Terms and Conditions - IONA Technologies Ltd. and BroadVision Inc.
IONA TECHNOLOGIES, LTD.
TERMS AND CONDITIONS WITH
BROADVISION, INC.
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TABLE OF CONTENTS
PAGE
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Appointment, Rights and Restrictions. . . . . . . . . . . . . . . . . . 2
2.1 Grant of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 End User Agreement . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Product Development, Acceptance, and Delivery for BroadVision's Use . . 3
3.1 Development of Products. . . . . . . . . . . . . . . . . . . . . . 3
3.2 Delivery and Installation. . . . . . . . . . . . . . . . . . . . . 4
3.3 BroadVision's Acceptance.. . . . . . . . . . . . . . . . . . . . . 4
3.4 Documentation. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.5 IONA's Reservation of Rights . . . . . . . . . . . . . . . . . . . 5
3.6 [ * ] Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.7 [ * ] Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.8 Platform Support . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.9 Custom Development Services. . . . . . . . . . . . . . . . . . . . 5
4. Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Fees and Prices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 Forecasts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.4 Reporting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.5 Records and Inspection Rights. . . . . . . . . . . . . . . . . . . 6
6. Maintenance and Support . . . . . . . . . . . . . . . . . . . . . . . . 7
(*) Confidential treatment requested
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TABLE OF CONTENTS
(CONTINUED)
PAGE
7. Press Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8. Trademarks; Markings. . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.1 Trademarks and Trade Names . . . . . . . . . . . . . . . . . . . . 8
8.2 Markings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.3 Use of Marks and Names . . . . . . . . . . . . . . . . . . . . . . 8
8.4 Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9. Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.1 Limited Warranty . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.2 No Additional Warranties to End Users. . . . . . . . . . . . . . . 9
9.3 Exclusions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10. Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . . . 10
11. IONA's Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.1 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11.2 Limitation on Liability/Exclusive Remedy . . . . . . . . . . . . . 11
12. BroadVision's Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 11
13. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14.1 Termination by Either Party. . . . . . . . . . . . . . . . . . . . 11
14.2 Effects of Termination . . . . . . . . . . . . . . . . . . . . . . 12
14.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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TABLE OF CONTENTS
(CONTINUED)
PAGE
15.1 Confidential Information. . . . . . . . . . . . . . . . . . . . . 12
15.2 Restrictions on Use . . . . . . . . . . . . . . . . . . . . . . . 12
16. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16.1 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16.3 Language. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16.4 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
16.5 Right to Enter Agreement. . . . . . . . . . . . . . . . . . . . . 14
16.6 Independent Contractor. . . . . . . . . . . . . . . . . . . . . . 14
16.7 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16.8 Attorney's Fees . . . . . . . . . . . . . . . . . . . . . . . . . 14
16.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16.10 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16.11 Non-Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
16.12 Entire Agreement; Amendment . . . . . . . . . . . . . . . . . . . 14
16.13 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
EXHIBIT A
SUPPLEMENTAL TERMS AND CONDITIONS. . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B
IONA LIST PRICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D
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TABLE OF CONTENTS
(CONTINUED)
PAGE
END USER LICENSE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . D-1
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IONA TECHNOLOGIES, LTD.
TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS are made and entered into as of January 1, 1995
(the "Effective Date") by and between IONA TECHNOLOGIES, LTD., an Irish
corporation ("IONA") located at 8-34 Percy Place, Dublin 4, Ireland, and
BROADVISION INC., a Delaware corporation ("BroadVision") located at 333 Distel
Circle, Los Altos, California 94022.
RECITALS
WHEREAS, BroadVision provides software products and professional services
that facilitate commerce in interactive media;
WHEREAS, IONA develops and licenses software products that provide for the
implementation of the OMG CORBA object request broker standard and related
development tools;
WHEREAS, BroadVision desires to license IONA's products to use internally
to facilitate the development of BroadVision's products and to incorporate
IONA's products into the BroadVision product suite; and
WHEREAS, BroadVision also desires to sublicense IONA's products to third
parties such as resellers and end users for their development and use.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties agree as follows:
AGREEMENT
1. DEFINITIONS.
(a) "ACCEPTANCE" means BroadVision's acceptance of Product delivery either
(i) by written notice of acceptance, or (ii) by the expiration of the Acceptance
Period without BroadVision's objection.
(b) "AGREEMENT" means these Terms and Conditions, the Supplemental Terms
and Conditions (Exhibit A), and any other Exhibits attached hereto.
(c) "APPLICATION DEVELOPMENT KIT" means the documentation, example
programs and code comprising the CoMarket Application Programming Interfaces
(API). The Toolkits are licensed on a per developer basis, and include (i) the
Application Integration Toolkit, including platform-specific software stubs for
integration of the ICMS with interactive applications; and (ii) the Existing
Business Systems Toolkit, including platform-specific software drivers for
integration of the ICMS with existing business systems. The CoMarket APIs are
provided as a C++ library. The CoMarket Toolkit license includes the right to
incorporate both the
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software stubs and drivers in interactive applications and existing business
systems, and the right to sub-license such applications to others.
(d) "BROADVISION PRODUCTS" means those software products manufactured by
BroadVision or purchased or licensed by BroadVision from a third party.
(e) "DELIVERY DATE" means the date set forth in Exhibit A for IONA to
deliver the Products to BroadVision for Acceptance.
(f) "DOCUMENTATION" means IONA's standard user manuals and other written
and graphical material related to the Products.
(g) "END USER" means a third party who acquires the Final Products from
BroadVision for its own internal use other than distribution or resale and who
is granted a sublicense to the Products by BroadVision pursuant to the terms of
this Agreement.
(h) "FINAL PRODUCTS" means the Products: (i) bundled together with or
incorporated into the BroadVision Products and intended to be sold and
sublicensed to End Users for a single price, or (ii) bundled together with
BroadVision's integration and other support services. The Final Products are
the Application Development Kits and the Run Time Products.
(i) "PRODUCTS" means those software products enumerated in Exhibit A in
object code form and any other products as IONA may in its sole discretion make
available to BroadVision from time to time.
(j) "RUN TIME PRODUCTS" means the dashboard software and the server
software as set forth in Exhibit C.
(k) "TERRITORY" means the countries specified in Exhibit A.
2. APPOINTMENT, RIGHTS AND RESTRICTIONS.
2.1 GRANT OF RIGHTS.
(a) APPOINTMENT. IONA hereby appoints BroadVision as a non-exclusive
seller and sublicensor of Products during the term of this Agreement.
BroadVision or its resellers will sell and sublicense the Products only as part
of the Final Products and not on a standalone basis.
(b) DEMONSTRATION LICENSE. Subject to the terms of this Agreement,
IONA grants to BroadVision or its resellers the non-exclusive, royalty-free
right, during and for the term of this Agreement, to publicly display and
publicly perform the Products for demonstration purposes only in the Territory.
(c) PRODUCT RESALE LICENSE. Subject to the terms of this Agreement,
IONA grants to BroadVision or its resellers the non-exclusive right, during and
for the term of this
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Agreement, to reproduce, market, sell and distribute the Products as
incorporated into the Final Products in the Territory.
