Portal Proprietary & Confidential
PORTAL
Agreement Number: ___________
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This Software License and Support Agreement dated July 28, 1998, ("Effective
Date") is entered into by and between Portal Software, Inc, a California
corporation with principle offices at 00000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Portal") and Pick Communications Corporation, a
Delaware corporation with principle offices at 0000 Xxxxxxxxx 00xx Xxxxxxx,
Xxxxx 000, Xxxxx, XX 00000 ("Licensee") and describes the terms and conditions
pursuant to which Portal shall license to Licensee and support certain Portal
Software (as defined below).
1. Definitions
1.1 "Affiliate" means an entity directly or indirectly controlled by Licensee,
where control means the ownership or control of more than fifty percent (50%) of
all of the voting power of the shares (or other securities or rights) entitled
to vote for the election of directors or other governing authority, as of the
date of this Agreement or hereafter during the term of this Agreement; provided
that such entity shall be considered an Affiliate only for the time during which
such control exists.
1.2 "Agreement" means this Software License and Support Agreement, including any
and all attached Schedules.
1.3 Application" means the specific Application set forth in Schedule A hereto
of the Portal Software running on one or more related computers at a single
location, that share the same Portal Software Database.
1.4 "Confidential Information" means this Agreement and all its Schedules, any
addenda hereto signed by both parties, all software listings, Documentation,
information, data, drawings, benchmark tests, specifications, trade secrets,
object code and machine-readable copies of the Portal Software, and any other
proprietary information supplied to Licensee by Portal or by Licensee to Portal
which is clearly marked as "confidential" if in tangible form, or identified as
"confidential" if orally disclosed
1.5 Designated Equipment" means the hardware make and model of the server
computer on which the Portal Software will be installed as set forth on
Schedule A.
1.6 Portal Software" means (i) the software products designated on Schedule A
hereto provided to Licensee by Portal in executable form (but not the Source
Code), (ii) thc associated program documentation ("Documentation"), (iii) any
source code or object code which Portal in its sole discretion may provide to
Licensee from time to time and (iv) any Updates, modifications, maintenance
releases, bug fixes or work-arounds which Portal may provide to Licensee from
time to time.
1.7 "Portal Software Database" means the customer database associated with the
Portal Software which contains the Customer Records.
1.8 "Production Site" means the address and location of the server computer on
which the Portal Software will be installed as set forth on Schedule A.
1.9 "Subscriber" means an individual customer record account object ("Customer
Record") in the Portal Software Database. The total number of Subscribers is
exactly equal to the number of Customer Records in the Portal Software Database.
In the event the Portal Software is used to manage, authenticate or otherwise
track the activities of any individual user(s) within corporate or group
Subscribers, each such individual user will be deemed a Subscriber for the
purposes of this Agreement, whether or not a separate Customer Record is created
in the Portal Software Database for that user.
1.10 "Updates" means any updates to the Portal Software licensed hereunder which
Portal, in its discretion, makes generally available to its Portal Software
licensees.
2 Grant of License
2.1 Partner may extend the licenses granted herein to its Affiliates (for so
long as they remain Affiliates), provided that all such Affiliates become bound
in writing (for Portal's benefit) to Licensee's obligations under this
Agreement, that Licensee assumes full responsibility for compliance by such
Affiliates with such obligations and that all payments and reports from
Affiliates will be made through Licensee together with any and payments and
reports required of Licensee.
Page 1
Portal Proprietary & Confidential
2.2 For so long as this Agreement remains in force Portal grants to Licensee a
perpetual, non-exclusive and non-transferable right to use the Portal Software
on the Designated Equipment and on designated Portal Software Databases located
at designated Production Sites only for the specified Application. Licensee will
pay Portal the Additional Production Site Fee set forth on Schedule A for each
additional installation of the Portal Software. Licensee will provide Portal
with thirty (30) days prior written notice of any Additional Production Site
installations and will pay the associated Additional Production Site Fee prior
to installing the Portal Software at each such Additional Production Site.
Licensee may possess only the number of copies of any Portal Software necessary
for the type of use specified above and may use such copies only in accordance
with this Agreement and the Documentation, Portal shall at all times retain
ownership of all Portal Software including any Documentation and any copies
thereof.
2.3 Portal will deliver to Licensee, as soon as is practicable, the necessary
password to enable Licensee to download from Portal's website one
machine-readable copy of the Software, along with one machine-readable copy of
the Documentation. Licensee may not reproduce the Documentation.
