Software License Agreement - Information Resource Engineering inc. and NetScreen Technologies Inc.
NETSCREEN TECHNOLOGIES, INC. INFORMATION RESOURCE
2860 San Tomas Expressway ENGINEERING, INC.
Santa Clara, CA 95051 8029 Corporate Drive
Baltimore, MD 21236
SAFENET/SOFTPK(TM)
SOFTWARE LICENSE AGREEMENT
THIS AGREEMENT between NETSCREEN TECHNOLOGIES, Inc. ("Licensee") and INFORMATION
RESOURCE ENGINEERING, INC. ("IRE") is for the license and maintenance of certain
software, as more particularly described herein, in accordance with the terms
and conditions set forth in this Agreement.
WHEREAS, IRE is in the business of designing, manufacturing and marketing
enterprise network technology and systems that enable the deployment of secure
Virtual Private Network (VPN) solutions over the Internet and other shared
public networks;
WHEREAS, the SAFENET/SOFTPK(TM) is a software application designed to secure
data communications sent from a desktop or laptop computer across a public or
private TCP/IP network;
WHEREAS, IRE has the right to license SAFENET/SOFTPK(TM)as described in
Attachment A ("Software");
WHEREAS, Licensee desires to license the Software for its internal use and to
have IRE maintain the Software; and
WHEREAS, Licensee desires to sublicense the Software to its customers who are
purchasing, or have already purchased from the Licensee, Licensee's Internet
Secured Appliance (hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing recitals and the covenants set
forth in this Agreement, the parties agree as follows:
1. DEFINITIONS. The following definitions set forth below apply to this
Agreement:
. "Agreement" means this Software License Agreement, including any
exhibits and attachments hereto.
. "Bundle" means a product that is sold as a single unit and is assigned
a single product identity and a single price but is composed of a
collection of several individual products, including the Software;
such individual products may also be sold as "Standalone" products.
(See Standalone).
. "Branding Specifications" means the specifications for the layout of
the Co-Branded Software and any collateral material as set forth in
Attachment D.
. "Confidential Information" includes, but is not limited to, any of the
following: (i) any and all versions of IRE's software, code and
documents; (ii) other proprietary software, firmware, mode, hardware
and documentation and information previously, now or later created,
developed, produced or distributed by IRE; (iii) confidential,
proprietary or made secret information submitted by IRE and/or its
suppliers, employees or consultants for study, evaluation or use; and
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any other information not generally known to the public which is
misused or disclosed could have a reasonable possibility of adversely
affecting the business of IRE. Either party's failure to mark any
Confidential Information as confidential, proprietary or otherwise
shall not affect its status as Confidential Information hereunder.
. "End User" means any third party licensor of the Licensee's products
who has entered into an "End User License" (hereinafter defined) as a
licensee of Licensee.
. "End User License" means an agreement, in writing, between Licensee
and End User containing, inter alia, the operative terms set forth in
Exhibit A hereto.
. "Enhancement" means an improvement made by IRE to the Software which
significantly changes the function of the program. An Enhancement is
indicated by a new version number, appearing to the left of a decimal
point (i.e. 2.0).
. "Intellectual Property" means any and all inventions, improvements,
enhancements, methods, designs, know-how, trade secrets, software,
hardware, circuits, products, documentation, made works, layouts,
ornamental designs, trademarks, service marks, trade dress, company
names, band names, logos, and fictitious names, together with any and
all worldwide vested and/or inchoate rights in and to any or all of
the foregoing under any issued, pending and/or later filed
applications for patent or copyright registration, trademark and/or
service mark registration, utility models and/or any other form of
protection of various forms of intellectual and/or industrial property
recognized anywhere in the world including any and all rights of
domestic and/or foreign priority, the right to sue and recover damages
for infringements including, without limitation, any past
infringements.
. "IRE Technology" means the Software and any related Intellectual
Property owned or licensed by IRE as of the date of this License
Agreement.
. "Licensee's Internet Secured Appliance" means NetScreen VFN Appliance.
. "Maintenance Services" means the services set forth on Attachment B.
. "Media" or "Medium" means any document, print, tape, disc,
semiconductor chip or other tangible information-conveying article.
. "Services" means Maintenance Services and engineering services, as
described in Attachment B, described in support of the Software.
. "Software" means intangible information in object code form
constituting one or more computer or apparatus programs and the
informational content of such programs as described in Attachment A,
together with any documentation supplied in conjunction with and
supplementing such programs, the foregoing being provided to Licensee
by way of electronic transmission or by being fixed in Media furnished
to Licensee.
. "Specifications" means the specifications for the Software as set
forth in Attachment A and in IRE's current published specifications.
Any provisions contained in IRE's specifications in conflict with the
provisions of any Attachment A shall be deemed deleted.
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. "Standalone" means a license that is sold as a single unit and is
assigned a single product identity and a single price and is comprised
of the Software only although such product may include marketing
material for other products.
. "Update" means a change to the Software made available to Licensee by
IRE because of design faults, discrepancies or defects ("bugs") in the
Software. (See Upgrade)
. "Upgrade" means an improvement in the Software that does not
significantly change the function of the program (see Update) and is
indicated by a subnumber appearing to the right of an initial decimal
(i.e. 1.1 or 1.1.1).
. The term "use" includes copying any portion of the Software, including
copying into a computer, or transmitting any portion of the Software,
including transmission to a computer for processing of the
instructions or statements contained therein
. "User" means use by any individual having authorized access to the
computer onto which the Software is operated.
. "Version Number" identifies a new software release as indicated by a
new whole number designation (i.e.1.0 or 3.0)
. "Warranty Period" means the period commencing November 17, 2000 to
January 1, 2001.
