EXHIBIT 10.9
TO
WatchGuard Technologies, Inc.'s
Registration Statement on Form S-1
"[ * ]" = omitted, confidential material, which material has been
separately filed with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
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:
Seattle Software Labs, a Delaware corporation
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(Name and jurisdiction of incorporation)
000 Xxxxxxxxxx Xxxxxx Xxxxx
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(Address)
Suite 300
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Xxxxxxx, XX 00000
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OEM Legal Contact:
Xxx Xxxxxxx 000 000 0000
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(name, telephone and title)
OEM Billing Contact:
Xxxxx Xxxxx, Controller 000 000 0000
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(name, telephone and title)
OEM Technical Contact:
Xxxxx Boeccio 000 000 0000
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(name, telephone and title)
OEM Commercial Contact:
Xxx Xxxxxxx, VP Strategic Dev. 000 000 0000
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(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.
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 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 quantified 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 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 Limitations 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
Licensed/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"):
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 charges 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 from 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 fifty
cents ($0.50) for each dollar ($1.00) 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
specified 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 (30th)
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 forth
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 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 its 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
dissassembling 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 no 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 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 CUSTOMER 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 its 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 any proprietary, trademark or copyright markings or notices placed upon
or contained within the RSA Source Code, RSA 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, 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,
publish, 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 he disclosing party. Each party will
take 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 disclosed 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 THREE (3)
TIMES THE TOTAL AMOUNT PAYABLE BY OEM TO RSA HEREUNDER.
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 is enjoined, 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 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; (ii) 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 at 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 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 construed 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 hereto 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 it 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 being
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 SOFTWEAR 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 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)(I) 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 or 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 date
of the last signature below.
OEM:
SEATTLE SOFTWARE LABS, INC.
By: /s/ XX Xxxxx
----------------------------------
Printed Name: Xxxxxxxxxxx X. Xxxxx
------------------------
Title: President & CEO
-------------------------------
Date: 14 August 1997
-------------------------------
RSA DATA SECURITY, INC.
By: /s/ D. Xxxxx Xxxxxx
----------------------------------
Printed Name: D. Xxxxx Xxxxxx
------------------------
Title: President
-------------------------------
Date: 8/26/97
-------------------------------
License/Product Schedule Number: 0897-SEA-O-LPS-1
EXHIBIT "A"
LICENSE/PRODUCT SCHEDULE
OEM:
Seattle Software Labs
--------------------------------------------------------
OEM Master License Agreement Number:
--------------------------------------------------------
0797-SEA-O-MLA-1 (the "Agreement")
--------------------------------------------------------
Date of OEM Master License Agreement:
August , 1997
--------------------------------------------------------
This License/Product Schedule Amends Schedules Dated:
N/A
--------------------------------------------------------
Term of Agreement for this Bundled Product:
Perpetual
--------------------------------------------------------
Bundled Product:
OEM's "WatchGuard VPN" software firewall product currently known as "WatchGuard
VPN Remote Office," a security add-on module which filters data in firewall-to-
firewall communications and Windows 95 platform client-to-firewall
communications.
--------------------------------------------------------------------------------
RSA Software:
BSAFE v.3.0 (provided by RSA on UNIX platform)
--------------------------------------------------------------------------------
OEM may obtain copies of the RSA Software on other platforms as may be generally
available at RSA's then current published price list, each additional platform
version of which will be covered RSA Software under this Licensed/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.
LICENSE FEES
------------
Source Code License Fee for this License/Product Schedule:
[ * ].
Object Code License Fees for this License/Product Schedule:
Fixed Dollar License Fee for Bundled Product using only the Currently
Licensed Symmetric Algorithms:
[ * ] for each copy/unit of the Bundled Product.
Prepayment of License Fees for this License/Product Schedule:
[ * ] payable upon 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 Products
covered by this License/Product Schedule:
1. No Service Bureau. Section 2.2.3 of this Agreement is amended in its
entirety to read as follows:
No Standalone Product. 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.
