EXHIBIT 10.13
ISV SOFTWARE LICENSE AGREEMENT
This ISV Software License Agreement is entered into this 29th day of
January, 1999 (the "Effective Date") by and between BEA WebXpress, Inc., a
Delaware corporation with principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WebXpress") and Blue Martini Software,
a Delaware corporation with principal offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Licensee").
Recitals
Whereas, WebXpress desires to grant to Licensee, and Licensee desires to
receive from WebXpress, a worldwide, non-exclusive license to integrate
WebXpress's proprietary software in object code format into Integrated Products
(as hereinafter defined), and to distribute such WebXpress software as
integrated into Integrated Products, all in accordance with the terms of this
Agreement.
Now, Therefore, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
Agreement
1. Definitions.
For purposes of this Agreement the following terms shall have the meanings
set forth below:
1.1 "Affiliate" means an entity controlling, controlled by, or under
common control with Licensee. For purposes of this definition, "control" or any
correlative form thereof, means the ownership of more than fifty percent of the
voting stock of such entity, or if such entity is not a corporation, the ability
to control the day-to-day operations and business of such entity.
1.2 "Distributor" means an Affiliate, or third party distributor or
reseller, appointed by Licensee under the terms of this Agreement, who acquires
Integrated Products from Licensee solely for the purpose of distributing such
Integrated Products to End-Users, and not for such party's internal business
purposes. Any Distributor who seeks to make use of any Integrated Product for
its own internal business purposes must do so under the terms of an End-User
License Agreement.
1.3 "Distribution Agreement" means a written agreement between Licensee
and a Distributor, signed by both parties, covering the distribution by such
Distributor of any Integrated Product to End-Users, which agreement is
consistent with, and no less protective of WebXpress's proprietary and
intellectual property rights, than the terms of this Agreement.
1.4 "End-User" means a person or entity who acquires Integrated Products
from Licensee or a Distributor for such person or entity's internal business
purposes, and not for sale, resale, lease or any other form of distribution to
third parties.
[...***...] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
1.
1.5 "End-User License Agreement" means a written agreement between either
Licensee or a Distributor, and an End-User, which agreement is either signed by
both parties or is in "shrinkwrap" or "clickwrap" form, covering the licensing
of an Integrated Product to such End-User. Such agreement must be consistent
with, and no less protective of WebXpress's proprietary and intellectual
property rights in the WebXpress Software, than the terms of this Agreement.
Without limitation, an End-User License Agreement must contain terms consistent
with the applicable provisions of Section 2 of this Agreement.
1.6 "Integrated Product" means an application software product created by
Licensee through the integration of WebXpress Software with application software
programs proprietary to or licensed by Licensee ("Licensee Applications"). All
Integrated Products are subject to the restrictions on development, use and
distribution set forth in Section 2 of this Agreement. The Integrated Products
covered by this Agreement are described in greater detail in Schedule B,
attached hereto and made a part hereof.
1.7 "WebXpress Software" means the machine-readable, compiled, object code
form of WebXpress's proprietary software and associated documentation. The
specific WebXpress Software covered by this Agreement is set forth on Schedule
A, attached hereto and made a part hereof. Provided that Licensee is not in
material breach of this Agreement and is current in its payment of annual
support fees, the WebXpress Software covered by this Agreement shall also
include the object code form of any subsequent releases or successor products of
the WebXpress Software set forth, on Schedule A, and any modifications
(including bug fixes, error corrections, enhancements and updates) to which
Licensee may be entitled pursuant to the terms Schedule E.
2. License Grant.
2.1 License To Reproduce And Distribute. Subject to the terms and
conditions of this Agreement, WebXpress hereby grants to Licensee, under
WebXpress's intellectual property rights in and to the WebXpress Software, a
worldwide, non-exclusive, non-transferable license: (i) to integrate the
WebXpress Software into Integrated Products; (ii) to reproduce the WebXpress
Software as so integrated into Integrated Products; and (iii) to distribute the
WebXpress Software as integrated into Integrated Products solely to End-Users
who are subject to an End-User License Agreement. Licensee shall make no use of
any copies of the WebXpress Software except as provided in this Section 2.1.
Licensee may sublicense the distribution rights granted under this Section 2.1
solely as described in Section 2.2. WebXpress shall deliver to Licensee all
license keys, consistent with Schedules A and C on the effective date. All
rights not specifically granted herein shall be retained by WebXpress.
2.2 Sublicensing. WebXpress grants to Licensee the right to appoint
Distributors to distribute the Integrated Products to End-Users. All
Distributors appointed by Licensee must execute a Distribution Agreement.
Licensee will use reasonable commercial efforts to ensure that such Distributors
comply with the terms of their respective Distribution Agreements and will
inform WebLogic promptly of any known violation, infringement or breach.
2.3 Restrictions. Licensee's rights under Section 2.1 are, without
limitation on any other restrictions set forth in this Agreement, subject to the
following limitations and restrictions:
2.
(i) Each Integrated Product made available for distribution to End-
Users must be developed so that the WebXpress Software and any of its API's are
not directly accessible to the End-User, i.e. an End-User using the Integrated
Product will have direct access only to the Licensee Application portion of such
product;
(ii) Each and every End-User Agreement and each and every Distributor
Agreement shall provide that the End-User or Distributor, as the case may be,
may not under any circumstances attempt, or knowingly permit or encourage others
to attempt to decompile, decipher, disassemble, reverse engineer or otherwise
decrypt or discover the source code of all or any portion of the Integrated
Product, including the WebXpress Software embedded therein;
(iii) Each and every End-User Agreement shall provide that the End-
User may not under any circumstances use the WebXpress Software or any of its
API's in any manner except indirectly in connection with the use of the Licensee
Application portion of the Integrated Product, and that the End User may not run
any third party software applications on the WebXpress Software or any of its
API's, without first purchasing a license for such use from WebXpress;
(iv) Licensee may not, under any circumstances, distribute the
WebXpress Software or any of its API's as standalone products;
(v) Licensee shall not integrate the WebXpress Software with any
products other than the Integrated Products without first obtaining WebXpress's
prior written consent.
