Exhibit 10.13
Certain confidential information contained in this document, marked by
brackets, is filed with the Securities and Exchange Commission pursuant to Rule
406 of the Securities Act of 1933, as amended.
OEM SERVICE PROVIDER LICENSE AGREEMENT
RSA SECURITY, INC.
Thank you for choosing to do business with us. This Agreement has the purpose of
licensing you the right to (i) incorporate the RSA Software into your products
and (ii) use and/or distribute to end users the RSA Software solely as
incorporated into such products for the purpose of providing Your service. In
return, You agree to pay RSA the license fees described in this Agreement (or
its attachments) which typically comprise an initial payment of license fees,
plus ongoing royalties, but, alternatively may consist of annual license fee
amount, paid-up license fee amounts or other arrangements as described in this
Agreement. This license is for object code only. Maintenance and support for the
RSA Software licensed, if elected, is under separate terms and conditions. This
License Agreement is to be construed and interpreted in accordance with this
general purpose, though any conflict between this general purpose and the
express terms found in this Agreement shall be resolved in favor of the express
terms.
ENTERPRISE NAME ("YOU"): iPass Inc. JURISDICTION OF INCORPORATION: California
STREET ADDRESS: 0000 Xxxxxx Xxxxxxx XXXXX & ZIP CODE: California 94065
CITY: Redwood Shores
ENTERPRISE LEGAL CONTACT (NAME & TITLE):
AGREEMENT NUMBER: 0200-iPA-SER-2
This LICENSE AGREEMENT (the "Agreement"), effective as of the later date of
execution ("Effective Date"), is entered into by and between RSA Security, Inc.,
a Delaware corporation ("RSA"), having a principal address at 0000 Xxxxxx Xxxxx,
Xxxxx 000, Xxx Xxxxx, XX 00000-0000, and the Enterprise identified above.
1. DEFINITIONS
The following terms when used in this Agreement shall have the
following meanings:
1.1 "DISTRIBUTOR" means a dealer or distributor in the business of
relicensing or distributing Client Licensed Products to End User Customers,
directly or through one or more Distributors, by virtue of authority granted by
You for the purpose of providing the Licensed Service. Client Licensed Products
relicensed or distributed by a Distributor shall bear Your trademarks and
service marks and shall not be privately labeled by such Distributor or other
parties. A Distributor shall have no right to add to or modify any part of a
Licensed Product.
1.2 "END USER CUSTOMER" means a person or an entity receiving the RSA
Software as part of a Client Licensed Product from You or a Distributor for
personal or internal use to obtain the Licensed Service and primarily not for
resale, redistribution or other transfer of such Client Licensed Product to any
other person or entity.
1.
1.3 "LICENSED PRODUCT(S)" means one or more of Your products or product
groups identified in the attached "License/Product Schedule Exhibit" which has
been or will be developed by You and which incorporates in any manner any
portion of the RSA Software. A Licensed Product (i) must represent a significant
functional and value enhancement to the RSA Software, (ii) shall not expose or,
directly or indirectly, pass through any APIs, and (iii) shall not be a security
add-on or "bolt-on," the primary purpose of which is providing security to a
third party's product. A Licensed Product consists of a client component
("Client Licensed Product") and a server component ("Server Licensed Product").
Each component of a Licensed Product shall be capable of operating only in
conjunction with the other component. The Server Licensed Product must be owned
and operated by You at Your site, and You shall have no right to change a
license fee or comparable fee for distribution of the Client Licensed Product.
1.4 "LICENSED SERVICE(S)" means one or more of Your services identified
in the attached "License/Product Schedule Exhibit" which has been or will be
developed by You and which uses or is supported by the Licensed Products. The
Licensed Service must represent a significant functional and value enhancement
to the RSA Software, such that the primary reason for an End User Customer to
obtain the Licensed Service is other than the right to use the RSA Software.
Only You may provide the Licensed Service.
1.5 "RSA SOFTWARE" means RSA's proprietary software identified on the
attached "License/Product Schedule Exhibit" (and including only those algorithms
listed therewith), as further described in the User Manual(s) associated
therewith.
1.6 "UPDATES" means any new version of the RSA Software designated by a
progressing of the release number (either right or left of the decimal point)
following the version initially shipped hereunder.
1.7 "USER MANUAL" means the most current version of the user manual
and/or reference manual customarily supplied by RSA to entities who license the
RSA Software.
1.8 "SUBSCRIBER" means a person or entity to whom a copy/unit of the
Client Licensed Product has been distributed and who has paid You any cash or
in-kind consideration at any time for the Licensed Service, whether as use,
transaction, subscription, or service fees or any comparable fees based on or
involving the use of the Licensed Service. You shall have no right to charge a
license fee or comparable fee for distribution of the Client Licensed Product.