(d) PRODUCT USE LICENSE. Subject to the terms of this Agreement,
IONA grants to BroadVision the non-exclusive, nontransferable right, during and
for the term of this Agreement, to install and use the Products for internal
purposes.
(e) DOCUMENTATION LICENSE. Subject to the terms of this Agreement,
IONA grants to BroadVision the non-exclusive right to use, reproduce, create
derivative works of, sublicense through multiple levels of sublicensees, and
distribute the Documentation (i) solely in conjunction with BroadVision's
demonstration or internal use of the Product, or (ii) only as part of the Final
Products.
2.2 RESTRICTIONS.
(a) BroadVision acknowledges and agrees that the Products contain
IONA's proprietary information and in order to protect such information,
BroadVision will not, nor will it allow a third party to, decompile, reverse
engineer, disassemble or otherwise reduce the source code of the Products to a
humanly perceivable form.
(b) Notwithstanding any other provision to the contrary, BroadVision
may install the Products on computers or systems located only at facilities
owned or leased by BroadVision or End User, except with IONA's prior written
consent, which shall not be unreasonably withheld. BroadVision shall take
reasonable security precautions to restrict access to the Products to authorized
users.
(c) BroadVision may not sell, sublicense or otherwise distribute the
Products on a standalone basis.
(d) BroadVision may not rent, lease or loan the Products.
2.3 END USER AGREEMENT. BroadVision agrees to execute an agreement with
End Users, which provisions will be materially in conformance with the
provisions contained in Exhibit D. IONA reserves the right to terminate an End
User's sublicense for End User's breach of such agreement.
3. PRODUCT DEVELOPMENT, ACCEPTANCE, AND DELIVERY FOR BROADVISION'S USE.
3.1 DEVELOPMENT OF PRODUCTS.
(a) IONA will deliver the Products to BroadVision on the Delivery
Date for BroadVision's Acceptance testing.
(b) If IONA does not deliver a Product to BroadVision for Acceptance
within thirty (30) days of the Delivery Date, BroadVision may terminate its
order for the Product and receive all sums it has paid to IONA for such Product.
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3.2 DELIVERY AND INSTALLATION.
(a) On the Delivery Date, IONA will deliver to BroadVision's
designated facility one electronic copy of the Product and one electronic copy
of the Documentation. The parties shall mutually determine who will install the
Product on BroadVision's computer. In the event IONA is responsible for
installation of the Product, BroadVision will reimburse IONA's reasonable travel
and lodging expenses in connection with the Product installation.
(b) In the event IONA is responsible for installation of the Product,
BroadVision will ensure that the designated computer is operational on the
Delivery Date, and will make available reasonable amounts of machine time and
other resources (such as access and passwords) reasonably necessary for IONA's
installation. In the event IONA is responsible for installation of the Product,
if IONA is delayed from performing its obligations under this Section 3.2 solely
due to BroadVision's failure to make available the machine time and resources
reasonably necessary for IONA's installation, BroadVision will pay all of IONA's
costs attributable to such delay at IONA's then current time and materials
consulting rates.
3.3 BROADVISION'S ACCEPTANCE.
(a) ACCEPTANCE TESTING PERIOD. Within thirty (30) days from the
Delivery Date, which period may be extended as set forth below, BroadVision
shall determine to its satisfaction that the Products materially conform to the
Documentation.
(b) CORRECTION OF ERRORS. If within such thirty (30) day period,
BroadVision determines that the functions of the Products do not materially
conform to the Documentation, BroadVision shall notify IONA in writing
specifying the nonconforming Product and which part of the Documentation the
Product fails to conform to. IONA shall correct any confirmed nonconformities
and shall provide the corrected Product to BroadVision as soon as commercially
reasonable. BroadVision shall determine within seven (7) business days whether
the corrected Product conforms to the Documentation, and shall notify IONA
within such period of any continuing nonconformities. If IONA is unable to
correct any material nonconformity, BroadVision may, at its discretion, refuse
to accept the nonconforming Product, in which case IONA shall refund the portion
of the fees BroadVision paid for such Product.
(c) BroadVision's failure to notify IONA of such non-conformance will
mean that BroadVision will be deemed to have accepted the Product. BroadVision
will also be deemed to have accepted the Product if BroadVision uses the Product
commercially or resells the Product.
3.4 DOCUMENTATION. BroadVision may use only the applicable portions of
the Documentation, modified in its discretion, to create BroadVision's
documentation for the Final Products. Before disseminating to third parties,
BroadVision will provide a copy of BroadVision's documentation to IONA for
IONA's review and approval, which shall be given within ten (10) business days
of submission and shall not be unreasonably withheld. To the extent that
BroadVision uses the Documentation or portions thereof to create a derivative
work, BroadVision shall own all right, title and interest in and to the
derivative work. BroadVision shall affix the following notice to any media
incorporating the Documentation: COPYRIGHT
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19__, IONA TECHNOLOGIES, LTD. IONA copyright material will in all cases form
a minority part of any derivative work as mentioned above.
3.5 IONA'S RESERVATION OF RIGHTS. IONA reserves the right, from time to
time, in its sole discretion and without liability to BroadVision, to
(a) discontinue the sale of any Products at any time upon eighteen
(18) months' prior written notice to BroadVision, and (b) market the Products
worldwide, either directly or through other resellers.
3.6 [ * ] AGREEMENT. If initiated by BroadVision, the parties agree to
negotiate in good faith for a period of thirty (30) days the terms of a [ * ]
agreement. The terms shall provide that IONA will [ * ]. Other terms [ * ]
shall be reasonable and customary for the industry.
3.7 [ * ] AGREEMENT. If initiated by BroadVision, the parties agree to
negotiate in good faith for a period of thirty (30) days the terms of a [ * ]
agreement, which terms shall be reasonable and customary for the industry.
3.8 PLATFORM SUPPORT. If BroadVision desires a multi-threaded version of
the Products for platforms other than Solaris and Windows NT, BroadVision and
IONA agree to negotiate for a period of thirty (30) days the terms of an
agreement covering IONA's development of such a version. However, IONA may
decide not to do such development work in its sole discretion.
3.9 CUSTOM DEVELOPMENT SERVICES. In the event that BroadVision desires
custom development services, the parties shall execute a mutually acceptable
written agreement which will be attached as an Exhibit to this Agreement.
4. OWNERSHIP.
IONA's license of the Products and Documentation under this Agreement will
not constitute a sale of any title or interest in the Products. IONA will
retain all right, title and interest in and to the Products and all copies
thereof. No right or license, other than the rights expressly granted herein,
is granted by implication or otherwise.
5. FEES AND PRICES.
5.1 FEES. BroadVision will pay the fees for the Products and the
maintenance fees set forth on Exhibit A in U.S. Dollars. For Products sold and
sublicensed to resellers or End Users in Application Development Kits,
BroadVision agrees to make and pay royalties as set forth in Exhibit A based on
the number of copies of Products made by or on behalf of BroadVision. For
Products sold and sublicensed to resellers or End Users in Run Time Products,
BroadVision shall pay the fees set forth in Exhibit A.