2.4 Licensee may copy the Portal Software for backup or archival purposes
provided that all titles, trademark symbols, copyright symbols and legends, and
other proprietary markings are reproduced.
2.5 Licensee shall be permitted to create applications using the Policy
Facilities Modules source code and Application Programming Interfaces ("Portal
Software Customization Tools") which Portal may, in its sole discretion,
provides to Licensee from time to time.
2.6 Portal grants and Licensee receives no other rights or licenses to the
Portal Software, derivative works (as defined in the United States copyright Act
of 1976, Title 17 USC Section 101 et. Seq.) or any intellectual property rights
related thereto, whether by implication, estoppel or otherwise, except those
rights expressly granted in this Section 2.
3 License Restrictions
3.1 Licensee agrees that it will not itself, or through any parent, subsidiary,
Affiliate, agent or other third party:
3.1.1 sell, lease, license, sublicense, encumber or otherwise deal with any
portion of the Portal Software or Documentation;
3.1.2 except to the minimum extent necessary to comply with EC Directive, if
applicable, or other applicable legislation, decompile, disassemble, or reverse
engineer any portion of the Portal Software or attempt to discover any source
code or underlying ideas or algorithms of any Portal Software;
3.1.3 other than to the extent permitted by Section 2.5 above, create any
Derivative Work based on the Portal Software or any Portal Confidential
Information;
3.1.4 use the Portal Software to provide processing services to third parties,
commercial timesharing, rental or sharing arrangements, or on a "service bureau"
basis or otherwise use or allow others to use the Portal Software for the
benefit of any third party;
3.1.5 provide, disclose, divulge or make available to, or permit use of the
Portal Software by persons other than Licensee's employees or consultants who
have signed a confidentiality agreement substantially consistent with the terms
and provisions herein, without Portal's prior written consent;
3.1.6 use any Portal Software, or allow the transfer, transmission, export or
re-export of any Portal Software or portion thereof in violation of any export
control laws or regulations administered by the U.S. Commerce Department, OFAC,
or any other government agency. All the limitations and restrictions on the
Portal Software in this Agreement also apply to the Documentation.
4 Manner of Payment
All payments due hereunder shall he made inside the U.S., in U.S dollars and are
exclusive of any sales, use or other taxes, fees or duties arising out of this
Agreement. In addition to any remedies Portal may have hereunder or at law, any
payments more than thirty (30) days overdue will bear a late payment fee of 1.5%
per month, or, if lower, the maximum rate allowed by law. Delays in payment will
result in a day-for-day delay of the Portal Software implementation timetable.
Page 2
Portal Proprietary & Confidential
5. License Fee
5.1 In consideration of the rights granted herein, Licensee shall pay Portal the
license fee specified in Schedule A on the Effective Date.
6 Maintenance and Technical Support
6.1 Upon payment or the annual maintenance and support fee set forth on Schedule
A, Licensee shall be entitled to receive Updates and technical support in
accordance with Portal's Gold Level Support Policy. Portal's current Gold Level
Support Policy appears at Schedule 8.
6.2 Support Services shall consist of (i) error correction and telephone support
provided during Portal's normal business hours to Licensee's technical support
contact concerning the installation and use of the then current release of the
Portal Software and (ii) product Updates that Portal in its discretion makes
generally available and are not designated by Portal as products for which it
charges a separate fee. Portal shall have no obligation to support (a) altered,
damaged or modified Portal Software (except as authorized by Portal) or any
portion of the Portal Software incorporated into other software, (b) Portal
Software that is not the then current or immediately previous sequential release
(c) problems caused by Licensee's negligence, abuse. or misapplication. or use
of the Portal Software other than as specified in Portal 5 user documentation or
other causes beyond the control of Portal, or (d) Portal Software installed on a
system that is not supported by Portal. Portal shall have no liability for any
changes in Licensee's hardware which may he necessary to use the Portal
Software.
6.3 Portal may elect on sixty (60) days notice (i) effective on any Annual
Maintenance fee payment date with respect to any particular Portal Software, to
change the support services terms for that Portal Software to its then current
terms and/or (ii) effective on the third or any later Annual Maintenance Fee
payment date with respect to any particular Portal Software, not to provide
Support Services to Licensee for that Portal Software, in which cases Licensee
may elect to forego further Support Services and Annual Maintenance Fees for
such Portal Software.
7 Termination
7.1 This Agreement commences on the Effective Date and will remain in force
until it is terminated.
7.2 Licensee may, upon thirty (30) days prior written notice to Portal,
terminate this Agreement. However, no such termination will entitle Licensee to
a refund of any portion of any monies which have been paid to Portal.