2. LICENSES
2.1 LICENSE GRANT. During the term of this Agreement and within the
Field of Use limitation set forth in the "License/Product Schedule Exhibit"
attached hereto RSA hereby grants You a non-exclusive, non-transferable license
to:
2.1.1 (i) incorporate the RSA Software in object or byte code
format into a Licensed Product; (ii) reproduce and have reproduced the RSA
Software in object or byte code format as incorporated in a License Product and
as reasonably needed for inactive backup or archival purposes; (iii) license or
otherwise distribute the RSA Software in the Territory as incorporated in a
Client Licensed Product (if distribution of such Licensed Product is not
prohibited in the attached "Licensed/Product Schedule Exhibit") to End User
Customers, directly
2.
or indirectly through one or more Distributors; and (iv) reproduce, have
reproduced and distribute the RSA Software in the Territory as incorporated in a
Licensed Product to Your employees at Your site(s) and for use by such employees
solely for the purpose of providing the Licensed Service to End User Customers
or supporting the Licensed Service.
2.1.2 (i) use the User Manual to support End User Customers and the
Licensed Service; (ii) modify and incorporate any or all of the User Manual in
Licensed Product and Licensed Service documentation; (iii) reproduce, have
reproduced and distribute in the Territory such portions of the User Manual as
incorporated in Licensed Product documentation to Your employees at Your site(s)
and for use by such employees solely for the purpose of providing the Licensed
Service to End User Customers or supporting the Licensed Service; and (iv)
reproduce and have reproduced and distribute in the Territory such portions of
the User Manual as incorporated in Licensed Product and Licensed Service
documentation to End User Customers.
2.2 LIMITATIONS ON LICENSES. Notwithstanding the generality of the
foregoing: You may not in any way sell, lease, rent, license, sublicense or
otherwise distribute the RSA Software, except as part of a Client Licensed
Product whose distribution is not prohibited on the attached "License/Product
Schedule Exhibit". Such distribution must be for the sole purpose of providing
the Licensed Service. The RSA 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 Software directly accessible to End User Customers 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 Software. You shall not modify, translate reverse engineer,
decompile or disassemble the RSA Software or any part thereof or otherwise
attempt to derive source code or create derivative works therefrom, and shall
not authorize any third party to do any of the foregoing.
3. OWNERSHIP/PROPRIETARY RIGHTS
3.1 RSA SOFTWARE TITLE. 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 You any right, title or ownership interest in or to the RSA
Software or in any related patents, trademarks, copyrights of proprietary or
trade secret rights. Similarly, RSA receives no right, title or ownership
interest in any of Your products by way of this Agreement.
3.2 RSA COPYRIGHT NOTICES. You agree not to remove, alter or destroy
any proprietary, trademark or copyright markings or notices placed upon or
contained within the RSA Software, User Manuals or any related materials or
documentation. You further agree to insert and maintain within every Licensed
Product and any related materials or documentation a copyright notice in Your
name.
3.3 TRADEMARKS. Except as provided in Section 6.1, You shall acquire no
rights of any kind in or to any RSA trademark, trade name, logo or product
designation under which the RSA Software was or is 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 other
termination of this Agreement.
3.
4. LICENSE FEES
4.1 LICENSE FEES. In consideration of RSA's granting you the license
rights in this Agreement, You agree to pay RSA the license fees and ongoing
royalties (collectively, "License Fees") set forth in the "License/Product
Schedule Exhibit" attached hereto.
4.2 TERMS OF PAYMENT - GENERAL. License Fees due RSA hereunder shall be
paid to the attention of the Software Licensing Department at RSA's address set
forth above. Payments of all License Fees shall be made in lawful United States
currency and shall in no case be refundable. 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 delayed
payment was due. 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 You and shall not be considered a
part of, a deduction from, or an offset against License Fees.
4.3 LICENSES WITH ONGOING ROYALTIES. In the event You have elected to
pay License Fees based on ongoing royalties, as indicated on the attached
"License/Product Schedule Exhibit," You agree to pay the prepaid License Fees
and ongoing royalties as described therein and in accordance with the following:
4.3.1 PREPAYMENTS AND ONGOING ROYALTY PAYMENT. All prepaid license
fees ("Prepayments") may be offset against on-going royalties accrued until the
Prepayments are exhausted. You shall show the application or Prepayments in the
licensing reports provided to RSA pursuant to Section 4.3.2. Ongoing royalties
shall be paid on or before the thirtieth (30th) day after the close of the
calendar quarter during which such royalties accrued. Ongoing royalties shall
accrue with respect to the Licensed Service upon the date of invoice for the
Licensed Service to an End User Customer or the date payment therefor was first
payable to You, whichever occurs first. To the extent the License Fees described
in the "License/Product Schedule Exhibit" are based on Service Revenue, "Service
Revenue" means the gross amount of all cash, in-kind or other consideration
receivable by You at any time in consideration of providing the Licensed
Service, whether as use, transaction, subscription, or service fees, or any
comparable fees based on or involving the use of the Licensed Service. For the
purposes of determining Service Revenue, the amount of in-kind or other non-cash
consideration receivable by You shall be deemed to have a dollar value equal to
the standard price (as listed in Your published price schedule on the date the
Licensed Service is provided) for the Licensed Service, less all cash paid.