5.2 TAXES. BroadVision's payments required hereunder are exclusive of
taxes except as provided herein, and BroadVision agrees to bear and be solely
responsible for the payment of all such taxes, other than taxes payable on
IONA's net income, including but not limited to
(*) Confidential treatment requested
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all sales, use, rental receipt, personal property or other taxes and their
equivalents which may be levied or assessed in connection with the use,
manufacture or sale of the Products or the Final Products.
5.3 FORECASTS. Upon IONA's written request, which may be provided no more
than two times in a calendar year, BroadVision will provide to IONA, within
twenty (20) days of IONA's request, an annual forecast of the number of copies
BroadVision intends to make of the Products and Final Products and whether such
copies will be used in Application Development Kits or Run Time Products.
5.4 REPORTING. Within ten (10) days following the end of each calendar
quarter, BroadVision shall render to IONA a statement showing in reasonable
detail the number of copies of the Products made and the number of copies of the
Products sold and sublicensed during such quarter. BroadVision shall pay IONA
the applicable license fee for a sale and sublicense to a reseller or End User
within forty-five (45) days of BroadVision's delivery of the Final Product to
such reseller or End User. In BroadVision's invoice for each sale and
sublicense, BroadVision will disclose the identity of each End User.
5.5 RECORDS AND INSPECTION RIGHTS. BroadVision will keep and maintain,
for a period of three (3) years, proper records and books of account relating to
BroadVision's marketing and distribution of the Products. IONA may inspect such
records to verify BroadVision's statements. Any such inspection will be
conducted only by independent public accountants during regular business hours
at BroadVision's offices in a manner that does not unreasonably interfere with
BroadVision's business activities. Such inspection shall be at IONA's cost and
expense; PROVIDED, HOWEVER, if the audit reveals overdue payments in excess of
fifteen percent (15%) of the payments owed to date, BroadVision shall pay the
cost of such audit(s) and for each such audit IONA may conduct another audit
during the same twelve (12) month period. Except as set forth above, such
audits may be conducted no more than once in any twelve (12) month period. In
the event that IONA wishes to inspect such books and records, BroadVision will
make all relevant records available, including but not limited to all records
relating to activities outside of the United States (whether such records were
originally generated within or outside of the United States). IONA will have no
right to inspect any materials not relating directly to the copying of the
Products or the distribution and marketing of the Final Products hereunder. In
no event may IONA commence an inspection of any statement later than two (2)
years from the date of such statement.
6. MAINTENANCE AND SUPPORT.
IONA will provide the following maintenance and support services to
BroadVision:
(a) SYSTEM AND TELEPHONE SUPPORT. IONA will provide the following kinds
of support between 8 a.m. and 5 p.m. weekdays, local Ireland time:
(1) If the Products are non-operational or have crashed, IONA shall
use their best efforts work on the Product by remote access within two (2) hours
of notification. For all other Product-related errors, IONA will initiate work
on the Product by remote access within four (4) hours of notification.
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(2) For questions arising from BroadVision's internal use of the
Products, IONA will provide first line telephone support to BroadVision and its
employees.
(3) For questions arising from End User's use of the Products, IONA
will provide second line telephone support to BroadVision. Before contacting
IONA with End User's questions, BroadVision will first provide all End User
support that it is commercially reasonable for a competent engineering team to
provide without having access to the program's source code. IONA may redirect
any End Users' calls it receives to BroadVision.
Should BroadVision require support for problems not caused by IONA, such as
hardware failures, communications failures, or failures due to BroadVision
Products or non-IONA software product failures, BroadVision will pay IONA's fees
as set forth in IONA's then current price list.
For the fees as set forth in Exhibit A, IONA will provide the support
described in this Section 6(a) twenty-four (24) hours a day, seven days a week.
At IONA's discretion, coverage between 5 p.m. and 8 a.m. weekdays and on
weekends local Ireland time may be provided by a trained technician accessible
by beeper.
For any warranty, maintenance or support service provided by IONA to
BroadVision, BroadVision shall provide reasonable site and system access
(including remote access) reasonably necessary to IONA's performance of the
work.
Nothing in this Agreement shall be construed to require IONA to support
versions of the Products that have been rendered non-current by subsequent
versions. IONA will provide six (6) months prior written notice to BroadVision
before it ceases to provide support for a particular version of a Product.
(b) BUG FIXES. After the expiration of the warranty period, IONA will
provide bug fixes to the Products to ensure that the Products materially conform
to the Documentation.
(c) NEW RELEASES. IONA will provide BroadVision with any new versions of
the Products, including releases that ensure Product compatibility with new
versions and releases containing significant new features.
7. PRESS RELEASE.
The parties agree to release a cooperative press release about the release
of Final Products, with a significant focus on the Products and their role in
the Final Products. Neither party will release such a press release without the
other party's prior written permission.
8. TRADEMARKS; MARKINGS.
8.1 TRADEMARKS AND TRADE NAMES. During the term of this Agreement, in
connection with advertising, promotion and marketing of the Final Products and
in related product brochures and other materials, each party may use the
trademarks, trade names and other marketing names used by the other party in
connection with the Products or Final Products
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(the "Trademarks"). In the event that a party ceases using a Trademark, such
party will provide the other party with sixty (60) days prior written notice;
after the expiration of the sixty (60) day period, the notified party shall
cease using the Trademark and shall have ninety (90) additional days to sell
through its inventory of pre-printed materials containing such Trademarks.
IONA grants no other rights than expressly granted hereunder, and BroadVision
acknowledges IONA's exclusive ownership of such marks and names and the
renown of IONA's marks and names worldwide. BroadVision grants no other
rights than expressly granted hereunder, and IONA acknowledges BroadVision's
exclusive ownership of such marks and names and the renown of BroadVision's
marks and names worldwide. Each party agrees not to take any action
inconsistent with the other party's ownership and further agrees to cooperate
with, at its expense, any reasonable action, including without limitation,
the conduct of legal proceedings, which the owning party deems necessary to
establish and preserve such party's exclusive rights in and to its Trademarks
and trade names. Anything herein to the contrary notwithstanding, if a party
has a reasonable belief that a Trademark may infringe a third party's rights,
such party may require the other party to stop using such Trademark.
8.2 MARKINGS. Any reproduction of Trademarks, logos, symbols and other
identifying marks will materially conform to the original design. Each party
agrees that it will not remove or make or permit alterations to any labels or
other identifying markings placed on any Product or Documentation.
8.3 USE OF MARKS AND NAMES. Either party may use the other party's
Trademarks, logos, symbols and other identifying marks in advertising and
promotional materials, including any professionally mastered marketing
materials, subject to the other party's prior written approval, which approval
will be provided within ten (10) business days after receipt of the request and
will not be unreasonably withheld. IONA acknowledges and agrees that
BroadVision may use the term "CORBA" without prior permission; provided that
BroadVision will provide IONA with copies of any of BroadVision's professionally
mastered marketing materials that include the term "CORBA"; and provided
further, that in the event that BroadVision uses "CORBA" in any professionally
mastered marketing materials, BroadVision will also use one or more of IONA's
Trademarks in such material.
8.4 STANDARDS. The licenses regarding the Trademarks granted hereunder
may be terminated in whole or in part by written notice if, at any time, in the
opinion of the licensing party, the marketing of Products, advertising or
promotional materials or packaging or design work for the same do not meet such
party's then current standards for the Products or Final Products.