2. SOFTWARE LICENSE GRANT. Licensee shall have a world-wide, non-exclusive
license to use the Software, in object form, for the purpose of sublicensing to
End Users, marketing and testing and for demonstration to existing or potential
End Users, subject to and in accordance with this Agreement. Licensee
acknowledges and agrees that the component parts of the Software are being
licensed by IRE or other third party as an integrated system to be used by
Licensee exclusively I conjunction with the other component parts of the
Software. Accordingly, Licensee agrees that the component parts of the Software
may only be used in conjunction with each other, s contemplated by this
Agreement and for no other use or purpose. Licensee agrees that all Software
licensed hereunder or sublicensed in accordance with this Agreement shall bear
such trademarks, logo and copyright information of IRE and of IRE's third party
vendors, as IRE reasonably directs. Notwithstanding the foregoing, Licensee may
make only such copies of the Software as is reasonably necessary for it to
exercise its rights hereunder. Licensee shall not use and shall not permit the
Software and other IRE Technology to be used outside the scope of the License
granted hereunder or in contravention of this Agreement. IRE reserves all rights
not expressly stated herein.
3. SUBLICENSE BY LICENSEE. During the term hereof, Licensee may sublicense
the Software, in object form, to End Users of the Licensee's products. The
Software may be sublicensed to End Users as a Bundled product or a Standalone
product to only those third party purchasers who have Licensee's Internet
Secured Appliance. Licensee shall provide IRE, at no cost to IRE, with the
latest version of Licensee's Internet Secured Appliance made commercially
available. All such End Users shall enter into an End User License on terms and
conditions similar or more restrictive than set forth in Exhibit A. No End User
License shall release Licensee from its obligations under this Agreement, except
that IRE shall be a third party beneficiary. Licenses agrees to take all
reasonable steps (including terminating End User Licenses) to enforce the
provisions of each End User License. In the event that IRE requests legal action
be initiated against an End User for breach of the End User License and Licensee
declines to initiate or continue such action, Licensee shall, upon IRE's
request, and at IRE's expense, take all steps
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deemed necessary as mutually agreed by IRE's and Licensee's counsel to permit
IRE to initiate and/or prosecute the action, including, without limitation, to
assign the cause of action to IRE or permit IRE to prosecute the action.
4. OWNERSHIP OF TECHNOLOGY AND RESTRICTIONS ON USE.
(a) Licensee represents to IRE that Licensee has all right, title and
interest in, or if applicable, licenses to, all of its products, services and
related trademarks, service marks and other proprietary information ("Licensee
Technology" and in context "Technology"). IRE represents to Licensee that IRE
has all right, title and interest in and to the IRE Technology. Each party
agrees that it has no right, title or interest in the other party's Technology.
Licensee agrees not to disassemble, decompile, reverse engineer, merge, use,
disclose, sell, transfer or copy the IRE Technology, or any portion thereof,
other than as expressly permitted in this Agreement.
(b) Licensee further agrees that all of IRE's ideas, know-how, techniques,
and any enhancements and modifications made to the Software in the future are
owned by IRE and are not licensed hereunder, except as expressly set forth
herein.
(c) If any claim is asserted against one party ("Indemnitee") that the
Technology of the other party ("Indemnitor") infringes the intellectual property
rights in the United States of America of any third party, the Indemnitee shall
promptly advise the Indemnitor in writing of such claim, and the Indemnitor
shall have the right to elect to control the defense of such claim with counsel
of Indemnitor's choosing, and to the extent Indemnitor so elects to defend, the
Indemnitee shall cooperate fully in the defense thereof and furnish to the
Indemnitor all evidence and assistance in Indemnitee's control. If the
Indemnitor controls the defense or in its sole discretion elects not to control
the defense but is determined to have so infringed, the Indemnitor shall
indemnify the Indemnitee from and against any and all liability, damages, and
reasonable costs (not including attorneys' fees incurred by the Indemnitee in
monitoring or participating in any defense provided by Indemnitor) incurred by
Indemnitee as a result of any such claim or any resulting judgment or settlement
in connection with such a claim against IRE Technology. Licensee's sole remedy
under this Agreement in addition to the foregoing indemnification shall be, at
IRE's sole discretion, to procure the right of continued use, to replace or
modify the affected technology so as to make it non-infringing or refund the
license fees paid by Licensee hereunder less depreciation for use assuming
straight line depreciation over a five (5) year useful life and terminate this
Agreement. Notwithstanding the foregoing, IRE shall no liability under this
Section 4 if the alleged infringement arises from (i) the use of other than the
current unaltered release of the Software or other than in the manner specified
in the applicable documentation, or (ii) a combination of the Software with
other hardware, firmware or software not provided by IRE, if such action would
have been avoided but for such use or combination. NOTWITHSTANDING ANYTHING TO
THE CONTRARY IN THIS AGREEMENT, THE FOREGOING STATES IRE'S ENTIRE LIABILITY AND
LICENSEE'S EXCLUSIVE REMEDY FOR PROPRIETARY RIGHTS INFRINGEMENT.
5. PROTECTION OF CONFIDENTIAL INFORMATION. At all times during the term
hereof and at all times thereafter, Licensee shall (i) treat the Confidential
Information with the same degree of care to protect it against unauthorized
disclosure as Licensee normally treats its own Confidential Information of like
character; (ii) not willfully cause or permit disclosure, directly or
indirectly, of Confidential Information to other than its employees (and other
directly or indirectly engaged to do work on behalf of Licensee) who have a need
to know ("Authorized Recipient"); (iii) not use the Confidential Information for
the benefit of itself or any other individual or entity; and (iv) obligate any
Authorized Recipient to honor Licensee's above commitments. The foregoing shall
not apply to any information which (i) was
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or is learned by Licensee otherwise than from the Software Media without reason
to know of a common origin, if any, with the Software; (ii) is or becomes
generally available to the public through no fault of Licensee; (iii) is learned
or developed by Licensee from normal use of Software which is object code; or
(iv) was disclosed by IRE to others without requiring such Confidential
Information be kept secret.
