License Agreement - AvantGo Inc. and Ford Motor Co.
[LOGO OF DSSI, Direct Sourcing Solutions (R)]
PAGE: 1 FORD MOTOR COMPANY PO#: A01RL99-027767
VENDOR: 111315
AVANTGO, INC.
1700 S AMPHLETT BLVD
SUITE 300 *** DO NOT DUPLICATE ***
SAN MATEO CA 94402
** DROP SHIP P.O. ** ** P.O. REPRINT **
<TABLE>
<S> <C>
ATTENTION OF: JEAN WINCHESTER
BILL TO: DSSI/SNAPP SHIP TO: FORD SYSTEMS INTEGRATION CENTE
HURSTBOURNE PLACE PO# A01RL99-027767
9300 SHELBYVILLE ROAD 1000 REPUBLIC DRIVE
SUITE 300 1832 SUITE 600
LOUISVILLE, KY 40222 ALLEN PARK MI 48101
DSSI/SNAPP REF#: 175067
</TABLE>
REQ NAME - JOHN FISHWICK 313337-5187
** PRODUCT IS FOR RESALE **
<TABLE>
<CAPTION>
CURRENCY: U.S. DOLLARS
-------------------------------------------------------------------------------------------------------
P.O. DATE SHIP VIA F. O. B. ORDER EST. ARRIVAL
1999/12/09 UPS 3PB GROUND FOB DESTINATION 1999/12/17
ACCT# 91W-000
-------------------------------------------------------------------------------------------------------
PAYMENT TERMS F R E I G H T CONFIRMING TO
NET 30 PREPAID-ADD [******]
-------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
QTY ORDERED ITEM NUMBER EST. ARRIVAL UNIT COST DISCOUNT EXTENDED COST
DESCRIPTION
[******].000 ENT/SERV/CLIENT 1999/12/17 [******].00 [******].00
EA ENTERPRISE SERVER/CLIENT 3.1
Cust Part#: 907627
*QUOTE# 92005
[******].000 SSL SECURITY 1999/12/17 [******].00 [******].00
EA SSL SECURITY
Cust Part#: 907628
[******].000 CONDUIT API 1999/12/17 [******].00 [******].00
EA CONDUIT API
Cust Part#: 907629
[******].000 ANN/SUPP/MAINT 1999/12/17 [******].00 [******].00
EA ANNUAL STANDARD MAINTENANCE
</TABLE>
----------------------------------------------
INCLUDE ON ALL SHIPPING DOCUMENTATION: ** CONTINUED ON NEXT PAGE **
FORD MOTOR COMPANY PO#: A01RL99-027767
FULL ITEM DESCRIPTION AND CUSTOMER PART#
AND ATTENTION OF: JEAN WINCHESTER
INCLUDE ON INVOICE: [DSSI/SNAPP] REF# 175067
----------------------------------------------
DSSI/SNAPP BUYER: [RICHARD BOBO 502-326-4310]
DSSI/SNAPP ACCOUNTS PAYABLE CONTACT: BUTCH GIBSON 502 326-4356
[LOGO OF NSF]
[******] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE>
PAGE: 2
VENDOR: 111315
AVANTGO, INC.
1700 S AMPHLETT BLVD [LOGO OF DSSI; D] *** DO NOT DUPLICATE ***
SUITE 300 Direct Sourcing Solutions(R)
SAN MATEO CA 94402
** DROP SHIP P.O. ** ** P.O. REPRINT **
<TABLE>
<S> <C>
ATTENTION OF: JEAN WINCHESTER
BILL TO: DSSI/SNAPP SHIP TO: FORD SYSTEMS INTEGRATION CENTE
HURSTBOURNE PLACE PO# A01RL99-027767
9300 SHELBYVILLE ROAD 1000 REPUBLIC DRIVE
SUITE 300 1832 SUITE 600
LOUISVILLE, KY 40222 ALLEN PARK MI 48101
DSSI/SNAPP REF#: 175067
</TABLE>
REQ NAME - JOHN FISHWICK 313 337-5187
** PRODUCT IS FOR RESALE **
CURRENCY: U.S. DOLLARS
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------
P.O. DATE SHIP VIA F. O. B. ORDER EST. ARRIVAL
1999/12/09 UPS 3 PB GROUND FOB DESTINATION 1999/12/17
ACCT# 91W-000
--------------------------------------------------------------------------------------------------------
PAYMENT TERMS F R E I G H T CONFIRMING TO
NET 30 PREPAID-ADD BRIGID CRUSICK
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
QTY ORDERED ITEM NUMBER EST. ARRIVAL UNIT COST DISCOUNT EXTENDED COST
DESCRIPTION
AND SUPPORT
Cust Part#: 907630
PLEASE NOTE: AVANTGO SOFTWARE
LICENSE WILL GOVERN THIS ORDER
FOR AVANTGO ENTERPRISE SERVER
SOFTWARE.