Notwithstanding the foregoing, in the event the licensing party believes such
standards are not being met, the parties will discuss the deficiencies and
attempt to resolve them promptly.
8.5 REFERENCE SITE. IONA may direct any press inquiries about the
Products to BroadVision. BroadVision will use commercially reasonable efforts
to respond to such inquiries. BroadVision may objectively critique the Products
or IONA. BroadVision agrees not to unjustifiably criticize IONA or the Products
or to make unjustifiable invidious comparisons between the Products and
competitive products or IONA and its competitors.
9. WARRANTIES.
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9.1 LIMITED WARRANTY. IONA warrants that, for the period of ninety (90)
days following installation on BroadVision's or End User's computer systems, as
applicable, the Products will materially conform to the Documentation. End
Users' and BroadVision's sole remedies for failure of a Product to meet this
warranty will be limited to having IONA use commercially reasonable efforts to
correct documented nonconformances within five (5) business days and, if IONA is
unable to correct such nonconformances within thirty (30) business days, IONA
shall refund all license fees it has received pursuant to Section 5.1. IONA
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
FREEDOM FROM THIRD PARTY INFRINGEMENT CLAIMS.
9.2 NO ADDITIONAL WARRANTIES TO END USERS. BroadVision will make no
warranties to End Users on behalf of IONA other than as set forth in
Section 9.1, and agrees to indemnify and hold IONA harmless from any third
party claims based on warranties given in violation of this Agreement.
9.3 EXCLUSIONS.
(a) IONA's warranty does not cover loss or damage which (i) is due to
improper installation or maintenance by any person other than as authorized by
IONA, misuse, neglect, or any cause other than ordinary commercial or industrial
application; (ii) is due to adjustment, repair or modification by any person
other than as authorized by IONA; (iii) is due to storage or use in an improper
environment, excessive or inadequate heating or air conditioning and electrical
power failures, surges or other irregularities; or (iv) is due to any statement
about the Products other than as provided in this Agreement or in IONA's
documentation, unless confirmed in writing by IONA.
(b) IONA does not warrant that the Products will meet BroadVision's
or End Users' requirements, that operation of the Products will be uninterrupted
or error-free, or that all software errors will be corrected. IONA is not
responsible for problems caused by any computer hardware or computer operating
systems (including BroadVision Products) which are not compatible with the
system specifications required to run the Products as set forth in the Product's
user manual, or for problems in the interaction of the Products with non-IONA
software (including any applicable BroadVision Products).
10. LIMITATION OF LIABILITY.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, END USERS OR ANY OTHER
ENTITY CLAIMING THROUGH OR UNDER THE OTHER PARTY OR END USERS FOR ANY LOSS OF
PROFITS OR INCOME, LOSS OF DATA, OR OTHER TANGIBLE BUSINESS LOSS OR OTHER
CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OR FOR ANY CLAIM BY ANY OTHER
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF
OR IN CONNECTION WITH THE USE OF THE LICENSES GRANTED HEREUNDER. IN NO
9
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EVENT WILL IONA'S LIABILITY UNDER THIS AGREEMENT EXCEED THE LICENSE FEES PAID
FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY.
11. IONA'S INDEMNITY.
11.1 INDEMNITY.
(a) IONA will, at its own expense, defend and hold harmless
BroadVision against any third party claim, action, suit or proceeding alleging
that any Product furnished and used within the scope of this Agreement or the
use, sale or other disposition thereof, infringes any U.S. copyright or patent
right existing or issued as of the Effective Date. IONA will indemnify
BroadVision for all losses, damages and all reasonable expenses and costs
incurred by BroadVision as a result of a final judgment entered against
BroadVision in any such claim, action, suit or proceeding; provided that
BroadVision gives IONA prompt written notice of any such claim, grants IONA
control of the defense and any settlement thereof, and reasonably cooperates
with IONA at IONA's expense.
(b) If the Products, in whole or in part, are or in IONA's opinion
may become, the subject of any claim, action, suit or proceeding for
infringement of, or if it is judicially determined that the Products, in whole
or in part, infringe any third party's U.S. copyright or patent right, or if the
Product's use is enjoined, then IONA shall, at its option and expense:
(i) procure for BroadVision the right to continue the Product's sale and use;
(ii) replace or modify the Product so as not to infringe such third party's
copyright or patent right while conforming, as closely as possible, to the
Documentation; or (iii) terminate this Agreement as to such Products and refund
the license fees paid for such Products, pro rated over a five (5) year term
from the Effective Date. The foregoing remedial actions do not relieve IONA
from its obligations under Section 11.1(a).
11.2 LIMITATION ON LIABILITY/EXCLUSIVE REMEDY.
(a) IONA will have no liability under Section 11.1 for any
infringement claim based upon: (i) the use or combination of the Products with
software, hardware, or other materials not provided by IONA; (ii) components or
software which were not manufactured by IONA; (iii) any use of an unauthorized
altered version of the Products; and (iv) the use of a superseded version of the
Products, if such infringement would have been avoided by the use of a current
version.
(b) SECTION 11 STATES IONA'S ENTIRE OBLIGATION AND LIABILITY WITH
RESPECT TO ANY CLAIMS OF PATENT, COPYRIGHT OR OTHER PROPRIETARY RIGHT
INFRINGEMENT.
12. BROADVISION'S INDEMNITY.
BroadVision will, at its own expense, defend and hold harmless IONA against
any third party claim, action, suit or proceeding alleging that any BroadVision
Product furnished and used within the scope of this Agreement or the use, sale
or other disposition thereof, infringes any U.S. copyright or patent right
existing or issued as of the Effective Date. BroadVision will
10
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indemnify IONA for all losses, damages and all reasonable expenses and costs
incurred by IONA as a result of a final judgment entered against IONA in any
such claim, action, suit or proceeding; provided that IONA gives BroadVision
prompt written notice of any such claim, grants BroadVision control of the
defense and any settlement thereof, and reasonably cooperates with
BroadVision at BroadVision's expense.
13. TERM.
The initial term of this Agreement will expire three (3) years from the
Effective Date, but this Agreement will automatically renew for additional three
(3) year terms unless terminated earlier (a) by either party by delivering
written notice to the other prior to: (i) six (6) months preceding expiration of
the term of this contract, or (ii) any renewal of such term, or (b) in
accordance with Section 14. Nothing in this Agreement will be construed as
requiring either party to renew or extend this Agreement.
14. TERMINATION.
14.1 TERMINATION BY EITHER PARTY. Either party may, by written notice to
the other party, terminate this Agreement upon the occurrence of any one or more
of the following events:
(a) Upon the failure of the other party to pay any monies when
payable hereunder, if such default continues for ten (10) business days or more
after written notice to the other party;
(b) Upon material failure of the other party to observe, keep or
perform any of the material covenants, terms or conditions herein (other than as
provided in (a) above), if such default continues for thirty (30) days after
written notice by the other party; or
(c) If the other party ceases to function as a going concern or to
conduct its operations in the normal course of business.