2.4 Licensee Certification. Licensee represents and warrants to and
for the benefit of WebXpress that each Integrated Product contains a significant
enhancement of features and/or functionality to the WebXpress Software embedded
therein, and that each Integrated Product is substantially different from any of
WebXpress's products and does not compete with any WebXpress products.
2.5 Proprietary Notices. Licensee shall not remove, efface or obscure any
copyright notices or other proprietary notices or legends from any WebXpress
Software or WebXpress material provided hereunder, and shall reproduce all such
notices and legends when incorporating the WebXpress Software into the
Integrated Products.
2.6 Branding and Quality Control Provisions.
2.61 "WebXpress Charged" Seal. Licensee shall insert and maintain the
"WebXpress Charged" seal (the "Seal") within the Integrated Product such that
users of the Integrated Product are exposed to the Seal during normal use of the
product. The Seal shall at least be featured under any "About" menu item
describing the Integrated Product's release details. Licensee shall insert and
maintain the Seal within related marketing materials for the Integrated Product
including Licensee's website. The Seal is available to the Licensee from the
WebXpress website at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇.
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2.62 Quality Control Provisions. The use of WebXpress's marks
pursuant to Sections 2.5 and 2.6 in the Licensee Application(s) shall be of at
least the same quality as Licensee's use in their other products of
3.
a similar nature, or, if Licensee has no other products of a similar nature, the
use of WebXpress's marks pursuant to Sections 2.5 and 2.6 in the Licensee's
Applications shall be of at least the same quality as the average quality of
other products of a similar nature which are generally available to the public.
2.63 Licensee agrees to include a referral to the WebXpress website
on the Licensee's website.
2.7 Ownership. The WebXpress Software is licensed, not sold to Licensee.
Except as specifically licensed to Licensee hereunder, WebXpress retains all
right, title and interest, including all intellectual property rights, in and to
the WebXpress Software.
2.8 Evidence of Compliance. Upon reasonable request of WebLogic, Licensee
shall promptly, and in any event within thirty (30) days, provide WebLogic with
any and all evidence reasonably necessary to confirm Licensee's compliance with
the provisions of Sections 2.1 through 2.6.
3. Royalties and Support Fees.
3.1 Royalty and Support Fees. Licensee shall owe to WebXpress royalties
and support fees as set forth on Schedule C. All royalties and support fees will
be paid on a calendar quarterly basis within 30 days after the end of the
quarter. Included with the payment, Licensee will provide WebXpress a report
containing the number of customers (including End-Users, ISV's and Distributors)
receiving the Integrated Product and the quantity shipped in the previous
quarter.
3.2 Audit. Licensee shall maintain complete and accurate accounting and
distribution records, in accordance with generally accepted accounting
practices, to support and document royalties payable in connection with this
Agreement. Such records shall be retained for a period of three (3) years after
the royalties which relate to such records have been accrued and paid. Licensee
shall, upon written request from WebXpress, provide access to such records to an
independent auditor chosen by WebXpress and reasonably acceptable to Licensee
for the purposes of audit. If any such audit discloses a shortfall in payment to
WebXpress of more than [...***...] for any quarter, Licensee agrees to pay or
reimburse WebXpress for the expenses of such audit. If any such audit discloses
a shortfall in payment to WebLogic, which is not related to an accounting error,
of more than [...***...] and [...***...] for any quarter, WebLogic may terminate
this Agreement.
3.3 Taxes. Licensee shall complete the Resale Certificate attached in
Schedule D. Licensee agrees to provide WebXpress with further documentation, as
reasonably necessary, supporting such status at WebXpress's expense. Licensee
shall be responsible for any sales or use or other taxes (other than taxes based
on WebXpress's net income) to the extent that any such taxes may arise in
connection with this Agreement. Licensee agrees that the amounts to be remitted
to WebXpress are to be the actual amounts due without withholding taxes or other
assessments by authorities anywhere in the foreign location. If any withholding
tax is imposed under the laws of a country or other taxing jurisdiction outside
of the United States on any amounts paid to the WebXpress, such amounts will be
increased by the amount of the withholding tax. Licensee shall be solely
responsible for and shall pay any and all amounts
[...***...] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
4.
required in the foreign location to be withheld, charged, deducted, or assessed
against such payment amounts, and will promptly furnish WebXpress with
certificates evidencing payment of such amounts.
4. Warranties and Support.
4.1 Limited Warranty. WebXpress warrants that for a period of ninety (90)
days following delivery to Licensee, the WebXpress Software will perform
substantially in accordance with the accompanying WebXpress Documentation.
WebXpress does not warrant that the WebXpress Software will be error-free or
will operate without interruption. Licensee's exclusive remedy for breach of the
warranty contained in this Section 4.1 shall be the prompt correction of any
such failure to perform.
4.2 WebXpress Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN
SECTION 4.1, WEBLOGIC HEREBY DISCLAIMS ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR
STATUTORY, WITH RESPECT TO THE WEBLOGIC SOFTWARE, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFR1NGEMENT.
4.3 Service and Support. Subject to payment of any applicable support fees
set forth in Schedule C by Licensee, WebXpress agrees to provide support and
software upgrades as described in Schedule E.
