Software License Agreement - Portal Software Inc.
SOFTWARE LICENSE AGREEMENT
This Software License Agreement is entered into by and between Portal Software,
Inc, a Delaware corporation with principal offices located at 10200 South De
Anza Boulevard, Cupertino, California 95014 ("Portal") and
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a corporation with principal offices located at
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("Licensee") and shall become effective on
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the date it is signed by Portal ("Effective Date").
1 DEFINITIONS
The following terms shall have the meanings set forth below. Additional terms
may be defined on attached schedules. "Agreement" means this Software License
Agreement, including any and all attached Schedules, addenda amendments hereto
and Orders hereunder. "Application" means the scope of activity for which the
Licensed Software will be used as specified on the applicable attached Schedule
A. The Licensed Software will not be used for any other purpose or activity
outside of the designated Application without Portal's explicit prior written
consent. "CDR" means a call detail record, an event detail record or other
instance of data pertaining to an incoming or outgoing communication (such as
time, duration, identity or location of sender or recipient, etc.).
"Confidential Information" means this Agreement, and any and all software
(whether in object code or source code), user documentation, data, drawings,
benchmark tests, specifications, Documentation, release notes, trade secrets,
logins, passwords and other access codes and any other information disclosed by
one party to the other which is (i) conspicuously marked "confidential" or
"proprietary" if in tangible form, (ii) identified as "confidential" or
"proprietary" at the time of disclosure or (iii) any other information that,
when taking into consideration the circumstances surrounding disclosure of the
same, a reasonable person would determine to be of a confidential or proprietary
nature. "Delivery Date" means the date that Portal provides Licensee with a
working login and password sufficient to allow Licensee to download the Licensed
Software over the Internet from Portal's customer website (www.pin.com) or in
the case of products that are not distributed by electronic download, the date
on which Portal ships such products. "Designated Support Representatives" means
the primary technical support liaison and backup technical support liaison
designated by Licensee. Licensee may change its Designated Support
Representative by providing Portal with ten (10) days prior written notice. Each
Designated Support Representative shall attend the Licensed Software training
classes specified on Schedule A. "Documentation" means the installation
instructions and user manuals for the Licensed Software. "Licensed Software"
means collectively (i) the software products in executable form (object code)
that are designated on a Schedule A, (ii) Documentation, (iii) any source code
or object code provided to Licensee by Portal (including without limitation SDK
- software development kit - products) and (iv) Updates. Notwithstanding the
foregoing, for purposes of the sections of this Agreement titled "Support
Services" "Warranty", "Licensed Software" shall not include enhancements or
modifications of the Licensed Software products or Documentation not made
generally available to all licensees of the Licensed Software. "Licensed
Software Database" means the database (or linked databases) associated with the
Licensed Software within which the Customer Records are stored. "Licensor" means
the licensor or authorized distributor of a Third Party Product. "Major Release"
means a release version of the License Software that provides significant
additional functionality, improved performance or material changes to the
Documentation. Major Releases are represented by a release number X.Y (e.g.,
4.2, 5.0, 6.1). "Minor Release" means a release version of the Licensed Software
that does not provide significant additional functionality, improved performance
or material changes to the product or associated Documentation. Minor Releases
are represented by release numbers X.Y.Z (e.g., 4.2.1, 5.0.2, 6.1.3). "Order"
means the ordering document attached to this Agreement as Schedule B by which
Licensee may order additional Subscriber licenses, CDR licenses, software
product licenses or services. An Order shall become effective on the date it is
countersigned by Portal. "Restricted Release" means any version of the Licensed
Software marked alpha, beta or which is otherwise designated as a Restricted
Release. "Revenue" means all gross revenues derived directly or indirectly in
connection with the Application commencing from the Effective Date of the
applicable Schedule A. "Seagate Products" means the Seagate(R) Crystal
Reports(R) software products listed on Schedule A. The Seagate Products are
Third Party Products (defined below). "Seat" means the named or specified (by
password or other user identification) individuals authorized by Licensee to use
Seagate Products or the Developer Suite Software, regardless of whether the
individual is actively using the Seagate Products or the Developer Suite
Software at any given time. Licensee may replace authorized Seats as necessary
to reflect personnel changes provided that the number of individuals authorized
to use the Licensed Software does not exceed the maximum number of authorized
Seats at any time. Regardless of the number of Subscribers or other units
licensed, where a number of Seats is specified for certain Licensed Software,
that Licensed Software may only be used for that number of Seats specified on
the applicable Schedule A. Seats may include the employees of Licensee or third
parties; provided that such third party is limited to use of the Seagate
Software or the Developer Suite Software (i) only as configured and deployed by
Licensee, and (ii) solely in connection with Licensee's internal business
operations as conducted by or through such third party, including but not
limited to the installation, administration or implementation of the Licensed
Software for Licensee. Licensee agrees that it is responsible for ensuring that
any usage by its employees and any such third parties is in accordance with the
terms and conditions of this Agreement. "Subscriber" means an individual
customer record ("Customer Record") in a Licensed Software Database. A Customer
Record may be referred to as an "account object" or a "service object" in the
Licensed Software and Documentation. The types of Subscribers licensed by
Licensee under this Agreement for Licensed Software and their associated pricing
are set forth on the applicable Schedule A relating to such Licensed Software.
