1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 10.10
-------------
OEM Master License Agreement Number: 0000-XXX-X-XXX-0
XXX DATA SECURITY(TM)
OEM MASTER LICENSE AGREEMENT
THIS OEM MASTER LICENSE AGREEMENT ("Agreement"), effective as of the later
date of execution ("Effective Date"), is entered into by and between RSA Data
Security, Inc., a Delaware corporation ("RSA"), having a principal address at
000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, and the entity
named below ("OEM"), having a principal address as set forth below.
OEM:
SilverStream Software, Inc., a Delaware corporation
---------------------------------------------------
(Name and jurisdiction of incorporation)
One Burlington Xxxxx
--------------------
(Address)
Xxxxxxxxxx, XX 00000
---------------------
OEM Legal Contact:
Xxxxx Xxxxx, Vice President and Chief
-------------------------------------
Financial Officer (000) 000-0000
--------------------------------
(name, telephone and title)
OEM Billing Contact:
Xxxxx Xxxxx, Vice President and Chief
-------------------------------------
Financial Officer (000) 000-0000
--------------------------------
(name, telephone and title)
OEM Technical Contact:
Xxx Xxxxxxxxx, Vice President of Research
-----------------------------------------
and Development (000) 000-0000
------------------------------
(name, telephone and title)
OEM Commercial Contact:
Xxxxx Xxxxx, Vice President and Chief
-------------------------------------
Financial Officer (000) 000-0000
--------------------------------
(name, telephone and title)
Territory:
[ ] North America (United States and Canada)
[X] Worldwide, subject to Section 10.7.
Separate Maintenance Agreement:
YES [X] NO [ ]
1. DEFINITIONS
The following terms when used in this Agreement shall have the following
meanings:
1.1 "Bundled Product(s)" means one or more of the products or product
groups described on a License/Product Schedule attached hereto and referencing
this Agreement which has been or will be developed by OEM and which incorporates
in the OEM Product in any manner any portion of the RSA Object Code. A Bundled
Product must represent a significant functional and value enhancement to the
Licensed Software such that the primary reason for an End User Customer to
license such Bundled Product is other than the right to receive a license to the
Licensed Software included in the Bundled Product.
1.2 "Distributor" means a dealer or distributor in the business of
reselling Bundled Products to End User Customers, directly or through one or
more Distributors, by virtue of authority of OEM. Bundled Products resold by a
Distributor shall bear OEM's trademarks and service marks and shall not be
privately labeled by such Distributor or other parties. A Distributor shall have
no right to modify any part of the Bundled Product.
1.3 "End User Customer" means a person or entity licensing RSA Object Code
as part of a Bundled Product from OEM or a Distributor solely for personal or
internal use and without right to license, assign or otherwise transfer such
Bundled Product to any other person or entity.
2
1.4 "Interface Modification" means a modification to the RSA Source Code
constituting and limited to hooks, ports or Interfaces and similar modifications
necessary to permit the Licensed Software to operate in accordance with the User
Manual in OEM Products.
1.5 "License/Product Schedule" means a schedule substantially in the form
of Exhibit "A" hereto completed and executed with respect to a Bundled Product
and specifying the Licensed Software, Field of Use limitation (if any), license
and maintenance fees, and other matters with respect to such Bundled Product. A
License/Product Schedule can be amended pursuant to Section 10.5 with respect to
a specified Bundled Product; and additional Bundled Products may be added to
this Agreement by executing an additional License/Product Schedule referencing
this Agreement. All such License/Product Schedules are incorporated in this
Agreement by this reference.
1.6 "Field of Use" means a use, method of incorporation or product purpose
limitation with respect to the Licensed Software for a Bundled Product specified
on the License/Product Schedule for such Bundled Product.
1.7 "Licensed Software" means those portions of the RSA Software which
perform the algorithm(s) specified on page 2 of a License/Product Schedule
hereto as having been licensed by OEM with respect to a particular Bundled
Product.
1.8 "New Release" means a version of the RSA Software which shall
generally be designated by a new version number which has changed from the prior
number only to the right of the decimal point (e.g., Version 2.2 to Version
2.3).
1.9 "New Version" means a version of the RSA Software which shall
generally be designated by a new version number which has changed from the prior
number to the left of the decimal point (e.g., Version 2.3 to Version 3.0).
1.10 "OEM Product" means any product developed by OEM into which the
Licensed Software is to be incorporated to create a Bundled Product.
1.11 "RSA Object Code" means the Licensed Software in machine-readable,
compiled object code form.
1.12 "RSA Software" means RSA proprietary software identified on a
License/Product Schedule hereto and as further described in the User Manuals
associated therewith. "RSA Software" shall also include all modifications and
enhancements (including all New Releases and New Versions) to such programs as
may be provided by RSA to OEM pursuant to this Agreement or a maintenance
agreement between RSA and OEM.
1.13 "RSA Source Code" means the mnemonic, high level statement versions of
the Licensed Software written in the source language used by programmers.
1.14 "Territory" means those geographic areas specified on page 1.
1.15 "User Manual" means the most current version of the user manual and/or
reference manual customarily supplied by RSA to OEMs who license the RSA
Software.
2. LICENSES
2.1 LICENSE GRANT. During the term and within the Field of Use limitation
(if any) specified in the applicable License/Product Schedule. RSA hereby grants
OEM a non-exclusive, non-transferable license to:
2.1.1 use, if a source code license is specified in a License/Product
Schedule, a single copy of the RSA Source Code on a single central processing
unit accessed by one user at a time to: (i) modify the RSA Source Code Solely to
create Interface Modifications; (ii) compile the RSA Source Code to create
object code; and (iii) maintain Bundled Products and Support End User Customers.
2.1.2 (i) incorporate the RSA Object Code into an OEM Product to
create a Bundled Product; (ii) reproduce and have reproduced the RSA Object Code
as incorporated in a Bundled Product as reasonably needed for inactive backup or
archival purposes and, if an internal use license
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is specified in a License/Product Schedule, for distribution in the Territory
solely to employees of OEM and solely for use by such employees for OEM's
internal business purposes and (iii) reproduce, have reproduced, and license or
otherwise distribute the RSA Object Code as incorporated in a Bundled Product in
the Territory.
2.1.3 (i) use the User Manual to support End User Customers; (ii)
modify and incorporate portions of the User Manual in Bundled Product document;
and (iii) reproduce, have reproduced and distribute in the Territory such
portions of the User Manual as incorporated in Bundled Product documentation.
2.2 LIMITATION ON LICENSES. The licenses granted in Section 2.1 are
further limited as follows:
2.2.1 LIMITATION ON DISTRIBUTEES. The RSA Object Code shall be
licensed or otherwise distributed only to (i) Distributors and (ii) End User
Customers.
2.2.2 NO EXPOSURE OF RSA SOFTWARE. The RSA Object Code may only be
accessed by the functionality of the Bundled Product in which it is included,
and a Bundled Product shall not make the RSA Object Code directly accessible to
End User Customers or to products other than the Bundled Product.
2.2.3 NO STANDALONE PRODUCT OR SERVICES. OEM may not in any way sell,
lease, rent, license, sublicense or otherwise distribute the RSA Software or any
part thereof or the right to use the RSA Software or any part thereof to any
person or entity except as part of a Bundled Product. Unless a specific grant of
rights is included in the applicable License/Product Schedule, neither OEM nor
any Distributor or End User Customer may use the Bundled Product to operate a
service bureau or other revenue-generating service business.