4.4 End-User Support. Licensee shall, at its own expense, be solely
responsible for providing technical support (including without limitation
warranty service) and training to its Distributors and End-Users for the
Integrated Products. Licensee shall ensure that all questions from Distributors
or End-Users regarding the use or operation of the Integrated Products are
addressed to and answered by Licensee. WebXpress shall provide second-line
support to Licensee as set forth on Schedule E.
5. Indemnification.
5.1 WebXpress Indemnity. WebXpress shall indemnify, defend and hold
Licensee harmless from and against any claim that the WebXpress Software as used
within the scope of this Agreement infringes the copyright, trademark, trade
secret or patent issued as of the Effective Date of any third party, provided
that (i) Licensee notifies WebXpress promptly in writing of the claim; (ii)
WebXpress has sole control of the defense and all related settlement
negotiations; and (iii)Licensee provides WebXpress with all necessary
assistance, information, and authority to perform the above..
5.2 Exclusions. WebXpress shall have no liability for any claim of
infringement based on (i) use of other than a then currently supported version
of the WebLogic Software provided to Licensee, to the extent the infringement
would have been avoided by use of such version; (ii) modification of the
WebXpress Software by Licensee to the extent the infringement would have been
avoided without such modification; or (ii)the combination or use of the
WebXpress Software furnished hereunder with materials not furnished by WebXpress
to the extent such infringement would have been avoided by use of the WebXpress
materials alone..
5.
5.3 Alternatives. In the event the WebXpress Software is held to, or
WebXpress believes is likely to be held to, infringe any third party copyright,
trademark, trade secret or United States patent issued as of the Effective Date,
WebXpress shall have the right at its sole option and expense to (i) substitute
or modify the WebXpress Software so that it is non-infringing, while retaining
equivalent features and functionality; or (ii)obtain for Licensee a license to
continue using the WebXpress Software under commercially reasonable terms; or
(iii) if (i) and (ii) are not reasonably practicable, terminate this Agreement
as to the infringing WebXpress Software and return to Licensee any license fees
paid by Licensee hereunder with respect thereto, amortized over a period of
three years, which period the parties agree is represents the useful life of the
WebXpress Software.
5.4 Sole Obligation. The foregoing states the sole obligation and
exclusive liability of WebXpress, and Licensee's sole recourse and remedy for
any infringements or claims of copyright and patent infringement by the
WebXpress Software.
5.5 Licensee Indemnity. Licensee agrees to indemnify, defend and hold
WebXpress harmless from and against any costs, losses, liabilities, claims or
expenses (including attorneys' fees) arising out of: (i) any claim that any
Integrated Product infringes upon the intellectual property or proprietary
rights of any third party, except to the extent such arises from infringement of
such rights by the WebLogic Software: (ii) the distribution of any Integrated
Product by Licensee or its Distributors; or (iii) the use of any Integrated
Product by any End- User, Distributor or third party. Notwithstanding the
foregoing, Licensee will not have any , ,, indemnification liability to
WebXpress to extent that a claim by a third party is based on a failure of the
WebXpress Software to operate in accordance with the WebXpress Documentation.
Nothing in this Section 5.5 shall be construed to be an extension of WebXpress's
warranty obligations set forth in Section 5.1. The foregoing indemnity states
the sole obligation and exclusive liability of Licensee, and WebXpress's sole
recourse and remedy for any infringements or claims of copyright and patent
infringement by the Integrated Products.
6. Term and Termination.
6.1 Initial Term. This Agreement shall become effective on the Effective
Date and shall remain in effect for a period of three (3) years and six (6)
months thereafter unless the Agreement is terminated as provided below.
6.2 Termination.
6.2.1 Breach. 'If either party defaults in a payment or other material
obligation under this Agreement and, in the case of breaches capable of cure,
fails to completely cure such default for a period of thirty (30) days after
written notice of default from the non-breaching party, the non-breaching party
may terminate this Agreement, in accordance with the provisions of this Section
6, upon written notice of termination given to the defaulting party.
6.2.2 Insolvency. Notwithstanding anything contained herein to the
contrary, either party may terminate this Agreement immediately by notice to the
other if:
(i) the other ceases to carry on its business; or (ii) a
receiver or similar officer is appointed for the other and is not discharged
within thirty (30) days; or
6.
(ii) the other becomes insolvent, admits in writing its
inability to pay debts as they mature, is adjudicated bankrupt, or makes an
assignment for the benefit or its creditors or another arrangement of similar
import; or
(iii) proceedings under bankruptcy or insolvency laws are
commenced by or against the other and are not dismissed within (30) days.
6.3 Effect Of Termination. Upon termination of this Agreement, (i) the
rights and licenses granted to Licensee pursuant to this Agreement shall
automatically terminate, (ii) Licensee shall certify to WebXpress that all
WebXpress Software subject to this Agreement and in Licensee's possession has
been destroyed or removed from Licensee's equipment and (iii) Licensee shall
cease to use all intellectual property of WebXpress. Within thirty (30) days of
termination, Licensee shall provide to WebXpress a royalty report and pay all
royalties accruing as of the date of termination, in accordance with Section
3.1. All licenses granted to End-User pursuant to appropriate End-User License
Agreements shall survive expiration or termination. Sections I, 2.7, 3, 4.2,
4.4, 5, 6.3, 7, 8 and 9 shall survive the expiration or earlier termination of
this Agreement.
