EXHIBIT 10.12
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934.
THE OMITTED MATERIALS HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
LICENSE AND DISTRIBUTION AGREEMENT
This License and Distribution Agreement is entered into by and between
▇▇▇▇▇ Systems Group, a Delaware corporation doing business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("ASG"), and RadView Software, Ltd., an Israeli
corporation with corporate headquarters located at 7 New England Executive Park,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("RadView"), effective this 21st day of December
2004 (the "Effective Date").
In consideration of the premises and mutual covenants contained herein, and
other valuable consideration, the receipt and adequacy of which is hereby
acknowledged by each party, the parties hereby agree as follows:
1. SCOPE OF AGREEMENT
This Agreement shall set forth the terms and conditions pursuant to which
ASG shall be authorized to market, distribute and support certain of RadView's
products. This Agreement shall also set forth the terms and conditions pursuant
to which ASG can purchase a license to certain extended rights with respect to
the covered products.
2. DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings
set forth below:
2.1 ACCESS KEY. The term "Access Key" shall refer to a numeric or
alphanumeric code (and not a physical object) which must be entered by an End
User into a Product on the End User's computer in order to activate that Product
for full licensed use.
2.2 END USER. The term "End User" shall refer to a third party who
licenses the Products for its own internal use and not for further distribution.
2.3 END USER LICENSE AGREEMENT. The term "End User License Agreement"
shall refer to a license agreement for the Products, including the Product
Maintenance terms, pursuant to which ASG shall be authorized to distribute the
Products as provided hereunder. When ASG enters into a written license agreement
with an End User, ASG shall use a license agreement which incorporates in all
material respects the terms set forth in Exhibit B1 hereto, including the
special schedule of terms for the Products set forth in Exhibit B2 hereto. In
those geographic areas where ASG sells software licenses solely via a purchase
order, or to the United States Government pursuant to ASG's GSA schedule, then
the Product license and maintenance terms shall be as set forth in RadView's
Product click-wrap license (revised to reflect ASG as the licensor) included by
RadView with the electronic version of the Product.
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2.4 EXTENDED RIGHTS. The term "Extended Rights" shall refer to the
continuing and additional rights ASG receives with respect to the Products upon
ASG's exercise of the Option pursuant to the terms of Section 10 below.
2.5 INCLUDES, INCLUDING. Except where followed directly by the word
only, the words "includes" or "including" shall be construed as "includes, but
is not limited to," and "including, but not limited to," respectively, it being
the intention of the parties that any listing following thereafter is
illustrative and not exclusive or exhaustive.
2.6 NEW RELEASE. The term "New Release" shall refer to any new release
specific to a Product and related documentation where (a) the primary purpose of
which is to correct or provide a workaround for a Nonconformity, or (b) such
release enhances or improves Product performance and/or functionality, or
provides incremental functionality(ies) to an application, and which, in either
event, is customarily provided at no additional cost to RadView customers who
have contracted for support and maintenance services with respect to that
Product. The term "New Release" shall also include any new modules added to a
Product where such modules (a) have tightly integrated (at the source code
level) functionality with the Product, or (b) are included in the Product for
new licensees of RadView or provided to existing customers as an upgrade to the
Product.
2.7 NONCONFORMITY. The term, "Nonconformity," in a Product shall refer
to a material nonconformance in the Product's performance as measured against
RadView's published technical, operational and/or End User documentation for the
Products.
2.8 OPTION. The term, "Option," shall refer to the option granted to ASG
to acquire Extended Rights with respect to the Products, as further described in
Section 10 below.
2.9 PRODUCT. The term "Product" shall refer to the Products identified
in Exhibit A hereto, as that Exhibit may be amended from time to time by written
agreement of the parties (each such product and/or module, individually a
"Product" and collectively, the "Products"). The term "Product" shall also be
deemed to include New Releases, as these are delivered to ASG hereunder.
2.10 PRODUCT MAINTENANCE. The term "Product Maintenance" shall refer to
the technical and customer support services, including the distribution of New
Releases, provided to End Users of the Products. Product Maintenance shall not
be sold for terms of less than one (1) year in length.
2.11 SALE, SELL, ETC. The words "sale," "sell" and similar words are used
herein in the context of distribution of the Products to refer to the sale of a
license to use a copy or configuration of a Product. The sale to a third party
reseller or an End User of a copy of a Product is a license only and does not
transfer any right, title, or interest in or to such Product to such reseller or
End User.
3. TERM; TERMINATION
3.1 TERM. The term of this Agreement shall commence upon the Effective
Date and shall continue for a period of two (2) years, unless terminated earlier
pursuant to the provisions below (the date on which the Agreement expires or is
terminated, the "Termination Date"). Exercise of the Option by ASG shall not
affect the length of the Term.