14.2 EFFECTS OF TERMINATION. Upon termination or expiration of this
Agreement:
(a) All licenses and rights granted to BroadVision under this
Agreement, except BroadVision's right to use the Products internally, will
terminate;
(b) BroadVision will promptly return to IONA all marketing and
selling materials, all manuals, all technical data and all other documents and
copies thereof previously supplied by IONA, except such documents as are
necessary for BroadVision to provide support to End Users;
(c) Each party will cease using the other party's name, trademarks
and trade names and BroadVision will refrain thereafter from representing itself
as a reseller of IONA;
(d) Termination by either party under this Agreement will not affect
the sublicenses previously granted by BroadVision to End Users; and
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(e) Any other rights of either party which may have accrued up to the
date of such termination or expiration will not be affected.
14.3 SURVIVAL. Sections 11, 12 and 15 will survive the termination or
expiration of this Agreement.
15. CONFIDENTIALITY.
15.1 CONFIDENTIAL INFORMATION. The term "Confidential Information" means
any technical or non-technical information relating to IONA, BroadVision, the
Products, Documentation and BroadVision Products, such as product plans, costs,
prices, names, finances, marketing plans, business opportunities, personnel and
the like, which is disclosed by one party ("Disclosing Party") to the other
party ("Receiving Party") in a written or other tangible form clearly marked
"Confidential" or with a comparable legend. The parties agree that
"Confidential Information" includes the terms of this Agreement. Oral or visual
information will not be considered Confidential Information unless it is
designated confidential by Disclosing Party at the time of such oral or visual
disclosure, and subsequently reduced to writing clearly marked "Confidential" or
with a comparable legend, and sent to Receiving Party within thirty (30) days
after such oral or visual disclosure.
15.2 RESTRICTIONS ON USE. During this Agreement, and for five (5) years
after the termination of this Agreement, Receiving Party agrees to keep
Confidential Information of Disclosing Party in confidence, and will neither
disclose it to any third party nor use the same for any purposes other than
those contained in this Agreement. Notwithstanding the foregoing, Receiving
Party will have no confidentiality obligation and no use restriction with
respect to any information that:
(a) the Disclosing Party approves, by prior written consent,
Receiving Party to release or disclose to any third parties;
(b) the Receiving Party already knows, without obligation to keep it
confidential, when received from Disclosing Party;
(c) the Receiving Party receives in good faith from a third party
lawfully in possession thereof and having no similar obligation to keep such
information confidential;
(d) is or becomes publicly known to Receiving Party when or after the
Receiving Party receives it from Disclosing Party through no fault of Receiving
Party;
(e) the Receiving Party independently develops without using the
Disclosing Party's Confidential Information; or
(f) is disclosed pursuant to the requirement of a governmental agency
or disclosure is required by operation of law.
16. GENERAL.
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16.1 FORCE MAJEURE. If the performance of this Agreement, or any
obligation hereunder, is prevented, restricted or interfered with by reason of
fire, flood, earthquake, acts of God, explosion or other casualty of war, labor
dispute, inability to procure or obtain delivery of parts, supplies or power,
violence, any law, order, regulation, ordinance, demand or requirement of any
governmental agency, or any other act or condition whatsoever beyond the
reasonable control of the affected party, the party so affected, upon giving
prompt notice to the other party, will be excused from such performance to the
extent of such prevention, restriction or interference.
16.2 GOVERNING LAW. This Agreement will be governed by and construed under
the laws of the State of California, excluding its conflicts of law principles.
Any suit hereunder will be brought in the federal or state courts in Santa Clara
County, California and BroadVision submits to the jurisdiction thereof. The
parties exclude the application of the 1980 United Nations Convention on
Contracts for the International Sale of Goods if applicable.
16.3 LANGUAGE. This Agreement is executed in the English language, which
will be the sole and controlling language used in interpreting or construing its
meaning.
16.4 SEVERABILITY. If any of the provisions, or portions thereof, of this
Agreement is held by a court of competent jurisdiction to be invalid under any
applicable statute or rule of law, the parties agree that such invalidity will
not affect the validity of the remaining portions of this Agreement and further
agree to substitute for the invalid provision a valid provision which most
closely approximates the intent and economic effect of the invalid provision.
16.5 RIGHT TO ENTER AGREEMENT. Each party has full power and authority to
enter into and perform this Agreement, and the person signing this Agreement on
behalf of each has been properly authorized and empowered to enter into this
Agreement. Each party further acknowledges that it has read this Agreement,
understands it, and agrees to be bound by it.
16.6 INDEPENDENT CONTRACTOR. The parties' relationship will be solely that
of independent contractor and nothing contained in this Agreement will be
construed to make either party an agent, partner, co-venturer, representative or
principal of the other for any purpose, and neither party will have any right
whatsoever to incur any liability or obligation on behalf of or binding upon the
other party.
16.7 ASSIGNMENT. Neither party may assign this Agreement in whole or in
part without the other party's prior written consent. Notwithstanding the
foregoing, either party may assign its rights and obligations to any persons or
entities who control fifty percent (50%) or more of such party's voting
interests, and this Agreement will inure to the benefit of and be binding upon
such successor entity. Any assignment in violation of this Agreement will be
void and of no force and effect.
16.8 ATTORNEY'S FEES. If any legal action is brought to construe or
enforce any provision of this Agreement, the prevailing party will be entitled
to receive its attorneys' fees and court costs in addition to any other relief
it may receive.
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16.9 NOTICES. All notices, requests, consents and other communications
required or permitted under this Agreement will be in writing and will be deemed
effective three (3) business days after being mailed by registered or certified
mail, postage prepaid, to BroadVision and IONA at their respective addresses as
set forth above. Either party may change its address by written notice to the
other.
16.10 HEADINGS. Headings used in this Agreement are for reference
purposes only and in no way define, limit, construe or describe the scope or
extent of such section, or in any way affect this Agreement.
16.11 NON-WAIVER. No term or provisions hereof will be deemed waived
and no breach excused, unless such waiver or consent is in writing and signed by
the party claimed to have waived or consented. Any consent by any party to, or
waiver of, a breach by the other, whether express or implied, will not
constitute a consent to, waiver of, or excuse for any other different or
subsequent breach.
16.12 ENTIRE AGREEMENT; AMENDMENT. This Agreement, including the
Exhibits attached hereto, which are hereby incorporated into and made a part of
this Agreement, constitute the final, complete and exclusive entire agreement
between the parties with respect to the subject matter hereof and supersedes any
previous proposals, negotiations, agreements, arrangements, or warranties,
whether verbal or written, made between the parties with respect to such subject
matter. It is expressly understood and agreed that sales conditions of the
Products as contained in orders or any other form or request submitted by
BroadVision to IONA will be subject to the provisions of this Agreement, and in
no event will the terms and conditions set forth in such order or other business
form, whether it is IONA's standard or not, be applicable to the transactions
between the parties under this Agreement. This Agreement will control over any
additional or conflicting term in any of BroadVision's purchase orders or other
business forms. This Agreement may only be amended or modified by mutual
agreement of authorized representatives of the parties in writing.
16.13 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original but which together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
IONA TECHNOLOGIES, LTD. BROADVISION INC.