If the Licensed Software is used to authenticate, bill, rate or otherwise track
the activities of individual users within a corporate or group account
("Organizational Hierarchy"), each such individual user will be deemed a
separate "Subordinate Subscriber". Subordinate Subscribers will be appropriately
categorized into their applicable sub-class in accordance with the criteria set
forth on Schedule A. "Support Services" means the technical and maintenance
support for the Licensed Software purchased by Licensee as set forth on a
Schedule A. "Term" means the period of time specified on Schedule A, or if no
Term is specified on Schedule A, then the Term shall be deemed to be twenty four
(24) months commencing from the Effective Date. "Third Party Product" means a
software product that is owned or licensed by an entity other than Portal, which
entity has authorized Portal to sublicense its software product(s) with or
embedded within the Licensed Software. Third Party Products can only be used in
conjunction with the Portal Licensed Software to process data processed by the
Licensed Software. "Update" means a subsequent release of a Licensed Software
product that is generally made available to licensees of that Licensed Software
product at no additional charge. Updates do not include any release, option or
future product that Portal licenses separately from the Licensed Software.
2 LICENSE
2.1 Subject to the terms and conditions of this Agreement, Portal grants
Licensee a non-exclusive, nonsublicensable, nontransferable license to install
the Licensed Software specified on a Schedule A on one or more computers located
at the Production Site(s) set forth on that Schedule A and that share the same
Licensed Software Database for the Term and to use such Licensed Software only
for the Application and only for the number of Subscribers, CDRs, Seats or
copies or amount of Revenue licensed under that Schedule At.
2.2 Licensee may install one (1) copy of the Licensed Software on a
secondary non-production system for disaster recovery purposes only located at
the Backup Site location set forth on the applicable Schedule A. Licensee may
install one (1) copy of the Licensed Software at the Development Site location
set forth on the applicable Schedule A to be used solely for Licensee's internal
testing, training and development use. Licensee may make a reasonable number of
backup copies of the Licensed Software exclusively for inactive archival
purposes only. Except as set forth hereinabove, Licensee shall not reproduce
Licensed Software, in whole or in part. All titles, trademark symbols, copyright
symbols and legends, and other proprietary markings incorporated in, marked on,
or affixed to any Licensed Software must be reproduced on every copy of the
Licensed Software and shall not be removed or obliterated.
2.3 Licensee may modify the business policy facilities modules source code
provided by Portal however only in the manner set forth in the applicable
Documentation. Licensee is hereby granted a royalty free, perpetual,
nonexclusive license to use any such modifications only in conjunction with the
Licensed Software and subject to the same restrictions as the Licensed Software.
Notwithstanding the foregoing, Portal shall not be precluded from developing,
using, marketing, distributing, or otherwise exploiting modifications of the
business policy facilities modules source code developed by Portal.
2.4 Portal or its Licensors shall at all times retain ownership of the
Licensed Software including without limitation any and all intellectual property
rights therein and copies thereof.
2.5 Within five (5) business days of the applicable Schedule A Effective
Date Portal will provide Licensee with a login and password which will enable
Licensee to download one machine-readable copy of the applicable Licensed
Software from Portal's website or in the case of products that are not
distributed by electronic download, Portal will ship such products within five
(5) business days.
2.6 "Ancillary Programs" are software programs or functionality that Portal
distributes with or within the Licensed Software to facilitate interoperability
between the Licensed Software and other software products or functionality and
that Portal generally licenses separately and charges additional license and
Support Service fees. Licensee will not use such Ancillary Programs unless it
obtains a license therefor from Portal.
2.7 Except for the license rights expressly granted to Licensee in this
Agreement, Portal grants and Licensee receives no other rights or licenses to
the Licensed Software, derivative works thereof, or any intellectual property
rights related thereto, whether by implication, estoppel or otherwise.
3 DEVELOPER SUITE LICENSE
For each Developer Suite license Seat purchased by Licensee (as set forth on
Schedule A) Portal grants Licensee the right to install the Developer Suite
product(s) set forth on Schedule A (`the "Developer Suite Software") on a single
computer for use by a single
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designated individual for the sole purpose of designing, developing, testing and
adapting third party software products to operate in conjunction with the
Licensed Software.