7. Confidentiality.
7.1 Definition. For purposes of this Agreement, "Confidential Information"
of a party means information or materials disclosed or otherwise provided by
such party ("Disclosing Party") to the other party ("Receiving Party") that are
identified as confidential or proprietary. "Confidential Information" does not
include that which (i)was known to the Receiving Party, without restriction and
without duty of confidentiality, at the time of disclosure, as evidenced by the
written records of Receiving Party, (ii) is or becomes part of public knowledge
other than as a result of any action or inaction of the Receiving Party, (iii)
is obtained by the Receiving Party from an unrelated third party without a duty
of confidentiality, or (iv) is independently developed by the Receiving Party
without reliance upon or use of the Confidential Information of the Disclosing
Party. Without limiting the generality of the foregoing, and notwithstanding the
exclusions hereinbefore set forth, "Confidential Information" of WebXpress
includes the WebXpress Software and any information relating to the development,
design, manufacture and specifications of WebXpress Software.
7.2 Restrictions on Use and Disclosure. The Receiving Party shall
not use Confidential Information of the Disclosing Party for any purpose other
than in furtherance of this Agreement and the activities described herein. The
Receiving Party shall not disclose Confidential Information of the Disclosing
Party to any third parties except as otherwise permitted hereunder. The
Receiving Party may disclose Confidential Information of the Disclosing Party
only to those employees, consultants or sub-Licensees who have a need to know
such Confidential Information and who are bound to retain the confidentiality
thereof under provisions (including, without limitation, provisions relating to
nonuse and nondisclosure) no less restrictive than those required by the
Receiving Party for its own comparable Confidential Information. The Receiving
Party shall maintain Confidential Information of the Disclosing Party with at
least the same degree of care it uses to protect its own proprietary information
of a similar nature or sensitivity, but no less than reasonable care under the
7.
circumstances. Any copies of the Disclosing Party's Confidential Information
shall be identified as belonging to the Disclosing Party and prominently marked
"Confidential."
7.3 Legal Obligation to Disclose. This Agreement will not prevent the
Receiving Party from disclosing Confidential Information of the Disclosing Party
to the extent required by a judicial order or other legal obligation, provided
that, in such event, the Receiving Party shall promptly notify the Disclosing
Party to allow intervention, and shall cooperate with the Disclosing Party to
contest or minimize the scope of the disclosure (including application for a
protective order). Each party shall advise the other party in writing of any
misappropriation or misuse of Confidential Information of the other party of
which the notifying party becomes aware.
7.4 Injunctive Relief. Each party acknowledges that the Confidential
Information of the Disclosing Party are valuable trade secrets the Disclosing
Party and that any unauthorized use or disclosure of such information would
cause the Disclosing Party irreparable harm for which its remedies at law would
be inadequate. Accordingly, the Receiving Party acknowledges and agrees that the
Disclosing Party shall be entitled, in addition to any other remedies available
to it at law or in equity, to seek the issuance of injunctive or other equitable
relief.
7.5 Return of Confidential Information. Upon the expiration or earlier
term of this Agreement, each party (as Receiving Party) shall immediately return
to the Disclosing Party all Confidential Information of the Disclosing Party
embodied in tangible form, or certify in writing to the Disclosing Party that
all such Confidential Information has been destroyed. The terms of this Section
7 shall survive the expiration or earlier termination of this Agreement for a
period of five (5) years.
7.6 Source Code Protections. Licensee shall not under any circumstances
attempt, or knowingly permit or encourage any End-User, Distributor or third
party to decompile, decipher, disassemble, reverse engineer or otherwise decrypt
or discover the source code for the WebXpress Software.
8. Limitation of Liability.
EXCEPT FOR BREACHES OF SECTION 2 OR SECTION 7, IN NO EVENT SHALL EITHER
PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES IN ANY WAY ARISING OUT OF THIS AGREEMENT AND HOWEVER CAUSED AND UNDER
ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR LOSS OF
DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR BREACHES OF SECTION 2 OR SECTION 7 AND BOTH PARTIES OBLIGATIONS
PURSUANT TO SECTION 5, IN NO EVENT SHALL EITHER PARTY'S CUMULATIVE LIABILITY
ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO
WEBLOGIC PURSUANT TO THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
8.
9. Miscellaneous.
9.1 Confidentiality of Agreement. Both WebXpress and Licensee agree that
the terms and conditions of this Agreement shall be treated as Confidential
Information and that no reference to the terms and conditions of this Agreement
or to activities pertaining thereto can be made in any form without the prior
written consent of the other party; provided, however, that the existence of
this Agreement shall not be treated as Confidential Information and that either
party may disclose the terms and conditions of this Agreement:
(i) as required by any court or other governmental body;
(ii) as otherwise required by law;
(iii) to legal counsel of the parties;
(iv) in confidence, to accountants, banks, proposed investors, and
financing sources and their advisors;
(v) in confidence, in connection with the enforcement of this
Agreement or rights under this Agreement; or
(vi) in confidence, in connection with a merger or acquisition or
proposed merger or acquisition, or the like.
(vii) to the extent permitted by Licensee's labeling requirement and
marketing obligations under this Agreement.
9.2 Press Release. Upon mutual agreement, WebXpress and Licensee shall
issue a joint press release announcing the relationship contemplated by this
Agreement with mutual endorsements for Integrated Products and WebXpress
Software.
9.3 Customer Reference. The Licensee agrees that WebXpress may disclose
the name of the Licensee as a customer on the WebXpress web site and on other
promotional materials. Licensee further agrees to provide WebXpress with the
following customer reference information for possible use on WebXpress's web
site and on other promotional material in conjunction with the Licensee's name a
brief marketing summary of the Licensee's Integrated Products under this
Agreement. Licensee agrees to discuss the WebXpress Software with the press,
industry analysts and prospective (non-competitive) customers on a limited basis
to be mutually agreed upon by both parties.
