Software License Agreement - Sybase Inc. and First Virtual Holdings Inc.
SYBASE SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT is made between Sybase, Inc., a
Delaware corporation, and its majority owned direct and indirect subsidiaries
(collectively, "Sybase"), with offices at 6475 Christie Avenue, Emeryville, CA
94608; and FIRST VIRTUAL HOLDINGS INCORPORATED ("Customer") with offices at
11975 El Camino Real, San Diego, CA 92130.
1. DEFINITIONS
"Agreement" - this Software License Agreement, the Exhibit A and any other
addenda attached hereto, each supplemental Exhibit A signed by both parties,
and each Purchase Order. "Documentation" - installation instructions and user
manuals. "Machine" - a hardware system with any number of processors running a
single copy of the operating system on which the Sybase software is running;
except in the case of SYBASE MPPTM, in which case a Machine is a cluster of
Machines linked together through a high speed interconnect. "Named User" - a
specific named person licensed to Use a Program. "Operating System Software" -
the operating system software listed in the Exhibit A or Purchase Order
applicable to the relevant copy of the Program. "Price List" - Sybase's then
current price list for the country in which the Program is to be Used. "Primary
Copy" - a licensed copy of the Program provided by Sybase, which may have been
provided initially as a trial copy. "Program" - the object code version of the
software product(s) listed in the Exhibit A or Purchase Order, together with
all data files included by Sybase. "Purchase Order" - a purchase order or other
purchase authorizing document issued by Customer for Sybase products and/or
services and accepted by Sybase, as confirmed by a Sybase invoice. "Seat" - a
specific identifiable unique accessor of information such as a terminal, PC,
single user workstation or real time device. "Secondary Copy" - a licensed copy
of the Program reproduced by Customer from the Primary Copy. "Use" - to load,
utilize, or store the Program.
2. LICENSE
2.1 Sybase grants to Customer, solely for Customer's own internal business
purposes, a non-exclusive, nontransferable, perpetual, fully paid license to
Use each Primary Copy (and make and Use each Secondary Copy) on one Machine
running the Operating System Software at the site specified on the Exhibit A or
Purchase Order. If such license is designated as a Networked License, each copy
of the Program may be accessed by any and all Seats or Named Users that are
licensed to access such Program subject to the following restrictions: (i)
Workplace Seats and Workplace Named Users licensed to access a particular
Program may only access the Workplace level of such Program, and (ii)
Enterprise Seats and Enterprise Named Users licensed to access a particular
Program may access the Workplace and Enterprise levels of such Program.
Accordingly, Seats and Named Users in a Networked License are not tied to a
particular copy of the Program. Use of software or hardware which reduces the
number of Seats directly accessing the Programs (sometimes called
"multiplexing" or "pooling") does not reduce the number of Seats required to be
licensed, but rather the number of licensed Seats must be equal to the number
of distinct inputs to the multiplexing software or hardware. If the license is
designated as a Standalone Named User License, the Program may be Used only by
one Named User, but such Named User may copy and Use such Program on more than
one Machine. If the license is designated as a Standalone Seat License, the
copy of the Program may only be accessed by the Machine on which it resides. A
license for a copy of a Program will allow Customer to Use the indicated
version or instead any earlier version for which Customer already has a Primary
Copy. If Customer's Support plan entitles Customer to updates (i.e., new
versions of the Program), the license shall also extend to each new version
provided. If a Run-Time Program is licensed, the Program may only be Used to
run Customer's applications but cannot be Used to (i) develop or modify
applications, or (ii) perform other programming tasks.
2.2 Customer may make a reasonable number of copies of each Program
exclusively for inactive back-up or archival purposes.
2.3 The Program and all copies (in whole or in part) shall remain the
exclusive property of Sybase and its licensors. Customer shall not modify,
reverse engineer, reverse assemble or reverse compile any Program or part
thereof, except Customer may modify data file portions of the Program as
described in the user manuals. Customer shall not Use the Program in a service
bureau or time-sharing arrangement nor distribute, rent, lease or transfer the
Program to any third party.
2.4 Upon Sybase's receipt of Customer's Purchase Order, Sybase shall
deliver the Primary Copy and one set of Documentation to Customer. Customer, at
its own expense, shall be responsible for installing the Program and all new
versions thereof.
2.5 For its own use, Customer may make copies of the Documentation
delivered by Sybase or may purchase copies at the prices in the Price List.
2.6 No more often than annually, Sybase may, upon reasonable notice and at
its expense, direct an accounting firm acceptable to Customer to audit during
business hours the number of copies of the Program in Use and the Number of
Seats and/or Named Users accessing the Programs. The auditors shall protect the
confidentiality of Customer's information and abide by Customer's reasonable
security regulations. If the use of the Program is found to be greater than
that contracted for, Customer will be invoiced for the additional copies,
Seats, Named Users or processors at the prices in the Price List.
2.7 Subject to acceptance by Sybase, consulting or educational service
provided to Customer will be subject to the terms of this Agreement unless
otherwise agreed in writing. Educational services are provided at Sybase
designated facilities.
3. PAYMENT
3.1 Payment is due to Sybase or its assigns within 30 calendar days after
the invoice date. Customer will pay all applicable shipping charges and sales,
use, personal property or similar taxes, tariffs or governmental charges,
exclusive of Sybase's income and corporate franchise taxes. Customer will
reimburse Sybase for all reasonable costs incurred (including reasonable
attorneys' fees) in collecting past due amounts.
3.2 Except with respect to specific Programs designated by Sybase, Customer
must purchase a technical support plan ("Support") for the first year for all
Programs licensed. Support commences on the date the Primary Copy is shipped to
Customer or on the date invoiced for Secondary Copies ("the Support Date"). Fees
for annual Support ("Support Fees") shall be paid in advance. Unless Support has
been purchased for such copies or new versions have been separately licensed, no
new versions of the Program will be provided to Customer for the Primary Copy
and no new versions may be copied by Customer to update Secondary Copies.
