Software License Agreement [Amendment No. 1] - SafeNet Inc. and NetScreen Technologies Inc.
AMENDMENT #1 TO THE
SAFENET/SOFTPK SOFTWARE
LICENSE AGREEMENT
This Amendment (this "Amendment"), dated as of June 22, 2001 (the
"Amendment Effective Date"), by and between SafeNet, Inc., a Delaware
corporation, formerly known as Information Resource Engineering, Inc.
("SafeNet"), And Netscreen Technologies, Inc., a Delaware corporation
("Licensee"), amends that certain Software License Agreement, dated as of June
30, 2000 (the "Agreement Effective Date"), by and between SafeNet and Licensee
(the "Agreement"). Unless otherwise defined herein, all capitalized terms used
herein shall have the respective meaning ascribed in them in the Agreement.
WHEREAS, the parties desire to amend the Agreement as set forth in herein
to replace certain provisions and to clarify certain existing obligations under
the Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and obligations herein contained, as well as other good and valuable
consideration, the parties hereto agree that the Agreement shall be amended as
follows:
1. Definitions.
(a) The term "End User License" as defined in Section 1 shall be deleted
in its entirety, Exhibit A shall be deleted in its entirety.
(b) The term "IRE Technology" as defined in Section 1 shall be deleted in
its entirety and replaced with the following:
"SafeNet Technology" means the Software and related Intellectual
Property owned or licensed by the SafeNet as of the date of this
License Agreement, and any other technology, software or Intellectual
Property that SafeNet provides or makes available to Licensee
hereunder, including, without limitation, the SDK, and any and all
Enhancements, Updates and Upgrades.
All references in the Agreement to "IRE Technology" shall be replaced
with "SafeNet Technology".
(c) The term "Software" as defined in Section 1 shall be deleted in its
entirety and replace with the following:
"Software" means infringement 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
supplementing such programs, the foregoing being provided to Licensee
by way of electronic transmission or by being fixed in Media furnished
to Licensee. The foregoing may
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include SafeNet-owned programs (and documentation) and third-party
owned programs (and documentation) that SafeNet has the right to
license to Licensee hereunder. "Software" also includes any
Enhancements, Updates and Upgrades that SafeNet provides or makes
available to Licensee under this Agreement.
(d) The term "SDK" shall be inserted in Section 1, defined as follows:
"SDK" means SafeNet's software developer kit that may be used to
develop applications that interoperate with the Software. The SDK
includes, without limitation, documentation, link libraries and sample
source code.
(e) Except as otherwise expressly set forth in this Amendment, the
references to "Software" in the definitions of "Enhancement," "Upgrades" and
"Updates" (and all references in the Agreement to the foregoing terms) shall be
deemed to include the SDK.
2. The Software. Attachment A to the Agreement shall be amended so that as of
the Amendment Effective Date, the Software shall mean the Software as described
in Attachment A to this Amendment. The Software as originally described in
Attachment A to the Agreement (the "Original Software") is no longer licensed
under the Agreement as of the Amendment Effective Date, and Licensee shall have
no right to further distribute the Original Software after one hundred and
eighty (180) days after the Amendment Effective Date. Licensee shall only be
permitted to begin distributing the Software after ceasing to distribute the
Original Software.
3. Delivery of SDK. Following the execution of this Amendment by both parties,
SafeNet will deliver to Licensee a copy of the SDK. The SDK will substantially
conform to and perform in accordance SafeNet's published specifications.
4. SDK License. SafeNet grants Licensee a worldwide, nonexclusive, fully-paid,
royalty-free license to: (i) use, copy, modify and create derivative works of
the. SDK, only for the purpose of developing applications that interoperate with
the Software ("Licensee Applications"); and (ii) copy, distribute and sublicense
any redistributable components of the SDK (including any modifications thereto
and derivative works thereof developed by Licensee), only in object code form,
and only to the extent such components are incorporated into any License
Applications. Licensee Applications that include any modifications to or
components of the SDK may be licensed to Fad Users only Bundled with the
Licensee's Internet Secured Appliance or as a Standalone product to only those
third parry purchasers who have Licensee's Internet Secured Appliance.