6. SOFTWARE MAINTENANCE. IRE acknowledges that the software is covered under
the Licensee's current Maintenance Services Agreement expiring November 11,
2000. IRE will extend this Maintenance Agreement through July 1, 2001 for an
additional fee of $17,000.
These Maintenance Services will terminate unless Licensee elects to request
additional Maintenance Service for an extended term. Support fees for all
renewal periods will be paid annually in advance and will equal fifteen percent
(15%) of the initial Licensee license fee.
When purchased outside the Warranty or Maintenance coverage period as described
in Attachment B, Maintenance Services will be equal to 25% of the initial
Licensee license fee.
7. FEES. Licensee shall pay to IRE all fees as set forth in Attachment C (the
"Fees").
Payment schedule for the Software is as follows:
$30,000 due and payable July 31, 2000.
$75,000 due and payable September 15, 2000
$17,000 maintenance due and payable on or before November 11, 2000
Invoices for annual charges for Maintenance Services and any invoices for
monthly charges for Services shall be submitted prior to completion of such
period and shall be payable no later than thirty (30) days after receipt of such
invoice. In addition to any other rights hereunder, Licensee shall pay to TRE
interest equal to 1.5% of an unpaid, overdue Fee which is not disputed, for each
thirty (30) day period, or portion thereof, in which any Fee remains unpaid.
Licensee's rights under this Agreement are subject to timely payment of Fees.
8. DELIVERABLES. On the delivery date, IRE shall furnish to Licensee, at no
additional charge or fee, the following items: (i) confirmation regarding the
electronic data transfer of such Software; and (ii) on-line documentation.
9. EFFECTIVE DATE AND DURATION. This Agreement shall be effective from the
date of delivery of the Software and shall remain in effect for 5 years.
10. SOFTWARE DELIVERY AND REPLACEMENT. The Software will be delivered to the
Licensee as soon as practical after execution of this Agreement in the form of a
software .zip file image or the Licensee will be directed to a secure web page
to download the software.
11. TRAINING SERVICES. IRE shall provide during the Warranty Period, at no
additional charge or fee, assistance and advice, as may be reasonably requested
by Licensee necessary to assist in the use of the Software. Training is
available, at Licensee's expense, at a rate which shall be determined by
contacting the Regional Sales Representative.
12. CERTIFICATES. The Software is designed to operate with a digital
certificate that verifies each user's identity which establishing an encrypted
session. The Licensee will sublicense the Software with
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default settings, and instructions (both supplied by IRE) that direct the User
to IRE's SafeNet Trusted Services or such other Certificate Authority to obtain
the initial digital certificate at no charge.
13. LIMITED WARRANTY. IRE warrants that during the Warranty Period and,
thereafter, so long as Licensee has paid any applicable fees for Maintenance
Services, the Software, when properly installed and used by Licensee and End
Users, will substantially conform to and perform in accordance with the
Specifications. Licensee acknowledges that the Services provided and the
Software are complex and may contain some non-conformities, defects or errors.
IRE does not warrant that the Services provided and the Software will meet
Licensee's need or expectations, that the operations of the Software will be
error free or uninterrupted, or that all non-conformities or defects can or will
be corrected.
IRE warrants that the Services will be performed in a professional manner.
To the best of IRE's knowledge that the Software does not contain any malicious
code, program, or other internal component (e.g. computer virus, computer worm,
computer time bomb, or similar component), which could damage, destroy, or alter
Software, firmware or hardware or which could, in any manner, reveal, damage,
destroy, or alter any data or other information accessed through or processed by
the Software in any manner. IRE shall immediately advise Licensee, in writing,
upon reasonable suspicion or actual knowledge that the use of the Software may
result in the harm described above.
EXCEPT AS SET FORTH IN THIS SECTION, I REMAKES NO WARRANTY OF ANY KIND OR
NATURE, INCLUDING WITHOUT LIMITATION, AS TO MERCHANTABILITY OR FITNESS FOR ANY
USE OR PURPOSE, FOR ANY OF ITS SERVICES OR RIGHTS HEREUNDER, INCLUDING WITHOUT
LIMITATION, THE IRE PROPERTY.
14. NOTICES. Any notice or demand which under the terms of this Agreement or
under any statute must or may be given or made by IRE or Licensee shall be in
writing and shall be given or made by confirmed facsimile, or similar
communication or by certified or registered mail addressed to the respective
parties as follows:
To: Netscreen Technologies, Inc.
2860 San Tomas Expressway
Santa Clara, CA 95051
Attn: Gregory Lebovitz
To: Information Resource Engineering
8029 Corporate Drive
Baltimore, MD 21236
Attn: Carole Argo
The effective dates of such notice shall be (1) upon evidence of successful
facsimile transmission, or (2) five days following the date mailed for certified
or registered letters and two days following the date mailed for overnight
letters, or (3) when delivered, if in person. The above addresses may be changed
at any time by giving prior written notice as above provided.
15. RISK OF LOSS. Risk of loss and damage to material purchased by Licensee
under this Agreement shall vest in Licensee when the material has been delivered
at the FOB IRE point of destination.
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16. TAXES. Licensee shall reimburse IRE for the following tax payments with
respect to transactions under this Agreement unless Licensee advises IRE that an
exemption applies: federal, state and local sales and use taxes, as applicable.