By: \s\ Christopher Horn By: \s\ Pehong Chen
---------------------------- ---------------------------------
Name: Christopher Horn Name: Pehong Chen
---------------------------- ---------------------------------
Title: CEO Title: CEO
---------------------------- ---------------------------------
Date: 10/8/95 Date: 7/24/95
---------------------------- ---------------------------------
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EXHIBIT A
SUPPLEMENTAL TERMS AND CONDITIONS
1. PRODUCTS AND PLATFORMS.
1.1 DELIVERY DATE. The initial Delivery Date for the initial order shall
be January 30, 1995.
1.2 DELIVERY OF PRODUCTS. On the Delivery Date, IONA shall deliver to
BroadVision ten (10) copies of its Orbix product on any of the following
platforms as requested by BroadVision: Solaris, DEC, OSF/1, HP-UX, Silicon
Graphics IRIX or Windows NT. BroadVision acknowledges that it accepted the
Products enumerated in the foregoing sentence on February 28, 1995. By July 1,
1995, as part of the Products and for no additional license fees, IONA will
provide versions of its Orbix product that support multi-threading on the
Windows NT and Solaris platforms.
1.3 PRODUCTS. Subject to the delivery schedule in Section 1.2 of this
Exhibit A, the Products are the Orbix product in the Solaris, DEC, OSF/1, HP-UX,
Silicon Graphics IRIX or Windows NT platforms.
1.4 TERRITORY. The Territory shall be worldwide.
2. FEES.
2.1 INTERNAL USE OF PRODUCTS. BroadVision shall pay the license fee set
forth in Exhibit B for licensing the Products for BroadVision's internal use.
BroadVision agrees to purchase [*] copies of Products for its internal use.
2.2 APPLICATION DEVELOPMENT KIT LICENSES. BroadVision shall pay [*]
percent ([*]%) of the applicable list price set forth in Exhibit B for each copy
of the Products sold and sublicensed in Application Development Kits to
resellers or End Users.
2.3 PRICE INCREASES. IONA in its discretion may increase the fees for
copies of the Products used in the Application Development Kits set forth in
Exhibit B on each annual anniversary of the Effective Date by providing sixty
(60) days' prior written notice. In no event shall the year-to-year percentage
increase in such fees exceed the corresponding year-to-year percentage increase,
plus five percent (5%), in the Retail Price Index measured from January to
January. However, in the event of major changes in the currency exchange rate
between the Ireland Punt and the U.S. Dollar, the parties agree to negotiate in
good faith appropriate adjustments to the fees.
2.4 VERSION 1.0 RUN TIME PRODUCT LICENSES. For each copy of a Run Time
Product BroadVision sells and sublicenses to BroadVision's resellers or End
Users, BroadVision shall pay to IONA [*] percent ([*]%) of its Net License
Revenue for the Run Time Products. "Net License Revenue" means the gross
license fees paid to BroadVision for copies of the Run Time
[*] Confidential treatment requested
A-1
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Products less any reseller discounts. The initial license fees to be charged
to End Users by BroadVision for the Run Time Products will be as set forth
in Exhibit C.
2.5 VERSION 2.0 RUN TIME PRODUCT LICENSE. It is the parties' intent to
move to a modular pricing structure upon BroadVision's release of Version 2.0 of
the Run Time Products, in which event IONA will be paid based on royalties
attributable only to the individual module which allows the user to actually
utilize the Product's functionality. Upon BroadVision's release of a Run Time
Product it enumerates, in its sole discretion, as version 2.0, BroadVision will
pay to IONA [*] percent ([*]%) of the gross license fees attributable to
BroadVision's sale and sublicense of the individual module which allows the User
to actually utilize the Product's functionality less any reseller discounts.
Notwithstanding the foregoing, if BroadVision has not released a Run Time
Product it enumerates as version 2.0 within thirty (30) months from the
Effective Date, the parties agree to renegotiate the fees applicable to the Run
Time Products.
2.6 MAINTENANCE AND SUPPORT FEES. For 8:00 a.m. to 5:00 p.m. support for
Products for BroadVision's internal use, the annual maintenance and support fee
shall be twelve and a half percent (12 1/2%) of the Internal Development License
fee set forth in Exhibit B for each copy of the Product licensed. For 8:00 a.m.
to 5:00 p.m. support for Products for BroadVision's resale, the annual
maintenance and support fee shall be four percent (4%) of the Resale Development
License fee set forth in Exhibit B for each copy of the Product licensed. All
fees under this Section 2.6 are payable in advance on the expiration of the
applicable warranty period and each anniversary thereof. For 24 hours per day,
seven days a week support as described in Section (6a), the Parties shall use
their best efforts to negotiate the applicable fee when customer requirements
for such support arise.
[*] Confidential treatment requested
A-2
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EXHIBIT B
IONA LIST PRICES
Internal Development License $[*] per license
Resale Development License (UNIX) $[*] per license, subject to discount
Resale Development License (Windows NT) $[*] per license, subject to discount
Run Time Licenses As per Exhibit A
[*] Confidential treatment requested
B-1
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EXHIBIT C
BROADVISION STANDARD PRODUCTS AND FEES
LICENSEES
- SINGLE SERVICE PROVIDER (SSP)
An SSP is generally a content provider developing a single application
for use across one or more on-line platforms. Content providers span
a wide range of industries, including media and entertainment, retail
and catalog sales consumer goods, travel services, and more. Examples
of leading companies developing services include AA/Sabre, Disney,
Fingerhut, Lands End, Macy's Interactive, QVC, Times-Mirror and
Viacom.
- MULTIPLE SERVICE PROVIDER
An MSP is generally a network operator or network access provider that
is aggregating a suite of applications into a package of ITV or on-
line services. MSPs develop applications and also strike deals with
SSPs. Examples of MSPs include unregulated subsidiaries of all the
U.S. RBOCS and telephone companies, international telecommunications
firms, cable companies, major on-line services.
- SYSTEMS INTEGRATORS
Systems integrators contract with SSPs and MSPs to build the software
and hardware platforms necessary for delivering on-line and
interactive services. Systems integrators playing a strong role in the
interactive markets include AT&T, Cap Gemini, Arthur Andersen, EDS,
Lockheed, Logica, SHL Systemhouse and Siemens.
- PLATFORM VENDORS
Platform vendors offer end-to-end solutions for interactive and on-
line services. Platform vendors may choose to integrate or OEM
CoMarket software into their platform for sale to service providers,
or they may work in a co-marketing partnership with BroadVision.
Leading platform vendors for interactive and on-line services include
DEC, HP, ICTV, IDS, Intel, MEI, Microsoft, NetScape, Oracle, Spry and
Sun, Sun/Thompson, Sybase, Tandem.
DESCRIPTION OF LICENSEES
BroadVision offers three types of licenses for CoMarket, depending on the type
of customer and their use of the product. These include:
- COMARKET TOOLKIT DEVELOPERS
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Developers are companies with the rights to develop applications using
BroadVision products. Developers are licensed to use the CoMarket
Toolkits and embed the CoMarket APIs in applications.
- COMARKET DASHBOARD USERS
Dashboard end-users are companies with the rights to use the CoMarket
Dashboard in an operational environment.