</TABLE>
<TABLE>
<S> <C> <C>
--------------------------------------------------------------
INCLUDE ON ALL SHIPPING DOCUMENTATION:
FORD MOTOR COMPANY PO#: A01RL99-027767
FULL ITEM DESCRIPTION AND CUSTOMER PART# TOTAL ORDER AMOUNT: [******].00
AND ATTENTION OF: JEAN WINCHESTER
INCLUDE ON INVOICE: DSSI/SNAPP REF# 175067
--------------------------------------------------------------
</TABLE>
DSSI/SNAPP BUYER: RICHARD BOBO 502-326-4310
DSSI/SNAPP ACCOUNTS PAYABLE CONTACT: BUTCH GIBSON 502-326-4356
[LOGO OF NSF]
[******] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE>
LICENSE AGREEMENT
PLEASE READ CAREFULLY, THIS AGREEMENT CONTAINS THE COMPLETE TERMS AND CONDITIONS
THAT APPLY TO YOUR USE OF THE AVANTGO SOFTWARE (DEFINED BELOW). IN THIS
AGREEMENT, "AVANTGO" MEANS AVANTGO, INC., AND "LICENSEE" MEANS YOU. YOUR USE OF
THE AVANTGO SOFTWARE CONSTITUTES YOUR ACCEPTANCE OF ALL TERMS AND CONDITIONS SET
FORTH IN THIS AGREEMENT. AS USED IN THIS AGREEMENT, "AVANTGO SITE" REFERS TO THE
WORLD WIDE WEB SITE LOCATED AT WWW.AVANTGO.COM.
1. Definitions.
-----------
"Confidential Information" of AvantGo shall mean any information disclosed by
------------------------
AvantGo to Licensee pursuant to this Agreement which is in written, graphic,
machine readable or other tangible form and is marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature.
Confidential Information may also include oral information disclosed by AvantGo
to Licensee pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure. Notwithstanding any
failure to so identify it, the Software shall be deemed to constitute AvantGo's
Confidential Information.
"Designated Site" shall mean the address location specified in Licensee's
---------------
Purchase Order (defined below) where Licensee is permitted to install and
operate the Software in accordance with this Agreement.
"Identified Configuration" shall mean the combination of servers, handheld
------------------------
devices, and desktop computers specified in Licensee's Purchase Order with which
Licensee is authorized to use the Software.
"Purchase Order" shall mean the purchase order submitted by Licensee to AvantGo
--------------
and accepted by AvantGo for Licensee's use of the Software. The Purchase Order
shall set forth certain information, including but not limited to, Licensee's
name, authorized contact name, address, the Designated Site, Identified
Configuration, Software Description, Number of Permitted User Handheld Devices,
License Fee, Maintenance and Support Fees, and the Term of Maintenance and
Support.
"Software" shall include the current version of the licensed AvantGo software
--------
and related documentation. If any, AvantGo makes available to Licensee under
this Agreement. Software shall include all Updates, Upgrades, and other
modifications to the Software AvantGo makes available to Licensee during the
term of this Agreement.
"Specifications" shall mean AvantGo's published specifications for the Software.
--------------
"Update" means additional or replacement code for the Software that is provided
------
by AvantGo to remedy an error or minor bug.
"Upgrade" means any additional or replacement code for the Software provided
-------
by AvantGo that is designated by AvantGo, in its sole discretion, as a new
version of the Software and is generally commercially available.
2. Delivery and Acceptance. The Software is being delivered through electronic
-----------------------
means as of the date on which Licensee downloads and installs the Software from
the AvantGo Site or as otherwise electronically distributed by AvantGo (the
"Delivery Date"). The Software will be deemed accepted on the Delivery Date. If
Licensee does not accept these terms and conditions, or Licensee is not
satisfied with the Software for any reason, Licensee may return the Software to
AvantGo within ten (10) calendar days of the Delivery Date. Licensee shall
"return" the Software to AvantGo by destroying all copies of the Software
(including any archival copies) and providing written certification of the same
within five (5) calendar days of such destruction.