Taxes payable by Licensee shall be billed as separate items on IRE's invoices
and shall not be included in IRE's prices.
17. COMPLIANCE WITH LAWS. IRE and Licensee shall comply, at their own expense,
with all applicable federal, state, local and foreign laws, ordinances,
regulations and codes in the performance of the Agreement. IRE and Licensee
agree to indemnify, defend and hold each other harmless from and against any
losses, damages, claims, demands, suits, liabilities, fines, penalties, and
expenses (including reasonable attorneys' fees), that arise out of or result
from any failure to do so.
18. COMPLIANCE WITH EXPORT RESTRICTIONS. The licensee specifically
acknowledges that the Software contains cryptographic material that may be
subject to US export laws, and/or subject to other countries' import laws. The
Licensee shall be solely responsible for complying with any export or import
restrictions.
19. CHOICE OF LAW. This Agreement and all transactions under it shall be
governed by the laws of the State of Delaware excluding its choice of laws rules
and excluding the Convention for the International Sale of Goods. Both parties
agree to submit to the jurisdiction of any court in the State of Delaware
wherein an action is commenced against the other based on a claim for which the
parties have agreed to indemnify each other under this Agreement.
20. MEDIATION. If a dispute relates to this Agreement, or its breach, and the
parties have not been successful in resolving such dispute through negotiation,
the parties agree to attempt to resolve the dispute through mediation by
submitting the dispute to a sole mediator selected by the parties or, at any
time at the option of a party, to mediation by the American Arbitration
Association ("AAA"). Each party shall bear its own expenses and an equal share
of the expenses of the mediator and the fees of the AAA. All defenses based on
passage of time shall be suspended pending the termination of the mediation.
Nothing in this clause shall be construed to preclude any party from seeking
injunctive relief in order to protect its rights pending mediation.
21. PUBLIC ANNOUNCEMENT. Licensee grants to IRE the right to market the
existence of this Agreement and relationship. IRE and Licensee will make a joint
public announcement concerning the fact the Licensee has selected IRE's Software
as soon as practical after the execution of this Agreement. The Licensee may
choose not to participate in such joint announcement.
22. CO-BRANDING. The Licensee acknowledges that the Software is derived from
IRE's standard product and therefore contains IRE's branding. Such branding will
be retained in the Software. The Licensee shall not remove any proprietary
trademark or copyright markings placed in the Software by the IRE. Licensee
shall display IRE's logo and copyright notice on the brochures, product
packaging, and other collateral material provided in Licensee's Standalone
product, in accordance with the Branding Specifications set forth in Attachment
D. Licensee may affix its branding to the Software in accordance with the
Branding Specifications set forth in Attachment D, subject to the Fees set forth
in Attachment C.
23. RSA Licensing. The Software contains the RSA algorithm which is patented
by RSA Data Security. As the Licensee has obtained a license to the RSA, the
Licensee assumes responsibility for the license of RSA technology. Licensee
shall indemnify and save harmless IRE, its affiliates and their customers,
officers, directors, and employees (all referred to in this clause as "IRE")
from and against
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any losses, damages, liabilities, fines, penalties, and expenses (including
reasonable attorneys' fees) that arise out of or result from any and all claims
by RSA.
24. SPECIAL PROCEDURE FOR US GOVERNMENT SALES. In cases where the US
Government is the ultimate End User, Licensee must inform IRE of any clauses of
the applicable Federal Acquisition Regulations which are intended to flow down,
and IRE will provide Licensee written acceptance of those specific clauses which
are accepted. Otherwise, no government regulations or contract provisions will
govern this Agreement.
25. LIMITATION OF LIABLITY. IN NO EVENT WILL IRE BE LIABLE TO THE LICENSEE OR
END USER FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY END USER LICENSE AGREEMENT,
INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS, EVEN IF IRE HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE CAUSE OF ACTION OR
THE FORM OF ACTION, IRE'S AGGREGATE LIABILITY TO LICENSEE OR END USER FOR ACTUAL
DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE
TOTAL AMOUNT PAID BY LICENSEE HEREUNDER OR END USER, RESPECTIVELY.
26. FORCE MAJEURE. Neither party shall be held responsible for any delay or
failure in performance of any part of this Agreement, except for payment
obligations, to the extent such delay or failure is caused by fire, flood,
strike, civil, governmental or military authority, act of God, or other similar
causes beyond its control and without the fault or negligence of the delayed or
nonperforming party or its subcontractors ("force majeure conditions"). When a
party's delay or nonperformance continues for a period of at least fifteen (15)
days, the other party may terminate, at no charge, the Agreement.
27. WAIVER. The failure of either party at any time to enforce any right or
remedy available to it under this Agreement or otherwise with respect to any
breach or failure by the other party shall not be construed to be a waiver of
that right or remedy with respect to any other breach or failure by the other
party.
28. SEVERABILITY. If any of the provisions of this Agreement shall be invalid
or unenforceable, the invalidity or unenforceability shall not invalidate or
render unenforceable the entire Agreement, but rather the entire Agreement shall
be construed as if not containing the particular invalid or unenforceable
provision or provisions, and the rights and obligations of the parties shall be
construed and enforced accordingly.
29. TERMINATION OF AGREEMENT.
This Agreement may be terminated at any time by written agreement if agreed to
and executed by both parties.
