Master Software License and Distribution Agreement - ABSB LC and Open Market Inc.
MASTER SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This Master Software License and Distribution Agreement (the "Agreement")
is made and entered into this 9th day of June, 1999 (the "Effective Date") by
and between ABSB, L.C., a Utah limited liability company, with offices at 4692
North 300 West, Suite 200, Provo, UT 84604 ("ABSB"), and Open Market, Inc., a
Delaware Corporation, with offices at 1 Wayside Road, Burlington, MA 01803, and
Folio Corporation, a Utah corporation and wholly owned subsidiary of Open
Market, Inc. (Folio Corporation and Open Market, Inc., being jointly and
severally liable hereunder, are collectively referred to as "OPEN MARKET").
OPEN MARKET develops, markets and sells software products and related services
which provide solutions for conducting commerce over the Internet, and
ABSB desires to develop, market and sell commercial publishing software
products, and
OPEN MARKET and ABSB wish to enter into an agreement providing for the license
of rights to certain software products from OPEN MARKET to ABSB, including
applicable technology and intellectual property rights, the assignment of
customers and distribution channels for such software products, and the future
business relationship between the parties.
In consideration of the mutual promises herein contained and other valuable
consideration, the parties hereto agree as follows:
1. DEFINITIONS
1.1 "Folio Products" means the entire Folio software product line,
including without limitation: Folio SiteDirector, Folio Views, Folio Builder,
Folio Publisher, Folio Integrator, Folio 4, LivePublish and SecurePublish, and
all documentation related thereto.
1.2 "OPEN MARKET Commerce Products" means OPEN MARKET's software product
line as of the Effective Date, including without limitation: Transact,
LiveCommerce, SecureLink, and ShopSite products, all future versions and
enhancements of same, and all necessary documentation related thereto. The
parties may include as OPEN MARKET Commerce Products eligible for distribution
pursuant to Section 2.2, additional future software products from time to time
by mutual written agreement. OPEN MARKET shall have the right to add to or
discontinue any or all of the software products comprising the OPEN MARKET
Commerce Products, but only upon thirty (30) days prior notice, via e-mail or in
writing, to ABSB.
1.3 "Folio Customers" means the licensees from OPEN MARKET of the Folio
Products as of the Effective Closing Date.
1.4 "Folio Distributors" means the authorized distributors, resellers,
business partners and commercial publishers of the Folio Products as of the
Effective Closing Date.
1.5 "Transition Plan" means the mutually agreed procedures following the
Effective Date by which (a) the obligations of OPEN MARKET to Folio Customers
and Folio Distributors, and the
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associated fees, rights and benefits to OPEN MARKET, will be assigned to ABSB;
(b) ABSB will assume the marketing, sales, engineering and distribution of the
Folio Products; and (c) OPEN MARKET will provide to ABSB certain assistance
regarding, without limitation, finance, administration, information systems,
human resource issues, licensee transition, back office systems, and the
coordination of databases and websites.
1.6 "Transition Period" means the limited period of time following the
Effective Date during which OPEN MARKET will provide to ABSB transitional
assistance with respect to the support of Folio Customers and Folio Distributors
and the other items included in the Transition Plan.
1.7 "Folio Trademarks" means the registered and unregistered trademarks to
be licensed to ABSB under this Agreement, identified in Exhibit 2.3.
1.8 "Affiliate" means, as to either party, any partnership, joint venture
or corporation which is directly or indirectly controlling of, controlled by or
under common control with such party or any entity in which such party owns more
than 50% of the outstanding equity interests.
1.9 "Proprietary Information" means the confidential and valuable
information of a disclosing party which that party desires to protect against
further disclosure or competitive use and which is either (a) in written form
and designated as proprietary or confidential or (b) is disclosed orally and is
designated in writing as being proprietary or confidential within ten (10) days
of disclosure.
1.10 "Effective Closing Date" means the close of business on June 30, 1999,
the date upon which ABSB shall assume all applicable benefits and obligations
arising under this Agreement.
1.11 "Territory" shall mean worldwide.
1.12 "Business Segment" shall mean the commercial information publishing
market consisting of companies whose primary business model is the sale of
content without a significant advertising component, and which market includes
the representative customers listed in Exhibit 1.12 for purposes of
illustration.
2. TECHNOLOGY LICENSE
2.1 Folio Product License to ABSB. Subject to payment of the applicable
fees and royalties and compliance with the other material terms described in
this Agreement, OPEN MARKET hereby grants to ABSB an exclusive, assignable
(i.e., to any successor entity controlled by prior owners of ABSB, but otherwise
assignable only subject to OPEN MARKET's prior written consent, which shall not
be unreasonably withheld), world-wide and irrevocable license during the term of
this Agreement (subject to Section 9.3) (a) to use the Folio Products and all of
the intellectual property related to the Folio Products (e.g., patents (subject
to Section 2.4), copyrights, trademarks, service marks, sublicenseable third
party license rights, trade secrets and know-how), the documentation related to
the Folio Products, including without limitation all source code, object code
and executable code embodied in the Folio Products and all computer software,
know-how, technology, trade secrets, and other intellectual property used in the
Folio Products, and any and all other items currently used in connection with
the development, marketing, and distribution of the Folio Products, including
without limitation applicable domain names, technology, permits and licenses,
for ABSB's internal business purposes not expressly prohibited under this
Agreement, and (b) to use, modify, make derivative works from, sell,
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sublicense, market, distribute (pursuant to appropriate end user license terms
and conditions as described in Section 2.2 below), copy, modify, bundle and
otherwise exploit the same in the Territory for any and all lawful purposes,
along with the right to contract with third parties to do any of the same
(subject to OPEN MARKET's prior consent, which shall not be unreasonably
withheld). ABSB will not be permitted to distribute the Folio Products in source
code form to any third party (e.g., for limited OEM licensing purposes) without
OPEN MARKET's prior written consent, which consent shall not be unreasonably
withheld. The exclusive license use rights granted to ABSB shall not include any
rights to any OPEN MARKET Commerce Products, either in whole or in part, or to
any third party products that OPEN MARKET licenses from third parties, except as
expressly provided under this Agreement.
2.2 OPEN MARKET Commerce Products License to ABSB. OPEN MARKET hereby
grants to ABSB in object code form only, a non-exclusive, non-transferable and
world-wide license to sublicense, distribute, and make available to others, the
OPEN MARKET Commerce Products solely to the Business Segment in the Territory
under end user license agreements containing terms substantially similar to
those in Exhibit 2.2 and which are legally sufficient to (i) notify the customer
that the applicable OPEN MARKET Commerce Product is protected by copyright, (ii)
notify the customer that the applicable OPEN MARKET Commerce Product is being
licensed and that ownership is not being transferred, (iii) prohibit
unauthorized copying or transfer of the applicable OPEN MARKET Commerce
Products, (iv) restrict use of the applicable OPEN MARKET Commerce Products as
reasonably appropriate, (v) disclaim all implied warranties with respect to the
use of the applicable OPEN MARKET Commerce Products, including but not limited
to any warranties of merchantability, fitness for a particular purpose, or
warranties arising from usage of trade or course of dealing, and (vi) disclaim
or limit any liability of Open Market related to the applicable OPEN MARKET
Commerce Products in the same manner that ABSB disclaims or limits its
liability, consistent with the applicable OPEN MARKET standard end-user license.
Notwithstanding the foregoing, ABSB shall not be authorized to market and
distribute OPEN MARKET's ShopSite product to entities that intend to provide a
hosted ShopSite service offering to third party merchants; provided, however,
that ABSB shall be allowed to be a ShopSite host itself and to service third
parties pursuant to OPEN MARKET's customary terms and conditions for such
hosting arrangements. At Licensee's request, the parties may discuss and
mutually agree in good faith on whether certain potential customer accounts are
within the Business Segment or whether OPEN MARKET will allow exceptions to this
restriction on a case-by-case basis in its sole reasonable discretion.
2.3 Trademark License. OPEN MARKET hereby grants to ABSB an exclusive,
transferable (subject to OPEN MARKET's reasonable consent) and worldwide license
to use, solely in connection with the Folio Products, on packaging, in
advertising, literature, publicity, and other promotional materials, the OPEN
MARKET trademarks listed in Exhibit 2.3 (the "Trademarks") during the term of
this Agreement, in accordance with OPEN MARKET's use guidelines provided in
Exhibit 2.3. ABSB acknowledges that OPEN MARKET owns all rights to the
Trademarks. ABSB shall not during or after the term (i) do anything, during or
after the term, which could adversely affect the validity or enforceability of
the Trademarks or OPEN MARKET's rights therein; or (ii), without OPEN MARKET's
prior written consent, use or adopt any Trademark or any name, design or symbol
similar thereto, as part of, on, in connection with (iii) ABSB's formal or
informal business, private, substitute or other name or (iv) any of ABSB's
designs, symbols, advertisements, products, services, letterhead, business cards
or other means of identification; provided, however, that notwithstanding any of
the foregoing provisions, ABSB may use, apply for and register any trademark
that is derivative of, or related to, the Trademarks (but specifically excluding
the registration of any trademark that contains the "Folio" name, or the use of
any Trademark in the name of ABSB or any successor entity, without OPEN MARKET's
prior written
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consent, in OPEN MARKET's sole discretion), and OPEN MARKET agrees to cooperate
with ABSB in any such registration, subject to ABSB's obligation to license back
any such trademark to OPEN MARKET for the term of this Agreement and, in the
event that the Section 9.3 purchase option is not exercised by ABSB, to assign
to OPEN MARKET all such interim trademarks promptly following the termination of
this Agreement. In addition, ABSB shall, at OPEN MARKET's request and expense,
assist OPEN MARKET by executing documents or otherwise as OPEN MARKET reasonably
may request, in order to register any Trademark.
2.4 No Patent License. Nothing contained herein shall be deemed or
otherwise construed as a license, either express or implied, or right under any
OPEN MARKET patent, whether or not the exercise of any license or right granted
pursuant to this Agreement necessarily employs as an invention any existing or
later issued patent of Open Market. Notwithstanding the foregoing, OPEN MARKET
agrees that ABSB and its sublicensees, end user customers, resellers,
distributors and any successor corporation, shall have the right to exercise the
respective licenses and other rights granted to them pursuant to this Agreement,
subject to the applicable restrictions and limitations contained herein. If
ABSB elects to exercise the option granted in Section 9.3, the parties shall
discuss whether additional rights relative to OPEN MARKET's patents will be
necessary, in which case both parties agree to negotiate, in good faith, fair
and reasonable terms and conditions for the same. In any event, OPEN MARKET
hereby covenants and agrees not to assert against ABSB, or its successors or
permitted assigns, or its sublicensees, end-user customers, resellers or
distributors, any claims for infringement of any OPEN MARKET patent or patent
rights by ABSB, or its successors or permitted assigns, or its sublicensees,
end-user customers, resellers, or distributors during the term hereof, to the
extent necessary to protect ABSB's full exercise of the licenses granted in
Sections 2.1 and 2.2, or at any time after the exercise of the Section 9.3
purchase option subject to the rights, terms and conditions to be agreed upon in
the contemplated asset purchase agreement (which covenant not to sue shall not
be assignable to any third party except a successor entity controlled by prior
owners of ABSB).
2.5 Order Processing. In consideration of ABSB's payment of the
applicable royalties and fees set forth in Section 9 below, OPEN MARKET shall
provide ABSB with master copies of the Folio Products and OPEN MARKET Commerce
Products (collectively, the "Software") and ABSB shall be authorized to
duplicate and distribute the Software to its customers. The OPEN MARKET
Commerce Products shall be designated for use in certain licensed end-user
categories listed in Exhibit 2.6, which shall include Development, Corporate,
Commerce Service Provider, Niche Commerce Service Provider, Cold-Spare Back-Up
and Hot Spare Back-Up.
The foregoing duplication and distribution rights shall be subject to the
following terms and conditions and shall apply to the Software generally unless
otherwise expressly provided:
(a) ABSB shall receive on a timely basis all upgrades and updates to
the Software master copies and one (1) copy of the respective documentation
shall be provided to ABSB by OPEN MARKET. ABSB may purchase additional copies of
the Documentation at OPEN MARKET's applicable standard pricing unless otherwise
mutually agreed.
(b) Each applicable licensed end-user category applicable to the OPEN
MARKET Commerce Products shall be subject to the standard license use
limitations listed in Exhibit 2.6.
(c) Under no circumstances shall any third parties be authorized to
duplicate Software, unless otherwise expressly permitted by OPEN MARKET in
writing or in the applicable
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standard end-user license agreement (e.g., back-up copies).
(d) If ABSB distributes a quantity of Software licenses to customers
such that more than the applicable guaranteed minimum royalties (with respect to
the Folio Products) or the initial order amounts (with respect to the OPEN
MARKET Commerce Products) are due OPEN MARKET, ABSB shall promptly notify OPEN
MARKET in writing within thirty (30) business days and commence payment of
applicable amounts due for such Software in accordance with subsection (f)
below. For the avoidance of doubt, the parties acknowledge and agree that ABSB
shall pay OPEN MARKET the foregoing royalties and fees based on the structure in
Exhibit 9 regardless of the fee charged by ABSB to its customers.
(e) ABSB shall provide reports to OPEN MARKET of all such Software
distributions to customers in accordance with subsection (f) below.
(f) Within sixty (60) calendar days after the end of each calendar
quarter, ABSB shall furnish OPEN MARKET with a report for such quarter listing
all Software provided to all customers, including at least the following
information: customer name and address; type of Software and site of
installation; and applicable fee due to OPEN MARKET calculated pursuant to
Exhibit 9. Such reports shall contain such additional detail and be in such form
as reasonably may be specified by OPEN MARKET from time to time. After such
time as the Software license fees equal the applicable guaranteed minimum
royalties (with respect to the Folio Products) or the initial order amounts
(with respect to the OPEN MARKET Commerce Products), payment of the applicable
royalties and license fees, as appropriate, shall accompany each quarterly
report.
(g) ABSB shall maintain accurate and complete records of each
transaction or dealing involving the Software, including all invoicing and
payment records and information for the term of this Agreement. OPEN MARKET, or
its designated independent certified public accountant, shall have the right,
upon two (2) weeks prior written notice and during normal business hours, to
inspect such records relating to the Software transactions and dealings entered
into by ABSB during the term of this Agreement. Audits may not be conducted more
frequently than every twelve (12) months.
2.6 OPEN MARKET Optional Reseller Rights. OPEN MARKET may request during
the term of this Agreement by written notice to ABSB to be granted non-
exclusive, worldwide reseller rights for the Folio Products (as the same may be
modified by ABSB) on terms no less favorable than those provided to other
similarly situated resellers of the Folio Products, which request shall be
subject to ABSB's prior written consent in its sole discretion. Any such
reseller arrangement shall be subject to the terms and conditions of ABSB's
standard form of reseller agreement, under mutually agreed terms, including
without limitation applicable territory and market segment restrictions. OPEN
MARKET will not be permitted to distribute the Folio Products in source code
form to any third party without ABSB's prior written approval, which approval
may be withheld for any reason.
