Exhibit 10.17
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EIGHTH AMENDMENT TO PROGRESS SOFTWARE APPLICATION PARTNER AGREEMENT
EIGHTH AMENDMENT to the Progress Software Corporation Application Partner
Agreement is effective as of the 27th day of November, 2002 ("Effective Date"),
by and between Progress Software Corporation, a Massachusetts corporation with
its principal place of business at 00 Xxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
("PSC") and RSA Security Inc. (formerly known as Security Dynamics Inc.), a
Delaware corporation with its principal place of business at 000 Xxxxxxxxx
Xxxxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 ("RSA").
WHEREAS, PSC and RSA entered into a Progress Software Application
Partner Agreement effective as of December 5, 1994 (the "Agreement"); and
WHEREAS, PSC and RSA previously amended the Agreement by entering into
the Progress Software Application Partner Agreement Addendum effective as of
December 5, 1994 (the "Addendum") and a subsequent amendment to the Agreement
dated as of October 19, 1995 (the "Amendment");
WHEREAS, PSC and RSA entered into a Second Amendment to the Agreement
dated as of November 29, 1995 (the "Second Amendment") which completely
superseded the terms and conditions of the earlier Addendum and Amendment and
specified new special pricing and distribution terms and conditions in an
Attachment A relating to certain PSC products distributed by RSA or RSA's
distributors in conjunction with RSA's PROGRESS(R)-based applications; and
WHEREAS, PSC and RSA entered into a Third Amendment to the Agreement
dated as of November 15, 1996 (the "Third Amendment") specifying certain
additional modifications to the terms and conditions of the Agreement and
replacing the Attachment A incorporated by reference into the Second Amendment
with a new Attachment A including modified special pricing and distribution
terms and conditions relating to certain PSC products distributed by RSA or
RSA's distributors in conjunction with RSA's PROGRESS(R)-based applications; and
WHEREAS, PSC and RSA entered into a Fourth Amendment to the Agreement
dated as of April 1, 1998 (the "Fourth Amendment") identifying the PSC products
that RSA has the right to distribute to accomplish the RSA customer
configuration for RSA's PROGRESS(R)-based application and specifying additional
modifications to the special pricing and distribution terms and conditions set
forth in Attachment A to the Third Amendment; and
WHEREAS, PSC and RSA entered into a Fifth Amendment to the Agreement
dated as of February 18, 1999 (the "Fifth Amendment") whereby PSC granted, and
RSA accepted, a license to use, distribute, OEM and sub-license the Progress
Database in RSA's Public Key Infrastructure ("PKI") Products; and
WHEREAS, PSC and RSA entered into a Sixth Amendment to the Agreement
dated as of October 26, 1999 (the "Sixth Amendment") that specified certain
additional terms and conditions pertaining to RSA's ordering of additional
quantities of PSC products, and RSA's use and distribution of said PSC products;
and
WHEREAS, PSC and RSA entered into a Seventh Amendment to the Agreement
dated as of November 28, 2001 (the "Seventh Amendment") that specified certain
additional terms and conditions pertaining to RSA's ordering of additional
quantities of PSC products, and RSA's use and distribution of said PSC products;
and
WHEREAS, PSC and RSA desire to further amend the terms and conditions
of the Agreement and the prior Amendments to specify certain additional terms
and conditions pertaining to RSA's ordering of additional quantities of PSC
products, and RSA's use and distribution of said PSC products,
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Subject to the existing requirements as set forth in the previous
Amendments and the Agreement and in consideration for RSA paying to
PSC, according to the payment terms as further specified herein, the
non-refundable sum of [**] dollars ($[**]) in pre-paid royalties, PSC
agrees to provide RSA with a $[**] allowance against license and
maintenance fees for deployment licenses, on any PSC supported
platform, for the following Progress product configuration:
Progress ProVISION (up to 16 users)
Progress Enterprise Database
Progress Client Networking
Progress Server Networking
Progress E/SQL
Progress 4GL (1 user)
DBE Supplement
Except for Progress ProVISION, RSA's distribution of such PSC products
shall not be limited to any certain number of users, provided that, for
each deployment of the above-mentioned Progress product configuration,
or portion thereof, to an RSA customer in conjunction with the RSA
Progress-based applications described herein, the number of users
authorized to use such PSC products shall not exceed the number of
users authorized to use RSA's Progress-based application(s).
