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Exhibit 10.2
CLIENT SOFTWARE LICENSE AGREEMENT
This Client Software License Agreement ("Agreement") is between Citrix
Systems, Inc., a Delaware corporation, with primary offices at 0000 XX 0xx Xxx,
Xxxx Xxxxxxxxxx, XX 00000, ("Citrix"), and INVNSYS TECH. CORPORATION, a
_____________ corporation, with primary offices __________________ ("Licensee").
The effective date of this Agreement is 12-30-98 ("Effective Date").
RECITALS
Citrix designs, manufactures, markets, and distributes certain computer
system software products. Licensee designs, manufactures, markets, and
distributes Licensee's ______________ products which are complementary to the
Citrix products.
Citrix and Licensee wish to cooperate such that Licensee may offer
Citrix products to its customers in combination with Licensee's existing or
planned products or technology.
These recitals are intended only to summarize the intent of this
Agreement. The actual terms and conditions of the Agreement are stated below.
AGREEMENT
1. DEFINITIONS
1.1. "Citrix Product(s)" means the products specified in Exhibit A,
as such products may be adapted by Licensee for use in Licensee
Products pursuant to subsection 2.1 below, and includes all
Product Releases, Version Releases, and Update Releases provided
by Citrix to Licensee in connection with this Agreement.
1.2. "Non-Volatile Memory" means a storage unit which is dedicated to
storage of the Licensee Product and which retains the Licensee
Product when power is turned off, e.g., ROM or other silicon,
and not including diskettes, CD-ROM, hard disks or other general
purpose peripherals.
1.3. "Licensee Product(s)" means the terminal products specified in
Exhibit B, which shall include the Citrix Product(s) in
Non-Volatile Memory, and which shall be marketed and distributed
by Licensee as approved by Citrix.
1.4. "FCS" of a Licensee Product means the first customer ship of
that Licensee Product for revenue by Licensee.
1.5. "Product Release" means a release of a Citrix Product which is
designated by Citrix in its sole discretion as a change in the
digit(s) to the left of the decimal point in the Citrix Product
version number, ({x}.xx).
1.6 "Version Release" means a release of a Citrix Product which is
designated by Citrix in its sole discretion as a change in the
tenths digit in the Citrix Product version number, (x. {x} x).
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1.7 "Update Release" means a release of a Citrix Product which is
designated by Citrix in its sole discretion as a change in the
hundredths digit in the Citrix Product version number
(x.{x}x).
1.8 "Documentation" means the standard user guidelines developed
and released by Citrix for use with the Citrix Products.
1.9 "Documentation Media" means the diskettes, CDs, or other media
containing the machine-readable data files developed by Citrix
which contain the source for the Documentation.
1.10 "Master Software Media" means the standard microcomputer
diskettes, CDs, or other media containing the object code
version of the Citrix Product(s).
1.11 "Period" means those periods of time identified in Exhibit C.
1.12 "Level I Support" means receipt and management of all customer
support calls, and provision of fixes for known problems.
1.13 "Level 2 Support" means reproducing and isolating problems,
and jointly developing, workarounds for problems and testing
software fixes with the other party.
1.14 "Level 3 Support" means providing software fixes for
correction of isolated problems, and jointly developing
workarounds for, problems and testing software fixes with the
other party.
1.15 "ICA" means the Citrix architecture and proprietary protocols
which define communications between server computers and
workstations or terminals such that the intelligence and
memory resident in the workstation or terminal is efficiently
exploited. ICA protocols relate to functions including, but
not limited to the following: distributed Windows graphical
user interface, full screen text, virtual channels, data
packet framing, compression, and encryption.
1.16 "Reseller" shall mean distributors and subdistributors within
Licensee's distribution channel which market and deliver
Licensee Products in the form in which the products are
received from Licensee.
1.17 "Technical Manager" means the individual designated by
Licensee on Exhibit B hereto to receive, maintain and, when
required, return the Citrix Deliverables. Licensee may assign
a new Technical Manager only upon thirty (30) days written
notice to Citrix.
2. LICENSE GRANT
2.1. License to adapt software. Each Citrix Product as delivered by
Citrix may include certain software in source code form
("Source Code Fragments"), as specified in Citrix grants to
Licensee a nonexclusive and nontransferable license to modify,
delete, or replace these Source Code Fragments within each
Citrix Product or, if applicable, to use the ICA 3.0 materials
solely in order to adapt that Citrix Product for use in
Licensee Products. No other rights to any Citrix Product
source code are granted.
2.2. License to copy software. Subject to the terms and conditions
contained in this Agreement, Citrix -rants to Licensee a
nontransferable and nonexclusive license to copy
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the Citrix Products from the Master Software Media to
Non-Volatile Memory for incorporation into Licensee Products.