3. ASSIGNMENT OF FOLIO CUSTOMERS AND DISTRIBUTORS
3.1 Folio Customers. OPEN MARKET will use reasonable best efforts to
assign all of its end-user Folio Product licenses and the related support and
maintenance agreements to ABSB as of the Effective Closing Date for the term of
this Agreement, subject to the Transition Plan described in
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Section 5.1 below to be mutually agreed to by the parties as soon as possible.
Except as may be otherwise mutually agreed pursuant to Section 2.6 above, OPEN
MARKET will not sell, or offer to sell, any Folio Products to end-users or any
other third party after the Effective Closing Date. ABSB will assume the
licenses and the related support and maintenance agreements assigned to it by
OPEN MARKET as of the Effective Closing Date, and upon the Effective Closing
Date ABSB will receive all benefits (including without limitation the right to
receive all accounts receivable earned after the Effective Closing Date under
such agreements, and the right to audit all receivables payable under such
agreements and to collect and retain any disparities due thereunder) and perform
all obligations and assume all liabilities and benefits thereunder. With
respect to any such agreements that OPEN MARKET is unable to assign to ABSB,
OPEN MARKET and ABSB shall exercise their reasonable best efforts to provide
ABSB with the benefits and related obligations that are the functional
equivalent thereof.
3.2 Folio Distributors. OPEN MARKET will use reasonable best efforts to
assign to ABSB and ABSB will assume, as of the Effective Closing Date for the
term of this Agreement, all agreements with the Folio Distributors
(collectively, the "Folio Distributor Agreements"). Upon the Effective Closing
Date, ABSB will receive all benefits (including without limitation the right to
receive all accounts receivable earned after the Effective Closing Date under
such agreements, and the right to audit all receivables payable under such
agreements and to collect and retain any disparities due thereunder) and perform
all obligations and assume all liabilities and benefits under the Folio
Distributor Agreements which it assumes, and will cooperate with OPEN MARKET in
seeking to maintain amicable relations with and a transfer to ABSB of all OPEN
MARKET non-assignable obligations with all Folio Distributors, if any, in those
cases where ABSB does not immediately assume the Folio Distributor Agreements.
With respect to any agreement or contract rights that OPEN MARKET is unable to
assign to ABSB, OPEN MARKET and ABSB shall exercise their reasonable best
efforts to provide ABSB with the benefits and related obligations that are the
functional equivalent thereof.
4. FOLIO EMPLOYEES AND FACILITIES
4.1 Folio Employees. OPEN MARKET will authorize ABSB to offer employment,
on a permanent or temporary basis, to Folio personnel currently employed by OPEN
MARKET who are experienced in the design, sale and support of the Folio Products
and who, prior to the Effective Closing Date, are selected by ABSB. OPEN MARKET
shall share information regarding the Folio employees in order to assist ABSB
and OPEN MARKET in determining which employees are candidates for hire by ABSB.
Such cooperation will include but not be limited to (i) designing retention
incentives for the Folio employees which ABSB wishes to employ and (ii)
contributing up to a maximum of [**], which, with the exception of [**] will be
matched by an equal contribution from ABSB to be allocated by mutual agreement
prior to offers to any employee as retention incentive compensation for the
Folio employees which ABSB wishes to employ and who have committed to remain
employees for a minimum period of six (6) months from the Effective Closing
Date. Upon any such hiring by ABSB, OPEN MARKET by written notice to such
employees will release such employees from their existing obligations to OPEN
MARKET of non-disclosure with respect to the Folio Products licensed hereunder;
provided, however, that all other applicable non-disclosure obligations of such
employees for the benefit of Folio Corporation and OPEN MARKET will remain in
full force and effect.
4.2 Folio Facilities. OPEN MARKET will retain all rights, title and
ownership interest in the
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Folio building facility located in Provo, Utah and all related real property and
personal property located in Provo (the "Folio Facility"). The parties may elect
to enter into a rental or leasing relationship for all or part of the Folio
Facility under which ABSB will lease all or part of the Folio Facility from OPEN
MARKET for an initial term of twelve (12) months, with annual twelve (12) month
renewal options subject to the mutual agreement of the parties. In addition to
the foregoing, if ABSB elects to exercise the option granted under Section 9.3,
OPEN MARKET also shall provide ABSB with the option to purchase all or part of
the personal property located at the Folio Facility, which second option ABSB
will be required to exercise by written notice to OPEN MARKET within five (5)
business days of said first option exercise date. The essential terms and
conditions for the foregoing lease and option arrangements shall be set forth in
Exhibit 4.2, including without limitation a monthly lease rate for the entire
Folio Facility of $85,000.00 per month commencing on July 1, 1999.
5. TRANSITION PERIOD; JOINT DEVELOPMENT ACTIVITIES.
5.1 Transition and Post-Transition Support. (a) Both parties will
cooperate as reasonably required promptly to develop a plan for the joint
support of the Folio Product end users and Folio Distributors during a
reasonable, but limited, period of transition from OPEN MARKET to ABSB, at no
charge to ABSB. Each of the parties will prepare, as part of the foregoing
Transition Plan, certain items, including but not limited to an individual
transition plan for all large customers, a transition plan for support and
maintenance for all Folio Product customers and Folio Distributors, a Folio
Product upgrade plan and a communications plan and procedures. The parties each
agree to use reasonable efforts to minimize the duration of the Transition
Period (currently estimated by the parties to be approximately three months),
and each acknowledges that the length of the Transition Period may be related to
the number of Folio employees that are hired by ABSB and the Folio employees
retained by OPEN MARKET, as well as the assignability of contracts. Upon the
expiration of the Transition Period, OPEN MARKET shall have no direct support,
maintenance or services obligations to customers for the Folio Products or OPEN
MARKET Commerce Products distributed by ABSB, except as the parties hereafter
may otherwise agree in writing.
As of the Effective Closing Date, OPEN MARKET will transfer to ABSB the
following fees to account for certain on-going support and consulting benefits
and obligations arising under certain Folio Customer agreements to cover
applicable costs of such Folio Customers in accordance with the following
schedule:
If the Effective Date is June 9, 1999: [**]
(b) By the Effective Closing Date, ABSB shall elect either (i) to have OPEN
MARKET provide ABSB's customers directly with all support and maintenance for
the OPEN MARKET Commerce Products in accordance with OPEN MARKET's standard
terms and conditions for end-user maintenance and support agreements, and to
receive a 10% finders fee for all such referrals of maintenance and support
agreements to OPEN MARKET, or (ii) to itself be responsible for providing
customers with the primary maintenance and support services for the OPEN MARKET
Commerce Products, including without limitation the installation of the
applicable software if required by customer, the training of customer personnel
in the use of the applicable software, and the provision of primary maintenance
and support relating to the applicable software, subject to OPEN MARKET's
obligation to provide backup support and maintenance services to ABSB, pursuant
to Exhibit 5.1.
5.2 OPEN MARKET Deliverables. OPEN MARKET will deliver to ABSB copies of
all engineering plans, diagnostics, specifications and all other written and
electronic code, documentation
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and other materials (in such available format as ABSB may require) that OPEN
MARKET possesses which constitute and support the Folio Products, all software
in source code form included in the Folio Products (except non-assignable source
or object code proprietary to third party licensors, if any), and all export
licenses, copyrights, trademarks, service marks, and domain name registrations,
and all other documents evidencing the proprietary and other legal rights
included in and related to the Folio Products reasonably required for ABSB's
exercise of its license rights and its successful distribution of the Folio
Products. All such materials will be delivered to ABSB not later than the
Effective Date. Such materials, including all copies and reproductions made by
ABSB, remain the property of OPEN MARKET and, unless ABSB elects to exercise the
option granted under Section 9.3, must be promptly returned to OPEN MARKET upon
the expiration or termination of this Agreement.
5.3 Joint Development and Training Activities. The parties shall
establish an advisory Steering Committee, which shall meet on a quarterly basis
or more frequently if reasonably required during the term of this Agreement, in
order to enable OPEN MARKET (i) to provide input and, if required, resources to
ABSB for product planning and future development of the Folio Products, (ii) to
provide resources for the joint development and integration of the Folio
Products with the OPEN MARKET Commerce Products, (iii) to provide marketing
assistance to ABSB for the distribution of the Folio Products as may be
reasonably required, and (iv) to provide training for the Folio Products and
OPEN MARKET Commerce Products to ABSB personnel at OPEN MARKET's standard rates
as may be reasonably required. Each party shall designate a primary contact
person through whom all communications regarding this Agreement may be directed.
5.4 Observer Status on ABSB Board. During the term of this Agreement,
OPEN MARKET shall be provided with the right to designate one of its senior
executives as an observer on ABSB's Board of Directors, subject to ABSB's
reasonable approval as to such designee. OPEN MARKET's observer seat shall not
be entitled to any voting or other related rights granted to ABSB's other
permanent Board members. OPEN MARKET shall bear all applicable travel and
lodging expenses in connection with the foregoing right.
6. REPRESENTATIONS AND WARRANTIES
6.1 As of the Effective Closing Date, OPEN MARKET represents and warrants
to ABSB as follows:
(a) Organization and Authority. Open Market, Inc. is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware, and Folio Corporation is a corporation duly organized, validly
existing and in good standing under the laws of Utah. Each of Open Market, Inc.
and Folio Corporation has the corporate power and authority to own its property
and to carry on its business as now being conducted by it and each is duly
qualified to transact business as a foreign corporation in each jurisdiction
where such qualification is necessary. OPEN MARKET has the corporate power and
authority to execute, deliver and perform its obligations under this Agreement.
(b) Due Authorization. The execution, delivery and performance by
OPEN MARKET of this Agreement have been duly authorized by all requisite
corporate proceedings. OPEN MARKET has duly executed and delivered this
Agreement and this Agreement constitutes a valid and binding agreement
enforceable against OPEN MARKET in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, and similar laws of general application
affecting the rights and relief of creditors and secured parties and to the
further extent that the availability of the remedies of
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specific performance and injunctive relief and other equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought.
OPEN MARKET has furnished to ABSB true and correct copies of Folio Corporation's
Certificate of Incorporation and By-laws, each as amended and in effect on the
Effective Date.
(c) No Conflict With Other Agreements. The execution, delivery and
performance by OPEN MARKET of this Agreement do not require the consent,
approval, or notice of or to any government entity or any other third party.
The execution, delivery and performance by OPEN MARKET of this Agreement do not
and will not conflict with or result in a breach of the terms, conditions, or
provisions of, or give rise to a right of termination or constitute a default
under, or result in any violation of (i) its Certificate of Incorporation or By-
laws, (ii) any mortgage or other material agreement or instrument to which it is
a party, (iii) any order, judgment or decree binding on it or any of its
property, or (iv) any applicable law, rule, or regulation to which OPEN MARKET
or any of its respective property and assets are subject, or (v) any material
license, waiver or permit currently held by OPEN MARKET, or (vi) any of the end-
user or distributor agreements referenced in Sections 3.1 and 3.2. OPEN MARKET
shall exercise best efforts to obtain the assignment of all end-user and
distributor agreements referenced in Sections 3.1 and 3.2 that are material,
individually and in the aggregate, to the Folio Products.
(d) Compliance with Agreements. OPEN MARKET is not in breach of any
of the material terms and conditions (nor, to the best of OPEN MARKET's
knowledge, is any third party in breach or threatening to terminate), and OPEN
MARKET has performed all accrued obligations under, the Folio Product end-user
licenses and the Folio Distributor Agreements referenced in Sections 3.1 and
3.2, and all third party technology licenses to OPEN MARKET, and such agreements
are in full force and effect. The agreements referenced in Sections 3.1 and 3.2
are the only revenue bearing agreements or understandings (written or otherwise)
relating to the Folio Products.
The export licenses referenced in Section 5.2 represent all of the licenses
obtained by OPEN MARKET in connection with the Folio Products and currently
necessary for the export
of the Folio Products, not including the countries identified by the U.S.
Department of Commerce from time to time to which export is not allowed.
(e) Actions Pending; Compliance With Law. Except as disclosed in
Schedule 6.1(e), there is no action, suit or proceeding pending or, to the
knowledge of OPEN MARKET, threatened, against OPEN MARKET before any court,
arbitrator or government body, agency or official, which without limitation (i)
questions the validity of any of the transactions contemplated in this
Agreement, or (ii) would, if adversely determined, have a material adverse
effect on the business, financial position or results of operations of OPEN
MARKET and its consolidated subsidiaries, taken as a whole, including Folio
Corporation, (iii) relates to any of the Folio Products or (iv) would have a
material adverse impact on Licensee's ability to exercise the license rights
granted under this Agreement. OPEN MARKET is in full compliance with all
federal, state, and local laws, statutes, regulations, and ordinances relating
in any way to the Folio Products. Without limiting the generality of the
foregoing sentence, OPEN MARKET warrants that it has filed all tax returns it is
required to file and has paid all taxes payable in connection with the Folio
Products.
(f) Intellectual Property. Schedule 6.1(f) sets out a complete list
of all patents, copyrights, domain names, and other intellectual property,
including but not limited to all intellectual
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property embodied in the Folio Products, and any and all related items necessary
for Licensee to enjoy the benefits of the license rights granted under this
Agreement, and a complete list of all licenses pursuant to which OPEN MARKET is
authorized to use intellectual property owned by a third party. Except as
disclosed in Schedule 6.1(f), OPEN MARKET warrants (i) that it owns the Folio
Products, including all patents, copyrights, trade secrets, and other
intellectual property embodied therein, (ii) that it has all rights in the OPEN
MARKET Commerce Products and the Folio Products necessary to grant the rights
and licenses granted hereunder, including all rights under applicable
copyrights, trade secrets, patents, trademarks, third party technology licenses,
and other applicable proprietary rights, free and clear of all liens or
encumbrances and free from all claims and demands of third parties, (iii) that
neither the Folio Products nor the OPEN MARKET Commerce Products infringe, nor
will the license rights granted ABSB hereunder infringe, any third party
copyright, trade secret, trademark, U.S. patent (or, to OPEN MARKET's best
knowledge, any foreign patent), or any other third party proprietary right, (iv)
that there are no impending, threatened or pending infringement actions of any
third party patent, copyright, trade secret, trademark or other third party
proprietary right concerning the Folio Products and the OPEN MARKET Commerce
Products, (v), to the best of OPEN MARKET's knowledge, there are no
infringements by any third party of any intellectual property relating to the
Folio Products or the OPEN MARKET Commerce Products, and (vi) that there are no
claims pending, or, to the best of OPEN MARKET's knowledge, threatened,
challenging the ownership, validity, or enforceability of any intellectual
property relating to the Folio Products or the OPEN MARKET Commerce Products.