4.3.2 LICENSING REPORT AND RECORDS. You agree to provide to RSA on
or before the thirtieth (30th) day after the close of each calendar quarter
during the term of this Agreement (even if no royalty amounts have accrued or
are to be paid in such period) a report in reasonable detail setting forth the
calculation of License Fees due hereunder and signed by a responsible officer.
The report shall include, at a minimum, the following information with respect
to the relevant quarter: (i) the total Service Revenue accrued; (ii) the
relevant royalty rate applied to the Service Revenue; (iii) credit taken against
any Prepayments; and (iv) the total License Fees payable. Whether or not You
have elected to pay License Fees based on ongoing
4.
royalties, You agree to maintain reasonable records relating to the Licensed
Products distributed, License Services provided and License Fees accrued and
paid for a period of five (5) years following the relevant dates. RSA shall have
the right, at its sole cost and expense, to have an independent certified public
accountant conduct during normal business hours (but not more than once in any
twelve (12) month period) an audit of Your records to verify compliance with the
terms of this Agreement. In the event such an audit discloses a discrepancy
between the amounts owed and the License Fees actually paid, You will be
invoiced or credited for any future amounts owed by You, as applicable. If any
deficiency in License Fees paid exceeds five percent (5%) of the License Fees
reported by You for any period, You agree to pay the reasonable expenses
associated with such audit, in addition to the deficiency.
4.3.3 EVALUATION COPIES. You may deliver copies of Client Licensed
Products whose distribution is not prohibited in the attached "License/Product
Schedule Exhibit" to prospective End User Customers on a trial basis for
evaluation purposes only (each, an "Evaluation Copy"). No License Fees shall be
reportable or payable with respect to Evaluation Copies unless and until (i) the
Licensed Service is activated using the applicable Client Licensed Product; (ii)
the End User Customer pays for or is invoiced for the Licensed Service; or (iii)
the End User Customer's use of the Evaluation Copy, for any reason, continues
beyond sixty (60) days, whichever occurs first.
4.4 MAINTENANCE AND SUPPORT SERVICE. You may elect to receive updates
and other support services for the RSA Software licensed hereunder under a
separate maintenance and support agreement by executing such an agreement and
paying the applicable fee. All Updates provided to You pursuant to such
maintenance and support agreement shall constitute licensed RSA Software under
this Agreement, and such Updates shall be governed by the terms hereof.
5. LIMITED WARRANTY
5.1 LIMITED WARRANTY. During the initial ninety (90) day term of this
Agreement, RSA warrants that the RSA Software will operate in material
conformance to RSA's published specifications for the RSA Software. RSA does not
warrant that the RSA Software or any portion thereof is error-free. Your
exclusive remedy, and RSA's entire liability shall be correction of any
warranted nonconformity as provided in Section 5.2. This limited warranty and
any obligations of RSA hereunder shall not apply to nonconformities caused by
any unauthorized modification made to the RSA Software.
5.2 ERROR CORRECTION. In the event You discover an error in the RSA
Software which causes the RSA Software not to operate in material conformance to
RSA's published specifications therefor, You 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 RSA Software to fail to
operate in a material manner or to produce materially incorrect results and for
which there is no workaround or only a difficult workaround; or (ii) a "Level 2
Severity" error, meaning an error that produces a situation in which the RSA
Software is usable but does not function in the most convenient or expeditious
manner, and the use or value of the RSA Software suffers no material impact. RSA
will acknowledge receipt of a conforming error report within two (2) business
days and will use
5.
its reasonable efforts to (A) provide a correction for any Level 1 Seventy error
to You as early as practicable, and (B) include a correction for any Level 2
Severity error in the next release of the RSA Software.
5.3 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,
UNLESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU
SHALL NOT (AND SHALL TAKE ALL MEASURES NECESSARY TO INSURE THAT YOUR AGENTS AND
EMPLOYEES DO NOT) MAKE OR PASS THROUGH ANY WARRANTY ON BEHALF OF RSA TO ANY
DISTRIBUTOR, END USER CUSTOMER OR OTHER THIRD PARTY.
6. YOUR ADDITIONAL OBLIGATIONS
6.1 USE OF "RSA SEAL". You agree to insert and maintain within Licensed
Products and marketing materials for the Licensed Products and Licensed Service,
in the manner described in this Section, the "RSA Secure" seal (the "RSA Seal")
depicted in the "Logo Usage Guide," which shall be delivered to You within ten
(10) days of execution of this Agreement. You shall ensure display of the RSA
Seal within any Licensed Product such that users thereof are exposed to the RSA
Seal during normal operation of such Licensed Product as follows: In a software
Licensed Product, the RSA Seal shall be featured in such Licensed Product's
startup splash screen and within any security-related dialog windows visible in
the normal operation of the product (e.g., password dialog window). In a
hardware Licensed Product, the RSA Seal shall be visible on the panel of such
Licensed Product most normally viewed by the user. You agree to include the RSA
Seal within related marketing materials including but not limited to printed and
electronic data sheets, direct mail, user documentation, product packaging and
advertisements for the Licensed Products and Licensed Service.