9.4 Assignment. Licensee may not assign this Agreement or any rights or
obligations hereunder, by operation of law or otherwise, without the prior
written consent of WebXpress, which shall not be unreasonably withheld.
Notwithstanding the foregoing, Licensee may assign this Agreement in connection
with a merger or sale of substantially all its assets.
9.5 Notices. All notices between the parties shall be in writing and shall
be deemed to have been given if personally delivered or sent by certified or
registered mail (return receipt)
9.
or telecopy to the addresses set forth as follows, or such other address as is
provided by notice as set forth herein:
If to WebXpress to: Contract Administrator
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ,▇▇▇▇▇
If to Licensee to: Chief Financial Officer
Blue Martini Software, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices shall be deemed effective upon receipt or, if delivery is not effected
by reason of some fault of the addressee, when tendered.
9.6 Governing Law; Forum Selection. This Agreement shall be governed by
the laws of the State of California, as applied to agreements made, entered into
and performed entirely in California by California residents. All disputes
arising out of this Agreement shall be subject to the exclusive jurisdiction and
venue of the California state courts of San Francisco County, California (or, if
there is exclusive federal jurisdiction, the United Stated District Court for
the Northern District of California), and the parties consent to the personal
and exclusive jurisdiction of these courts. This Agreement shall not be governed
by the United Nations Convention on the International Sale of Goods.
9.7 Severability. Any term or provision of this Agreement held to be
illegal or unenforceable shall, if possible, be interpreted so as to be
construed as valid, but in any event the validity or enforceability of the
remainder hereof shall not be affected.
9.8 Legal Compliance. Licensee may not download or otherwise export or re-
export the WebXpress Software or any underlying information or technology except
in full compliance with all United States and other applicable laws and
regulations. In particular, but without limitation, none of the Software or
underlying information or technology may be downloaded or otherwise exported or
re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya,
North Korea, Syria, or Sudan, or (ii) to anyone on the US Treasury Department's
list of Specially Designated Nationals or the US Commerce Department's Table of
Deny Orders. By licensing the Software, Licensee is agreeing to the foregoing
and Licensee are representing and warranting that Licensee are not located in,
under control of, or a national or resident of any such country or on any such
list.
9.9 Waiver. The waiver of, or failure to enforce, any breach or default
hereunder shall not constitute the waiver of any other or subsequent breach or
default.
9.10 Independent Contractors. The relationship of the parties hereunder
shall be that of independent contractors, and nothing herein shall create or be
deemed to create a joint venture, partnership, agency or employer/employee
relationship. In no event will either party be permitted to make any agreement,
or represent that it is authorized to make any agreement, on behalf of the other
party, without the prior written consent of such other party.
10.
9.11 Escrow. Within thirty (30) days of the Effective Date of this
Agreement. WebXpress and Licensee shall enter into a source code escrow
agreement (the "Escrow Agreement") with an independent third party escrow agent
in the business of providing escrow services (the "Escrow Agent"), which
agreement shall provide as follows:
9.11.1 Deposit. The Escrow Agreement shall provide that WebXpress
shall deposit the source code for the WebXpress Software and any updates
provided to Licensee hereunder with the Escrow Agent promptly after final
delivery of the corresponding object or executable code to Licensee.
9.11.2 Release. The Escrow Agreement shall provide that the Escrow
Agent shall release WebXpress's source code to Licensee if any one of the
following circumstances remains uncorrected for more than 30 days: (i)
appointment of a trustee under Chapter 7 of Title 11 of the United States Code;
(ii) the making by WebXpress of a general assignment for the benefit of
creditors; (iii). WebXpress is in material breach of its support obligations
pursuant to Schedule E and has failed to cure such breach within thirty (30)
days after notification by Licensee.
9.11.3 License. The Escrow Agreement shall provide that WebXpress
grants Licensee a worldwide, non-exclusive, paid-up and royalty-free, perpetual,
non-transferable license to use, reproduce and modify the released source code,
solely for the purpose of supporting and maintaining the WebXpress Software.
Licensee will agree in the Escrow Agreement not to exercise this license unless
the source code is released.
9.11.4 Fees. Licensee shall pay all reasonable fees and expenses for
such escrow arrangement, including set-up fees, not to exceed fifteen hundred
dollars ($1,500), and annual maintenance fees, not to exceed seven hundred fifty
dollars ($750). WebXpress shall pay amounts above such limits.
11.
9.12 Entire Agreement. This Agreement, along with the Schedules attached
hereto which are incorporated herein by reference, sets forth the entire
Agreement between the parties and supersedes any and all prior proposals,
agreements, and representations between them, whether written or oral. This
Agreement may be changed only by mutual agreement of the parties in writing.
In Witness Whereof, the parties hereto have caused this Agreement to be
signed by duly authorized officers or representatives as of the Effective Date.
BEA WebXpress, Inc. Licensee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------- -------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------- -----------------------
Title: Director F + A Title: VP, Marketing
---------------------- ----------------------
Date: 1/29/99 Date: January 29, 1999
----------------------- -----------------------
12.
Schedule A
WEBXPRESS SOFTWARE
WebXpress Software covered by this Agreement:
WebLogic Application Server (formerly Tengah) on all supported platforms
License Restriction: Licensee will incorporate code provided by WebXpress into
the Integrated Products which will make tine WebXpress Software nonfunctional
without the presence of the Integrated Products. In addition, Licensee will
insure the WebXpress API's are not accessible to Licensee's customers.
13.