7.3 Either party may, by written notice to the other party, terminate this
Agreement if any of the following events ("Termination Events") occur, provided
that no such termination will entitle Licensee to a refund of any portion which
have been paid to Portal;
7.3.1 The other party is in breach of any material provision of this Agreement,
which breach, if capable of being cured, is not cured within thirty (30) days
after written notice of such breach is provided by the non breaching party; or
Portal may terminate this Agreement immediately upon notice if Licensee breaches
any of its obligations under Section 3 above;
7.4 Termination will become effective immediately or on the date set forth in
the written notice of termination. Termination of this Agreement will not affect
the provisions regarding Licensee's or Portal's treatment of Confidential
Information, Portal's indemnification obligations under Section 8 below,
provisions relating to the payments of amounts due, provisions limiting or
disclaiming Portal's liability, and/or provisions regarding applicable law,
which provisions will survive termination of this Agreement.
7.5 Upon termination, all licenses granted hereunder shall cease to be effective
and licensee shall immediately cease all use of any affected Portal Software,
Documentation and Portal Confidential Information.
7.6 Within thirty (30) days of the date of termination or discontinuance of this
Agreement for any reason whatsoever, Licensee shall return the Portal Software,
derivative works and all copies thereof, in whole or in part, all related
Documentation and all copies thereof, and any other Confidential Information in
its possession, Licensee shall furnish Portal with a certificate signed by an
executive officer of Licensee verifying that the same has been done.
7.7 Termination is not an exclusive remedy and all other remedies will be
available whether or not termination occurs.
Page 3
Portal Proprietary & Confidential
8 Indemnification for Infringement
8.1 Portal shall, at its expense, defend or settle any claim, action or
allegation brought against Licensee that the Portal Software infringes any
patent, copyright, trade secret or other proprietary right of any third party
and shall pay any final judgment awarded or settlements entered into; provided
that Licensee gives prompt written notice to Portal of any such claim. action or
allegation of infringement and gives Portal the authority to proceed as
contemplated herein. Portal will have the exclusive right to defend any such
claim. action. or allegation and make settlements thereof at its own discretion,
and Licensee may not settle or compromise such claim, action or allegation,
except with prior written consent of Portal, Licensee shall give such assistance
and information as Portal may reasonably require to settle or oppose such
claims.
8.2 In the event any such infringement. claim, action. or allegation is brought
or threatened, Portal may. at its sole option and expense:
8.2.1 Procure for Licensee the right to continue use of the Portal Software or
the infringing portion thereof;
8.2.2 Modify, amend or replace the Portal Software or infringing part thereof
with other software have substantially the same or better capabilities;
8.2.3 If neither of the foregoing can he accomplished by Portal within a
reasonable period of time, Portal shall refund the portion of the licensee fee
specified on Schedule A related to the infringing part thereof less
one-forty-eighth (1/48) thereof for each month or portion thereof that this
Agreement has been in effect. In the event that such refund is made, Licensee
shall immediately cease using the infringing portion of the Portal Software and
will remove the same from its system and so certify to Portal. By paying a
refund in the manner herein contemplated Portal will be released from any
further obligation whatsoever to Licensee in connection with the infringing part
of the Portal Software.
8.3 The foregoing obligations shall not apply to the extent the infringement
arises as a result of modifications to the Portal Software made by any party
other than Portal or Portal's authorized representative. This Section 8 states
the entire liability of Portal with respect to infringement of any patent,
copyright, trade secret or other proprietary right
9 Warranty and Limitation of Liability
9.1 Portal warrants to Licensee that the Portal Software will perform in
substantial accordance with the Documentation for a period of one hundred eighty
(180) days from the Effective Date. If the Portal Software does not perform as
warranted, Portal shall undertake to correct the nonconforming part of the
Portal Software, or if correction is reasonably not possible, replace such
non-conforming part of the Portal Software free of charge. If neither of the
foregoing can be accomplished by Portal within a period of time, Portal shall
refund the monies paid by Licensee for that non-conforming part of the Portal
Software. In the event that such refund is made, Portal may amend Schedule A
with respect to the nonconforming part of the software program. THE FOREGOING
ARE LICENSEE'S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. The warranty
set forth above is made to and for the benefit of Licensee only and will be
enforceable against Portal only if:
9.1.1 The Portal Software has been properly installed and has been used at all
times in accordance with the Documentation and this Agreement;
9.1.2 All modifications, alterations or additions to the Portal Software, if
any, have been made using Portal Software Customization Tools provided by Portal
to Licensee; and
9.1.3 Licensee has not made or caused to be made modifications, alterations or
additions to the Portal Software that cause it to deviate from the
Documentation.
