Licensed Software Terms and Conditions - Ford Motor Co. and Instinctive Technology Inc.
LICENSED SOFTWARE TERMS AND CONDITIONS
Effective upon the last date signed below (the "Effective Date") provided that
in order to become effective this Agreement must be signed by both parties on or
before March 15, 2000, Ford Motor Company, a Delaware corporation with principal
offices located at The American Road, Dearborn, Michigan 48121, on behalf of
itself and Ford Associated Companies as defined below (hereinafter collectively
referred to as "Ford") and Instinctive Technology, Inc, a Delaware corporation
with principal offices located at 725 Concord Ave., Cambridge, MA 02138
(hereinafter referred to as "Licensor" or "Instinctive") agree as follows with
respect to the software described below and on Attachment A hereto ("Software").
A "Ford Associated Company" (or "FAC") is a company, foreign or domestic at
least 50% of whose capital, assets or voting stock is owned or controlled by
Ford. As of the date of this Agreement, the FACs are listed on ATTACHMENT B.
Ford may update Attachment from time to time as additional entities become 50%
owned by Ford Motor Company. Notwithstanding the above, the parties agree that
Mazda Motor Corporation will be deemed an FAC. An FAC that licenses the Software
as authorized by this Agreement or receives services under this Agreement will
be bound by the terms and conditions of this Agreement.
1 LICENSE. Licensor grants to Ford, and Ford hereby accepts, a nonexclusive
license to use the Software and User Documentation in accordance with the terms
and conditions set forth herein, including the license grant restrictions set
forth below and in Attachment A. Ford's use of the Software will be limited to
the computer system, computer site or, Local and/or Wide Area Network, and to
the number of users, and use restrictions described below and on Attachment A.
Ford may transfer its use of the Software to a backup or replacement computer
system, site or network on a temporary or permanent basis, provided that Ford
gives Licensor notice of such transfer and discontinues its use on the original
computer system, site or network, and provided all use restrictions described
below and in Attachment A are complied with. Ford may also transfer or assign
this Agreement, all of the Software licensed hereunder and User Documentation on
a permanent basis provided that (a) written notice of the transfer is given to
Licensor, (b) Licensor consents to the transfer and such consent will not be
unreasonably withheld, and (c) the transferee reads and agrees to accept the
terms and conditions of this Agreement.
The "Software" includes "eRoom Software" and "Toolkit." eRoom Software is
defined as the eRoom software product, consisting of eRoom server software (the
"Server Software"), the eRoom client software (the "Client Software"), any eRoom
user authorization strings provided by Instinctive from time to time (the
"License Strings"), any updates and upgrades or other related software code
provided under Maintenance, and eRoom User Documentation. "eRoom User
Documentation" consists of the "Getting Started" and "Administrator Manual"
documents provided with the Software as well as the On-line help in the
Software.
The "Toolkit" is defined as: eRoom(R) Toolkit Software, any other associated
machine-readable object code versions as well as other associated files
(including all upgrades, patches and other files provided under Maintenance, if
any); sample source code files included within Toolkit and supplied by
Instinctive from time to time ("Sample Code"), and the Runtime eRoomAPI.dll
file; and together with any associated media, printed materials and online or
electronic documentation.
A. eROOM SERVER SOFTWARE. For each Server Software license purchased by Ford,
Ford may copy, install and use one (1) copy of the Server Software on one (1)
Ford server computer, provided the server computer is either at a Ford location
or hosted by a third party service provider for the benefit of Ford.
B. eROOM CLIENT SOFTWARE. The Client Software may be installed on any
computer.
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C. USE LIMITATIONs. The Software may not be re-sold, sub-licensed, rented,
leased or transferred (except as expressly provided above). Access to the eRoom
Software (as a hosted service or in any other fashion, whether for fees or no
fees) will not be provided to any persons other than "Ford Users"(as defined
below). The Toolkit Software will be used by Ford or FAC employees, or Ford or
FAC hired consultants or other temporary non-employees, for as long as such
person is providing services directly to Ford or a FAC in support of Ford's or a
FAC's business purposes hired. The Software may not be used for any purposes
other than those described below.
D. USER ACCESS LICENSES AND FORD USERS. One User Access License (each, a "UAL")
is required for each individual person who will access the eRoom Software such
that the eRoom Software may be accessed by up to that specified number of
persons for whom Ford has acquired a UAL. Under this Agreement, Ford will
license UALs for use only by Ford Users.
One "Ford User" consists of: (i) one individual Ford or FAC employee, or (ii)
one individual Ford or FAC hired consultant or other temporary non-employee, for
as long as such person is providing services directly to Ford or a FAC in
support of Ford's or a FAC's business purposes, or (iii) one individual person
representing a Ford or FAC supplier, vendor, client or other third party that
has a business relationship with Ford or a FAC in direct support of Ford's or
FAC's business purposes, but only as long as such person is in such a business
relationship with Ford or FAC, and provided such person uses the Software only
in connection with Ford or FAC business purposes.