This Agreement may be terminated by IRE upon the consummation of (i) a sale of
shares of stock of the Licensee, other than a redemption or purchase by the
Licensee of shares of stock of the Licensee, or a merger, consolidation or other
combination of the Licensee to or with an unaffiliated third party, if, as a
result of and after the consummation of such transaction, stockholders of the
Licensee who collectively owned (legally or beneficially) shares of stock of the
Licensee having a fair market value of one hundred percent (100%) of the fair
market value of the stock of the Licensee actually outstanding immediately
preceding the consummation of such transaction own shares of stock of the
Licensee and/or its acquiror or successor having a fair market value of less
than fifty percent (50%) of the fair market value of the
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stock of the Licensee and/or its acquiror or successor actually outstanding;
(ii) the consummation of a sale or conveyance of all or substantially all of the
assets of the Licensee to an unaffiliated third party; or (iii) a series of
sequential or related transactions of the kind described in items (i) and (ii)
hereof.
IRE may terminate this Agreement if a receiver is appointed over the whole or
part of the assets of Licensee, or if a petition is filed by or against licensee
initiating any bankruptcy reorganization proceeding or if Licensee makes an
assignment for the benefit of creditors, or if any order is made or resolution
is adopted for the dissolution of Licensee then Licensee shall immediately
notify IRE of such event, and IRE may terminate this Agreement by written notice
thereof, effective upon the date of its sending.
This Agreement may be terminated at the option of the non-defaulting party, by
written notice thereof to the defaulting party, specifying in reasonable detail
the reason for termination, if (i) the defaulting party breached or otherwise
fails to perform or comply in a material respect with a material obligation or
covenant, and such breach or failure is not cured to the non-defaulting party's
reasonable satisfaction within ten (10) days receipt of such notice; or (ii) the
defaulting party fails to comply strictly with the provisions of Sections 4 and
5. If the non-defaulting party is Licensee, then the sole and exclusive remedy
of Licensee shall be that IRE refunds to Licensee all fees paid by Licensee up
to the amount of the loss incurred and that this Agreement is terminated subject
to Section 4(c), without further recourse.
Within five (5) business days of the expiration or termination of this
Agreement, Licensee shall immediately: (i) discontinue all use of the Software;
(ii) deliver to IRE the Software then in Licensee's possession or control,
together with all copies thereof; (iii) erase or destroy any of the Software
contained in the computer memory or data storage apparatus under the control of
the Licensee; (iv) remove any Software in Licensee's possession or control that
incorporates or uses the Software in whole or in part; and (v) warrant in
writing to IRE within five (5) days after termination that all actions (i) -
(iv) have been taken by Licensee. Upon termination of this Agreement, those
provisions that expressly or by their nature survive shall survive termination
of this Agreement, including, without limitation, all payments due and owing to
IRE and Section 4. All other rights and obligations of the parties shall cease
upon termination of this Agreement.
Upon early termination of this Agreement or the expiration of its term, Licensee
agrees it will immediately supply Ire with copies of information on all known
End Users of the Software. Licensee must supply any machine readable electronic
version of such information including, but not limited to, the End Users' name,
company name and contact information such as the latest mailing address,
telephone and fax numbers and email address. Should Licensee have duplicate or
overlapping records in paper and electronic form, Licensee will supply copies of
both paper and electronic records. IRE may use this information to conduct
reasonable business relations with such End Users.
30. SURVIVAL OF OBLIGATIONS. The obligations of the parties under this
Agreement, which by their nature would continue beyond the termination,
cancellation or expiration of this Agreement, shall survive termination,
cancellation or expiration of this Agreement.
31. SIGNATURE. The parties shall be entitled to rely upon and enforce a
facsimile of any authorized signatures as if it were the original.
32. ENTIRE AGREEMENT. This Agreement shall constitute the entire agreement
between the parties with respect to the subject matter of this Agreement shall
not be modified or rescinded, except by a writing signed by IRE and Licensee.
Printed provisions on any Licensee's or IRE's forms shall be deemed deleted.
Estimates or forecasts furnished by Licensee shall not constitute commitments.
The
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provisions of this Agreement supersede all contemporaneous oral agreements and
all prior oral and written communications and understandings of the parties with
respect to the subject matter of this Agreement.
33. ASSIGNMENT. Licensee shall not assign or otherwise transfer this Agreement
or any rights or obligations hereunder without the express written approval of
IRE, which approval shall not be unreasonably withheld. This Agreement will bind
and inure to the benefit of the successors and assigns of the parties.
34. ESCROW AGREEMENT. IRE acknowledges that the Licensee has an Escrow
Agreement in place (Attachment E). IRE agrees to deposit version 5 in the
existing Escrow Account.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly empowered representatives.
INFORMATION RESOURCE NETSCREEN TECHNOLOGIES, INC.
ENGINEERING, INC.
By: By: /s/ Peter Kent
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Name: Name: Peter Kent
------------------------------ ------------------------------
Title: Title: CFO
------------------------------ ------------------------------
Date: Date: 6/30/00
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Exhibit A
Software License Agreement
NetScreen Technologies, Inc.
SOFTWARE LICENSE AGREEMENT
Please read this license carefully before using the software. By using the
software, you are agreeing to be bound by the terms of this license. If you do
not agree to the terms of this license, promptly return the unused software to
the place where you obtained it and your money will be refunded.
1. DEFINITIONS
"Netscreen Software" - The software package distributed under the name
NetScreen-Remote which runs on PCs and includes the software and documentation
developed by NETSCREEN TECHNOLOGIES, INC. (herein-after NetScreen) and computer
programs developed by INFORMATION RESOURCE ENGINEERING, INC. (herein-after IRE)
and licensed by NetScreen to provide functionality to the NetScreen Remote
producer.
2. LICENSE
The application, demonstration, system and other software accompanying this
License, whether on disk, in read only memory, or on any other media (the
"NetScreen Software") and related documentation are licensed to you by
NetScreen. You own the risk on which the NetScreen Software is recorded but
NetScreen retains title to the NetScreen Software and related documentation.