2.3 License to copy documentation. Subject to the terms and
conditions contained in this Agreement, Citrix grants to
Licensee a nontransferable and nonexclusive right to copy the
Documentation Media solely for the purpose of distributing
printed copies of the Documentation with Licensee Products to
which the Documentation refers, pursuant to subsection 2.5
below. Licensee may reproduce the Documentation as exact copies
or, subject to subsection 8.6 below, Licensee may produce
derivative works of the Documentation. In either case, the
quality of produced documentation by Licensee must be equal to
or better than the quality of Documentation produced by Citrix.
Prior to distribution Licensee will deliver to Citrix a copy of
each document it produces based on the Citrix Documentation, for
review and approval by Citrix, which approval shall not be
unreasonably withheld.
2.4. Restriction on license. Licensee agrees that, except as
specified in subsection 2.1 above, it will not make
modifications to, decompile, reverse engineer or otherwise
decode or alter the software delivered on the Master Software
Media. Licensee further agrees that it shall not modify or
remove functions in Citrix Products, nor shall Licensee offer
such functions to its customers in stock keeping units ("SKUs")
which divide the Citrix Product functions in a manner different
from the function packaging of the standard Citrix SKUS, except
as may be authorized by this Agreement or as may be authorized
by Citrix in writing.
2.5. License to distribute. During the term of, and subject to the
terms and conditions of, this Agreement, Citrix grants to
Licensee, and Licensee accepts, the nonexclusive,
nontransferable right to incorporate the Citrix Product(s) in
NonVolatile Memory, in the Licensee Product(s), as specified in
subsection 2.2 above, only in the manner provided in Exhibit B,
and to distribute such Citrix Product(s) so incorporated in
Licensee Products subject to the restrictions of subsection 11.3
below.
2.6. Terms of Distribution. Licensee agrees that it will distribute
the [Licensee/Citrix] Products pursuant to such license
agreements as Licensee customarily uses to distribute other
similar software. Except as permitted in this Agreement,
Licensee shall contractually prohibit, and shall require its
distributors and other resellers to contractually prohibit, end
users and all entities in the chain of distribution from: (i)
using, copying (except as necessary for back-up or archival
purposes or to the extent expressly permitted by applicable law
and to the extent that Citrix is not permitted by that
applicable law to exclude or limit such rights), modifying, or
transferring the software or any copy in whole or in part, or
granting any rights in the software or accompanying
documentation; (ii) translating, reverse engineering,
decompiling, disassembling, or creating derivative works based
on the software or the accompanying documentation; (iii) renting
or leasing the software; or (iv) removing any proprietary
notices, labels, or marks on the software and accompanying
documentation.
3. TERMS OF PAYMENT
3.1. Price and payment. Licensee agrees to pay Citrix the amount(s)
and within the times stated in this Section 3 and in Exhibit C.
Licensee's obligation to pay such amounts is unconditional
except as is otherwise expressly stated to the contrary herein.
The royalties due to Citrix for each Period will be paid within
fifteen (15) business days after the end
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of each Period. A finance charge of one percent per month, or,
if less, the maximum percentage allowed by applicable law,
will be assessed on all amounts that are past due.
3.2. Reports. Within fifteen (15) business days of the end of each
Period, Licensee will deliver to Citrix a certified report in
a form reasonably acceptable to Citrix that details for each
Citrix Product and each Licensee Product (1) the number of
copies distributed by Licensee during the Period, by customer
zip code in a format reasonably acceptable to Citrix, (ii) the
number of such distributed copies which are exempt from
royalties per subsection 3.4 below, and (iii) the license fee
due Citrix on copies distributed during that Period.
3.3. Taxes. Prices stated are exclusive of any federal, state,
withholding, municipal or other governmental taxes, duties,
licenses, fees, excises or tariffs now or hereafter imposed on
Licensee's production, storage, licensing, sale,
transportation, import, export or use of Citrix Products or
Licensee Product(s). Such charges shall be paid by Licensee,
or in lieu thereof, Licensee shall provide an exemption
certificate acceptable to Citrix and the applicable authority.
Citrix, however, shall be responsible for all taxes based upon
its net income.
3.4. Copies exempt from royalties. No royalty shall accrue to
Citrix for copies of Citrix Product(s) (i) used solely for
development, testing, and/or technical support purposes; (ii)
shipped as replacement copies for copies found to be defective
in materials, manufacture, or reproduction; (iii) which are
Update Releases provided to Licensee by Citrix pursuant to
subsection 7.2 below and are shipped by Licensee as an update
of a Citrix Product copy for which Licensee has paid to Citrix
the applicable royalty; (iv) used exclusively for
demonstration or promotional purposes, such copies not to
exceed two hundred (200) copies for each Version Release; or
(v) provided to Citrix; so long as, in all cases above, such
copies are provided by Licensee for free or for Licensee's
reasonable cost of goods plus shipping and handling.