2. Amendments. The following amendments shall apply to the specified
provisions of the Agreement for the bundled Products covered by this
License/Product Schedule as follows:
a. Section 6.3. Section 6.3 is amended by the deletion of the term "RSA"
after the term "(III)" and replacing it with the phrase "either party".
b. Section 3.8. Section 3.8 is amended by the addition of the following
sentence at the end of the section:
Any information found or developed in the course of such audit shall be
treated as Confidential Information in accordance with Section 6
Confidentiality unless otherwise approved by OEM provided, however,
that any such Confidential Information may be used during court
proceedings stemming from performance of this Agreement.
c. Section 3.9. Section 3.9 is amended by the deleting of the second
sentence of the section, and replacing it with the following sentences:
OEM shall distribute its Evaluation Copies of the Bundled Product by
incorporating the software component of the Bundled Product into and
made part of the hardware component of the Bundled Produce ("Hardware
Evaluation Copies"). OEM shall recall the Hardware Evaluation Copies
within sixty (60) days of distribution. The software component of the
Bundled Product shall not operate except as part of the hardware
component of the Bundled Product.
d. Section 7(i). Section 7(i) is amended by Insertion of the following
term before the term "8": "6 WHICH IS LIMITED TO HEREIN TO A CLAIM BY
OEM FOR ACTUAL DAMAGES), AND".
3. One (1) Year Private Labeling and Limited Sublicensing Option. OEM shall
have the option for One (1) Year from the date of execution of this
Agreement to exercise the rights as set forth herein (the "Option"). OEM
may exercise the Option by notify RSA in writing at least Thirty (30) Days
prior to such election.
a) Private Labeling. Notwithstanding anything to the contrary in Section
1.2 of the Agreement, OEM may authorize a Distributor to private label
End User Hardware Products and End
----------
[*] = omitted, confidential material, which material has been separately filed
with the Securities and Exchange Commission pursuant to a request for
confidential treatment.
User Software Products for redistribution to End User Customers by such
Distributor; provided, OEM indicates in its quarterly reports delivered
pursuant to Section 3.7 of the Agreement the identity of any
Distributor so authorized and the name of the privately labeled Bundled
Product so affected. It is understood and agreed that a Distributor
authorized to private label may not otherwise, however, modify the
Bundled Product or incorporate it into another product for
redistribution or resale. The parties agree that the License Fee for
private label rights under the Option shall be Fifty Dollars ($50.00)
per copy/unit of the Bundled Product.
b. Limited Rights to Sublicense. Notwithstanding the provisions of Section
2.2.1 of the Agreement, if the Option is exercised by OEM, RSA further
hereby grants to OEM a non-exclusive, non-transferable, non-assignable
license during the term of this License/Product Schedule to sublicense
its rights granted in Section 2.1, as limited by Sections 2.2 and 2.3,
of the Agreement with respect to the RSA Object Code as part of the
Bundled Products to OEM's licensees in the Territory (each, an "OEM
Sublicensee") for use only (i) in their own products in which
substantial functionality or value is added to the Bundled Products so
that such products are not a substitute for the RSA Software, or (ii)
in their own privately-labeled products consisting of the Bundled
Products with no modifications other than minor packaging changes
(collectively, "Sublicensee Products"). 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 as they relate to RSA and the RSA
Software; (iii) the Sublicensee Products shall incorporate the Licensed
Functionality of the RSA Object Code in such a way so as to ensure that
the security functions of the RSA Object Code may only be accessed by
the functionality of the Sublicensee Product in which it is included so
that the RSA Object Code shall not be directly accessible to End User
Customers or to software products other than the Sublicensee Products;
(iv) the OEM Sublicensees to whom such rights are sublicensed shall
have no further right to sublicense such rights; (v) 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 ___" for
the applicable OEM Sublicensee along with prepaid License Fees in the
amount of [ * ]; (vi) OEM shall report to RSA in its reports delivered
pursuant to Section 3.5 of the Agreement the number of copies of
Sublicensee Products which are distributed by all OEM Sublicensees, and
shall pay RSA License Fees pursuant to Section 3.3 of the Agreement
based on the number of copies distributed applying the same Fixed
Dollar License Fees referred to above for the Bundled Products; and
(vii) any rights of any OEM Sublicensee sublicensed by OEM shall
survive only so long as both the Amendment and the sublicense between
OEM and such OEM Sublicensee remain in effect.
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 A OEM MASTER LICENSE AGREEMENT AND
HAVE INDICATED THEIR ACCEPTANCE OF THE TERMS CONTAINED IN THIS
LICENSE/PRODUCT SCHEDULE BY THEIR SIGNATURES BELOW ON OR BEFORE AUGUST
15, 1997; AND (2) RSA HAS EXECUTED THE OEM MASTER LICENSE AND THIS
LICENSE/PRODUCT SCHEDULE.
OEM:
SEATTLE SOFTWARE LABS, INC.