4 LICENSE RESTRICTIONS
Licensee will not itself, or through any parent, subsidiary, affiliate, agent or
other third party sell, lease, license, sublicense, modify (except as expressly
permitted in the applicable Documentation or as explicitly authorized by Portal
in writing) or encumber the Licensed Software or any part thereof. Except to the
minimum extent necessary to comply with applicable law (and then only to the
minimum extent allowed under such law to achieve interoperability with other
independently created computer software programs), Licensee will not itself, or
through any parent, subsidiary, affiliate, agent or other third party decompile,
disassemble, or reverse engineer any portion of the Licensed Software or attempt
to discover any source code or underlying ideas or algorithms of any Licensed
Software. Except as otherwise explicitly provided in this Agreement, Licensee
will not use the Licensed Software to provide processing services to third
parties, commercial timesharing, rental or sharing arrangements, or on a
"service bureau" basis or otherwise use or allow others to use the Licensed
Software for the benefit of any third party. Licensee will use the Licensed
Software only for the Application and only for the number of Subscribers, CDRs,
Seats and/or copies licensed under this Agreement. Licensee will not provide,
disclose, divulge or make available to, or permit use of the Licensed Software
by persons other than Licensee's employees, contractors and agents who are under
a legally binding obligation of confidentiality consistent with the
confidentiality provisions of this Agreement. Licensee will not transport,
export, or re-export of the Licensed Software, in whole or in part in violation
of the import or export control laws or regulations of the United States or any
other applicable country.
5 LICENSE AND SUPPORT SERVICES FEES
Licensee will pay Portal the license, services and Support Services fees as set
forth on each Schedule A and applicable Order.
6 PAYMENTS AND TAXES
6.1 Invoices for amounts due under this Agreement shall be due and payable
on the date set forth in the relevant Schedule A or Order(s). If no date is
stated, payment shall be due thirty (30) calendar days from Licensee's receipt
of invoice.
6.2 All payments due under this Agreement shall be made in U.S. dollars. In
addition to any remedies Portal may have hereunder or at law, any payments more
than thirty (30) days overdue will bear a late payment fee of 1.5% per month
commencing from the payment due date. If the foregoing would not be enforceable
under applicable law, then the applicable late payment fee shall be an amount
equal to the maximum rate allowed by law, accruing from the payment due date.
6.3 Portal may suspend or terminate Support Services for non-payment
continuing for more than fifteen (15) calendar days after Licensee's receipt of
a written notice from Portal informing of the failure to pay when due. Portal
shall have no liability for damages sustained by Licensee resulting from such
termination or suspension of Support Services pursuant to this Section 6.3.
6.4 The amounts set forth in this Agreement and all Orders hereunder are
exclusive of all taxes (including without limitation, value added taxes and
withholding taxes), tariffs, duties and the like. If Portal is required to pay
any sales, use, value-added, withholding or other tax, tariff, duty, etc.,
(other than taxes on Portal's net income) on the licenses or services provided
pursuant to this Agreement or pertaining to Licensee's use of the Licensed
Software, then such taxes shall be billed to and paid by Licensee.
7 SUPPORT SERVICES
Provided Licensee has paid the applicable Support Services fees, Portal,
directly or through or its authorized agent, shall provide Licensee with
technical support services and or Updates for Licensed Software in accordance
with the Support Services plan purchased by Licensee as set forth on the
applicable Schedule A. Portal reserves the right to modify its Support Services
plans any time. Portal will notify Licensee in writing of any material
modifications to Portal's Support Services plans. Licensee shall designate one
primary technical support liaison and one backup technical support liaison who
will be permitted to contact Portal during applicable technical support services
hours. Portal will support each Major Release of the Licensed Software for at
least eighteen (18) months from its initial commercial release ("Support Term").
Portal shall have no obligation to support (i) Licensed Software which has been
damaged due to Licensee's negligence, abuse, or misapplication, (ii) Licensed
Software which has been modified or altered in a manner not expressly authorized
by Portal, (iii) problems caused by use of the Licensed Software other than in
accordance with the Documentation, or (iv) Licensed Software installed in an
operating environment or hardware platform other than that for which it has been
designed as set forth in the applicable Documentation. Licensee will reasonably
cooperate with Portal in the resolution of support issues and, upon Portal's
request and during normal business hours, shall provide Portal with remote
access to the equipment on which the Licensed Software is installed and/or
operating. Portal will abide by Licensee's security policies and procedures and
will only use such remote access to provide Support Services for the Licensed
Software. Licensee understands that failure to provide Portal with such remote
access may result in delayed resolution of Support Services issues. If Licensee
fails to provide Portal with the above described remote access, Portal shall
have no liability for damages arising from delays which could reasonably have
been avoided had Licensee provided Portal with above-described dial-in access.
Support Services for supported products will automatically renew at the same
support level (if available) unless terminated by Licensee or Portal at least
sixty (60) days prior to the expiration of the then current annual Support
Services period as otherwise permitted under this Agreement.
8 CONSULTING SERVICES
Subject to payment of the applicable fees, Portal will provide Licensee with the
Support Services, training services and Solution Services ("Solution Services")
set forth on each Schedule A. Additionally, Portal may from time to time provide
Licensed Software implementation or other professional consulting services
agreed to by both parties ("Consulting Services"). Prior to the scheduling of
such Consulting Services, Licensee and Portal will enter into a Professional
Services Agreement separate from this Agreement. Unless otherwise agreed in
writing, all Consulting Services will be billed on a time and materials basis.