Support may be extended for one year periods on the anniversary of each Support
Date at the Support Fees shown in the Price List for as long as Sybase offers
Support. Customer may reinstate lapsed support for any then currently supported
Program by paying all Support Fees in arrears and all time and travel expenses
incurred in updating the Program to the current version.
4. SUPPORT AND TECHNICAL SERVICES
Provided Customer has paid applicable Support Fees, Sybase shall support the
Program as follows. Customer shall designate as technical support contacts that
number of Customer employees as are permitted under the level of Support
purchased. Each contact may telephone Sybase for problem resolution during
Sybase's published support hours corresponding to the level of Support Fees
paid. Upon notice from a contact of a Program problem (which problem can be
reproduced at a Sybase support facility or via remote access to Customer's
facility), Sybase shall use reasonable efforts to correct or circumvent the
problem. Sybase reserves the right to make Program corrections only in the most
current generally available version. For 12 months after the introduction of a
new generally available enhancement release, Sybase will use reasonable efforts
to support the previously released version of such Program. A Program may be
transferred to another site or operating system software only upon written
notice to Sybase and subject to Sybase's transfer policies and fees then in
effect. A Program may be transferred without cost or notice from one Machine to
another at the same site if the second Machine runs the same Operating System
Software as the first Machine. Sybase shall have no obligation to support the
Program (i) for Use on any computer system running other than the Operating
System Software, or (ii) if Customer modifies the Program in breach of this
Agreement. Only those versions of different cooperating Programs specified in
the Documentation will execute correctly together on a CPU or in a network.
Sybase has no obligation to modify any version of the Program to run with new
versions of the Operating System Software. If Customer purchases Support for
any Program in Use on a Machine or in a network, it must purchase the same level
of Support for all copies of such Program on such Machine or network.
5. CONFIDENTIALITY
5.1 "Confidential Information," which includes the Programs (including
methods or concepts utilized therein) and all information identified by the
disclosing party as proprietary or confidential, shall remain the sole property
of the disclosing party and shall not be disclosed to any third party without
the express written consent of the disclosing party (except solely for
Customer's internal business needs, to consultants who are bound by a written
agreement with Customer to maintain the confidentiality of such Confidential
Information in a manner consistent with this Agreement). Except with respect to
the Program, items will not be deemed Confidential Information if (i) available
to the public other than by a breach of an agreement with Sybase; (ii)
rightfully received form a third party not in breach of any obligation of
confidentiality; (iii) independently
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developed by one party without access to the Confidential Information of the
other; (iv) known to the recipient at the time of disclosure; or (v) produced
in compliance with applicable law or a court order, provided the other party is
given reasonable notice of such law or order. A copyright notice on a Program
does not, by itself, constitute evidence of publication or public disclosure.
Customer shall not release the results of any benchmark of the Programs to any
third party without the prior written approval of Sybase for each such release.
6. INFRINGEMENT INDEMNITY
Sybase at its own expense shall (i) defend, or at its option settle, any claim
or suit against Customer on the basis of infringement of any trademark,
copyright, trade secret or United States patent ("Intellectual Property
Rights") by the Program or Use thereof, and (ii) pay any final judgment entered
against Customer on such issue or any settlement thereof, provided (a) Sybase
has sole control of the defense and/or settlement; (b) Customer notifies Sybase
promptly in writing of each such claim or suit and gives Sybase all information
known to Customer relating thereto, and (c) Customer cooperates with Sybase in
the settlement and/or defense. (Customer shall be reimbursed for all reasonable
out-of-pocket expenses incurred in providing any cooperation requested by
Sybase.) If all or any part of the Program is, or in the opinion of Sybase may
become, the subject of any claim or suit for infringement of any Intellectual
Property Rights, Sybase may, and in the event of any adjudication that the
Program or any part thereof does infringe or if the Use of the Program or any
part thereof is enjoined, Sybase shall, at its expense do one of the following
things: (1) procure for Customer the right to Use the Program or the affected
part thereof; (2) replace the Program or affected part with other suitable
programs; (3) modify the Program or affected part to make it non-infringing; or
(4) if some of the foregoing remedies are commercially feasible, refund the
aggregate payments made by Customer for the Program or the affected part
thereof. Sybase shall have no obligations under this Section 6 to the extent a
claim is based upon (A) use of any version of the Program other than a
current, unaltered version, if infringement would have been avoided by a
current, unaltered version; or (B) combination operation or use of the Program
with software and/or hardware not delivered by Sybase if such infringement
could have been avoided by combination, operation or use of the Program with
other software and/or hardware. This Section 6 states the entire liability of
Sybase and the exclusive remedy of Customer with respect to any alleged
infringement by the Program or any part thereof.
7. PROPRIETARY NOTICES
The Programs and related documentation are proprietary and protected by
copyright and/or trade secret law. All proprietary notices incorporated in or
fixed to a Program or documentation shall be duplicated by Customer on all
copies of extracts thereof and shall not be altered, removed or obliterated.
8. WARRANTY/LIMITATIONS ON LIABILITY
8.1 For one year from the date of shipment of a version of the Program
to Customer, Sybase warrants that the version when properly Used will operate
in all material respects in conformity with the Documentation for such version,
and the Program media shall be free of defects. Customer's sole remedy in the
event of nonconformity of a Program at Sybase's option will be replacement of
the defective Programs or a refund of the license fees paid for the affected
Program.