3. License Grant.
-------------
3.1 Grant. AvantGo hereby grants to Licensee a nonexclusive, nontransferable
-----
license, without rights to sublicense, to (a) install the server components of
the Software ("AvantGo Server") solely on computers owned or controller by
Licensee and located at the Designated Site, (b) install the client components
of the Software ("AvantGo Client") on the number of handheld devices specified
in the Purchase Order to be used by employees and contractors of Licensee, and
(c) to allow the number of employees and/or contractors of Licensee set forth in
the Purchase Order to use the Software solely with the identified Configuration
and solely for internal business purposes. Avantgo Enterprise Publisher
Licensees are restricted to read-only capabilities (no license for "forms" use)
and may not use the Software with SSL, PODS, JavaScript, AvantGo's Conduit API
or AvantGo's Provider API. AvantGo reserves all rights in the Software which are
not expressly granted in this Agreement.
3.2 Additional Licenses. Licensee may order licenses for additional AvantGo
-------------------
Server software or AvantGo Client user seats by completing and submitting to
AvantGo an Order Form. When submitted by Licensee and accepted by AvantGo, such
Order Form shall become a part of this Agreement. Licensee acknowledges and
agrees that all such additional licenses shall be governed by the terms of this
Agreement, without regard to the terms set forth on any Purchase Order (except
those terms specifically set forth in the definition of Purchase Order above)
pertaining to such order.
3.3 Restrictions. Licensee agrees that Licensee and its employees and
------------
contractors shall not, directly or indirectly, (a) sell, lease, assign,
sublicense or otherwise transfer, (b) disclose, divulge or otherwise make
available to any third party, (c) use except as authorized by this Agreement,
(d) decompile, disassemble or otherwise analyze for reverse engineering
purposes, (e) modify or change the Software in any manner, or (f) export the
Software. Licensee shall not sublicense, rent or timeshare the Software.
Licensee will have the right to make one (1) backup copy of the Software solely
for archival purposes.
3.4 Maintenance. AvantGo will provide reasonable customer support to Licensee
-----------
for Software licensed directly from AvantGo as set forth in AvantGo's Standard
Support and Maintenance policy. If Licensee licenses the Software from any third
party, Licensee will receive customer support, if any, from such third party in
accordance with such party's applicable support and maintenance terms.
4. Ownership Rights. Except as expressly set forth herein, AvantGo or its
----------------
licensors shall own all right, title and interest in and to the Software.
Licensee will not remove any notices from the Software as delivered to Licensee,
and will include such notices in all copies of the Software made under this
Agreement.
5. Payments.
--------
5.1 License Fees. Licensee will pay AvantGo the per-user license fees in
------------
accordance with the Purchase Order. The per-user license fees may be changed
from time to time upon notice by AvantGo to Licensee. Such license fees shall be
due and payable within thirty (30) days after the date of AvantGo's invoice to
the Licensee.
5.2 Support and Consulting Fees. In addition, if Licensee acquired the Software
---------------------------
directly from AvantGo, Licensee will pay AvantGo [******] percent ([******]%) of
AvantGo's then-current list license fee per year for each copy of the Software
for which Licensee desires to receive support and/or consulting as identified in
the applicable Purchase Order. Such support fees shall be due and payable within
thirty (30) days prior to the commencement of the annual support term. Any fees
for consulting services AvantGo provides to Licensee will be due and payable
within thirty (30) days after the date of AvantGo's invoice for such consulting
fees.
5.3 Taxes. The Licensee shall be responsible for, and shall indemnify and hold
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AvantGo harmless from, all export, withholding, federal, state and local taxes,
duties or excises arising out of the transactions contemplated by this
Agreement, excluding only taxes based on AvantGo's net income.
Page 1
[******] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE>
5.4 Late Payments. All amounts which Licensee does not pay on a timely basis as
-------------
required by this Agreement shall be subject to a late charge equal to one and
one-half percent ([1.5%]) per month (or, if less, the maximum allowed by
applicable law). In the event that any payment due hereunder is overdue, AvantGo
reserves the right to suspend performance until such delinquency is corrected.