2.2.4 LICENSE RESTRICTED TO LICENSED SOFTWARE AND FIELD OF USE. OEM
may use or incorporate into a Bundled Product only that portion of the RSA
Software which is identified as Licensed Software in the applicable
License/Product Schedule. The RSA Object Code must be incorporated in a Bundled
Products, and may only be reproduced, licensed or distributed in accordance with
the Field of Use limitation, if any, specified in the applicable License/Product
Schedule.
2.2.5 PROHIBITED ACTIVITIES. OEM shall not modify (except to create
Interface Modifications), translate, reverse engineer, decompile or disassemble
the RSA Software or any part thereof, and shall prohibit Distributors and End
User Customers from doing the same.
2.2.6 RSA ROOT KEYS. OEM may include the RSA/VeriSign, Inc. root keys
(the "RSA Root Keys") in any Bundled Product in which a hierarchy root key is
utilized or incorporated, provided that any such incorporation must make the RSA
Root Keys functional within the Bundled Product and as accessible as any other
hierarchy root key within the Bundled Product.
2.3 TITLE.
2.3.1 IN RSA. Except for the limited licenses expressly granted in
Section 2.1 and as further limited by Section 2.2, RSA does not by this
Agreement grant to OEM any right, title or ownership interest in and to the RSA
Software or in any related patents, trademarks, copyrights or proprietary or
trade secret rights.
2.3.2 IN OEM. Except as expressly provided below, OEM does not by this
Agreement grant to RSA any right, title or ownership interest in and to any
Interface Modifications created by OEM as may be authorized hereunder or any
related patents, copyrights or proprietary or trade secret rights of OEM;
provided, however, that OEM hereby agrees that it will not assert against RSA
any of such patents, copyrights or proprietary or trade secret rights with
respect to any ports or interfaces developed by RSA without reference to the
source code of OEM's Interface Modifications.
3. LICENSE FEES
3.1 LICENSE FEES. In consideration of RSA's grant to OEM of the limited
license rights hereunder, OEM shall pay to RSA the amounts set forth below (the
"License Fees"):
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
3.1.1 SOURCE CODE LICENSE FEES. If RSA is granting to OEM RSA Source
Code license rights as indicated on a License/Product Schedule, OEM shall pay to
RSA the source code License Fees specified on such License/Product Schedule upon
execution of such License/Product Schedule.
3.1.2 OBJECT CODE LICENSE FEES. In consideration of RSA's grant to OEM
of the RSA Object Code license rights for the Bundled Products described in each
License/Product Schedule, OEM shall pay to RSA the object code License Fees
specified on each such License/Product Schedule in accordance with the terms
contained therein.
3.2 TAXES. All taxes, duties, fees and other governmental charged of any
kind (including sales and use taxes, but excluding taxes based on the gross
revenues or net income of RSA) which are imposed by or under the authority of
any government or any political subdivision thereof on the License Fees or any
aspect of this Agreement shall be borne by OEM and shall not be considered a
part of a deduction form or an offset against License Fees.
3.3 PREPAYMENT OF LICENSE FEES. OEM shall prepay License Fees in the
amount set forth in a License/Product Schedule, if any, upon execution of the
License/Product Schedule. In no event shall such prepayment be refundable. If
OEM has prepaid License Fees with respect to a Bundled Product, all of such
prepaid amounts may be offset against License Fees accrued at a rate of [**] of
License Fees accrued until the prepayments are exhausted. OEM shall show the
application of prepaid License Fees in the licensing reports provided to RSA
pursuant to Section 3.7.
3.4 USE OF NET SALES PRICE. If a License Fee based on Net Sales Price is
specific in a License/Product Schedule, the "Net Sales Price" means the gross
amount of all cash, in-kind or other consideration receivable by OEM at any time
in consideration of the licensing or other distribution of the Bundled Products,
excluding any amounts receivable by OEM for sales and use taxes, shipping,
insurance and duties, and reduced by all discounts, refunds or allowances
granted in the ordinary course of business. For the purposes of determining Net
Sales Price, the amount of in-kind or other non-cash consideration receivable by
OEM shall be deemed to have a dollar value equal to the standard price (as
listed in OEM's published price schedule on the date of the grant of the license
or the sale in question) for such Bundled Product, less all cash paid.
3.5 TERMS OF PAYMENT. Object code License Fees payable on an on-going
basis shall accrue with respect to Bundled Products licensed or otherwise
distributed by OEM or Distributors, as applicable, upon the date of invoice of
the Bundled Product to an End User Customer or Distributor. License Fees due RSA
hereunder shall be paid by OEM to the attention of the Software Licensing
Department at RSA's address set forth above on or before the thirtieth (30) day
after the close of the calendar quarter during which the License Fees accrued. A
late payment penalty on any License Fees not paid when due shall be assessed at
the rate of one percent (1%) per thirty (30) days, beginning on the thirty-first
(31st) day after the last day of the calendar quarter to which the delayed
payment relates.
3.6 U.S. CURRENCY. All payments hereunder shall be made in lawful United
States currency and shall in no case be refundable. If OEM receives payment in
foreign currencies, the amount of its License Fees to RSA shall be calculated
using the closing exchange rate published in The Wall Street Journal, Western
Edition, on the last business day such journal is published in the calendar
quarter immediately preceding the date of payment.
3.7 LICENSING REPORT. A report in reasonably detailed form setting for the
calculation of License Fees due from OEM and signed by a responsible officer of
OEM shall be delivered to RSA on or before the thirtieth (30th) day after the
close of each calendar quarter during the term of this Agreement, regardless of
whether License Fee payments are required to be made pursuant to
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Section 3.5. The report shall include, at a minimum the following information
(if applicable to the method of calculating License Fees designated in a
License/Product Schedule) with respect to the relevant quarter: (i) the total
number of copies/units of Bundled Products licensed or otherwise distributed by
OEM and Distributors indicating the names and versions thereof); (ii) if
applicable, the total Net Sales Price invoiced to Distributors and End User
Customers; and (iii) total License Fees accrued.
3.8 AUDIT RIGHTS. RSA shall have the right, at is sole cost and expense,
to have an independent certified public accountant conduct during normal
business hours and not more frequently than annually, an audit of the
appropriate records of OEM to verify the number of copies/units of Bundled
Products licensed or otherwise distributed by OEM and OEM's calculation of
License Fees. If the License Fees accrued are different than those reported, OEM
will be invoiced or credited for the difference, as applicable. Any additional
License Fees, along with the late payment penalty assessed in accordance with
Section 3.5, shall be payable within thirty (30) days of such invoice. If the
deficiency in License Fees paid by OEM is greater than five percent (5%) of the
License Fees reported by OEM for any quarter, OEM will pay the reasonable
expenses associated with such audit. In addition to the deficiency.
3.9 EVALUATION COPIES. OEM may deliver copies of Bundled Products to
prospective End User Customers on a trial basis for evaluation purposes only
(each, an "Evaluation Copy") provided that each such prospective End User
Customer has received a written or electronic trial license prohibiting the End
User Customer from copying, modifying, reverse engineering, decompiling or
disassembling the RSA Object Code or any part thereof. All Evaluation Copies
licensed shall contain a feature which disables the Evaluation Copy no later
than sixty (60) days after delivery to the prospective End User Customer. No
License Fees shall be reportable or payable with respect to Evaluation Copies
unless and until the Evaluation Copy is replaced with or converted to a standard
Bundled Product or the End User Customer is invoiced for the Bundled Product,
whichever occurs first.