E. LICENSE STRING. *
. After the Initial Term, Instinctive will provide Ford with
sufficient License Strings to enable use by all authorized Ford Users. License
Strings cannot be used in any manner which would either permit access to the
eRoom Software by more than the number of Ford Users authorized by Instinctive,
or allow the Server Software to exist on more than the number of individual
server computers that the Ford is authorized by Instinctive to use. Unless
expressly agreed otherwise by Instinctive in writing, each License String may be
installed only one time, and may not be re-used, transferred or assigned (except
as set forth in the Agreement). Ford may be required to delete certain License
Strings upon receipt of upgraded or replacement License Strings.
G. TOOLKIT LICENSE TERMS. Ford may install and use as many copies of the Toolkit
as reflected on Attachment A to design, develop and test software applications
(the "Applications"), and Ford may provide Ford Users with access to
Applications, provided that all Applications run only in conjunction with eRoom
Software, and provided that Ford acknowledges that such Applications are not
warranted by Instinctive in any manner. Ford may copy and modify the Sample
Code, and may include such modified Sample Code as part of an Application,
provided such Applications will have the Instinctive copyright as appropriate.
Instinctive may, from time to time, release new versions of the Toolkit and/or
eRoom Software. A given version of the Toolkit will be compatible with the same
version of the eRoom Software (i.e., Toolkit 4.0 is compatible with eRoom 4.0).
It is a primary design goal of Instinctive to maintain Application Compatibility
from release to release. ("Application Compatibility" refers to ability of
existing application to continue to function with a new Software release).
* .
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F. ADDITIONAL RESTRICTIONS.
(1) Ford may not reverse engineer, decompile, or disassemble the Software,
except and only to the extent such activity is expressly permitted by applicable
law notwithstanding this limitation. (2) All copyrights, patent rights and other
intellectual property rights in and to the Software are owned by Instinctive or
its licensors. Ford may not remove any copyright, trademark or other proprietary
notices from the Software or the media.
(3) Ford is responsible for compliance with all applicable export or re-export
control laws and regulations if it exports the Software as allowed under this
Agreement.
2. TERM. The term of this license are set forth on ATTACHMENT A.
3. PERMISSION TO COPY. The Software and related documentation may be copied
by Ford in written or machine readable form in whole or in part for use in
understanding the Software, for backup or archive purposes and for purposes of
installation on authorized workstations, providing all use limitations in the
license grant section are complied with. Ford may use the Toolkit as intended by
the Toolkit user documentation to create Applications and integrate other
software programs that will run with the eRoom Software.. All copies of the
Software made by Ford will include any copyright and confidential property
notices included by Licensor in the Software.
4. CONFIDENTIALITY. (a) Ford will use reasonable care to prevent disclosing
to others trade secrets of Licensor that are identified by written notice and
embodied in the Software or related documentation for a period of two years
following termination or expiration of this Agreement. "Reasonable care" shall
mean that care which Ford normally uses to protect its own software of a similar
nature. Ford's obligations under this Paragraph will not apply to portions of
the Software and related documentation which were or become part of the public
domain, which are previously known to Ford, or which are independently developed
by Ford.
(b) Ford will not provide the Software and related documentation to
any person, other than Ford Users, without Licensor's prior written consent,
except during the period any such person is performing services for Ford
pursuant to a contract or purchase order with Ford.
5. INDEMNITY. Licensor warrants that the transfer to Ford and Ford's use of
the eRoom Software and eRoom User Documentation (both as originally provided by
Licensor) will not infringe any (a) US patent, or (b) copyrights or trade
secrets of any other entity. Licensor will defend Ford from any such
infringement claim, and will indemnify Ford (a) for expenses of defending
against such a claim including attorneys' fees, and (b) for damages made in
settlement or awarded against Ford resulting from a claim that the eRoom
Software and eRoom User Documentation infringe any of the above mentioned
rights, provided that Ford notifies Licensor in a timely fashion of such claim,
allows Licensor to direct the defense and settlement of such claim, and provides
Licensor with the authority, information and assistance that is reasonably
required for the defense and settlement of such claim. In the event a claim of
infringement is asserted, Licensor may replace or modify the Software to make it
non-infringing, provided that Ford agrees that such replacement or modification
achieves the substantive results of the original version of the Software, or
Licensor may procure at its expense a license for Ford to use the rights
allegedly infringed, or Licensor may terminate the license(s) at issue and:
(x) give Ford a refund of the license fee paid for the Software at issue
*
. Notwithstanding the above, Licensor will have no
liability for use of modified Software to the extent such modification resulted
in the claim. The remedies set forth in this Section 5 will be Ford's exclusive
remedy for any claims of infringement arising under this Agreement.
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6. OWNERSHIP. Ford acknowledges Licensor's representation that Licensor (or
Licensor's suppliers) owns the Software and the copyrights covering such
Software and Ford will not make any claim contrary to Licensor's ownership of
the Software.
7. WARRANTIES. The "Warranty Period" commences on the date of this
Agreement and expires ninety (90) days after Software is installed and is
running in the Ford Data Center, or September 30, 2000, whichever comes first.