This License allows you to use the NetScreen Software on a single PC or other
similar computing device and to make one copy of the NetScreen Software in the
machine-readable form for backup purposes only. You must reproduce on such copy
the NetScreen copyright notice and the IRE logo and name and any other
proprietary legends that were on the original copy of the NetScreen Software.
This License is issued on a non-exclusive, non-transferable basis.
3. RESTRICTIONS
The NetScreen Software contains copyrighted material, trade secrets and other
proprietary material and in order to protect them you may not reproduce,
decompile, reverse engineer, disassemble or otherwise reduce the NetScreen
Software to a human-perceivable form. You may not modify, network, rent, lease,
loan, distribute, disseminate, retransmit, publish, sublicense, or create
derivative works based upon the NetScreen Software in whole or in part. You may
not electronically transmit the NetScreen Software from one computer to another
or over a network.
4. TERMINATION
This License is effective until terminated. You may terminate this License at
any time by destroying the NetScreen Software and related documentation and all
copies thereof. This License will terminate immediately without notice from
NetScreen if you fail to comply with any provision of this License.
<PAGE>
Upon termination you must destroy the NetScreen Software and related
documentation and all copies thereof.
5. EXPORT LAW ASSURANCE
You agree and certify that neither the NetScreen Software nor any other
technical data received from NetScreen, nor the direct product thereof, will be
exported outside the United States except as permitted by the laws and
regulations of the United States which may require U.S. Government export
approval/licensing. Failure to strictly comply with this provision shall
automatically invalidate this License.
6. GOVERNMENT END USERS
If you are acquiring the NetScreen Software on behalf of any unit or agency of
the United States Government, the following provisions apply. The Government
agrees:
a. If the NetScreen Software is supplied to the Department of Defense (DoD),
the NetScreen Software is classified as "Commercial Computer Software" and the
Government is acquiring only "restricted rights" in the NetScreen Software and
its documentation as that term is defined in Clause 252.227-703(c)(1) of the
DFARS; and
b. If the NetScreen is supplied to any unit or agency of the United States
Government other than DoD, the Government's rights in the NetScreen Software and
its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, in
the case of NASA, in Clause 18-52.227.86(d) of the NASA Supplements to the FAR.
7. LIMITED WARRANTY ON MEDIA
NetScreen warrants the disks on which the NetScreen Software is recorded to be
free from defects in materials and workmanship under normal use for a period of
ninety (90) days from the date of purchase as evidenced by a copy of the
receipt. NetScreen's entire liability and your exclusive remedy will be
replacement of the disk not meeting NetScreen's limited warranty and which is
returned to NetScreen or a NetScreen authorized representative with a copy of
the receipt. NetScreen will have no responsibility to replace a disk damaged by
accident, abuse or misappropriation. NETSCREEN EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS
WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS
WHICH VARY FROM STATE TO STATE.
8. DISCLAIMER OF WARRANTY ON NETSCREEN SOFTWARE
You expressly acknowledge and agree that the use of the NetScreen Software is at
your sole risk. THE NETSCREEN SOFTWARE AND RELATED DOCUMENTATION ARE PROVIDED
"AS IS" AND WITHOUT WARRANTY OF ANY KIND AND NETSCREEN EXPRESSLY DISCLAIMS ALL
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NetScreen does not
warrant that the functions contained in the NetScreen Software will meet your
requirements, or that the operation of the NetScreen Software will be
uninterrupted or error-free, or that defects in the NetScreen Software will be
corrected.
<PAGE>
Furthermore, NetScreen does not warrant or make any representations regarding
the use or the results of the use of the NetScreen Software or related
documentation in terms of their correctness, accuracy, reliability, or
otherwise. No oral or written information or advice given by NetScreen or a
NetScreen authorized representative shall create a warranty or in any way
increase the scope of this warranty. Should the NetScreen Software prove
defective, you (and not NetScreen or a NetScreen authorized representative)
assume the entire cost of all necessary servicing, repair or correction. Some
states do not allow the exclusion of implied warranties, so the above exclusion
may not apply to you.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL NETSCREEN BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE NETSCREEN
SOFTWARE OR RELATED DOCUMENTATION, EVEN IF NETSCREEN OR A NETSCREEN AUTHORIZED
REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states
do not allow the limitations or exclusion of liability for incidental or
consequential damage, so the above limitation or exclusion may not apply to you.
In no event shall NetScreen's total liability to you for all damages, losses,
and causes of action (whether in contract, tort or otherwise) exceed the amount
paid by you for the NetScreen Software.
10. CONTROLLING LAW AND SEVERABILITY
This License shall be governed by and construed in accordance with the laws of
the United States and the State of Delaware, as applied to agreements entered
into and to be performed entirely within Delaware between Delaware residents. If
for any reason a court of competent jurisdiction finds any provision of this
License, or portion thereof, to be unenforceable, that provision of the License
shall be enforced to the maximum extent permissible so as to effect the intent
of the parties, and the remainder of this License shall continue in full force
and effect.
11. WAIVER
No failure by NetScreen to exercise or delay in exercising any right arising
hereunder shall operate as a waiver thereof; nor shall a waiver by NetScreen of
any such right be deemed to be a continuing waiver, but such waiver shall apply
solely to the instance in which the waiver was granted.
12. INVALIDITY
The invalidity of any provision of this License shall not affect the validity of
any other provision hereof.
13. COMPLETE AGREEMENT
This License constitutes the entire agreement between the parties with respect
to the use of the NetScreen Software and related documentation, and supersedes
all prior or contemporaneous understanding or agreements, written or oral,
regarding such subject matter. No amendment to or modification of this License
will be binding unless in writing and signed by a duly authorized representative
of NetScreen.