Payment schedule shall be as follows:
40% due by January 2, 2003
20% due by February 15, 2003
20% due by April 15, 2003
20% due by June 15, 2003
RSA shall have the right to distribute all or part of the above
Progress products for each RSA customer license for use solely with
RSA's Progress-based application currently identified as follows:
RSA ACE/Server
2. Provided RSA is current in its payment obligations to PSC, PSC agrees
to provide RSA with technical support for Progress version 8.3b and
above and for the specific platforms listed in the attached Exhibit A,
for a period of forty-two (42) months from the Effective Date, at the
same level as PSC makes generally available to its customers for its
active, functionally stable products, including access to PSC's
escalation process as further defined at:
xxxx://xxx.xxxxxxxx.xxx/xxxxxxx/xxxxxxxxxx.xxx. Such support shall
include at a minimum bug fixes and help-desk support, with security bug
fixes being provided on an expedited basis.
3. RSA will provide to PSC quarterly deployment reports detailing the
number of licenses sold and maintenance dates as required under the
previous Amendments and the Agreement. Such reports to be provided to
PSC by the last business day of January, April, July and October. RSA's
reports shall include, at a minimum, the following information:
customer name; PSC royalty amount totals for license, new and renewal
maintenance; and maintenance dates. PSC agrees to treat all such
information as confidential. PSC will continue to accrue against RSA's
pre-paid royalties upon receipt of such reports at a product royalty
rate of [**] percent ([**]%) and a maintenance royalty rate of [**]
percent ([**]%). Once RSA's pre-paid royalties are depleted, RSA will
pay to PSC the royalties set forth in the preceding sentence on a
quarterly basis, and the royalties accrued
during each such quarter shall be due and payable on the due date for
the deployment report for the applicable quarter.
RSA agrees not to disproportionately charge more for non-license or
maintenance fees and less for royalty generating license and
maintenance fees, thus resulting in lower royalties to PSC than would
otherwise customarily be due. At the end of each annual term, if RSA's
average discount materially changes from the previous year, the parties
agree to negotiate in good faith the appropriate royalty percentages
due PSC for the following year. RSA shall inform PSC in writing of
RSA's average discount on or before the 15th day after the Effective
Date. RSA's price list is attached hereto as Exhibit B.
4. The parties agree that, upon the earlier of the depletion of this
initial $[**] allowance or November 27, 2003, and prior to each annual
renewal term or depletion thereafter, the parties will negotiate in
good faith the amount of the additional non-refundable prepayment
applicable for each subsequent annual term. Payment schedule for such
additional pre-payments shall be in accordance with the payment model
specified in section 1 above. Notwithstanding the foregoing, prior to
the termination of this Eighth Amendment, the parties agree to
negotiate in good faith the terms and conditions that will govern a new
agreement for any subsequent term.
5. The parties agree to establish and attend executive management meetings
on at least a semi-annual basis to review the current and future
strategic relationship of the parties.
6. The parties agree that the end user license agreement attached to the
Third Amendment is hereby replaced with RSA's current End User Product
License Agreement attached hereto as Exhibit C. RSA agrees to enter
into license agreements with its customers that contain terms and
conditions substantially in accordance with those contained in such
agreement. However, RSA acknowledges that Progress versions 9.0 and
above may contain third party technology that requires additional terms
in the end user license agreement. PSC shall make such additional terms
available to RSA, and RSA shall incorporate substantially similar terms
into its end user license agreement for its Progress-based
applications.
7. Upon execution of this Eighth Amendment, the Seventh Amendment shall be
terminated in its entirety and superseded with this Eighth Amendment.
The term of this Eighth Amendment shall commence as of the Effective
Date defined above, and shall continue in force for a period of four
(4) years.