- COMARKET OPERATORS
Operators are companies with the rights to execute applications
developed using the CoMarket Toolkits and operate the CoMarket ICMS.
There are two types of operators, Single Service Providers (SSPs) and
Multiple Service Providers (MSPs), as defined below:
- SINGLE SERVICE PROVIDER (SSP)
An SSP is a company providing an Interactive Service Application,
such as an electronic catalog, games service, etc. An SSP
generally operates only one service on an interactive network,
either as a stand alone application or as part of an MSP package.
- MULTIPLE SERVICE PROVIDER (MSP)
An MSP is a company developing and providing multiple interactive
applications as part of a total package. Examples include
providers of ITV platforms, such as RBOCs, cable companies and
Direct Broadcast Satellite (DBS) operators, as well as providers
of on-line services or electronic malls.
- COMARKET RESELLERS
Resellers are companies with the rights to sub-license BroadVision
products. Resellers may include MSPs offering BroadVision tools as
part of their platform development environment, systems integrators,
or other software companies.
PRODUCT LICENSES
The product is licensed based on the components used. There are three types of
licenses:
1. COMARKET TOOLKITS LICENSE
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The Toolkit license includes documentation, example programs and code
comprising the CoMarket Application Programming Interfaces (API). The
Toolkits are licensed on a per developer basis, and include:
- The Application Integration Toolkit, including platform-specific
software stubs for integration of the ICMS with interactive
applications
- The Existing Business Systems Toolkit, including platform-
specific software drivers for integration of the ICMS with
existing business systems
Both toolkits include documentation and sample programs. The CoMarket APIs are
provided as a C++ library. The CoMarket Toolkit license includes the right to
incorporate both the software stubs and drivers in interactive applications and
existing business systems, and the right to sub-license such applications to
others.
2. COMARKET DASHBOARD LICENSE
The Dashboard license provides operators of interactive applications
the right to use the CoMarket Dashboard. Dashboards are licensed on a
per seat basis. The Dashboard provides marketing and back office
operators the ability to define and implement new prices, pricing
rules, discounts and incentive programs, create reports from data in
the Application Observation System, add, modify and update marketing
programs.
3. COMARKET ICMS LICENSES
The CoMarket ICMS provides the interactive application access to the
functionality supplied by the ICMS subsystems in an operational
environment. An ICMS may support one or more interactive applications
and many consumer sessions. The ICMS is licensed based on the number
of consumer sessions. Initially, the product will be sold as a single
package (e.g. all subsystems sold in the package). Over time, a
component-based approach will be supported, allowing ICMS subsystems
to be purchased on a modular basis.
C-3
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COMARKET RELEASE AND CONFIGURATION PLAN
1. CoMarket V1.0, scheduled for release in December 1995, will consist of
all ICMS subsystems configured as one package. The CoMarket Toolkits
and CoMarket Dashboards, licensed separately, will support the
functionality provided in V1.0 of the ICMS.
2. BroadVision's second release (CoMarket V1.5), scheduled for the second
half of 1996, will consist of enhanced versions of the subsystems
contained in V1.0, and additional subsystems containing new
functionality. CoMarket V1.0 will also be configured as a single
package. Customers using V1.0 can upgrade to V1.5 by paying the
incremental difference in price between the two releases. The CoMarket
Toolkits and CoMarket Dashboards, licensed separately, will also be
enhanced to support the new functionality provided in V1.5 of the
ICMS.
3. BroadVision's third release (CoMarket V2.0), scheduled for 1997, will
be priced on a per subsystem basis and not as a set package. CoMarket
V2.0 will include enhancements to existing subsystems and new
functionality provided through additional subsystems. The CoMarket
Toolkits and CoMarket Dashboards, licensed separately, will be
enhanced to support the new functionality provided in V2.0 of the
ICMS. These products will only support access to the ICMS subsystems
licensed for use.
COMARKET V1.0 PRICE LIST, PRODUCTS AND SERVICES
1. COMARKET V1.0 TOOLKITS AND DASHBOARD LICENSE PRICING
CoMarket Toolkits V1.0 $[*]
Price Per [ * ] (US)
CoMarket Dashboard V1.0 $[*]
Price Per [ * ] (US)
Notes:
- Maintenance is [*]% of net fees paid
- Warranty is for [*] days from date of acceptance
- Resellers must purchase a minimum of [*] Toolkit licenses for use
in internal development.
- Resellers receive a [*]% discount when they resell and support
Operators
- Resellers receive a [*]% Finders Fee if Reseller recruits new customer
who contracts directly with BroadVision.
[*] Confidential treatment requested
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2. COMARKET ICMS V1.0
Licensing for the CoMarket ICMS subsystems is based on the type of
service provider (e.g. Single or Multiple Service Provider) and the
number of users (e.g. consumers) that can be supported on line.
Customer may choose between an annual or perpetual license.
SINGLE SERVICE PROVIDER ICMS LICENSE PRICING
(US) (US)
ANNUAL PERPETUAL
# USERS LICENSE FEE LICENSE FEE
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] Confidential treatment requested
C-5
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MULTIPLE SERVICE PROVIDER ICMS LICENSE PRICING
(US) (US)
Annual Perpetual
# Users License Fee License Fee
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
NOTES:
- A user is defined as either the number of Subscriber Households having a
settop box in an ITV network (CATV or DBS) or the number of PCs allowed to
be logged on to an interactive service at any given time.
- Minimum CoMarket V1.0 configuration is [*] users
- Resellers receive a [*]% discount when they resell and support Licenses
- Annual fees include maintenance, upgrades, and new versions at no
additional charge
- Perpetual fees do not include maintenance or upgrades
- For perpetual licensees, an upgrade fee is charged for new versions of
CoMarket
- Maintenance is [*]% of Net License Fee
- Warranty is for [*] days from date of acceptance
3. PROFESSIONAL SERVICES FEES:
Professional Services Per Day
Personnel (US)
Project Manager/Senior Engineer $[*]
Staff Engineer $[*]
NOTES:
- Travel and accommodations are not included in above rates and are to be
billed separately.
[*] Confidential treatment requested
C-6
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DISCLAIMER
BroadVision reserves all rights to change its product packaging, licensing,
pricing and release schedule at any time. However, current customers will be
notified with a 30-day notice before any such changes takes effect.
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EXHIBIT D
END USER LICENSE AGREEMENT
1. LICENSE
1.1 GRANT OF RIGHTS. BroadVision grants End User a non-exclusive
sublicense to use the software and documentation according to the terms and
restrictions set forth in this End User License Agreement. BroadVision may
update or revise the software and in so doing incurs no obligation to furnish
such updates or revisions to End User.
End User may (a) install and use the software for internal development
purposes only; (b) compile and integrate the software on computers necessary for
it to be compatible with End User's existing systems and applications; and (c)
copy the software into any machine readable or printed form and copy the
documentation in printed form for backup purposes in support of End User's use
of the software, which backup of the software and documentation automatically
becomes the property of BroadVision and is subject to this Agreement.
1.2 RESTRICTIONS. End User must reproduce and include the copyright
notice on any copy or authorized modification of the software or any portion of
the software merged into another software.