4. DELIVERY
4.1. Citrix Deliverables. For each Citrix Product specified in
Exhibit A, at mutually agreed upon delivery dates, Citrix will
deliver to Licensee two (2) copies of the Master Software
Media and two (2) copies of the Documentation Media to use for
the purposes and under the restrictions described herein.
5. ACCEPTANCE AND WARRANTY
5.1. Acceptance. Within thirty (30) days after Citrix' delivery to
Licensee of any Product Release, Version Release, or Upgrade
Release of a Citrix Product licensed hereunder, Licensee shall
either accept such Citrix Product or report material
deviations from specifications in writing. Material
conformance to specifications shall solely determine
acceptability. If Licensee does not report material deviations
from product specifications within the thirty (30) day period,
or if Licensee ships a Licensee Product to a customer for
revenue, Licensee shall be deemed to have accepted the Citrix
Product.
5.2. Deviations. If Licensee reports any material deviations from
Citrix Product specifications prior to acceptance then Citrix
shall have sixty (60) days to correct such deviations. Upon
delivery of a corrected release of the Citrix Product to
Licensee, Licensee shall have thirty (30) days in which to
re-evaluate the corrected release for material conformance to
specifications as provided in subsection 5.1 above. If any
material deviations from
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specifications reported before acceptance are not eliminated
in the sixty (60) day correction period, then, as Licensee's
sole remedy (i) the Citrix Product may be retained at an
equitable adjustment in price as may be agreed by the parties,
(ii) the correction period may be extended as may be agreed by
the parties, or (iii) failing any agreement, Licensee may
reject the Citrix Product. If Licensee rejects any Citrix
Product Release or Version Release, the parties shall
renegotiate in good faith Licensee's payment obligations
therefor pursuant to Exhibit C.
5.3. Disclaimer of warranty. Apart from Citrix' obligations to
provide error corrections and support the Citrix Product(s)
pursuant to subsections 5.2 and 7.2, CITRIX DISCLAIMS ANY AND
ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND WHATSOEVER,
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE FOR
MERCHANTABILITY, SATISFACTORY QUALITY, AND/OR FITNESS FOR A
PARTICULAR PURPOSE, WHICH ARE EXPRESSLY EXCLUDED.
5.4. Unreleased product. Licensee shall not distribute for revenue
any release of a Citrix Product in any form until Citrix
olives its written approval of such Citrix Product for such
distribution by its OEM customers generally or until Licensee
receives the final form of the Master Software Media for such
Citrix Product as declared in writing by Citrix.
6. TRAINING
6.1. Technical training. Citrix shall provide to Licensee one and
one half (1 1/2) days of "Train the Trainer" sales training;
and two (2) days of "Train the Trainer" technical support. All
training shall be conducted at Citrix' facility at Citrix
standard rates. Citrix shall also provide to Licensee up two
(2) weeks of "on the phone" support training to at least one
Licensee Xxxxx 0 support engineer at Citrix' facility, at
Citrix standard rates.
7. SUPPORT
7.1. Licensee. Licensee shall be responsible for Level I and Level
2 support for the Citrix Product(s). For a period of three
months following the first shipment of Licensee Product(s) by
Licensee, Citrix shall provide appropriate consulting support
as required to Licensee for these efforts. Citrix shall have
no responsibility to deal directly with Licensee's customers.
Licensee shall keep its Citrix Product(s) support capabilities
current by attending Citrix training classes, as appropriate,
at Citrix' regular class rate.
7.2. Citrix. Citrix shall be responsible for the joint development
of workarounds and for Level 3 support for unmodified portions
of Citrix Product(s) relative to deviations from product
specifications, such support to be provided without charge to
Licensee. If Licensee reports any deviations from
specifications in a Citrix Product following acceptance and
during the term of this Agreement, then, as Licensee's sole
remedy, Citrix agrees to use reasonable efforts to correct
such deviations. Notice to Citrix of any deviations from
product specifications shall be made in writing using Citrix'
standard problem reporting mechanisms as they may be updated
from time to time, or using the notice provisions of
subsection 15.5 below. Citrix' obligations under this
subsection as to a particular release of a Citrix Product
shall cease ninety (90) days after delivery to Licensee of an
Update Release, Version Release, or Product Release with a
higher version number which has been accepted pursuant to
Section 5 above. Any free Update Releases provided by Citrix
to its customers generally shall be provided to Licensee
without charge within thirty (30) days of the general
availability of such Update Releases.
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8. ADDITIONAL OBLIGATIONS OF LICENSEE
8.1. Licensee Products for Citrix use. As soon as possible, and at
least thirty (30) days prior to FCS of each Licensee Product,
Licensee shall deliver to Citrix, for Citrix' internal use,
six (6) Licensee Products. From time to time Licensee shall
promptly upgrade or replace, as appropriate, these Licensee
Products to ensure that they are representations of the
current version of each Licensee Product.