Consulting Services are bid separately from the Licensed Software licenses, and
Licensee may acquire either Licensed Software licenses or Consulting Services
without acquiring the other.
9 RESTRICTED RELEASES
If Licensee is selected for participation and elects to participate in a
Restricted Release program, Licensee agrees (i) Portal shall have no obligation
to correct errors in or deliver updates to the Restricted Release, (ii) Portal
shall have no obligation to support the Restricted Release, (iii) Licensee will
provide Portal with appropriate test data for the Restricted Release if
necessary to resolve problems in the Restricted Release encountered by Licensee
and will promptly report to Portal any error discovered in the Restricted
Release, (iv) the Restricted Release is experimental, may contain problems and
errors and is being provided to Licensee on an "AS-IS" basis with no warranty of
any kind, express or implied, (v) neither party will be responsible to the other
for any losses, claims or damages of whatever nature, arising out of or in
connection with the performance or nonperformance of the Restricted Release,
(vi) Licensee will not use the Restricted Release in production applications
without the prior written approval of Portal, and (vii) Licensee will stop using
and return or destroy any Restricted Release promptly upon Portal's request.
10 TERMINATION
This Agreement shall come into effect on the Effective Date and shall remain in
effect until termination of this Agreement by either party as provided herein
below. Portal may terminate a license to a Licensed Software product if Licensee
fails to pay the license fee therefor within fifteen (15) calendar days after
written notice from Portal that payment is past due. Either party may terminate
this Agreement if the other party breaches a material term of this Agreement and
fails to cure such breach within sixty (60) calendar days after receipt of
written notice describing the breach in reasonable detail. Upon termination of
this Agreement, all licenses granted hereunder shall immediately terminate,
Licensee shall immediately cease using the Licensed Software and Documentation
and Licensee shall certify in writing to Portal that all copies (in any form or
media) have been destroyed or returned to Portal. Upon expiration of the Term of
any particular license granted under this Agreement, Licensee shall immediately
cease using the applicable Licensed Software and Documentation and Licensee
shall certify in writing to Portal that all copies (in any form or media) have
been destroyed or returned to Portal. Termination shall not relieve Licensee
from paying all amounts accrued under this Agreement prior to termination and
shall not limit either party from pursuing any other available remedies.
Sections 4, 5, 6, 10, 11, 13, 14, 15.1, 17, 18 and 19 shall survive termination
or expiration of this Agreement.
11 INFRINGEMENT INDEMNITY
Portal at its own expense shall (i) defend or at its option settle, any claim or
suit against Licensee on the basis of infringement of any trademark, copyright,
trade secret or United States patent ("Intellectual Property Rights") by the
Licensed Software or permitted use thereof, and (ii) pay any final judgment
entered against Licensee on such issue or any settlement thereof, provided (a)
Portal has sole control of the defense and/or settlement, (b) Licensee notifies
Portal promptly in writing of each such claim or suit and gives Portal all
information known to Licensee relating thereto, and (c) Licensee cooperates with
Portal in the settlement and/or defense. (Licensee shall be reimbursed for all
reasonable out-of-pocket expenses incurred in providing any cooperation
requested by Portal.) If all or any portion of the Licensed Software is, or in
the opinion of Portal may become, the subject for any claim or suit for
infringement of any Intellectual Property Rights, Portal may, and in the event
of any adjudication that the Licensed Software or any part thereof does infringe
or if the permitted use of the Licensed Software or any part thereof is
enjoined, Portal shall, at its expense do one of the following things: (1)
procure for Licensee the right to use the Licensed Software or the affected part
thereof; (2) replace the Licensed Software or affected part with other suitable
programs; (3) modify the Licensed Software or affected part to make it
non-infringing; or (4) if Portal reasonably determines that none of the
foregoing remedies are commercially feasible, refund the aggregate payments made
by Licensee for the Licensed Software or affected part thereof. Portal shall
have no obligations under this Section 11 to the extent a claim is based upon
(A) the use of any version of the Licensed Software other than a current,
unaltered version provided by Portal, if infringement would have been avoided by
a current unaltered version; or (B) combination, operation or use of the
Licensed Software with software and/or hardware not delivered by Portal if such
infringement could have been avoided by combination, operation or use of the
Licensed Software with other software and/or hardware. This Section 11 states
the entire liability of Portal and the exclusive remedy of Licensee with respect
to any alleged infringement by the Licensed Software or any part thereof.
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12 WARRANTY
12.1 For ninety (90) calendar days from the Effective Date of this Agreement
("Warranty Period") Portal warrants that the Licensed Software when properly
used will operate in all material respects with its Documentation. If Licensee
provides Portal with written notice during the Warranty Period that the Licensed
Software fails to operate as warranted in this Section 12.1, Portal will use
reasonable efforts to cure the defect and make the Licensed Software operate as
herein warranted. Licensee's sole remedy in the event of breach by Portal of
this Section 12.1 shall be (i) replacement of the defective Licensed Software
program or defective portion thereof or (ii) termination of the license for the
nonconforming Licensed Software product and refund of the license fees paid
therefor. Portal shall have no obligations under this Section 12.1 to the extent
noncompliance results from (a) modification of the Licensed Software not
authorized by Portal, or (b) use of the Licensed Software for a purpose or in a
manner other than that for which it was designed. This Section 12.1 states
Portal's entire liability and Licensee's exclusive remedy with respect to any
breach by Portal of this Section 12.1.