5. Sublicense by Licensee. Section 3 of the Agreement shall be deleted in its
entirety and replaced with the following:
During the term hereof, Licensee may sublicense, whether directly or
indirectly through Licensee's dealers, distributors and resellers
("Distributors"), the Software, is object code form, to End Users only
Bundled with the Licensee's Internet Secured Appliance or as a
Standalone product to only those third party purchasers who have
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Licensee's Internet Secured Appliance. Licensee shall provide SafeNet,
at no cost to SafeNet, with the latest version of Licensee's Internet
Secured Alliance made commercially available, only for SafeNet's
internal besting and support purposes. All such Distributors shall be
subject to an agreement that contains terms no less protective of
SafeNet's proprietary rights than those contained herein ("Distributor
License Agreement"). Without limiting the foregoing, the Distributor
License Agreement will not grant any rights in the Software to any
Distributor beyond the scope of the rights granted to Licensee under
this Agreement All such End Users shall be subject to an agreement
that contains terms and conditions substantially similar to those set
forth is Exhibit A ("End User License"). No End User License or
Distributor License Amount shall release Licensee from its obligations
under this Agreement, except that SafeNet shall be a third party
beneficiary. Licensee agrees to take all reasonable steps (including
terminating End User Licenses and Distributor License Agreements) to
enforce the provisions of each End User License and Distributor
License Agreement. In the event that SafeNet requests legal action be
initiated against an End User or Distributor for breach of the End
User License or Distributor License Agreement and Licensee declines to
initiate or continue such action. Licensee shall. upon SafeNet's
request, and at SafeNet's expense, take all steps deemed necessary as
mutually agreed by SafeNet's and Licensee's counsel to permit SafeNet
to initiate and/or prosecute the action, including, without
limitation, to assign the cause of action to SafeNet or permit SafeNet
to prosecute the action.
6. Software Maintenance. Section 6 shall be deleted in its entirety and replaced
with the following:
During the terms of this Agreement, Maintenance Services (as outlined
in Attachment B to this Amendment) shall be provided to Licensee as
long as all Fees are paid in accordance with Attachment C of this
Agreement. During the term of this Agreement, Enhancements to the
Software and the SDK shall be provided to Licensee for no additional
fee.
7. Fees. Section 7 of the Agreement shall be deleted in its entirety and
replaced with the following:
Licensee shall pay to SafeNet the license fees net forth in Attachment
C ("License Fees"). Licensee shall pay to SafeNet interest equal to
1.5% of an unpaid, overdue License Fee which is not disputed, for each
thirty (30) day period, or portion thereof, in which any License Fee
remains unpaid. Interest fees will be
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waived for the first sixty (60) days. Licensee's rights under this
Agreement are subject to timely payment of License Fees.
8. Attachment C. Attachment C to the Agreement shall be deleted in its entirety
and replaced with Attachment C to this Amendment.
9. Effective Date and Duration. Section 9 shall be deleted in its entirety and
replaced with the following:
This Agreement is effective as of the Agreement Effective Date and
shall remain in effect for three (3) years from the Amendment
Effective Date.
10. Termination of Agreement. Section 29 shall be deleted in its entirety and
replaced with the following:
Licensee may terminate this Agreement at any time with seventy-five
(75) days written notice. Notwithstanding anything in this Agreement
to the contrary, upon any termination of this Agreement in accordance
with the terms of this paragraph, Licensee's obligation to pay any
License Fees specified in Attachment C will automatically terminate
and Licensee will have no other payment obligations to SafeNet of any
kind, unless mutually agreed to in writing by the parties.
Either Party may terminate this Agreement if a receiver is appointed
over the whole or part of the assets of the other Party, or if a
petition is filed by or against either Party initiating any bankruptcy
reorganization proceeding on if either Party makes an assignment for
the benefit of creditors, or if any order is made or resolution is
adopted for the dissolution of either party then such Party shall
immediately notify the other Party of such event, and the other Party
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 thirty (30) day 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 thirty (30) 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
SafeNet refunds to Licensee all fees paid by Licensee up to the amount
of the loss incurred, release of Escrow
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Materials (as provided and according to the terms of the Escrow
Agreement) and that this Agreement is terminated subject to Section
4(c), without further recourse.
Unless Customer is entitled to ongoing rights under this Agreement or
the Escrow Agreement, in each case as provided there in, 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 SafeNet 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 SafeNet
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 SafeNet and Section 4. All other rights and
obligations of the parties shall cease upon termination of this
Agreement.
11. Assignment. Section 33 shall be deleted in its entirety and replaced with
the following:
Neither Party shall assign or otherwise transfer this Agreement or any
rights or obligations hereunder or without the express written
approval of the other Party, which approval shall not be unreasonably
withheld. This Agreement will bind and inure to the benefit of the
successors and assigns of the parties.