OPEN MARKET has not granted any exclusive licenses to any person in connection
with the Folio Products or, within the Business Segment, the OPEN MARKET
Commerce Products. No former or present employee, officer, or director of OPEN
MARKET holds any right, title or interest, directly or indirectly, in any
intellectual property used in the Folio Products. Except as set forth in
Schedule 6.1(f), all computer software embodied in the Folio Products was either
developed by (i) employees of OPEN MARKET within the scope of their employment,
or (ii) third parties as "works made for hire", as that term is defined under
the U.S. copyright laws, or (iii) assigned works pursuant to written agreements.
(g) Folio Product Warranties. OPEN MARKET warrants to ABSB that the
Folio Products, shall perform in all material respects in accordance with their
respective then-current documentation for a period of ninety (90) days after the
Effective Closing Date. OPEN MARKET shall have no liability with respect to any
failure of the Folio Products to perform as warranted under this Section 6.1(g)
if such failure results from any changes or modifications made to the Folio
Products by ABSB or any third party. This warranty is made solely to ABSB and
ABSB shall be solely responsible for any warranty to, or claims by, end-users of
the Folio Products, subdistributors or any other third parties.
(h) OPEN MARKET Commerce Product Warranties. OPEN MARKET warrants to
ABSB that the OPEN MARKET Commerce Products, shall perform in all material
respects in accordance with their respective then-current documentation for a
period of ninety (90) days after the date of any sale thereof. OPEN MARKET
shall have no liability with respect to any failure of the OPEN MARKET Commerce
Products to perform as warranted under this Section 6.1(h) if such failure
results from any changes or modifications made to the OPEN MARKET Commerce
Products by ABSB or any third party. This warranty is made solely to ABSB and
ABSB shall be solely responsible for any warranty to, or claims by, end-users of
the OPEN MARKET Commerce Products, subdistributors or any other third parties.
(i) Warranty Remedies. ABSB's exclusive remedy and OPEN MARKET's sole
obligation under the warranties set forth in Section 6.1(g) and 6.1(h) shall be
for OPEN MARKET to
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provide telephone assistance and to use reasonable best efforts to promptly
correct any material failure of the applicable products to perform as warranted,
or to provide work around, if such failure is reported to OPEN MARKET within the
above warranty period and ABSB, if necessary, at OPEN MARKET's request, provides
OPEN MARKET with reasonably sufficient information (which may include access to
ABSB's computer system for use of ABSB's copy(ies) of the Software by OPEN
MARKET) to reproduce the defect in question.
(j) Limitations; Remedies. OPEN MARKET's entire liability and ABSB's
exclusive remedy as to defects, performance or nonperfor-mance of the Folio
Products and OPEN MARKET Commerce Products under 6.1(g) and (h) shall be the
warranties and remedies as set forth in Section 6.1(i), regardless of the theory
of claim or form of action, except for any instances of fraud or intentional
wrongdoing. THE ABOVE ARE THE ONLY WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, THAT ARE MADE BY OPEN MARKET AND OPEN MARKET DISCLAIMS ALL OTHER
WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. OPEN MARKET DOES NOT
WARRANT THAT USE OF THE APPLICABLE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
NO ORAL OR WRITTEN INFORMA-TION OR ADVICE GIVEN BY OPEN MARKET, ITS AGENTS OR
EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE
WARRANTIES IN THIS AGREEMENT.
(k) Financial Statements. Attached as Schedule 6.1(k) are
consolidated balance sheets of OPEN MARKET as of December 31, 1998 and March 31,
1999 (all such financial statements referred to herein as the "Financial
Statements"). The Financial Statements have been prepared in accordance with
GAAP consistently applied during the periods involved. The Financial Statements
are complete and correct in all material respects and fairly present the
financial condition of OPEN MARKET and the Folio Products as of such dates and
the results of operations for the periods then ended. There is no liability or
obligation of any kind, whether accrued, absolute, fixed or contingent, relating
to the Folio Products that is not disclosed, reflected, or reserved against in
the Financial Statements and clearly identified as pertaining to the Folio
Products, except such liabilities or obligations incurred in the ordinary course
of business, consistent with past practices.
(l) Proprietary Information and Inventions. To the best of OPEN
MARKET's knowledge, none of the current or former officers, directors,
shareholders, or employees of OPEN MARKET is in violation of his or her
obligations to OPEN MARKET (contractual or otherwise) relating to confidential
information of the Folio Products or any intellectual property embodied in the
Folio Products, nor is OPEN MARKET aware of any facts or circumstances that
would lead a prudent manager to investigate and become aware of any such
violation.
(m) Contracts and Commitments. Schedule 6.1(m) lists the thirty (30)
largest dollar-volume contracts referenced in Sections 3.1 and 3.2 and all other
material contracts and commitments relating to the Folio Products. OPEN MARKET
is not in material breach of any material contract with any third party, and to
the best of OPEN MARKET's knowledge, no party to any such contract is in
material breach.
(n) Customers. Except as disclosed in Schedule 6.1(n), since December
31, 1998, there has not been any material adverse change in the business
relationships of OPEN MARKET with any of its customers, and OPEN MARKET is not
aware that any customer or customers representing a material amount of the Folio
Customer base intends to cease doing business with OPEN MARKET or
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materially alter the amount of business they or any of them presently is doing
in connection with the Folio Customer base.
(o) Sufficiency of Licenses and Assignments. The licenses granted
under this Agreement and the contracts being assigned to ABSB in connection
herewith, are sufficient to enable ABSB to market, distribute and sell the Folio
Products and to enable ABSB to receive the intended benefits of such license
grants as provided under this Agreement.
(p) Full Disclosure. No representation or warranty by OPEN MARKET in
this Agreement and no statement contained in any document or schedule furnished
by OPEN MARKET to ABSB or its representatives in connection with the
transactions contemplated by this Agreement contains any untrue statement of
material fact or omits to state any material fact necessary in order to make the
statements herein or therein, in light of the circumstances under which they
were made, not misleading.
(q) Affiliate Transactions. OPEN MARKET has not entered into any
transaction for the provision of any services or the sale of any goods, or
affecting any intellectual property embodied in the Folio Products, with any
officer, director, shareholder, employee or affiliate of OPEN MARKET that was
not negotiated at arms-length or for fair market value, or which impairs the
value or limits the implementation of the license rights granted ABSB hereunder.
6.2 As of the Effective Closing Date ABSB represents and warrants to OPEN
MARKET as follows:
(a) Organization and Authority. ABSB is a limited liability company
duly organized, validly existing and in good standing under the laws of Utah,
and has the power to own its property and to carry on its business as now being
conducted by it. ABSB has the power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) Due Authorization. The execution, delivery and performance by
ABSB of this Agreement have been duly authorized by all requisite proceedings.
ABSB has duly executed and delivered this Agreement and this Agreement
constitutes a valid and binding agreement enforceable against ABSB in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, and similar
laws of general application affecting the rights and relief of creditors and
secured parties and to the further extent that the availability of the remedies
of specific performance and injunctive relief and other equitable remedies is
subject to the discretion of the court before which any proceeding therefor may
be brought. ABSB has furnished to OPEN MARKET true and correct copies of its
Articles of Organization, as amended and in effect on the Effective Date.
(c) No Conflict With Other Agreements. The execution, delivery and
performance by ABSB of this Agreement do not and will not conflict with or
result in a breach of the terms, conditions or provisions of, or give rise to a
right of termination or constitute a default under, or result in any violation
of (i) its Articles of Organization or Operating Agreement, (ii) any mortgage or
other material agreement or instrument to which it is a party, (iii) any order,
judgment or decree binding on it or any of its property, or (iv) any applicable
law, rule or regulation to which ABSB or any of its respective property and
assets are subject, or any material license, waiver or permit currently held by
ABSB.
(d) Actions Pending; Compliance With Law. Except as otherwise
disclosed in writing to OPEN MARKET, there is no action, suit or proceeding
pending or, to the knowledge of
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ABSB, threatened, against ABSB before any court, arbitrator or government body,
agency or official, which (i) questions the validity of any of the transactions
contemplated in this Agreement or (ii) would, if adversely determined, have a
material adverse effect on the business, financial position or results of
operations of ABSB and its consolidated subsidiaries, taken as a whole.
(e) Government Contracts. The Folio Products and Open Market
Commerce Products are provided with restricted and limited rights for purposes
of government contracting and subcontracting. ABSB shall ensure that the rights
granted by it or any subdistributor to any agency of the U.S. Government or U.S.
Government subcontractor hereunder shall be subject to restrictions as set forth
in FAR 52.227-19 or DFARS 252.227-7013(c)(1) or successor regulations. ABSB and
its subdistributors shall include all appropriate restricted and limited rights
legends on any Folio Product or Open Market Commerce Product so licensed
hereunder.
(f) Compliance with Laws. ABSB shall comply with all applicable
laws, rules and regulations in its performance of this Agreement. In
particular, ABSB shall not export or re-export any Folio Product, OPEN MARKET
Commerce Product or any portion thereof, directly or indirectly, to any country
outside of the U.S. except as permitted by relevant U.S. laws and regulations,
including without limitation the U.S. Export Administration Act.
7. OPEN MARKET COVENANTS
7.1 Non-Solicitation. During the term of this Agreement, neither OPEN
MARKET nor its Affiliates, shall solicit, directly or indirectly, Folio
Customers, Folio Distributors or Folio employees; provided, however, that OPEN
MARKET shall be free to market, sell and distribute OPEN MARKET Commerce
Products to Folio Customers or Folio Distributors without restriction.
7.2 Trademark Maintenance; Intellectual Property Matters. During the term
of this Agreement, OPEN MARKET shall use reasonable best efforts to maintain its
existing trademark registrations and registration applications relating to the
Folio Products and to preserve and protect all of its intellectual property
rights relating to the Folio Products. OPEN MARKET shall consult with ABSB from
time to time during the term of this Agreement and upon ABSB's reasonable
request with respect to all intellectual property matters, and will comply with
ABSB's reasonable requests at ABSB's expense relating to all trademarks and
other intellectual property covered by the exclusive licenses set out in this
Agreement.
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7.3 Promotional Materials. OPEN MARKET shall provide ABSB, at no cost to
ABSB, such promotional materials with respect to the applicable Software
products as OPEN MARKET generally makes available to its distributors, including
without limitation technical specifications, prices, drawings, advertisements
and demonstration products, and ABSB may reproduce such materials as reasonably
required, including without limitation on its website(s), provided that all
copyright, trademark and other property makings are reproduced. Such materials,
including all copies and reproductions made by ABSB, remain the property of OPEN
MARKET and, except insofar as they are distributed by ABSB in the course of
performance of ABSB's duties under this Agreement, must be promptly returned to
OPEN MARKET upon the expiration or termination of this Agreement.
8. ABSB COVENANTS
8.1 Marketing, Promotional and Development Activities. During the term of
this Agreement, ABSB shall use commercially reasonable efforts to market,
promote and develop the Folio Products. ABSB shall advertise the OPEN MARKET
Commerce Products in appropriate advertising media. ABSB shall maintain a
professional marketing organization for the promotion of the software products
and sufficient qualified personnel to provide installation, maintenance,
technical support, and training for customers.
8.2 Quarterly Financial Reports: Within thirty (30) days after the end of
each calendar quarter during the term of this Agreement, ABSB shall furnish OPEN
MARKET with a report for such quarter consisting of ABSB's P&L, balance sheet,
cash flow and accounts receivable aging. If ABSB's cash balance drops below (i)
Two Million Five Hundred Thousand Dollars ($2,500,000) during the six (6) month
period following the Effective Closing Date or (ii) Three Million Five Hundred
Dollars ($3,500,000) thereafter during the term of this Agreement, ABSB shall
immediately notify OPEN MARKET and the parties shall designate senior executives
to discuss the situation and mutually agree on appropriate remedial actions,
including without limitation a reasonable cure period under which ABSB may seek
to obtain additional funding in a mutually agreed amount. If the parties fail
to agree on the foregoing actions or if ABSB is unable to reasonably cure the
situation in a manner reasonably acceptable to OPEN MARKET, OPEN MARKET may
elect to terminate this Agreement upon written notice and, if OPEN MARKET so
elects, the provisions of Section 9.3 (i)-(v) shall apply.
8.3 Financial Commitments: Prior to the Effective Closing Date, ABSB shall
provide OPEN MARKET with written evidence of funding commitments from investors
to ABSB totaling at least Thirteen Million Dollars ($13,000,000) in a form
reasonably satisfactory to OPEN MARKET. The parties acknowledge and agree that
upon any breach of the foregoing covenant under this Section 8.3, OPEN MARKET
may elect in its sole discretion to terminate this Agreement and the licenses
granted hereunder upon written notice on July 1, 1999, without any liability to
OPEN MARKET and ABSB, and, if OPEN MARKET so elects, the provisions of Section
9.3 (i)-(v) shall apply.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commmission. Asterisks denote omission.
9. FEES AND PAYMENT
9.1 Royalties. In consideration of the exclusive license and distribution
rights granted by OPEN MARKET, ABSB will pay royalties to OPEN MARKET under
royalty rates (covering guaranteed minimum royalties and any applicable upside)
set forth in Exhibit 9 with annual guaranteed minimum royalties of Four Million
Six Hundred Sixty-Six Thousand Six Hundred Sixty-Six Dollars ($4,666,666) per
year, payable in quarterly installments of One Million One Hundred Sixty-Six
Thousand Six Hundred Sixty-Six Dollars ($1,166,666) each, in advance, for a term
of three (3) years following the Effective Date, for a total of Fourteen Million
Dollars ($14,000,000) in guaranteed minimum royalty payments, with the first
payment due on or before June 30, 1999 (which guaranteed minimum royalty
payments are personally guaranteed by Bradley D. Pelo in the form attached
hereto, and which guaranty rights are exercisable by OPEN MARKET solely at
its option).
9.2 License Support and Maintenance Fees. ABSB shall also pay OPEN MARKET
Four Million Dollars ($4,000,000) in non-refundable license fees (plus any
applicable support and maintenance fees pursuant to Exhibit 5.1) for the initial
licenses of the applicable OPEN MARKET Commerce Products under discount rates
set forth in Exhibit 9, with a Two Million Dollar ($2,000,000) payment due and
payable on or before June 29, 1999, a One Million Dollar ($1,000,000) payment
due and payable on September 1, 1999 and a One Million Dollar ($1,000,000)
payment due and payable on December 15, 2000. The foregoing fees shall be in
consideration of the right granted to ABSB to sell and distribute licenses and
support and maintenance agreements for said OPEN MARKET Commerce Products to
third parties hereafter, all of which revenues shall be retained by ABSB.
