License Agreement [Amendment No. 3] - AvantGo Inc. and McKesson HBOC Inc.
THIRD AMENDMENT TO LICENSE AGREEMENT
THIS THIRD AMENDMENT TO LICENSE AGREEMENT ("Amendment") is entered into
December 31, 2000, by and between AvantGo Inc., located at 1700 S. Amphlett
Blvd., Suite 300, San Mateo, CA 94402 ("AvantGo") and McKesson HBOC, Inc.
(formerly "McKesson Corporation"), located at One Post Street, San Francisco, CA
94104 ("Licensee").
Background
On March 7, 2000, AvantGo and Licensee entered into a License Agreement
Amendment (the "First Amendment") which amended the existing License Agreement
between the parties entered into and effective as of October 1, 1998, (as
subsequently amended, the "License Agreement") in order to allow Licensee to
broadly deploy the Software (as defined in the License Agreement). The First
Amendment provided that, subject to certain terms and conditions, Licensee was
licensed during the term of the First Amendment, to install [****] copies of the
AvantGo Client Software, and [****] copies of the AvantGo Server Software on
computers located on Licensee's facilities. The parties now wish to further
amend the License Agreement to clarify their intention that Licensee shall be
able to grant to customers of Licensee's services, software or applications
limited sublicenses in the AvantGo Server Software and AvantGo Client Software,
to be used solely in support of such services, software, or applications.
Agreement
1. Section 1 of the License Agreement (Definitions) shall be amended by
the addition of the following definition:
"Licensee" shall mean McKessonHBOC and all companies controlled
by McKessonHBOC. For the purposes of this definition, "control"
shall mean the ownership of at least fifty percent (50%) of the
outstanding shares of stock having the right to elect the board
of directors.
2. Section 2.1 of the First Amendment is amended to read in its entirety
as follows:
2.1 AvantGo hereby grants to Licensee a nontransferable, worldwide,
perpetual and irrevocable license, without rights to sublicense
or resell, except as otherwise provided in this Agreement, to:
(a) install the number of copies of AvantGo Server Software set
forth in Appendix A of this Amendment solely on computers located
at Designated Sites, (b) install AvantGo Client Software on the
number of handheld devices set forth in Appendix A of this
Amendment to be used by Licensee employees, contractors,
affiliates, agents, external customers and business partners
(with respect to use by external customers and business partners
(collectively, "Permitted Users") solely with the Identified
Configuration. Licensee shall use AvantGo Server Software to
deliver content created by or for, or used by or for, Licensee or
Permitted Users. Licensee may grant to any Permitted User a
limited sublicense to use the AvantGo Client Software and/or
AvantGo Server Software solely in connection with McKesson
proprietary services, software or applications licensed or
received from Licensee. AvantGo Server and Client Software used
by external customers and business partners shall be used solely
(i) for receipt of McKesson proprietary content; (ii) in
connection with the receipt of McKesson proprietary services,
software or applications from Licensee; or (iii) to access
content and services in
*****Certain information in this exhibit has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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the "Health Subject Areas," as such term is defined in the
Channel Management Agreement. AvantGo reserves all rights in the
Software which are not expressly granted in this Amendment. It is
understood that if Licensee uses the AvantGo Software outside the
scope of the license grant, this may result in irreparable and
continuing damage for which recovery of money damages would be
inadequate. Therefore, AvantGo shall be entitled to obtain timely
injunctive relief without proof of damages in addition to any and
all remedies at law.
3. The definition of "Designated Site" in Appendix A of the First
Amendment is amended by adding to the end of such definition the
following sentence:
"Designated Site" also includes any facility owned or operated by
a Permitted User, provided that such Permitted User shall be
sublicensed to use AvantGo Server Software solely in connection
with McKesson proprietary services, software or applications
licensed or received from Licensee.
4. In consideration for the rights granted to Licensee under this
Amendment, Licensee agrees that during the term of this Agreement it
will use good faith commercially reasonable efforts to act as a
customer reference for prospective AvantGo customers and press
contacts and to provide such other cooperation with AvantGo's
marketing efforts as AvantGo shall reasonably request, provided that
Licensee: (i) shall not be required hereunder to make or subscribe to
any statement which it determines, in its discretion, to be inaccurate
or misleading, or to otherwise expose Licensee to liability; and (ii)
shall have final approval of any statement made by AvantGo regarding
Licensee or AvantGo's relationship with Licensee and any statement
attributed to Licensee (except for any disclosures required to be
provided by AvantGo by law). Licensee's activities may include,
without limitation and if requested by AvantGo :
a. Providing in-person or telephone references to a minimum of 4
prospective customer groups or press contacts over the next year;
b. Working with AvantGo's marketing department to prepare a McKesson
HBOC - AvantGo success story and/or press release documenting the
relationship of the parties, Licensee's business need and product
solution, Licensee's implementation of, and satisfaction with,
the AvantGo Software and Licensee's return on investment (ROI)
from its use of the Software. Such success story shall be
developed and may be distributed by AvantGo as part of AvantGo's
marketing and pre-sales materials;
c. Providing a management sponsor who will meet with AvantGo
management at least once a year at AvantGo's request to review
the ongoing relationship of the parties and to provide feedback
on the current release of software being used by Licensee;
d. Allowing AvantGo to use the McKesson HBOC logo, subject to
McKesson HBOC's standard guidelines, on AvantGo's website and for
AvantGo company presentations, under its customer section;
e. Participating in a filmed interview illustrating how McKesson is
using AvantGo technology and the benefits received by Licensee
there from; and
f. To the extent consistent with the protection of McKesson HBOC's
proprietary information, granting AvantGo permission to show a
mutually agreed McKesson demo on AvantGo's website and for
pre-sales demonstrations.