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3.2. RENEWAL. Neither party shall be under any obligation to renew or
extend the operation of this Agreement or to enter into any new agreement with
the other party following the expiration of the Term. Notwithstanding any law to
the contrary, neither party to this Agreement shall be liable to the other for
compensation, reimbursement or damages on account of any loss of prospective
profits on anticipated sales or on account of expenditures, investments, leases
or other commitments relating to the business or goodwill of either party, by
reason of a decision by such party not to renew this Agreement.
3.3 TERMINATION FOR CAUSE. Either party may terminate this Agreement,
and RadView may terminate the Extended Rights of ASG, at any time effective upon
written notice of termination to the other party, in the event that such other
party materially breaches its obligations hereunder and such material breach (a)
continues uncured for a period of thirty (30) days after written notice of such
breach from the party alleging the breach, and (b) remains uncured as of the
date of any such notice of termination.
3.4 EFFECTS OF TERMINATION OF AGREEMENT OR EXTENDED RIGHTS. Except as
expressly set forth herein, following the Termination Date, ASG's right to
market, distribute, sell, modify and support the Products hereunder shall
immediately terminate; provided, however, that subject to ASG's compliance with
all other terms and conditions of this Agreement and provided that the
termination of the Agreement is not due to a material uncured breach by ASG,
then for a period of two (2) years following the Termination Date, ASG may
fulfill any support contracts entered into by ASG with End Users prior to the
Termination Date. To be clear, the foregoing right shall expire two (2) years
following the Termination Date whether or not the contractual obligations
continue beyond the two (2) year period. In support of the foregoing right and
for the same period, ASG may continue to use the Products solely for the purpose
of providing technical support to End Users of the Products, including the
manufacture and provision of new copies of the Product to replace defective
copies, but exclusive of making modifications or enhancements to the Products.
In no event shall ASG enter into a Product sale or Product Maintenance sale
(including any Product Maintenance renewal) following the Termination Date
unless ASG has exercised the Option and is operating under the terms of its
Extended Rights. In the event of any termination of the Extended Rights, ASG's
right to market, distribute, sell, modify and support the Products hereunder
shall immediately terminate and ASG shall have no continuing rights with respect
to the Products or any derivative work or new product(s) which ASG may have
developed based on the Source Materials or the Products; provided however, that,
except as may be expressly provided hereunder, and subject to ASG's obligations
to protect the Confidential Information and pre-existing proprietary rights of
RadView, ASG shall retain ownership rights to any code it creates, separate and
apart from any RadView code (whether object code or source code), which it may
have developed in order to enhance or add functionality to a Product and which
is separable from the Product code. No termination or expiration of this
Agreement or of the Extended Rights shall release ASG from its obligation to pay
RadView any amounts which accrued prior to such termination or expiration or
which accrue to RadView after the effective date of such expiration or
termination.
3.5 NO EFFECT ON END USERS. The rights of End Users are independent of
this Agreement and will survive any termination of this Agreement; provided,
however that such End User rights shall continue to be subject to and bound by
the terms of the End User license agreement.
3.6 SURVIVAL OF TERMS. Those terms which, by their nature, would be
reasonably understood to survive any expiration or termination of this Agreement
shall so survive, including Sections 1, 3, 5, 11, 12, 14 and 15 through 18. In
the event ASG exercises the Option, then the terms and conditions governing the
Extended Rights shall continue in full force and effect for the period that such
Extended Rights are in effect.
4. GRANT OF LICENSE RIGHTS
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4.1 MANUFACTURING AND DISTRIBUTION OF PRODUCTS. Subject to the terms and
conditions of this Agreement, RadView hereby grants to ASG the non-exclusive,
worldwide, non-transferable right during the Term to produce, market,
distribute, sell and support copies of each Product, in object code form only
and without Access Keys, to End Users pursuant to an End User License Agreement.