6.2 REPRESENTATIONS REGARDING RSA SOFTWARE. You are 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.
6.3 CUSTOMER SUPPORT. You agree that all support, if any, provided to
End User Customers of the Licensed Service shall be at Your expense.
6.4 LICENSE AGREEMENTS. You agree to use with each Distributor and End
User Customer receiving a Client Licensed Product 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, 3.2, 3.3, 8, 12.6
and 12.7 of this Agreement. You agree to use Your reasonable efforts to enforce
the terms of such agreements.
6.
7. CONFIDENTIALITY
The parties agree to treat as confidential the terms of this Agreement
and any License Fee or accounting information provided by one party to the other
in performance hereof, and the parties agree to use their reasonable efforts to
prevent disclosure thereof to any third party except with the prior written
consent of the other party, or as required by law. This obligation of
confidentiality shall extend for a period of three years following termination
or expiration of this Agreement. Notwithstanding the generality of the
foregoing, either party may disclose the existence of this Agreement and that
You are an OEM of the RSA Software and that any publicly-announced Licensed
Service uses the RSA Software.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY 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 THE CAUSE OR FORM
OF ACTION, NEITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS
AGREEMENT SHALL EXCEED, EXCEPT FOR RSA'S LIABILITY ARISING UNDER SECTION 9 AND
YOUR LIABILITY ARISING UNDER SECTIONS 2 AND 9 OF THIS AGREEMENT.
9. INTELLECTUAL PROPERTY INDEMNITY
9.1 DUTY TO DEFEND. RSA agrees that it shall at its own expense,
defend, or at its option settle, any action instituted against You, and pay any
award or damages assessed against You or agreed by RSA to be paid in settlement
resulting from such action, insofar as the same is based upon a claim that any
RSA Software used in accordance with the terms of this Agreement infringes any
United States copyright, United States trade secret, or a claim that RSA has no
right to license the RSA Software hereunder, provided that You give 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.
9.2 RSA OPTIONS. If such an action is made or RSA reasonably determines
in its discretion that such a claim is likely to be made, RSA shall have the
option to (i) obtain the right for you to continue use of the RSA Software; or
(ii) replace or modify the RSA Software so that it is no longer infringing but
functionally equivalent. If RSA determines that neither of these alternatives is
reasonably available, RSA shall have the option to refund the License Fees paid
by You hereunder less depreciation for use assuming straight line depreciation
over a five (5) year useful life and terminate this Agreement.
9.3 CLAIMS FOR WHICH RSA IS NOT RESPONSIBLE. Notwithstanding the
foregoing, RSA shall have no liability under this Section 9 if the alleged
infringement arises from (i) the use of other than the current unaltered release
of the RSA Software or other than in the manner specified in the relevant User
Manual; or (ii) the combination of the RSA Software with other
7.
equipment or software not provided by RSA, if such action would have been
avoided but for such use or combination. You agree that You shall at Your
expense, defined, or at Your option settle, and hold RSA harmless from any
action instituted against RSA resulting from any infringement claim based upon
either of the foregoing.
9.4 EXCLUSIVE REMEDY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, THE FOREGOING STATES RSA'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY
FOR PROPRIETARY RIGHTS INFRINGEMENT.
10. PRESS RELEASE
10.1 JOINT PRESS RELEASE. The parties shall issue a joint press release
announcing their relationship no later than sixty (60) days following the
execution of this Agreement. This joint press release will include quotes from
senior management members (title of Vice President or higher) of each company
and will emphasize the RSA Security-enabled aspects of your Licensed Products.
Notwithstanding the foregoing, the parties agree that any press, marketing or
advertising releases or similar promotional materials, including on-line
promotion, of either party that refer to the other party or the other party's
products shall not be released or disseminated without the prior written
approval of the other party.
11. TERM AND TERMINATION
11.1 TERM. This Agreement shall be effective as of the Effective Date
and shall continue in full force and effect unless and until sooner terminated
pursuant to the terms of this Agreement.
11.2 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. The parties acknowledge and agree that You may at any time delay,
interrupt or cease use of the RSA Software, but this Agreement shall continue in
full force, including any obligations to make quarterly reports. You may elect
to terminate this Agreement upon ninety (90) days' written notice and it is
expressly understood that such termination shall not discharge payment
obligations accrued as of the date of such termination, even if such obligation
is payable after the termination date, or entitle You to a refund of any amounts
previously paid to RSA.
11.3 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 proceedings 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.
11.4 EFFECT OF TERMINATION. Upon the termination of this Agreement, you
shall cease making copies of, using or licensing the RSA Software, User Manual
and Licensed Products.
8.
You shall destroy all copies of the RSA Software, User Manual and Licensed
Products in your possession or control and all information and documentation
provided by RSA to you.
11.5 SURVIVAL OF CERTAIN TERMS. The following provisions shall survive
any expiration or termination of this Agreement: 2.2, 3, 4.3.2, 5.3, 8, 9, 11.5
and 12.