License fees for additional licenses of the OPEN MARKET Commerce Products by
ABSB shall be determined in accordance with the discount rates established in
Exhibit 9 in accordance with the terms and conditions in Section 2.6
9.3 Option to Purchase. In addition, on the third anniversary of the
Effective Closing Date, ABSB shall have the option to obtain the unconditional
transfer and assignment of all rights, title and interests in and to (a) the
Folio Products and (b) all or part, in ABSB's sole discretion, of Folio's
personal property in Provo, Utah, which option may be exercised by written
notice to OPEN MARKET within five (5) business days before said anniversary
date. If ABSB elects to exercise this option, ABSB shall make an additional
payment to OPEN MARKET in the form of a one-time payment on the third
anniversary of the Effective Date, payable within ninety (90) days thereafter,
in an amount equal to [**] for all of the Folio Products, and an additional
payment for all or such part of Folio's personal property located in Provo, Utah
as ABSB elects to purchase in an amount equal to the fair market value of the
same, and the parties shall execute an asset purchase agreement and bill of sale
with all customary representations, warranties, covenants and indemnities as may
be mutually agreed by the parties. If ABSB does not elect to exercise this
option, (i) this Agreement will automatically terminate and ABSB's license
rights shall immediately cease, subject to ABSB's right to receive all
previously earned accounts receivable from its sales of Folio Products and OPEN
MARKET's Products and service agreements sold by ABSB hereafter, (ii) ABSB will
not be entitled to receive any of the foregoing rights with respect to the Folio
Products, (iii) ABSB will promptly return to OPEN MARKET all software products,
documentation and other materials received from OPEN MARKET, including without
limitation those listed in Section 5.2 above and the items listed under (v)
below, (iv) ABSB shall provide OPEN MARKET with benefits equivalent to those
undertaken by OPEN MARKET on behalf of ABSB under
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Sections 3.1, 3.2 and 4.1 above, and (v) OPEN MARKET shall continue to retain
all rights, title and interests in and to the Folio Products including, but not
limited to all enhancements, extensions, modifications or derivative works of
the Folio Products made by ABSB, unless otherwise agreed in writing by the
parties hereafter. In the event that ABSB does not elect to exercise the option
set forth hereinabove, the parties may agree to enter into a non-exclusive
license and distribution agreement for the Folio Products and the OPEN MARKET
Commerce products under mutually agreed terms and conditions.
Nothing in this Agreement shall constitute a sale or transfer of OPEN MARKET
assets, products or related technology to ABSB except as otherwise expressly
provided under the option granted under this Section 9.3.
9.4 Payments by Wire Transfer. Payments by ABSB pursuant to this Section
9 will be made by wire transfer to an OPEN MARKET account designated by OPEN
MARKET to ABSB on the applicable date of payment, or as may be otherwise
specified by OPEN MARKET in writing.
9.5 Late Payments. If any payment is not made within thirty (30) days of
the due date thereof, such payment shall bear interest at the rate of one
percent (1%) per month, or the highest legal rate, whichever is less, commencing
as of the due date until fully paid. Failure to make any payment within thirty
(30) days of the due date thereof shall constitute a material breach of this
Agreement.
9.6 Taxes. All prices quoted to ABSB in connection with this Agreement
are exclusive of all government excise, sales, service, use, occupational, or
like taxes and, accordingly, are subject to an increase equal in amount to any
tax OPEN MARKET may be required to collect or pay upon the licensing, delivery
or installation of the software products marketed hereunder. ABSB is
responsible for payment of any taxes resulting from or imposed upon this
Agreement or the copies of the applicable software products sold by ABSB, except
taxes based on OPEN MARKET's net income.
In no event shall ABSB be entitled to receive refunds of any fees, royalties or
payments paid to OPEN MARKET pursuant to subsections 9.1 - 9.3 above; provided,
however, that ABSB retains the independent right to file suit against OPEN
MARKET for any damages arising from any instances of fraud or intentional
wrongdoing or any uncured breach of any material warranty by OPEN MARKET
hereunder.
10. LIMITATIONS OF LIABILITY
10.1 Total Liability. EXCEPT FOR THE LIABILITY OF OPEN MARKET ARISING FROM
ANY INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT OR ANY INTENTIONAL BREACH BY
EITHER PARTY OF ITS OBLIGATIONS UNDER SECTION 12, IN NO EVENT SHALL THE
AGGREGATE LIABILITY OF EITHER PARTY FOR ANY MATTER ARISING OUT OF THE SUBJECT
MATTER OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED AN
AMOUNT EQUAL TO THE AMOUNTS ACTUALLY RECEIVED BY OPEN MARKET PURSUANT TO
SECTIONS 9.1 AND 9.2 PRIOR TO THE DATE GIVING RISE TO SUCH LIABILITY, EXCEPT FOR
INSTANCES OF GROSS NEGLIGENCE, FRAUD OR OTHER INTENTIONAL WRONGDOING.
10.2 Exclusion of Damages. EXCEPT FOR THE LIABILITY OF EITHER PARTY
ARISING FROM ANY INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT OR ANY
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INTENTIONAL BREACH OF ITS OBLIGATIONS UNDER SECTION 12, NEITHER PARTY WILL BE
LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, EXCEPT FOR INSTANCES OF GROSS
NEGLIGENCE, FRAUD OR OTHER INTENTIONAL WRONGDOING.
10.3 Failure of Essential Purpose. The parties have agreed that the
limitations specified in this Section 10 will survive and apply even if any
limited remedy specified in this Agreement is found to have failed of its
essential purpose.
11. INDEMNIFICATION
11.1 Infringement. In the event of any claim or allegation against ABSB of
infringement or misappropriation of any copyright, trade secret, trademark, U.S.
patent or other third party proprietary right by reason of the use, copying or
distribution by ABSB of the Folio Products or Open Market Commerce Products (not
attributable to any modifications to the same made by ABSB hereafter) as
permitted hereunder, OPEN MARKET will indemnify, defend and hold ABSB harmless
from any and all damages, losses, liabilities, costs and expenses (including
reasonable attorneys' fees) arising out of or related to any such claim or
allegation. OPEN MARKET shall have the sole and exclusive authority to defend
and/or settle any such claim or action, provided that OPEN MARKET shall keep
ABSB informed of, and shall consult with, any independent attorneys appointed by
ABSB at ABSB's own expense regarding the progress of such litigation; and
provided further that OPEN MARKET will not settle any such claim without ABSB's
consent, if such settlement would materially adversely affect ABSB's rights
under this Agreement or if such settlement involves a Folio Product or any
intellectual property embodied therein.
11.2 Remedies. If the use, copying or distribution of any Folio Product or
Open Market Commerce Product by ABSB has become, or in OPEN MARKET's opinion is
likely to become, the subject of any claim of infringement, OPEN MARKET may, at
its option and expense, promptly, (i) procure for ABSB the right to continue
using the infringing product as set forth hereunder, (ii) either replace or
modify the infringing product to make it non-infringing, (iii) substitute an
equivalent of the infringing product, or (iv) refund to ABSB all fees paid by
ABSB for such infringing product and pay ABSB the balance of all damages it
suffers and expenses and fees it incurs as a result of such actual or threatened
infringement.
11.3 Other Third Party Claims.
(a) OPEN MARKET Indemnification. In the event of any claim or
allegation against ABSB by a Folio Customer or Folio Distributor (except any
claim based on ABSB's material breach of this Agreement, negligence or
intentional misconduct) arising from the negligence or intentional misconduct of
OPEN MARKET either (i) prior to the Effective Closing Date, (ii) as a result of
any material obligation not disclosed to ABSB prior to the Effective Closing
Date or (iii) in connection with the Folio Customers or the Folio Distributors
either before or after the Effective Closing Date, OPEN MARKET will, at its
expense, indemnify, defend and hold ABSB harmless from any and all damages,
losses, liabilities, costs and expenses (including reasonable attorneys' fees)
arising out of any such claim or allegation. OPEN MARKET shall have the sole
and exclusive authority to defend and/or
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settle any such claim or action, provided that OPEN MARKET shall keep ABSB
informed of, and shall consult with, any independent attorneys appointed by ABSB
at ABSB's own expense regarding the progress of such litigation; and provided
further that OPEN MARKET will not settle any such claim without ABSB's consent,
if such settlement would materially adversely effect ABSB's rights under this
Agreement.
(b) ABSB Indemnification. In the event of any claim or allegation
against OPEN MARKET by a Folio Customer or Folio Distributor (including without
limitation those arising out of a Folio Distributor Agreement) arising after the
Effective Closing Date, ABSB will, at its expense, indemnify, defend and hold
OPEN MARKET harmless from any and all damages, losses, liabilities, costs and
expenses (including reasonable attorneys' fees) arising out of any such claim or
allegation, except regarding OPEN MARKET's material breach of this Agreement,
negligence or intentional misconduct. ABSB shall have the sole and exclusive
authority to defend and/or settle any such claim or action, provided that ABSB
shall keep OPEN MARKET informed of, and shall consult with, any independent
attorneys appointed by OPEN MARKET at OPEN MARKET's own expense regarding the
progress of such litigation; and provided further that ABSB will not settle any
such claim without OPEN MARKET's consent, if such settlement would materially
adversely effect OPEN MARKET's rights under this Agreement.
11.4 Limitation of Indemnification. OPEN MARKET shall have no liability or
obligation hereunder with respect to any infringement claim if such infringement
is caused solely by (i) use of any Folio Product or Open Market Commerce Product
by ABSB or its customers in an application or environment other than as
specified in OPEN MARKET's current documentation for such product or as
contemplated under this Agreement; (ii) modification of any Folio Product or
Open Market Commerce Product by ABSB or any third party or the combination,
operation or use of any Folio Product or Open Market Commerce Product with other
product(s) not supplied by OPEN MARKET where the Folio Product or Open Market
Commerce Product would not by itself be infringing.
11.5 Cross-Indemnification By ABSB or OPEN MARKET to indemnify ABSB.
Except where OPEN MARKET is obligated to indemnify ABSB under Section 11.1 or
Section 11.3, and without limiting any other obligation of ABSB to indemnify
OPEN MARKET hereunder, or any obligation of OPEN MARKET to indemnify ABSB
hereunder, ABSB shall indemnify, defend and hold OPEN MARKET harmless from any
and all claims, damages, losses, liabilities, costs and expenses (including
reasonable attorneys' fees) arising out of or in connection with ABSB's use or
distribution of the Folio Products or OPEN MARKET Commerce Products, including
but not limited to any modifications, enhancements or other changes made by ABSB
to the Folio Products or OPEN MARKET Commerce Products (or any component
thereof) following delivery to ABSB, unless arising from OPEN MARKET's material
breach of this Agreement, negligence or intentional wrongdoing; and provided
further that ABSB will not settle any such claim without OPEN MARKET's consent,
if such settlement would materially adversely effect OPEN MARKET's rights under
this Agreement. ABSB shall have the sole and exclusive authority to defend any
such claim or action, provided that ABSB shall keep OPEN MARKET informed of, and
shall consult with any independent attorneys appointed by OPEN MARKET at OPEN
MARKET's own expense, regarding the progress of such litigation.
SUBJECT TO SECTION 10 ABOVE, THIS SECTION 11 STATES EACH PARTY'S ENTIRE
LIABILITY AND OBLIGATION, AND EXCLUSIVE REMEDY WHETHER STATUTORY, CONTRACTUAL,
EXPRESS, IMPLIED OR OTHERWISE, FOR THIRD PARTY CLAIMS.
11.6 Third Party Infringement. If either party has knowledge of or
believes that any of the
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intellectual property rights in the Folio Products are being infringed by a
third party, the party having such knowledge or belief shall notify the other
party in writing within (30) days, which notice shall set forth the facts of
such infringement in reasonable detail. ABSB shall have the right, but not the
obligation, to initiate suit for infringement of the intellectual property
rights in the Folio Products. In the event ABSB elects not to initiate suit,
OPEN MARKET shall have the right to initiate suit for infringement. Any award or
recovery as a result of a suit or claim for infringement shall be retained by
the party which has initiated and paid for such litigation, unless and to the
extent that the parties hereafter may agree otherwise in writing. OPEN MARKET
and ABSB will cooperate in any such litigation including, without limitation,
the exchange of information.
12. OWNERSHIP AND TRADE SECRETS; CONFIDENTIALITY
12.1 OPEN MARKET Ownership Rights. Except for the licenses granted
hereunder, and subject to Section 9.3, all rights, title and interests,
including without limitation all intellectual property rights, in and to the
Folio Products and the OPEN MARKET Commerce Products, including but not limited
to all translations into any language, copies, alterations, enhancements,
extensions, modifications, derivative works or other works relating to any of
the Folio Products made by OPEN MARKET or ABSB (collectively, the "Works") are
retained by OPEN MARKET, unless otherwise agreed in writing by the parties
hereafter regarding any particular Work(s). The documentation accompanying each
of the Folio Products shall contain an acknowledgment of the incorporation of
OPEN MARKET's copyrighted material in the Folio Products. Every license
agreement pursuant to which such Folio Products are provided to third parties
shall prohibit reverse assembly, decompilation, or other means of converting
object to source code. All of the Works shall, to the maximum extent allowed by
applicable law, be (i) governed by US copyright law and (ii) deemed derivative
works and/or "works made for hire" for OPEN MARKET. OPEN MARKET holds and shall
retain all rights that vest in any Work as a derivative work, a "work made for
hire", or as part of a collective work or compilation, except as the parties
hereafter may agree otherwise in writing as to any particular Work(s).
Otherwise, to the extent ABSB for any reason shall acquire by operation of law
or otherwise any rights therein not expressly granted to it under this
Agreement, ABSB hereby irrevocably assigns all such rights to OPEN MARKET and
shall execute all necessary documents to perfect such assignment to OPEN MARKET
under applicable law and ABSB also irrevocably waives its moral or other
authorship rights in the Works; or, if such waiver is not allowed, irrevocably
consents to the infringement of such rights by OPEN MARKET.
12.2 Confidentiality. ABSB and OPEN MARKET shall each safeguard the
other's Proprietary Information in the same manner as they safeguard their own
valuable proprietary information. The parties each agree that the terms of this
Agreement, including without limitation the amount of license or other fees
payable hereunder, and the payment terms, shall be deemed Proprietary
Information. Each of the parties acknowledges that the other's Proprietary
Information constitutes such party's valuable proprietary information and trade
secrets. Each of the parties expressly agrees and acknowledges that it is
entering into this Agreement, and providing the other copies of its Proprietary
Information hereunder, in reliance upon the other's foregoing promise of
confidentiality. This Section 12.2 supersedes the Mutual Confidentiality
Agreement dated May 17, 1999 which is hereby, terminated and of no further force
and effect.
12.3 Nondisclosure. For a period of five (5) years neither party shall
use, disclose, make or have made any copies of the other party's Proprietary
Information in whole or in part, except as provided herein, without the prior
express written authorization of the other party. The parties shall only
disclose or otherwise allow access to the Proprietary Information of the other
party, to employees, consultants or
19
<PAGE>
contractors who (i) have a need to obtain access thereto in order to give effect
to the rights granted to such party under this Agreement, and (ii) are legally
bound to maintain the proprietary and confidential nature of such materials
under a written agreement.