4. LIMITED WARRANTY
4.1 LIMITED WARRANTY. During the initial ninety (90)-day term of each
License/Product Schedule RSA warrants that the Licensed Software specified in
such License/Product Schedule will operate in material conformance to RSA's
published specifications for the Licensed Software. RSA does not warrant that
the RSA Software or any portion thereof is error-free. OEM's exclusive remedy,
and RSA's entire liability in tort, contract or otherwise, shall be correction
of any warranted nonconformity as provided in Section 4.2 below. This limited
warranty and any obligations of RSA hereunder shall not apply to any Interface
Modifications or any nonconformities caused thereby and shall terminate
immediately if OEM makes any modification to the RSA Software other than
Interface Modifications.
4.2 ERROR CORRECTION. In the event OEM discovers an error in the Licensed
Software which causes the Licensed Software not to operate in material
conformance to RSA's published specifications therefor, OEM shall submit to RSA
a written report describing such error in sufficient detail to permit RSA to
reproduce such error. Upon receipt of any such written report, RSA will use its
reasonable business judgment to classify a reported error as either (i) a "Level
1 Severity" error, meaning an error that causes the Licensed Software to fail to
operate in a material manner or to produce materially incorrect results and for
which there is not work around or only a difficult work around; or (ii) a "Level
2 Severity" error, meaning an error that produces a situation in which the
Licensed Software is usable but does not function in the most convenient or
expeditious manner, and the use or value of the Licensed Software suffers no
material impact. RSA will acknowledge receipt of a conforming error report
within two (2) business days and (A) will use its continuing best efforts to
provide a correction for any Level 1 Severity error to OEM as early as
practicable; and (B) will use its reasonable efforts to include a correction for
any Level 2 Severity error in the next release of the RSA Software.
4.3 DISCLAIMER EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN THIS
XXXXXXX 0, XXX XXX SOFTWARE IS PROVIDED "AS IS" WITHOUT ANY WARRANTY
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WHATSOEVER. RSA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO
ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. RSA
DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN OEM WITH
RESPECT TO THE RSA SOFTWARE. OEM SHALL NOT, AND SHALL TAKE ALL MEASURES
NECESSARY TO INSURE THAT ITS AGENTS AND EMPLOYEES DO NOT, MAKE OR PASS THROUGH
ANY SUCH WARRANTY ON BEHALF OF RSA TO ANY DISTRIBUTOR, END USER OR OTHER THIRD
PARTY.
5. ADDITIONAL OBLIGATIONS OF OEM
5.1 BUNDLED PRODUCT MARKETING. OEM is authorized to represent to
Distributors and End User Customers only such facts about the RSA Software as
RSA states in it published product descriptions, advertising and promotional
materials or as may be stated in other non-confidential written material
furnished by RSA.
5.2 CUSTOMER SUPPORT. OEM shall, at its expense, provide all support for
the Bundled Products to Distributors and End User Customers.
5.3 LICENSE AGREEMENTS. OEM shall cause to be delivered to each
Distributor and End User Customer a license agreement which shall contain, at a
minimum, substantially all of the limitations of rights and the protections for
RSA which are contained in Sections 2.2, 5.4, 7, 10.7 and 10.8 of this
Agreement. OEM shall use commercially reasonable efforts to enforce the terms of
such agreements.
5.4 PROPRIETARY RIGHTS.
5.4.1 COPYRIGHT NOTICES; LICENSEE SEALS. OEM agrees not to remove or
destroy and proprietary, trademark or copyright markings or notices placed upon
or contained within the RSA Source Code, Object Code, User Manuals or any
related materials or documentation. OEM further agrees to insert and maintain:
(i) within every Bundled Product and any related materials or documentation a
copyright notice in the name of OEM; and (ii) within the splash screens, user
documentation, printed product collateral, product packaging and advertisements
for the Bundled Product, the RSA "License Seal" from the form attached as
Exhibit "B" to this Agreement and a statement that the Bundled Product contains
the RSA Software.
5.4.2 TRADEMARKS. By reason of this Agreement or the performance
hereof, OEM shall acquire no rights of any kind in any RSA trademark, trade
name, logo or product designation under which the RSA Software was or is
marketed and OEM shall not make any use of the same for any reason except as
expressly authorized by this Agreement or otherwise authorized in writing by
RSA. OEM shall cease to use the markings, or any similar markings, in any manner
on the expiration or other termination of this Agreement.
6. CONFIDENTIALITY
6.1 CONFIDENTIALITY. Each party acknowledges that in its performance of
its duties hereunder, the other party may communicate to it (or its designees)
certain confidential and proprietary information of such party, including the
RSA Software (in the case of RSA) and know-how, technology, techniques, and
business, product, and marketing plans of each such party (collectively, the
"Know-How"), all of which are confidential and proprietary to, and trade secrets
of, the disclosing party. The receiving party agrees to hold the Know-How
disclosed to it and, in the case of OEM the RSA Software, within its own
organization and shall not, without the specific written consent of the
disclosing party or as expressly authorized herein, utilize in any manner,
published, communicate, or disclose any part of the disclosing party's Know-How
or the RSA Software (in the case of OEM) to third parties. This Section 6.1
shall impose no obligations on either party with respect to any Know-How which:
(i) is in the public domain at the time disclosed by the disclosing party; (ii)
enters the public domain after disclosure other than by a breach of the
receiving party's obligations hereunder or by a breach of another party's
confidentiality obligation; or (iii) is shown by documentary evidence to have
been known by the receiving party prior to its receipt from the disclosing
party. Each party will take
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
such steps as are consistent with its protection of its own confidential and
proprietary information (but will in no event exercise less than reasonable
care) to insure that the provisions of this Section 6.1 are not violated by its
End User Customers, Distributors, employees, agents or any other person.
6.2 SOURCE CODE. OEM acknowledges the extreme importance of the
confidentiality and trade secret status of the RSA Source Code and OEM agrees,
in addition to complying with the requirements of Section 6.1 as it relates to
the RSA Source Code to: (i) only use the RSA Source Code at the address set
forth on page 1 hereof or such alternate location specified in the applicable
License/Product Schedule; (ii) inform any employee that is granted access to all
or any portion of the RSA Source Code of the importance of preserving the
confidentiality and trade secret status of the RSA Source Code; and (iii)
maintain a controlled, secure environment for the storage and use of the RSA
Source Code.
6.3 PUBLICITY. Neither party will disclose to third parties, other than
its agents and representatives on a need to know basis, the terms of this
Agreement or any exhibits hereto (including without limitation any
License/Product Schedule) without the prior written consent of the other party,
except (i) either party may disclose such terms to the extent required by law:
(ii) either party may disclose the existence of this Agreement; and (iii) RSA
shall have the right to disclose that OEM is an OEM of the RSA Software and that
any publicly-announced Bundled Product incorporates the RSA Software.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES
ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST
PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES REGARDLESS OF WHETHER
ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR OTHERWISE: (I)
EXCEPT FOR RSA'S OBLIGATIONS ARISING UNDER SECTION 8, UNDER NO CIRCUMSTANCES
SHALL RSA'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED
THE TOTAL AMOUNT PAID BY OEM HEREUNDER, AND (II) EXCEPT FOR OEM'S LIABILITY
RESULTING FROM BREACH OF SECTIONS 2 AND 6. UNDER NO CIRCUMSTANCES SHALL OEM'S
TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED [**].