12.2 Portal warrants that any services (including without limitation Solution
Services, training, implementation workshop or Support Services) performed under
this Agreement will be performed in a professional workmanlike manner consistent
with prevailing industry practices.
13 WARRANTY DISCLAIMER
EXCEPT AS EXPLICITLY SET FORTH IN SECTIONS 11 AND 12 ABOVE, PORTAL AND ITS
LICENSORS MAKE NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR STATUTORY REGARDING
OR RELATING TO THE LICENSED SOFTWARE OR THE DOCUMENTATION, OR ANY MATERIALS OR
SERVICES FURNISHED OR PROVIDED TO LICENSEE UNDER THIS AGREEMENT. SPECIFICALLY,
PORTAL DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR FREE OR WILL
PERFORM IN AN UNINTERRUPTED MANNER. TO THE MAXIMUM EXTENT ALLOWED BY LAW, PORTAL
SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF SATISFACTORY QUALITY,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF PORTAL HAD BEEN
INFORMED OF SUCH PURPOSE) WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION
AND SERVICES AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
14 LIMITATION OF LIABILITY
14.1 IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF
REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, WHETHER
IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY AGREES TO TAKE REASONABLE ACTION TO
MITIGATE ITS DAMAGES. LICENSEE AGREES TO REGULARLY BACK UP ITS DATABASE(S) IN
ACCORDANCE WITH REASONABLE INDUSTRY PRACTICES.
14.2 EXCEPT IN THE CASE OF A BREACH OF SECTION 4 (LICENSE RESTRICTIONS), 11
(INFRINGEMENT INDEMNITY) OR 17 (CONFIDENTIALITY) NEITHER PARTY'S OR ITS
LICENSORS' LIABILITY FOR ANY DAMAGES SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL
FEES PAID AND OWED TO PORTAL UNDER THIS AGREEMENT.
15 AUDIT RIGHTS/QUARTERLY REPORTS
15.1 Licensee shall keep and maintain full, accurate and detailed records
regarding its payment obligations, the licenses granted under this Agreement and
the number and types of Subscribers in the Licensed Software Database and/or the
number of CDRs processed. Portal may, at its expense, no more than once per
year, and on thirty (30) days prior written notice, audit Licensee's use of the
Licensed Software and compliance with this Agreement. Any such audits shall
occur during normal business hours and shall not unreasonably interfere with
Licensee's business operations. If any such audit reveals a deficiency in any
amounts due to Portal hereunder, Licensee will be invoiced for such underpaid
fees based on the Price List in effect at the time the audit is completed. If
the underpaid fees exceed five percent (5%) of the license fees paid, then
Licensee shall also pay Portal's reasonable costs of conducting the audit.
Audits shall be conducted no more than once annually.
15.2 Commencing ninety (90) calendar days from each applicable Licensed
Software Delivery Date, Licensee will provide Portal with quarterly reports
("License Compliance Reports") setting forth (i) the total numbers and types of
Subscribers in the Licensed Software Database if a number of Subscribers is
specified on the applicable Schedule A, (ii) the number of CDRs processed by the
Licensed Software, if a CDR limit is specified in the applicable Schedule A
(iii) Revenue for the applicable calendar quarter and the cumulative Revenue to
date commencing from the applicable Schedule A Effective Date if a Revenue limit
is specified in Schedule A or if fees are based on Revenue (iv) a statement of
any additional license and Support Services fees owed to Portal and a reasonable
summary of how such amounts were calculated, and (v) the then-current addresses
of all locations where the Licensed Software is installed. Within thirty (30)
days following the end of each calendar quarter the License Compliance Reports
shall be sent to Portal care of (or such other address as Portal may designate
in writing):
License Compliance Division
Portal Software, Inc.
10200 South De Anza Boulevard
Cupertino, CA 95014
16 ASSIGNMENT/BINDING AGREEMENT
Neither this Agreement nor any rights under this Agreement may be assigned or
otherwise transferred by Licensee (by operation of law or otherwise), in whole
or in part, including by way of merger, acquisition or sale of all or
substantially all of the assets in one or more related transactions, without
Portal's prior written consent.