12.4 Exceptions. Any provisions herein concerning non-disclosure and non-
use of confidential information of a party shall not apply to any such
information which (a) is already rightfully known to the other party when
received, (b) is or becomes publicly known through publication or otherwise and
through no wrongful act of the other party, (c) is received from a third party
without similar restriction and without breach of this Agreement, (d) is
approved for release or use by written authorization of the other party, or (e)
is required to be disclosed by law or governmental regulation.
12.5 Publicity. Notwithstanding anything to the contrary in this Section
12, each party may publicize the existence of the business relationship
established hereunder in connection with any product, promotion or publication
arising under this Agreement, provided that neither party shall make any public
announcements or disclose any of the terms of this Agreement to any third party
without first obtaining the consent of the other party. Notwithstanding anything
to the contrary in this Agreement, OPEN MARKET and ABSB agree that they will
coordinate obtaining confidential treatment for this Agreement in connection
with any disclosure of this Agreement pursuant to any SEC filing. The parties
will mutually agree upon the content, timing and other terms of a press release
announcing this Agreement.
13. CHANGE IN CONTROL, BANKRUPTCY
13.1 Change in Control. For the purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred if any person or a group (within the
meaning of Rule 13d-5 under the Securities Exchange Act as in effect on the
Effective Closing Date) who are not five percent (5%) or more shareholders of
the applicable party on the Effective Closing Date shall acquire, directly or
indirectly, beneficially or of record, ownership of voting securities
representing more than fifty percent (50%) of the total voting power of one of
the parties hereto.
13.2 Bankruptcy. For purposes of this Agreement, "Bankruptcy" shall mean
the voluntary or involuntary commencement of any proceeding under any law of any
jurisdiction, now or hereafter in force, relating to bankruptcy, insolvency,
dissolution, reorganization, composition, arrangement or otherwise for the
relief of debtors or the readjustment of indebtedness, or the appointment of a
receiver, trustee, custodian or similar official, for a party or the assets of a
party, which is not dismissed within sixty (60) days of filing, with the
exception of Chapter 11 proceedings under the United States Bankruptcy Code.
13.3 OPEN MARKET Remedies.
(a) In the event of a bankruptcy of ABSB all provisions of this
Agreement will continue in full force and effect, provided, however, that OPEN
MARKET in its reasonable discretion, may elect by written notice to ABSB within
sixty (60) days of receiving actual or written notice of such bankruptcy any or
all of the following:
(1) to terminate the licenses granted to ABSB under this Agreement,
subject to ABSB's right to receive all previously earned accounts receivable as
provided herein; and
(2) to require ABSB to immediately return or destroy any source code
to the
20
<PAGE>
Folio products in ABSB's possession or control.
(b) No termination as provided in Section (a)(1)-(2) above will
entitle ABSB to any refund of fees previously paid pursuant to this Agreement.
13.4 ABSB Remedies.
(a) In the event of a any Change of Control of OPEN MARKET, all
provisions of this Agreement will continue in full force and effect; provided,
however, in the event of a Change of Control the acquiring or successor
corporation shall agree to assume all ongoing obligations of OPEN MARKET to ABSB
hereunder.
(b) In the event that a trustee in bankruptcy is appointed for OPEN
MARKET, then unless and until such trustee has rejected this Agreement, the
trustee shall, at the written request of ABSB, (a) continue to perform all of
the obligations of OPEN MARKET under this Agreement, or (b) promptly deliver to
ABSB all intellectual property, as defined in Section 101 of Title 11 of the
United States Code, with respect to the Folio Products including source code,
designs, documentation and the like held by the trustee, including any
embodiment of such intellectual property to the extent protected by applicable
nonbankruptcy law, and in either case not interfere with the rights of ABSB to
such intellectual property (including such embodiment) as provided in this
Agreement or any agreement supplementary hereto, provided, however, that ABSB
may use any intellectual property so delivered only subject to the license terms
set forth in Section 2 above.
(c) If the trustee rejects this Agreement, and ABSB elects under
Section 365(n)(1)(B) of Title 11 of the United States Code to retain its rights
under this Agreement, the trustee shall promptly deliver to ABSB all
intellectual property, as defined in Section 101 of Title 11 of the United
States Code, with respect to the Folio Products, including without limitation
all source code, designs, documentation and the like held by the trustee,
including any embodiment of such intellectual property to the extent protected
by applicable nonbankruptcy law, and not interfere with the rights of ABSB to
such intellectual property (including such embodiment) under this Agreement or
any agreement supplementary hereto, provided, however, that ABSB may use any
intellectual property so delivered only subject to the license terms set forth
in Section 2 above.
The parties acknowledge that the provisions of subsections (b) and (c) above
shall not apply if Licensee elects to exercise the option granted under Section
9.3.
14. TERM; SURVIVAL
14.1 Term. This Agreement shall commence on the Effective Date and shall
continue until the third anniversary thereof, or for such longer term as the
parties may hereafter agree in writing, pursuant to Section 9.3.
14.2 Survival. The rights and obligations contained in Sections 7, 8, 9.3,
10, 11 (for two years after termination of this Agreement), 12, 16, and 17 shall
survive any termination of this Agreement.
15. BREACH AND TERMINATION
15.1 Injunctive Relief. OPEN MARKET and ABSB agree that a breach of the
provisions of
21
<PAGE>
Sections 2.1, 2.2, or 12 of this Agreement would cause irreparable harm and
significant injury to the applicable party which would be difficult to ascertain
and which would not be compensable by damages alone, and that, accordingly, such
party will have the right to enforce those provisions by injunction, specific
performance or other equitable relief without prejudice to any other rights and
remedies it may have for such party's breach of this Agreement
15.2 License Termination. In the event ABSB commits any material and
willful substantial breach or default in the performance of its obligations
pursuant to Sections 2.1, 2.2, 9.1, or 9.2, and fails to provide an acceptable
remedy of such breach or default within thirty (30) days after written notice of
such breach or default from OPEN MARKET, OPEN MARKET by notice to ABSB may
terminate the licenses granted to ABSB under Sections 2.1 and 2.2 hereof. Such
termination shall not effect the rights of end-users who were licensed prior to
such termination. If ABSB is unable to reasonably cure the situation in a
manner reasonably acceptable to OPEN MARKET, OPEN MARKET may also, in its sole
discretion, elect to have the provisions of Section 9.3(i)-(v) apply.
15.3 Right to Cure. In no event may this Agreement be terminated by either
party without first providing the party allegedly in material breach hereof with
a formal written notice, detailing the alleged breach or default, and giving
such party at least thirty (30) days after receipt of such written notice to
reasonably cure the same and thus avoid termination hereof.
16. NOTICES. Any notice required or permitted to be given hereunder shall be
given in writing to the party at the address and to the attention of the
individual or title listed on Exhibit 16 of this Agreement by personal delivery,
certified mail, return receipt requested, or by overnight delivery, and the date
upon which such notice is so personally delivered (or if notice is given by
certified mail, return receipt requested, three (3) business days from the date
of sending, or if by overnight delivery, one (1) business day from the date of
sending) shall be deemed to be the date of such notice, irrespective of the date
appearing thereon. The addresses, individuals and/or titles to which notices
shall be sent may be changed by a party upon written notice to the other.
17. GENERAL
17.1 No Assignment. Except as provided in Section 2 of this Agreement or
in the case of a merger or acquisition of all or substantially all the assets of
such party or other Change of Control, neither Party may assign this Agreement
(or any of its rights hereunder), or delegate its obligations hereunder without
the prior written consent of the other, which shall not be unreasonably
withheld. This Agreement shall be binding upon and shall inure to the benefit of
all permitted assignees (including by merger and acquisition), except as
provided otherwise in this Agreement.
17.2 Waiver. No modification to this Agreement, nor any waiver of any
rights hereunder, shall be effective unless assented to in writing by both
parties and the waiver of any breach or default shall not constitute a waiver of
any other right hereunder or any subsequent breach or default.
17.3 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17.4 Inconsistency. In the event of any conflict or inconsistency between
the terms in the body of this Agreement and any Exhibit hereto it is the
intention of the parties that the term in the body of the Agreement shall
govern.
22
<PAGE>
17.5 Relationship. Nothing contained herein shall in any way constitute
any association, partnership, or joint venture between the parties hereto, or be
construed to evidence the intention of the parties to establish any such
relationship.
17.6 Unenforceability. If a court of competent jurisdiction determines
that any provision of this Agreement is invalid, illegal, or otherwise
unenforceable, such provision shall be enforced as nearly as possible in
accordance with the stated intention of the parties, while the remainder of this
Agreement shall remain in full force and effect and bind the parties according
to its terms. To the extent any provision cannot be enforced in accordance with
the stated intentions of the parties, such provision shall be deemed not to be a
part of this Agreement.
17.7 Choice of Law. The Convention on International Sale of Goods shall
not apply to this Agreement. This Agreement shall be deemed to have been made
in The Commonwealth of Massachusetts, USA, and shall be governed by and
construed in accordance with the lawsof said Commonwealth, exclusive of its
rules governing choice of law and conflict of laws.
17.8 Entire Agreement. This Agreement, including all exhibits hereto, is
the entire agreement between ABSB and OPEN MARKET with respect to its subject
matter, and supersedes all prior and contemporaneous proposals, statements and
agreements with respect to such subject matter.
Executed as of the date first written above by authorized representatives
of the parties as an instrument under seal.
OPEN MARKET, INC. ABSB, L.C.
By: /s/ Gary Eichhorn By: /s/ Brad Pelo
------------------------------ -----------------------------
[authorized signatory] [authorized signatory]
Title: President and CEO Title: President and CEO
--------------------------- -------------------------
Date: June 9, 1999 Date: June 9, 1999
--------------------------- --------------------------
FOLIO CORPORATION
By: /s/ Gary Eichhorn
------------------------------
[authorized signatory]
Title: President and CEO
----------------------------
Date: June 9, 1999
----------------------------
23
<PAGE>
Disclosure Schedules
--------------------
Schedule 6.1(e)
---------------
None
Schedule 6.1(f)
---------------
Trademarks: Folio(R), Folio VIEWS(R), Folio(R) Publisher, Folio(R) Integrator,
Folio(R) Builder, Folio 4, Folio SiteDirector, Folio Infobase Technology,
SecurePublish, LivePublish.
Domain Names: folio.com, securepublish.com, secure-publish.com, directory.net
Third Party Software Agreements: Halcyon, Inc., Inso Corporation, Microsoft,
Inc., PKWare, Inc., RSA, Inc., SoftArt, Inc., Linguistic Software Solutions,
Inc.
Schedule 6.1(k)
---------------
Please refer to Open Market's Website at http://www.openmarket.com/investor/sec
for a copy of the company's 10Q containing the applicable Financial Statements
Schedule 6.1(m)
---------------
Contracts:
Distribution Agreements: ADP, Inc., Astea International, Best Software, Inc.,
Bell Atlantic Directory Graphics, Bureau of National Affairs, Business and Legal
Reports, Chase Manhattan Mortgage, Citibank, Financial Accounting Foundation,
First Health, Inc., Insurance Services Office, Inc., J.J. Keller, Inc., Knowlix,
Inc., Lexis Law Publishing, Mathew Bender, Mortgage Resource Center, Novell,
Inc., Pepsi Cola, Inc., Reed Elsevier, Inc., Tax Analysts, Inc., Thomson
Holdings, Inc., West Group, Wilke Thornton, Wolters Kluer
Software Evaluation License Agreement: Price Waterhouse Coopers
International Resellers/Business Partners: Catalyst, Inc., CED CD Rom Verlag,
Compdisk, Gyldendal Rettsdata, Soft Consultoria
Schedule 6.1(n)
---------------
None
24
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SCHEDULE OF EXHIBITS
--------------------
Exhibit 1.12 Business Segment
Exhibit 2.2 End User Agreement Terms and Conditions
Exhibit 2.3 Folio Trademarks and Use Guidelines
Exhibit 2.6 OPEN MARKET Commerce Products Licensed End User Categories
Exhibit 4.2 Folio Facilities
Exhibit 5.1 Open Market Back-Up Support
Exhibit 9 Royalty Rates; Discount Rates; Price Lists
Exhibit 16 Notices
25
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commmission. Asterisks denote omission.
EXHIBIT 1.12
------------
BUSINESS SEGMENT
currently paying royalties to Open Market Accounts
[**]
26
<PAGE>
EXHIBIT 2.2
END USER AGREEMENT TERMS AND CONDITIONS
1. License/Restrictions on Use. Customer, after the payment of the applicable
fees, shall be entitled to use the Software only (a) for the purposes expressly
set forth in this Agreement (See Exhibit 2.6 for applicable license use
limitations); (b) in the Territory; and (c) during the term of this Agreement.
The rights granted to Customer herein are restricted to Customer. Customer is
granted no other license for, and no right of ownership or title in, any
Software. Customer's license may not be assigned or otherwise transferred to
any third party.
2. Nondisclosure.
(a) Customer shall treat the Software and all other items identified as
confidential Licensor information prior to their disclosure to Customer
(collectively, the "Proprietary Information") as confidential and proprietary.
Except as specified in this Agreement, Customer shall not publish or disclose
Proprietary Information to, or use same for the benefit of, any third party.
Customer shall (1) give Proprietary Information at least the same degree of
protection Customer gives its own confidential information, and in no event
shall use less than reasonable care; (2) keep Proprietary Information in a safe
place and monitor access thereto; and (3) allow access to Proprietary
Information on a "need to know" basis only to those of its personnel ( the
"Recipients") who, prior to gaining access to Proprietary Information, have
executed a written legally binding agreement with Customer (the
"Acknowledgments") acknowledging the confidential and proprietary nature of
Proprietary Information and Licensor's rights therein and requiring compliance
with the nondisclosure, non-use and non-competition provisions of this
Agreement. Customer shall ensure, and hereby warrants and represents, that all
Acknowledgments are valid and enforceable against all Recipients, and this
Agreement is valid and enforceable against Customer, anywhere in the Territory.
(b) Customer shall have no obligations of confidentiality with respect to
information that, without breach of any obligation of confidentiality owed to
Licensor, (1) is or subsequently becomes publicly available; (2) became known to
Customer prior to its disclosure by Licensor; (3) became known to Customer from
a source other than Licensor; (4) is independently and entirely developed by
Customer; (5) is used by Customer to enforce Customer's rights, claims or
defenses under this Agreement; or (6) Customer is legally required to disclose,
provided, however, that Customer shall use its best efforts to minimize or
prevent such disclosure to the maximum extent allowed under applicable law and
to secure confidential treatment of the information being disclosed. Customer
agrees that it must have documentary evidence to invoke any of the provisions of
this subparagraph (b).
3. Proprietary Rights.
(a) Customer acknowledges that Licensor or its suppliers hold and shall
retain the exclusive and entire right, title, and ownership (including
copyright, patent, trade secret, trademark, and know-how rights) anywhere in the
world in (1) the Software and any translations thereof, and (2) Licensor's trade
names and marks and service names and marks depicted on any Software (the
"Trademarks"). Customer shall not use the Trademarks, or any name or mark
similar thereto, whether alone or together with another name or mark, or as part
of, on, or in connection with, Customer's corporate, business, private,
27
<PAGE>
substitute or other name, or on any of Customer's designs, symbols, Software,
services, letterhead, business cards, or other means of identification.