Schedule B
INTEGRATED PRODUCTS
Integrated Products covered by this Agreement:
All products of the Blue Martini Software E-Merchandising System (known by this
or some other name as shall be designated by Blue Martini Software from time to
time) including the Merchandise Management Module, the Customer Management
Module, the WebStore Operations Module, the Micro Marketing Module, and the
Tools Module.
The following describes the function and purpose of each of the Integrated
Products covered by this Agreement:
Blue Martini Software E-Merchandising System is a software solution for direct-
to-consumer e-commerce and includes all the functionality of an Internet
commerce server for displaying catalog items, descriptions and prices;
calculating tax; managing sales and returns; managing the definition of
merchandise assortments, promotions, and cross-product relationships; and
managing customer identities and attributes and programs specific to customers
such as frequent- buyer programs.
14.
Schedule C
ROYALTIES AND SUPPORT FEES
C.1. Royalties:
----------
Licensee will pay royalties based upon a percentage of [...***...] in accordance
with the following schedule (subject to a minimum royalty per transaction as
stated below):
Minimum
Cumulative Percent of Royalty
Royalties Paid [...***...] Per Transaction
---------------------- ---------------- ------------------
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
For the purposes of this Agreement, [...***...].
The Minimum Royalty shall not apply to those Transactions by Licensee for which
no WebXpress software is included in the software sold. No royalties will be
owed on marketing, demonstration, training and customer evaluation licenses of
the Integrated Product.
C.2. Annual Support Fees:
--------------------
Annual Support Fees are [...***...] of royalties. The annual support fees for
subsequent years will be [...***...] of the royalties paid by Licensee under
Section C.1 for copies of the Integrated Product for which Licensee has a
maintenance agreement in place with the End User during such year. Such fees
will be payable on a quarterly basis. Licensee shall provide to WebXpress,
along with each payment, a report summarizing the number of End Users with
maintenance agreements that form a basis for such payment.
C.3. Royalty for Use of RSA's SSL Product:
-------------------------------------
If in the future Licensee elects to license the RSA SSL Product from WebXpress,
then in addition to the Royalties described above, Licensee must pay [...***...]
and [...***...] per year for unlimited clients to WebXpress pursuant to
WebXpress's License Agreement with RSA.
[...***...] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
15.
C.4. Commitment:
-----------
Licensee will commit to purchasing [...***...] in royalty and support, which
will be applied towards purchases of WebXpress Software and support licensed
under this agreement. This commitment is non-cancelable. Payment terms for
this commitment are [...***...] net [...***...] days from Effective Date and
[...***...] net [...***...] days. These payments are non-refundable.
C.5. Development Licenses:
---------------------
In order for Licensee to continue to develop and test the WebXpress Software
with the Integrated Product, Licensee will purchase the following development
licenses:
Effective
List Price Discount Unit Price Price
3 Development Servers [...***...] [...***...] [...***...] [...***...]
16 Developer Seats [...***...] [...***...] [...***...] [...***...]
------------
SUBTOTAL [...***...]
Annual Support [...***...]
------------
[...***...]
TOTAL DUE [...***...]
Less Discount on License Fees [...***...]
------------
Total Due on an annual basis for Support [...***...]
------------
Payment for support will be net [...***...] days from initial invoicing by
WebXpress. Subsequent years annual support payments will be net [...***...]
days. WebXpress will deliver license keys for these licenses on the Effective
Date of this agreement.
In addition, when Licensee has shipped the licenses corresponding to the first
[...***...] in royalties paid (or prepaid), Licensee will have the right to
receive licenses for Development Servers and Development Seats at no charge, but
must notify WebXpress of their election to put into service such licenses and
must pay annual support of [...***...] of the Effective Unit Price of the
applicable licenses. The development software is not to exceed [...***...]
Development Servers, and [...***...] Development Seats over the term of the
contract.
These licenses will be subject to WebXpress's Standard Software License
Agreement located on the WebXpress website at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇▇.
[...***...] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
16.
Schedule D
RESALE CERTIFICATE
WE HEREBY CERTIFY that we hold a valid seller's permit No.______________ issued
pursuant to laws and regulations governing Sales and Use Tax in the state of
; that we are engaged in the business of selling:______________________________
_______________________________________________________________________________
that the products described within this ISV Software License Agreement, which
we shall license from WebXpress, will be resold by us { licensed to our
customers}, in accordance with the terms of the Agreement. A Description of the
products to be licensed from WebXpress is contained in the relevant schedule of
the Agreement.
___________________________________________
(Signature of Purchaser or Authorized Agent)
___________________________________________
(Title)
17.
Schedule E
SERVICE AND SUPPORT TERMS
WebXpress shall provide product support to Licensee to support its integration
of WebXpress Software into Licensee's applications. Support means that WebXpress
will provide: (a) software upgrades and product enhancements upon their
commercial release, and appropriate documentation with respect thereto, and (b)
technical assistance with respect to the WebXpress Software, including (i)
clarification of functions and features; (ii) clarification of documentation;
(iii) technical support and guidance in the operation of the WebXpress Software;
and (iv) WebXpress Software error analysis and correction. Major product
releases are not covered by the Service and Support contract, and WebXpress
retains the right to determine in its sole discretion if a release constitutes
an upgrade to an existing product or a new product release. WebXpress will use
commercially reasonable efforts to provide error corrections or work-arounds for
the most severe errors as soon as possible and based upon WebXpress
classification of the severity of the error.
Support shall be provided in compliance with Severity definitions and Escalation
guidelines as defined in Sections IV and V of this Schedule.
I. Engineering Contacts - Licensee will designate no more than 5 individuals
who will be responsible for communicating and escalating support issues
between the companies.