8. INTELLECTUAL PROPERTY INDEMNITY
8.1 DUTY TO DEFEND. RSA agrees that it shall, at its own expense, defend,
or at its option settle, any action instituted against OEM, and pay any award or
damages assessed or settled upon against OEM resulting from such action, insofar
as the same is based upon a claim that any Licensed Software used within the
terms of this Agreement and the applicable License/Product Schedule infringes
any United States patent, copyright or trade secret or a claim that RSA has no
right to license the Licensed Software hereunder, provided that OEM gives RSA:
(i) prompt notice in writing of such action, (ii) the right to control and
direct the investigation, preparation, defense and settlement of the action; and
(iii) reasonable assistance and information.
8.2 RSA OPTIONS. If, as a result of any binding settlement among the
parties or a final determination by a court of competent jurisdiction, any of
the Licensed Software is held to infringe and its use in enjoyed, or if RSA
reasonably determines in its sole discretion that the Licensed Software may
become subject to an injunction, RSA shall have the option to: (i) obtain the
right to continue use of the Licensed Software; (ii) replace or modify the
Licensed Software so that it is no longer infringing; or (iii) refund the
License Fees paid by OEM hereunder less depreciation for use
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assuming straight line depreciation over a five (5) year useful life and
terminate the Agreement.
8.3 EXCLUSIONS. Notwithstanding the foregoing, RSA shall have no liability
under this Section 8 if the alleged infringement arises from (i) the use, in the
manner specified in the relevant User Manual, of other than the current
unaltered (including Interface Modifications) release of the Licensed Software,
or (ii) combination of the Licensed Software with other equipment or software
not provided by RSA, if such action would have been avoided but for such use or
combination.
8.4 EXCLUSIVE REMEDY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, THE FOREGOING STATES RSA'S ENTIRE LIABILITY AND OEM'S EXCLUSIVE
REMEDY FOR PROPRIETARY RIGHTS INFRINGEMENT.
9. TERM AND TERMINATION
9.1 TERM. The license rights granted hereunder shall be effective with
respect to each License/Product Schedule as of the date thereof and shall
continue in full force and effect for each item of Licensed Software for the
period set forth on the applicable License/Product Schedule unless sooner
terminated pursuant to the terms of this Agreement.
9.2 TERMINATION. Either party shall be entitled to terminate this
Agreement at any time on written notice to the other in the event of a material
default by the other party and a failure to cure such default within a period of
thirty (30) days following receipt of written notice specifying that a default
has occurred.
9.3 INSOLVENCY. Upon (i) the institution of any proceedings by or against
either party seeking relief, reorganization or arrangement under any laws
relating to insolvency, which proceeding are not dismissed within sixty (60)
days; (iii) the assignment for the benefit of creditors, or the appointment of a
receiver, liquidator or trustee, of any of either party's property or assets; or
(iii) the liquidation, dissolution or winding up of either party's business;
then and in any such events this Agreement may immediately be terminated by the
other party upon written notice.
9.4 TERMINATION FOR CONVENIENCE. The parties acknowledge and agree that
OEM may at any time delay, interrupt or cease use of the Licensed Software, but
this Agreement and all the terms and conditions contained herein or any
applicable License/Product Schedule shall continue in full force, including any
obligations to make quarterly reports. OEM may elect to terminate this Agreement
upon ninety (90) days written notice and it is expressly understood that such
termination shall not discharge any payment obligations accrued as of the date
of such termination or entitle OEM to a refund of any amounts previously paid to
RSA.
9.5 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement (or the license rights under a particular License/Product Schedule).
OEM shall cease making copies of using or licensing the RSA Software, User
Manual and Bundled Products, excepting only such copies of Bundled Products
necessary to fill orders placed with OEM prior to such expiration or
termination. OEM shall destroy all copies of the RSA Software User Manual and
Bundled Products not subject to any then-effective license agreement with an End
User Customer and all information and documentation provided by RSA to OEM
(including all Know-How), other than such copies of the RSA Object Code, the
User Manual and the Bundled Products as are necessary to enable OEM to perform
its continuing support obligations in accordance with Section 5.2, if any.
Notwithstanding the foregoing, if OEM has licensed RSA Source Code hereunder,
for a period of one (1) year after the date of expiration or termination of the
license rights granted under this Agreement for any reason other than as a
result of default or breach by OEM. OEM may retain one (1) copy of the RSA
Source Code and is hereby licensed for such term to use such copy solely for the
purpose of supporting End User Customers. Upon the expiration of such one (1)
year period, OEM shall return such single copy of the RSA Source Code to RSA or
certify to RSA that the same has been destroyed. Any expiration or termination
shall not discharge any obligation to pay License Fees which have accrued or are
owing
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as of the effective date of such expiration or termination.
9.6 SURVIVAL OF CERTAIN TERMS. The following provisions shall survive any
expiration or termination: 2.2, 2.3, 3.8, 4.3, 6, 7, 9 and 10.
10. MISCELLANEOUS PROVISIONS
10.1 GOVERNING LAW AND JURISDICTION. This Agreement will be governed by and
constructed in accordance with the laws of the State of California, irrespective
of its choice of law principles. All disputes arising out of this Agreement will
be subject to the exclusive jurisdiction and venue of the California state
courts and the United States District Court for the Northern District of
California, and the parties consent to the personal and exclusive jurisdiction
of these courts. The parties agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this Agreement.
10.2 BINDING UPON SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, this Agreement shall be binding upon, and inure to the benefit of, the
successors, representatives, administrators and assigns of the parties hereto.
Notwithstanding the generality of the foregoing, this Agreement shall not be
assignable by OEM, by operation of law or otherwise, without the prior written
consent of RSA, which shall not be unreasonably withheld; provided, however,
that RSA may withhold its consent to the assignment of this Agreement with
respect to any License/Product Schedule providing for a paid-up License Fee. Any
such purported assignment or delegation without RSA's written consent shall be
void and of no effect.
10.3 SEVERABILITY. If any provision of this Agreement is found to be
invalid or unenforceable, such provision shall be severed from the Agreement and
the remainder of this Agreement shall be interpreted so as best to reasonably
effect the intent of the parties hereto. It is expressly understood and agreed
that each and every provision of this Agreement is intended by the parties to be
severable and independent of any other provision and to be enforced as such.
10.4 ENTIRE AGREEMENT. This Agreement and the exhibits and schedules hereto
constitute the entire understanding and agreement of the parties hereto with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements, representations and understandings between the parties.
10.5 AMENDMENT AND WAIVERS. Any term or provision of this Agreement may be
amended, and the observance of any term of this Agreement may be waived only by
a writing signed by the party to be bound.