6. Trademarks. Nothing in this Agreement shall be construed to be a grant to
----------
Licensee by AvantGo of any actual or implied license to use AvantGo's
trademarks, trade names or service marks.
7. Disclaimer of Warranties. THE SOFTWARE WILL BE PROVIDED "AS IS", AND
------------------------
AVANTGO SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION THEREWITH.
8. Term of Termination.
-------------------
8.1 Term. This Agreement shall become effective upon AvantGo's acceptance of
----
the applicable Purchase Order and shall continue in effect unless earlier
terminated in accordance with this Section 8.
8.2 Default. If either party defaults in the performance of any of its material
-------
obligations hereunder and such default is not corrected within thirty (30) days
after written notice thereof by the other party, then such other party, at its
option, may terminate this Agreement by giving written notice of termination to
the defaulting party.
8.3 Survival. Sections 1 and 4 through 15 shall survive any termination or
--------
expiration of this Agreement.
8.4 Effect of Termination. Upon the termination of this Agreement, Licensee
---------------------
will promptly destroy or return to AvantGo all copies of the Software purchased
hereunder and all AvantGo Confidential Information received hereunder.
9. Indemnification.
---------------
9.1 Indemnity. AvantGo agrees, at its own expense as applicable, to defend or
---------
at its option to settle, any claim brought against Licensee for infringement of
any United States copyright of any third party by the Software as delivered to
the Licensee under this Agreement, provided that Licensee provides AvantGo with:
(a) prompt written notice of such claim; (b) control over the defense and
settlement of such claim; and (c) proper and full information and assistance to
settle and/or defend any such claim. If an injunction is, or AvantGo believes in
its sole discretion is likely to be, entered prohibiting Licensee from
exercising its right to use the Software granted hereunder, AvantGo may, at its
sole option and expense, (w) procure for Licensee the right to use the Software
as provided herein; (x) replace the Software or a portion thereof with other
non-infringing products; (y) modify the Software so that it is not infringing;
0r (z) accept return of the Software and terminate this Agreement. AvantGo will
not be liable for any costs or expenses incurred by Licensee in connection with
any claims subject to the terms of this Section without prior written
authorization by AvantGo.
9.2 Exceptions. Notwithstanding the provisions of this Section 9, AvantGo
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assumes no liability for infringement claims arising from: (a) combination of
the Software with other products not provided by AvantGo, if such infringement
claims would not have arisen with respect to the Software standing alone; (b)
any modifications to the Software unless such modification was made by AvantGo;
or (c) any intellectual property rights other than U.S. patent or copyright.
9.3 Limitation. The foregoing provisions of this Section 9 state the entire
----------
liability and obligations of AvantGo and the sole and exclusive remedy of
Licensee, with respect to any actual or alleged infringement of any intellectual
property right by the Software.
10. Limitation of Liability. IN NO EVENT SHALL AVANTGO BE LIABLE TO LICENSEE
-----------------------
FOR LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES
OF LICENSEE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE USE, RESULTS OF USE, OR INABILITY TO USE,
THE SOFTWARE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL AVANTGO'S LIABILITY
ARISING UNDER OR IN ANY WAY CONNECTED WITH THIS AGREEMENT EXCEED THE PAYMENTS
ACTUALLY RECEIVED BY AVANTGO UNDER SECTION 5 ABOVE DURING THE PRECEDING TWELVE
(12) MONTH PERIOD.
11. Confidentiality.
---------------
11.1 Nondisclosure. Licensee shall treat as confidential all Confidential
-------------
Information, shall not use such Confidential Information except as set forth
herein, and shall use reasonable efforts not to disclose such Confidential
information to any third party. Without limiting the foregoing, Licensee shall
use at least the same degree of care which it uses to prevent the disclosure of
its own confidential information of like importance to prevent the disclosure of
Confidential Information disclosed to it by AvantGo under this Agreement.
11.2 Exceptions. Notwithstanding the above, Licensee shall not be liable to
----------
AvantGo with regard to any Confidential Information which Licensee can prove:
(a) was in the public domain at the time it was disclosed or has entered the
public domain through no fault of Licensee; (b) was known to Licensee, without
restriction, at the time of disclosure; or (c) is disclosed with the prior
written approval of AvantGo.