5. Upon the expiration or termination of this Amendment for any reason
AvantGo shall continue to make available all applicable warranty and
technical support and other obligations
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regarding the AvantGo Software in accordance with the provisions of
this Agreement. Upon such expiration or termination, AvantGo agrees to
meet with McKesson and negotiate in good faith an equitable fee for
such support, taking into account all relevant facts and
circumstances, including the number of Permitted Users licensed or
sublicensed to use the AvantGo software during the term of this
Amendment.
6. The following language is hereby added to the terms of the Agreement:
In the event AvantGo comes into contact with proprietary data of
McKesson HBOC or its customers, AvantGo agrees to use such data
only in accordance with the terms of this Agreement. In such
case, AvantGo agrees to implement appropriate security measures
to maintain the confidentiality of patient-identifiable
information in its possession in accordance with applicable laws
and regulations.
The parties agree that except as amended in the manner specified above, all
remaining provisions of the License Agreement shall continue in full force
and effect.
McKESSON HBOC, INC. AVANTGO, INC.
/s/ William J. Dawson /s/ David Cooper
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Signature Signature
William J. Dawson David Cooper
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Name (Print or Type) Name (Print or Type)
Senior Vice President CFO
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Title Title
3/8/01
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Date Date
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Statement of Work
The AvantGo Software Maintenance, Support and Services Agreement dated September
14, 1998, as amended by the amendment to License Agreement dated March 7, 2000,
the "Agreement", by and between AvantGo, Inc. ("AvantGo") and McKesson HBOC
("Client"), is amended to include this Exhibit C.
Both parties agree to extend the professional services outlined in Exhibit B of
the Agreement to December 31, 2000. All fees and conditions remain the same.
This Statement of Work is subject fully to the terms and conditions the AvantGo
Software Maintenance, Support and Services Agreement referred to above.
AvantGo McKesson HBOC
Authorized Signature: /s/ Marty Kacin Authorized Signature: /s/ Tom Majill
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Name: Marty Kacin Name: Tom Majill
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Title: Vice President Title: Vice President
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Exhibit B
Statement of Work
The AvantGo Software Maintenance, Support and Services Agreement dated September
14, 1998, as amended by the amendment to License Agreement dated March 7, 2000,
the "Agreement", by and between AvantGo, Inc. ("AvantGo") and McKessonHBOC
("Client"), is amended to include this Exhibit B.
AvantGo will provide Client, on time and materials basis, consulting services
for the period of January 5, 2000 to June 30, 2000. The Client's fees for a day
of AvantGo Consulting Services are [****] per day and these discounted fees
apply only to this statement of work. AvantGo's consulting services may include
any of the following activities:
o Installation, configuration, and deployment of AvantGo Products at the
Client site
o Design and development of Client's mobile application software
o Providing Client information regarding new and ongoing AvantGo product
developments
o Providing AvantGo engineering and product management relevant
information regarding Client product needs and requirements
o Documenting, testing, and integrating developed works within the
Client deployment environment
The consulting services will be performed both at the Client site and at
AvantGo's Corporate headquarters depending on the specific activity. In the
event that any travel is required in connection with any Services, Client agrees
to pay all costs reasonably incurred by AvantGo's personnel in connection with
such Services (including, but not limited to, costs of travel, ground
transportation, lodging, and meals) associated with such training or consulting.
AvantGo shall maintain records of its expenses and reimbursable items pertaining
to Services on a generally recognized accounting basis; these records shall be
made available to Client upon request.
Ownership of the deliverables hereunder shall be as set forth in the Agreement.
This Statement of Work is subject fully to the terms and conditions the AvantGo
Software Maintenance, Support and Services Agreement referred to above.
AvantGo, Inc. McKesson HBOC, Inc.
Authorized Signature: Authorized Signature:
/s/ Marty Kacin /s/ Tom Majill
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Name: Marty Kacin Name: Tom Majill
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Title: VP, Prof. Svcs. Title: VP Logistics
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*****Certain information in this exhibit has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.