Licensor warrants to Ford Motor Company that during the Warranty Period: (i) the
eRoom Software conforms substantially with all the eRoom User Documentation and
that the eRoom Software is compatible with and will operate on the computer
system described on Attachment A hereto, and (ii) the Toolkit conforms
substantially as described in the "Toolkit Programmer's Guide" and the Toolkit
"On-line Help, and (iii) that the eRoom Software will operate prior to, during,
and after the calendar year 2000 A.D., without error relating to date data,
specifically including but not limited to any error relating to calculations,
sorting, interpretation, processing or acceptance of date data which represents
or references different centuries or more than one century. Ford acknowledges
and agrees that Licensor does not warrant the Software for Year 2000 Compliance
in combination with other third party software, except to the extent that such
combination is warranted in Licensor's written specifications. During the
Warranty Period and upon Ford's request, Licensor will at no additional charge
to Ford: (x) correct promptly each non-conformance of the eRoom Software or
Toolkit from the above described specifications ,or (y) replace the
non-conforming eRoom Software or Toolkit with conforming eRoom Software or
Toolkit, or (z) to the extent the above may not be reasonably obtained, Licensor
may at its option, terminate the license only for the eRoom Software at issue or
the Toolkit at issue and refund the amount paid by Ford for the particular eRoom
Software or Toolkit license at issue. This warranty is void if the failure is
due to accident, abuse or use not in conformance with the applicable User
Documentation. To the extent the Software at issue is acquired as an upgrade
under Instinctive's Maintenance program, then any refund made will be based on
the portion of the then current Maintenance fee allocated to such upgrade. The
remedy set forth above will be Ford's exclusive remedy, and Licensor's exclusive
liability, for breach of the above warranty.
(b) Licensor warrants that any services rendered by Licensor will be
performed in a professional manner by qualified personnel.
(c) Licensor's warranties are limited to those set forth in this
Agreement and do not include any other express or implied warranties, including
implied warranty of merchantability and fitness for a particular purpose.
8. SUPPORT AND MAINTENANCE. Licensor will provide Ford with updates,
enhancements, modifications or changes to the Software which are available from
Licensor for customers on Maintenance while Ford is purchasing the maintenance
and support services specified on Attachment A, all of which will be deemed to
be "Software" licensed under the terms hereof. In addition, Licensor will
provide the maintenance and support services as specified on Attachment A
hereto.
9. YEAR 2000 COMPLIANCE WARRANTY. This section was moved to Section 7.
10. WAIVER OF LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE
USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO
PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
EXCEPT IN THE CASE OF AN INFRINGEMENT UNDER SECTION 5, IN NO EVENT WILL
LICENSOR'S ENTIRE CUMMULATIVE LIABILITY TO ALL PARTIES UNDER ANY PROVISION OF
THIS AGREEMENT EXCEED THREE TIMES THE AMOUNT ACTUALLY PAID BY FORD TO LICENSOR
UNDER THIS AGREEMENT.
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11. DISCONTINUANCE. The Licensor is in the process of establishing a third
party source code escrow arrangement with a nationally (US) recognized software
escrow agent (estimated to be completed in Q1 2000) in order to lodge source
code for the Software with such agent for the benefit of certain of Licensor's
customers. Licensor agrees that when such an arrangement is in place, Ford will
have the option of becoming a beneficiary of such arrangement. Instinctive will
pay for any escrow fees related to the escrow as long as Ford continues to
purchase Maintenance.
12. TERMINATION.
(a) Ford may terminate this Agreement for no cause upon written notice
furnished to Licensor no less than 30 days prior to the date of
termination specified in such notice, provided that Ford will be
required to pay to Instinctive all Maintenance fees outlined in
Attachment A which remain unpaid on the date of termination.
(b) Ford may terminate this Agreement for a material breach by Licensor of
the Maintenance and Services terms and conditions of this Agreement
upon written notice to Instinctive, which is given no less than 30
days prior to an effective date of termination, and which specifies
the nature of such breach and measurable actions required to cure such
breach. If Instinctive cures such breach prior to the effective date
of termination, this Agreement shall not terminate and will continue
in full force and effect. To the extent Instinctive does not cure a
breach, Ford will promptly inform Instinctive of such fact such that
Instinctive will have a further opportunity to cure. Upon a
termination for breach, Ford will be entitled to receive a refund for
any prepaid Maintenance or Services fees corresponding to services not
yet provided as of the termination date.
(c) Ford's rights to refund of any Software fees shall be limited to
refunds allowed under the warranty terms for such Software. Except in
the event Instinctive terminates a license granted hereunder under a
warranty refund or infringement claim as allowed by the Agreement in
which case the license at issue will be terminated, after termination
of this Agreement Ford may continue to use all Software licenses
granted hereunder provided all license grant restrictions are complied
with.
(d) Licensor may terminate this Agreement only for a material breach by
Ford of the terms and conditions of this Agreement upon written notice
to Buyer, which is given no less than 30 days prior to an effective
date of termination, and which specifies the nature of such breach and
measurable actions required to cure such breach. If Ford cures such
breach prior to the effective date of termination, this Agreement
shall not terminate and will continue in full force and effect. To the
extent Ford does not cure a breach, Instinctive will promptly inform
Ford of such fact such that Ford will have a further opportunity to
cure.