12. Order of Precedence. This Amendment is supplementary to and modifies the
Agreement. The terms of this Amendment supersede provisions of the Agreement
only to the extent that it is expressly provided for herein, or to the extent
that the terms hereof expressly conflict with the terms of the Agreement.
However, nothing contained in this Amendment should be interpreted as
invalidating the Agreement, and provisions of the Agreement will continue to
govern relations between SafeNet and Licensee insofar as they do not expressly
conflict with this Amendment.
13. Governing 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.
14. Counterparts. This Amendment may be executed is counterparts, each of which
will be deemed an original and all of which together will constitute one and the
same document.
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IN WITNESS WHEREOF the parties hereto have caused this Amendment to be
signed effective as of the date first set forth above.
SAFENET, INC. LICENSEE
By: /s/ Carole Argo By: /s/ Tom Tovar
-------------------------------- ------------------------------
Name: Carole Argo Name: Tom Tovar
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Title: Sr. V.P. & CFO Title: Corp. Dev. & Legal Affairs
----------------------------- ----------------------------
Date: 6/25/01 Date: 6/22/01
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Exhibit A
Software License Agreement
NetScreen Technologies, Inc.
SOFTWARE LICENSE AGREEMENT
Please read the term of this Agreement carefully before using the software. By
using the software, you are agreeing to be bound by the terms of this Agreement.
If you do not agree to the terms of this Agreement, 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. (hereinafter "NetScreen") and the
software developed by SAFENET, INC. (hereinafter "SafeNet" or in context,
"supplier").
2. LICENSE AND OWNERSHIP.
NetScreen grants to you a nonexclusive, nontransferable license to age the
NetScreen Software on a single PC or other similar computing device and to make
one copy of the NetScreen Software in machine-readable form for backup purposes
only. You must reproduce on such copy the NetScreen copyright notice and the
SafeNet logo and name and any other proprietary legends that were on the
original copy of the NetScreen Software. The NetScreen Software is licensed to
you by Netscreen. You own the disk on which the Netscreen software is recorded
but NetScreen Software is recorded but NetScreen and its suppliers retain title
to the NetScreen Software.
3. RESTRICTIONS.
The NetScreen Software contains copyrighted material, trade secrets and other
proprietary material and in order to protect them you agree not to 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 Agreement is effective until terminated. You may terminate this Agreement
at any time by destroying the NetScreen Software and all copies thereof. This
Agreement will terminate immediately without notice from NetScreen it you fail
to comply with any provision of this Agreement. Upon termination you must
destroy the NetScreen Software sad all topics thereof.
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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.
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.
Use, duplication, or disclosure by the U.S. Government is subject to
restrictions set forth in this license agreement and as provided in DFARS
227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988),
FAR 12.212(n) (1995). FAR, 52.227-19, or FAR 52.227.14 (ALT III), as applicable.
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 misapplication. 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 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, BOTH EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSES. NetScreen does not
warrant or make any representations regarding the use or the results of the use
of the NetScreen Software in terms of their correctness, accuracy, reliability,
or otherwise. 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 LIABILTY.
UNDER NO CIRCUMSTANCES SMALL NETSCREENN AND ITS SUPPLIERS BE LIABLE FOR ANY
INCREMENTAL. SPECIAL OR CONSEQUENTIAL DAMAGES (including loss of use. data,
business of profits) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE USE OR
INABILITY TO USE THE NETSCREEN SOFTWARE,
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WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED ON CONTRACT, WARRANTY, TORT,
STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, EVEN IF NETSCREEN OR A
NETSCREEN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. In no event shall NetScreen's and its supplier'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. Some states
do not allow the limitation or exclusion of liability for incidental or
consequential damages, so the foregoing limitation or exclusion may not apply to
you.
10. CONTROLLING LAW AND SEVERABILITY.
This Agreement 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
Agreement, or portion thereof, to be unenforceable, that provision shall be
enforced to the maximum extent permissible so as to give effect to the intent of
the parties, and the remainder of this Agreement shall continue in full force
and effect.
11. WAIVER.
Netscreen's and its supplier's failure to enforce any provision of this
Agreement will not constitute a waiver of future enforcement of that or any
other provisions.
12. COMPLETE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with respect
to the use of the NetScreen Software and supersedes all prior or contemporaneous
understanding or agreements, written or oral, regarding such subject matter. No
amendment to or modification of this Agreement and no waiver of any provision of
this Agreement will be binding unless in writing and signed by a duly authorized
representative of both parties.