Customer also shall not adopt or attempt to register anywhere in the world any
of the Trademarks, or any name or mark similar thereto.
(b) Except as specified in this Agreement, Customer may not (1) copy,
reproduce, store, or convey any Software in any form or on any medium
whatsoever, including without limitation print, audio, video, software, CD-ROM,
or other electronic form; (2) make any modifications, additions, or enhancements
to any Software; (3) attempt to decompile, reverse-engineer, or extract any
algorithms or hierarchies from any Software; or (4) create any work based on, or
using any idea derived from, any Software. The original, and a copy of the
Software, are the sole and exclusive property of Licensor or its suppliers.
Customer shall reproduce and include all Licensor (or supplier) copyright,
trademark, and other proprietary rights notices on all copies of the Software
and any translation thereof. Customer shall not remove or modify any existing
Licensor or other copyright, trademark or other proprietary rights notice from
the Software or related documentation.
(c) To the maximum extent allowed under applicable law, this agreement
shall be governed by US copyright law, for the purposes of which any copy,
modification, addition, or work made in violation of Paragraph 3(b) shall be
deemed a derivative work or a "work made for hire" for Licensor. Licensor (or
its suppliers) holds and shall retain all rights that may vest at any time in
any of the foregoing items as a derivative work, a "work made for hire", or as
part of a collective work or compilation.
4. Warranties, Remedies, Disclaimers.
(a) Warranty. Licensor warrants and represents to Customer that (i)
Licensor has the full right and authority to license the Software hereunder,
(ii) the Software do not, to the best of Licensor's knowledge, infringe upon the
copyright of any third party; and (iii) for a period of [thirty (30) days]
following the date of delivery of each Software to Customer, each Software shall
substantially perform in accordance with its intended purpose and be
substantially free from defect in material and workmanship. The foregoing
warranties shall not apply (A) if the applicable Software is not used in
accordance with its intended purpose; (B) to any modification or translation of
any Software not made by Licensor.
(b) Exclusive Remedy. Customer's only remedy, which is in lieu of all
other remedies, and Licensor's only liability, for breach of the warranties in
Paragraph 4(a)(i) or 4(a)(ii), shall be to obtain for Customer, at Licensor's
sole option and expense, the right to continue to use the infringing or
unauthorized Software, modify the Software so that it becomes non-infringing or
authorized, or replace the infringing Software with a non-infringing or
authorized Software. Customer's only remedy, which is in lieu of all other
remedies, and Licensor's only liability, for breach of the warranties in
Paragraph 4(a)(iii), shall be to replace the non-conforming Software, during
such [thirty (30) day] warranty period and at no charge to Customer, with a
conforming Software. Customer assumes the entire cost of all necessary
servicing, repair or correction of defects after the [thirty (30) day] warranty
period.
(c) Disclaimer of Warranty. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
PARAGRAPH (4)(a), NEITHER LICENSOR NOR LICENSOR'S SUPPLIERS MAKES ANY WARRANTY,
EXPRESSED OR IMPLIED, CONCERNING THE SOFTWARE, OR OTHERWISE IN CONNECTION WITH
THIS CUSTOMER AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES
ARISING FROM USAGE OF TRADE, COURSE OF
28
<PAGE>
DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, NEITHER LICENSOR NOR LICENSOR'S SUPPLIERS WARRANTS THAT THE SOFTWARE
WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THEY WILL BE ACCURATE OR ERROR-FREE.
CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE RESULTS, PERFORMANCE OR USE OF THE
SOFTWARE. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, LICENSOR AND
LICENSOR'S SUPPLIERS SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR
DAMAGES RESULTING FROM THE USE OF, OR ANY ERROR OR OMISSION IN, THE SOFTWARE OR
ANY ACTION TAKEN OR NOT TAKEN BASED ON THE SOFTWARE OR OTHERWISE FROM ANY CAUSE
WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT
(INCLUDING NEGLIGENCE). IN NO EVENT SHALL LICENSOR OR LICENSOR'S SUPPLIERS BE
LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF BUSINESS OR OTHER
CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES. TO THE MAXIMUM EXTENT
ALLOWED BY APPLICABLE LAW, CUSTOMER ACKNOWLEDGES THAT (i) LICENSOR AND
LICENSOR'S SUPPLIERS SHALL NOT HAVE ANY LIABILITY TO CUSTOMER UNDER THIS
CUSTOMER AGREEMENT OR OTHERWISE IN CONNECTION WITH THE SOFTWARE, AND (ii) IT
SHALL LOOK SOLELY TO LICENSOR AND NOT TO ANY OF LICENSOR'S SUPPLIERS, CORPORATE
AFFILIATES, SHAREHOLDERS, DIRECTORS OR EMPLOYEES, FOR ANY SUIT, CLAIM, OR RELIEF
IN CONNECTION WITH THE SOFTWARE OR THIS CUSTOMER AGREEMENT. IN NO EVENT SHALL
LICENSOR BE LIABLE TO CUSTOMER FOR MORE THAN THE FEE PAID BY CUSTOMER TO
LICENSOR.
5. Third Party Beneficiary. CUSTOMER ACKNOWLEDGES THAT OPEN MARKET IS AN
EXPRESS INTENDED THIRD-PARTY BENEFICIARY OF THIS CUSTOMER AGREEMENT AND THAT
OPEN MARKET SHALL HAVE THE RIGHT TO BRING ACTION, CLAIM OR SUIT FOR DAMAGES,
INJUNCTIVE OR OTHER RELIEF UPON ANY BREACH BY CUSTOMER OF THIS CUSTOMER
AGREEMENT.
6. Compliance with Law. Customer shall not, directly or indirectly, (a)
export or re-export the Software or any technical information about the Software
to any country for which the United States Export Administration Act prohibits
such export or re-export or requires an export license or other United States
governmental approval, unless the appropriate export license or approval has
been obtained; or (b) take any action that would cause Licensor or Licensor to
be in violation of United States anti-boycott laws under the United States
Export Administration Act or the United States Internal Revenue Code, or any
regulation thereunder, or United States Foreign Corrupt Practices Act.
7. Assignment. This Customer Agreement may be assigned by Licensor or
Licensor's designee upon written notice to Customer.
29
<PAGE>
EXHIBIT 2.3
FOLIO TRADEMARKS AND USE GUIDELINES
Open Market's Folio Trademarks
The following are registered trademarks and trademarks of Open Market.
Documentation, packaging, etc., must contain a notice of Open Market's ownership
of these marks. Initial use of these trademarks must include the (R) or
symbols. You must use these marks exactly as they appear below.
Folio(R) Underhead Technology (R) Folio Infobase Technology/TM/
Folio 4/TM/ Folio Views(R) Folio(R) Builder
Folio(R) Publisher Folio(R) Integrator Folio SiteDirector/TM/
LivePublish/TM/ SecurePublish/TM/
Use Guidelines
Logo Artwork for Commercial Publications
Powered by Folio Logo
Logo Usage for Commercial Publications
Use of Powered by Folio Logo
Color
100 % Black or authorized colors
Media and Packaging Placement
The Powered by Folio Logo must be prominently displayed on all (1) diskettes,
(2) CD-ROMs, (3) other media used in connection with the distribution of any
Commercial Publication, (4) packaging, (5) advertising, and (6) promotional
materials associated with distributing or marketing each Commercial Publication.
The Powered by Folio Logo must be present on the front and spine of all
packaging. Call (801) 229-6700 if you have any questions regarding the placement
of the Powered by Folio Logo. Publisher may feature its company logo or
Commercial Publication trademark more prominently than the Powered by Folio
Logo, and Publisher may use its own trademarks, logos and imprints to identify
the Commercial Publication. Additionally, with respect to the serving up of
Infobases online with LivePublish, Publisher shall display the Folio Logo in the
document pane in instances where no active documents from an Infobase are being
displayed.
Size:
Below is a minimum size that must be present on the media and packaging.
However, publishers can increase the size of the Logo to meet their individual
needs.
Minimum size: Minimum size:
CD ROM
Packaging
Marketing Literature
LivePublish Doc Frame Floppy labels
1" 5/8"
30
<PAGE>
Logo Usage for Folio Commercial Publications that Contain a Custom Application
Color
100 % Black or authorized colors
Media and Packaging Placement
In addition to the Logo Usage Requirements above, Publisher must include the
Open Market copyright notice and prominently display the Powered by Folio Logo
in or on (1) the application splash screen, (2) the "About" dialog box, (3) any
online help language distributed with the program, (4) any documentation
distributed with the program, and (5) on all advertising, and promotional
materials associated with distributing or marketing the application. Publisher
may feature its company logo or application trademark more prominently than the
Powered by Folio Logo, and Publisher may use its own trademarks, logos and
imprints to identify the custom application.
Size
Below is a minimum size that must be present on the splash screen and about
dialog. Publisher can increase the size of the Logo to meet their individual
needs.
Minimum size:
Splash Screen
About Dialog
1"
Copyright Notices required for Folio Commercial Publications that Contain a
Custom Application
Publishers who distribute Open Market's Interface Controls and the Indexing and
Retrieval Engine must use the following notice:
Interface Controls & Indexing and Retrieval Engine Copyright (C) 1998 Open
Market, Inc.
All rights reserved.
Publishers who distribute either the Interface Controls or the Indexing and
Retrieval Engine must use the appropriate notice listed below:
Interface Controls Copyright (C) 1998 Open Market, Inc. All rights reserved.
Indexing and Retrieval Engine Copyright (C) 1998 Open Market, Inc. All rights
reserved.
All Publishers must include the following notice:
Contains security software from RSA Data Security, Inc. Copyright (C) 1998 RSA
Data Security, Inc. All rights reserved.
All custom applications built with Folio Components must include the following
RSA Seal in the application splash screen:
[RSA seal] Note: The minimum size of the RSA Seal must be 3/4 of an inch or
larger.
Third-Party Copyright Notices for Folio Commercial Publications that Contain a
Custom Application (Required if Technology is Included)
Soft-Art and Linguistic Software Products Notice
------------------------------------------------
Indexing and Retrieval Assistant program for dictionaries Copyright (C) 1998.
Soft-Art, Inc.(R) All rights reserved.
Dictionaries Copyright (C) 1998 Linguistic Software Products, Inc.(R) All rights
reserved.
Inso Corporation Notice
-----------------------
ImageStream(R) Graphics & Presentation Filters Copyright (C) 1991-1998 Inso
Corporation, All rights reserved.
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<PAGE>
Logo Verification
Per this Agreement, logo usage on packaging artwork associated with the sale of
a Commercial Publication must be verified by Folio Trademark Screening. Please
send copies of the Folio Commercial Publication Authorization Form as referenced
in Exhibit E along with all packaging artwork to Open Market, Attention:
Trademark Screening, 5072 North 300 West, Provo, Utah 84604.
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<PAGE>
EXHIBIT 2.6
-----------
OPEN MARKET COMMERCE PRODUCT LICENSED END USER CATEGORIES
"Commerce Service Provider" (TRANSACT only) means a business entity or
organization that is granted a license to provide Internet transaction or other
commerce services to Merchants using TRANSACT. The terms for such a license are
set forth in Exhibit B. As used hereunder, a "Merchant" means any third party
licensee of Licensee or an Affiliate who establishes an active account with
Licensee or with an Affiliate in order to provide goods, services, information
or other items to buyers via TRANSACT.
"Niche Commerce Service Provider" (TRANSACT only) is a Commerce Service Provider
whose TRANSACT license is contractually limited either by the number of
Merchants that can be served by the licensed copy of TRANSACT or by geographic
area.
"Corporate" (TRANSACT only) means a business entity or its authorized Business
Line that is granted a license to provide goods, services, information or other
items to buyers via TRANSACT. Under no circumstances shall a Corporate TRANSACT
licensee be authorized to use TRANSACT to provide transaction services as a
Commerce Service Provider to third party Merchants. "Business Line" means any
business activity which Licensee elects to manage under a single Store ID (and
the additional Store IDs as provided below) and which is authorized by Open
Market to use TRANSACT. Such business activities may include without limitation
separate product lines, corporate divisions, fulfillment centers or promotional
campaigns.
Unless Licensee has procured an applicable TRANSACT CSP license, Licensee or a
Business Line will not be authorized to use TRANSACT to provide Internet
transaction or other commerce services as a commerce service provider to third
party merchants. For purposes hereunder, "Store ID" means a number that
identifies a registered store to the TRANSACT administrator, which is provided
to the Business Line when it registers a store and which will appear on the
appropriate registration screens.
Each Business Line is granted the non-exclusive, non-transferable, non-
sublicensable right to the following: one (1) Store ID on Licensee's TRANSACT
and SecureLink software and Documentation as needed. Licensee may make as many
copies of the SecureLink software as are reasonably necessary to support the
Store ID. Support for Business Line licenses is provided by OPEN MARKET at the
Basic or Premier level at OPEN MARKET's standard U.S. list prices for Basic
level and at an agreed discount of Twenty Percent (20%) off of Open Market's
published U.S. Premier level support rates for Premier level.
"Development" means a copy of the applicable Software that is licensed for use
solely for internal development, testing and staging purposes and for no other
purpose.
"Cold Spare Back-up" is a copy of TRANSACT that may be installed but used only
in order to provide emergency back-up to the Production copy of TRANSACT for the
duration of such emergency.
"Hot Spare Back-up" is a copy of TRANSACT that may be installed and kept
running, but used only in order to provide emergency back-up to the Production
copy of TRANSACT for the duration of such emergency.
LiveCommerce License Grant and Applicable Use Limitations (from standard
------------------------------------------------------------------------
shrinkwrap license)
-------------------
33
<PAGE>
GRANT OF LICENSES (Standard End User Terms). Open Market grants Licensee a non-
exclusive, non-transferable license to install and use the Program on dedicated
servers or multiple server configurations owned, controlled or authorized by
Licensee to create and deploy a single LiveCommerce "catalogue" to support no
more than the designated number of unique Catalogue Items listed above for
Licensee's own internal business purposes. A LiveCommerce "catalogue" consists
of the following three (3) databases: a catalogue database, a data import
database and an image database. The base Program consists of three (3)
components: (a) two (2) LiveCommerce development licenses, (b) one (1)
LiveCommerce production license, and (c) the suite of LiveCommerce authoring
tools defined in the Documentation. Each license is comprised of a catalogue
and an "installation" (the set of LiveCommerce application services required to
operate a single LiveCommerce catalogue). Licensee may use the two LiveCommerce
development licenses to create as many instances of a single catalogue as
Licensee reasonably requires; however, Licensee may have only one (1) production
copy of the catalogue at any one time.