II. Reporting Issues - Licensee will report support requests via email or phone
as convenient. Licensee agrees to provide WebXpress with all the necessary
information to resolve the reported issue. This may include: issue
classification, test cases for isolating and reproducing the issue and
other issue documentation.
III. Phone coverage - WebXpress's Support Center is staffed Monday through
Friday from 7:00 a.m. to 7:00 p.m. Pacific Time. For off-hour emergencies,
procedures can be customized to Licensee's specific needs upon mutual
agreement.
IV. Issue Definition -
. Severity 1 - Issue that impacts Licensee's application development
schedule, or an End-User's production capability. A high severity issue is
an error that causes a major feature of-Licensee's product to be unusable
or causes irreparable loss of data and no recovery or work-arounds are
available.
. Severity 2 - Issue that results when a major feature is operational but
unstable or unreliable. Such error would not stop development.
. Severity 3 - Enhancements or defects that are targeted for updates, but do
not result in the loss of functionality in a major feature.
V. Escalation Guidelines - WebXpress's assigned Engineers will adhere to the
following timeframes for internal escalation of Licensee's support requests
in order to ensure maximum service responsiveness.
18.
---------------------------------------------------------------------------
Severity Severity 1 Severity 2 Severity 3 Escalation Point
Definition for Sev. 1 issues
---------------------------------------------------------------------------
Initial Response 4 hours 8 hours 12 hours N/A
---------------------------------------------------------------------------
Level 1 - 24 hours 2 days 4 days Support Manager
problem
determination
---------------------------------------------------------------------------
Level 2 - 2 days 1 week 2 Support Manager
problem isolation
weeks
---------------------------------------------------------------------------
Level 3 - 7 days 3 weeks N/A Support Manager
Engineering
---------------------------------------------------------------------------
For Severity 1 Errors WebXpress will promptly initiate the following
procedures: (1) assign WebXpress specialists to correct the Error on an
expedited basis; (2) provide a report on the status of the progress of
correcting the Severity 1 Error every four (4) hours; and (3) commence to
provide a temporary workaround or fix. For Severity 1 issues, WebXpress agrees
to work continuously to resolve the issue.
If a reported Severity Level I Error in the WebXpress Software renders the
WebXpress Software inoperational, and WebXpress fails to make the WebXpress
Software operational, so that it operates in a manner reasonably acceptable to
Licensee and without loss of functionality, within 24 hours after WebXpress's
first response to Licensee's report of such Error, Licensee may request onsite
assistance. Upon this request, WebXpress will use its best efforts to respond
by having at least one (1) maintenance person trained in the WebXpress
Software at the installation site within twenty-four (24) hours of Licensee's
request for onsite service. If such problem is the result of Licensee use of a
WebXpress Software in a manner that is prohibited by its documentation or this
Agreement or unrelated to a WebXpress Software, Licensee shall reimburse
WebXpress at WebXpress's then current published standard rates for such
services and any reasonable and actual travel expenses incurred by WebXpress.
VI. WebXpress Version Support - WebXpress agrees to provide product support
to Licensee for the most current version and the previous two versions of
WebXpress products.. Notwithstanding the aforementioned, WebXpress shall
always support versions released within the last twelve months.
VII. Expanded support or technical assistance is available upon mutual
agreement of the parties at an additional charge in accordance with
WebXpress's then-current policy.
19.
ADDENDUM TO ISV LICENSE AGREEMENT,
AMENDMENT NO. 1 TO THE
ISV SOFTWARE LICENSE AGREEMENT
THIS AMENDMENT NO.1 TO THE ISV SOFTWARE LICENSE AGREEMENT ("Amendment No. 1") is
made and entered into as of the 28th day of July, 1999 (the "First Amendment
Date"), by and between BEA WEBEXPRESS, INC., a Delaware corporation with offices
at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ("WebXpress"), and BLUE MARTINI
SOFTWARE, an Delaware corporation with principal offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensee").
RECITALS
WHEREAS, WebXpress and Licensee have entered into that certain ISV
Software License Agreement, dated January 29, 1999 (the "Agreement"), which
Agreement provides for the licensing of certain WebXpress Software (as defined
in the Agreement) for the purpose of integrating such WebXpress Software into
the Integrated Product (as defined in the Agreement) for distribution by
Licensee.
WHEREAS, WebXpress and Licensee would like to modify the license and
support fee terms of the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
representations contained herein, the parties hereby agree to amend the
Agreement as follows.
1. AMENDED WEBXPRESS SOFTWARE AND ROYALTIES AND SUPPORT FEES: Schedule A and
Section C.1. of Schedule C of the Agreement are deleted and replaced with the
following:
SCHEDULE A
WEBXPRESS SOFTWARE
WebXpress Software covered by this Agreement:
WebLogic Application Server
WebLogic Application Server w/clustering
SCHEDULE C
ROYALTIES AND SUPPORT FEES
C.1. Royalties
Licensee will pay royalties based upon a percentage of [...***...] in
accordance with the following schedules (subject to a minimum royalty per
transaction as stated below):
For Modules Incorporating WebLogic Application Server
--------------------------------------------------------------------------------
CUMULATIVE ROYALTIES PERCENT OF [...***...] MINIMUM ROYALTY PER
PAID TRANSACTION
--------------------------------------------------------------------------------
[...***...] [...***...] [...***...]
--------------------------------------------------------------------------------
[...***...] [...***...] [...***...]
--------------------------------------------------------------------------------
[...***...] [...***...] [...***...]
--------------------------------------------------------------------------------
[...***...] [...***...] [...***...]