9.2 Except as set forth above, Portal makes no warranties, whether express or
implied, or statutory regarding or relating to the Portal Software or the
Documentation, or any materials or services furnished or provided to Licensee
under this Agreement. Specifically, Portal does not warrant that the Portal
Software will be error free or will perform in an uninterrupted manner. To the
maximum extent allowed by law, Portal specifically disclaims all implied
warranties of merchantability and fitness for a particular purpose (even if
Portal had been informed of such purpose) with respect to the Portal Software,
Documentation and support and with respect to the use of any of the foregoing.
Page 4
Portal Proprietary & Confidential
9.3 In no event will Portal or its subcontractors be liable for any loss of
profits, loss of use, business interruption, loss of data, cost of cover or
indirect, special, incidental or consequential damages of any kind in connection
with or arising out of the furnishing, performance or use of the Portal Software
or services performed hereunder or any delay in delivery or furnishing the
Portal Software or said services whether alleged as a breach of contract or
tortious conduct, including negligence, even if Portal had been advised of the
possibility of such damage.
9.4 Portal's maximum aggregate liability (whether in contract, tort or any other
form of liability) for damages or loss, howsoever arising or caused, whether or
not arising from Portal's negligence, shall in no event be greater than (a) in
the event such damage is not related to support, the license fee specified in
Schedule A related to the particular Portal Software program which caused the
damage or loss, or (b) in the event such damage or loss is related to support,
the support fees paid by licensee for the then current support term.
9.5 No employee, agent, representative or affiliate of Portal has authority to
bind Portal to any oral representations or warranty concerning the Portal
Software. Any written representation or warranty not expressly contained in this
Agreement is unenforceable.
10 Embedded Reporting/Compliance Routine; Audit Rights
10.1 The Portal Software contains or may contain in future versions an automated
reporting routine that will automatically identify and analyze certain aspects
of Portal Software use and performance, as well as the operator and operating
environment, and among other things, transmit electronic reports to Portal.
Portal will provide Licensee, on request, with a description of these routines
and Licensee agrees not to disrupt or interfere with them without the prior
written agreement of Portal. Portal will be entitled to inspect the installation
and configuration of the Portal Software from time to time on reasonable notice.
10.2 Licensee shall keep and maintain full, accurate and detailed records
regarding the License and the number of End Users of the Portal Software. Portal
or its representatives shall be entitled to review and audit such books and
records and/or Licensee's compliance with the provisions of this Agreement once
per year during normal business hours upon reasonable notice to Licensee, and
shall either be personally delivered by rapid courier service or mailed by
certified or registered mail to a party at its address as set forth herein or as
amended pursuant to this Section 10.2.
11 Assignment/Binding Agreement
Neither this Agreement nor any rights under this Agreement may be assigned or
otherwise transferred by Licensee, in whole or in part, whether voluntary or by
operation of law, including by way of sale of assets merger or consolidation,
without the prior written consent of Portal which shall not be unreasonably
withheld or delayed. Subject to the foregoing, this Agreement will be binding
upon and will inure to the benefit of the parties and their respective
successors and assigns. Notwithstanding the foregoing, no transfer or assignment
of Licensee's rights hereunder shall be effective unless and until (1) Licensee
has paid and remains current on all amounts due hereunder, and (2) the purported
assignee agrees in writing to be bound by all of the obligations of Licensee
hereunder.
12 Confidentiality
12.1 Each Party acknowledges that the Confidential Information constitutes
valuable trade secrets and each party agrees that it shall use the Confidential
Information of the other party solely in accordance with the provisions of this
Agreement and it will not disclose, or permit to he disclosed, the same directly
or indirectly, to any third party without the other party's prior written
consent. Each party agrees to exercise due care in protecting the Confidential
Information from unauthorized use and disclosure. However, neither party bears
any responsibility for safeguarding any information that it can document in
writing (i) is in the public domain through no fault of its own, (ii) was
properly known to it, without restriction, prior to disclosure by Disclosing
Party, (iii) was properly disclosed to it., without restriction, by another
person with the legal authority to do so, (iv) is independently developed by
Receiving Party without use or reference to Disclosing Party's Proprietary
Information or (v) is required to be disclosed pursuant to a judicial or
legislative order or proceeding; provided that, to the extent permitted by and
practical under the circumstances, Receiving Party provides to Disclosing Party
prior notice of the intended disclosure and an opportunity to respond or object
to the disclosure or if prior notice is not permitted or practical under the
circumstances, prompt notice of such disclosure.
