License Agreement - Henneberry Hill Technologies Corp. d/b/a Summit Software Co. and NetIQ Corp.
SUMMIT SOFTWARE COMPANY
BASICSCRIPT LICENSE AGREEMENT
This Agreement ("Agreement") is made and entered into the later of the two
dates on the signature page ("Effective Date") by and between Henneberry Hill
Technologies Corporation, a New York corporation doing business as Summit
Software Company, 4933 Jamesville Road, Jamesville, NY 13078 (hereafter
"Summit") and NetiQ Corporation, a California Corporation, with offices at 275
Saratoga Ave., Suite 260, Santa Clara, CA 95050 (hereafter "COMPANY").
For good and valuable consideration, the receipt and sufficiency of which
the parties hereby acknowledge, the parties agree as follows:
1. DEFINITIONS
-----------
For purposes of this Agreement, the following terms shall have the
following meanings:
(a) "Software" shall mean the computer software developed by Summit
described in the attached Exhibit A, regardless of Summit's attaching a
different name to such Software.
(b) "Product(s)" shall mean any of COMPANY's computer software product(s)
that incorporate the Software, as set forth on Exhibit A, as it may be amended
from time to time by Company.
(c) "Program Error" shall mean a coding defect which prevents the Software
from performing to the specifications described in Exhibit A.
(d) "End User" shall mean a customer or purchaser of the Product(s)
manufactured, distributed, and sublicensed by COMPANY pursuant to this
Agreement.
(e) "End User Documentation" shall mean the instruction manual prepared by
COMPANY for the End User describing how to use the Software.
(f) "End User Help System" shall mean the online help prepared by COMPANY
for the End User describing how to use the Software.
(g) "Technical Documentation" shall mean the English language document(s)
prepared by Summit, described in the attached Exhibit A, for use by COMPANY as
the basis for developing the End User Documentation and End User Help System.
(h) "API Documentation" shall mean the English language document(s)
prepared by Summit, described in the attached Exhibit A, for use by COMPANY in
incorporating the Software into the Product(s).
(i) "Functional Specification Documents" shall mean Technical Documentation
and API Documentation, all of which shall be attached to Exhibit A and delivered
upon execution of the Agreement.
(j) "End User License" shall be the form of binary code license agreement
which accompanies the Products when distributed to End Users.
(k) "Net Revenues" shall mean the gross selling price received by COMPANY
for the Product(s), less (i) sales channel discount, (ii) returns, and (iii)
sales taxes or equivalents, in each case applicable thereto, sold in each period
for which royalties are due.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commisssion.
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2. LICENSE
-------
In consideration of the payments to be made by COMPANY to Summit as set
forth in Section 5 and Exhibit B below:
(a) Summit grants to COMPANY a non-exclusive, worldwide, non-transferable
license, during the term of this Agreement and any renewals hereof, to
translate, modify, reproduce, distribute and sublicense the Software solely in
conjunction with the Product(s) and not as a "stand-alone" product.
(b) COMPANY shall have the right, but not the obligation, in conjunction
with COMPANY's promotion or sale of the Product(s), to make reasonable use of
the trademark(s) listed in Exhibit C for product marketing purposes.
(c) Summit grants to COMPANY a non-exclusive, worldwide, non-transferable
license, during the term of this Agreement, to translate, modify, reproduce and
distribute the Technical Documentation, as incorporated into the End User
Documentation and End User Help System, solely as part of or in connection with
the Product(s) under the terms of this Agreement, subject to the provisions
provided herein.
(d) All rights not expressly granted herein are reserved by Summit.
3. SUMMIT OBLIGATIONS
------------------
(a) If during the term of this Agreement and any extensions hereto, any
Program Error is discovered in the then current release or the previous release
of the Software, Summit will promptly correct the same in accordance with
Exhibit D hereto.
(b) During the term of this Agreement and any extensions hereto, Summit
will provide COMPANY with support by telephone and/or electronic mail to answer
COMPANY's questions about the then current release and the previous release of
the Software.
(c) Summit agrees to offer COMPANY any upgrades to the Software that it
releases commercially or offers to other publishers or vendors, during the term
of this Agreement and any renewals hereto. COMPANY is not obligated to accept
the offered upgrades, not to include any accepted upgrades in all products that
are incorporating the Software. Summit agrees, following acceptance by COMPANY
of an upgrade, to extend its support obligations to COMPANY as set forth in
Sections 3(a) and 3(b) of this Agreement to such upgrade. All provisions of this
Section 3(c) are subject to the payment provisions as set forth in Section 5 and
Exhibit B below.
4. COMPANY OBLIGATIONS
-------------------
(a) COMPANY will use commercially reasonable efforts to promote the
distribution and sales of the Product(s).