Licensee may make a reasonable number of copies of the Program solely for back-
up or archival purposes. Licensee may not reverse-engineer, disassemble, or
decompile the Program nor may Licensee use the Program for competitive analysis
or benchmarking purposes. All LiveCommerce authoring tools provided with the
Program may be used solely for Licensee's own internal business purposes by
authorized Licensee employees. Licensee may copy the Documentation solely for
reference.
Catalogue Items: For purposes of this Agreement, "Catalogue Items" means the
number of unique values in the "Items" object class of the catalogue database
and therefore does not include product or category attributes. Catalogue Items
are available in the following packages: Small Catalogue - up to 20,000; Medium
Catalogue - 20,000 - 50,000; and Large Catalogue - 50,000+. Licensee must
obtain an additional grant of license of Catalogue Items from Open Market if
Licensee wishes to utilize more than the number of Catalogue Items designated
above.
ShopSite License Grant and Applicable Use Limitations (from standard shrinkwrap
-------------------------------------------------------------------------------
license)
--------
Grant of License. The ShopSite software and accompanying documentation are being
licensed to you, which means you have the right to use the software only in
accordance with this Agreement. Open Market grants you the right to use the
software in connection with one (1) Licensed Storefront (as defined below) on a
single Internet server or multiple server configuration. The software is
considered in use on an Internet server when it is loaded into temporary memory
or installed into permanent memory. This license is subject to the following
restrictions and limitations:
(a) The term "Licensed Storefront," as used in this Agreement, means the
Internet storefront created and/or maintained by you on an Internet server
for advertising and selling your goods or services as part of a single
business or the goods or services of another person or entity as part of a
single business. A Licensed Storefront may not offer the goods or services
of more than one business or entity.
(b) You will have access to the object code version of the software and are not
entitled to have access to the source code, except as provided in a
separate Master Preferred Escrow Agreement.
(c) This license is valid for only one (1) Licensed Storefront. The software
may not be used in connection with more than one (1) Storefront and may not
be transferred to a different Storefront than the one originally licensed
without Open Market's prior written consent.
(d) Copies. You are authorized to make a reasonable number of copies of the
software for backup or
34
<PAGE>
archival purposes, provided that all of Open Market's copyright notices are
included in the copy.
(e) Scope of Use. You may not sublicense or lease the software or any of the
accompanying documentation to any other person except in accordance with
the terms of the License Agreement as amended, but you may use the software
to maintain a Licensed Storefront that is leased to another person or
entity. The software may be used only for advertising and selling goods and
services that you sell in the ordinary course of your business, whether
manufactured or provided by you or third parties, or, if you are
maintaining the Licensed Storefront for another merchant, the software may
be used only for advertising and selling the goods and services of that
merchant. Except as specifically permitted in this Agreement, the software
may not be used to process transactions or data for any other person or
entity.
35
<PAGE>
EXHIBIT 4.2
FOLIO FACILITIES
The "Folio Facilities," as defined in Section 4.2 of the Agreement to include
all real estate, all improvements thereon, and all personal property located
therein, shall be leased by OPEN MARKET to ABSB for the monthly rental sum of
Eighty-Five Thousand Dollars ($85,000.00) per month, with the first payment due
on July 1, 1999, subject to such other terms and conditions as will be set forth
in a basic commercial lease agreement to be finalized between OPEN MARKET and
ABSB as soon as possible hereafter.
36
<PAGE>
EXHIBIT 5.1
OPEN MARKET BACK-UP SUPPORT AND MAINTENANCE
OPEN MARKET shall have no direct support, maintenance or Services obligations to
Customers for the Software distributed by Distributor. OPEN MARKET will provide
Distributor with back-up support and maintenance for the Software in accordance
with the terms and conditions set forth in the Support Obligations listed below.
Such support is conditional upon OPEN Market's receiving payment for annual or
other support charges as set forth in this Exhibit.
Distributor will be responsible for providing Customers with the support,
maintenance and Services set forth in the Support Obligations, including without
limitation: (i) the installation of the Software if required by Customer, (ii)
the training of Customer personnel in the use of the Software, (iii) the
provision of primary support and maintenance relating to the Software and
Services for Customers and other end-users in the Territory.
Definitions.
1.1 "Bypass" means a temporary solution or workaround to a problem which
offers acceptable relief.
1.2 "Compatibility" means that the Software can be recompiled and linked
properly on the new release of the Distributor operating system.
1.3 "Documentation" shall mean the existing "Open Market, Inc. " user
manuals and other written materials that relate to the particular Software,
including materials useful for installation, operation, and maintenance.
Documentation shall include maintenance modifications and enhancements thereto
if, when, and to the extent such maintenance modifications and/or enhancements
are delivered to Distributor by "Open Market, Inc." under this Agreement or
under any other agreement or arrangement between the parties.
1.4 "End-User" shall mean a Customer of Distributor.
1.5 "Fix" means a permanent solution to a problem that may be obtained in
a generally available Release.
1.6 "Maintenance Release" means any modification of a Software product for
which Distributor or OPEN MARKET, in its sole discretion, changes the second
number to the right of the decimal point in the Software version number, e.g., a
change from version 1.00 to 1.01.
1.7 "Major Release" shall mean a new version of the Software that contains
significantly new functionality or features and is accompanied by a Major
Release bulletin or other notice. Each Major Release shall be identified solely
by the numeral(s) to the left of the decimal point, with the new Major Release
having the larger numeral. For example, for any given Software product, release
3.0 is a more current version than release 2.0.
1.8 "Patch" means a solution to a problem which may be obtained prior to
the next Release of the Software.
37
<PAGE>
1.9 "Software" shall mean the computer programs, Documentation and related
information as defined in the Agreement. The term "Software" shall not include
Source Code.
1.10 "Release" means any modification of the Software which becomes
generally available.
1.11 "Minor Release" means any modification of the Software that contains
some features and or fixes. Each Minor Release shall be identified by the first
number to the right of the decimal point in the Software version number, e.g., a
change from version 1.00 to 1.10.
1.12 "Work Around" shall mean a temporary solution that is intended to
alleviate a Customer's particular problem.
1.13 "Educational Services" shall mean the delivery, materials and
scheduling of education courses which are made available by OPEN MARKET for
OPEN MARKET products or services.
1.14 "Consulting Services " shall mean any such service by which OPEN
MARKET offers its' Customers, Distributor or others any assistance with the
development, delivery, installation, configuration, testing, management,
training or advice on it's products or technology for a fee.
1.15 "Implementation Services" shall mean the service provided by OPEN
MARKET which involves the planning, installation and testing of OPEN MARKET
products.
2. Support Provisions.
2.1 Levels of Support. Distributor and OPEN MARKET acknowledge that three
(3) levels of support are required.
2.1.1 Level 1 Support. Level 1 (problem verification) handles calls
requiring a relatively low, but broad degree of product expertise. Level 1
activities include the following:
* Provide Initial Customer Contact
* Maintain Problem Log
* Provide Problem Description and Definition
* Ensure Continuous Availability
* Manage Remote Connections
* Maintain Customer Configuration Data
* Resolve Software Installation Inquiries and Problems
Remotely
* Provide Appropriate Quality Metrics to Management
* Provide Remote System Administration and Configuration
Assistance
* Attempt Problem Reproduction
2.1.2 Level 2 Support. Level 2 (problem determination and temporary
fix) requires both broad and in-depth product expertise. Level 2 support has
full responsibility for problem trouble-shooting, and development of avoidance's
and workarounds. Level 2 activities include the following:
* Critical Call Access or as per Contract/Support Plan
* Provide Problem Determination and Verification
* Perform Remote Diagnosis
38
<PAGE>
* Provide Patch to Customer
* Provide Engineering (Level 3) Interface
2.1.3 Level 3 Support. Level 3 requires engineering level technical
expertise. The Level 3 support organization has complete ownership of the field
release process, and similarly is responsible for providing timely and accurate
product defect descriptions and resolution plans to Distributor Level 1 and
Level 2 support. Level 3 support activities include the following:
* Perform Line of Code Fault-Isolation
* 7 x 24 Critical Call Access
* Provide Patches or Resolve to Customer's Satisfaction
* Provide Major, Minor and Patch releases
2.2 Problem Classifications, Hardware/Software.
2.2.1 Problem (call) severity will be determined by Distributor, based
upon Distributor's Customer's priority, using the following as a guideline:
Declared Critical Problem: A "down" situation, whereby a user is unable to do
production work, and a Work-Around is either not available, or, if available, is
unacceptable to Distributor and/or the user.
Serious Problem: A major function/product is unusable and no Work-Around is
available, but the user is able to do some production work.
Moderate Problem: There is a loss of a function or resource that does not
seriously affect the user's operations or schedules. Any problem which was
originally reported as Critical or Serious, but has been temporarily solved with
a Work-Around, shall be reduced in severity to Moderate, only if the customer
and Distributor mutually concur.
Minor Problem: Means all other problems with the Software other than those
falling within the categories above.
2.2.2 Repair/fix criteria.
Resolution will be provided by OPEN MARKET in accordance with the following
criteria, and tracked on a case by case basis.
Problem Resolution Criteria
Resolution will be provided by OPEN MARKET in accordance with the following
criteria, and tracked on a case by case basis.
<TABLE>
<CAPTION>
Telephone Initial
Severity Response Update Action Target Patch Maint Rel.
<S> <C> <C> <C> <C> <C>
Declared 30 minutes, every bus. work As Req. Next
Critical if required day continuously
Event
</TABLE>
39
<PAGE>
<TABLE>
<CAPTION>
Serious 1 bus. hour every other ASAP As Req. Next
Event
<S> <C> <C> <C> <C> <C>
Moderate/ 4 / 8 bus. hrs. every week reasonable No As Req.
Minor Event
</TABLE>
Note: Times are calendar/clock times except where stated
2.2.3 Unresolved Critical or Serious Event Procedures.
Should a Critical or Serious Event not be patched fixed within the 10 day time
frame, OPEN MARKET shall dedicate a full time resource to the situation until
resolved. This resource shall provide Distributor with detailed fix plan and
daily progress updates. This resource will perform the work required at the
most convenient location for resolution (Distributor, Company, Customer site).
If, by the 10th day, OPEN MARKET cannot identify the source of the problem then
OPEN MARKET will supply to Distributor a clear and comprehensive plan for
locating and fixing the problem . This information may be passed on to the end-
user.
3. Distributor Responsibilities.
Distributor shall provide technical support to Customers of those Software
products provided by Distributor. Distributor will provide all Level 1 and
Level 2 Support. By this the parties agree that Distributor will:
3.1 Provide access to telephone and electronic communications for
technical assistance and consultation 24 hours a day 365 days a year to
Distributor's support center.
3.2 Execute diagnostic routines as made available by OPEN MARKET's for
Level 1 and Level 2 support situations in accordance with OPEN MARKET's
instructions as they relate to OPEN MARKET's Software products, and inform OPEN
MARKET of the results of those diagnostics.
3.3 Reasonably verify the existence of a Software product problem and to
determine the conditions under which that problem can be duplicated prior to
submission to OPEN MARKET.
3.4 Identify, define, and report software problems in a manner that will
allow OPEN MARKET to verify, replicate, and correct Software defects.
3.5 Provide direct customer contact for Level 1 and Level 2 of technical
support assistance and act as the front line field support organization
providing technical support directly to their End-User customers.
3.6 Manage and control problem situations arising at customer sites.
3.7 Distributor will act as the front line field support organization for
Level 3 support and facilitate OPEN MARKET's direct communication with customer
in Level 3 support situation.
3.8 Distributor agrees to be a beta test site for OPEN MARKET Software
products.
40
<PAGE>
3.9 Distributor agrees to provide response, updates, and relief support,
as per Section 2.2.2, to its' customers as the primary interface to them.
3.10 Distributor agrees to maintain an adequate staff of trained technical
support personnel to service the needs of it's Customers.
3.11 Distributor agrees to participate with OPEN MARKET in a semi-annual
technical support review to ensure Distributor and OPEN MARKET are meeting their
respective Support Obligations as defined herein.
4. OPEN MARKET Responsibilities.
OPEN MARKET intends to supply post-sale technical support to Distributor for
Customers of those Software products provided by Distributor. OPEN MARKET will
provide Level 3 Support Services. By this, the parties agree that OPEN MARKET
will provide the following support to Distributor:
4.1 Provide to Distributor Maintenance Releases, Update Releases and Discounts
on Major Releases of the Software.
4.2 Provide access by Distributor to OPEN MARKET service personnel for
telephone technical assistance as necessary during OPEN MARKET's Support Center
normal business hours via dial up , electronic mail or web site.
4.3 Provide emergency contact to Distributor for Critical problems occurring
outside of normal work hours. Access will be through an assigned duty pager to
be continuously active outside the periods of OPEN MARKET's normal business
hours.
4.4 Use computerized tracking systems to log and record all requests from
customers for technical assistance.
4.5 On a case by case exception basis, if requested by Distributor, OPEN MARKET
may agree to establish direct support obligations for individual customer
licensed Software, subject to mutually acceptable terms, including but not
limited to, price.
4.6 Provide remedial Software support by providing, a Patch or Bypass solution
to verified problems reported by Distributor according to Section 2.2.
4.7 Provide prompt shipment of appropriate and available Fix, Patch or Bypass,
and Documentation updates when available.
4.8 Provide Distributor with Software support services for the current version
and the previous version of the Software under the maintenance agreement.
Additionally, the second back level of the applicable Software will be supported
by OPEN MARKET for a period of three (3) months to allow Distributor time to
install the latest product version.
4.9 OPEN MARKET agrees to provide response, updates, and relief support, as per
Section 2.2.2, to the Distributor.
4.10 OPEN MARKET shall provide emergency on-site support upon mutual agreement
between the
41
<PAGE>
parties and only in support of Critical events, OPEN MARKET personnel shall be
available for emergency dispatch to End User site or Distributor support center
for problem correction. Travel, living and incidental costs incurred due to
problems mutually agreed to have been caused by the product, after all remote
problem resolution has been exhausted by OPEN MARKET, shall be the
responsibility of OPEN MARKET. Travel, living and incidental costs incurred due
to problems mutually agreed not to have been caused by Defects in the Software
shall be the responsibility of Distributor.
4.11 OPEN MARKET agrees to participate with Distributor in a semi-annual
technical support review to ensure OPEN MARKET and Distributor are meeting their
Support Obligations.
4.12 OPEN MARKET agrees to participate with Distributor in a technical support
review to ensure OPEN MARKET and Distributor are meeting their Support
Obligations.
5. Technical Training/Distributor's Support Personnel:
OPEN MARKET shall make available to Distributor qualified personnel who are
knowledgeable in all aspects of the Software, to instruct and assist
Distributor's personnel with respect to the maintenance and support of the
Software.
OPEN MARKET shall provide training and documentation to Distributor service
personnel with respect to the design, theory, operation, installation,
maintenance and support of the Software.