12. MISCELLANEOUS PROVISIONS
12.1 GOVERNING LAW AND JURISDICTION. This Agreement will be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts,
irrespective of its choice of law principles. All disputes arising out of this
Agreement shall exclusively be brought in a court of competent jurisdiction in
Massachusetts. The parties agree that the United Nations Convention on Contracts
for the international Sale of Goods shall not apply to this Agreement.
12.2 ASSIGNABILITY. This Agreement is personal to you and shall not be
assignable by you, by operation of law or otherwise, without the prior written
consent of RSA. RSA may withhold its consent to the assignment of this
Agreement, at its sole discretion, if the Agreement provides for paid-up License
Fees. Any purported assignment or delegation without RSA's written consent shall
be void and of no effect.
12.3 ENTIRE AGREEMENT. This Agreement and any exhibits or attachments
hereto constitute the entire understanding and agreement of the parties hereto
with respect to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations and understandings between the
parties regarding the subject matter hereof. 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. 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.
12.4 REMEDIES NON-EXCLUSIVE. Except as otherwise expressly provided,
any remedy provided for in this Agreement is deemed cumulative with, and not
exclusive or, 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. Should suit be brought
to enforce or interpret any part of this Agreement, the prevailing party shall
be entitled to recover, as an element of the costs of suit and not as damages,
reasonable attorneys' fees to be fixed by the court (including without
limitation, costs, expenses and fees on any appeal).
12.5 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. Notice to RSA shall ad addressed to "RSA Legal Department." 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.
9.
12.6 EXPORT COMPLIANCE AND FOREIGN RESHIPMENT LIABILITY. THE RSA
SOFTWARE AND TECHNOLOGIES WHICH ARE LICENSED UNDER THIS AGREEMENT, WHETHER OR
NOT INCORPORATED INTO LICENSED PRODUCTS, ARE SUBJECT TO UNITED STATES EXPORT
CONTROL LAWS AND REGULATIONS WHICH RESTRICT EXPORTS, REEXPORTS AND DISCLOSURES
TO FOREIGN PERSONS OF CRYPTOGRAPHIC ITEMS AND ARE ALSO SUBJECT TO CERTAIN
FOREIGN LAWS WHICH MAY RESTRICT THE EXPORT, REEXPORT,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 BY ANY OTHER COUNTRY OR GOVERNMENTAL ENTITY ON THE RSA SOFTWARE OR
LICENSED PRODUCTS OR OF INFORMATION RELATING TO EITHER OF THE FOREGOING.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENTTO THE CONTRARY, YOU SHALL
NOT IMPORT, EXPORT, OR REEXPORT, DIRECTLY OR INDIRECTLY, ANY RSA SOFTWARE OR
LICENSED PRODUCTS OR INFORMATION PERTAINING THERETO TO ANY COUNTRY OR FOREIGN
PERSON TO WHICH SUCH COUNTRY, GOVERNMENT OR ANY AGENCY THEREOF REQUIRES AN
EXPORT LICENSE OR OTHER GOVERNMENTAL APPROVAL AT THE TIME OF IMPORT, EXPORT, OR
REEXPORT WITHOUT FIRST OBTAINING SUCH LICENSE OR APPROVAL. YOU UNCONDITIONALLY
ACCEPT FULL RESPONSIBILITY FOR YOUR COMPLIANCE WITHT HESE REQUIREMENTS.
12.7 FEDERAL GOVERNMENT LICENSE. You and each of your Distributors
shall in all proposals and agreements with the United States government or any
contractor of the United States government identify and license the Licensed
Product, including the RSA Software 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 Your 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. 252 227-7014(a)(l) of the Department of
Defense Federal Acquisition Regulation Supplement (DFARS) and related
documentation in accordance with the terms of your or such Distributor's
customary license, as specified in 48 C.F.R. 227 7202.1 of DFARS and its
successor regulations.
10.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date of the last signature below.
iPASS, INC. RSA SECURITY INC.
By: /s/ Xxxxxx X. XxXxxxxx By: /s/ Xxxxxxxx Xxxx
-------------------------------------------------- -----------------------------------
Printed Name: Xxxxxx X. XxXxxxxx Printed Name: Xxxxxxxx Xxxx
---------------------------------------- ---------------------------
Title: Vice President and Chief Financial Officer Title: Director, Finance and OPS
-------------------------------------------- --------------------------------
Date: 2/28/2000 Date: 2/29/2000
------------------------------------------------ -----------------------------------
11.
LICENSE PRODUCT/SERVICE SCHEDULE EXHIBIT
RSA SECURITY, INC.
(SOLELY FOR THE USE WITH ANY COMBINATION OF RSA SOFTWARE THAT INCLUDES THE SSL-C
SOFTWARE)
This License Product/Service Schedule Exhibit ("LPS1") is an Exhibit to the OEM
Service Provider License Agreement between You and RSA ("Agreement").
Enterprise Name ("You") iPass Inc.