(e) To the extent Licensor terminates this Agreement with respect to any
particular FAC, the Agreement will continue in effect relative to all
other parties, and Ford agrees that such terminated FAC will no longer
be granted access to the Software.
13. ENTIRE AGREEMENT. Instinctive may assign this Agreement in the event of
a merger, acquisition or other similar event provided the surviving or acquiring
entity agrees to be bound by the terms of this Agreement. The terms and
conditions of this Agreement, together with the terms and conditions set forth
on Attachment A hereto, constitute the entire Agreement between Ford and
Licensor with respect to license of the Software licensed under the license
terms of this Agreement, and the support of such Software, and the services
described on Attachment A. This Agreement shall be governed by the laws of
Ford's principal place of business without regard to the conflict of laws
provisions thereof, and all litigation on contractual clauses will be brought
only in a court of appropriate jurisdiction in that location. For Ford Motor
Company, a Delaware corporation, and any U.S. subsidiary, joint venture or other
operation located in the U.S., the principal place of business will be deemed to
be Michigan.
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Agreed and accepted by:
INSTINCTVE TECHNOLOGY, INC. FORD MOTOR COMPANY
By: /s/ Eric Fischer By: /s/ Gregory R. Holowicki
-------------------------- ---------------------------------
Gregory R. Holowicki
-------------------------- ---------------------------------
Its: Vice President, Sales
------------------------- ---------------------------------
Its: Its: Purchasing Specialist, Licensed
------------------------- Software ____
Date: Date:
------------------------- -------------------------------
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ATTACHMENT A
DESCRIPTION OF SOFTWARE: eRoom software Version 4.1 and Toolkit software Version
4, and including all updates and upgrades provided to Ford under Maintenance.
Effective upon execution of this Agreement, Ford places an order for the
following Software, Maintenance, and Services, all subject to the license and
other terms of this Agreement, for the fees noted in the table below which fees
are due and payable to Instinctive upon the dates noted in the table below. For
purposes of the table below, Year 1 will commence on the date this Agreement
becomes effective, with Years 2 and 3 commencing on the first and second
anniversaries of the effective date of this Agreement.
------------------------------------------------------------------------------------------------------------------
Year 1 Year 2 Year 3 Total for Agreement
------------------------------------------------------------------------------------------------------------------
Software $ * $ * $ * $ *
------------------------------------------------------------------------------------------------------------------
Maintenance $ * $ * $ * $ *
------------------------------------------------------------------------------------------------------------------
Services $ * $ * $ * $ *
* * *
------------------------------------------------------------------------------------------------------------------
Total: $ * Total: $ * Total: $ * Total: $5,258,000
Total Fees:
* * * *
------------------------------------------------------------------------------------------------------------------
Software Notes:
1. For purposes of the above table, Software includes both eRoom and the
Toolkit.
2. INITIAL LICENSE TERM. The Initial License Term consists of the three
(3) years from the effective date of this Agreement. During the
Initial License Term, Ford is granted the following licenses: (1) *
eRoom Server Licenses, (2) * eRoom User Access Licenses for Ford
Users; and (3) * Toolkit licenses.
3. TRUE-UP. The "Ford Count" consists of all of the Ford Users authorized
to access the Software (i.e., all User Access Licenses in existence)
determined prior to the end of the Initial Term (but no earlier than
45 days before the end of the Initial Term). The "Spin-Off Count"
consists of all User Licenses allocated to Spin-Offs (as provided in
Paragraph 4 below). The Ford Count plus the Spin-Off Count is referred
to as the "True Up Number". Prior to the end of the Initial Term, Ford
will report the True-Up Number to Instinctive (including a break-out
between the Ford Count and the Spin-Off Count and including names of
the Spin-Off entities ) and a Ford purchasing agent will certify to
Instinctive in writing that the True-Up Number represents all Ford
Users authorized to access the Software and all User Licenses
allocated to Spin-Offs.
4. SPIN-OFFS. A "Spin-Off" refers to a division of Ford or any FAC that
during the Initial Term becomes less than 50% owned by Ford. During
the Initial Term, Ford may allocate eRoom Servers and a specific
number of User Access Licenses to any such Spin-Off, and the license
for such Software will be fully paid and perpetual in term provided
that
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the Spin-Off and Instinctive will agree to mutually acceptable license
terms which will apply to such Software. To the extent the Spin-Off
wishes to purchase additional UALs or Maintenance, it will need to
make such purchases directly from Instinctive. During the period of 90
days after the Spin-Off becomes less than 50% owned by Ford,
Instinctive will offer such Spin-Off the following prices: $ * /UAL,
and $ * /annual Maintenance per each UAL. Except as set forth in this
Paragraph, Spin-Offs will have no rights under this Agreement.
5. GUARANTEED NUMBER. It is the intent of the parties that the Software
Fee described in the table above includes a perpetual royalty free
license for Ford for * User Access Licenses (less the number of User
Access Licenses allocated to Spin-Offs, if any). This number is
referred to as the "Guaranteed Number."