(b) COMPANY shall supply Summit at no charge two (2) copies of the
Product(s) in which the Software is integrated, for the sole purpose of allowing
Summit to evaluate COMPANY's compliance with this Agreement, within thirty (30)
days after COMPANY first offers the Product(s) for commercial release or sale.
(c) COMPANY shall be solely responsible for providing End User support for
customers of the Product(s) and the Software.
(d) COMPANY shall be solely responsible for providing updates to its End
User customers of the Product(s) and the Software, as Company may elect.
(e) COMPANY shall be responsible for the language translation and
modification of the Software necessary for the Software to perform in foreign
languages on personal computer systems designed for use in markets outside the
United States, if COMPANY elects to promote the Software as a part of the
Product(s) in such
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markets. Should it prove necessary to contract with outside entities to perform
said translation and modification, COMPANY shall fully bear such expense.
(f) COMPANY shall include on the credits page of the End User Documentation
and in at least one dialog box within each product in which the Software is
included the following notice "Portions (c) 1992-1996 Summit Software Company."
(g) COMPANY will use commercially reasonable efforts to collect the names
and addresses of each registered End User of the Product(s) which contain the
Software (the "Mailing List") and allow Summit to mail to the list one time for
each new version of the Software that COMPANY licenses from Summit; provided,
however, that Company may delete from such Mailing List any user which has
objected to the provision of its name to third parties. However (i) COMPANY will
have the absolute right of review and approval for mailing pieces to the list,
and shall have the right to approve the time period during which the mailing
occurs; (ii) COMPANY will have the right to reject any mailing which includes
offers for software which directly competes with COMPANY's own products; (iii)
Summit will use COMPANY's designated mailing house and will be responsible for
all costs associated with its mailing; (iv) Summit will not have physical access
to the list at any time; (v) Summit may not transfer, sublicense, or make any
other use of this list whatsoever except for mailings associated with Summit
developed products; and (vi) Summit's right to use the list shall commence at
shipment of the Product(s) which contain the Software that qualifies for access
to the list as described herein, and shall expire 12 months from the shipment
date of the same.
(h) COMPANY shall distribute and license the use of the Software to End
Users only pursuant to its End User License Agreement ("EULA") which shall
conform substantially to Exhibit E, except that (i) it shall be adapted as
commercially reasonable for any foreign jurisdiction in which LICENSEE markets
or distributes the Software; (ii) the limitations of liability and remedies in
COMPANY's EULA shall inure to the benefit of Summit; and (iii) COMPANY shall be
the "Licensor" under its EULA.
(i) COMPANY shall require its distributors, dealers and others in its
distribution channels to comply with the terms of this Agreement, to the extent
necessary for COMPANY to comply with this Agreement.
5. PRICE AND PAYMENT
-----------------
(a) During the term of this Agreement and any renewal hereof, in
consideration of the license granted to COMPANY hereunder, COMPANY agrees to pay
Summit any license fees, royalty fees, and advances against royalties set forth
in Exhibit B, in accordance with the payment schedule therein.
(b) All payments due hereunder shall be paid in United States dollars. All
royalties due Summit for each calendar quarter period computed in other
currencies shall be converted into United States dollars, pursuant to the
standard used by COMPANY to do such conversions in its normal business practice.
(c) Within thirty (30) days after the end of each calendar quarter period
during the term hereof, COMPANY shall furnish Summit with a royalty statement,
together with payment for any amount shown thereby to be due Summit. The royalty
statement shall set forth the number of units of each Product incorporating the
Software and the Net Revenues for each Product incorporating the Software, sold
anywhere in the world during the calendar quarter then ended, and shall contain
information setting forth how the royalty payment, if any, was computed.
6. ACCEPTANCE PROCEDURE AND LIMITED PRODUCT WARRANTY
-------------------------------------------------
(a) Summit shall deliver to COMPANY the Deliverables referred to in Exhibit
B according to the schedule set forth in Exhibit B, and warrants that the
Deliverables, including the Software, shall conform to the Functional
Specification Documents, as defined in Exhibit A. Delivery will occur when
COMPANY receives any such Deliverable from Summit with a written certification
that any such Deliverable conforms to the Specifications.
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(b) If Company does not notify Summit of its rejection of a Deliverable
within fifteen (15) working days of receipt, the Deliverable will be deemed
accepted.
(c) Neither COMPANY nor any of its employees shall have any right to make
any representation, warranty, or promise on behalf of Summit.
(d) Excepting the foregoing warranty in this Section 6 and the warranty in
Section 7, and to the maximum extent permitted by applicable law: The Software
is provided to COMPANY "as is" without any other warranty of any kind and the
entire risk as to the results and performance of the Software is assumed by
COMPANY, its distributors and the End User customers; Summit disclaims all
warranties, either express or implied, including but not limited to, implied
warranties of merchantability and fitness for a particular purpose; and, in no
event shall Summit be liable for any direct, consequential, indirect,
incidental, or special damages whatsoever, including without limitation, damages
for loss of business profits, business interruption, loss of business
information, and the like, arising out of the use of or inability to use the
Software, even if Summit has been advised of the possibility of such damages.
