason except as
expressly authorized by this Agreement or otherwise authorized in writing by
Xxxxxx. Active agrees not to use a name or trademark for a Secure Product that
is confusingly similar to a name or trademark used by Xxxxxx.
10.3 Rights in Copyright. The Toolkits are copyrighted materials and are
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protected by United States Copyright laws and international treaty provisions.
Active's rights in the Toolkit are limited to those rights specifically granted
in this Agreement. Subject only to the right of Active to use the Toolkit
granted in accordance with the terms and conditions of this Agreement, Xxxxxx
and its licensors shall retain sole and exclusive ownership of all rights, title
and interest in and to the Toolkit and in any and all related patents,
trademarks, copyrights or proprietary or-trade secret rights.
10.4 Government Rights. Any possession, use, sublicense or distribution of the
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Toolkit and/or the Plug-in by or to the U.S. Department of Defense and all
applicable related agencies or departments shall be subject to restrictions as
"commercial computer software" in accordance with the terms of this Agreement as
specified in 48 C.F.R. 227.7202-3 of the Defense Federal Acquisition Regulations
Supplement (DFARs) as from time to time amended. Any possession, use, sublicense
or distribution of the Toolkit by or to civilian agencies of the United States
government shall be subject to restrictions as "commercial computer software" in
accordance with the terms of this Agreement as specified in 48 C.F.R.
* Material has been omitted pursuant to a request for confidential treatment.
Such material has been filed separately with the Securities and Exchange
Commission.
12.212 of the Federal Acquisition Regulations (FARs) as from time to time
amended.
10.5 Publicity. Xxxxxx shall have the right during the term of this Agreement
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to disclose to third parties that Active is a licensee of the Toolkit. Any press
release or public announcement which include additional statements about Active
or Secure Products require written or verbal approval by Active.
11. WARRANTIES
11.1 Conformance with Specifications. Except for the Application Examples,
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Xxxxxx warrants that the Toolkit will operate in material conformance to
Terisa's published specifications for such Toolkit for a period of ninety (90)
days from the Effective Date of this Agreement. "Application Examples" means
portions of the Toolkit which are supplied as an example of how to use the
SecureWeb Library and are not part of the SecureWeb Library itself. Xxxxxx does
not warrant that the Toolkit or any portion thereof are error-free. Active's
exclusive remedy, and Terisa's entire liability shall be for Xxxxxx to correct
such warranted nonconformity in the Toolkit as provided in the SecureWeb
Developer's Technical Services Agreement. This limited warranty shall not apply
to any modifications to the Toolkit made by Active or any nonconformities caused
thereby.
11.2 Except as expressly provided in Section 9.1, XXXXXX DISCLAIMS ALL
WARRANTIES EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER,
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. XXXXXX DISCLAIMS
ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN THE ACTIVE WITH RESPECT
TO THE TOOLKIT.
12. LIMITATION OF LIABILITY
12.1 IN NO EVENT SHALL Xxxxxx HAVE ANY LIABILITY TO LICENSEE OR ANY PARTY
CLAIMING OUT OF OR THROUGH LICENSEE FOR LOST PROFITS, LOSS OF DATA, BUSINESS
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS SERVICES OR FOR ANY INCIDENTAL,
SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF
THIS AGREEMENT UNDER ANY CAUSE OF ACTION AND WHETHER OR NOT Xxxxxx HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TERISA'S LIABILITY
UNDER THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY Xxxxxx FROM LICENSEE
HEREUNDER REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY,
CONTRACT, TORT OR OTHERWISE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. TERM AND TERMINATION
13.1 Termination. This Agreement shall become effective on the Effective Date
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and shall continue in force thereafter unless terminated by Active upon thirty
(30) days' prior written notice to Xxxxxx or by Xxxxxx, immediately upon written
notice, if Active is in default of its payment obligations hereunder and such
default continues for thirty (30) days following receipt of written notice from
Xxxxxx or if Active is in default of an other material obligation hereunder and
such default continues for sixty (60) days following receipt of written notice.
Additionally, if Xxxxxx declines to approve and accept the alpha-test Plug-in
(as further described in Paragraphs 4.1 and 4.2) within six months after
Effective Date, or if Active terminates its development of the secure Active
Product or otherwise terminates operation, Xxxxxx shall have the right, at its
sole discretion to terminate this Agreement including all licenses and
distribution rights conveyed and/or referenced herein without further notice.