10.6 NOTICES. Any notice, demand, or request with respect to this Agreement
shall be in writing and shall be effective only if its is delivered by hand or
mailed, certified or registered mail, postage prepaid, return receipt requested,
addressed to the appropriate party at its address set forth on page 1. Such
communications shall be effective when they are received by the addressee; but
if sent by certified or registered mail in the manner set forth above, they
shall be effective not later than ten (10) days after deposited in the mail. Any
party may change its address for such communications by giving notice to the
other party in conformity with this Section.
10.7 EXPORT COMPLIANCE AND FOREIGN RESHIPMENT LIABILITY. THIS AGREEMENT IS
EXPRESSLY MADE SUBJECT TO ANY LAWS,REGULATIONS, ORDERS OR OTHER RESTRICTIONS ON
THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE RSA SOFTWARE OR BUNDLED
PRODUCTS OR OF INFORMATION ABOUT THE RSA SOFTWARE OR BUNDLED PRODUCTS WHICH MAY
BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, OEM SHALL
NOT EXPORT OR REEXPORT, DIRECTLY OR INDIRECTLY, ANY RSA SOFTWARE OR BUNDLED
PRODUCTS OR INFORMATION PERTAINING THERETO TO ANY COUNTRY TO WHICH SUCH EXPORT
OR REEXPORT IS RESTRICTED OR PROHIBITED, OR AS TO WHICH SUCH GOVERNMENT OR ANY
AGENCY THEREOF REQUIRES AN EXPORT LICENSE OR OTHER GOVERNMENTAL APPROVAL AT THE
TIME OF EXPORT OR
-9-
10
REEXPORT WITHOUT FIRST OBTAINING SUCH LICENSE OR APPROVAL.
10.8 FEDERAL GOVERNMENT LICENSE. OEM and each of OEM's Distributors shall
in all proposals and agreements with the United States government or any
contractor of the United States government identify and license the Bundled
Product, including the RSA Object Code incorporated therein, as follows: (i) for
acquisition by or on behalf of civilian agencies, as necessary to obtain
protection as "commercial computer software" and related documentation in
accordance with the terms of OEM's or such Distributor's customary license, as
specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its
successor regulations; or (ii) for acquisition by or on behalf of units of the
Department of Defense, as necessary to obtain protection as "commercial computer
software" as defined in 48 C.F.R. 227.7014(a)(l) of the Department of Defense
Federal Acquisition Regulation Supplement (DFARS) and related documentation in
accordance with the terms of OEM's or such Distributor's customary license, as
specified in 48 C.F.R. 227.7202.1 of DFARS and its successor regulations.
10.9 REMEDIES NON-EXCLUSIVE. Except as otherwise expressly provided, any
remedy provided for in this Agreement is deemed cumulative with, and not
exclusive of, any other remedy provided for in this Agreement or otherwise
available at law or in equity. The exercise by a party of any remedy shall not
preclude the exercise by such party of any other remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the data
of the last signature below.
OEM:
SILVERSTREAM SOFTWARE, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------
Printed Name: Xxxxx Xxxxx
-----------------------
Title: Chief Financial Officer
------------------------------
Date: September 30, 1997
-------------------------------
RSA DATA SECURITY, INC.
By: /s/ D. Xxxxx Xxxxxx
----------------------------------
Printed Name:Xxxxx Xxxxxx
------------------------
Title: President
-------------------------------
Date: 9/30/97
--------------------------------
-10-
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License/Product Schedule Number: 0997-SIL-0-LPS-1
----------------
EXHIBIT "A"
LICENSE/PRODUCT SCHEDULE
OEM:
SilverStream Software, Inc.
----------------------------------------------
OEM Master License Agreement Number:
0997-SIL-O-MLA-1
----------------------------------------------
Date of OEM Master License Agreement:
September 30, 1997
----------------------------------------------
This License/Product Schedule Amends Schedules
Dated: N/A
----------------------------------------------
Term of Agreement for this Bundled Product:
Perpetual
----------------------------------------------
Bundled Projects:
OEM'S JAVA-BASED WEB APPLICATION DEVELOPMENT ENVIRONMENT FOR INTERNET, INTRANET
AND EXTRANET APPLICATIONS THAT ACCESS EXISTING RELATIONAL DATABASES, CONSISTING
OF THE MULTI-USER SILVERSTREAM SERVER WHICH IS LICENSED BY OEM EITHER AS PART OF
OEM'S "GROUP STARTER PACK" FOR GROUP DEVELOPMENT OR AS OEM'S "SERVER PACK" FOR
DEPLOYMENT (THE "SERVER BUNDLED PRODUCT") AND THE SINGLE-USER STANDALONE
SILVERSTREAM SERVER WHICH IS LICENSED BY OEM AS PART OF OEM'S "SINGLE USER
STARTER PACK" (THE "SINGLE-USER BUNDLED PROJECT").
RSA Software:
BSAFE v. 3.0 for Windows
----------------------------------------------
OEM may obtain copies of the RSA Software on other platforms as may be generally
available at RSA's then current published list price, each additional platform
version of which will be covered RSA Software under this License/Product
Schedule.
Delivery of RSA Software to OEM:
-------------------------------
One (1) copy of each of the RSA Object Code, the RSA Source Code (if licensed
hereunder) and the User Manual for the RSA Software identified above:
[ ] has been received by OEM, or
[X] will be delivered by RSA as soon as practicable, but not later than
ten (10) business days after the date of execution of this License/Product
Schedule.
-11-
12
LICENSED SOFTWARE AND FIELD OF USE RESTRICTION FOR THIS BUNDLED PRODUCT
-----------------------------------------------------------------------
RIGHT TO
INCLUDE
SOURCE OBJECT CODE FIELD OF DESCRIBE
CODE IN BUNDLED USE FIELD OF USE
LICENSE PRODUCT RESTRICTION RESTRICTION
BSAFE YES NO YES NO YES NO
RSA Public Key Cryptosystem [ ] [X] [X] [ ] [X] [ ] *
Xxxxxx-Xxxxxxx Key Negotiation [ ] [X] [ ] [X] [ ] [ ]
Xxxxx-Xxxxxx Secret Sharing [ ] [X] [ ] [X] [ ] [ ]
Data Encryption Standard (DES) [ ] [X] [X] [ ] [X] [ ] *
Extended Data Encryption [ ] [X] [ ] [X] [ ] [ ]
Standard (DESX)
Triple DES (3DES) [ ] [X] [X] [ ] [X] [ ] *
RC2 Variable-Key Size [ ] [X] [ ] [X] [ ] [ ]
Symmetric Block Cipher
RC4 Variable-Key Size [ ] [X] [X] [ ] [X] [ ] *
Symmetric Stream Cipher
RC5 Variable-Key Size [ ] [X] [ ] [X] [ ] [ ]
Symmetric Block Cipher
MD Hashing Algorithm [ ] [X] [ ] [X] [ ] [ ]
MD2 Hashing Algorithm [ ] [X] [X] [ ] [X] [ ] *
MD5 Hashing Algorithm [ ] [X] [X] [ ] [X] [ ] *
Secure Hashing Algorithm (SHA) [ ] [X] [X] [ ] [X] [ ] *
Digital Signature Algorithm [ ] [X] [ ] [X] [ ] [ ]
(DSA)
TIPEM (all set forth below) [ ] [X] [ ] [X] [ ] [ ]
RSA Public Key Cryptosystem
Data Encryption Standard (DES)
RC2 Variable Key Size
Symmetric Block Cipher
MD2 Hashing Algorithm
MD5 Hashing Algorithm
BCERT [ ] [X] [ ] [X] [ ] [ ]
--------------------------------------
* Strictly for privacy and authentication of data within the Bundled Product
(including implementation of SSL) between the Server Bundled Product or the
Single-User Bundled Product and off-the-shelf Web browser clients.