Because some states/jurisdictions do not allow the exclusion or limitation of
liability for consequential or incidental damages, the above limitation may not
apply. In no event shall Summit's liability for damages hereunder exceed the
amounts paid to Summit under this Agreement.
7. WARRANTIES AND REPRESENTATIONS
------------------------------
Summit represents and warrants that it owns all right, title, interest in,
or under written licenses or other documents, has the right to, the intellectual
property relating to the Deliverables including, without limitation, patents,
copyrights, mask works, trade secrets, trade marks, and other related
intellectual property, in order to grant COMPANY the rights in this Agreement.
8. INDEMNIFICATION
---------------
Summit will indemnify, hold harmless, and defend COMPANY from and against
any suit or proceeding brought against COMPANY based on a claim that the
Software, alone and not in combination with any other products, infringes any
patent, mask work, copyright, trade secrets, or other intellectual property
right of any third party, if notified promptly by COMPANY of such claim in
writing and given authority, information and assistance for the defense of same.
In no event shall Summit's liability for damages hereunder exceed the amounts
paid to Summit under this Agreement.
9. TERM OF AGREEMENT
-----------------
(a) Except as otherwise provided in any Exhibit(s) hereto, provided this
Agreement has been properly executed by COMPANY and by an officer of Summit, the
term of this Agreement shall begin on the Effective Date and shall terminate one
(1) years after the date of First Customer Shipment of the Product(s) unless
terminated earlier for breach as provided herein, subject, however, to automatic
successive renewal terms of one (1) year each, unless either party to this
Agreement gives written notice of its intent not to renew at least thirty (30)
days prior to the expiration of the initial term or any succeeding term.
(b) Notwithstanding the terms of Section 9(a), COMPANY may distribute the
Product(s) for a period of six (6) months following expiration of this Agreement
in order to liquidate COMPANY's inventory of Product(s).
10. DEFAULT AND TERMINATION
-----------------------
(a) Either party shall have the right, at its sole option and upon written
notice to the defaulting party, to terminate this Agreement if any of the
following events of default occur: (i) if either party materially fails to
perform or comply with this Agreement or any provision hereof; (ii) if either
party fails to comply with the provisions of
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Section 11 or makes or attempts to make an assignment in violation of Section
16(e); (iii) if either party becomes insolvent or makes an assignment for the
benefit of creditors; (iv) if a petition under any foreign, state, or United
States bankruptcy act, receivership statute, or the like, as they now exist, or
as they may be amended, is filed by either party; or (v) if such a petition is
filed by any third party, or an application for a receiver of either party is
made by anyone and such petition or application is not resolved favorably to the
party within sixty (60) days.
(b) Termination shall be effective sixty (60) days after notice of
termination to the other party if the offending party's defaults have not been
cured. The rights and remedies of the non-offending party provided in this
Section 10(b) shall not be exclusive and are in addition to any other rights and
remedies provided by law or this Agreement.
(c) If this Agreement is terminated due to a material breach by COMPANY,
COMPANY shall return to Summit or destroy all full or partial copies of the
Software and Documentation in COMPANY's possession or under its control within
ninety (90) days following the termination date.
(d) Subject to this Section 10, Sections 1, 5, 6, 7, 8, 9(b), 11, 15,
16(e), 16(f) and 16(j), shall survive termination of this Agreement.
11. NON-DISCLOSURE AGREEMENT
------------------------
(a) COMPANY and Summit expressly undertake to retain in confidence and to
require its respective distributors to retain in confidence all information and
know-how transmitted to the party receiving such information (the "Disclosee")
that the disclosing party has identified as being proprietary and/or
confidential or that, by the nature of the circumstances surrounding the
disclosure, ought in good faith to be treated as proprietary and/or confidential
(the "Confidential Information"), and will make no use of the Confidential
Information except under the terms and during the existence of this Agreement.
The Disclosee shall have no such obligation with respect to information which
(a) was rightfully in its possession before receipt from the disclosing party,
(b) is or becomes a matter of public knowledge through no fault of the
Disclosee, (c) is rightfully received by Disclosee from a third party without a
duty of confidentiality, (d) is independently developed by the Disclosee or (e)
is disclosed by the Disclosee with the prior written approval of the disclosing
party. However, Disclosee may disclose Confidential Information in accordance
with judicial or other government order, provided Disclosee shall give the
disclosing party reasonable notice prior to such disclosure and shall comply
with any applicable protective order or equivalent.
(b) The Disclosee's obligations under this Section 11 shall survive any
termination or expiration of the Agreement and shall extend to the earlier of
such time as the information protected hereby is in the public domain or four
(4) years following termination or expiration of this Agreement.