13.2 Optional License Following Termination by Active. Upon termination by
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Active, Active may retain license and distribution rights to the SecureWeb
Toolkit upon payment to Xxxxxx of the difference between the standard license
fees for the SecureWeb Toolkit and that amount paid by Active through the date
of termination.
13.3 Effect of Termination. On termination unless otherwise permitted under
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Section 13.2, the licenses hereunder shall immediately terminate and Active
shall return or destroy, as Xxxxxx may request, all copies of the Toolkit and/or
Plug-in or any portion thereof, including portions incorporated into Secure
Products, in the possession of Active and an officer of Active shall certify to
Xxxxxx that Active has discontinued use and has returned or destroyed all copies
of the Toolkit and/or Plug-in.
13.4 Survival. The following provisions shall survive the termination of this
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Agreement: Section 6 (Confidentiality), Section 10 (Ownership of Rights),
Section 11 (Warranties), Section 12 (Limitation of Liability), Section 13.4
(Survival), Section 14 (Miscellaneous) and Active's obligation to pay any fees
accrued or accruable under Section 8 (License Fees).
14. MISCELLANEOUS PROVISIONS
14.1 Assignment. This Agreement shall not be assignable by Active, by
operation of law or otherwise, without the prior written consent of Xxxxxx
unless such assignment is in connection with the sale (including without
limitation by way of merger or consolidation, sale of assets or otherwise) or
change of control of all or substantially all of the Licensee's business. With
the exception of the sale of the Licensee's business, any such purported
assignment or delegation without Terisa's written consent shall be void and of
no effect. Except as otherwise provided herein, this Agreement shall be
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binding upon, and inure to the benefit of, the successors, executors, heirs,
representatives, administrators and permitted assigns of the parties hereto.
14.2 Applicable Law. This Agreement shall be governed by the laws of the State
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of California, without reference to conflict of law principles.
14.3 Jurisdiction. Any dispute arising out of this Agreement shall be brought
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in, and the parties consent to personal and exclusive jurisdiction of and venue
in, the state and federal courts within Santa Xxxxx County, California.
14.4 Notices. All notices and other communications required or permitted
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hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered by hand, by commercial express
courier service addressed as specified at the head of this Agreement, Such
notices shall be deemed to have been served when delivered or, if delivery is
not accomplished by reason of some fault of the addressee, when tendered. The
address for notices may be changed on written notice to the other party.
14.5 Severability. If any provision of this Agreement is held to be invalid by
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a court of competent jurisdiction, then the remaining provisions shall
nevertheless remain in full force and effect. The parties agree to negotiate in
good faith a substitute, valid and enforceable provision that most nearly
effects the parties' intent and to be bound by such mutually agreed substitute
provision.
14.6 Entire Agreement. This Agreement and the exhibits and schedules hereto
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constitute the entire, final and complete and exclusive agreement between the
parties with respect to the subject matter hereto and supersedes all previous
agreements, oral or written. This Agreement may not be modified or amended
except in a writing signed by a duly authorized representative of each party.
14.7 Amendment and Waivers. Any term or provision of this Agreement may be
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amended and the observance of any term of this Agreement may be waived, only in
writing and signed by the party to be bound thereby. The waiver by either party
of a breach of or a default under any provision of this Agreement by the other
party shall not be construed as a waiver of any subsequent breach of the same or
any other provisions of this Agreement, nor shall any delay or omission on the
part of either party to exercise or avail itself of any right or remedy that it
has or may have hereunder operate as a waiver of any right or remedy by such
party.
14.8 Section Heading. Titles and section headings are provided for convenience
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and should be not be used in interpreting the Agreement.
14.9 Attorneys' Fees. Should suit be brought to enforce or interpret any part
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of this Agreement, the prevailing party shall be entitled to recover, as an
element of the costs of suit and not as damages, reasonable attorneys' fees to
be fixed by the court (including without limitation, costs, expenses and fees on
any appeal).
14.10 Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14.11 Export Restrictions. The Toolkit is subject to export controls by the
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United States Government. Use of the Toolkit may be additionally controlled by
the Department of State's Defense Trade Regulations (formerly known as
International Traffic in Arms Regulations (ITAR)), 22 CFR 120-130. LICENSEE
AGREES TO COMPLY WITH ALL UNITED STATES GOVERNMENT LAWS, REGULATIONS, ORDERS AND
OTHER RESTRICTIONS CONCERNING THE EXPORT OF THE TOOLKIT, SECURE PRODUCTS AND
INFORMATION PERTAINING THERETO.