17 CONFIDENTIALITY
Each Party acknowledges that the Confidential Information constitutes valuable
trade secrets and each party agrees that it shall use the Confidential
Information of the other party solely in accordance with the provisions of this
Agreement and it will not disclose, or permit to be disclosed, the same directly
or indirectly, to any third party without the other party's prior written
consent. Notwithstanding the foregoing, either party may disclose Confidential
Information, in whole or in part (i) to its employees, officers, directors,
Licensors and or subcontractors who have a reasonable need to know and are
legally bound to keep such information confidential by confidentiality
obligations consistent with those of this Agreement, (ii) to its financing
sources, auditors, attorneys, other agents, financial institutions, professional
advisors and/or substantial potential investors having a reasonable need to
know, having no reasonably anticipated conflict of interest with the other
Party, and under a contractual or professional duty to maintain the
confidentiality of the terms and conditions disclosed thereto. Each party agrees
to exercise due care in protecting the Confidential Information from
unauthorized use and disclosure. However, neither party bears any responsibility
for safeguarding any information that it can document in writing (a) is in the
public domain through no fault of its own, (b) was properly known to it, without
restriction, prior to disclosure by disclosing party, (c) was properly disclosed
to it, without restriction, by another person with the legal authority to do so,
(d) is independently developed by receiving party without use of or reference to
disclosing party's Confidential Information or (e) is required to be disclosed
pursuant to a judicial or legislative order or proceeding; provided that, to the
extent permitted by and practical under the circumstances, receiving party
provides to disclosing party prior notice of the intended disclosure and an
opportunity to respond or object to the disclosure or if prior notice is not
permitted or practical under the circumstances, prompt notice of such
disclosure. In the event of actual or threatened breach of the provisions of
Section 4 or Section 17, the non-breaching party will be entitled to seek
immediate injunctive and other equitable relief, without waiving any other
rights or remedies available to it.
18 NOTICE
Any notice required or permitted under the terms of this Agreement or required
by law must be in writing and must be (a) delivered in person, (b) sent by
registered mail, return receipt requested, (c) sent by overnight air courier, or
(d) by facsimile, in each case forwarded to the appropriate address set forth
above. Either party may change its address for notice by written notice to the
other party. Notices will be considered to have been given at the time of actual
delivery in person, three (3) business days after posting, or one (1) business
day after (i) delivery to an overnight air courier service or (ii) the moment of
transmission by facsimile.
19 MISCELLANEOUS
19.1 Neither party will incur any liability to the other on account of any
loss or damage resulting from any delay or failure to perform all or any part of
this Agreement if such delay or failure is caused, in whole or in part, by
events, occurrences, or causes beyond its control and without negligence of the
parties. Such events, occurrences or causes will include, without limitation,
acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and
explosions, but the ability to meet financial obligations is expressly excluded.
19.2 Any waiver of the provisions of this Agreement or of a party's rights or
remedies under this Agreement must be in writing to be effective. Failure,
neglect or delay by a party to enforce the provisions of this Agreement or its
rights or remedies at any time will not be construed to be deemed a waiver of
such party's rights under this Agreement and will not in any way affect the
validity of the whole or any part of this Agreement or prejudice such party's
right to take subsequent action.
19.3 If any term, condition or provision in this Agreement is found to be
invalid, unlawful or unenforceable to any extent, the parties shall endeavor in
good faith to agree to such amendments that will preserve, as far as possible,
the intentions expressed in this Agreement. If the parties fail to agree on such
an amendment, such invalid term, condition or provision will be severed from the
remaining terms, conditions and provisions, which will continue to be valid and
enforceable to the fullest extent permitted by law.
19.4 This Agreement (including the Schedules and any addenda hereto signed by
both parties) contains the entire agreement of the parties with respect to the
subject matter of this Agreement and supersedes all previous communications,
representations, understandings and agreements, either oral or written, between
the parties with respect to said subject matter. No employee, agent,
representative or affiliate of Portal has authority to bind Portal to any oral
representations or warranty concerning the Licensed Software. Any written
representation or warranty not expressly contained in this Agreement is
unenforceable. This Agreement may not be modified or amended except in writing
signed by a duly authorized representative of each party. No other act,
document, usage or custom shall be deemed to amend or modify this Agreement.
19.5 No terms, provisions or conditions of any purchase order,
acknowledgement or other business form that Licensee may use in connection with
the acquisition or licensing of the Licensed Software will have any effect on
the rights, duties or obligations of the parties
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under, or otherwise modify, this Agreement, regardless of any failure of Portal
to object to such terms, provisions, or conditions.
19.6 The parties agree to reasonably cooperate in joint marketing and public
relations activities including without limitation the issuance of a joint press
release announcing Licensee's selection of the Portal solution and participation
in Portal's Success Stories program. Licensee's public relations personnel will
have an opportunity to review and approve the final draft of any joint public
relations materials before distribution to the press. Following successful
implementation of the Licensed Software and at Portal's request, Portal shall be
permitted to conduct a brief telephone interview (not to exceed thirty minutes
without Licensee's consent) with a senior-level spokesperson within Licensee's
organization involved with the implementation of the Portal solution. Portal may
write and publish a high-level success story profile based on the interview and
discussing the reasons supporting Licensee's choice of the Portal solution and
the benefits realized by Licensee. Licensee shall have final approval over the
final content of such literature prior to initial distribution by Portal. Except
as provided in this Agreement, neither party will engage in joint public
relations activities without the prior written consent of the other party, which
consent shall not be unreasonably withheld, conditioned or delayed.