8. Except as specifically modified or amended by this Eighth Amendment,
the terms and conditions of the Agreement (as previously amended by the
Seventh, Sixth, Fifth, Fourth, Third and Second Amendments thereto)
shall remain in full force and effect until the termination of the
Agreement. No other modifications or additions are made to the
Agreement. The Agreement, Eighth, Seventh Sixth, Fifth, Fourth, Third,
Second and First Amendments constitutes the entire agreement between
the parties with respect to the subject matter hereof. In the event of
any conflict among the terms and conditions of the Agreement, the
Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment,
Sixth Amendment, Seventh Amendment or this Eighth Amendment, the order
of precedence shall be: first, this Eighth Amendment, second the
Seventh Amendment, third the Sixth Amendment, fourth the Fifth
Amendment, fifth the Fourth Amendment, sixth, the Third Amendment,
seventh, the Second Amendment (which completely supersedes the earlier
Addendum and Amendment) and eighth and finally, the Agreement.
IN WITNESS WHEREOF, this Eighth Amendment has been executed under seal
for and on behalf of each of the parties hereto by their duly authorized
representative as of the date first set forth above.
RSA SECURITY INC. PROGRESS SOFTWARE CORPORATION
By: /s/ Xxxxxxx XxXxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- -----------------------------
Name: Xxxxxxx XxXxxxxx Name: Xxxxxx X. Xxxxxx
Title: SVP, Authentication Products Title: VP, NA Operations
This document has been
reviewed & approved by
the PSC Legal Dept.
/s/ DLK Initials
EXHIBIT A
PROGRESS RELEASE: 8.3b
RSA ACESERVER VERSION: 5.0
DATE OF INITIAL SHIPMENT: 6/2001
PLATFORMS:
Microsoft Windows NT, 2000 Server and Advanced Server
Sun Solaris 2.6, 7, 8
HP UX 10.20, 11.0
IBM AIX 4.3.3
REMOTE ADMIN REQUIRED FOR:
Microsoft Windows 98, NT 4.0, 2000 Pro, 2000 Server, 2000 Advanced Server
PROGRESS: 8.3d
RSA ACESERVER VERSION:
DATE OF INITIAL SHIPMENT: 1/2003 (ESTIMATED)
PLATFORMS:
Microsoft Windows NT 4.0 Server or Workstation
Microsoft Windows 2000 Server, 2000 Advanced Server, .Net Server
Sun Solaris 8, 9(32 bit and 64 bit)
HP UX 11.0, 11i(32 bit and 64 bit)
IBM AIX 4.3.3, 5Lv5.1(32 bit and 64 bit), 5Lv5.2(32 bit and 64 bit)
REMOTE ADMIN REQUIRED FOR:
Microsoft Windows 98, NT 4.0, 2000 Pro, 2000 Server, 2000 Advanced Server,
XP Pro, .Net Server
PROGRESS: 9.1d
RSA ACESERVER VERSION:
SUPPORTED REQUIRED THROUGH: Q1 2007
Server on
Microsoft Windows 2000 Server, 2000 Advanced Server, .Net Server
Sun Solaris 8, 9(32 bit and 64 bit)
HP UX 11i (32 bit and 64 bit)
IBM AIX 5Lv5.1(32 bit and 64 bit), 5Lv5.2(32 bit and 64 bit)
REMOTE ADMIN REQUIRED FOR:
Microsoft Windows 2000 Pro, 2000 Server, 2000 Advanced Server, XP Pro, .Net
Server
EXHIBIT B
RSA SECURITY INCORPORATED U.S. PRICE LIST
Effective July 2002
RSA ACE SERVER MAINTENANCE
Model Number # ACE SERVER Maintenance Mode # ACESERVER Main
ORDERING OPTIONS: Billing Cycle: [**]
PLATFORM: (Identify platform) IBM AIX
Sun Solaris
HP UNIX
Windows NT
Windows 2000
License Type Selection: (Identify license type) Basic License
Advanced License
Evaluation Licenses (Optional) [**]
Base License
User Level SKU NUMBER US PRICE LIST SKU NUMBER SecurCare SKU NUMBER SecurCare Extended
---------- ---------- ------------- ---------- --------- ---------- ------------------
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
RSA SECURITY INCORPORATED U.S. PRICE LIST
Effective July 2002
RSA ACE SERVER Continued MAINTENANCE
Advanced License
User Level SKU NUMBER US PRICE LIST SKU NUMBER SecurCare SKU NUMBER SecurCare Extended
---------- ---------- ------------- ---------- --------- ---------- ------------------
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
RSA SECURITY INCORPORATED EXPORT PRICE LIST
Effective July 2002
RSA ACE SERVER MAINTENANCE
Model Number # ACE SERVER Maintenance Mode # ACESERVER Main
ORDERING OPTIONS: Billing Cycle: [**]
PLATFORM: (Identify platform) IBM AIX
Sun Solaris
HP UNIX
Windows NT
Windows 2000
License Type Selection: (Identify license type) Basic License
Advanced License
Evaluation Licenses (Optional) [**]
Base License
User Level SKU NUMBER US PRICE LIST SKU NUMBER SecurCare SKU NUMBER SecurCare Extended
---------- ---------- ------------- ---------- --------- ---------- ------------------
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
RSA SECURITY INCORPORATED EXPORT PRICE LIST
Effective July 2002
RSA ACE SERVER Continued MAINTENANCE
Advanced License
User Level SKU NUMBER US PRICE LIST SKU NUMBER SecurCare SKU NUMBER SecurCare Extended
---------- ---------- ------------- ---------- --------- ---------- ------------------
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**] [**] [**]
EXHIBIT C
RSA LICENSE AGREEMENT
LICENSE AGREEMENT
*** IMPORTANT ***
PLEASE READ CAREFULLY BEFORE OPENING THE ENCLOSED DISK CASE.