-12-
13
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
LICENSE AND MAINTENANCE FEES
----------------------------
Source Code License Fee for this License/product Schedule: N/A
---------------------------------------------------------
Object Code License Fees for this License/Product Schedule:
----------------------------------------------------------
For the Server Bundled Product:
Percentage of Net Sales Price License Fee: [**] per copy/unit of the Server
Bundled Product licensed or otherwise distributed by or for OEM.
For the Single-User Bundled Product:
Percentage of Net Sales Price License Fee: [**] per copy/unit of the
Single-User Bundled Product licensed or otherwise distributed by or for
OEM.
Prepayment of License Fees under this License/Product Schedule:
--------------------------------------------------------------
[**] payable as follows:
[**] upon execution of this License/Product Schedule; and [**] within sixty
(60) days after execution of this License/Product Schedule.
Present Annual Maintenance Fee for this License/product Schedule:
----------------------------------------------------------------
[**]
SPECIAL TERMS AND CONDITIONS
----------------------------
The following Special Terms and Conditions shall apply to the Bundled Product
covered by this License/Product Schedule:
1. DISTRIBUTION MODEL. The parties acknowledge and agree that the Bundled
Product is a development environment and that OEm's distribution channel for the
Bundled Product will include distribution through OEM's VAR partners, [**], who
will license the Server Bundled Product through a shrinkwrap agreement with OEM,
for the purpose of customizing and deploying the Server Bundled Product for a
specific End User Customer application (collectively, "VARs"). RSA agrees that
the last sentence of Section 1.2 of the Agreement shall not prevent OEM from
distributing the Server Bundled Product in the manner set forth above, so long
as VARs are not embedding or similarly modifying the Server Bundled Product (in
which case paragraph 3, below, shall apply to such activities) and so long as
VARs are prohibited from modifying the Licensed Software. RSA and OEM
specifically agree that VARs may add value to the Server Bundled Product through
their consulting, training and integrating services.
2. INTERNAL USE. RSA agrees that Section 1.3 of the Agreement does not prevent
an End User Customer from using the Bundled Product to create and use in the
operation of its own business Web-based applications for the Internet and
extranets.
3. LIMITED RIGHTS TO SUBLICENSE.
x. XXXXX OF RIGHTS. Notwithstanding the provisions of Section 2.2.1 of
the Agreement, RSA and OEM acknowledge and agree that OEM may sublicense its
rights with respect to the Server Bundled Product to Independent Software
Vendors (ISVs) and similar resellers in the Territory (each, an "OEM
Sublicensee") for the purpose of integrating and embedding the Server Bundled
Product into their own products in which substantial functionality and value is
added to the Bundled Product (collectively, "Sublicensee Products").
b. CONDITIONS OF GRANT. All sublicenses permitted under this paragraph
shall be subject to all of the following conditions: (i) all such sublicenses
will be granted in a signed writing containing at a minimum all of the
restrictions set forth in Exhibit "A-1" attached hereto, and RSA shall be an
express third party beneficiary of such sublicense agreements; (ii) OEM shall
use its best efforts to enforce the provisions of such sublicenses
-13-
14
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
as they relate to RSA and the RSA Software; (iii) the Sublicensee Products shall
include substantial added function and value on top of the Bundled Product; (iv)
the OEM Sublicensees shall not be permitted to directly access the API of the
Licensed Software nor expose the API to End User Customers or to software
products other than the Sublicensee Products; (v) the OEM Sublicensees to whom
such rights are sublicensed shall have no further right to sublicense such
rights; and (vi) any rights of any OEM Sublicensee sublicensed by OEM shall
survive only so long as both this License/Product Schedule and the sublicense
between OEM and such OEM Sublicensee remain in effect; provided, however, that
if the Agreement of this License/Product Schedule is terminated, each sublicense
agreement with an OEM Sublicensee shall survive for a period of three (3) months
following the effective date of such termination and, at the written request of
any OEM Sublicensee, RSA will during such three (3)-month period negotiate with
such OEM Sublicensee for a license to use the Licensed Software in the
applicable Sublicensee Product. The foregoing shall not be construed as an
obligation on the part of RSA to enter into a license agreement with any
particular OEM Sublicensee or to enter into a license agreement on any
particular terms.
c. SUBLICENSE FEES AND REPORTING. On or before the date that OEM grants
any sublicense hereunder, OEM shall submit to RSA an Exhibit "A" Extension in
the form attached as Exhibit "A-2" for the applicable OEM Sublicensee. OEM shall
prepay License Fees in the amount of [**] for each OEM Sublicensee at the time
OEM submits the Exhibit "A" Extension for the applicable OEM Sublicensee. OEM
shall make its first prepayment of License Fees and submit its first Exhibit "A"
Extension to RSA upon execution of this License/Product Schedule. OEM shall
report to RSA in its reports delivered pursuant to Section 3.7 of the Agreement
the number of copies of Sublicensee Products which are distributed by each OEM
Sublicensee and OEM's Net Sales Price with respect thereto, and shall pay RSA
License Fees pursuant to Section 3.5 of the Agreement based on such Net Sales
Price and/or number of copies distributed, as applicable, applying a percentage
of Net Sales Price of [**] and a per copy/unit minimum License Fees of [**]. OEM
shall separately show the application of prepaid license fees for OEM and for
each OEM Sublicensee in the reports provided to RSA pursuant to Section 3.7 of
the Agreement.
4. SERVICE BUSINESS. The second sentence of Section 2.2.3 of the Agreement
shall not apply to the Bundled Products covered by this License/Product
Schedule.
5. TITLE IN OEM. The word "related" in the first sentence of Section 2.3.2 of
the Agreement is hereby deleted.
6. NOTICE OF AUDIT. RSA shall give OEM ten (10) days' prior notice of its
intention to conduct an audit as provided for in Section 3.8 of the Agreement.
7. EVALUATION COPIES. With respect to the Bundled Products covered by this
License/Product Schedule, the second sentence of Section 3.9 of the Agreement is
amended in its entirety to read as follows: "All Evaluation Copies licensed (i)
shall contain a feature which disables the Evaluation Copy no later than ninety
(90) days after the first installation of the Evaluation Copy by the prospective
End User Customer, or (ii) in the case of up to a maximum of two hundred (200)
copies in any calendar year delivered only to major consulting businesses who
have signed OEM's VAR Partner agreement, shall contain a feature which disables
the Evaluation Copy on the earlier of the next June 30 or the next December 31."
8. LICENSEE SEAL. Notwithstanding the provisions of Section 5.4.1 (ii) of the
Agreement regarding display of the RSA Licensee Seal in all advertising for the
Bundled Products, OEM shall be required to display the RSA Licensee Seal with
respect to the Bundled Products covered by this License/Product Schedule only in
printed advertising and wherever practicable.