RSA Software BSAFE(R) SSL-Cv. 1.1, consisting of all
algorithms, provided by the Affiliate from
its facilities in Australia on platforms
that include, but are not limited to,
Windows NT, Solaris and Linux.
Field of Use Limitation: No rights are granted with respect to the
use of RSA Software to issue digital
certificates except for supporting Licensed
Products or Services and their internal use
by Your Customers. You shall not directly or
indirectly expose the "SSL-C Utility
Application" (defined below) executable
program as contained in the RSA Software
within the Licensed Service. For the purpose
of this Field of Use Limitation, "SSL-C
Utility Application" shall mean a
command-line utility executable program,
(i.e., SSL-C.) included in the SSL-C
toolkit. Such utility application includes
the following utilities; SSL certificate,
general diagnostic, key, and cipher (the
"Utilities"). The Utilities shall be used
solely for your developer's testing and
validation of the SSL functionality within
the Licensed Service and shall not be
licensed or included with any distribution
of the Licensed Service.
EXHIBIT NUMBER: 0200-iPA-LPS-1 AGREEMENT NUMBER: 0200-iPA-SER-2
LICENSED SERVICE. Your Service, currently known as "I-Pass Service" which
provides a global virtual network for remote internet access and network
settlement services for Internet Service Providers, corporate users and
individual users.
THREE YEAR ANNUAL LICENSE FEES: [ * ]
Year One: [ * ] payable as follows: [ * ] due upon execution of this
LPS1 and [ * ] due no later than sixty (60) days after the execution
date of this LPS1.
Year Two: [ * ] due on or before the anniversary of the execution
date of this LPS1
1.
[ * ] Certain confidential information contained in this document, marked by
brackets,is filed with the Securities and Exchange Commission pursuant to
Rule 406 of the Securities Act of 1933, as amended.
Year Three: [ * ] due on or before the applicable anniversary of the
execution date of this LPS1
All Annual License Fees subsequent to Year Three: [ * ] per year due
on or before the applicable anniversary of the execution date of this
LPS1.
In the event You terminate this License Agreement in accordance with
its terms prior to the end of the third year after execution, any and
all of the remaining Three Year Annual License Fees shall become
immediately due and payable.
SPECIAL TERMS AND CONDITIONS
1. For the purpose of this LPS, Affiliate shall mean RSA Security
Australia PTY, Ltd. a majority owned subsidiary of RSA, having a
principal address at Xxxxx 00, Xxxxxxxxx Xxxxxx, 000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 0000, Xxxxxxxxx.
2. As soon as practicable, but in no event later than December 2, 2000.
You shall incorporate the RSA Software into Your Licensed Service (the
"New Version") and make such New Version available to all of Your new
customers acquired after incorporation of the RSA Software. You shall
provide RSA with a copy of the New Version for its review and
inspection (for the sole purposes of verifying Your compliance set
forth hereunder and Your compliance with the terms and conditions of
the Agreement) prior to Your release to Your new customers but in no
event later than November 18, 2000. In the event RSA does not notify
You within ten (10) business days of any problems or concerns with the
New Version relating to the purposes set forth above, such New Version
shall be deemed to be approved by RSA.
3. As soon as practicable, but in no event later than September 1, 2001.
You shall make the New Version available to all new or existing
customers and You shall use commercially reasonable efforts to cause
Your existing customers to upgrade to the New Version.
4. You shall discontinue shipping any and all versions of the Licensed
Service containing RSA *Ref and/or SSLeay as soon as the New Version is
available, but in no event later than December 2, 2000.
5. Section 1.1 of the Agreement is hereby modified by deleting such
Section in its entirety and replacing it with the following
"Distributor" means an Internet service provider, dealer or distributor
in the business of relicensing or distributing the Licensed Service to
End User Customers, directly or through one or more Distributors by
virtue of authority granted by You. Licensed Products offered by a
Distributor shall bear Your trademarks and service marks and shall not
be privately labeled by such Distributor or other parties. A
Distributor shall have no right to add to or modify any part of a
Licensed Product.
6. Section 1.2 of the Agreement is hereby modified by deleting such
Section in its entirety and replacing it with the following: "End User
Customer" means a person or entity receiving the Licensed Service from
You or a Distributor for personal or internal use and primarily not for
resale, redistribution or other transfer of such Licensed Service to
any other person or entity.
2.
[ * ] Certain confidential information contained in this document, marked by
brackets,is filed with the Securities and Exchange Commission pursuant to
Rule 406 of the Securities Act of 1933, as amended.
7. Section 1.3 of the Agreement is hereby modified by deleting the third,
fourth and fifth sentence of such Section and replacing them with the
following: A Licensed Product shall consist of a component installed at
a Distributor location (a "Distributor Copy") and a component installed
at Your facilities (an "iPass Copy"). Each component of a Licensed
Product shall be capable of operating only with other components, but
Distributor Copies can operate only with an iPass Copy and not with
other Distributor Copies. The iPass Copies must be owned and operated
solely by You at Your sites.