14.12 Third Party Beneficiaries. Nothing express or implied in this Agreement
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is intended to confer, nor shall anything herein confer, upon any person other
than Xxxxxx, Active and Terisa's licensors, Netscape, Inc. and RSA Data Security
Inc., and the respective successors or assigns of the parties, any rights
remedies, obligations or liabilities whosoever. Notwithstanding anything to the
contrary contained herein RSA and Netscape shall be deemed to be third party
beneficiaries of Xxxxxx under this Agreement and shall be entitled to enforce
Active's obligations under Sections 2 (Grant of License), 3 (Limitations on
Licenses), 4 (Confidentiality and Security), 7 (Ownership of Rights), and 11
(Term and Termination).
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
executed this Agreement as of the date set forth above.
XXXXXX SYSTEMS INC.
By: /s/ Xxxxxx Systems
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Name: ________________________
Title: ________________________
ACTIVE SOFTWARE, INC.
By: /s/ R. Xxxxx Xxxxx
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Name: R. XXXXX XXXXX
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Title: CHAIRMAN
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Exhibit A:
Description of the SecureWeb Viewer and Server Toolkits, SecureWeb Toolkit
Source Code and RSA Software
SecureWeb Viewer Toolkit version 2.0 includes:
. Domestic SecureWeb library in object form (includes RSA Software)
. Export-enabling SecureWeb library in object form (includes RSA Software)
. Library API header files
. Library testing framework
. SecureWeb library API documentation
. Viewer application examples source code
SecureWeb Server Toolkit version 2.0 includes:
. Domestic SecureWeb library in object form (includes RSA Software)
. Export-enabling SecureWeb library in object form (includes RSA Software)
. Library API header files
. Library testing framework
. SecureWeb library API documentation
. Server application examples source code
SecureWeb Toolkit Source Code version 2.0 includes source code for both the
Server Toolkit and Viewer Toolkit itemized above.
RSA SOURCE CODE includes the software component of the RSA Software known as
TIPEM, in source code form.
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Exhibit B: SecureWeb Toolkit Extended
Technical Support
B1. Definitions
In addition to the capitalized terms defined elsewhere in this Agreement, the
following terms shall have the meanings ascribed to them below:
B1.1. "Error" shall mean any reproducible programming error in the current,
unaltered Toolkit (excluding Application Example) which cause the Toolkit to
operate in material nonconformance with the appropriate SecureWeb Reference
Manual.
B1.2. "First Level Support" shall consist of accepting and handling
Distributor and End User calls and troubleshooting to the point to verifying
that there is an Error in the Toolkit.
B1.3. "Active Contact" shall mean an individual designated in writing by
Active who is authorized to contact Xxxxxx for support under this Support
Agreement.
B1.4. "Release" shall mean revisions, updates, modifications and
enhancements within the licensed Version of the Toolkit as indicated by a change
in the release number to the right of the decimal point (i.e. from version 1.2
to 1.3)
B1.5. "Version" shall mean a set of Releases with similar functionality as
indicated by having the same release number to the left of the decimal point
(such as versions 2.0, 2.1 and 2.2).
B2. Customer Services Provided by Xxxxxx.
B2.1 Updates. Xxxxxx shall provide Active notification in writing or
-------
electronically of new Releases within the licensed Version of the Toolkit as
they become available.
B2.2 The contents of all Releases shall be decided upon by Xxxxxx in its
sole discretion and will generally include changes that correct defects as well
as enhancements and upgrades to update the Toolkit to the most current release
of the Toolkit then being generally distributed that is within the licensed
Version. New Versions are not included in this Support Agreement.
B2.3 Xxxxxx will provide Releases at no additional charge.
B2.4 Active may obtain Releases by downloading the Release from Terisa's
Electronic Customer Service bulletin board or by such other means as Xxxxxx may
specify in the Release notification.
B2.5 Only the designated Active Contacts are entitled to receive notices
and obtain Releases.
B2.6 Releases may only be used as Updates for Toolkits on a licensed
Computer covered by a Support Contract at the time the Release is provided to
Active.
B2.2 Error corrections. During the term of this Support Agreement, Xxxxxx
-----------------
shall use its reasonable efforts to correct any Errors. Xxxxxx shall apply a
level of effort commensurate with the severity of the Error, provided that
Xxxxxx shall have no obligation to correct all Errors in the Toolkit. Upon
identification of any programming Error, Active shall notify Xxxxxx of such
Error and provide Xxxxxx with enough information to duplicate the Error. Xxxxxx
shall not be responsible for correcting any error not attributable to Xxxxxx.