8.2 NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE REGARDING THE
PROGRAM, GOODS OR SERVICES TO BE SUPPLIED HEREUNDER, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NO WARRANTY IS MADE REGARDING THE RESULTS OF ANY PROGRAM OR SERVICES
OR THAT ALL ERRORS IN THE PROGRAM WILL BE CORRECTED, OR THAT THE PROGRAM'S
FUNCTIONALITY WILL MEET CUSTOMER'S REQUIREMENTS. CUSTOMER ACKNOWLEDGES ITS
RESPONSIBILITY TO (I) REGULARLY BACK UP DATA MAINTAINED ON ANY COMPUTER SYSTEM
USING THE PROGRAM, AND (II) ADEQUATELY TEST PRIOR TO DEPLOYMENT EACH PRODUCTION
VERSION OF THE PROGRAM IN A CONFIGURATION WHICH REASONABLY SIMULATES CUSTOMER'S
PLANNED PRODUCTION ENVIRONMENT.
8.3 THE TOTAL LIABILITY, IF ANY, OF SYBASE AND ITS SUBSIDIARIES,
INCLUDING BUT NOT LIMITED TO LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF
WARRANTY, CLAIMS BY THIRD PARTIES OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED
THE LICENSE FEES PAID BY CUSTOMER FOR THE PROGRAM(S) WHICH GIVE RISE TO THE
CLAIM. SYBASE'S LICENSORS SHALL NOT BE LIABLE FOR DIRECT DAMAGES HEREUNDER, AND
NEITHER SYBASE NOR ANY OF ITS SUBSIDIARIES OR LICENSORS SHALL BE LIABLE FOR
LOSS OF PROFITS, LOSS OR INACCURACY OF DATA, OR INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9. TERMINATION
Sybase may terminate a license if Customer has not paid the license fees
therefor within 15 calendar days after written notice that payment is past due.
Either party may terminate this Agreement upon any other material breach of
this Agreement by the other party, which if remediable, has not been corrected
within 60 calendar days after written notice. On termination, all licenses
granted hereunder shall terminate. Customer shall cease Using the Program and
Documentation (whether or not modified or merged into other materials) and
Customer shall certify in writing to Sybase that all copies (in any form or
media) have been destroyed or returned to Sybase. Termination shall not relieve
Customer from paying all fees accruing prior to termination and shall not limit
either party from pursuing any other available remedies. Sections 5, 6, 8.2,
8.3, 9 and 10.3 shall survive termination of this Agreement.
10. GENERAL
10.1 Neither this Agreement nor any license hereunder may be assigned
(whether by operation of law or otherwise) by Customer without Sybase's prior
written consent, not to be unreasonably withheld.
10.2 This Agreement is the entire agreement of the parties and
supersedes all previous and contemporaneous communications, representations, or
agreements regarding the subject matter hereof. A facsimile of a signed copy of
this Agreement received from Customer may be relied upon as an original and if
there is any inconsistency between such facsimile and a subsequently received
hard copy, the facsimile shall prevail. This Agreement may be modified only in a
writing signed by both parties. Purchase Orders shall be binding as to: the
products and services ordered, fees therefor and the site for installation or
performance of services as set forth on the face side of or a special
attachment to the order. Other terms and preprinted terms on or attached to any
Purchase Order shall be void.
10.3 Customer shall not transfer, directly or indirectly, any
restricted Programs or technical data received from Sybase or its subsidiaries,
or the direct product of such data, to any destination subject to export
restrictions under U.S. law, unless prior written authorization is obtained
from the appropriate U.S. agency.
10.4 No delay or default in performance of any obligation by either
party, excepting all obligations to make payments, shall constitute a breach of
this Agreement to the extent caused by force majeure.
10.5 All notions relating to this Agreement shall be in writing and
delivered by overnight delivery service or first class prepaid mail with return
receipt requested, to the address of such party specified above (in the case of
Sybase to the attention of its General Counsel) or the address specified by
such party in accordance with this Section.
10.6 If this license is acquired under a U.S. Government contract, Use,
duplication or disclosure by the U.S. Government is subject to restrictions set
forth in FAR subparagraphs 52.227-19(a)-(d) for civilian agency contracts and
DFARS 252.227-7013(c)(ii) for Department of Defense contracts. Sybase reserves
all unpublished rights under the United States copyright laws.
10.7 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS
OF THE STATE OF CALIFORNIA EXCLUDING ITS CONFLICT OF LAWS RULES. IT SHALL NOT
BE GOVERNED BY THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF
GOODS, THE APPLICATION OF WHICH IS EXPRESSLY EXCLUDED. CUSTOMER SUBMITS TO THE
JURISDICTION OF THE STATE AND FEDERAL COURTS FOR THE COUNTY OF ALAMEDA WITHIN
THIS STATE OF CALIFORNIA. If any provision of this Agreement is held to be
unenforceable, the parties shall substitute for the affected provision an
enforceable provision which approximates the intent and economic effect of the
affected provision. The failure or delay by either party to enforce any term of
this Agreement shall not be deemed a waiver of such term.
The parties have caused this Agreement to be executed by their respective
authorized representatives.
SYBASE, INC:
By:
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(Authorized Signature)
Name:
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Title:
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Date:
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CUSTOMER:
By: John M. Stachowiak
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(Authorized Signature)
Name: John M. Stachowiak
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Title: V.P. Finance & Administration & CFO
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Date: 3/19/97
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ADDENDUM TO SOFTWARE LICENSE AGREEMENT
This Addendum ("Addendum") entered into on March 19, 1997, supplements and
amends the terms of the Software License Agreement ("Agreement") dated of even
date herewith between Sybase, Inc. ("Sybase") and First Virtual Holdings
Incorporated ("Customer"). Capitalized terms not otherwise defined herein
shall have the meaning set forth in the Agreement. In the event of a conflict
between this Addendum and the Agreement, the terms and conditions of this
Addendum shall prevail.