12. AUDITS
------
(a) During the term of this Agreement, COMPANY agrees to keep all usual and
proper records and books of account and all usual and proper entries therein
relating to the manufacture and sale of the Product(s) hereunder sufficient to
provide Summit with an accurate royalty statement as required in Section 5(c).
(b) Summit shall have the right to have an independent CPA of national
standing to examine the books and records of the COMPANY for the sole purpose of
verifying the accuracy of royalty payments hereunder. No more than two such
examinations shall be made within any twelve month period. Such CPA shall
disclose to Summit only such information as is necessary to determine Company's
compliance, or lack of compliance, with its royalty payment obligations.
(c) In the event an audit discloses underpayment equal to, or greater than,
ten percent (10%) of the amount shown thereby to be due to Summit from COMPANY,
COMPANY shall bear the expenses of the audit.
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13. FORCE MAJEURE
-------------
Neither party shall be liable for failure to perform due to unforeseen
circumstances or causes beyond the Parties' reasonable control, including, but
not limited to, acts of God, war, riot, embargoes, acts of civil or military
authorities, fire, flood, accidents, strikes, inability to secure
transportation, fuel, energy, labor or materials. Time for performance will be
extended by the amount of any delay.
14. CUMULATIVE REMEDIES
-------------------
Each parties' respective rights hereunder are cumulative and include,
without limitation, the right to specific performance and injunctive relief.
15. NOTICES AND REQUESTS
--------------------
All notices and requests in connection with this Agreement shall be deemed
delivered or given three (3) days following the day they are shipped, if shipped
by overnight courier, or ten (10) days following the day they are deposited in
the U.S. Mail by regular and certified mail, return receipt requested, postage
prepaid and addressed as designated below or to such other address as the party
to receive the notice or request so designates by written notice to the other.
NOTICES TO SUMMIT:
-----------------
Summit Software Company
4933 Jamesville Road
Jamesville, NY 13078
Fax: (315) 445-9567
Attn: William P. Fisher, President
Copy to: Contract Administrator
NOTICES TO COMPANY:
------------------
NeitQ Corporation
275 Saratoga Ave., Suite 260
Santa Clara, CA 95050
Attn: Mr. Hon Wong, VP
Copy to: Ms. Joyce Neubert
16. GENERAL
-------
(a) This Agreement shall be construed and controlled by the laws of the
State of New York. Summit and COMPANY consent to venue in the state and federal
courts in which the defending party resides. Process may be served on either
party in the manner authorized by law.
(b) Neither this Agreement, nor any terms and conditions contained herein,
shall be construed as creating a partnership, joint venture, or agency
relationship.
(c) This Agreement, which incorporates all exhibits hereto, constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements or
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communications. It shall not be modified except by a written agreement dated
subsequent to the date of this Agreement and signed on behalf of COMPANY and
Summit by their respective duly authorized representatives. No waiver of any
breach of any provisions of this Agreement shall constitute a waiver of an
prior, concurrent or subsequent breach of the same or any provisions hereof, and
no waiver shall be effective unless made in writing and signed by an authorized
representative of the waiving party.
(d) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provision shall remain in full force and effect.
(e) The rights and obligations hereunder shall inure to the benefit of the
successors and assigns of the parties hereto, provided that any rights or
obligations hereunder shall not be assigned or sublicensed by either party
without the prior, written consent of the other party, which consent shall not
be unreasonably withheld. Notwithstanding the foregoing, either party shall have
the right to assign any rights or obligations hereunder to a parent corporation,
wholly owned subsidiary or a holding company.
(f) Any Product(s) which COMPANY distributes to or on behalf of the United
States of America, its agencies and/or instrumentalities (the "Government"), is
provided to COMPANY with RESTRICTED RIGHTS. Use, duplication or disclosure by
the Government is subject to restriction as set forth in subparagraph (c)(1)(ii)
of the rights in Technical Data and Computer Software clause at DFAR 252.277-
7013, or as set forth in the particular department or agency regulations or
rules which provide Summit protection equivalent to or greater than the above-
cited clause. COMPANY shall comply with any requirements of the Government to
obtain such RESTRICTED RIGHTS protection, including without limitation, the
placement of any restrictive legends on the documentation for the Product(s) and
any license agreement used in connection with the distribution thereof.
Manufacturer is Henneberry Hill Technologies Corporation, 4933 Jamesville Road,
Jamesville, New York 13078. Under no circumstances shall Summit be obligated to
comply with any Governmental requirements regarding cost and pricing data and
cost accounting. For any distribution or license of the Product(s) that would
require compliance by Summit with Governmental requirements relating to cost and
pricing data or cost accounting, COMPANY must obtain an appropriate waiver or
exemption for such requirements for the benefit of Summit from the appropriate
Governmental authority before the distribution and/or license of the Product(s)
to the Government.