DO NOT OPEN THE DISK CASE UNTIL YOU HAVE READ THIS AGREEMENT. BY OPENING THE
SEALED DISK CASE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEM.
If YOU do not agree to the terms of this Agreement, promptly return the entire
Package, including the unopened Disk case and the Documentation, to the place
YOU obtained them from, for a full refund.
This is a legal agreement ("the Agreement") between the end user ("You") and RSA
Security Inc. ("RSA"). This Agreement may be superseded by any written agreement
signed by both You and RSA. This Agreement is part of a package (the "Package")
that also includes a sealed CD-ROM disk or sealed diskettes (collectively, the
"Disk") and certain Documentation.
1. DEFINITIONS:
"DOCUMENTATION" means the manuals, handbooks, and other written materials
related to the use of the RSA Products, whether in hard copy or soft copy form,
that are provided by RSA and that customarily accompany the RSA Products.
"LICENSED PRODUCT(S)" means one or more of Your products or product groups,
identified in a separately prepared "License/Product Schedule", that has/have
been or will be developed by You and that incorporates in any manner any portion
of the RSA BSAFE(R) Software. A Licensed Product (i) must represent a
significant functional and value enhancement to the RSA BSAFE Software, and (ii)
shall not expose or, directly or indirectly, pass through any APIs.
"RSA BSAFE(R) SOFTWARE" means RSA's proprietary encryption software identified
on a separately prepared License/Product Schedule and currently known as an RSA
BSAFE(R) software product, consisting of a series of instructions or statements
in machine-readable, object code form only, and all modifications made thereto
by RSA.
"RSA ENTERPRISE SOFTWARE" means RSA's proprietary software identified as either
an RSA Mobile(R), ACE/Server(R), SecurID(R), ClearTrust(R) or Keon(R) software
product, including firmware incorporated in RSA SecurID Tokens, consisting of a
series of instructions or statements in machine-readable, object code form only,
and all modifications made thereto by RSA.
"RSA PRODUCTS" mean the RSA Software, Documentation and RSA SecurID Tokens
provided under this Agreement.
"RSA SOFTWARE" means collectively the RSA BSAFE Software and/or RSA Enterprise
Software licensed by RSA hereunder.
"RSA SECURID TOKENS" mean the hardware cards and/or tokens (SD200, SD520, and
SD600) used by You to authenticate into certain RSA Software.
2. GRANT OF LICENSE.
(A) GRANT OF LICENSE FOR RSA ENTERPRISE SOFTWARE. RSA hereby grants, and You
hereby accept, a perpetual (unless terminated as set forth in Section 6),
non-exclusive, non-transferable license to use the RSA Enterprise Software, in
accordance with the instructions contained in the Documentation, limited to the
number of users, servers and/or functionality options specified in Your written
order for such RSA Enterprise Software and, where applicable, the corresponding
RSA or RSA-authorized sales quotation. With specific regard to the instance
where You are using the RSA Keon Certificate Authority ("KCA") software as
bundled with the RSA ClearTrust software, You may use the KCA software solely
for the purpose of further enabling inter-component security in the RSA
ClearTrust environment. More specifically, You shall only use the KCA software
to issue and manage certificates between the server components within the
ClearTrust
environment to provide authenticated SSL communications among such components.