End User may not (a) modify, adapt, translate, rent, lease or loan the
software or create derivative works other than applications based on the
software or the accompanying written materials; (b) electronically transmit the
software over a network except as necessary to support the number of licensed
simultaneous users; (c) copy the software into an arrangement or any other
hardware configuration where the software is accessible to more simultaneous
users than specifically authorized above; (d) USE OR COPY THE SOFTWARE, OR ANY
COPY, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS LICENSE; (e)
REVERSE ASSEMBLE, REVERSE ENGINEER OR REVERSE COMPILE THE SOFTWARE; or (f)
TRANSFER POSSESSION OF ANY COPY OF THE SOFTWARE TO ANOTHER PARTY.
End User acknowledges that the software constitute valuable proprietary
product and trade secrets of BroadVision embodying substantial creative efforts
and confidential information, ideas and expressions. Accordingly, End User may
install the software on computers or systems located only at facilities owned or
leased by End User and shall take reasonable security precautions to restrict
access to the software to authorized employees and consultants. Further, End
User agrees to treat the software as confidential and not to disclose all or any
portion of the software to any third party or entity, except as such disclosure
may be necessary to End User's employees or consultants in the course of their
employment. End User will advise any of its
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employees or consultants receiving access to any portion of the software
of the confidential and proprietary nature of the software.
2. PROPRIETARY RIGHTS.
The software is proprietary to BroadVision. BroadVision retains title and
ownership of all copies of the software. The nonexclusive license set forth in
this Agreement specifies the authorized use of the software and is not a sale of
the software or any copy. Any failure or violation to comply with the
authorized use, confidentiality or nondisclosure will be deemed to automatically
terminate the license and this Agreement. Except as stated above, this license
does not grant End User any rights to patents, copyrights, trade secrets, trade
names, trademarks (whether registered or unregistered), or any other rights,
franchises, or licenses in respect of the software.
3. TERMINATION.
This license is effective until terminated. End User may terminate it at
any other time by destroying the software together with all copies in any form
and notifying BroadVision in writing. This Agreement will also terminate upon
conditions set forth elsewhere in this Agreement or if End User fail to comply
with any term or condition of this Agreement, in which case End User will
destroy the software and all copies in any form.
4. LIMITED WARRANTY.
4.1 WARRANTY. BroadVision warrants that the software and the accompanying
media will perform materially in accordance with the specifications as set forth
in the accompanying specifications for a period of ninety (90) days from the
date of installation on the End User's system, when the software is properly
installed on a computer for which the license is granted hereunder. BROADVISION
DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD
PARTY RIGHTS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO
THE ABOVE EXCLUSION MAY NOT APPLY TO END USER. THIS WARRANTY GIVES END USER
SPECIFIC LEGAL RIGHTS AND END USER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM
STATE TO STATE.
4.2 REMEDIES. BroadVision's sole obligations, and End User's sole
remedies, for the failure of the software to meet this warranty will be limited
to having BroadVision undertake to correct documented non-conformances within a
reasonable period of time; and if BroadVision
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is unable to correct such nonconformances within a reasonable period of time,
BroadVision will refund all license fees paid to BroadVision.
4.3 RESTRICTIONS. BroadVision's warranty does not cover loss or damage
which (a) is due to improper installation or maintenance, misuse, neglect, or
any cause other than ordinary commercial or industrial application; (b) is due
to adjustment, repair or modification by any person other than as authorized by
BroadVision; (c) is due to storage or use in an improper environment, excessive
or inadequate heating or air conditioning and electrical power failures, surges
or other irregularities; or (d) is due to any statement about the software other
than as provided in this license, unless confirmed in writing by BroadVision.
BroadVision does not warrant that the software will meet End User's
requirements, that operation of the software will be uninterrupted or
error-free, or that all software errors will be corrected. BroadVision is not
responsible for problems caused by any computer hardware or computer operating
systems (including non-BroadVision software components provided by BroadVision)
which are not compatible with the system specifications required to run the
software as set forth in the software's user manual, or for problems in the
interaction of the software with non-BroadVision software.
4.4 ACCESS. For any warranty, maintenance or support provided by
BroadVision to End User, End User shall provide reasonable site and system
access (including remote access) reasonably necessary to BroadVision's
performance of the work.
5. LIMITATION OF LIABILITY.
BROADVISION WILL NOT BE LIABLE TO END USER OR ANY OTHER ENTITY CLAIMING
THROUGH OR UNDER THE END USER FOR ANY LOSS OF PROFITS OR INCOME, LOSS OF DATA,
OR OTHER TANGIBLE BUSINESS LOSS OR OTHER CONSEQUENTIAL, INCIDENTAL, OR SPECIAL
DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR
TORT OR BASED ON A WARRANTY, EVEN IF BROADVISION HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE
LICENSES GRANTED HEREUNDER. IN NO EVENT WILL IONA'S LIABILITY UNDER THIS
AGREEMENT EXCEED THE LICENSE FEES PAID FOR THE SOFTWARE GIVING RISE TO SUCH
LIABILITY.
6. GOVERNMENT CONTRACTS.
The software is provided with RESTRICTED RIGHTS. Use, duplication, or
disclosure by the Government is subject to restrictions as set forth in
applicable section of FAR 52.227-
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19(c)(2) or DOD FAR supplement 252.227-7013 subdivisions (b)(3)(ii) and
(c)(1)(ii) of The Rights in Technical Data and Computer Software clause.
7. ENFORCEABILITY.
End User agrees that this Agreement is for the benefit of and may be
enforced directly by BroadVision. End User further agrees that because of the
unique nature of the software, the irreparable harm of any breach and the
inadequacy of monetary damages that BroadVision will be entitled to preliminary
and permanent injunctive relief to enforce this Agreement.
8. GENERAL.
8.1 This Agreement will be governed by the laws of the State of
California, excluding its conflict of laws principles. This Agreement will not
be governed by the United Nations Convention for the International Sale of Goods
if applicable.
8.2 End User may not sublicense, assign or transfer the license or the
software. Any attempt otherwise to sublicense, assign or transfer any of the
rights, duties or obligations hereunder is void.
8.3 End User acknowledges that the laws and regulations of the United
States restrict the export and re-export of the software. End User agrees that
End User will not export or re-export the software or media in any form without
first obtaining written approval from BroadVision, and the appropriate United
States and foreign government approvals.
8.4 Failure or delay in enforcing any right or provision of this Agreement
will not be deemed a waiver of such provision or right with respect to any
subsequent breach or a continuance of an existing breach.
8.5 If any provision of this Agreement shall be held to be unenforceable,
that provision will be enforced to the maximum extent possible, and the
remaining provisions of this Agreement will remain in full force and effect.
8.6 All notices and other communications required or permitted under this
Agreement will be in writing and will be deemed effective when mailed by
registered or certified mail, postage prepaid, or transmitted by facsimile to
the following:
End User:
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BroadVision: 333 Distel Circle
Los Altos, CA 94022
A party may change its address by written notice to the others.
8.7 END USER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN END USER, BROADVISION AND IONA AND IT
SUPERSEDES ANY PROPOSAL OR PRIOR OR CONTEMPORANEOUS AGREEMENT, ORAL OR WRITTEN,
AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER
OF THIS AGREEMENT.
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