-14-
15
9. REIMBURSEMENT OF EXPENSES. Section 8.1 of the Agreement is amended by
adding the following at the end thereof: "RSA agrees that it will reimburse
OEM's reasonable out-of-pocket expenses in responding to any claim as to which
RSA has, or may have, an obligation under this Section 8.1 which expenses are
incurred after OEM has notified RSA of the claim but prior to RSA's assuming the
control of the investigation, preparation, defense and settlement of the claim."
10. REPLACEMENT/MODIFIED SOFTWARE. Section 8.2 of the Agreement is amended in
subpart (ii) thereof by adding the following at the end: ". . . but suffers no
material diminution of its functionality or performance."
11. EFFECT OF TERMINATION. Section 9.5 of the Agreement is amended by adding
the following after the first sentence: "Any license agreements with End User
Customers for the Bundled Product entered into prior to the effective date of
termination of this Agreement shall survive such termination in accordance with
their terms."
12. JOINT PRESS RELEASE. As soon as practicable after the announcement of the
Bundled Product, OEM and RSA will issue a joint press release which will
emphasize the security aspects of the Bundled Product.
THE PROVISIONS OF THIS LICENSE/PRODUCT SCHEDULE ARE PROVIDED AS A BASIS OF
DISCUSSION BETWEEN OEM AND RSA AND WILL BECOME BINDING UPON THE PARTIES ONLY IF
(1) OEM HAS EXECUTED AN OEM MASTER LICENSE AGREEMENT AND HAS INDICATED ITS
ACCEPTANCE OF THE TERMS CONTAINED IN THIS LICENSE/PRODUCT SCHEDULE BY SIGNING
BELOW ON OR BEFORE SEPTEMBER 30, 1997 AND (2) RSA HAS EXECUTED THE OEM MASTER
LICENSE AGREEMENT AND THIS LICENSE/PRODUCT SCHEDULE.
OEM:
SILVERSTREAM SOFTWARE, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------------
Printed Name: Xxxxx Xxxxx
----------------------------
Title: Chief Financial Officer
-----------------------------------
Date: September 30, 1997
------------------------------------
RSA DATA SECURITY, INC.
By: /s/ D. Xxxxx Xxxxxx
---------------------------------------
Printed Name:Xxxxx Xxxxxx
-----------------------------
Title: President
------------------------------------
Date: 9/30/97
-------------------------------------
-15-
16
EXHIBIT "A-1"
MANDATORY SUBLICENSE TERMS
All sublicense agreements for the Server Bundled Product by OEM to OEM
Sublicenses will include all of the following restrictions:
I. The OEM Sublicense will receive no greater rights with respect to the
Server Bundled Product than those permitted in Sections 2.1.2 and 2.1.3 of the
Agreement as limited by Section 2.2 of the Agreement.
II. The OEM Sublicense will agree not to remove or destroy any proprietary,
trademark or copyright markings or confidentiality legends placed upon or
contained within the Server Bundled Product or any related materials or
documentation and will comply with Section 5.4.1(ii) of the Agreement as amended
by this License/Product Schedule.
III. If applicable, the OEM Sublicense will agree that any license of the
Sublicense Product to the United States Government or an agency thereof will
state that such software and related documentation is "commercial computer
software" as that term is defined for purposes of the Federal Acquisition
Regulations (FARs) or the Department of Defense Federal Acquisition Regulations
Supplement (DFARS), as applicable, then in effect.
IV. The OEM Sublicense will agree not to export or reexport any Sublicensee
Product or any part thereof or information pertaining thereto to any country for
which a U.S. government agency requires an export license or other governmental
approval without first obtaining such license or approval.
V. The OEM Sublicensee will agree that, except for the limited licenses
granted under the sublicense agreement, OEM and its licensors will retain full
and exclusive right, title and ownership interest in and to the Server Bundled
Product and in any and all related patents, trademarks, copyrights or
proprietary or trade secret rights.
VI. OEM will have the right to terminate the sublicense agreement for the OEM
Sublicensee's breach of a material term. The OEM Sublicense will agree that,
upon termination of the license, the OEM Sublicensee will return to OEM all
copies of the object code and documentation for the Server Bundled Project or
certify to OEM that the OEM Sublicensee has destroyed all such copies, except
that the OEM Sublicensee may retain one (1) copy of the object code for the
Server Bundled Product solely for the purpose of supporting the OEM
Sublicensee's existing licensees.
VII. The OEM Sublicensee will agree not to reverse engineer, decompile,
dissemble or modify the Server Bundled Product.
VIII. The OEM Sublicenses will agree not to distribute the Sublicense Product or
any part thereof except pursuant to a license agreement meeting the requirements
in Section 5.3 of the Agreement.
IX. The sublicense agreement will state that in no event will OEM or its
licensors be liable for indirect, incidental, special, consequential or
exemplary damages arising out of or related to the Server Bundled Product,
including but not limited to lost profits, business interruption or loss of
business information, even if such party has been advised of the possibility of
such damages.
-16-
17
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
Exhibit A Extension Number: ___________________________
Date of this Exhibit A Extension: _____________________
EXHIBIT "A-2"
EXHIBIT A (LICENSE/PRODUCT SCHEDULE) EXTENSION
OEM:
SilverStream Software, Inc.
--------------------------------------------------------------------------------
OEM Master License Agreement Number:
0997-SIL-O-MLA-1
--------------------------------------------------------------------------------
Date of OEM Master License Agreement:
September 30, 1997
--------------------------------------------------------------------------------
This Extension Extends License/Product Schedule Number:
0997-SIL-O-LPS-1
--------------------------------------------------------------------------------
Name and Jurisdiction of Incorporation of OEM Sublicensee:
--------------------------------------------------------------------------------
Sublicensee Product which Incorporates Bundled Product:
--------------------------------------------------------------------------------
Sublicense Fee:
[**]
--------------------------------------------------------------------------------
OEM:
SILVERSTREAM SOFTWARE, INC.
By: Xxxxx Xxxxx
------------------------------------------------
Printed Name: Xxxxx Xxxxx
--------------------------------------
Title Vice President and Chief Financial Officer
----------------------------------------------
-17-
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EXHIBIT "B"
LICENSEE SEALS AND TRADEMARKS
RSA Licensee Seal:
[The graphic depicts a seal in the shape of a rectangle
with the text GENUINE RSA]
Licenses are also permitted to use the following RSA trademarks, as applicable,
in ads, product packaging, documentation or collateral materials, provided that
they use the correct trademark designator, depicted below, and identify RSA as
the owner of the xxxx.
RCA(R) Symmetric Block Cipher, RC4(R) Symmetric Stream Cipher
RC5(TM) Symmetric Block Cipher,
BSAFE(TM), TIPEM(TM)
RSA Public Key Cryptosystem(TM)
MD(TM), MD2(TM), MD5(TM)
RSA reserves the right to update this Exhibit "B" from time to time upon
reasonable notice to licensee.
-18-
19
AMENDMENT NUMBER ONE TO RSA DATA SECURITY
OEM MASTER LICENSE AGREEMENT
This Amendment Number One ("Amendment") to the RSA DATA SECURITY OEM MASTER
LICENSE AGREEMENT ("Agreement"), effective as of the later date of execution
("Effective Date"), is entered into by and between RSA Data Security, Inc.
("RSA") and Silverstream Software, Inc. ("OEM").