1. In consideration of the license rights described below, Customer agrees
to pay to Sybase the non-refundable sum of $130,576.57 as set forth on Exhibit
A dated February 25, 1997 (the "Relevant Exhibit A"), of which $82,000
represents the Sybase net license fee for a "Site License" as described in
Paragraph 2 below ("Site License Fee"), $18,000 is the first year's Sybase
Standard Support Fees for the Programs included in the Site License, $27,486.60
is the license fee for all other Sybase Programs ("Additional Programs")
specified on the Relevant Exhibit A and $3,089.97 is the first year's Standard
Support Fees for the Additional Programs.
2. The Site License grants Customer the right to make and deploy within
the United States for Customer's internal Use in any combination. Secondary
Copies from the Primary Copies of the SQL Server, Replication Server, Open
Server, SQL Server Monitor, Replication Server Manager and Open Client/C
Programs ("Site License Programs") licensed by Customer on the Relevant Exhibit
A. Customer may make and deploy such Secondary Copies of the Site License
Programs until March 1, 1998 ("Deployment Period"). At the end of the
Deployment Period, Customer shall have no further rights to make or deploy any
Secondary Copies of the Site License Programs or deploy any Primary Copies of
the Site License Programs without paying an additional license fee to Sybase as
described in Paragraph 4 below. For purposes of this Site License, "deploy"
shall mean to use a Program in a production or development environment.
3. Customer shall provide Sybase with a quarterly report ("Deployment
Report"), which shall be due on the following dates: June 10, 1997; September
10,1997; December 10, 1997 and March 10, 1998) specifying for each Sybase
Program the number of Secondary Copies made under this Addendum during the
quarter, the total number of such Secondary Copies made to date, the Hardware
and Operating System Software on which the copies are installed and the date
and address of such installations, the number of Named Users or Seats accessing
the Servers and the number of processors if the Programs are being Used with a
multiprocessor CPU.
4. The license and Support Fees for both the Site License and the
Additional Programs specified in Paragraph 1 above shall be due and payable to
Sybase in accordance with the payment terms of the Installment Payment
Agreement to be executed by Customer simultaneously with this Addendum. In the
event Customer does not execute and return the Sybase Installment Payment
Agreement with this Addendum, the payment terms specified on the Relevant
Exhibit A shall prevail. Sybase shall use Customer's final Deployment Report
(specified in Paragraph 3 above) to determine if any additional license fees
are due Sybase for the Programs which Customer has deployed during the
Deployment Period. The payment of any such additional license fee shall be due
net thirty days from the date of Sybase's invoice for such additional license
fees. Customer shall not be entitled to a refund or credit of any Site License
Fees in the event Customer elects not to deploy Programs whose license fees
equal or exceed $82,000.
LEGAL APPROVED
By C. Cherpak
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Date 3/19/97
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<PAGE> 4
Except as amended above, the Agreement shall remain in full force and effect.
This Addendum shall become effective on the date last written below.
SYBASE, INC. FIRST VIRTUAL HOLDINGS INCORPORATED
By: By: John M. Stachowiak
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Name: Name: John M. Stachowiak
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Title: Title: V.P. Finance & Administration & CFO
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Date: Date: 3/19/97
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<PAGE> 5
INSTALLMENT PAYMENT AGREEMENT
This Installment Payment Agreement ("IPA") is made as of the
date set forth below by and between Sybase, Inc. ("Licensor") and First Virtual
Holdings Incorporated ("Customer"). Customer promises to pay to the order of
Licensor ("Payee"), at its office located at 6475 Christie Avenue, Emeryville,
CA 94608, or at such other place as the holder of this IPA may from time to
time designate, total fees of One Hundred Thirty Thousand Five Hundred
Seventy-Six AND 60/100 UNITED STATES DOLLARS (U.S. $130,576.60). Such fees are
owing in connection with the licensing of software products and services to
Customer as specified on the attached purchase order or Exhibit A (the
"Licensed Software"). Customer has elected to pay in installments the total
amount set forth above rather than make the payments specified on the Exhibit A
within 30 days. Sales and use taxes relating to such products and services are
not included in the installments and will be due and payable by Customer within
30 days of the date hereof.
1. The fees shall be due and payable in four consecutive quarterly in as
follows each in the amount of $32,644.15, commencing on April 1, 1997 and on
the same day of each quarter thereafter to and including January 1, 1998, when
the remaining unpaid balance of this IPA, together with any interest on late
payments, if any, accrued thereon, shall be immediately due and payable. If any
installment shall not be paid when due, such overdue payment shall bear
interest (calculated on the basis of a 365-day year and actual days elapsed) at
the rate of 10% per annum until paid. Customer may prepay payments under this
IPA at any time, but shall not be entitled to any discount or rebate therefor.
Customer hereby waives grace, demand, presentment for payment, notice of
non-payment, protest and notice of protest, notice of dishonor or default,
notice of intent to accelerate, notice of acceleration and diligence in
collecting and bringing of suit. All obligations of Customer under this IPA
shall survive any termination of the licenses relating to the Licensed Software.
2. Customer represents and warrants to the holder hereof that (a) the
Customer is a corporation duly organized, validly existing and in good standing
under applicable state law; (b) this IPA is a genuine, legal, valid and binding
obligation of Customer, enforceable against Customer in accordance with its
terms, subject to applicable bankruptcy and other similar laws affecting
creditors' rights generally, and the execution, delivery and performance of the
IPA will not violate or create a default under any law (including any
applicable usury law), regulation, judgment, order, instrument, agreement or
charter document binding on Customer or its property; (c) the IPA has been duly
authorized, executed and delivered by Customer; (d) each signatory of this IPA
has the authority to bind Customer to this IPA; (e) the Licensed Software has
been delivered to and accepted by Customer; and (f) the financial statements and
other information furnished and to be furnished to Payee are and will be true
and correct and prepared in accordance with generally accepted accounting
principles (GAAP) consistently applied.