11.3 Return of Confidential Information. Upon expiration or termination of this
----------------------------------
Agreement, Licensee shall return all Confidential Information received from
AvantGo.
11.4 Remedies. Licensee's breach of the restrictions contained in this Section
--------
11 constitutes a material breach of this Agreement which may cause irreparable
harm to AvantGo. Any such breach by Licensee shall entitle AvantGo to injunctive
relief in addition to all legal remedies.
12. Confidentiality of Agreement. AvantGo may publicly identify Licensee as a
----------------------------
Software user in presentations, press releases, on AvantGo's Site, advertising
and marketing materials without Licensee's consent. Any press release to be
issued by Licensee in connection with the terms and conditions or existence of
this Agreement must be approved in advance by AvantGo.
13. Export Restrictions. Licensee acknowledges and agrees that the Software is
-------------------
subject to restrictions and controls imposed by the Export Administration Act
and the Export Administration Regulations and other laws and regulations of the
United States and any other applicable government or jurisdiction as enacted by
the United States or such other government or jurisdiction from time to time
("the Acts"). Licensee hereby agrees to comply with such restrictions and
controls as imposed by the Acts.
14. U.S. Government Restricted Rights. The Software is provided with RESTRICTED
---------------------------------
RIGHTS. Use, duplication, or disclosure by the United States Government or any
of its agencies is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS
252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer
Software-Restricted Rights at 48 CFR 62.227-19, as applicable. Manufacturer is
AvantGo, Inc./1700 S. Amphlett Blvd., Suite 300/San Majoo, CA 94402.
15. General.
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15.1 Governing Law and Jurisdiction. This Agreement shall be governed by and
------------------------------
interpreted in accordance with the laws of the State of California, without
reference
Page 2
<PAGE>
to conflicts of laws provisions. The parties hereby consent to the exclusive
jurisdiction and venue of the state and federal courts of Santa Clara County,
California.
15.2 Partial Invalidity. If any provision in this Agreement shall be found or
------------------
be held to be invalid or unenforceable in any jurisdiction in which this
Agreement is being performed, then said provision shall be severed, solely in
such jurisdiction, from the remainder of this Agreement, which shall remain in
full force and effect.
15.3 Relationship of the Parties. AvantGo and licensee are independent
---------------------------
contractors under this Agreement. Nothing contained in this Agreement is
intended nor is it to be construed so as to constitute AvantGo and Licensee as
partners or joint venturers with respect to this Agreement. Employees of any
party remain employees of said party and shall at no time be considered agents
of or to be obligated to render a fiduciary duty to the other party.
15.4 Waiver. The failure of any party to enforce at any time any of the
------
provisions of this Agreement shall in no way be construed to be a present or
future waiver of such provisions, nor in any way affect the right of any party
to enforce each and every such provision thereafter. The express waiver by any
party of any provision, condition or requirement of this Agreement shall not
constitute a waiver of any future obligation to comply with such provision,
condition or requirement.
15.5 Assignment. Licensee may not assign or otherwise transfer in any way any of
----------
Licensee's rights and/or obligations under or arising out of this Agreement
without the prior written consent of AvantGo. AvantGo may assign its rights,
privileges, and obligations, in whole or in part, under this Agreement without
the consent of Licensee.
15.6 Entire Agreement. The terms and conditions contained in this Agreement,
----------------
including any hypertext links, Purchase Orders and applicable policies on the
AvantGo Site, constitute the entire agreement between the parties and supersede
any contradictory terms of any previous or subsequent Purchase Order submitted
by Licensee and accepted by AvantGo, all previous agreements and understandings,
whether oral or written, between the parties hereto with respect to the subject
matter hereof and thereof.
15.7 The Standard Support and Maintenance Plan below is incorporated herein by
reference.
STANDARD SUPPORT AND MAINTENANCE PLAN
-------------------------------------
Definitions:
-----------
"Error" shall mean any verifiable and reproducible failure of the Software to
-----
substantially conform to the Specifications for such Software. Notwithstanding
the foregoing, "Error" shall not include any such failure that is caused by: (i)
the use or operation of the Software with an application or in an environment
other than that intended or recommended by AvantGo or (ii) modifications to the
Software not made by AvantGo.