8. Section 1.4 of the Agreement is hereby modified by deleting the last
sentence of such Section in its entirety and replacing it with the
following: "Only You or Your Distributors through You, may provide the
Licensed Service."
9. Section 1.8 of the Agreement is hereby modified by deleting such
Section in its entirety.
10. Section 2.1.1 of the Agreement is hereby modified by (a) deleting "in a
Client Licensed Product" from subsection (iii) of such Section and
replacing it with the following: "in a Distributor Copy"; (b) adding
after any reference to "employees" in subsection (iv) "or contractors";
and (c) adding the following to the end of such Section: "provided that
you agree to assume liability for any material breach caused by the
acts or omissions of Your contractors."
11. Section 2.2 of the Agreement is hereby modified by deleting "Client
Licensed Product" from the first sentence of such Section and replacing
it with the following: " Distributor Copy".
12. Section 4.3.3 of the Agreement is hereby modified by deleting "copies
of Client Licensed Products" from the first sentence of such Section
and replacing it with the following: "Distributor Copies".
13. Section 5.1 of the Agreement is hereby modified by deleting the first
sentence of such Section in its entirety and replacing it with the
following: "During the first ninety (90) days following implementation
of the RSA Software in accordance with the Licensed Product/Service
Schedule Exhibit", but in no event later than December 2, 2000, RSA
shall warrant that the RSA Software will operate in material
conformance to RSA's published specifications for the RSA Software
provided that You notify RSA of such implementation date.
14. Section 6.1 of the Agreement is hereby modified by deleting "in such
Licensed Product's start-up splash screen and" from the second sentence
of such Section.
15. Section 6.4 of the Agreement is hereby modified by deleting "Client
Licensed Product" from the first sentence of such Section and replacing
it with the following: "Distributor Copy".
16. Section 7 of the Agreement is hereby modified by deleting such Section
in its entirety and replacing it with the following: "Each party agrees
to maintain all "Confidential Information" received from the other
party, both orally and in writing, in confidence and agrees not to
disclose or otherwise make available such information to any third
party
3.
without the prior written consent from the Disclosing Party. For the
purpose of this Agreement, "Confidential Information" shall mean the
terms of this Agreement, any License Fees or accounting information
provided by one party to the other in performance hereof and
information clearly marked confidential if given in writing or if given
orally, identified as confidential orally prior to disclosure. Each
party may at its option, reduce oral Confidential Information to
writing, xxxx as Confidential Information and forward such writing to
the other party. Each party further agrees to use the Confidential
Information only for the purpose of performing the Agreement. No
information shall be deemed confidential unless so marked if given in
writing or, if given orally, identified as confidential orally prior to
disclosure. The Receiving Party's obligations of non-disclosure under
this Agreement shall not apply the information which (a) is or becomes
a matter of public knowledge through no fault of or action by the
Receiving Party; (b) was rightfully in the Receiving Party's possession
prior to receipt from the Disclosing Party; (c) subsequent to
disclosure, is rightfully obtained by the Receiving Party from a third
party who is lawfully in possession of such Confidential Information
without restriction; (d) is independently developed by the Receiving
Party without resort to Confidential Information which is confidential
under this Agreement, and can so be proven by written records; or (e)
is required by law or judicial order, provided that prior written
notice of such required disclosure is furnished to the Disclosing Party
as soon as practicable in order to afford the Disclosing Party an
opportunity to seek a protective order and that if such order cannot be
obtained disclosure may be made without liability. The obligation of
confidentiality shall extend for a period of five (5) years following
termination or expiration of this Agreement. The parties agree that
either party may disclose the existence of this Agreement, and that You
are an OEM of the RSA Software and that any publicly announced Licensed
Service uses the RSA Software. Notwithstanding the any of the
foregoing, in the event a Disclosing Party discloses a trade secret to
the other party, the Confidential provisions set forth in this Section
shall survive the Agreement in perpetuity provided that the trade
secret is clearly marked confidential if given in writing and forwarded
to the other party within thirty (30) days following disclosure.
17. Section 9.1 of the Agreement is hereby modified by (a) deleting "and
pay any award" from the first sentence of such Section and replacing it
with the following: "and pay in full any award"; (b) adding "United
States Patent." After "United States Copyright" in the first sentence
of such Section; (c) adding "full" before "settlement' in the first
sentence of such Section; and (d) adding "upon RSA's reasonable request
and RSA's reasonable expense" to the end of subsection (iii).
18. Section 9.3 of the Agreement is hereby modified by adding "provided
that RSA gives You, (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 upon Your reasonable request and Your reasonable expense."
19. Section 10 of the Agreement is hereby modified by deleting such Section
in its entirety.
20. Section 11.1 is hereby modified by deleting such Section in its
entirety and replacing it with the following: "This Agreement shall be
effective as of the Effective Date and shall
4.
continue in full force and effect for a period of three (3) years, and
shall automatically renew for each successive period unless and until
sooner terminated pursuant to the terms of this Agreement."
21. Section 11.2 of the Agreement is hereby amended to grant You the right
to terminate the Agreement upon sixty (60) days written notice to RSA
prior to the applicable anniversary of the Effective Date.