3. If any of the following events shall occur (each an "Event of
Default"), then the holder of this IPA may, at its option and without notice to
Customer or any other person, declare the outstanding balance of this IPA,
together with any interest or other sums that Customer may owe to the holder
hereof under or in connection with this IPA, immediately due and payable and
exercise any other remedies available at law or equity:
(i) Customer fails to pay when due all or any portion of any
installment or any other amounts payable hereunder; (ii) any representation or
warranty made by Customer or any endorser, guarantor or surety hereof in any
writing furnished in connection with this IPA or the indebtedness evidenced
hereby proves to be false in any material respect when made; (iii) final
judgment for the payment of money shall be rendered against Customer or any
endorser, guarantor or surety hereof and the same shall remain undischarged for
a period of 60 days during which execution of such judgment shall not be
effectively stayed, if the amount of such judgment is such that it may
materially adversely affect Customer's financial condition or its ability to
perform its obligations under this IPA; or (iv) Customer or any endorser,
guarantor or surety shall cease doing business as a going concern or transfer
all or a substantial part of its assets; or become or be adjudicated insolvent
or bankrupt, admit in writing its inability to pay its debts as they become
due, or make an assignment for the benefit of creditors; or Customer or any
endorser, guarantor or surety shall apply for or consent to the appointment of
any receiver, trustee or similar officer for it or for all or any substantial
part of its property; or such receiver, trustee or similar officer shall be
appointed without the consent of Customer; or Customer or any endorser,
guarantor or surety shall institute any bankruptcy, insolvency, reorganization,
moratorium, arrangement, readjustment of debt, dissolution, liquidation or
similar proceeding relating to it under the laws of any jurisdiction, or any
such proceeding is instituted against Customer or any endorser, guarantor or
surety and is not dismissed within 60 days; or any judgment, writ, warrant or
attachment or execution of similar process is issued or levied against a
substantial part of Customer's property and remains unsatisfied for 30 days.
4. In the event that suit it brought hereon, or an attorney is employed or
costs or expenses are incurred to compel payment of this IPA or any portion of
the indebtedness evidenced hereby or to protect, preserve or enforce the rights
of the holder hereof, Customer promises to pay all such costs, expenses and
attorneys' fees (including but not limited to those incurred on appeal) to the
holder hereof in addition to all other amounts owing hereunder. Notwithstanding
any other provisions of this IPA or any document or instrument executed or
delivered in connection with this IPA, interest, fees and the like shall not
exceed the maximum rate permitted by applicable law. In addition to all other
rights and remedies of Licensor and the Assignee, upon an Event of Default
Licensor shall have the right, to terminate all licenses granted to Customer
under the Software Agreement relating to Licensed Software, and/or to withhold
support, consulting and other services provided under or in connection with
such Licensed Software.
<PAGE> 6
5. No delay or omission on the part of the holder hereof in exercising any
right hereunder shall operate as a waiver of such right or of any other right
under this IPA or under any other document or instrument executed or delivered
in connection with this IPA. Each notice or other communication required or
permitted to be given or delivered hereunder shall be in writing and shall be
sent or delivered, if to Customer, at the address indicated beneath Customer's
signature below and, if to the holder hereof, at the address set forth in the
first paragraph hereof, or, if such holder is not the Payee, at the last
address designated by such holder to Customer and shall become effective when
delivered, or if mailed, when deposited in the United States mail with proper
postage prepaid for registered or certified mail, return receipt requested.
6. This IPA has been entered into in connection with a Software License
Agreement dated as of March 19 (as amended, extended or replaced from time to
time, the "Software Agreement") between Customer and Licensor. The use of the
Licensed Software by Customer is subject to the terms of the applicable
Software Agreement. In the event that software licensed from Licensor does not
perform as warranted or in the event of any other dispute or default under a
Software Agreement, Customer shall be entitled to pursue against Licensor all
of Customer's rights and remedies arising under the applicable Software
Agreement. Customer hereby acknowledges and agrees that Payee has transferred
or assigned, or may transfer or assign, this IPA to such transferee or
assignee as Payee in its discretion may select (each such transferee or
assignee, together with any subsequent transferees or assignees, being
collectively referred to as "ASSIGNEE"). The Customer agrees that upon such
transfer or assignment it will not assert against Assignee any claim or
defense which it may have against Payee or Licensor, and that upon the written
instruction of Payee or Assignee that payments under this IPA are to be made to
Assignee, Customer shall promptly comply with, and (if requested) acknowledge in
writing, such instructions. The Customer agrees that upon such transfer or
assignment its obligations to pay amounts due under this IPA to Assignee are
absolute and unconditional, and shall not be subject to any defenses, setoffs or
counterclaims that it may have against Licensor, regardless of whether or not
(a) Licensor has breached any of its warranties or other covenants under a
Software Agreement, (b) the licenses granted under the Software Agreements
and/or any maintenance, support or other services provided thereunder have been
revoked or otherwise terminated for any reason whatsoever or (c) a Software
Agreement has expired or been terminated for any reason whatsoever.