Marketing, distribution and sale of the Products under this grant is only
authorized under ASG's own trade names; provided, however, that all copies of
the Products created by ASG shall contain all RadView copyright, trademark and
other proprietary notices where set forth in the applicable master version of
each Product release delivered to ASG by RadView. The Products in Exhibit A
hereto may be sold only in the configurations identified by RadView in the price
lists provided to ASG by RadView from time to time, but may be bundled with
other products or as stand-alones; provided, however, that in the event ASG is
interested in selling the Products in configurations other than those reflected
in the then current RadView price list, ASG shall notify RadView of such
interest and RadView shall provide the applicable list prices for the new
configuration; but provided further, however, that in no event shall ASG be
authorized to 'break up' any Product for sale in separate product components
without the prior written consent of RadView or unless ASG has exercised the
Option. The grant of rights set forth in this Section 4.1 shall also include the
right to distribute to properly licensed End Users (a) Access Keys generated by
or through RadView and provided to ASG for such End Users hereunder, and (b) in
the event ASG exercises the Option, then Access Keys generated by ASG. Such
grant shall also include the right to use and reasonably adapt the Product
marketing and End User materials which may be provided to ASG by RadView
hereunder provided that no such adaptation shall alter in any material way the
representations made in such materials with respect to the Products and /or with
respect to RadView; and provided further that ASG shall be solely responsible
for modifying, at its cost, any such documentation to reflect the rebranding of
the Products.
4.2 LICENSING OF END USERS. All Products sold by ASG hereunder shall be
licensed pursuant to the End User License. The End User License shall not be
modified in any way by ASG, at any time, even when ASG is operating under the
Extended Rights, without the prior written consent of RadView; provided,
however, that, the End User License may be modified by ASG as needed provided
that it does not include additional terms which would materially alter,
diminish, qualify or otherwise affect the terms in the End User License
Agreement with respect to license restrictions, usage terms, confidential
information, proprietary rights, RadView's rights as a third party beneficiary,
and the exclusion of End User claims against RadView.
4.3 ACCESS KEYS FOR ASG'S INTERNAL AND SALES USE. RadView will provide,
at no charge to ASG, licenses and Access Keys for (a) five (5) copies of each
Product for ASG's internal development and support purposes (in each case
subject to a limitation of thirty (30) virtual clients on load testing
products). RadView will also provide to ASG an Access Key generator pursuant to
which ASG can generate an unlimited number of licenses for limited use, limited
term, node-locked copies of the Products to be used solely by ASG sales,
pre-sales and marketing personnel and solely for marketing, demonstration and
pre-sales purposes (such limited use Products, collectively, the "Evaluation
Suite(s)"). The Evaluation Suite Access Keys generated by ASG hereunder shall
each remain active for a period of thirty (30) days following the date of
generation. ASG shall be responsible, at its cost, for making the copies of the
Products and/or Evaluation Suites for which licenses and Access Keys are
provided pursuant to this section. Each Evaluation Suite shall include an
evaluation click-wrap license, in all material respects with the content set
forth in Exhibit B3 hereto, which shall govern the prospect's use of the
evaluation copy. ASG shall maintain records as to where each copy of the
Products and Evaluation Suite licensed under this subsection is installed and
which persons are authorized to use the same and shall provide written
certification to RadView detailing its usage of such Products and Evaluation
Suites upon RadView's written request.
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4.4 SUBDISTRIBUTORS. ASG will have the right to distribute the Products
to End Users through ASG's authorized distributors and/or resellers provided
that (a) such distributors and resellers have received the prior written
approval of RadView which approval shall not be unreasonably withheld or
delayed, and (b) ASG shall ensure that such distributors and resellers (i)
comply in all material respects with the terms contained in this Agreement, and
(ii) are contractually bound to ASG to comply with distribution and usage terms
consistent with or more restrictive than those set forth in this Agreement. In
no event, shall either resellers or distributors have the right to produce,
copy, support, modify, use or otherwise access the Products, or to distribute
the Products to third parties other than to End Users through an End User
License Agreement. The subdistribution rights granted hereunder shall not
relieve ASG of any of its undertaking or commitments under this Agreement.
4.5 MARKETING OF THE PRODUCTS. ASG may only market and distribute the
Products under its own trade names and shall in no event be authorized to use
the Product trade names used by RadView. Subject to the foregoing, ASG shall
determine, in its sole discretion, the manner and method of marketing and
distributing the Products, including marketing expenditures, advertising and
promotion, packaging, channels of distribution and the suggested retail price or
other pricing of the Products; provided, however, that such marketing and
distribution shall be subject to and shall not violate any terms in this
Agreement including those concerning Confidential Information and the
proprietary rights of each party hereunder; and provided further, however, that
any ASG sale of the Products shall be made only to an End User, only pursuant to
an End User License Agreement and as authorized hereunder. Notwithstanding the
foregoing, RadView, in its sole reasonable discretion, may, by written notice,
require ASG to immediately cease publication and use of any trade names or
marketing materials relating to the Products which (a) would be likely to cause
market confusion with respect to the products distributed by RadView, (b) which
contain misrepresentations with respect to the Products and/or RadView, or (c)
which would damage the goodwill and/or reputation of RadView or RadView
products. ASG shall be solely responsible for all costs associated with ASG's
marketing and distribution of the Products.