(g) COMPANY agrees that it will not, directly or indirectly, export or
transmit the Product(s) and technical data (or any part thereof) or any process
or service that is the direct product of the Software and Documentation, to any
group S or Z country specified in Supplement No. 1 of Section 770 of the Export
Administration Regulations or to any other country to which such export or
transmission is restricted by such regulation or statute, without the prior
written consent, if required, of the Office of Export Administration of the U.S.
Department of Commerce, or such other governmental entity as may have
jurisdiction over such export or transmission.
(h) COMPANY shall, at its own expense, obtain and arrange for the
maintenance in full force and effect of all governmental approvals, consents,
licenses, authorizations, declarations, filings, and registrations as may be
necessary for the performance of all of the terms and conditions of the
Agreement including, but not limited to, foreign exchange approvals, import and
offer agent licenses, fair trade approvals and all approvals which may be
required to realize the purposes of the Agreement.
(i) In the event taxes are required to be withheld by any foreign
government on payments required hereunder, COMPANY may deduct such taxes from
the amount owed Summit and pay them to the appropriate tax authority; provided,
however, that COMPANY shall promptly secure and deliver to Summit an official
receipt for any such taxes withheld or other documents necessary to enable
Summit to claim a U.S. Foreign Tax Credit. COMPANY will make certain that any
taxes withheld are minimized to the extent possible under applicable law. Prices
stated are exclusive of any federal, state, municipal or other governmental
taxes, duties, licenses, fees, excises or tariffs now or hereafter imposed on
COMPANY's production, storage, licensing, sale, transportation, import, export
or use of the Software. Such charges shall be paid by COMPANY, or in lieu
thereof, COMPANY shall provide an exemption certificate acceptable to Summit and
the applicable authority. Summit, however, shall be responsible for all taxes
based upon its personal property ownership and gross or net income.
(j) The prevailing party in any litigation brought under this Agreement
shall be entitled to recover its reasonable attorneys' fees and costs.
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(k) The parties agree to submit any dispute arising under this Agreement to
non-binding mediation before a mutually agreeable mediator. (In the event such a
mediator cannot be agreed upon, the parties will submit the dispute to the
American Arbitration Association for appointment of a mediator in accordance
with its rules.) In the event such mediation does not successfully resolve the
dispute, either party may bring suit in a court of appropriate jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above. All signed copies of this Agreement shall be deemed originals.
SUMMIT SOFTWARE COMPANY NETIQ CORPORATION
/s/ William B. Fisher /s/ Ching-Fa Hwang
------------------------ ------------------------
By By
William B. Fisher Ching-Fa Hwang
------------------------ ------------------------
Name (Print) Name (Print)
President President
------------------------ ------------------------
Title Title
August 27, 1996 August 14, 1996
------------------------ ------------------------
Date Date
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EXHIBIT A
SOFTWARE, NAMED PRODUCT(S),
AND FUNCTIONAL SPECIFICATION DOCUMENTS
1. SOFTWARE
--------
(a) The Software licensed under this Agreement, known as:
BASICSCRIPT 2.2 FOR WINDOWS
BASICSCRIPT 2.2 FOR WIN32
and consisting of the following executable object code files contained in
the Summit products listed immediately above, as fully described in the attached
documents, entitled "BasicScript 2.2 User's Guide", "BasicScript 2.2 Language
Reference", and "BasicScript 2.2 Programmer's Guide" (the "Functional
Specification Documents"):
BasicScript 2.2 for Windows
---------------------------
SUMWRN22.DLL Runtime
SUMWPB22.DLL Public Extension Manager
SUMWOL22.DLL OLE Automation support library
SUMWTL22.DLL Type library support library
SUMWCX22.DLL Picture control support library
SUMWDE22.DLL Dialog Editor (standalone version)
SUMWDD22.DLL Debugger Dialog
SUMWDC22.DLL Debugger Control
SUMWCM22.DLL Compiler
SUMWDG22.DLL Dialog Editor (embedded version)
BasicScript 2.2 for Win32
-------------------------
SUMNRN22.DLL Runtime
SUMNPB22.DLL Public Extension Manager
SUMNOL22.DLL OLE Automation support library
SUMNTL22.DLL Type library support library
SUMNCX22.DLL Picture control support library
SUMNDE22.DLL Dialog Editor (standalone version)
SUMNDD22.DLL Debugger Dialog
SUMNDC22.DLL Debugger Control
SUMNCM22.DLL Compiler
SUMNDG22.DLL Dialog Editor (embedded version)
Any upgraded, future or successor Summit software that performs
substantially the same functions as the Scripting Software shall likewise be
deemed Scripting Software for the purposes of this Agreement.