19.7 Licensee agrees to be a reference account for Portal and will, at
Portal's request, participate in at least four (4) telephone reference inquiries
per year and at least one (1) onsite visit per year provided that Portal shall
give Licensee reasonable advance notice of not less than (i) 48 hours in the
case of a telephone reference visit and (ii) 7 days in the case of an onsite
visit. Further, Portal shall be permitted to identify Licensee as a customer on
its customer lists and investor calls.
19.8 This Agreement may be executed simultaneously in two (2) or more
counterparts, each of which will be considered an original, but all of which
together will constitute one and the same instrument. The exchange of a fully
executed Agreement (in counterparts or otherwise) by fax shall be sufficient to
bind the parties to the terms and conditions of this Agreement.
19.9 Portal is an independent contractor; nothing in this Agreement shall be
construed to create a partnership, joint venture or agency relationship between
the parties.
19.10 If this license is acquired under a U. S. Government contract, use,
duplication or disclosure by the U. S. Government is subject to restrictions set
forth in FAR subparagraphs 52.227-19(a)-(d) for civilian agency contracts and
DFARS 252.227-7013(c)(ii) for Department of Defense contracts. Portal reserves
all unpublished rights under United States copyright laws.
19.11 In the event that this Agreement or the licenses granted hereunder
should ever become subject to US bankruptcy proceedings, all rights and licenses
granted under or pursuant to this Agreement by Portal to Licensee are, and shall
otherwise be deemed to be, licenses of rights to "intellectual property" as
defined in Section 365(n) of the Bankruptcy Code (11 U.S.C. Section 101 et.
seq.). The parties agree that Licensee, as a licensee of such rights, shall
retain and may fully exercise all of the rights and election under Section
365(n) of the Bankruptcy Code. The parties further agree that, in the event that
any proceeding shall be instituted by or against Portal seeking to adjudicate it
bankrupt, or insolvent, or seeking liquidation, winding up, reorganization,
insolvency or reorganization, or relief of debtors, or seeking an entry of an
order of relief, or the appointment of a receiver, trustee or other similar
official for it or any substantial part of its property or it shall take any
action to authorize any of the foregoing actions, Licensee shall have the right
to retain and enforce its rights under this Agreement as provided under Section
365(n) of the Bankruptcy Code, including but not limited to, the right to
continue to use the Licensed Software in accordance with the terms and
conditions of this Agreement.
19.12 This Agreement will be interpreted and construed pursuant to the laws of
the State of California and the United States without regard to conflict of laws
provisions thereof, and without regard to the United Nations Convention on the
International Sale of Goods. Any legal action or proceeding relating to this
Agreement shall be instituted in a state or federal court in Santa Clara County,
California. Portal and Licensee agree to submit to the jurisdiction of, and
agree that venue is proper in, these courts in any such action or proceeding.
19.13 The prevailing party in any action to enforce this Agreement will be
entitled to recover its reasonable attorney's fees and costs in connection with
such action.
19.14 The provisions of this Agreement allocate the risks between Portal and
Licensee. Licensee's pricing reflects this allocation of risk and the limitation
of liability specified in this Agreement.
19.15 The parties have requested that this Agreement and all documents
contemplated hereby be drawn up in English.
IN WITNESS WHEREOF, the authorized representatives of the parties hereby bind
the parties by signing below:
-----------------------------------------------------
"Licensee"
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
Date:
------------------------------------------------
Portal Software, Inc.
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
Date:
------------------------------------------------
Confidential Page 4 of 7
<PAGE>
Portal Proprietary & Confidential
SCHEDULE A
This Schedule is made a part of the Software License Agreement dated as of
, 2002 between Portal Software, Inc. ("Portal") and
----- --------------
("Licensee") (the Agreement"). This Schedule A shall become effective on the
date it is signed by Portal ("Schedule A Effective Date")
1 LICENSED SOFTWARE
-------------------------
The following Portal Software products and their associated online documentation
will be provided by Portal and will comprise the "Licensed Software":
1.1 As of the Schedule A Effective Date, the most recent generally
commercially available English language version of:
o Infranet Base System
o Infranet Brand Manager
o Infranet DNA
o Infranet MultiDB
o Infranet InterConnect
o Infranet Provision
o Infranet RADIUS Manager
o Infranet Email Manager
o Infranet Netflow Manager
o Infranet IPT Manager
o Infranet EAI Manager
o Infranet LDAP Manager
o Infranet GPRS Manager
o Infranet WAP Manager
o Infranet Taxation Connector (Vertex)
o Infranet Taxation Connector (Billsoft)
o Infranet Taxation Connector (Taxware)
o Infranet Vertex Quantum Manager
o Infranet OpenWave MAG Connector
o Infranet Payment Connector (PaymentTech)
o Infranet Payment Connector (Bertelsmann)
o Infranet Resource Reservation Framework
o Infranet Microsoft Exchange Connector
o Infranet Cable & Satellite
o Infranet Cable & Satellite Framework
o Infranet Broadband Manager
o Infranet Video Manager
o Infranet NDS Agent
o Infranet Content Connector
o Infranet Developer Suite & SDKs (1 user)
o Seagate Reports for Infranet consisting of one (1) Seat for
Seagate(R)Crystal Info Designer Add-in Tool and two (2) Seats
for Seagate Crystal Info Desktop Client
o Business Policy Facilities Modules Source Code
2 APPLICATION /TERM/LICENSE LIMITS
2.1 Application: [FOR REVENUE BASED DEALS -The
-----------------------
Licensed Software shall not be used in connection with the provision
of "no-fee" or "free" services for which Licensee does not charge
access or usage fees.]