You must purchase a separate license for the KCA software if you wish to use it
for any other purpose. You may make copies of the RSA Enterprise Software for
backup, testing, disaster recovery or archival purposes only and may make a
reasonable number of copies of the Documentation for Your internal use only,
provided that You also reproduce on such copies any copyright, trademark or
other proprietary markings and notices contained on the RSA Enterprise Software
and Documentation and do not remove any such marks from the original.
(B) LIMITATIONS ON LICENSE GRANT FOR RSA ENTERPRISE SOFTWARE. You shall not
cause or permit (i) access (except to Your employees, agents and consultants
with a "need to know" who are bound, in writing, by obligations of
non-disclosure suitable to protect RSA's interests in the RSA Enterprise
Software but no less restrictive than Your obligations herein), (ii) copying
(except as set forth in Section 2(A) herein), (iii) sublicensing or other
dissemination of the RSA Enterprise Software, in whole or in part, to any third
party without the prior written consent of RSA. You may not use any third-party
software embedded in or bundled with the RSA Enterprise Software as a standalone
program or in any way independently from the RSA Enterprise Software provided by
RSA to You. To the extent that the RSA Enterprise Software contains or is
bundled with third party software or other proprietary RSA software, You may use
such third party software and/or other proprietary RSA software solely for the
purpose such software is included with the RSA Enterprise Software and only for
use with the particular RSA Enterprise Software that You have licensed from RSA
as set forth in the applicable Documentation. You shall not modify, enhance,
translate, supplement, create derivative works from, reverse engineer, reverse
compile or otherwise reduce the RSA Enterprise Software to human readable form
without the prior written consent of RSA.
(C) LICENSE GRANT FOR RSA BSAFE(R) SOFTWARE. During the term and within the
Field of Use limitation specified in a separately prepared License/Product
Schedule, RSA hereby grants, and You hereby accept, a non-exclusive,
non-transferable license to:
(1) incorporate the RSA BSAFE Software in object or byte code format into
Licensed Product(s) for use by Your employees for internal business
purposes only; and
(2) copy, use, modify, incorporate, and distribute the Documentation, or
portions thereof, to support users of the Licensed Product(s), provided
that You also reproduce on such copies any copyright, trademark or
other proprietary markings and notices contained on the Documentation
and do not remove them from the original.
IN THE EVENT A SEPARATELY PREPARED LICENSE/PRODUCT SCHEDULE IS NOT COMPLETED
PRIOR TO THE USE OF THE RSA BSAFE SOFTWARE, THE LICENSE GRANT CONTAINED IN THIS
SECTION 2(C) SHALL BE NULL AND VOID; AND ANY USE OF THE RSA BESAFE SOFTWARE WILL
BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
(D) LIMITATIONS ON LICENSE GRANT FOR RSA BSAFE SOFTWARE. Notwithstanding the
generality of the foregoing, You may not in any way sell, lease, rent, license,
sublicense or otherwise distribute the RSA BSAFE Software (whether or not
incorporated in a Licensed Product) to any third party. You shall not use the
Licensed Product to operate a service bureau where such revenue-generating
business is dependent on the use of the Licensed Product. The RSA BSAFE Software
may only be accessed by the functionality of the Licensed Product in which it is
included, and a Licensed Product shall not make the RSA BSAFE Software directly
accessible to users or to products other than the Licensed Product, or otherwise
expose an API. Nothing in this Agreement grants You any rights, license or
interest with respect to source code of the RSA BSAFE Software. You shall not
modify, enhance, supplement, translate, reverse engineer, decompile or
disassemble the RSA BSAFE Software or any part thereof or otherwise attempt to
derive source code or create derivative works therefrom without the prior
written consent of RSA.
(E) RESTRICTION ON USE OF RSA SECURID TOKENS. Your may only use the RSA SecurID
Tokens to authenticate to RSA Enterprise Software. You shall not use any
hardware cards, tokens or other devices not provided by RSA to authenticate to
the RSA Enterprise Software, unless otherwise authorized by RSA in writing.