6. FORD COUNT LESS THAN GUARANTEED NUMBER. If the Ford Count is less than
the Guaranteed Number, then Instinctive agrees that Ford is entitled
to receive (free of charge) User Access Licenses equal in number to
the difference between the Ford Count and the Guaranteed Number. At
the time of True-Up, Ford will be provided with a License String for
such difference. .
7. FORD COUNT GREATER THAN GUARANTEED NUMBER. If the Ford Count is
greater than the Guaranteed Number, then Instinctive will invoice Ford
for User Access Licenses equal in number to the difference between the
Ford Count and the Guaranteed Number, at $ * per User Access License.
Instinctive will guarantee the $ * price only for a one-time purchase
made at the True-Up time, and Ford may purchase User Access Licenses
in excess of the Guaranteed Number at such time at the $ * price. All
such User Access Licenses will be licensed under the license terms of
this Agreement.
8. PERPETUAL LICENSE TERM. The Perpetual License Term commences upon
termination of the Initial License Term and is perpetual. During the
Perpetual License Term: (a) Ford may continue to copy and use *
eRoom Server Software acquired by Ford during the Initial Term; (b)
Ford may continue to use up to the Guaranteed Number of User Access
Licenses for Ford Users (including any User Access Licenses paid for
under Paragraph 7 above, if any), and (c) Ford may continue to use *
Toolkit licenses acquired by it during the Initial Term.
9. FUTURE PURCHASES OF UALS. During the Perpetual License Term, Ford may
purchase additional UALs for then current or negotiated terms and
prices.
10. USE RESTRICTIONs. During the Initial and Perpetual License Terms, the
license usage restrictions described in the Agreement continue to
apply.
Maintenance Notes
1. Ford has the option to renew Maintenance beyond the three year term of
this Agreement. For UALs purchased at the True-Up time, Instinctive
will provide Ford with the same per UAL annual Maintenance cost as
provided during Year 3 (i.e, $ * per UAL). For all UAL's acquired by
Ford prior to the end of the Initial Term (including those purchased
during the True-Up), Instinctive agrees that, as long as Ford
continues to purchase Maintenance for at least the Guaranteed Number
of User Access Licenses, Instinctive will not increase such per UAL
Maintenance fee by more than * % from year to year. Maintenance for
any additional UALs acquired after True-Up time will be at then
negotiated prices.
2. Maintenance is provided under the Maintenance terms described below.
3. Maintenance includes technical support and upgrades for the Toolkit
product as well as the eRoom Software.
Services Notes
1. For purposes of the above table, one "Consultant" is equivalent to
approximately 250 days (based on 50 working weeks per year) of
consulting services/year, and one "TAM" is equivalent to approximately
250 days (based on 50 working weeks per year) of Technical Account
Manager services/year. The specific consulting and TAM services to be
provided by Instinctive and schedule of such Services will be
determined by mutual consent of the parties from time to time to
enable Instinctive to address the then current needs of Ford.
Reasonable travel expenses of the Consultants and TAM to Ford will be
paid by Ford provided lodging, food and transportation will not exceed
$150 per day per person. Air transportation will be reimbursed at
coach rates. Expenses above these limits must be approved by a Ford
manager. Ford and Instinctive will each designate one individual to
represent them in the management of such services. Instinctive will
determine the identity of the individuals assigned, and such
individuals may be employees or contractors of Instinctive. Ford will
have the right to request reassignment of any such individuals for
reasonable purposes.
2. While on Ford premises, Instinctive personnel will comply with Ford's
reasonable rules and regulations regarding protection of persons and
property.
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3. During the time any Services are being provided under this Agreement
and for a period of twelve (12) months thereafter, Ford may not
directly solicit any employee of Instinctive who provided any of the
Services without consent of Instinctive.
4. The parties agree that the services currently contemplated by this
Agreement will include two categories of services: development of
customized software code according to specifications to be provided by
Ford ("Development") and general consulting, advice, assistance and
training services ("General Consulting").
5. Regarding Development work, the parties agree to promptly develop one
or more Statements of Work which will specify specifications,
schedules and other matters relative to Development work, including a
description of work product to be delivered to Ford (a "Deliverable").
Unless otherwise agreed to in a Statement of Work, the parties agree
as follows: (a) Ford will own the Deliverable (except for any
pre-existing Instinctive intellectual property and all derivative
works of such pre-existing materials resulting from the Development
work, even if such materials are incorporated into a Deliverable,
provided that Instinctive grants Ford an irrevocable, paid up,
worldwide, non-exclusive license to use such pre-existing Instinctive
intellectual property as part of the Deliverable); (b) Ford shall
retain ownership of all pre-existing Ford trade secret or proprietary
information; (c) Instinctive will own all generally applicable or
re-usable concepts and ideas resulting from the Development work
(provided that Instinctive grants to Ford an irrevocable, paid up,
worldwide, non-exclusive license to use such concepts and ideas); and
(d) Ford grants to Instinctive an irrevocable, paid up, worldwide,
non-exclusive license to use, reproduce, further develop, and license
the generally applicable or re-usable code resulting from the
Development work (providing Instinctive will have no rights to any
pre-existing Ford trade secret or proprietary information),
* .