--------------------------------------------------------------------------------
For Modules Incorporating WebLogic Application Server w/clustering
--------------------------------------------------------------------------------
CUMULATIVE ROYALTIES PERCENT OF [...***...] MINIMUM ROYALTY PER
PAID TRANSACTION
--------------------------------------------------------------------------------
[...***...] [...***...] [...***...]
--------------------------------------------------------------------------------
[...***...] [...***...] [...***...]
--------------------------------------------------------------------------------
[...***...] [...***...] [...***...]
--------------------------------------------------------------------------------
[...***...] [...***...] [...***...]
--------------------------------------------------------------------------------
For the purposes of this Agreement, [...***...].
The Minimum Royalty shall not apply to those Transactions by Licensee for which
no WebXpress software is included in the software sold. No royalties will be
owed on marketing, demonstration, training and customer evaluation licenses of
the Integrated Product.
[...***...] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
2. FULL FORCE AND EFFECT. Except as specifically modified by this Amendment No.
1, the terms of the Agreement are and shall remain in full force and effect.
IN WITNESS WHEREOF, the each of the parties hereto has caused this
Amendment No. 1 to be executed by a duly authorized officer or representative as
of the First Amendment Date.
BEA WEBXPRESS, INC. BLUE MARTINI SOFTWARE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------- --------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------ ------------------------
Title: Director, F & A Title: VP, Marketing
----------------------- -----------------------
Date: 7/15/99 Date: July 13, 1999
------------------------ ------------------------
SECOND AMENDMENT
TO
ISV AGREEMENT
This Second Amendment (this "Second Amendment") is entered into as of
January 31, 2000 ("Amendment Date") between Blue Martini Software a Delaware
corporation with offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("Licensee"), and WebXpress, a BEA Company and Delaware Corporation
("WebXpress").
RECITALS
--------
A. License and WebXpress signed an ISV Agreement on January 29, 1999 ("ISV
Agreement") and a First Amendment dated as of July 28, 1999 ("First Amendment")
which ISV Agreement provides for the licensing of certain WebXpress Software (as
defined in the ISV Agreement) for the purpose of integrating such WebXpress
Software into the Integrated Product (as defined in the ISV Agreement) for
distribution by Licensee.
B. WHEREAS, Licensee and WebXpress now desire to amend the ISV Agreement
as hereinafter provided.
NOW, THEREFORE, in consideration of the promises included herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
AGREEMENT
---------
1. Term. Section 6.1, Initial Term, of the ISV Agreement is revised to
---- ------------
read:
"This Agreement shall become effective on the Effective Date and shall
remain in effect for a period of four (4) years and six (6) months
thereafter unless the Agreement is terminated as provided below.
2. Royalties and Support Fees. Section 3.1, Royalty and Support Fees, of
-------------------------- ------------------------
the ISV Agreement is revised by the addition of the following sentence:
"The royalties and applicable support fees due to WebXpress shall only
accrue against the use or distribution of Licensee's Integrated
Products; that is on those transactions by Licensee for which WebXpress
software is included embedded in Licensee's product."
3. Schedule C. Section C.1, Royalties, of the ISV Agreement is deleted and
---------- ---------
replaced by the following:
"Licensee will pay royalties based upon a percentage of [...***...] of the
Integrated Product in accordance with the following schedule (subject to a
minimum royalty per transaction as stated below):
For Licensee's Integrated Product incorporating WebLogic Application Server
and WebLogic Application Server with Clustering
Cumulative Percent of Minimum Royalty
Royalties Paid [...***...] Per Transaction
-------------- ----------- ---------------
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
[...***...] [...***...] [...***...]
For the purposes of this ISV Agreement, [...***...].
The Minimum Royalty shall not apply to those Transactions by Licensee for
which no WebXpress software is included in the software sold. No royalties
will be owed on marketing, demonstration, training and customer evaluation
licenses of the Integrated Product.
In addition, WebXpress acknowledges that Licensee may commingle the
WebLogic Application Server and WebLogic Application Server with Clustering
in their Integrated Products.
Furthermore, for the purposes of this ISV Agreement, WebXpress shall allow
Licensee to distribute their Integrated Products on a rental basis to their
end-users for prototype development, (through Licensee's "Incubator
Program"). So long as any such rental period does not exceed twelve (12)
months for any individual Licensee end user participation in the Incubator
Program there shall be no minimum royalty fee for such Integrated
Product."
4. Schedule C. Section C.4, Commitment, of the ISV Agreement is supplemented
---------- ----------
by the following:
"Pursuant to this Second Amendment Licensee will commit to purchasing
[...***...] in royalty and support, which will be applied towards
additional purchases of WebXpress Software and support licensed under
this ISV Agreement. This commitment is non-cancelable. Payment terms for
this commitment are net 30 days from Effective Date of this Second
Amendment. These payments are non-refundable."
[...***...] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
5. Entire Agreement. This Second Amendment together with the ISV Agreement
----------------
constitutes the entire agreement between the parties with respect to the subject
matter hereof.
6. Effect of Amendment. Except as modified by this Second Amendment, all terms
and conditions of the ISV Agreement, as amended, shall remain in full force and
effect.
Each of the undersigned represents and warrants that he or she is duly
authorized to sign this First Amendment on behalf of the party he or she
represents. Each party has read, understands and agrees to the terms and
conditions of this First Amendment. This first Amendment may be executed in any
number of counterparts, all of which shall constitute together one and the same
agreement.
Blue Martini Software, LICENSEE WEBXPRESS, A BEA COMPANY
by: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ Matthison S. Gassu
------------------------------ ---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: Matthison S. Gassu
---------------------------- -------------------------
Title: VP, Product Development Title: SVP WW Ops
--------------------------- ------------------------