2. NAMED PRODUCT(S)
----------------
The Software licensed by Summit to COMPANY under the provisions of this
Agreement may be translated, modified, reproduced, distributed and sublicensed
in conjunction with the following Product(s):
NetiQ AppManager(TM) for Windows NT
NetiQ AppManager(TM) for Windows NT Workstation
NetiQ AppManager(TM) Super Console
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COMPANY may change the specifications of Products and may bundle the
Products with other items of software or hardware. In the event a Product is
bundled, the royalty shall be assessed on the portion (subject to prior written
approval of Summit which shall not be unreasonably withheld) of the Net Revenues
received from the bundled product which is attributable to the Product.
3. FUNCTIONAL SPECIFICATION DOCUMENTS
----------------------------------
Summit will deliver to COMPANY, on or prior to the Effective Date, the
following documents (collectively, the "Functional Specification Documents.")
(a) Technical Documentation, entitled "BasicScript 2.2 User's Guide" and
"BasicScript 2.2 Language Reference" (attached)
(b) API Documentation, entitled "BasicScript 2.2 Programmer's Guide"
(attached)
4. DELIVERABLES
------------
Unless otherwise specified in the Functional Specification Documents, the
Deliverables by Summit to COMPANY will consist of the following:
(a) The Software, in executable object code form, conforming to the
Functional Specification Documents,
(b) The Technical Documentation and API documentation, in printed form.
(c) The Technical Documentation, diskette form (FrameMaker 5.0, Microsoft
Word 6.0, and Rich Text File formats, including all files used by Summit to
generate the help system for the Software).
(d) All testing materials, including but not limited to automated test
scripts, used by Summit to test the Software, for use by COMPANY to verify that
the Software conforms to the Functional Specification Documents.
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EXHIBIT B
DELIVERY AND PAYMENT SCHEDULES
1. DELIVERY SCHEDULE FOR DELIVERABLES
----------------------------------
Summit agrees to deliver the Software to COMPANY according to the following
schedule:
FINAL
SOFTWARE VERSION DELIVERABLE
BasicScript 2.2 for Windows Within five (5) days of Effective Date
BasicScript 2.2 for Win32 Within five (5) days of Effective Date
2. PAYMENT SCHEDULE
----------------
(a) COMPANY will pay Summit royalties of [*] percent ([*]%) of the Net
Revenues received by COMPANY for the sale of Products, exclusive of the
[******]. Company will pay Summit royalties of $[*] for the sale of each
[******]. Company will be allowed to distribute a reasonable number of
promotional and demonstration copies without any royalty obligation.
(b) Payments and shipment reports are due thirty (30) days following the
end of each calendar quarter and shall be sent to Summit at the address listed
in Section 15.
(c) COMPANY shall not be liable for payment of earned royalties for
promotional or complementary units of the Product(s), provided that no more than
Ten Percent (10%) of all units of the Product(s) are distributed by COMPANY as
promotional or complementary units.
(d) In connection with any renewal of the Agreement in accordance with
Section 9(a), the parties will renegotiate the applicable royalty rate, taking
into account the Company's forecasted volumes, the marketability and value of
the Software and other relevant factors; provided, however that in no event
shall the royalty rates increase from that charged in the prior annual period.
The parties will use reasonable efforts to complete such renegotiation at least
thirty (30) days prior to the commencement of the renewal term.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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EXHIBIT C
TRADEMARK(S) LICENSED TO COMPANY
Registered Trademark
--------------------
BasicScript
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EXHIBIT D
MAINTENANCE AND SUPPORT
1. SUMMIT MAINTENANCE AND SUPPORT
------------------------------
(a) For the term of this Agreement, for the Software and Redistributables
(Question: What is Redistributables?) developed by Summit and marketed and
distributed by COMPANY in Products, Summit will provide reasonable maintenance
and support and will resolve problem reports received from COMPANY as described
below to COMPANY at no cost.
(b) If COMPANY, in its sole judgment and discretion, determines it cannot
efficiently or effectively remedy a problem in supporting its customers, COMPANY
shall furnish Summit a problem report.
(c) Upon receiving a problem report from COMPANY and unless the parties
otherwise agree in writing, Summit shall respond and use its best efforts to
correct the problem in accordance with the following:
<TABLE>
<CAPTION>
PRIORITY WRITTEN ACKNOWLEDGMENT PATCH, WORKAROUND, OFFICIAL FIX, UPDATE,
OF PROBLEM REPORT TEMPORARY FIX, PERMANENT UPGRADE, OR ENHANCEMENT
DELIVERED TO COMPANY FIX OR UPDATE
<S> <C> <C> <C>
Fatal Following Business Day Within 3 business days Within 60 days
Severe Following Business Day Within 7 business days Within 60 days
Degradation 5 Business Days 30 days Within 60 days
Minimal Impact 5 Business Days 60 days Within 90 days
</TABLE>
Fatal: condition which precludes all useful work from being done.
-----
Severe Impact: condition which precludes one or more major functions from
-------------
being performed.
Degradation: condition which disables one or more non-essential functions.
