EXHIBIT 10.31
AMENDMENT NUMBER TWO TO
BSAFE/TIPEM OEM MASTER LICENSE AGREEMENT
THIS AMENDMENT NUMBER TWO TO BSAFE/TIPEM OEM MASTER LICENSE AGREEMENT (the
"Amendment") by and between RSA Data Security, Inc., a Delaware corporation
("RSA") and VeriSign, Inc., a Delaware corporation ("VeriSign"), is made this __
day of December, 1998 (the "Effective Date") with respect to that certain
BSAFE/TIPEM OEM Master License Agreement dated April 18, 1995 between RSA and
VeriSign, as amended by Amendment Number One ("Amendment Number One") to
BSAFE/TIPEM OEM Master License Agreement between RSA and VeriSign dated May 1996
(as amended from time to time, the "Master Agreement").
RECITALS
WHEREAS, pursuant to the Master Agreement, RSA licensed to VeriSign the
cryptography toolkits known as BSAFE and TIPEM, and RSA agreed to incorporate
the VeriSign Root Key (as defined in Amendment Number One) into products
manufactured by third parties that include RSA products which process
certificates ("Certificate Products");
WHEREAS, RSA and VeriSign desire to amend the Master Agreement to provide
that: (a) VeriSign will subscribe to RSA's maintenance program , and (b) RSA
will have the right to request that root keys other than VeriSign's be included
in certain Certificate Products (as defined herein), all on the terms described
herein; and
WHEREAS, each party acknowledges that execution of this Amendment is in the
best interest of such party.
AGREEMENT
NOW THEREFORE, in reliance on the foregoing Recitals and in consideration
of the mutual consideration recited therein and contained herein, the parties
agree as follows:
1) Defined Terms. Any capitalized terms used herein without definition shall
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have the meaning ascribed to such terms in the Master Agreement.
2) RSA Maintenance Plan; Delivery of Updates.
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a) RSA Maintenance Plan. Not later than June 30, 1999, retroactive to the
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Effective Date of this Amendment, VeriSign will execute RSA's support
and maintenance agreement attached hereto as Exhibit A (the "Support
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Agreement"). For so long as VeriSign desires to receive New Releases
and New Versions of the Licensed Software, VeriSign will pay RSA yearly
maintenance fees equal to fifty percent (50%) of RSA's standard
published maintenance fees.
b) Amendment of Section 4 of Master Agreement. In connection with OEM's
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execution of the Support Agreement, Section 4 of the Master Agreement
(Support and Maintenance) is deleted in its entirety and is replaced
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with the following sentence:
In order to receive maintenance and support for the Licensed
Technology, VeriSign shall execute the Support Agreement attached
hereto as Exhibit A on or before June 30, 1999.
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c) Delivery of BSAFE Crypto-C v.4.0. The parties acknowledge and agree
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that, on Xxxxxxxx 0, 0000, XXX delivered to VeriSign a copy of BSAFE
Crypto-C v.4.0 in Source Code Form in reliance on VeriSign's
representation that it intended to execute this Amendment, the Support
Agreement, and the SDTI OEM Amendment (as defined in Paragraph 5
below). VeriSign shall execute the Support Agreement on or before June
30, 1999, retroactive to the Effective Date of this Amendment.
3) VeriSign Root Key. Paragraph 6 of Amendment No. 1 is hereby amended by
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adding the following new subparagraph 6.9 after existing subparagraph 6.8:
6.9 Notwithstanding anything to the contrary set forth in this Amendment,
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VeriSign acknowledges and agrees that from time to time, RSA's
customers may request that RSA include a root key in addition to the
VeriSign Root Key (an "Alternative Root Key") in a Certificate
Product. RSA may include only an Alternative Root Key in cases where
it is not technically feasible to incorporate more than one root key
in any Certificate Product. If any customer so requests the inclusion
of an Alternative Root Key, RSA will deliver to VeriSign in writing a
request for VeriSign's consent to such inclusion of the Alternative
Root Key, and VeriSign shall not unreasonably withhold its consent. In
the event that VeriSign does not unequivocally grant or deny such
request within twenty-one (21) days following VeriSign's receipt of
such request, then VeriSign's consent shall be deemed to be given on
the twenty-second day following such request, and RSA shall have the
right to include the Alternative Root Key in the Certificate Product
specified in the notice.
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4) Notices. Section 9.7 of the Master Agreement (Notices) is hereby deleted in
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its entirety, and the following new section 9.7 shall be substituted in its
place:
9.7 Notices. Any notices required or permitted to be given pursuant
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to the Master Agreement shall be in writing, and may be
personally delivered, telecopied (with confirmation by recognized
overnight courier), or sent by recognized overnight courier to
the following addresses, or to such other address as may be
specified from time to time by notice in writing. Any such notice
shall be deemed to have been given when received.