<PAGE>
Attachment A
LICENSE/PRODUCT SCHEDULE
Licensee License Agreement Number: ___ (insert agreement number) ___
Date of Licensee Master License Agreement: ___ (insert date of agreement) ___
1. Description of Software
IRE's Software: SafeNet/Soft-PK
Version Numbers: release 5.0
Operating System: Microsoft NT 4.0 and Windows '95/'98 and Windows 2000
Hardware Platform: Intel
2. Description of Licensed Software for incorporation into the License Product
IRE's Software: Deterministic Networks Shim
Version Numbers: version 2.0
Operating System: Microsoft NT 4.0. Windows '95, and Windows 2000
Hardware Platform: Intel
3. Description of Software Certificate Procedure
4. Software Specifications
Please refer to SafeNet/Soft PK Version 5 Release Notes
<PAGE>
Attachment B
MAINTENANCE PROGRAM
IRE will provide Standard Technical Maintenance and Support for SafeNet/
SOFTPK(TM) Microsoft NT 4.0.
1. GENERAL REQUIREMENTS. IRE will provide a toll free telephone Hotline
support number available from 8:30 AM Eastern Time ("ET") to 5:30 PM ET, Monday
through Friday, a toll-free facsimile number and/or an Internet address. IRE
warrants that such toll free number, toll free facsimile number and Internet
address shall be maintained by qualified support specialists who shall answer
questions from and provide support to Licensee regarding the Software.
2. RESPONSE AND RESOLUTION SCHEDULE
a) Licensee will classify each error or defect in the Software or related
Documentation and will report such error or defect to IRE for
correction based on the following criteria:
ERROR
CLASSIFICATION CRITERIA
Severity 1 Fatal: Errors preventing all useful work from
being done as reasonably determined by Licensee.
Severity 2 Severe Impact: Errors which disable major
functions from being performed as reasonably
determined by Licensee.
Severity 3 Degraded Operations: Errors disabling only
certain nonessential functions as reasonably
determined by Licensee.
Severity 4 Minimal Impact: Includes all others as reasonably
determined by Licensee.
IRE shall use best efforts to respond to error reports according to
the following schedule:
CLASSIFICATION LEVEL 1 LEVEL 2 LEVEL 3
Severity 1 1 hour 1 day Next version*
Severity 2 4 hours 1 day Next version*
Severity 3 1 business day 15 days As appropriate
Severity 4 7 business days 45 days As appropriate
*Provided such error is reported by Licensee to IRE prior to close of
code freeze for such Version.
Level Identification
--------------------
Level 1 - Acknowledgement of receipt of error report
Level 2 - Provide patch, workaround, temporary fix and documentation
correction pages.
Level 3 - Official object code fix, update or major release and/or
updated manuals. Toll free hotline calls, toll free facsimile calls
and Internet address messages regarding the report of errors made
after 5:30 PM ET shall be responded to the next business day within
one hour of 8:30 AM ET.
a) Licensee will consider a problem resolved when Licensee has
either:
i) Implemented a satisfactory telephone recommendation
received.
ii) Taken possession of upgraded software used to correct the
error.
<PAGE>
b) For eighteen months (18) months after the introduction of a new
generally available Enhancement, IRE will use reasonable efforts
to support the previous release of the Software.
c) As part of the Maintenance Services, Licensees shall be entitled
to Updates or Upgrades to the Software and may copy and
distribute the new Software release to sublicensees with no
additional charge by IRE.
<PAGE>
Attachment C
FEE SCHEDULE
------------
Up-front Fees (required): $105,000
includes delivery a software.zip file image or the Licensee will be directed to
a secure web page to download the software.
Maintenance Fees: $17,000
Extends maintenance from November 11, 2000 to July 1, 2001.
<PAGE>
Attachment D
BRANDING SPECIFICATIONS
-----------------------
<TABLE>
<CAPTION>
File name Size Description
--------- ---- -----------
<S> <C> <C>
SNDig.bmp 120 x 59 pixels w24bit colors Left panel displayed during install. Must
include the SafeNet logo, 15 - 20% of the
screen. Logo files of .esp and .tif
attached, use whatever file type is easier as
long as the final format is a .bmp file.
setup.bmp 384 x 343 pixels w/24 bit colors Splash screen shown during install. Must
include the SafeNet logo. 15 - 20% of the
screen, logo files of .esp and .tif attached,
use whatever file type is easier as long as
the final format is a .bmp file.
certificate.bmp 529 x 353 pixels w/256 bit colors Frame shown in the certificate info displays
Licensee's logo
softcard.ico 16 x 16 pixels w/ 16bit colors Three (3) icons for spdeditor
32 x 32 pixels w/16bit colors Cert Manager & Title Bars
32 x 32 pixels w/256bit colors Return just ONE file with these three images
within that one .ico file.
banner.bmp 136 x 32 w/24 bit colors banner for cpdeditor and cert mgr
trayimages.bmp 144 x 16 pixels, 16bit colors an array of icons for the tray application (9
16 x 16 Regions) depicting different traffic
patterns
license.txt Frame licensing displayed during install. Licensee
can customize we provide the frame.
</TABLE>
Please ensure that the returned files are exactly as specified above, exact
name. Pixels and colors. If not we will not be able to include them in your
build.
Cover Page OEM Option: "If planning on deploying via CD, there is an optional
html cover page that can be included. If interested, contact IRE and we will
provide a sample which can be modified as desired."
The Title bars will also carry the Licensee's product name. Please provide the
exact verbiage you wish to see in the title bars.