-----------
Minimal Impact: any other condition which requires rectification.
--------------
(d) If Summit creates a bug fix other than in response to a problem
reported by COMPANY, whether to the Software or Redistributable, Summit agrees
to notify COMPANY and make the same available to COMPANY under the license grant
in Section 2 of this Agreement within seven (7) days of its initial distribution
and at no charge.
(e) Summit assumes all the same maintenance and support obligations in this
Section 1 for any Upgrades to the Software and Redistributables that are
accepted by COMPANY during the term of this Agreement and any extensions hereto.
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EXHIBIT E
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is made by and between NetiQ
Corporation, a California corporation with its principal place of business at
275 Saratoga Avenue, Suite 260, Santa Clara, CA 95050 ("NetiQ"), and
______________ with its principal place of business at__________________________
__________________("Licensee"), and is effective as of__________________________
_____________.
This Agreement and the terms and conditions hereof shall govern all
licenses of the computer software products identified on Exhibit A, and any
---------
upgrades, modifications or enhancements to such products which have been
developed by, or on behalf of, and provided to Licensee by NetiQ (collectively,
"Software"). All Software will be governed by the terms of this Agreement.
1. GRANT OF LICENSE. Subject to the terms and conditions hereof, NetiQ
----------------
hereby grants to Licensee, and Licensee hereby accepts from NetiQ, a personal,
nonexclusive license to install, use and execute Software in machine readable
object code form and to use related documentation provided to Licensee by NetiQ,
on a single computer or, in the case of a multi-user or networked system which
permits access by more than one user at the same time, at a single work station.
Licensee shall have the right to make one additional copy of the Software for
backup purposes.
2. LICENSE FEE. In consideration of the license granted hereunder, and the
-----------
other covenants of NetiQ hereunder, Licensee agrees to pay NetiQ the license fee
set forth on Exhibit B in the manner and at the times set forth therein.
---------
3. PROPRIETARY RIGHTS NOTICES. Licensee agrees (a) to respect all
--------------------------
confidentiality notices or legends placed upon the Software; (b) not to conceal
from view any copyright, trademark or confidentiality notices placed on the
Software media or on any output generated by the Software; and (c) to reproduce
all copyright, trademark or confidentiality notices (i) on all copies of the
Software, or any portion thereof, made by Licensee as permitted hereunder and
(ii) on all portions of the Software contained in or merged into other programs.
4. PROPRIETARY RIGHTS. Licensee acknowledges that NetiQ retains exclusive
------------------
right, title and interest in and to the Software and all copies or portions
thereof, including all intellectual property rights. By accepting this license,
Licensee does not become the owner of the Software, but has the right to use the
Software as outlined and limited in this Agreement. Licensee further
acknowledges and agrees that the Software contains confidential information and
trade secrets developed and acquired by NetiQ through the expenditure of a great
deal of time and money. Accordingly, Licensee agrees to treat the Software as
confidential and not to disclose all or any portion of the Software to any third
party or entity, except as such disclosure may be necessary to Licensee's
employees in the course of their employment. Licensee agrees not to modify,
decompile, disassemble or otherwise reverse engineer the Software. Licensee
further agrees not to lend, rent, lease, sublicense or otherwise transfer any
copies of the Software or any portion thereof in any form to any person without
prior written consent of NetiQ, as provided in Section 9. Licensee will use its
best efforts and take all reasonable steps to protect the Software and to
prevent any unauthorized reproduction, publication, disclosure, or distribution
of the Software or any portion thereof.
5. TERM AND TERMINATION. This Agreement is effective upon written
--------------------
acceptance by Licensee or upon acceptance of delivery of any Software by
Licensee, and shall continue unless and until terminated in
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<PAGE>
accordance with the provisions of this Section 5. This Agreement shall
automatically terminate and Licensee shall lose its license rights hereunder if
(a) Licensee transfers possession of the Software, any copy of the Software, or
any portion or merged portion of the Software to another party, except as
provided in Section 8, or (b) violates the provisions of Section 4,
Additionally, NetiQ shall be entitled to terminate this Agreement upon written
notice to Licensee in the event that Licensee breaches any material obligation
under this Agreement. Licensee shall be entitled to terminate this Agreement
upon written notice given by Licensee to NetiQ. Within ten (10) days after
termination of this Agreement, Licensee shall return all copies of the affected
Software and related documentation, or any portion thereof, in any form, to
NetiQ at the above address.
6. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES. The media upon which any
---------------------------------------------
Software is contained is warranted to be free from defects in material and
workmanship for a period of ninety (90) days from the date of delivery to
Licensee (the "Warranty Period"). NetiQ's entire liability and Licensee's
exclusive remedy for breach of the foregoing limited warranty shall be for NetiQ
to replace any defective media which is returned to NetiQ during the Warranty
Period. NETIQ DOES NOT WARRANT THAT ANY SOFTWARE IS FREE OF ERRORS OR "BUGS."