To VeriSign: VeriSign, Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
With a copy to: Fenwick & West
0 Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
To RSA: RSA Data Security, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Vice President, Business Development
Fax: (000) 000-0000
With a copy to: Security Dynamics Technologies, Inc.
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Operating Officer
Fax: (000) 000-0000
With a copy to: Security Dynamics Technologies, Inc.
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
5) Execution of SDTI OEM Amendment. Simultaneously herewith, RSA's parent,
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Security Dynamics Technologies, Inc. ("SDTI") and VeriSign are executing an
amendment to the Master Development and License Agreement dated September
30,
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1997 by and between SDTI and VeriSign (the "SDTI OEM Amendment"), pursuant to
which VeriSign will appoint SDTI, together with its affiliates, VeriSign's
exclusive OEM distributor of the Developed Technology (as that term is defined
in the SDTI OEM Amendment). The parties acknowledge and agree that execution
of the SDTI OEM Amendment is a condition to the effectiveness of this
Amendment, and if either party fails to execute the SDTI OEM Amendment, then
this Amendment is void and of no force and effect.
6) Counterparts. This Amendment may be executed in counterparts, each of which
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shall be an original and together which shall constitute one and the same
instrument.
7) Effect of Amendment. This Amendment amends the Master Agreement as of the
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Effective Date, and except as amended hereby, the Master Agreement shall
continue in full force and effect. Notwithstanding the foregoing, the
parties acknowledge and agree that certain terms contained in the Master
Agreement are unclear in certain respects, given the growth of the parties'
respective businesses.. Both parties acknowledge their desire to resolve any
contractual ambiguities promptly following the Effective Date. Therefore,
without prejudice to any rights which either party may have, following the
Effective Date, the parties shall work diligently to resolve these matters,
and each party agrees to amend the Master Agreement if necessary to clarify
each party's rights under the Master Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
VERISIGN, INC. RSA DATA SECURITY, INC.
By: /s/ Xxxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Title: President and CEO Title: Chief Operating Officer
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EXHIBIT "A"
This SUPPORT AGREEMENT ("Support 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 0000 Xxxxxx
Xxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000-0000, and:
ENTERPRISE NAME ("YOU"):_______________________________________________________
JURISDICTION OF INCORPORATION:_________________________________________________
STREET ADDRESS:________________________________________________________________
CITY:_________________________ STATE & ZIP CODE:_______________________
ENTERPRISE LEGAL CONTACT (NAME & TITLE):_______________________________________
MAINTENANCE AND SUPPORT PROGRAM ELECTED: STANDARD [ ] PREMIER [ ]
INITIAL ANNUAL SUPPORT FEE: $_____________/year
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 "FIXES" means any error corrections, fixes, patches or other software
provided to You as a result of RSA's support services.
1.2 "LICENSE AGREEMENT" means that certain License Agreement between RSA and
You dated ________________, ______.
1.3 "RSA SOFTWARE" means RSA proprietary software identified as RSA Software on
page 1 of the License Agreement.
2. MAINTENANCE AND SUPPORT SERVICES
2.1 GENERAL. This Support Agreement sets forth the terms under which RSA will
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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
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specified in this Support Agreement and You agree to pay RSA's then-current
annual support fee ("Support Fee").
2.3 SUPPORT PROVIDED BY RSA. For the annual period commencing on the Effective
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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
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the Standard program, RSA will provide telephone support to You from 6:00
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.
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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
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 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
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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 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 to Your location specified on page 1 hereof.
2.4 ERROR CORRECTION. RSA will from time to time offer You, at no additional
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cost, Fixes under this Agreement, but has no obligations to offer such Fixes.
All Fixes provided to You shall constitute RSA Software under the Licensed
Agreement and shall be governed by the terms thereof. 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 as early as practicable. However,
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,
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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 to use the algorithms contained in RSA Software,
as set forth in the applicable Licensed 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
Licensed Agreement.
3. MAINTENANCE AND SUPPORT FEES
3.1 SUPPORT FEES. In consideration of RSA's providing the maintenance and
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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.
3.2 ADDITIONAL CHARGES. In the event RSA is required to take actions to
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correct a difficulty or defect
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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
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(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 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
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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
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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 6 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.
6. TERM AND TERMINATION
6.1 TERM. This Support Agreement shall commences on the Effective Date hereof
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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.
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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.
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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.
6.3 SURVIVAL OF CERTAIN TERMS. The following provisions shall survive any
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expiration or termination: Sections 3.1, 4, 5, 6 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 purpose of brevity and assured consistency. This Agreement
incorporates by this reference Section 11 of the License Agreement in its
entirety.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
of the later signature below.
ENTERPRISE NAME:
________________________________ RSA DATA SECURITY, INC.
By:_____________________________ By:_____________________________
Printed Name:___________________ Printed Name:___________________
Title:__________________________ Title:__________________________
Date:___________________________ Date:___________________________
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