Accordingly, in the event of any breach or default under a Software Agreement,
Customer's sole remedy shall be against Licensor under that Software Agreement,
and Customer shall have no right to not make the installment payments required
hereunder. ASSIGNEE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE
SOFTWARE OR SERVICES COVERED BY THE SOFTWARE AGREEMENT, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF
MERCHANTABILITY. CUSTOMER HEREBY WAIVES ANY CLAIM (INCLUDING ANY CLAIM BASED ON
STRICT OR ABSOLUTE LIABILITY IN TORT) THAT IT MAY HAVE AGAINST ASSIGNEE FOR ANY
LOSS, DAMAGE (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA OR
SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSED BY THE
SOFTWARE OR ANY SERVICES COVERED BY THE SOFTWARE AGREEMENT, EVEN IF ASSIGNEE
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, LOSS, EXPENSE OR COST.
CUSTOMER ACKNOWLEDGES THAT ASSIGNEE DID NOT SELECT, MANUFACTURE, DISTRIBUTE OR
LICENSE THE SOFTWARE COVERED BY THE SOFTWARE AGREEMENT AND THAT THE CUSTOMER
HAS MADE THE SELECTION OF SUCH SOFTWARE BASED UPON ITS OWN JUDGMENT AND
EXPRESSLY DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY ASSIGNEE OR ITS
AGENTS.
7. This IPA shall be governed in all respects by and construed in accordance
with the laws of the State of California. Any action against Customer
concerning this IPA and the indebtedness evidenced hereby may be brought in any
court of competent jurisdiction located in the State of California, and
Customer hereby accepts the nonexclusive jurisdiction of any such court and
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action. This IPA shall constitute the
complete and exclusive agreement of Customer and Payee with respect to the
payment of the amounts owing hereunder and supersedes all prior oral or written
understandings. No term or provision of this IPA may be amended, waived,
discharged or terminated except by a written instrument signed by Customer and
the Payee.
IN WITNESS WHEREOF, the undersigned have executed this IPA as of the date set
forth below.
SYBASE, INC. FIRST VIRTUAL HOLDINGS INCORPORATED
By By /s/John M. Stachowiak
------------------------ ---------------------
Name: Name: John M. Stachowiak
--------------------- ------------------
Title: Title: V.P. Finance & Administration & CFO
-------------------- ------------------------------------
Date: Date: 3/18/97
--------------------- -------------------------------------
<PAGE> 7
Notice of Assignment
March 7, 1997
First Virtual Holdings Incorporated
11975 El Camino Real, Ste. 200
San Diego, CA 92130
Re: Installment Payment Addendum or Installment Payment Agreement ("IPA") of
First Virtual Holdings Incorporated ("Customer") dated March 19, 1997, payable
to the order of Sybase, Inc. in the original principal amount of $130,576.60.
There are four quarterly payments of $32,644.15 remaining as of the date hereof
with the next payment being due April 1, 1997.
Customer:
Notice is hereby given that Sybase Financial Services, Inc. has sold and
assigned the Term Note, including the right to receive the remaining payments
thereunder, to Newcourt Financial USA Inc. ("Assignee").
Customer is hereby directed, and by signature below agrees, to pay directly to
the Assignee at the address set forth below, all payments required to be paid
by the Customer under the terms of the IPA. Assignee is the holder in due
course of the IPA.
Assignee: Newcourt Financial
A Division of Newcourt Credit Group Inc.
P.O. Box 71521
Chicago, IL 60694-1521
Very truly yours, AGREED
Sybase, Inc. First Virtual Holdings Incorporated
By: By: /s/ John M. Stachowiak
--------------------------- --------------------------------------
Title: Title: V.P. Finance & Administration & CFO
------------------------ -----------------------------------
<PAGE> 8
QUOTE NUMBER: 5126394 SYBASE SYBASE REP: Brian Stefano
COMPANY: FIRST VIRTUAL QUOTATION FOR SOFTWARE AND SUPPORT PHONE: (508) 287-1902
CONTACT: John Stachowiak VALID FROM: 02/25/97 Valid To: 03/19/97 FAX: (508) 287-4065
PHONE: (619) 793-2700 QUOTE DATED: 3/19/97 E-MAIL: brians@sybase.com
FAX: (619) 793-2950
ADDRESS: 11975 El Camino Real
Suite 300
SAN DIEGO, CA 92130 USA
License Max #
Line Catalog Product Code of
# Number Description Media Machine-OS ("N" or "W") Users P/S Qty
---------------------------------------------------------------------------------------------------------------------------------
1 10373 SYBASE SQL Server CD-Rom Sun Solaris - Solaris W 1 P 1
2 95220 SQL Monitor Bundle CD-Rom Sun Solaris - Solaris W 1 P 1
3 10387 Replication Server CD-Rom Sun Solaris - Solaris W 1 P 1
4 10388 Replication Server Manager CD-Rom Sun Solaris - Solaris W 1 P 1
5 Sh License fee CD-Rom Sun Solaris - Solaris W 1 P 1
6 10377 Open Server CD-Rom Sun Solaris - Solaris W 1 P 1
7
8
9
10
11
12
13
14
15
16
17
18
19
----------------------------------------------------------------------------------------------------------------------------------
**Excludes Royalty Based Products
Line Price Ext. Lic. Support
# Per Unit Fees Fees
----------------------------------------------------------------
1 $0.00 $0.00
2 $0.00 $0.00
3 $0.00 $0.00
4 $0.00 $0.00
5 $82,000.00 $82,000.00 $17,999.00
6 $0.00 $0.00
7
8
9
10
11
12
13
14
15
16
17
18
19
-----------------------------------------------------------------
TOTALS $82,000.00 $17,999.00
----------
GRAND TOTAL $99,999.00
----------
See Addendum to Software License Agreement Attached
Primary License - Only one set of media & documentation will be sent for each
operating system.
Additional sets of media & documentation are available for a fee.