3. OWNERSHIP AND COPYRIGHT. RSA or its suppliers own the RSA Software and
Documentation. All RSA Software and Documentation (including revisions,
modifications and enhancements thereto) and any other specifications,
documentation, ideas, know-how, techniques, processes, inventions or other
intellectual property that may be developed, conceived and/or delivered by RSA
under this Agreement, including all patents, copyrights and other intellectual
property rights thereto,
(collectively "RSA Property") shall be the sole and exclusive property of RSA or
its suppliers, as applicable, and shall only be used by You as authorized
herein. Such RSA Property is protected by patent and copyright laws and
international treaty provisions and RSA intends that You will use such RSA
Property only in accordance with the terms and conditions of this Agreement.
You shall acquire no rights of any kind in or to any RSA trademark, service
xxxx, trade name, logo or product designation under which the RSA Products were
or are marketed and 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. You shall cease to use the markings, or any similar markings, in any manner
on the expiration or termination of this Agreement.
4. LIMITED WARRANTY.
(A) RSA Software Warranty. RSA warrants that the RSA Software will operate in
material conformance to RSA's published specifications for such RSA Software
during the first 90 days following Your initial receipt of the RSA Software (the
"Warranty Period"). RSA does not warrant, however, that the RSA Software or any
portion thereof is error-free. If You discover a non-conformity in the RSA
Software during the Warranty Period, You shall submit to RSA (or the Reseller
from which the license was purchased) a written report describing the
non-conformity in sufficient detail to enable RSA to reproduce such
non-conformity. Upon confirmation that the reported non-conformity has been
reproduced and confirmed to be such, RSA will use reasonable efforts to, at its
option, (i) correct the non-conformity; (ii) provide a work around or software
patch (collectively "Fixes"); or (iii) replace the Software. If RSA determines
that none of these alternatives is reasonably available, upon Your request RSA
shall refund any pre-payments made by You for the affected RSA Software and
accept its return. All Fixes provided by RSA shall constitute either RSA BSAFE
or Enterprise Software hereunder, as applicable, and shall be governed by the
terms hereof. This warranty shall not apply to any non-conformity caused by any
unauthorized modification to the RSA Software or by Your failure to incorporate
any Fixes provided or made available by RSA. This warranty applies only to the
initial delivery of the RSA Software. Fixes are provided with a limited warranty
of 30 days from receipt of such Fix or for the remainder of the initial Warranty
Period, whichever is greater.
(B) RSA SecurID Token Warranty. RSA SecurID Tokens are guaranteed for the
token's purchased life to perform in material conformance to RSA's published
specifications for such tokens.
(C) Limitations of Warranty. The foregoing warranties shall not apply if (i)
repair or replacement is required as a result of causes other than normal use,
including, without limitation, repair, maintenance or modification of the RSA
Products by persons other than RSA-authorized personnel; Your accident, fault or
negligence; operator error; use of the RSA Products other than as set forth in
the Documentation; or causes external to the RSA Products such as, but not
limited to, failure of electrical power or fire or water damage; or (ii) the RSA
Products are used with software or equipment other than that for which they were
designed as set forth in the Documentation.
(D) WARRANTY DISCLAIMER. THE FOREGOING EXPRESS WARRANTIES ARE IN LIEU OF ALL
LIABILITIES OR OBLIGATIONS ON THE PART OF RSA. OTHER THAN THE EXPRESS WARRANTIES
MADE BY RSA AS SET FORTH IN THIS XXXXXXX 0, XXX AND ITS SUPPLIERS DISCLAIM ALL
WARRANTIES AS TO ANY MATTER WHATSOEVER, EITHER EXPRESS OR IMPLIED, (INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE). YOUR SOLE REMEDY FOR BREACH OF SUCH EXPRESS LIMITED
WARRANTIES SHALL BE A CORRECTION, FIX OR REFUND AS SET FORTH IN THIS SECTION 4.
This warranty gives You specific legal rights. As some jurisdictions do not
allow the exclusion of implied conditions or warranties, statutory or otherwise,
the above exclusion may not apply to you and, as such, You may also have other
rights that vary from jurisdiction to jurisdiction.