"Error Correction(s)" shall mean either a modification or addition to or
-------------------
deletion from the Software that substantially conforms such Software to the
then-current Specifications or a procedure or routine that, when observed in the
regular operation of the Software eliminates any material adverse effect on
Licensee of such Error.
1. Service Responsibilities of AvantGo. In consideration of the maintenance and
-----------------------------------
support fees in Section 6 below which are paid to AvantGo by the Licensee,
AvantGo shall use commercially reasonable efforts to provide the following
support services in accordance with the provisions of this Agreement:
. Provide Licensee technical support and information for AvantGo Software as
related to Software use, configuration, maintenance, and troubleshooting.
AvantGo is not responsible for technical support of or assistance with
Licensee's custom developed content or software used in conjunction with
AvantGo Software.
. Provide access to technical support via telephone, electronic mail, online
form submission, and facsimile. Licensee will designate two (2) Licensee
support contacts to AvantGo. All Licensee technical support requests must
originate from a Licensee designated support representative and must include
a description of the problem, any pertinent log information, any error
messages, AvantGo Software Version, server operating system version, make and
model of handheld PC with operating system version and any other information
as described in "Licensee Responsibilities" below. AvantGo Technical Support
responses will be directed to the Licensee designated support representative.
. Confirm and provide initial response to support requests within one business
day from time of submission.
. Actively manage problem priortization and incident resolution. All open
(unresolved) support requests (incidents) will be priortized by the
Licensee's designated support representative as either High Priority (AvantGo
Software is not functioning at all and no work around is available). Medium
Priority (AvantGo Software is functioning, however, the server operation is
impaired, degraded, or not fully functional) or Low Priority (AvantGo
Software is fully functioning but additional information or assistance is
requested). AvantGo Technical Support will address all incidents in order of
Priority with High priority incidents being addressed first.
. Communicate progress toward incident resolution to the Licensee's designated
support representative until all incidents have been closed.
. Promptly provide any and all updated software documentation for any Updates
or Upgrades provided to the Licensee in accordance with this agreement.
Licensee will receive access to an online documentation center which will
include current AvantGo technical documentation and information.
2. Updates and Upgrades. AvantGo shall promptly make available to Licensee any
--------------------
Updates and Upgrades to the Software at no extra charge, subject to the
limitations explicitly set forth below in Section 4 below. AvantGo will make
such Updates and Upgrades available to Licensee when AvantGo makes such Updates
and Upgrades generally available to its other customers then covered by
maintenance.
3. Current Release. AvantGo's support obligations with respect to the Software
---------------
shall apply only to the most current release of the Software. AvantGo shall have
the right at any time after a particular release has been superseded by another
release, to terminate support with respect to the superseded release upon giving
not less than ninety (90) days notice to the Licensee.
4. Limitations. Support does not include services for any failure or defect in
-----------
the Software caused by any of the following: (a) the improper use, alteration,
or damage of the Software by Licensee or persons other than AvantGo employees or
consultants; (b) modifications to the Software not made or authorized by
AvantGo; or (c) interaction between the Software and operating systems, database
software and other software, when AvantGo has not approved such operating
system, database software, and other software for use with the Software. In
addition, AvantGo reserves the right to discontinue support any Software which
has not been continuously supported by Licensee pursuant to AvantGo's then-
current support and maintenance plan. If AvantGo agrees to remedy any errors or
problems not covered by the terms of this Exhibit, Licensee shall pay AvantGo
for all such work performed at AvantGo's then-current standard time and material
rates.
5. Licensee Responsibilities. In order for AvantGo to perform diagnostic testing
-------------------------
and fault isolation with minimal system interruption, Licensee shall provide
AvantGo with remote access to the Software at the Licensee Site experiencing an
Error. Licensee agrees to notify AvantGo in writing promptly following the
discovery of any Error. Further, upon discovery of an Error, Licensee agrees, if
requested by AvantGo, to submit to AvantGo a list of output and any other data
that AvantGo may reasonably require to reproduce the Error and the operating
conditions under which the Error occurred or was discovered.
6. Support Fees. Licensee shall pay AvantGo the annual support fee in order to
------------
receive the support services set forth in this Agreement. The current support
fee is set at [******]% of Licensee Fee. The support fee may be changed from
time to time upon notice by AvantGo.
Page 3
"Certain information on this page has been omitted and filed separately with the
Securities and Exchange Commission. Confidential treatment has been requested
with respect to the omitted portions".