2.2 Term: [Perpetual] [ years from the Schedule A Effective Date]
----
Page A-5
<PAGE>
Portal Proprietary & Confidential
2.3 Initial License Limit: [ Subscribers] [ CDRs] [
-------- -------- --------
Transactions] [$ of Revenue per {year}{quarter}]
--------
2.4 Subscriber Types:
2.5 Geographic Territory:
3 INSTALLATION SITES
---------------------------
3.1 Production Site:
3.2 Development Site:
3.3 Backup Site:
4 LICENSE AND MAINTENANCE SUPPORT SERVICE FEES
---------------------------------------------------
4.1 Software License Fees
[FOR REVENUE DEALS - LICENSEE WILL PAY PORTAL, QUARTERLY IN ARREARS IN
ACCORDANCE WITH SECTION OF THIS AGREEMENT ("QUARTERLY REPORTS") AN
---
AMOUNT EQUAL TO THREE PERCENT (3%) OF QUARTERLY REVENUES. THE FOREGOING
AMOUNT SHALL BE EXCLUSIVE OF STANDARD LEVEL MAINTENANCE SUPPORT SERVICES.
[WITHIN THIRTY (30) DAYS OF THE SCHEDULE A EFFECTIVE DATE LICENSE SHALL PAY
PORTAL A PREPAYMENT IN THE AMOUNT OF DOLLARS ($ )
----------------- --------
WHICH SHALL BE APPLIED AGAINST ITS FUTURE PAYMENT OBLIGATIONS UNDER THIS
AGREEMENT.]
4.2 Software License Fees
The following table sets forth the license fees for use of the Licensed
Software for the Application for the number of Subscribers set forth in
Section 2.3 above.
-------------------------------------------------------------------------------
Description License Fee Payment Due Date
--------------------------------------------------------------------------------
Licensed Software $
--------------------------------------------------------------------------------
Infranet InterConnect
--------------------------------------------------------------------------------
Infranet Provision
--------------------------------------------------------------------------------
Infranet Content Connector
--------------------------------------------------------------------------------
4.3 Annual Gold Level Support Services Fees
Portal will provide one year of Standard Level Maintenance Support Services
from the Schedule A Effective Date for the number of Subscribers set forth
in Section 2.3 above for the fee set forth below.
-------------------------------------------------------------------------------
Description Annual Fee Payment Due Date
--------------------------------------------------------------------------------
Standard Level Support
Services $
--------------------------------------------------------------------------------
5 ADDITIONAL SUBSCRIBER LICENSE AND SUPPORT SERVICES FEES
-------------------------------------------------------------
For one (1) year from the Schedule A Effective Date Licensee may purchase
licenses to use the Licensed Software for the Application for additional
Subscribers ("Additional Subscribers") for the amounts set forth below and
by using the Order Form attached to this Agreement as Schedule B.
Additional Subscribers must be licensed in the incremental blocks specified
and not one at a time. Associated Annual Support Services fees are due when
Additional Subscribers are licensed but will be prorated over the remainder
of the annual Support Services term during which they are added.
--------------------------------------------------------------------------------
Subscriber Numbers Subscribers in License Fee per Annual Support
Block Block Services Fee Per Block
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Page A-6
<PAGE>
Portal Proprietary & Confidential
6 TRAINING
---------------
Portal will provide training in accordance with attached Schedule .
----
Training fees shall be due and payable within thirty (30) days of the
Schedule A Effective Date. Such training must be utilized within twelve
(12) months of the Schedule A Effective Date.
7 SOLUTION SERVICES
------------------------
Portal will provide [hours/days] (in blocks of 8 hours per day) of
----
Solution Services in accordance with attached Schedule for a fee of
---
($ ), (plus actual and reasonable travel and expenses)
--------------- ------
due and payable within thirty (30) days of the Schedule A Effective Date.
Solution Services must be utilized within twelve (12) months of the
Schedule A Effective Date.
Portal Software, Inc.
"Portal" "Licensee"
By: By:
------------------------------------- -------------------------------------
Name: Name:
----------------------------------- -----------------------------------
Title: Title:
---------------------------------- ----------------------------------
Date: Date:
----------------------------------- -----------------------------------
Page A-7