22. Section 11.4 of the Agreement is hereby modified by deleting such
Section in its entirety and replacing it with the following: "Upon
termination of this Agreement, You shall cease making copies of and
distributing the RSA Software, User Manual and Licensed Products, and
shall within one hundred eighty (180) days following termination, cease
using or permitting use of Licensed Products and at such time destroy
all copies of the RSA Software, User Manuals, and Licensed Products in
Your possession or control and all information and documentation
provided by RSA to You."
23. Section 11.5 of the Agreement is hereby modified by deleting such
Section in its entirety and replacing it with the following: "The
following provisions shall survive any expiration or termination of
this Agreement: 2.2, 3, 4.3.2, 5.3. 8, 9, 11.5, 12 and to the extent
necessary."
24. Section 12.1 of the Agreement is hereby modified by deleting the second
sentence of such Section in its entirety.
25. Section 12.2 of the Agreement is hereby modified by adding "which will
not be unreasonably withheld or delayed" after "without the prior
written consent of RSA" in the first sentence of such Section. Section
12.2 is further modified by adding the following to the end of such
Section: "Notwithstanding any of the foregoing, You shall not be
obligated to obtain RSA's consent for an assignment pertaining to a
change of state incorporation."
Note: By signing this agreement You represent that Services hereunder are being
published and distributed (physically or via remote access) for a consideration
to third parties. Any internal usage will be reported, as needed, directly by
You, to the appropriate sales tax agency.
iPASS, INC. RSA SECURITY INC.
By: /s/ Xxxxxx X. XxXxxxxx By: /s/ Xxxxxxxx Xxxx
-------------------------------------------- -----------------------------
Printed Name: Xxxxxx X. XxXxxxxx Printed Name: Xxxxxxxx Xxxx
----------------------------- -------------------
Title: Vice President & Chief Financial Officer Title: Director, Finance & OPS
----------------------------------------- --------------------------
Date: February 28, 2000 Date: 2/29/2000
------------------------------------------ ---------------------------
5.
AMENDMENT NUMBER ONE TO OEM SERVICE PROVIDE LICENSE AGREEMENT
This Amendment One to OEM Service Provider License Agreement, effective as of
the later date of execution, is entered into by and between RSA Security, Inc.,
a Delaware corporation, having a principal address at 0000 Xxxxxx Xxxxx, Xxxxx
000, Xxx Xxxxx, XX 00000-0000 ("RSA") and iPass, Inc., a corporation located at
0000 Xxxxxx Xxxxxxx, Xxxxxxx Xxxxxx, XX 00000 ("OEM").
BACKGROUND
RSA and OEM have entered into an OEM Service Provide License Agreement, and
accompanying Support Agreement, both dated February 29, 2000. The parties wish
to modify the Agreement as follows:
AGREEMENT
1. Definitions. Capitalized terms used and not otherwise defined in this
Agreement shall have the meanings designated in the License Agreement.
2. Three-year extension. The current term of the License Agreement set to
expire on February 28, 2003, shall be extended for three years (to
expire February 28, 2006).
3. License Fees. In consideration of the above, OEM shall pay RSA License
Fees in the amount of [ * ] as follows; (1) [ * ] for use of the RSA
Software in the Licensed Service through February 28, 2006; and (2) [ *
] for unlimited distribution of the RSA Software as embedded in the
Licensed Product through February 28, 2006. License Fees are payable
upon execution below, net 30 days of receipt of invoice.
4. Support Fees. The parties agree that, beginning February 29, 2003, all
renewal annual Support Fee pursuant to the Support Agreement entered
into between the parties shall be [ * ] per year.
5. Termination. Section 11.4 of the Agreement shall be replaced in its
entire with the following: "Upon termination of this Agreement, OEM
shall cease distributing new installation of the Licensed Product
containing any RSA Software and make reasonable efforts to replace the
RSA Software in OEM's existing customer implementations. Additionally,
OEM shall destroy all copies of the RSA Software, User Manual and
Licensed Products containing any RSA Software in OEM's possession or
control."
6. Effect of Amendment. Except as amended and provided herein, the License
and Support Agreements shall remain in full force and effect. In the
event of any inconsistency between the terms of the License and Support
Agreements and this Amendment, the terms of this Amendment shall
govern.
1.
[ * ] Certain confidential information contained in this document, marked by
brackets,is filed with the Securities and Exchange Commission pursuant to
Rule 406 of the Securities Act of 1933, as amended.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date of
the last signature below.
iPASS INC. RSA SECURITY, INC.
By: /s/ Xxxxxx X. XxXxxxxx By: /s/ Xxxxxxxxx X. Wee
----------------------------------- -------------------------------
Printed Name: Xxxxxx X. XxXxxxxx Printed Name: Xxxxxxxxx X. Wee
------------------------- ---------------------
Title: CFO Title: Corporate Counsel
-------------------------------- ----------------------------
Date: December 19, 2002 Date: December 20, 2002
--------------------------------- -----------------------------
2.