The .chm-based Help files can be customized by the Licensee. IRE will provide
the Help file source and instructions for customization;
<PAGE>
Help Files:
1. SPDEdit.chm is the file that ships with the product*. It is in the
Microsoft HTML.Help format, which requires Internet Explorer 4 or later to
be installed on the computer. (Note: IE does not need to be the default
browser, the help only uses the Help Viewer component to display properly.)
It was created in RoboHelp 2000 HTML Edition.
2. Soft-PK Help.bmp is just a screen shot to show you how the help is supposed
to look. Request example.
3. Soft-PK Help.zip is a compressed file of all the help source files. Will be
provided at customer request.
*To view the glossary and browse sequence, the HHActiveX.dll files also need to
be installed. Instructions are attached in the register HHActiveX.txt file. This
dll is included in SafeNet/Soft-PK, but is required on your computer if you are
viewing the help as a stand-alone file.
<PAGE>
Attachment E
ESCROW AGREEMENT
Preliminary Statement. IRE will deliver to Fort Knox a sealed package
containing magnetic tapes, disks, disk packs, or other forms of media, in
machine readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)", all as
identified from time to time on Exhibit A hereto. IRE desires Fort Knox to hold
the Deposit Materials, and, upon certain events, deliver the Deposit Materials
(or a copy thereof) to those persons or entities listed from time to time on
Exhibit B hereto as a licensee of IRE ("Licensee"), in accordance with the terms
hereof.
Now, therefore, in consideration of the foregoing, of the mutual promises
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Delivery by IRE. IRE shall be solely responsible for delivering to
Fort Knox the Deposit Materials as soon as practicable. Fort Knox shall hold the
Deposit Materials in accordance with the terms hereof.
2. Updates/Upgrades. IRE shall deposit with Fort Knox any modifications,
updates, new releases or documentation related to the Deposit Materials by
delivering to Fort Knox an updated version of the Deposit Materials ("Additional
Deposit") as soon as practicable after the modifications, updates, new releases
and documentation have been developed by IRE.
3. Notification of Deposits. Simultaneous with the delivery to Fort Knox
of the Deposit Materials or any Additional Deposit, as the case may be, IRE
shall deliver to Fort Knox a written statement specifically identifying all
items deposited and stating that the Deposit Materials or any Additional
Deposit, as the case may be, so deposited have been inspected by IRE and are
complete and accurate. Fort Knox shall, within ten (10) business days of receipt
of any Deposit Materials, send notification to IRE and Licensee that it has
received from IRE such Deposit Materials.
4. Delivery by Fort Knox.
4.1 Delivery by Fort Knox to Licensees. Fort Knox shall deliver the
Deposit Materials, or a copy thereof, to a Licensee only in the event that:
(a) IRE notifies Fort Knox to effect such delivery to a Licensee or
Licensees at a specific address or addresses, the notification being accompanied
by a check payable to Fort Knox in the amount of one hundred dollars ($100.00),
or
(b) Fort Knox receives from any Licensee:
(i) written notification that:
(a) IRE has voluntarily discontinued its maintenance and/or
support of the Software in accordance with the License
Agreement; or
<PAGE>
(b) IRE has assigned, transferred or delegated its rights and
obligations under the License Agreement to another party
without Licensees prior written consent, which will not be
unreasonably withheld; or
(c) Licensee has terminated the License Agreement by reason of
any other material breach by IRE of its obligations
thereunder which remains uncured thirty (30) days after
IRE's receipt of written notice thereof from Licensee.
(ii) evidence satisfactory to Fort Knox that Licensee has previously
notified IRE of such IRE Default in writing;
(iii) a written demand that the Deposit Materials be released and
delivered to Licensee;
(iv) a written undertaking from the Licensee that the Deposit
Materials being supplied to the Licensee will be used only as
permitted under the terms of the License Agreement;
(v) specific instructions from the Licensee for this delivery; and
(vi) an initial check payable to Fort Knox in the amount of one
hundred dollars ($100.00).
(c) If the provisions of paragraph 4.1(a) are satisfied, Fort Knox shall,
within five (5) business days after receipt of the notification and check
specified in paragraph 4.1(a), deliver the Deposit Materials in accordance with
the applicable instructions.
(d) If the provisions of paragraph 4.1(b) are met, Fort Knox shall, within
five (5) business days after receipt of all the documents specified in paragraph
4.1(b), send by certified mail to IRE a photo static copy of all such documents.
IRE shall have thirty (30) days from the date on which IRE receives such
documents ("Objection Period") to notify Fort Knox of its objection ("Objection
Notice") to the release of the Deposit Materials to a Licensee and to request
that the issue of Licensee's entitlement to a copy of the Deposit Materials be
submitted to arbitration with the following provisions:
(i) If IRE shall send an Objection Notice to Fort Knox during the
Objection Period, the matter shall be submitted to, and settled by
arbitration by, a panel of three (3) arbitrators chosen by the
Wilmington Delaware Regional Office of the American Arbitration
Association in accordance with the rules of the American Arbitration
Association. The arbitrators shall apply Delaware law. At least one
(1) arbitrator shall be reasonably familiar with the computer software
industry. The decision of the arbitrators shall be binding and
conclusive on all parties involved, and judgment upon their decision
maybe entered in a court of competent jurisdiction. All costs of the
arbitration incurred by Fort Knox, including reasonable attorneys'
fees and costs, shall be paid by the IRE. If, however, a Licensee
refuses to submit to such binding arbitration, the matter shall not be
submitted to arbitration and Fort Knox may submit the matter to any
court of competent jurisdiction in an interpleader or similar action
in accordance with paragraph 6(a) hereof.
(ii) IRE may, at any time prior to the commencement of arbitration
proceedings, notify Fort Knox that IRE has withdrawn the Objection
Notice. Upon receipt of any such