6. Regarding the General Consulting work, Instinctive or its suppliers
own all copyright and other intellectual property rights in all
templates, documents, software programs, and other materials which are
delivered to Ford under the Services. Instinctive grants Ford a
non-exclusive royalty free license under copyright to use and copy the
materials provided by Instinctive only for purposes of supporting
Ford's authorized use of the Software. Nothing in this Paragraph 6 is
intended to change the allocation of rights set forth in Paragraph 5
with respect to Development work.
TERM OF LICENSE: The Initial License Term has a term of three (3) years from the
date of this Agreement. Thereafter, the Perpetual License Term is perpetual.
(See above License Grant Restrictions)
CHECK ALL THAT APPLY
COMPUTER SYSTEM OR SITE:
---------
GLOBAL LOCAL/WIDE AREA NETWORK
---------
Ford's use of the Software is not limited to any specific system,
site or network, provided that Server Software will only be
installed on servers located at Ford or FAC facilities, or at the
facilities of third party entities under contract with Ford or FAC
to host such servers on behalf of Ford or FACs for Ford or FAC
business purposes.
For purposes of the Software warranty provided in the Agreement, the eRoom
Software (Version 4.1) will operate on the following hardware/software:
eRoom Version 4.1 Server System Requirements:
Recommended
300 MHz Pentium
256 MB RAM
300 MB or more of free disk space
Minimum
200 MHz Pentium
128 MB RAM
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200 MB of free disk space
Software
Windows NT 4.0 Server or Workstation (with SP4 or SP5)
Microsoft IIS/PWS 4.x for Windows NT
eRoom Version 4.1 Client System Requirements:
Recommended
133 MHz Pentium
64 MB RAM
100 MB free disk space
Minimum
100 MHz Pentium
48 MB RAM
75 MB free disk space
Windows 95 (with SP1 or OSR2) or NT 4.0 Workstation (with
SP4 or SP5)
PLUG-IN MODE:
Netscape: 4.08, 4.51 or higer
Microsoft Internet Explorer: 4.01, 5
BROWSER-ONLY MODE
Netscape Navigator/Communicator 3.X or 4.x
Microsoft Internet Explorer 3.x or 4.x or 5.x
INSTALLATION:________Performed by Ford
________Performed by Licensor
Installation services may be provided as part of the Services, and will be
determined by mutual agreement of the parties.
MAINTENANCE SUPPORT PROVIDED BY LICENSOR:
A. Instinctive will provide to Ford the Maintenance Services ("Maintenance")
ordered above, under the following terms. For purposes of this Section,
Maintenance consists of "Technical Support" and "Upgrades". Maintenance may be
provided by Instinctive employees or other Instinctive authorized parties,
provided all of the terms of this Agreement will be complied with.
B. TECHNICAL SUPPORT. Technical Support for the Software consists of unlimited
telephone support, available during Instinctive's Standard Technical Support
Hours listed below and unlimited electronic support via WWW.INSTINCTIVE.COM
(electronic support requests can be made at any time and will be addressed
during Instinctive's Standard Technical Support Hours). Reasonable changes may
be made to the following Standard Technical Support Hours with prior notice. The
Standard Technical Support Hours are:
Location: Instinctive Help Desk, Cambridge, MA
Hours: 9:00 am-9:00 PM. Eastern Time, Mon. -Fri.,
excluding holidays.
Telephone: (617) 497-6300 x6
Fax: (617) 497-5055
e-mail: support@instinctive.com
Language: English
web: HTTP://WWW.INSTINCTIVE.COM/SUPPORT
----------------------------------
Holidays are published at HTTP://WWW.INSTINCTIVE.COM/SUPPORT
----------------------------------
C. DESIGNATED CONTACTS. Ford will designate up to three named individual Ford
employees (the prime contacts), and two named
<PAGE> 11
5
individual Ford employees to serve as backup contacts (the backup contacts) for
each prime contact (for a total of nine named Ford contacts, referred to as the
"Ford Designated Contacts") All such Ford Designated Contacts will be the only
persons authorized to contact Licensor for Software Technical Support on behalf
of Ford. The backup contacts will serve to contact Technical Support to the
extent the prime contacts are not available. Ford can change the identity of the
Ford Designated Contacts at any time by notifying Licensor at
CUSTOMERSERVICE@INSTINCTIVE.COM. Notwithstanding the above, from time to time
and as needed, Ford may designate up to five named individual FAC employees (the
prime contacts), and two named individual FAC employees to serve as backup
contacts (the backup contacts) for each prime contact (for a total of fifteen
named FAC contacts, referred to as the "FAC Designated Contacts") Such FAC
Designated Contacts will be the only persons authorized to contact Licensor for
Software Technical Support directly on behalf of an FAC. The backup contacts
will serve to contact Technical Support to the extent the prime contacts are not
available. Ford or the FAC can change the identity of the FAC Designated
Contacts at any time by notifying Licensor at CUSTOMERSERVICE@INSTINCTIVE.COM.