EXCEPT AS PROVIDED HEREIN, THE SOFTWARE IS PROVIDED "AS IS" AND NETIQ MAKES NO
WARRANTY, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE AND
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT.
7. INDEMNIFICATION: INFRINGEMENT OF THIRD-PARTY RIGHTS. NetiQ shall defend
---------------------------------------------------
any suit or proceeding brought against Licensee arising out of or based on any
claim, demand, or action alleging that the Software or any portion thereof, as
used within the scope of this Agreement, infringes or misappropriates any
thirdparty rights in copyrights, patents, or trade secrets in the United States.
Additionally, NetiQ shall pay any costs, damages, or awards of settlement,
including court costs, arising out of any such claim, demand, or action;
provided, that Licensee shall give prompt written notice of any such claim,
demand, or action to NetiQ and provide NetiQ with control of the defense and
settlement thereof and, further, shall reasonably consent to any settlement of
such claim, demand, or action. In the event that any Software is held in such
suit or proceeding to infringe such proprietary right, and the use of the
Software, or portion thereof, is enjoined, NetiQ shall, at its sole option and
expense (i) procure for Licensee the right to continue using the Software, or
portion thereof; (ii) replace the same with noninfringing programs of equivalent
functions; or (iii) remove the Software, or portion thereof. In the event that
NetiQ so removes the Software, or portion thereof, Licensee shall receive a
refund of that portion of the fees paid in connection with the license for such
Software.
8. LIMITATION OF LIABILITY. IN NO EVENT WILL NETIQ BE LIABLE TO LICENSEE
-----------------------
OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES ARISING
OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE, INCLUDING,
BUT NOT LIMITED TO, ANY LOST PROFITS OR COST SAVINGS, EVEN IF NETIQ HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL NETIQ'S LIABILITY TO LICENSEE, WHETHER BASED ON AN ACTION
OR CLAIM IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND, TO
THE EXTENT PERMITTED BY LAW, STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF OR
RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID BY LICENSEE FOR THE
SOFTWARE AS OF THE DATE SUCH ACTION OR CLAIM WAS FILED.
9. TRANSFER AND ASSIGNMENT. Neither the license granted hereunder nor this
-----------------------
Agreement (nor any portion of the Software) may be assigned or transferred by
Licensee without the prior written consent of NetiQ.
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<PAGE>
Such consent may be conditioned upon (i) transfer of the entire Software and all
copies thereof, including merged portions, along with all copies of related
documentation, to the assignee or transferee; (ii) payment of an administrative
fee at NetiQ's then prevailing rates; and (iii) entry by the assignee or
transferee into a License Agreement substantially similar to this Agreement with
respect to the Software.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. The following terms shall apply
---------------------------------
where Licensee is an agency or unit of the U.S. government.
(a) Units of the DoD. Use, duplication or disclosure by the government is
subject to restrictions as set forth in paragraph (c)(1)(ii) of the Rights in
technical Data and Computer Software clause at DFARS 252.227-7013. NetiQ
Corporation, 275 Saratoga Avenue, Suite 260, Santa Clara, CA 95050.
(b) Civilian agencies. Use, reproduction or disclosure is subject to
restrictions as set forth in subparagraphs (a) through (d) of the Commercial
Computer Software-Restricted Rights clause at FARS 52.227-19 and the limitations
set forth in NetiQ's standard commercial agreement for this Software.
Unpublished-rights reserved under the copyright laws of the United States.
11. EXPORT. Licensee acknowledges that the laws and regulations of the
------
United States restrict in the export and re-export of the Software, and agree
that it will not export or re-export the Software in violation of those law sand
regulations.
12. MISCELLANEOUS. In the event that any provision of this Agreement is
-------------
found invalid or unenforceable pursuant to judicial decree or decision, the
remainder of this Agreement shall remain valid and enforceable according to its
terms. This Agreement shall be construed and enforced in accordance with the
laws of the State of California. Any action or proceeding arising out of or
related to this Agreement shall be brought in a state or federal court of
competent jurisdiction located in the County of Santa Clara, California and both
parties hereby submit to the in personam jurisdiction of such courts for
purposes of any such action or proceeding. This Agreement may not be modified,
amended or altered except by a writing signed by a duly authorized
representative of NetiQ and Licensee. No waiver of any provision of this
Agreement or any right or obligation of either party shall be effective except
pursuant to a writing signed by a duly authorized representative of NetiQ and
Licensee. This Agreement, including its Exhibits, constitutes the entire
agreement between NetiQ and Licensee with respect to the transactions
contemplated herein and supersedes any and all prior or contemporaneous oral or
written communications with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representative as of the date first set forth above.
Licensee: NetiQ Corporation
______________________ ______________________
Name:_________________ Name:_________________
Title:________________ Title:________________
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