Payment Terms: Net 30 Days
FOB: Destination
SYBASE PROPRIETARY AND CONFIDENTIAL SYBASE
Page 1 of 1 561 VIRGINIA ROAD, CONCORD, MA 01742
<PAGE> 9
EXHIBIT A - LICENSED PROGRAMS AND SERVICES
(ALTERNATE PRICING MODEL)
Quote Number 5126394 Agreement Date
--------
Site: FIRST VIRTUAL Contact:
Phone:
Address: 11975 El Camino Real Contact:
Suite 300 Phone:
SAN DIEGO, CA 92130 USA (Place Contact information on
additional sheet as needed)
Use a separate Exhibit A for each site.
In exchange for the Program licenses and services listed below, including
Restricted Release licenses, Customer agrees to pay Sybase or its assigns the
following fees, due net thirty (30) days from the date of invoice.
License Code Primary or
Enterprise(N) Max Secondary
Catalog No. Operating or Workplace Number Copy
and Product Name* Version System (W)) of Seats Quantity (P or S)
10373 SYBASE SQL Server Sun Solaris - Solaris W 1 1 P
-------------------------------- ------- --------------------- ------------ -------- -------- ----------
95220 SQL Monitor Bundle Sun Solaris - Solaris W 1 1 P
-------------------------------- ------- --------------------- ------------ -------- -------- ----------
10387 Replication Server Sun Solaris - Solaris W 1 1 P
-------------------------------- ------- --------------------- ------------ -------- -------- ----------
10388 Replication Server Manager Sun Solaris - Solaris W 1 1 P
-------------------------------- ------- --------------------- ------------ -------- -------- ----------
Sun Solaris - Solaris W 1 1 P
-------------------------------- ------- --------------------- ------------ -------- -------- ----------
10377 Open Server Sun Solaris - Solaris W 1 1 P
-------------------------------- ------- --------------------- ------------ -------- -------- ----------
Continuing Additional
First Year Documentation Check if
Catalog No. Total Support Additional Education Restricted
and Product Name* License Fees Fees and Other Fees Release
10373 SYBASE SQL Server
-------------------------------- ------------ ---------- ---------------------- ----------
95220 SQL Monitor Bundle
-------------------------------- ------------ ---------- ---------------------- ----------
10387 Replication Server
-------------------------------- ------------ ---------- ---------------------- ----------
10388 Replication Server Manager
-------------------------------- ------------ ---------- ---------------------- ----------
$82,000.00 $17,999.00
-------------------------------- ------------ ---------- ---------------------- ----------
10377 Open Server
-------------------------------- ------------ ---------- ---------------------- ----------
Total: $82,000.00 $17,999.00
------------ ---------- ----------------------
Grand Total: $99,999.00
------------
*All licenses shall be subject to the terms of the Software License Agreement
between the parties referenced above except for Programs licensed by a Sybase
subsidiary or third party pursuant to a license agreement accompanying the
Program media. Customer acknowledges that such license agreement may contain a
different warranty period and that Sybase is not responsible for support of any
Programs of such subsidiaries or third parties. If Sybase subsidiary or third
party Programs is included on this Exhibit A, then the support shall be
provided by such subsidiary or third party in accordance with its then current
support policies. For each copy of SYBASE SQL Server included on this Exhibit
A, Customer is deemed to have also licensed without further charge, one Open
Client/C Developer's Kit for each of the following operating systems: MS-DOS,
MS Windows, MS Windows 95, MS Windows NT, OS/2 and Macintosh. If an Open
Client/C Developer's Kit or an ODBC Driver has been licensed for a particular
operating system, then Customer may make and Use an unlimited number of copies
of the Open Client/C ODBC Driver Run-Time Programs (as applicable) running on
such operating system.
SYBASE, INC. Name of Customer:
First Virtual Holdings Incorporated
-----------------------------------
By By /s/ John M. Stachowiak
------------------------------- --------------------------------------
(Authorized Signature) (Authorized Signature)
Name Name John M. Stachowiak
----------------------------- ------------------------------------
Title Title V.P. Finance & Administration & CFO
---------------------------- -----------------------------------
Date of this Exhibit 3/19/97
-------
Page 1 of 1
<PAGE> 10
SYBASE
QUOTATIONS FOR SOFTWARE AND SUPPORT
VALID FROM: 03/19/97 VALID TO: 03/19/97
QUOTE DATED: 3/19/97
QUOTE NUMBER: 5126396 SYBASE REP: Brian Stefano
COMPANY: FIRST VIRTUAL PHONE: (508) 287-1902
CONTACT: John Stachowiak FAX: (508) 287-4065
PHONE: (619) 793-2700 E-MAIL: brian@sybase.com
FAX: (619) 793-2950
ADDRESS: 11975 El Camino Real
Suite 300
SAN DIEGO, CA 92130 USA
-----------------------------------------------------------------------------------------------------------------------------------
License Max#
Line Catalog Product Code of Price **Percent Ext. Lic. Support
# Number Description Media Machine - OS ('N' or 'W') Users P/S Qty Per Unit Discount Fees Fees
-----------------------------------------------------------------------------------------------------------------------------------
1 P20052 S-Designor Suite 5.1 CD-Rom PC - all W 1 P 1 $4,495.00 35.00% $2,921.75 $525.92
2 10373 SYBASE SQL Server CD-Rom Sun Solaris-Solaris W 1 P 10 $795.00 35.00% $5,167.50 $930.15
3 10387 Replication Server CD-Rom Sun Solaris-Solaris W 1 P 5 $595.00 35.00% $1,933.75 $348.08
4 10387 Replication Server CD-Rom Sun Solaris-Solaris W 1 P 1 $2,955.00 35.00% $1,946.75 $350.42
5 10388 Replication Server
Manager CD-Rom Sun Solaris-Solaris W 1 P 1 $1,500.00 35.00% $975.00 $175.50
6 10373 SYBASE SQL Server CD-Rom Sun Solaris-Solaris W 1 P 1 $3,995.00 35.00% $2,596.75 $467.42
7 95220 SQL Monitor Bundle CD-Rom Sun Solaris-Solaris W 1 P 1 $2,500.00 35.00% $1,625.00 $292.50
8 98761 Workplace Support New
10 Issues CD-Rom PC - all W 1 P 1 $1,750.00 $1,750.00
9 P60001 PowerBuilder Enterprise
5.0 for WIN CD-Rom PC - all W 1 P 3 $2,995.00 24.00% $6,828.60
10 P60009 PB Enterprise Update
Subs WIN CD-Rom PC - all W 1 P 3 $645.00 10.00% $1,741.50
11
12
13
14
15
16
17
18
19
-----------------------------------------------------------------------------------------------------------------------------------
**Excludes Royalty Based Products TOTALS $27,486.60 $3,089.97
TOTAL DISCOUNT: $11,593.40 (29.67%) GRAND TOTAL $30,576.57
Primary License - Only one set of media & documentation will be sent for each
operating system.