By: /s/ X.X. Xxxxx
-------------------------------------
Printed Name: Xxxxxxxxxxx X. Xxxxx
---------------------------
Title: President & CEO
----------------------------------
Date: 14 August 1997
----------------------------------
RSA DATA SECURITY, INC.
By: /s/ D. Xxxxx Xxxxxx
-------------------------------------
Printed Name: D. Xxxxx Xxxxxx
---------------------------
Title: President
---------------------------------
Date: 8/26/97
-----------------------------------
EXHIBIT "A-1"
MANDATORY SUBLICENSE TERMS
All sublicense agreements for the license of the RSA Object Code in the
Bundled Product by OEM to OEM Sublicensees will include all of the following
restrictions:
I. The OEM Sublicensee will receive no greater rights with respect to the
Bundled Product that those permitted in Section 2.1 of the Agreement as limited
by Sections 2.2 and 2.3 of the Agreement.
II. The OEM Sublicensee will agree not to remove or destroy any
proprietary, trademark or copyright markings or confidentiality legends placed
upon or contained within the Bundled Product or any related materials or
documentation.
III. If applicable, the OEM Sublicensee will agree that any sublicense of
the Bundled Product to the United States Government or an agency thereof will
state that such software is subject to limited rights in technical data and
restricted rights applicable to commercial computer software developed entirely
at private expense and that any associated documentation will include a
restricted rights legend conforming to the Federal Acquisition Regulations
(FARs) or the Department of Defense Federal Acquisition Regulations Supplement
(DFARS), as applicable, then in effect that apply to software developed entirely
at private expense.
IV. The OEM Sublicensee will agree not to export or reexport any Bundled
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 license agreement, OEM and its licensors will retain full and
exclusive right, title and ownership interest in and to the 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 license for the OEM
Sublicensee's breach of a material term. The OEM Sublicensee 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 Bundled Product 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 Bundled
Product solely for the purpose of supporting the OEM Sublicensee's existing
licensees.
VII. The OEM Sublicensee will agree, to the extent permitted by applicable
law, not to reverse compile, disassemble or modify the Bundled Product.
VIII. The OEM Sublicensee will agree not to distribute the Bundled 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 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.
EXHIBIT B
LICENSEE SEALS AND TRADEMARKS
RSA Licensee Seal:
Licensees 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.
RC2(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), MD4(TM), MD5(TM)
RSA reserves the right to update this Exhibit "B" from time to time upon
reasonable notice to licensee.
LICENSED SOFTWARE AND FIELD OF USE RESTRICTION FOR THIS BUNDLED PRODUCT
SOURCE RIGHT TO INCLUDE
CODE OBJECT CODE IN FIELD OF USE DESCRIBE FIELD OF
LICENSE BUNDLED PRODUCT RESTRICTION USE RESTRICTION
BSAFE YES NO YES NO YES NO
RSA Public Key Cryptosystem [ ] [X] [ ] [X] [ ] [X]
Xxxxxx-Xxxxxxx Key Negotiation [ ] [X] [ ] [X] [ ] [X]
Xxxxx-Xxxxxx Secret Sharing [ ] [X] [ ] [X] [ ] [X]
Data Encryption Standard (DES) [X] [ ] [X] [ ] [X] [ ] */
Extended Data Encryption Standard (DESX) [X] [ ] [X] [ ] [X] [ ] */
Triple DES (3DES) [X] [ ] [X] [ ] [X] [ ] */
RC2 Variable-Key Size Symmetric Block [X] [ ] [X] [ ] [X] [ ] */
Cipher
RC4 Variable-Key Size Symmetric [X] [ ] [X] [ ] [X] [ ]
Stream Cipher
RC5 Variable-Key Size Symmetric Block [X] [ ] [X] [ ] [X] [ ] */
Cipher
MD Hashing Algorithm [X] [ ] [X] [ ] [X] [ ] */
MD2 Hashing Algorithm [X] [ ] [X] [ ] [X] [ ] */
MD5 Hashing Algorithm [X] [ ] [X] [ ] [X] [ ] */
Secure Hashing Algorithm (SHA) [X] [ ] [X] [ ] [X] [ ] */
Digital Signature Algorithm (DSA) [X] [ ] [X] [ ] [X] [ ] */
TIPEM (all set forth below) [ ] [X] [ ] [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] [ ] [X]
__________
*/ Solely for privacy in firewall-to-firewall and Windows platform client-to-
firewall communications using the Bundled Product.
