1
Confidential materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
EXHIBIT 10.11
This SUPPORT AGREEMENT ("Support Agreement") is entered into by and between
RSA Data Security, Inc., a Delaware corporation ("RSA"), having a principal
address at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000-0000, and:
Enterprise Name ("Yes"): Silverstream Software, Inc.
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Jurisdiction of Incorporation: Delaware
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Street Address: One Burlington Xxxxx
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City: Xxxxxxxxxx Xxxxx & Xxx Xxxx: XX 00000
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Enterprise Legal Contact (Name & Title): Xxxxx Xxxxx, Director-Legal & Contracts
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Maintenance and Support Program Elected: Standard [X] Premier [ ]
Initial Annual Support Fee: [**]/year
The Effective Date of this Support Agreement is 6/30/99 shall be contingent upon
the execution of Amendment Number One to OEM Master License Agreement and
payment of the Initial Annual Support Fee of [**], less amounts owed for credit,
if any. This Support Agreement provides support and maintenance services for the
RSA Software licensed under Licensed Product Schedule Exhibit 0987-80.-0-LPS-1
and Amendment Number One to OEM Master License Agreement.
1 DEFINITIONS
All capitalized terms used and not defined herein shall have the meanings set
forth in the License Agreement or the following meanings:
1.1 "License Agreement" means that certain License Agreement between RSA and
You dated 9/30/97 as amended 6/30/99.
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1.2 "RSA Software" means RSA proprietary software identified as RSA Software on
page 1 of the License Agreement.
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2 MAINTENANCE AND SUPPORT SERVICES
2.1 GENERAL. This Support Agreement sets forth the terms under which RSA will
provide support to You for the RSA Software licensed to You for the Licensed
Products, as set forth under the unamended License Agreement. The use of and
license to any Fixes and Updates provided to You hereunder shall be governed by
the terms of the License Agreement.
2.2 SUPPORT AND MAINTENANCE. RSA agrees to provide the maintenance and support
specified in this Support Agreement and You agree to pay RSA's then-current
mutual support Fee ("Support Fee").
2.3 SUPPORT PROVIDED BY RSA. For the annual period commencing on the Effective
Date hereof, and for future annual periods for which You have paid the Support
Fee, RSA will provide You with the following services in accordance with the
program You have elected above:
2.3.1 SUPPORT UNDER STANDARD PROGRAM. In the event that You have elected
the Standard program, RSA will provide telephone support to You from 8:00
a.m. to 5:00 p.m. (Pacific Time), Monday through Friday, excluding locally
observed holidays. Upon the receipt of a request for support services, RSA
shall respond within one (1) business day from the time of the request. RSA
shall provide the support specified in this Section to Your employees
responsible for developing and maintaining the Licensed Products licensed
under the License Agreement and providing support to End User Customers
thereof. No more than two (2) of Your employees may obtain such support
form RSA at any one time. Upon RSA's request, You will provide a list with
the names of the employees designated to receive support from RSA. You may
change the names on the list at any time by providing written notice to
RSA. Upon Your request, RSA may provide on-site support reasonably
determined to be necessary by RSA at Your location specified on page 1
hereof.
2.3.2 SUPPORT UNDER PREMIER PROGRAM. In the event that You have elected the
Premier program, RSA will provide telephone support to You 24 hours a day,
7 days per week. Upon the receipt for a request for support services, RSA
shall respond within two hours from the time of the request. RSA shall
provide the support specified in this Section to Your employees responsible
for developing and maintaining the Licensed Products licensed under the
License Agreement and providing support to End User Customers thereof. No
more than five (5) of Your employees may obtain such support from RSA at
any one time. Upon RSA's request, You will provide a list with the names of
the employees designated to receive support from RSA. You may change the
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Confidential materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
names on the list at any time by providing written notice to RSA. Upon Your
request, RSA may provide on-site support reasonably determined to be
necessary by RSA at Your location specified on page 1 hereof.
2.4 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
efforts to correct such an error or to provide a software patch or bypass around
such an error (collectively, "Fixes") as early as practicable. All Fixes
provided to You shall constitute RSA Software under the License Agreement and
shall be governed by the terms thereof. Under no circumstances does RSA warrant
or represent all errors can or will be corrected. Furthermore, RSA shall not be
responsible for correcting any error if You fail to incorporate in Your Licensed
Product any Fixes or Update that RSA has provided to You.
2.5 UPDATES. RSA will from time to time offer You, at no additional cost,
Updates of the RSA Software during the term of this Support Agreement. You
understand, however, that RSA is not obligated to provide any Update. Absent any
restriction to Your right in use the algorithms contained in RSA Software, as
set forth in the applicable License Agreement in force at the time of execution
of this Support Agreement. Your license rights to any Updates shall also extend
to any new algorithms contained in such Updates. Any Updates acquired by You
shall be governed by all of the terms and provisions of the License Agreement.