Additional sets of media & documentation are available for a fee.
Payment Terms: Net 30 Days
FOB: Destination
SYBASE
581 VIRGINIA ROAD, CONCORD, MA 07142
SYBASE PROPRIETARY AND CONFIDENTIAL
Page 1 of 1
<PAGE> 11
Agreement Date______________
EXHIBIT A - LICENSED PROGRAMS AND SERVICES
(ALTERNATE PRICING MODEL)
Site: FIRST VIRTUAL Contact:
Address: 11975 El Camino Real Phone:
Suite 300 Contact:
SAN DIEGO, CA 92130 USA Phone:
Use a separate Exhibit A (Place Contact Information
for each site on additional sheet as needed)
Range for the Program licenses and services listed below, including Restricted
Release licenses, Customer agrees to pay Sybase or its assigns the following
fees, due net thirty (30) days from the date of
License Code Primary or
(Enterprise (N) MAX Secondary
Catalog No Operating or Workplace Number Copy
and Product Name* Version System (W)) of Seats Quantity ('P'or'S')
S-Designor Suite 5.1 PC - all W 1 1 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
SYBASE SQL Server Sun Solaris-Solaris W 1 10 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
Replication Server Sun Solaris-Solaris W 1 5 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
Replication Server Sun Solaris-Solaris W 1 1 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
Replication Server Manager Sun Solaris-Solaris W 1 1 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
SYBASE SQL Server Sun Solaris-Solaris W 1 1 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
SQL Monitor Bundle Sun Solaris-Solaris W 1 1 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
Workplace Support New 10 Issues PC - all W 1 1 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
PowerBuilder Enterprise 5.0 for WIN PC - all W 1 3 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
PS Enterprise Update Subs WIN PC - all W 1 3 P
------------------------------------ -------- ------------------- ------------- ------- ------- --------
Consulting, Additional
First Year Documentation Check if
Catalog No Total Support Additional Education Restricted
and Product Name* License Fees Fees and Other Fees Release
S-Designor Suite 5.1 $ 2,921.75 $ 525.92
------------------------------------ ---------- --------- --------------------- ----------
SYBASE SQL Server $ 5,167.50 $ 930.15
------------------------------------ ---------- --------- --------------------- ----------
Replication Server $ 1,933.75 $ 348.08
------------------------------------ ---------- --------- --------------------- ----------
Replication Server $ 1,946.75 $ 350.42
------------------------------------ ---------- --------- --------------------- ----------
Replication Server Manager $ 975.00 $ 175.50
------------------------------------ ---------- --------- --------------------- ----------
SYBASE SQL Server $ 2,596.75 $ 467.42
------------------------------------ ---------- --------- --------------------- ----------
SQL Monitor Bundle $ 1,625.00 $ 292.50
------------------------------------ ---------- --------- --------------------- ----------
Workplace Support New 10 Issues $ 1,750.00
------------------------------------ ---------- --------- --------------------- ----------
PowerBuilder Enterprise 5.0 for WIN $ 6,828.60
------------------------------------ ---------- --------- --------------------- ----------
PS Enterprise Update Subs WIN $ 1,741.50
------------------------------------ ---------- --------- --------------------- ----------
Total $27,486.60 $3,089.97
---------- ---------
Grand Total $30,576.57
----------
Licenses shall be subject to the terms of the Software License Agreement between
the parties referenced above except for Programs licensed by a Sybase
subsidiary or third party pursuant to a license agreement accompanying the
Program media. Customer acknowledges that such license agreement may contain a
different warranty period and that Sybase is not responsible for support of any
Programs of such subsidiaries parties. If Sybase subsidiary or third party
Programs is included on this Exhibit A, then the support shall be provided by
such subsidiary or third party in accordance with its then current support
policies. For a copy of SYBASE SQL Server included on this Exhibit A, Customer
is deemed to have also licensed without further charge, one Open Client/C
Developer's Kit for each of the following operating systems: MS-DOS, Windows, MS
Windows 95, MS Windows NT, OS/2 and Macintosh. If an Open Client/C Developer's
Kit or an ODBC Driver has been licensed for a particular operating system, then
Customer may make and Use an ???? number of copies of the Open Client/C or ODBC
Driver Run-Time Programs (as applicable) running on such operating system.
SYBASE, INC.:
By
---------------------------------------------------
(Authorized Signature)
Name
-------------------------------------------------
Title
------------------------------------------------
Name of Customer: First Virtual Holdings Incorporated
------------------------------------
By /s/ John M. Stachowiak
--------------------------------------------------
(Authorized Signature)
Name John M. Stachowiak
-----------------------------------------------
Title V.P. Finance & Administration & CFO
-----------------------------------------------
Date of this Exhibit