8.2. Quality control. Licensee agrees to exercise the highest level
of quality assurance, with regard to media, replication, and
testing procedures, generally in use in the computer software
industry in connection with Licensee's exercise of the rights
granted in Section 2 above.
8.3. Copyright and patent notices. Licensee agrees not to alter or
remove any copyright and/or patent notices in the Citrix
Products. Licensee agrees to comply with the copyright and
patent notice requirements as set forth in Exhibit D.
8.4. Terminal Client Identifier. Licensee agrees not to modify or
delete Citrix' standard licensing technology that identifies
the Licensee client as an embedded ICA client. This will allow
for connections to WinFrame for Terminals and MetaFrame for
Terminals.
8.5. Citrix attribution. Licensee agrees to cause a screen
providing attribution to Citrix, in accordance with the
requirements specified in Exhibit D, to appear on each
Licensee Product upon initiation of use of the Licensee
Product.
8.6. Product and Version release numbers. Licensee shall market
each release of each Licensee Product with reference to the
ICA version/release number assigned by Citrix to the Citrix
Product, contained in the Licensee Product. As a result of
this, resellers and/or end users must be easily able to
determine correspondence between Licensee Product releases and
ICA version/release levels.
8.7. Licensee Product translation. Licensee agrees that it may
translate neither the Documentation nor the Citrix Products to
languages other than U.S. English without the prior written
consent of Citrix.
9. TERM AND TERMINATION
9.1. Initial and renewal terms. The initial term of this Agreement
("Initial Term") shall run for two (2) years from the
Effective Date. This Agreement shall renew automatically each
year for a one year term, unless either party gives sixty (60)
days written notice of its intent to allow this Agreement to
expire at the end of the then current term.
9.2. Termination for cause. If either party defaults in the
performance of any material provision of this Agreement, then
the non-defaulting party may give written notice to the
defaulting party that, if the default is not cured within
sixty (60) days the Agreement will be terminated. If the
non-defaulting party gives such notice, and the default is not
cured during the sixty (60) day period, then the Agreement
will terminate immediately upon notice by the non-defaulting
party.
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9.3. Termination for insolvency. This Agreement may be terminated
by either party upon notice, in the event that any of the
following occur(s): (i) voluntary institution by the other
party of insolvency, receivership, bankruptcy, or any other
proceedings for the settlement of the other party's debt; (ii)
involuntary institution of insolvency, receivership,
bankruptcy, or any other proceedings for the settlement of the
other party's debt; which proceedings are not resolved within
sixty (60) days, (iii) the making of a general assignment by
the other party for the benefit of creditors; or (iv) the
dissolution of the other party.
9.4. Return of materials. In addition to the Master Software Media
and the Documentation Media, all of Citrix' trademarks, marks,
trade names, patents, copyrights, designs, drawings, formulas
or other data, photographs, samples, literature, and sales
aids of every kind will remain the property of Citrix. Within
thirty (30) days after the termination or expiration of this
Agreement, Licensee will prepare all such items in its
possession, and will collect such materials in Reseller's
possession, for shipment as Citrix may direct, at Citrix'
expense. Licensee will not make or retain any copies of any
confidential items or information which may have been
entrusted to it. Effective upon the termination or expiration
of this Agreement, Licensee will cease to use all trademarks
and trade names of Citrix.
9.5. Destruction of inventory. Upon expiration or earlier
termination of this Agreement, Licensee shall destroy or erase
(as applicable), and shall certify to Citrix the destruction
or erasure of, (i) all copies of the Citrix Product(s) and
Licensee Product(s) in any form in the possession of Licensee
or any Reseller, including all Master Software Media,
Documentation, and Documentation Media, and (ii) all other
materials related to the Citrix Product(s) or Documentation in
Licensee's possession or control not otherwise dealt with
under subsection 9.4 above.
9.6. Survival of certain terms. The provisions of Sections 3 (as to
payment for distribution and copying prior to termination or
expiration), 5.3, 9.4, 9.5, 1 0, I 1, 13, 14, and 15, as well
as end user licenses properly granted by Licensee, will
survive the termination or expiration of this Agreement for
any reason. All other rights and obligations of the parties
will cease upon termination or expiration of this Agreement.
10. AUDITS
10.1. Record keeping. Licensee agrees to maintain and to ensure that
any Reseller maintains, until two (2) years after the
termination of this Agreement, complete books, records and
accounts regarding all copying and distribution activities
pursuant to Section 2 above and the payments due to Citrix
thereon.