3 MAINTENANCE AND SUPPORT FEES
3.1 SUPPORT FEES. In consideration of RSA's providing the maintenance and
support services described herein, You agree to pay RSA the initial Support Fee
set forth on the first page hereof. Such amount shall be payable for the first
year upon the execution of this Support Agreement, and for each subsequent year
in advance of the commencement of such year. The Support Fee may be modified by
RSA for each renewal term by written notice to You at least ninety (90) days
prior to the end of the then-current term. If You elect not to renew this
Support Agreement for successive terms (as provided in Section 6.1 below), You
may re-enroll only upon payment of the annual Support Fee for the coming year
and for all Support Fees that would have been paid had You not ceased
maintenance and support. RSA agrees that during the term of this Agreement and
for any subsequent renewal terms, [**].
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3.2 ADDITIONAL CHARGES. In the event RSA is required to take actions to correct
a difficulty or defect which is traced to Your errors, modifications,
enhancements, software or hardware, then You shall pay to RSA its time and
materials charges at RSA's rates then in effect. In the event that you have
requested RSA's personnel to travel to perform maintenance or on-site support,
You shall reimburse RSA for any reasonable out-of-pocket expenses incurred,
including travel to and from Your sites, lodging, meals and shipping, as may be
necessary in connection with duties performed under this Section 2 by RSA.
3.3 TAXES. All taxes, duties, fees and other governmental charges of any kind
(excluding 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 Support Fees or any
aspect of this Support Agreement shall be borne by You and shall not be
considered a part of, a deduction from or an offset against Support Fees.
3.4 TERMS OF PAYMENT. Support Fees due RSA hereunder shall be paid by You to
the attention of the Software Licensing Department at RSA's address set forth
above upon execution and, in the case of renewal terms, prior to each
anniversary thereof. A late payment penalty on any Maintenance Fees not paid
when due shall be assessed at the rate of one percent (1%) per thirty (30) days.
In no event shall Support Fees paid be refundable.
3.5 U.S. CURRENCY. All payments hereunder shall be made in lawful United States
currency.
4 CONFIDENTIALITY.
The parties agree that all obligations and conditions respecting
confidentiality, use of the Source Code (if Licensed to You) and publicity in
Section 7 of the License Agreement shall apply to the parties' performance of
this Support Agreement.
5 USE LIMITATIONS; TITLE; INTELLECTUAL
PROPERTY INDEMNITY; LIMITATION OF LIABILITY.
Any and all Upgrades and Fixes provided to You pursuant to this Support
Agreement shall constitute RSA Software under the License Agreement. As such,
the parties' respective interests and obligations relating to the RSA Software,
including but not limited to license and ownership rights thereto, use
limitations (if any), intellectual property indemnity and limitation of
liability, shall be governed by the terms of the License Agreement.
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6 TERM AND TERMINATION
6.1 TERM. This Support Agreement shall commence on the Effective Date hereof
and shall remain in full force and effect for an initial period of one (1) year,
unless sooner terminated in accordance with this Support Agreement. Upon
expiration of the initial period and each successive period, this Support
Agreement shall automatically renew for an additional one (1) year period,
unless either party has notified the other of its intent to terminate as set
forth in Section 6.2.3 herein.
6.2 TERMINATION.
6.2.1 Either party shall be entitled to terminate this Support Agreement at
any time on written notice to the other in the event of a material default
by the other party of this Support Agreement 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.
6.2.2 This Support Agreement shall automatically terminate in the event
that the License Agreement is terminated in accordance with its terms.
6.2.3 This Support Agreement may also be terminated by You for any or no
reason by providing written notice of such intent at least ninety (90) days
prior to the end of the then-current term. RSA may cease to offer support
and maintenance for future maintenance terms by notice delivered to You
ninety (90) days or more before the end of the then-current maintenance
term.
6.2.4 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 upon 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 Support Agreement may
immediately be terminated by the other party upon written notice.
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6.3 SURVIVAL OF CERTAIN TERMS. The following provisions shall survive any
expiration or termination of this Support Agreement: Sections 3.1, 4, 6, 8 and
7.
7 MISCELLANEOUS PROVISIONS
This Support Agreement is not an amendment to the License Agreement, but instead
is a separate binding agreement which incorporates certain terms of the License
Agreement for the purposes of brevity and assumed consistency. This Agreement
incorporates by this reference Section 11 of the License Agreement in its
entirety.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of
the later signature below.
ENTERPRISE NAME: Silverstream Software, Inc. RSA DATA SECURITY, INC.
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By: /s/ Xxxxx Xxxxx By: /s/ Xxxx X. Xxxxxxxxxx
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Printed Name: Xxxxx Xxxxx Printed Name: Xxxx X. Xxxxxxxxxx
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Title: CFO Title: VP; Finance & Admin.
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Date: 30 June 1999 Date: 6/30/99
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