D. UPGRADES. While under Maintenance, Ford will receive via electronic download
all Software upgrades and new releases which are made generally available while
Ford is covered by Maintenance, at no additional charge. Maintenance does not
entitle Ford to receive upgrades or releases of any Instinctive software
products which are not Software.
E. Software is eligible for Maintenance only as long as the Software is
unmodified, and the license for such Software has not been terminated.
Maintenance does not include: (a) installation or maintenance of applications or
devices external to the Software or (b) any services required due to Ford
negligence, unauthorized modification, combination of the Software with other
software, or other causes external to the Software.
F. Ford will maintain the installation site in accordance with the environmental
and other specifications of the equipment on which the Software runs. If
necessary and with Ford's prior consent, Ford will allow Instinctive remote
access to the Software to enable Instinctive to perform remote diagnosis/problem
resolution. The parties agree that any business or other information of the
other party which may be received or otherwise accessed during the course of
providing either Maintenance or Services shall be treated as Confidential
Information of the other party, and shall not be used or disclosed for purposes
other than resolving the technical problem at hand and/or performing the
Services purchased by Ford.
ADDITIONAL TERMS AND CONDITIONS:
MARKETING. Instinctive agrees that any public statements made by Instinctive
that directly or indirectly relate to the terms of this Agreement will be in
accordance (and approved prior and consistent) with Ford's Public Affairs
Guidelines (attached as Attachment C). Ford agrees that any public statements
made by Ford that directly or indirectly relate to the terms of this Agreement
will require approval by Instinctive prior to release.
INSTINCTIVE TECHNOLOGY, INC. FORD MOTOR COMPANY
By: /s/ Eric Fischer By:
---------------------------------- ---------------------------------
Gregory R. Holowicki, 4732
---------------------------------- ---------------------------------
Its: Vice President, Sales Its: Purchasing Specialist, Licensed
--------------------------------- Software & Dev._____
Date: Date:
--------------------------------- -------------------------------
<PAGE> 12
6
Attachment B
[attach FAC list]
<PAGE> 13
7
Attachment C
PUBLICITY/ADVERTISING GUIDELINES
PUBLICITY AND ADVERTISING MATERIALS WHICH REFER TO FORD MOTOR COMPANY, ITS
PRODUCTS OR FACILITIES, SHOULD BE CAREFULLY REVIEWED TO ENSURE THAT THEY DO NOT
BREACH ANY CONFIDENTIALITIES OR CAUSE FORD EMBARRASSMENT. AT FORD, CAREFUL
CONSIDERATION IS GIVEN TO THE EXTERNAL RELEASE DATES OF ANY INFORMATION THAT
MIGHT GIVE A COMPETITOR AN ADVANTAGE. CONSEQUENTLY, IT IS VITAL THAT NO
INFORMATION CONCERNING FORD BE DIVULGED BY SUPPLIERS THAT MAY PREEMPT THE
COMPANY'S OWN ANNOUNCEMENTS.
WHILE CREATIVITY SHOULD NOT BE STIFLED, YOUR COOPERATION IN CHECKING YOUR
MATERIAL AGAINST THE FOLLOWING GUIDELINES IS APPRECIATED:
- No reference to Ford future product programs, disclosing information on
timing plans that may not be in the public domain or product code names
(e.g. CDW-27, Sigma) should be made.
- There may be no implication that the supplier is the sole provider of that
part.
- The value of contracts may not be quoted.
- No reference may be made to any program costs at Ford, speculated or
otherwise.
- Ford personnel may not be quoted, nor identified by name.
- There should be no implication of a special relationship with Ford.
Specifically, use of Ford advertising slogans, paraphrased or otherwise, is
not permitted, as is use of Ford trademarks. Phrases mentioning Ford or its
products (used with or without photographs of Ford products), which give
the impression that Ford endorses the suppliers' goods or that supplier is
the sole source of such products to Ford, are not permitted.
- All statements concerning Ford must be factually correct. No claims should
be made as if emanating from Ford.
- The correct Ford company name should be used. Note that references to
suppliers trading with 'Ford of Europe' will not be correct, since Ford of
Europe Incorporated is a coordinating body, not a trading company. The
publicity should either refer specifically to the local Ford national
company (e.g. Ford Motor Company, Ford Motor Company Ltd, Ford-Werke AG) or
generally to 'Ford.'
- The Ford logo is not to be used by suppliers unless under exceptional
circumstances (i.e. joint projects, where there is benefit to Ford in
having the logo displayed). These exceptional circumstances will be judged
by the Corporate Advertising Office (Detroit, Michigan). Use of Ford
location photographs must be approved by Ford in advance.
- Any supplier wishing to display Ford, Lincoln, Mercury, Jaguar,
Aston-Martin or Motorcraft branded parts at exhibitions should, after
having first obtained Ford's permission, display the item with the words
"This component is displayed with permission of Ford Motor Company. We
cannot supply this component to anyone other than Ford Motor Company
without specific authorization."