10.2. Audit rights. Licensee agrees to allow Citrix the right to
audit and examine such books, records and accounts during
Licensee's or Reseller's (as applicable) normal business hours
to verify the accuracy of the reports made to Citrix under
subsection 3.2 above. In the event such examination leads to a
determination that Licensee has made more than the authorized
number of copies and/or has not paid for all of the copies of
Citrix Products made, Licensee agrees to pay, in addition to
any damages (including direct, indirect and consequential) to
which Citrix might be entitled, all unpaid royalties which
should have been paid, plus interest thereon from the date the
royalty payment should have been made, at the rate of one
percent per month (or, if less, the maximum allowed by
applicable law); provided, however, that if the audit reveals
underpayment of five percent (5%) or more of the amount that
should have been paid for the period audited,
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then, in addition to the above payments, Licensee shall pay
Citrix' auditing expense for such examination. Citrix will
credit to Licensee any overpayments discovered in the audit.
11. PROPERTY RIGHTS AND CONFIDENTIALITY
11.1. Property rights. Licensee agrees that Citrix owns all right,
title, and interest in the Citrix Product(s), including,
without limitation, the Master Software Media and
Documentation Media, now or hereafter subject to this
Agreement, and in all of Citrix' patents, trademarks, trade
names, inventions, copyrights, know-how, and trade secrets
relating to the design, manufacture, operation or service of
the Citrix Product(s)[.][, provided that Licensee][Citrix]
shall own the adaptations [it/Licensee] makes pursuant to
subsection 2.1 above.
11.2. Confidentiality. Licensee acknowledges that by reason of its
relationship to Citrix hereunder it will have access to
certain information and materials concerning Citrix' business,
plans, customers, technology, and Citrix Products that are
confidential and of substantial value to Citrix, which value
would be impaired if such information were disclosed to third
parties. Licensee agrees that it will not use the confidential
information for any purpose other than the development and
support of the Licensee Product in accordance with the terms
of this Agreement and shall not use the confidential
information in any other way for its own account or the
account of any third party, nor disclose to any third party,
any such confidential information revealed to it by Citrix
(including, but not limited to, the Source Code, the Source
Code Fragments and the ICA 3.0 Protocol specifications).
Licensee shall take every reasonable precaution to protect the
confidentiality of such information. Upon request by Licensee,
Citrix shall advise whether or not it considers any particular
information or materials to be confidential. Licensee shall
not publish any technical description of the Product beyond
the description published by Citrix. In the event of
termination of this Agreement, there shall be no use or
disclosure by Licensee of any confidential information of
Citrix, and Licensee shall not manufacture or have
manufactured any Products utilizing any of Citrix'
confidential information. The provisions of this Section shall
not apply to information: which is (or becomes) available to
the public other than by breach of this Agreement or of any
other duty; which is already in Licensee's possession prior to
disclosure by Citrix or is independently obtained by Licensee
in circumstances under which Licensee is free to disclose it;
or which is trivial or obvious.
11.3. International distribution. Licensee shall not distribute
Products outside of the geographical boundaries of the
following countries without Citrix' prior written consent:
United States, Canada, Australia, Japan, the European Union,
Sweden, Norway and Finland. In the event Licensee desires to
distribute Products outside of the geographical boundaries set
forth above, Citrix and Licensee shall negotiate in good faith
regarding the expansion of the list to include additional
countries that provide adequate protection for Citrix' and its
suppliers' proprietary rights through copyright, trade secret,
patent or other laws.
12. TRADEMARKS AND TRADE NAMES
12.1. Use of trademarks and trade names. Licensee is obligated to
use the applicable Citrix trademarks and trade names with
respect to the Licensee Product(s) in accordance with the
requirements and guidelines specified in Exhibit E. In
accordance with Exhibit E,
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Licensee shall submit to Citrix for prior approval any
advertising, packaging, promotional, or other materials
prepared by or for Licensee which include any Citrix
trademarks or trade names. Citrix shall have the night to make
reasonable updates to the requirements and guidelines in
Exhibit E from time to time. Notwithstanding the foregoing,
Citrix shall not attempt to cause Licensee to adopt any
particular advertising, promotional or marketing plan.
12.2. ICA certification process. In the event that Citrix implements
an ICA certification process, all subsequent Licensee Products
will be developed so as to meet the certification requirements
and will be labeled in accordance with the programs
specifications. Certification shall be performed at no charge
to Licensee.
12.3. Attribution. Licensee agrees to make explicit mention of the
Citrix company name and the ICA and WinFrame trademarks in all
press releases and product announcements related to the
licensed products. Licensee also agrees to make its best
reasonable effort to ensure that the Citrix company name and
the ICA and WinFrame trademarks are mentioned in all press
articles related to the licensed products.