Training shall consist of either class room instruction or via an on-site
consulting engagement. Class room training shall take place at OPEN MARKET's
training facility during normal business hours and shall commence during a
normally scheduled class. After the training class, Distributor personnel will
get a week hands on work in OPEN MARKET's Support Center.
OPEN MARKET offers several on-site Consulting packages which provide hands on
training of OPEN MARKET products. Consulting packages shall serve as a
substitute for class room instruction. Consulting packages are designed to be
offered on-site. Distributor shall be responsible for the cost of all Consulting
packages at the then current price.
6. Updates, Maintenance releases and Upgrades:
Updates and Maintenance releases will be included under this Support
Obligations. Upgrades will be made available at a discount from the royalty rate
as determined hereunder.
7. Fees:
7.1 Training of Distributor's personnel:
$2,000 / per person a minimum of 2 people trained is required. The fee includes
the Training Class and the week hands on in the OPEN MARKET Support Center.
Distributor shall be responsible for all travel and living expenses incurred by
its employees in connection with attending said training.
7.2 Annual Support Program Fee:
42
<PAGE>
Access to the above services, by two named Distributor contacts, after
completion of the required OPEN MARKET training course. Each named contact will
have access rights to the above services. Additional named contacts are charged
on a per named contact basis. This service is designed to provide Distributor's
internal development and support staff the required support during the proposal,
design, testing and implementation of projects.
$15,000 / year for two Distributor contacts* - unlimited access to all support
as outlined in section 4 (*waived for initial year of Annual Support)
$7,500 / year for each additional Distributor contact - unlimited access to
above services
7.3 Third Level Support Fees:
Forty Percent (40%) of the support fee revenue received by Distributor from
customers for the applicable Software purchased on an annual basis (commencing
upon shipment of the applicable Software) for ongoing third level support and
maintenance services as described above. This fee includes access to support
personnel 7X24 for critical calls only.
7.4 Pass Through Services:
Distributor may offer to their Customers OPEN MARKET Consulting and Education
Services on a commission basis. Distributor will be paid 5% of the net Open
Market sales.
7.5 OPEN MARKET published Service and Support Pricing is defined as follows.
Consulting Rates: Standard Rates: $1,500/day, Business Consulting: $2,000/day
Pre-packaged Offerings: per package
Education Services:
Transact Installation and Administration - $2,000 US
Courseware License - per quote
Implementation Services: Implementation of Transact - $1,500/day US
All prices exclude reasonable travel and living expenses which will be billed at
actual price paid.
Schedule A
Section I Contacts:
Name of Licensee:
Address of Licensee:
Telephone Number:______________ Fax Number:______________ Email
43
<PAGE>
Contact Person(s):
1.______________________________, Telephone:_____________, Email:
2.______________________________, Telephone:_____________, Email:
3.______________________________, Telephone:_____________, Email:
(Premier Only)
Date of License Agreement: _______ / ______ / _________
(Same as Annual Support Agreement)
Section II. OPEN MARKET Software : (List all)
Product:________________________ Revision:______ Annual Support Fee:_________
Product:________________________ Revision:______ Annual Support Fee:_________
Product:________________________ Revision:______ Annual Support Fee:_________
Product:________________________ Revision:______ Annual Support Fee:_________
Product:________________________ Revision:______ Annual Support Fee:_________
(List additional on back of this page)
Total Annual Support Fee:_________
44
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT 9
ROYALTY RATES; DISCOUNT RATES
Folio Product Royalty Rates:
[**] of the applicable Folio Product revenues received by ABSB; with an annual
guaranteed minimum royalty of Four Million Seven Hundred Thousand Dollars
($4,700,000.00), and an annual maximum of Five Million Dollars ($5,000,000.00),
for any 12-month period during the term of this Agreement.
OPEN MARKET Commerce Product Discount Rates:
[**] off of OPEN MARKET's then-current standard U.S. and International list
prices for the applicable products attached as Schedule A.
<TABLE>
<CAPTION>
<S> <C>
ITEM NUMBER LIST List
Item # DESCRIPTION Price/Unit
CSP TRANSACT
CSP Transact Base License
1 CSP Transact License [**]
Includes all Standard Payment Modules, all Fulfillment Modules, the SecureLink SDK, English
Language Module and the Customer's local language Module (where available)
2 Niche CSP Transact License [**]
Includes one Standard Payment Module, one Fulfillment Module, the SecureLink SDK (for up
to 100 merchants), the English Language Module and the Customer's local Language Module
(where available)
CSP Transact Standard Payment Modules (Included with CSP License, 1 at no additional charge with
NicheCSP)
4 Purchase Order Module License [**]
5 FDC Payment Module License [**]
6 First USA Payment Module License [**]
7 Toronto Dominion Payment Module License [**]
CSP Transact Standard Fulfillment Modules (Included with CSP License, 1 at no
additional charge with NicheCSP)
</TABLE>
45
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<S> <C>
9 Physical Goods Module License [**]
10 Digital Goods Module License [**]
11 Subscriptions Module License [**]
CSP Transact Language Modules (Not Currently Available)
CSP Transact SDKs (internal use only)
12 Payment SDK License [**]
13 Fulfillment SDK License [**]
14 Order Entry SDK License [**]
CSP Transact Optional Software
15 CSP Transact Fax Module License [**]
16 CSP Transact SalesTax Module License* [**]
*Additional fees of $20/month/state of taxable presence/merchant
apply to all customers purchasing the Sales Tax Module
CSP Transact Development Licenses
23 CSP Transact Unlimited Development License [**]
CSP Transact Miscellaneous
28 Merchant License Prepay
29 Tier 1a Merchant License/year (up to $30,000 in transaction revenue/year) [**]
30 Tier 1 Merchant License/year (up to $60,000 in transaction revenue/year) [**]
31 Tier 2 Merchant License/year (up to $400,000 in transaction revenue/year) [**]
32 Tier 3 Merchant License/year (up to $2,000,000 in transaction revenue/year) [**]
33 Tier 4 Merchant License/year (over $2,000,000 in transaction revenue/year) [**]
34 Upgrade from Niche to Full CSP [**]
CSP ShopSite (contact Neil Costa for pricing)
35 ShopSite TX License (Express)
36 ShopSite TX License (Lite)
37 ShopSite TX License (Manager)
38 ShopSite TX License (Pro)
39 ShopSite TX License (Express) & Merchant License Bundle
40 ShopSite TX License (Lite) & Merchant License Bundle
41 ShopSite TX License (Manager) & Merchant License Bundle
42 ShopSite TX License (Pro) & Merchant License Bundle
CORPORATE TRANSACT (Modular Pricing)
Corporate Transact Base Licenses
Includes the SecureLink SDK, English Language Module, the customer's local
Language Module (where available), on-site installation services and one seat
in Transact Administration Training
</TABLE>
46
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<S> <C>
43 Base Commerce System: Physical [**]
44 Base Commerce System: Digital [**]
45 Base Commerce System: Subscriptions [**]
Corporate Transact Language Modules (Not Currently Available)
Corporate Transact Capacity Factors
46 Additional Transact "StoreId" (standard = 1) [**]
47 Additional Transact Download Server (standard = 1)
$5,000
Corporate Transact Recurring Fees
48 Additional subscribers (standard = 5,000) [**] of
subscription value/year
49 Additional 100,000 transactions/year (standard = 100,000/year) [**]/year
Corporate Transact Basic Add-on Modules
50 VAT Module License [**]
51 US/Canada SalesTax Module (TaxWare) License* [**]
*Additional fees of $20/month/state of taxable presence/merchant apply to all customers
purchasing the SalesTax Module.
52 Fax Module License [**]
Corporate Transact Real-time Credit Card Payment Modules
53 FDC Payment Module License [**]
54 First USA Payment Module License [**]
55 Toronto Dominion Payment Module License [**]
Corporate Transact Advanced Add-on Modules
56 Digital Coupons Module License [**]
57 Advanced Customer Service Module License [**]
58 Microtransactions Module License [**]
59 Customer Registration Module License [**]
Corporate Transact Add-on Fulfillment Modules
60 Physical Goods Module License [**]
61 Digital Goods Module License [**]
62 Subscriptions Module License [**]
Corporate Transact SDKs (internal use only)
63 Payment SDK [**]
64 Fulfillment SDK [**]
65 Order Entry SDK [**]
Corporate Transact Upgrades
66 Upgrade from Corporate License to Niche CSP [**]
67 Upgrade from Corporate License to Full CSP [**]
</TABLE>
47
<PAGE>
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<S> <C>
Corporate Transact Development Licenses
76 Corporate Transact Development License [**]
TRANSACT DOCUMENTS
101 Additional Transact/SecureLink Doc Set [**]
102 Additional Fulfillment API Guide [**]
103 Additional Payment API Guide [**]
LIVE COMMERCE (Modular Pricing)
LiveCommerce Base System and Add-on Modules
104 LiveCommerce Base Catalog System [**]
Includes one seat in LiveCommerce Training and Quick Start consulting services
105 Personalized Catalog Module License [**]
106 Parametric Catalog Module License [**]
107 LiveCommerce Development License [**]
LiveCommerce Capacity Factors
108 Additional LiveCommerce Catalog Server (standard = 1) [**]
109 Additional 5,000 catalog items (standard = 5,000) [**]
</TABLE>
48
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<CAPTION>
ITEM NUMBER LIST List
Item # DESCRIPTION Price/Unit
CSP TRANSACT
CSP Transact Base License
<S> <C>
1 CSP Transact License [**]
Includes all Standard Payment Modules, all Fulfillment Modules, the SecureLink SDK, English
Language Module and the Customer's local language Module (where available)
2 Niche CSP Transact License [**]
Includes one Standard Payment Module, one Fulfillment Module, the SecureLink SDK (for up
to 100 merchants), the English Language Module and the Customer's local Language Module
(where available)
CSP Transact Standard Payment Modules (Included with CSP License, 1 at no additional charge with
NicheCSP)
4 Purchase Order Module License [**]
5 FDC Payment Module License [**]
6 First USA Payment Module License [**]
7 Toronto Dominion Payment Module License [**]
CSP Transact Standard Fulfillment Modules (Included with CSP License, 1 at no
additional charge with NicheCSP)
9 Physical Goods Module License [**]
10 Digital Goods Module License [**]
11 Subscriptions Module License [**]
CSP Transact Language Modules (Not Currently Available)
CSP Transact SDKs (internal use only)
12 Payment SDK License [**]
13 Fulfillment SDK License [**]
14 Order Entry SDK License [**]
CSP Transact Optional Software
15 CSP Transact Fax Module License [**]
16 CSP Transact SalesTax Module License* [**]
*Additional fees of $20/month/state of taxable presence/merchant
apply to all customers purchasing the Sales Tax Module
CSP Transact Development Licenses
23 CSP Transact Unlimited Development License [**]
</TABLE>
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
<TABLE>
<S> <C>
CSP Transact Miscellaneous
28 Merchant License Prepay
29 Tier 1a Merchant License/year (up to $30,000 in transaction revenue/year) [**]
30 Tier 1 Merchant License/year (up to $60,000 in transaction revenue/year) [**]
31 Tier 2 Merchant License/year (up to $400,000 in transaction revenue/year) [**]
32 Tier 3 Merchant License/year (up to $2,000,000 in transaction revenue/year) [**]
33 Tier 4 Merchant License/year (over $2,000,000 in transaction revenue/year) [**]
34 Upgrade from Niche to Full CSP [**]
CSP ShopSite (contact Neil Costa for pricing)
35 ShopSite TX License (Express)
36 ShopSite TX License (Lite)
37 ShopSite TX License (Manager)
38 ShopSite TX License (Pro)
39 ShopSite TX License (Express) & Merchant License Bundle
40 ShopSite TX License (Lite) & Merchant License Bundle
41 ShopSite TX License (Manager) & Merchant License Bundle
42 ShopSite TX License (Pro) & Merchant License Bundle
CORPORATE TRANSACT (Modular Pricing)
Corporate Transact Base Licenses
Includes the SecureLink SDK, English Language Module, the customer's local
Language Module (where available), on-site installation services and one seat
in Transact Administration Training
43 Base Commerce System: Physical [**]
44 Base Commerce System: Digital [**]
45 Base Commerce System: Subscriptions [**]
Corporate Transact Language Modules (Not Currently Available)
Corporate Transact Capacity Factors
46 Additional Transact "StoreId" (standard = 1) [**]
47 Additional Transact Download Server (standard = 1)
$5,000
Corporate Transact Recurring Fees
48 Additional subscribers (standard = 5,000) [**] of
subscription value/year
49 Additional 100,000 transactions/year (standard = 100,000/year) [**]/year
Corporate Transact Basic Add-on Modules
50 VAT Module License [**]
51 US/Canada SalesTax Module (TaxWare) License* [**]
*Additional fees of $20/month/state of taxable presence/merchant apply to all customers
purchasing the SalesTax Module.
52 Fax Module License [**]
Corporate Transact Real-time Credit Card Payment Modules
53 FDC Payment Module License [**]
54 First USA Payment Module License [**]
55 Toronto Dominion Payment Module License [**]
</TABLE>
50
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Corporate Transact Advanced Add-on Modules
<TABLE>
<S> <C>
56 Digital Coupons Module License [**]
57 Advanced Customer Service Module License [**]
58 Microtransactions Module License [**]
59 Customer Registration Module License [**]
Corporate Transact Add-on Fulfillment Modules
60 Physical Goods Module License [**]
61 Digital Goods Module License [**]
62 Subscriptions Module License [**]
Corporate Transact SDKs (internal use only)
63 Payment SDK [**]
64 Fulfillment SDK [**]
65 Order Entry SDK [**]
Corporate Transact Upgrades
66 Upgrade from Corporate License to Niche CSP [**]
67 Upgrade from Corporate License to Full CSP [**]
Corporate Transact Development Licenses
76 Corporate Transact Development License [**]
TRANSACT DOCUMENTS
101 Additional Transact/SecureLink Doc Set [**]
102 Additional Fulfillment API Guide [**]
103 Additional Payment API Guide [**]
LIVE COMMERCE (Modular Pricing)
LiveCommerce Base System and Add-on Modules
104 LiveCommerce Base Catalog System [**]
Includes one seat in LiveCommerce Training and Quick Start consulting services
105 Personalized Catalog Module License [**]
106 Parametric Catalog Module License [**]
107 LiveCommerce Development License [**]
LiveCommerce Capacity Factors
108 Additional LiveCommerce Catalog Server (standard = 1) [**]
109 Additional 5,000 catalog items (standard = 5,000) [**]
</TABLE>
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EXHIBIT 16
NOTICES
1. Send notices to ABSB to:
ABSB, L.C.
Attn: Bradley D. Pelo, President
5072 North 300 West
Provo, UT 84604
With a copy to:
William L. Fillmore, Esquire
Fillmore Belliston & Israelsen, LC
4692 North 300 West, Suite 200
Provo, Utah 84604
2. Send notices to OPEN MARKET to:
Open Market, Inc.
1 Wayside Road
Burlington, MA 01803
Attn: Legal Counsel
52