RSA and OEM entered into the Agreement on September 30, 1997. RSA and OEM
now wish to amend the Agreement. In consideration of the foregoing and the
mutual promises and covenants hereinafter set forth, the parties agree as
follows:
1. Section 1 of the Agreement, DEFINITIONS, is hereby modified by adding
Subsections 1.16 and 1.17 as follows:
1.16 "Licensed Application Services" means one or more services including
an application provided by an Application Service Provider Sublicensee
("ASP") and which uses or is supported by the Server Bundled Products.
1.17 "Service Revenue" means the gross amount of all cash, in-kind or other
consideration receivable by OEM at any time in consideration for an
ASP's Licensed Application Services, whether as use, transaction,
subscription, or service fees, or any comparable fees based on or
involving the use of the Licensed Application Services. For the
purpose of determining Service Revenue, the amount of in-kind or other
non-cash consideration receivable by OEM shall be deemed to have a
dollar value equal to the standard price (as listed in ASP's
published schedule on the date the Licensed Service is provided) for
the Licensed Service, less all cash paid.
2. Capitalized terms used and not otherwise defined in this Amendment shall
have the meanings designated in the Agreement.
3. Section 3a of Exhibit A to the Agreement (License and Maintenance Fees),
GRANT OF RIGHTS, is hereby amended by the following sentence to the end of
such section:
"Notwithstanding the foregoing, OEM may sublicense its rights to ASPs
solely for the use of Licensed Application Services."
20
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
4. Section 3c of Exhibit A to the Agreement (License and Maintenance Fees),
SUBLICENSE FEES AND REPORTING, is hereby amended by deleting the second,
third and fourth sentence of such section and replacing them with the
following:
"OEM shall pre-pay a one-time License Fee of [**] for all OEM Sublicenses
during the term of this Agreement. [**] of such payment shall be due upon
execution of this Amendment. The remaining [**] shall be due no later than
sixty (60) days after the execution date of the last party to sign this
Amendment. OEM shall report to RSA in its reports delivered pursuant to
Section 3.7 of the Agreement the number of copies of Sublicensee Products
which are distributed or utilized as a Licensed Service by each OEM
Sublicensee and OEM's Net Sales Price or OEM's Service Revenue generated
with respect thereto. OEM shall pay RSA license fees pursuant to Section
3.5 of the Agreement based upon (a) Net Sales Price and/or number of copies
distributed, as applicable by ISVs, applying a percentage of Net Sales
Prices of [**] per copy/unit minimum license fees of [**], and (b) Service
Revenue generated by ASPs, applying a percentage of Service Revenue of [**]
(collectively the "License Fees")."
5. Exhibit A to the Agreement (License and Maintenance Fees) is further
modified by adding to the end of "PREPAYMENT OF LICENSE FEES UNDER THIS
LICENSE/PRODUCT SCHEDULE" the following:
o and [**] payable in accordance with Paragraph number 4 of this
Amendment.
6. Section 3.3 of the Agreement, PREPAYMENT OF LICENSE FEES, is hereby amended
by deleting the third sentence in its entirety and replacing it with the
following:
"Any and all of OEM's prepaid License Fees with respect to a Bundled
Product may be offset against License Fees at a rate of [**] for each
dollar of License Fees accrued until the prepayments are exhausted."
7. Exhibit A, LICENSE/PRODUCT SCHEDULE, is hereby amended by modifying the
title "Bundled Products" to "Bundled Products/Licensed Application
Services" and adding the following to the end of the first full paragraph:
"Bundled Products may be used as Licensed Application Services by OEM
Sublicensees."
-2-
21
8. The "Maintenance and Support Agreement" Exhibit to the Agreement, dated
September 30, 1997, is hereby superceded in its entirety with the "Support
Agreement" attached to this Amendment and incorporated herein.
IN WITNESS WHEREOF, the parties have caused this Amendment and the attached
Support Agreement to be executed by their duly authorized representatives.
Silverstream Software, Inc. RSA Data Security, Inc.
By: /s/ Xxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxxxxx
------------------------ -------------------------------
Printed Name: Xxxxx Xxxxx Printed Name: Xxxx X. Xxxxxxxxxx
-------------- ---------------------
Title: CFO Title: VP, Finance & Admin.
--------------------- ----------------------------
Date: 30 June 1999 Date: 6/30/99
--------------------- ----------------------------
SILVERSTREAM LEGAL APPROVED
[ILLEGIBLE] 6/30/99
-3-
22
EXHIBIT A
---------
RSA'S YEAR 2000 READINESS DISCLOSURE
THE YEAR 2000 ISSUE
Application developers and end users are concerned with how their software will
handle the date change to the year 2000. In general, software applications that
rely only on the last two digits of the current date field may behave
erratically in the next century.
As the leader in cryprographic software development components with code
incorporated into hundreds of applications, some of which have date
dependencies, on nearly 400 million systems worldwide, RSA is frequently asked
about how RSA products will handle the Year 2000 date change and what assurances
RSA can provide to software developers.
It is important to note that RSA software only accounts for a portion of any
particular application, and that those applications may introduce Year 2000
problems independent of the RSA code included in that application. Moreover,
those applications may rely on the underlying platform and operating system for
time and date services, which may introduce their own Year 2000 problems, such
that the behavior of an application may be entirely platform dependent.
Therefore, while RSA can make statements about its own software components, Year
2000 problems may arise independent of the RSA code in any applications that use
RSA security components.
RSA'S YEAR 2000 READINESS EFFORT
The Year 2000 compliance plan is divided into the following phases:
1. Inventory phase, in which the RSA identifies all products and systems which
are created or used by RSA in the course of its operations;
2. Analysis phase, in which RSA determines what, if any, Year 2000 Operability
issues may exist with respect to any product or system;
3. Solution development phase, in which RSA designs and/or obtains from
third-party vendors methods to correct any Year 2000 Operability issues
which were identified in the prior phase; and
4. Implementation phase, in which RSA deploys solutions for the identified
problems.
-4-
23
RSA SECURITY COMPONENTS AND THE YEAR 2000
RSA's most widely used software development components, RSA BSAFE(R) Crypto-C
and RSA BSAFE(R) Crypto-J, do not invoke time and date services and so are not
inherently susceptible to Year 2000 problems.
The RSA components that perform certificate services, namely BCBRT(TM)
TIPEM(TM) RSA BSAFE(R) Com-C, RSA BSAFE(R) S/MIME-C, RSA BSAFE(R) SSL-J
and RSA BSAFE(R) SSL-C include time and date routines to date stamp and
check the validity of certificates within an application. These RSA
security components rely on the underlying operating system services to
provide the GMT date and time information to the application. The X509
certificate standard requires that only the last two digits of the year be
encoded into the date fields within the certificate. The comparisons of
date fields to check the certificate validity are done inside the security
component. Currently, RSA has assumed that no digital certificates were
issued before the year 1970, and that any two-digit year field less than 70
is correctly accounted for within the application as being from the next
century. Implementation of future certificate standards shall specify a
cut-off date of 1950 for two-digit year fields, and all future RSA releases
shall conform to that standard, specifying 2049 as the maximum two-digit
value. Those standards shall also allow for four-digit year fields, so that
standards-compliant certificates issued in the future can be decoded with
complete certainty.
The information here is designated a "Year 2000 Readiness Disclosure" pursuant
to the Year 2000 Information and Readiness Disclosure Act, Public Law 105-271.
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