4.6 NO MODIFICATIONS OR DERIVATIVE WORKS. Except as expressly permitted
by this Agreement relating to trademark notices, ASG shall not modify any
Product or remove or alter any copyright or other proprietary notices or legends
therefrom. ASG shall not disassemble, decompile or otherwise reverse engineer
any portion of any Product except as expressly permitted by this Agreement. ASG
shall not be entitled to prepare any derivative works of any Product that would
constitute an infringement of RadView's intellectual property rights in the
Products.
5. THIRD PARTY OBLIGATIONS
Until such time as ASG exercises the Option, RadView shall be solely
responsible for third party royalties payable with respect to the Products
purchased by ASG, including those associated with the Access Keys. In the event
ASG exercises the Option, then, with respect to all sales entered into following
the Option Exercise Date, ASG shall be solely responsible for obtaining, and for
making all royalty and other payments associated with, and all rights and/or
permissions necessary for (a) ASG's use of all third party technology contained
in the Products (including Access Key management tools, encryption software and
memory management components) or required in order to create, modify, enhance or
otherwise develop the ASG version of the Products, and (b) ASG's continued
marketing and distribution of the Products as contemplated by this Agreement.
The third party suppliers contributing components or technology to the Products
or the development of the Products as of the Effective Date are identified in
Exhibit C hereto.
6. DELIVERY OF PRODUCTS TO ASG
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6.1 REBRANDING OF PRODUCTS. Following the Effective Date, and subject to
the restrictions of Section 4.5 above, ASG shall deliver to RadView the software
code, language and other information reasonably required by RadView to rebrand,
consistent with the rebranding design and trade names designated by ASG, the End
User interface screens including the Product splash screens and About/Help
introductory screens. Each such screen shall also contain the applicable
proprietary legends of RadView, in text form, where such notices are customarily
placed. ASG shall be responsible for all design, design coding and related work
associated with the rebranding, and for the costs related thereto, except that
RadView shall be responsible solely for the costs associated with revising the
Product code to effect the actual rebranding of the Products.
6.2 INITIAL DELIVERY. Following the rebranding effected pursuant to the
foregoing section, RadView shall deliver to ASG one (1) master copy of each
Product, together with any technical documentation for the same reasonably
required by ASG to support the Products, to the extent such documentation is
then currently available without further effort by RadView.
6.3 DELIVERY OF NEW RELEASES. RadView shall use commercially reasonable
best efforts to deliver to ASG one (1) master copy of each New Release within
two (2) weeks (and in any event, no later than one (1) month) following the
delivery of such New Release to any RadView customer or reseller. Each delivery
under this Section 6.3 shall also include any available technical documentation
reasonably required by ASG to support the New Releases and any revised End User
documentation applicable to the New Release; provided, however, that nothing in
this section shall impose upon RadView the obligation to create any technical or
End User documentation which it does not currently have or which it does not
develop for its own business purposes; and provided further, however, that
nothing in this section shall impose upon RadView any obligation to create and
distribute New Releases to any one or more of the Products.
6.4 DELIVERY OF ACCESS KEYS. Upon receipt of a valid Product purchase
order, RadView will electronically deliver to ASG an Access Key for use with the
Product, such delivery to occur promptly during normal business hours and in any
event, within no more than two (2) business days following RadView's receipt of
the order. The sale of a Product to ASG will be deemed complete upon RadView's
delivery of the Access Key(s) associated with such sale to ASG. In the event
that ASG meets certain volume levels, to be determined by RadView in its sole
discretion, in ASG's sales of the Products, the parties will evaluate the
feasibility of establishing a secure website or other electronic system through
which ASG will be able to obtain Access Keys for properly licensed products
automatically. Such website or electronic system would, as currently envisioned,
upon entry by ASG of the ASG purchase order for the Products and the applicable
machine identification numbers for the machines on which the Products will be
installed, automatically deliver to ASG the authorized number of Access Keys.
6.5 DELIVERY OF END-USER DOCUMENTATION AND MARKETING MATERIALS. RadView
shall deliver to ASG, in electronic form, the current End User documentation for
the Products, and RadView's current Product marketing materials. The electronic
form of such documentation shall be in user-modifiable form such that ASG can
modify the item for use consistent with this Agreement including Sections 4.1
and 4.5 above.