Recognizing that Active may have the right and desire to perform some
modifications to the Toolkit on its own, Errors attributable to Xxxxxx shall be
those that are reproducible by Xxxxxx on an unmodified Toolkit running under the
designated operating system.
B2.3 Electronic & Telephone Support. Xxxxxx will provide up to three (3)
------------------------------
hours per quarter of support to Active via electronic mail or, if necessary, via
telephone for each Regular Support Contract. Support shall include the
following:
B2.3.1 Technical Support. Xxxxxx personnel shall be available to answer
-----------------
questions and address problems regarding the use of Xxxxxx Software including,
but not limited to (i) Xxxxxx Toolkit installation and configuration, (ii) use
of the Toolkit Documentation, and (iii) use and operation of the Toolkit.
B2.3.2 Availability Terisa's experts are on duty Monday through Friday from
------------
8:00 am to 5:00 pm PST (excluding Xxxxxx holidays), to monitor technical support
requests submitted via electronic mail or telephone.
B2.3.3 On Line Information. Technical notes addressing SecureWeb technical
-------------------
and implementation issues may be accessed via the Interact as they become
available.
B2.4 Additional Platform Contracts. If Active has licensed additional
-----------------------------
platforms (within the same platform class) for use by the same developer, Active
may receive support for such platforms under an Additional Platform Contract.
Requests for technical support will be treated as requests under the associated
Regular Support Contract and must be made by the same Active Contact.
B2.5 Special Services. Xxxxxx agrees to use reasonable efforts to respond
----------------
to any requests by Active for maintenance and support services not specifically
provided for above. Active acknowledges that all such services provided by
Xxxxxx shall be at Terisa's then current terms and conditions for such services.
B3. Active Responsibilities
B3.1. Active Assistance. Active agrees to provide Xxxxxx reasonable access
-----------------
to all necessary personnel to answer questions about any problems reported by
Active regarding the Toolkit Active also agrees to promptly implement all
Releases and error corrections provided by Xxxxxx under this Support Agreement.
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B3.2 . Contact People. For each Regular Support Contract, Active may
--------------
designate one person (normally the Toolkit user) to serve as Active Contact. The
Active Contacts as of the Effective Date are listed in Exhibit B2. Active may
change a Active Contact at any time on written notice to Xxxxxx.
Regular Support Contact 1:_________________Toolkit,
________________ Platform
Name
Address
Telephone
E-mail address
Regular Support Contact 2:_________________Toolkit,
_________________Platform
Name
Address
Telephone
E-mail address
B3.3. First Level Support. If Active has a license to distribute Secure
-------------------
Products, Active or its Distributors shall be responsible for providing First
Level Support for the Secure Products. Active agrees that any Documentation
distributed by Active shall clearly state that End Users should call Active or
its Distributors (or another person designated by Active) for technical support
for the Secure Products. Xxxxxx shall have no obligation to provide any support
directly to any of Active's Distributors and End Users.
B4. EXCLUSIONS.
B4.1. Excluded Problems. Xxxxxx is not required to provide any maintenance
-----------------
or support services relating to problems arising out of (i) Portions of the
Toolkit which provided as application examples (ii) Active's failure to
implement all error corrections and Releases to the Toolkit which are issued
under this Support Agreement, (iii) changes to the operating system or
environment which adversely affect the Toolkit: (iv) any alterations of or
additions to the Toolkit performed by parties other than Xxxxxx; (v) use of the
Toolkit in a manner for which, it was not designed; (vi) accident, negligence,
or misuse of the Toolkit; (vii) operation outside of the environmental
specifications; (viii) interconnection of the Toolkit with other software
products which do not comply with the Toolkit's protocols and interface
requirements as specified in the Toolkit documentation; or (ix) use of the
Toolkit on a CPU or operating system other than those for which such Toolkit was
designed for and licensed for use on.
B4.2. Support for Earlier Versions. Xxxxxx shall only be obligated to
----------------------------
support the then current production version of the Toolkit and the immediately
prior Release for a period of six (6) months after such release. Support for any
earlier version or release or for other problems not covered under this Support
Agreement may be obtained at Terisa's then current rates for special technical
services.
B5. Compensation
Active shall pay Xxxxxx the Extended Support Fee noted on the attached License
Order Form in accordance with Section 6 of the Agreement. Such support may be
renewed annually by paying the then-current corresponding support fee. Charges
for any special services will be invoiced monthly as such expenses are incurred:
payment of such invoices shall be due within thirty (30) days of the date of the
invoice.
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