12.2 In the event of actual or threatened breach of the provisions of Section 3
or Section 12.1, the non-breaching party will be entitled to immediate
injunctive and other equitable relief as may be deemed appropriate by a court or
tribunal of competent jurisdiction, without bond and without the necessity of
showing actual damage
Page 5
Portal Proprietary & Confidential
13 Notice
Any notice required or permitted under the terms of this Agreement or required
by law must be in writing and must be (a) delivered in person, (b) sent by
registered mail, return receipt requested, (c) sent by overnight air courier, or
(d) by facsimile, in each case forwarded to the appropriate address set forth
above. Either party may change its address for notice by written notice to the
other party. Notices will be considered to have been given at the time of actual
delivery in person, three (3) business days after posting, or one days after
(vi) delivery to an overnight air courier service or (vii) the moment of
transmission by facsimile.
14 Miscellaneous
14.1 Force Majeure. Neither party will incur any liability to the other on
account of any loss or damage resulting from any delay or failure to perform all
or any part of this Agreement if such delay or failure is caused, in whole or in
part, by event, occurrences, or causes beyond its control and without negligence
of the parties. Such events, occurrences or causes will include, without
limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes,
fire and explosions, but the ability to meet financial obligations is expressly
excluded.
14.2 Waiver. Any waiver of the provisions of this Agreement or of a party's
rights or remedies under this Agreement must be in writing to be effective.
Failure, neglect or delay by a party to enforce the provisions of this Agreement
or its rights or remedies at any time will not be construed to be deemed a
waiver of such party's rights under this Agreement and will not in any way
affect the validity of the whole or any part of this Agreement or prejudice such
party's right to Lake subsequent action.
14.3 Severability. If any term, condition or provision in this Agreement is
found to be invalid, unlawful or unenforceable to any extent, the parties shall
endeavor in good faith to agree to such amendments that will preserve, as far as
possible, the intentions expressed in this Agreement. If the parties fail to
agree on such an amendment. such invalid term, condition or provision will be
severed from the remaining terms, conditions and provisions, which will continue
to be valid and enforceable to the fullest extent permitted by law.
14.4 Entire Agreement. This Agreement (including the Schedules and any addenda
hereto signed by both parties) contains the entire agreement of the parties with
respect to the subject matter of this Agreement and supercedes all previous
communications, representations, understandings and agreements, either oral or
written, between the parties with respect to said subject matter.
14.5 Standard Terms of Licensee. No terms, provisions or conditions of any
purchase order, acknowledgement or other business form that Licensee may use in
connection with the acquisition or licensing of the Portal Software will have
any effect on the rights, duties or obligations of the parties under, or other
otherwise modify, this Agreement. regardless of any failure of Portal to object
to such terms, provisions. or conditions.
14.6 Public Announcements/Publicity. Licensee and Portal agree to cooperate
regarding public relations activities, including public announcements, joint
press releases, and other activities to be mutually agreed. Neither party will
perform such activities without the prior written consent of the other party,
which consent shall not be unreasonably withheld.
14.7 Counterparts. This Agreement may be executed in counterparts, each of which
so executed will be deemed to be an original and such counterparts together will
constitute one arid the same Agreement.
14.8 Applicable Law. This Agreement will be interpreted and construed in
pursuant to the laws of the State of California and the United States without
regard to conflicts of laws provisions thereof and without regard to the United
Nations Convention on the International Sale of Goods. However, any controversy
or claim arising out of or in connection with this agreement that has not been
cured shall be settled by binding arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association and judgement thereon
shall be entered in any court of competent jurisdiction. The sole and exclusive
jurisdiction for all such arbitrations shall be San Jose, California.
Notwithstanding the foregoing or anything else in this agreement, nothing in
this Agreement shall preclude any party from seeking injunctive or other
equitable relief as contemplated by Section 12.2 above. Any waivers or
amendments shall be effective only if made in writing. This Agreement is the
complete and exclusive statement of the mutual understanding of the parties and
supersedes and cancels all previous written and oral agreements and
communications relating to the subject matter of this Agreement. The prevailing
party in any action to enforce this Agreement will be entitled to recover its
reasonable attorney's fees and costs in connection with such action. Licensee
represents that it is not a government agency and it is not acquiring the
license pursuant to a government contract or with government funds.
Page 6
Portal Proprietary & Confidential
IN WITNESS WHEREOF, the authorized representatives of the parties hereby bind
the parties by signing below:
Pick Communications Corp.
Page 7