13. INDEMNIFICATION.
You shall at all times defend, indemnify and hold harmless Netscreen, its
officers, directors, agents, employees, suppliers and affiliates (each, an
"Indemnified Party") from and against any all third party claims, damages,
liabilities, costs and expenses, including reasonable attorneys' fees, arising
out of or relating to your use of the Netscreen Software.
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Copyright (c) 2000. SafeNet, Inc. All rights reserved.
NetScreen-Remote product copyright (c) 2000. NetScreen Technologies, Inc. All
rights reserved.
NetScreen Technologies, Inc.
2860 San Tomas Expressway, Santa Clara, CA 95051 U.S.A.
Netscreen Remote(tm) is a trademark of NetScreen Technologies, Inc.
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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
SafeNet SoftRemote
Personal Firewall*
*may be deactivated at Licensee's request
2. Supported Operating Systems and Hardware Platforms
Operating Systems: Microsoft NT 4.0 and Windows '95/'98 and Windows 2000
and any other platform supported by SafeNet
Hardware Platforms: Intel
3. Software Specifications
Please refer to SafeNet's published release rotes for the then-current
version of the Software
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Attachment B
Maintenance Program
SafeNet will provide to Licensee Standard Technical Maintenance and Support, as
specified in this Attachment B, for the Software running on any Supported
Operating Systems and Hardware Platforms identified in Attachment A.
1. GENERAL REQUIREMENTS. SafeNet will provide a telephone Hotline support
number available from 8:00 AM Eastern Standard Time ("EST") to 6:00 PM
EST, Monday through Friday, a facsimile number and/or an Internet address.
SafeNet warrants that such number, 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
Licensee will classify each error or defect in the Software or related
Documentation and wall report such error or defect to SafeNet for
correction based on the following criteria:
ERROR
CLASSIFICATION CRITERIA
Critical Critical Problems: are defined to be those problems
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that preclude use of significant functionality of
the Software in live operations and for which no
reasonable work-around exists.
Significant Significant Problems: are defined to be those
---------------------
problems that preclude use of functionality of the
Software that is significant in live operations, but
for which reasonable work-arounds exist.
Inconvenient Inconvenient Problems: are defined to be those
----------------------
problems that do not significantly hinder use of the
Software in live operations.
SafeNet shall use best efforts to respond to error reports according to
the following schedule:
CLASSIFICATION LEVEL 1 LEVEL 2 LEVEL 3
Critical 2 hour 1 day Next version*
Significant 4 hours 1 day Next version*
Inconvenient 1 business day 45 days As appropriate
*Provided such error is reported by Licensee to SafeNet prior to close
of code freeze for such version.
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Level Identification
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Level 1-Acknowledgment of receipt of error report
Level 2-After responding, SafeNet will: undertake to solve the problem
as rapidly as possible; provide Licensee with a diagnosis of the problem
and a plan for solving the problem and provide a patch, workaround,
temporary fix and documentation correction pages.
Level 3-Official object code fix, update or major release and/or updated
manual.
Hotline calls, facsimile calls and Internet address messages regarding the
report of errors made after 6:00 PM EST shall be responded to the next
business day within one hour of 8:00 AM EST.
(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.
(b) For eighteen (18) months after the introduction of a new generally
available Enhancement, SafeNet will use reasonable efforts to support
the previous release of the Software.
(c) As part of the Maintenance Services, Licensee shall be entitled, at no
additional charge, to all Updates, Upgrades, and Enhancements
developed by SafeNet, and may copy and distribute the new Software
release (i.e., such Updates, Upgrades and/or Enhancements) to
sublicensees, at no additional charge.
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Attachment C
Fee Schedule
Upon SafeNet's delivery of the Software, Licensee shall pay to SafeNet the
License Fee. Thereafter, Licensee shall pay to SafeNet the License Fee on the
first anniversary of the Amendment Effective Date and on the second anniversary
of the Amendment Effective Date.
Fee Schedule
License fees & 1st year maintenance $684,666
Maintenance renewal - year 2 $ 39,667
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Maintenance renewal - year 3 $750,000
Payment Schedule
Yr 1 license and maint. fees due on Amendment Effective Date $250,000
Yr 2 license and maint. fees due on the first anniversary of
the Amendment Effective Date $250,000
Yr 1 license and maint. fees due on Amendment Effective Date
the Amendment Effective Date $250,000
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$750,000
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