Any and all related warranty issues and subsequent support issues shall be
directed to the party that You purchased this license from, unless, in the case
of support matters, You have entered into a separate support service contract
directly with RSA.
YOU UNDERSTAND THAT, IF YOU PURCHASED THis PACKAGE FROM AN AUTHORIZED RESELLER
OF RSA, SUCH RESELLER IS NOT RSA'S AGENT AND IS NOT AUTHORIZED TO MAKE ANY
REPRESENTATIONS, CONDITIONS OR WARRANTIES, STATUTORY OR OTHERWISE, ON RSA'S
BEHALF NOR TO VARY ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT. IN
ADDITION, YOU ACKNOWLEDGE THAT, UNLESS OTHERWISE AGREED BY SUCH RESELLER IN
WRITING OR IF PROHIBITED BY LAW, THE LIMITATIONS OF CONDITIONS AND WARRANTIES,
STATUTORY OR
OTHERWISE, AND LIABILITY SET FORTH IN THIS AGREEMENT ALSO APPLY TO AND BENEFIT
THAT RESELLER.
5. LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN THIS SECTION 5, RSA'S
AND ITS SUPPLIERS' LIABILITY WILL BE LIMITED IN ANY EVENT TO ACTUAL DIRECT
DAMAGES TO THE EXTENT CAUSED SOLELY BY THE ACTS OR OMISSIONS OF RSA SUBJECT TO A
MAXIMUM LIABILITY OF THE AMOUNT PAID FOR THE SPECIFIC RSA PRODUCT THAT DIRECTLY
CAUSED SUCH DAMAGE. IN NO EVENT SHALL RSA OR ITS SUPPLIERS BE LIABLE FOR
INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES, LOST BUSINESS PROFITS,
OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR
OTHERWISE, EVEN IF RSA AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF
THE SAME. RSA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ASSOCIATED WITH ANY
THIRD PARTY OPEN SOURCE CODE INCLUDED IN THE RSA PRODUCTS. NO LIMITATION AS TO
DAMAGES FOR DEATH OR PERSONAL INJURY IS HEREBY INTENDED. No action, whether in
contract or tort, including negligence, arising out of or in connection with
this Agreement may be brought by either party more than two years after the
cause of action has accrued. Some jurisdictions do not allow the exclusion or
limitation of special, indirect, consequential, exemplary or incidental damages
or the limitation of liability to specified amounts; as such, You may have other
rights in this matter that vary from jurisdiction to jurisdiction.
6. TERMINATION. This Agreement shall terminate the earliest of: (1) 30
days after written notice from one party to the other of the defaulting party's
failure to perform according to its obligations hereunder, which failure is not
cured within 30 days of receipt of notice of such failure to perform; (2)
immediately upon notice to You of a material breach of the applicable License
Grant set forth in this Agreement or (3) immediately upon written notice by
either party hereto if the other party (a) becomes insolvent; (b) files a
petition, or has a petition filed against it, under any laws relating to
insolvency, and the related insolvency proceedings are not dismissed within 60
days after the filing of such petition; (c) enters into any voluntary
arrangement for the benefit of its creditors; (d) appoints, or has appointed on
its behalf, a receiver, liquidator, examiner or trustee of any of such party's
property or assets; or (e) ceases to carry on business in the ordinary course.
Within 10 days after any termination of this Agreement or the License Grant
contained in this Agreement, You shall return to RSA or RSA's authorized
reseller (or at RSA'S option, destroy and certify in writing to RSA that You
have destroyed), the original and all copies, in whole or in part, in any form,
including partial copies, of the affected RSA Software and Documentation.
7. GENERAL. This Agreement constitutes the entire understanding between
RSA and You with respect to the subject matter hereof. Any change to this
Agreement must be in writing and signed by RSA and You. Terms and conditions as
set forth in any purchase order which differ from, conflict with, or are not
included in this Agreement, shall not become part of this Agreement unless
specifically accepted by RSA in writing. You shall be responsible for and shall
pay, and shall reimburse RSA on request if RSA is required to pay, any sales,
use, value added (VAT), consumption or other tax (excluding any tax that is
based on RSA's net income), assessment, duty, tariff, or other fee or charge of
any kind or nature that is levied or imposed by any governmental authority on
the RSA Products. If any provision of this Agreement shall be held to be void or
unenforceable in whole or in part, such provision, to the extent that it is held
to be void or unenforceable, shall be deemed not to form part of this Agreement
and the enforceability, legality and validity of the remainder of this Agreement
will not be affected.