13. INDEMNIFICATION
13.1. Defense or settlement of infringement claims. Licensee agrees
that Citrix has the right to defend, or at its option to
settle, and Citrix agrees, at its own expense to indemnify or
at its option to settle, any claim, suit or proceeding brought
against Licensee or its customer based on a claim that a
Citrix Product infringes upon any United States patent or
copyright or violates the trade secret rights of any United
States party, (hereinafter "Infringement Claims"); provided
Citrix is notified promptly in writing of an Infringement
Claim and has sole control over its defense or settlement, and
Licensee and/or its customer provides reasonable assistance in
the defense of the same.
13.2. Infringement cures. Following notice of an Infringement Claim,
or if Citrix believes such a claim is likely, Citrix may at
its sole expense and option, (1) procure for Licensee the
right to continue to market, use and have others use, the
alleged infringing Citrix Product(s), (ii) replace or modify
the appropriate Citrix Product(s) to make them non-infringing,
or (iii) accept return of the Citrix Product(s) and refund as
appropriate payments made therefor by Licensee.
13.3. Limitation. Citrix shall have no liability for any
infringement claim based on Licensee's (i) use or distribution
of any product after Citrix' notice that Licensee should cease
use or distribution of such product due to an infringement
claim, or (ii) modification of the Citrix Product other than
by Citrix, or combination of a Citrix Product with non-Citrix
programs, data, hardware, or other materials, if such
infringement claim would have been avoided by the exclusive
use of the unmodified Citrix Product alone. For all
infringement claims to which this subsection is applicable,
Licensee agrees to indemnify and defend Citrix, provided
Licensee is notified promptly in writing of an infringement
claim and has sole control over its defense or settlement, and
Citrix and/or its customer provides reasonable assistance in
the defense of the same.
13.4. Entire liability. THE FOREGOING PROVISIONS OF THIS SECTION 13
STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CITRIX, AND THE
EXCLUSIVE REMEDY OF LICENSEE AND ITS CUSTOMERS, WITH RESPECT
TO ANY ALLEGED INTELLECTUAL PROPERTY INFRINGEMENT BY THE
CITRIX PRODUCT(S), OR ANY PART THEREOF.
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13.5. Other third party claims. Except for Infringement Claims which
Citrix is obliged to settle or defend under this Section 13,
Licensee agrees to indemnify and hold Citrix harmless against
any cost, loss, liability, or expense (including attorneys'
fees) arising out of third party claims against Citrix as a
result of Licensee's or Reseller's copying, use or
distribution of the Licensee Product(s) and Licensee's
exercise of the license rights granted under this Agreement.
14. LIMITATION OF LIABILITY
CITRIX' TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, THE TERMINATION
THEREOF, AND/OR LICENSE OF THE PRODUCTS AND DOCUMENTATION HEREUNDER,
SHALL BE LIMITED TO THE AMOUNT HAVING THEN ACTUALLY BEEN PAID BY
LICENSEE TO CITRIX UNDER THIS AGREEMENT. IN NO EVENT SHALL CITRIX BE
LIABLE FOR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. IN NO EVENT SHALL
CITRIX BE LIABLE TO LICENSEE OR ANY OTHER ENTITY FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, HOWEVER CAUSED .AND ON ANY
THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT,
NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT CITRIX HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY
PROVIDED HEREIN. CITRIX' LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL
CITRIX' EXPENDITURES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE
LIMIT. THE EXISTENCE OF CLAIMS OR SUITS AGAINST MORE THAN ONE CITRIX
PRODUCT LICENSED UNDER THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE
LIMIT. IN NO EVENT SHALL ANY LICENSORS OR SUPPLIERS OF CITRIX BE LIABLE
FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES ARISING OUT OF
THIS AGREEMENT.
15. GENERAL PROVISIONS
15.1. Entire agreement; modifications. This Agreement, including the
attached Exhibits, sets forth the entire agreement and
understanding of the parties relating to the subject matter
herein and merges all prior discussion between them. No
modification or amendment to this Agreement shall be effective
unless in writing and signed by both parties. The terms and
conditions on any Licensee purchase orders or similar documents
shall not apply. Any restrictive endorsement on any check or any
instrument of payment to Citrix which purports to alter this
Agreement or any of the parties' rights shall be of no force and
effect, and the payee party shall be free to negotiate such
checks notwithstanding such void endorsement.
15.2. Confidentiality of agreement. The parties agree that the terms
and conditions of this Agreement shall be treated as
confidential information, provided, however, that each party may
disclose the terms and conditions of this Agreement: (i) as
required by any court or other governmental body; (ii) as
otherwise required by law; (iii) to legal counsel of the
parties; (iv) in confidence, to accountants, banks, investors
and other financing sources and their advisors; (v) in
confidence, in connection with the enforcement of this Agreement
or rights under this Agreement; or (vi) in confidence, in
connection with an actual or proposed merger, acquisition, or
similar transaction.