Q1 AND TQE REFERENCES
- The Q1 logo and flag is awarded to a specific manufacturing site. The use
of the Q1 logo on stationery or for advertising purposes in any way that
implies a Company-wide award is not permitted. The flying of the Q1 flag at
any location other than the specific manufacturing site the award was
presented to is not permitted. Any use of the Q1 logo or flag must clearly
show that the award was manufacturing site specific.
- The TQE Award is given to a company or business providing a product to Ford
customers, including all Ford facilities. TheTQE is a company-wide award
and may be advertised as such. It may not, however, be advertised by
affiliates or partners of the company or business receiving the award.
Having ensured that your proposed publicity/advertisement meets these
guidelines, please submit materials to the address below for Ford Motor Company
review and approval. With your material, include the name of your
commodity/central buyer and copy the commodity/central buyer on your submission.
MAILING ADDRESS FOR ADVERTISING SUBMISSION MAILING ADDRESS FOR PUBLICITY SUBMISSION
------------------------------------------ ----------------------------------------
Ford Motor Company Ford Motor Company
300 Renaissance Center, Room 2333 P.O. Box 1587
<PAGE> 14
8
P.O. Box 437703 Phone: 313/396-2944 Maildrop 624, QMP Bldg. Phone: 313/322-1270
Detroit, MI 48243 Fax: 313/396-2883 Dearborn, MI 48121 Fax: 313/594-4385
Page 1 of 3
PUBLICITY, ADVERTISING AND EXHIBITION OF FORD PARTS
The Terms and Conditions for Production Parts and Materials obliges suppliers
(and their sub suppliers to abide by Ford's Publicity/Advertising Guidelines
which cover publicity, advertising (in any form), use of Ford logos and/or
trademarks and display of branded materials at exhibitions.
The terms and conditions require that suppliers approach the Ford Corporate
Advertising Department to obtain authorization for their advertising and/or
proposed display of Ford parts and the Manufacturing Public Affairs Department
to obtain authorization for Ford-related publicity. Copies of the material will
also be submitted to the supplier's commodity/central buyer for confirmation of
content accuracy.
The following describes the routine for transmission and approval of requests
received.
GLOBAL TERMS AND CONDITIONS REFERENCE
19. ADVERTISING
"ANY REFERENCE TO BUYER OR ANY OF ITS ASSOCIATED COMPANIES OR USE OF
BUYER'S TRADEMARKS OR LOGOS BY SELLER IN SELLER'S ADVERTISING OR PUBLICITY
MATERIALS WILL COMPLY WITH PUBLICITY AND ADVERTISING GUIDELINES WHICH ARE
AVAILABLE FROM THE CORPORATE ADVERTISING DEPARTMENT."
ROUTINE FOR CIRCULATION (TO ALL BUYERS)
All publicity/advertising materials submitted to the media by suppliers must
conform to Publicity/Advertising Guidelines previously circulated to suppliers
as part of the Terms and Conditions. Suppliers are required to refer any
proposed advertising or news release materials to the Ford Corporate Advertising
or Ford Manufacturing Public Affairs departments, with copies to the
Commodity/Central Buyer. Additionally, all requests to exhibit parts must be
submitted to Corporate Advertising and written Company approval must be issued
in advance.
FORD COMMODITY/CENTRAL BUYER'S RESPONSIBILITIES ARE:
1. To confirm content accuracy of supplier submission.
2. To forward the request to the Corporate Advertising or Manufacturing Public
Affairs departments (USA) with a completed "Advertising/Exhibitions" notice
(annotated) to provide:
a) Acceptance or Rejection
b) Comments to assist Corporate Advertising/Manufacturing Public
Affairs
c) Causes/reasons for rejection (where appropriate)
TIMING: Two (2) weeks max.
MANUFACTURING PUBLIC AFFAIRS/CORPORATE ADVERTISING WILL:
1. Validate all text and exhibitions proposals against latest guidelines.
2. Refer items, as appropriate, to other activities of the Company.
3. Respond to suppliers/suppliers' agents on a timely basis -- including
interim explanations of delay if more than 14 days have elapsed since first
request.
4. Where appropriate, reinforce buyer rejection with further copy of
guidelines to assist supplier in future actions.
OTHER COMPANY ACTIVITIES WILL:
Act as requested by Manufacturing Public Affairs/Corporate Advertising on a
timely basis.
<PAGE> 15
9
PUBLICITY/ADVERTISING/EXHIBITION NOTICE
Date:
-------------------------------------------------------
To: Corporate Advertising/Manufacturing Public Affairs
The attached document is referred to you for action:
[ ] News release
[ ] Advertisement
[ ] Exhibition request
[ ] Other -- Please provide detail:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
The details are:
[ ] Correct and have received clearance.
or
[ ] Incorrect and:
[ ] should be amended as indicated on document attached
before approval.
or
[ ] should be rejected/returned to supplier/agent (provide
reason below).
Additional Comments:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Cause of Rejection (if applicable):
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Signed:
------------------------------
PROFS ID: Telephone:
---------------------------- -----------------------