8. ASSIGNMENT. The licenses granted under this Agreement are
non-transferable. Accordingly, You may not assign this Agreement, or any of Your
rights or obligations hereunder, without the written consent of RSA, which
consent shall not be unreasonably withheld.
9. U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND. The RSA Software is a
"commercial item" as defined in 48 C.F.R. 2.101 (JAN 1998), consisting of
"commercial computer software" and "commercial computer software documentation"
as such terms are used in 48 C.F.R. 12.212 (SEPT 1995), and is provided to the
U.S. Government only as a commercial end item. Government end users acquire the
rights set out in this Agreement for the Software consistent with: (i) for
acquisition by or on behalf of civilian agencies, the terms set forth in 48
C.F.R. 12.212 (SEPT 1995); or (ii) for acquisition by or on behalf of units of
the Department of Defense, the terms set forth in 48 C.F.R. 227.7202. The
contractor/manufacturer is RSA SECURITY INC., Xxxxxxx, Xxxxxxxxxxxxx 00000,
X.X.X.
10. EXPORT AND IMPORT COMPLIANCE The RSA Software licensed under this
Agreement, whether or not incorporated into Licensed Products, is subject to (1)
United States export control laws and
regulations that may restrict exports, re-exports and disclosures to foreign
persons of cryptographic items, and (2) certain foreign laws that may restrict
the export, re-export, import and/or use of such items. Performance of this
Agreement is expressly made subject to any export laws, regulations, orders or
other restrictions imposed by the United States of America or any other
applicable country or governmental entity on the RSA Software, Licensed Products
or information relating to either of them. Notwithstanding any other provision
of this Agreement to the contrary, You shall not directly or indirectly import,
export or re-export any RSA Software, Licensed Products or information
pertaining thereto to any country or foreign person to which such import, export
or re-export is restricted or prohibited without first securing, if applicable,
an appropriate export license or other governmental approval at the time of
import, export or re-export. You unconditionally accept full responsibility for
compliance with these requirements.
11. FORCE MAJEURE. Neither party shall be held responsible for any delay or
failure in performance of its obligations hereunder to the extent such delay or
failure is caused by fire, flood, strike, civil, governmental or military
authority, act of terrorism or war, act of God, or other similar causes beyond
its reasonable control and without the fault or negligence of the delayed or
non-performing party.
12. GOVERNING LAW; ARBITRATION. This Agreement shall be governed by, and
any arbitration hereunder shall apply, the laws of the Commonwealth of
Massachusetts, U.S.A., excluding (a) its conflicts of laws principles; (b) the
United Nations Convention on Contracts for the International Sale of Goods; (c)
the 1974 Convention on the Limitation Period in the International Sale of Goods;
and (d) the Protocol amending the 1974 Convention, done at Vienna April 11,
1980. Any dispute, controversy or claim arising out of or relating to this
Agreement or to a breach hereof, including its interpretation, performance or
termination, shall be finally resolved by arbitration. The arbitration shall be
conducted by three (3) arbitrators, one to be appointed by RSA, one to be
appointed by You and a third being nominated by the two arbitrators so selected
or, if they cannot agree on a third arbitrator, by the President of the American
Arbitration Association ("AAA"). The arbitration shall be conducted in English
and in accordance with the commercial arbitration rules of the AAA, which shall
administer the arbitration and act as appointing authority. The arbitration,
including the rendering of the award, shall take place in Boston, Massachusetts,
and shall be the exclusive forum for resolving such dispute, controversy or
claim. The decision of the arbitrators shall be binding upon the parties hereto,
and the expense of the arbitration (including without limitation the award of
attorneys' fees to the prevailing party) shall be paid as the arbitrators
determine. The decision of the arbitrators shall be executory and judgment
thereon may be entered by any court of competent jurisdiction. Notwithstanding
anything contained in this Paragraph 12 to the contrary, RSA shall have the
right to institute judicial proceedings against You or anyone acting by, through
or under You, in order to enforce RSA's rights hereunder through reformation of
contract, specific performance, injunction or similar equitable relief.