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15.3. Independent contractors. The relationship between Citrix and
Licensee established by this Agreement is that of independent
contractors, and nothing contained in this Agreement shall be
construed as creating a partnership, joint venture or agency
relationship, or as granting a franchise.
15.4. Governing law and jurisdiction. This Agreement shall be
governed by and construed under the laws of the State of
Florida without regard to conflict of law principles, and
Licensee consents to personal and exclusive jurisdiction and
venue in the state and federal courts sitting in Broward and
Dade counties, Florida. Process may be served on either party
by using the notice provisions of subsection 15.5 below.
15.5. Notices. Any notice required or permitted by this Agreement
will be in writing and will be sent by prepaid registered or
certified mail, return receipt requested, or by overnight
courier, charges prepaid, with a confirming fax; to the
appropriate address set forth at the beginning of this
Agreement, or to such other address for which the relevant
party gives appropriate notice. Notice shall be deemed to have
been given when delivered or, if delivery is not accomplished
by some fault of the addressee, when tendered.
15.6. Force majeure. Nonperformance of either party "will be excused
to the extent that performance is rendered impossible by
strike, fire, flood, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where
failure to perform is beyond the control of, and not caused by
the negligence of, the non performing party.
15.7. Successors and assigns. Neither this Agreement nor any of the
rights or obligations of Licensee arising under this Agreement
may be assigned or transferred, by operation of law or
otherwise, without Citrix' prior written consent. Any
attempted such assignment or transfer shall be void and shall
result in the immediate and automatic termination of this
Agreement. Subject to this restriction, this Agreement will be
binding upon and inure to the benefit of the parties hereto,
their successors and assigns.
15.8. Severability; waiver. If any provision of this Agreement is
held to be invalid by a court of competent jurisdiction, the
remaining provisions will nevertheless remain in full force
and effect. Citrix and Licensee agree to replace any invalid
provision with a valid provision which most closely
approximates the intent and economic effect of the invalid
provision. The waiver by either party of a breach of any
provision of this Agreement by the other will not operate or
be interpreted as a waiver of any other or subsequent breach.
All waivers must be in writing.
15.9. Government End-Users. Citrix Products and Documentation are
"commercial items" as that term is defined in 49 C.F.R. 2-101
(October 1995) consisting of "commercial computer software"
and "commercial computer software documentation" as such terms
are used in 49 C.F.-P,. 12-212 (September 1995). Consistent
with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4 (June 1995), if the Citrix Products which Licensee
licenses or acquires hereunder are for or on behalf of the
U.S. Government or any agency or department thereof, the
soft-xxxx and the documentation are licensed hereunder (i)
only as a commercial item, and (ii) with only those rights as
are granted to all other end users pursuant to the terms and
conditions of this Agreement.
15.10. Export controls. Licensee agrees to comply with all United
States export regulations and restrictions in connection with
this Agreement.
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15.11. Headings. The headings used in this Agreement and the attached
Exhibits are intended for convenience only and shall not be
deemed to supersede or modify any provisions.
15.12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original and all
of which together will constitute one instrument.
IN WITNESS WHEREOF, this Agreement is executed as of the Effective Date
set forth above.
CITRIX SYSTEMS. INC.
0000 XX 0xx Xxx
Xxxx Xxxxxxxxxx, XX 00000
By: By:
Name: Name:
Title: Title:
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EXHIBIT A
CITRIX PRODUCTS
CITRIX PRODUCTS SHALL BE THE CITRIX DOS OR WINDOWS CLIENT ("CLIENT") SOFTWARE
IN BINARY FORMAT FOR ICA 3.0 PROTOCOL SUPPORT DEEMED BY CITRIX TO BE
NECESSARY OR APPROPRIATE FOR THE DEVELOPMENT OF THE LICENSEE PRODUCTS.
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EXHIBIT B
LICENSEE PRODUCTS
[ADD DESCRIPTION LICENSEE'S PRODUCTS]
Licensee Products must not implement any modifications or extensions to the ICA
Protocol. They must connect to and communicate with Citrix and Citrix based
application server technology in accordance with the appropriate ICA product and
Version Release number specifications as defined in the ICA 3.0 Protocol
specifications.
The operating environment which may ran on the Licensee Products concurrently
with the ICA Protocol is the MS-DOS compatible environment ("Authorized
Environment"). In the event that Licensee desires to add additional operating
environments to the Authorized Environment, the parties agree to negotiate in
good faith to expand the definition of the Authorized Environments.
Citrix reserves the right to require Licensee to go through a reasonable
certification to ensure quality and complete ICA compatibility for Licensee
Products.
Licensee's Technical Manager shall be:
Name:
Title:
Address:
Telephone:
Fax:
E-Mail:
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EXHIBIT C
PAYMENT SCHEDULE
A. Nonrefundable Initial Design Consultation, Training, and Ongoing
Support Fees (for the services described in Sections 6 and 7 of the
Agreement)
$10,000 payable upon execution of the Agreement.
B. Period
Each three (3) month period after FCS shall be a "Period."
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EXHIBIT D
CITRIX ATTRIBUTION, NOTICES, TRADEMARKS
FOR CITRIX CLIENT PRODUCTS
The Citrix OEM Client Splash Screen Logo: "Citrix(R) ICA(R)"
Attribution
The "Citrix(R) ICA(R)" logo must be displayed on the client's initial
load screen as a graphic image.
The "Citrix(R) ICA(R)" logo must be a minimum of 32 x 32 pixels on the
initial load screen.
Copyright and Patent Notices
Copyright and/or patent notices must be incorporated into Licensee's
product packaging as follows:
On initial load screen:
Citrix copyright notice.
Logo Artwork
The "Citrix(R) ICA(R)" logo must never be altered and must be reproduced from
the supplied Citrix reproduction sheet or from diskette using the supplied EPS
file. Citrix will provide authorized OEMs with camera-ready artwork of the
"Citrix(R) ICA(R)" Splash Screen. Licensee may not alter this artwork in any
way. The words "Citrix(R) ICA(R)" as they appear in the logo are the only
words and the only typeface approved for use and may not be modified. The S
must appear immediately following the words Citrix and ICA.
Color Scheme
The following Splash Screen colors are to be used:
ICA text 100% PMS Reflex Blue
Distributed Windows text 100% Black
Citrix Logo Text 80% Black
Citrix Logo Dots 100% Warm Red
Wirfdow 100% Warm Red
Globe 70% PMS Reflex Blue
Laptop 100% Black with White outline and White
monitor screen
Border 100% Black
The logo must always be self-contained within a white background.
Spacing
The "Citrix(R) ICA(R)" logo must stand alone. A minimum amount of space, 1/4
inch, must be left between the logo and any other object such as type,
borders, edges, etc.
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EXHIBIT E
TRADEMARK GUIDELINES
1. TRADEMARK AND LOGO GUIDELINES
All references to Citrix products or to the ICA protocol shall include the
appropriate Citrix trademarks and shall be in accordance with these guidelines.
All marketing materials and other publications or press releases referencing the
Citrix products or the ICA protocol shall be submitted to Citrix for its prior
approval. Approved marketing materials may be reused without Citrix' prior
approval if the use of the Citrix trademarks is exactly as previously approved
and if the context and contents of the new materials are substantially similar
to the approved materials.
The Citrix and WinFrame names, logos and trademarks can only be used by
authorized OEMs and Resellers in connection with the sales and marketing of
Citrix Products.
The Citrix name and Citrix logos may not be used to promote other Resellers'
products. Nor may the Citrix name and logo be used for general dealer promotions
not specifically related to Citrix Products.
If any of the Trademarks are to be used in conjunction with another trademark on
or in relation to the Citrix Product, then Citrix' xxxx shall be presented
equally legibly, equally prominently, and of equal size to the other, but
nevertheless separated from the other so that each appears to be a xxxx in its
own right, distinct from the other xxxx.
2. TRADEMARK AND LOGO USAGE
Advertisements, collateral materials, direct mail materials, and other printed
materials (with exception of Licensee signage) should include the credit line:
Citrix WinView and ICA are registered trademarks of and WinFrame is a trademark
of Citrix Systems, Inc.
3. DESIGN STANDARDS
The following is a general outline of design rules governing the use of the
company name, Citrix Product's names and logos:
In text usage, the first time the company name is used it should be
"Citrix Systems, Inc.", thereafter "Citrix" is acceptable.
Citrix Systems, Citrix WinView and other Citrix Products should have
"Citrix" in upper and lower case, with "WinView" spelled as one word
with the "W" and "V" capitalized and WinFrame spelled as one word with
the "W" and "F" capitalized. Additional proper names will be covered at
the time of their use.
ARTWORK FOR THE CITRIX CORPORATE LOGO AND PRODUCT LOGOS IS AVAILABLE AND WILL BE
SUPPLIED TO LICENSEE. THE CORPORATE LOGO MUST BE OF THE SAME DESIGN, COLOR AND
OTHER DETAILS OR SHOULD BE EXACT COPIES OF THOSE USED BY CITRIX. THE CORPORATE
LOGO SHOULD APPEAR AS ONE COLOR (PREFERABLY BLACK) ON TWO-COLOR MATERIALS, OR ON
FULL COLOR ARTWORK AS PMS 403 FOR THE BODY OF THE LOGO, AND PMS WARM RED FOR THE
DOTS. COLOR SAMPLES
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ARE AVAILABLE FROM CITRIX. CITRIX PRODUCT LOGOS SHOULD BE ONE COLOR, IN BLACK OR
IN THE TEXT COLOR OF DOCUMENT.
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