7. PRODUCT MAINTENANCE; TRAINING
7.1 PRODUCT MAINTENANCE. During the term of this Agreement, ASG shall be
the exclusive provider of Product Maintenance to its End Users. RadView will
have no obligation to provide any technical support directly to ASG End Users
and ASG End Users shall be instructed to seek technical support on the Products
solely from ASG. ASG shall also be responsible for distributing to, and
supporting New Releases
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for, its End Users. RadView will provide back-up technical support to ASG on
Product issues which ASG cannot resolve; provided, however, that in the event
ASG exercises the Option, then RadView's obligation to continue to provide such
back-up support shall lapse ninety (90) days following the Option Exercise Date.
It is intended by the parties that ASG shall seek back-up technical support
primarily on Product defects or other technical problems, and not on End User
operation issues. ASG shall designate two (2) persons, trained on the Products,
who shall be authorized to contact RadView for back-up technical support.
7.2 CORRECTIONS. As used herein, the term "Correction" shall mean a
revision made to any specific version of any Product, including a patch or a
workaround, which revised version or other computer software or procedure is
prepared solely for the purpose of correcting Nonconformities in the Product. In
the event that any Nonconformity is found in a current release of the Product,
and such Nonconformity is brought to the attention of RadView (either as a
result of RadView's internal testing processes or by notice from a RadView
customer or by written notice from ASG), RadView shall address any such
replicable Nonconformity with an effort commensurate with its severity and shall
use commercially reasonable best efforts to remedy such Nonconformity in a
timely manner, provided that RadView shall determine, in its sole discretion, to
which specific version(s) of the Product such Corrections will be provided. In
the event that ASG exercises the Option, RadView shall be obligated to deliver
Corrections to ASG for a period of two (2) years following the Option Exercise
Date solely with respect to the specific versions of New Releases of the
Products provided to ASG in accordance with Section 7.3.
7.3 NEW RELEASES. RadView shall deliver to ASG a master copy of each New
Release on or about the date that such New Releases are delivered to RadView's
own licensees; provided, however, that in the event ASG exercises the Option,
then RadView's obligation to provide New Releases shall terminate six (6) months
after the Option Exercise Date and RadView shall have no further obligation to
deliver New Releases to ASG.
7.4 TRAINING. At ASG's request and pursuant to a mutually agreeable
schedule, RadView shall provide a two-day training session at ASG's premises at
no charge. Upon reasonable request, RadView shall provide additional training at
RadView's then-current rate for such services or, if RadView has not established
such a rate, at a rate negotiated in good faith that is not inconsistent with
market rates. ASG shall pay, or reimburse RadView for, the reasonable travel and
related expenses, but not salaries, of RadView's personnel in connection with
rendering training services at sites other than RadView's place of business,
including those expenses associated with the initial two (2) days of
complimentary training.
8. PRESS RELEASE
Promptly after the execution of this Agreement, the parties shall jointly
prepare a press release announcing this Agreement and the relationship
established hereunder. Without limiting the other matter that may be included,
each party shall have the right to include its own company information of the
kind that is customarily included in such press releases by public companies.
9. ROYALTIES; PAYMENT TERMS
9.1 PURCHASE PRICE TO ASG FOR PRODUCTS. The royalties payable with
respect to each ASG sale of the Products and Product Maintenance to End Users
shall be in an amount equal to the greater of (a) [*] of the actual price
charged by ASG on each individual sale of Products and Product Maintenance, or
(b) where such sale is in an amount (i) equal to or less than US$100,000, [*] of
the then current RadView list prices for the Products and Product Maintenance,
or (ii) greater than US$100,000, [*] of the then current RadView list prices
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for the Products and Product Maintenance. RadView shall provide ASG with a copy
of the current list pricing for the Products and Product Maintenance. Promptly
following the Effective Date, RadView shall provide ASG with at least sixty (60)
days prior written notice of any changes to its list prices for the Products or
for Product Maintenance, provided that any quotes ASG has made to potential End
Users prior to ASG's receipt of the notice of any increase in list prices shall
be valid for a period not to exceed the lesser of (a) the actual notice period
for the price change, or (b) the period of ninety (90) days following the date
on which notice of the price change was delivered to ASG.
9.2 PAYMENT TERMS. RadView shall invoice ASG for the royalty on each
Product sale and the associated Product Maintenance following RadView's delivery
of the applicable Access Key(s) associated with such sales; such invoices shall
be due and payable within sixty (60) days following the end of the month in
which the sale occurred. Royalty payments for add-on Product sales and for
Product Maintenance renewals shall be made in accordance with the provisions of
Section 9.5 below. Invoices for any other fees which may be payable hereunder
shall be due and payable within thirty (30) days of invoice date. All amounts to
be paid under this Agreement shall be determined and paid in U.S. Dollars and
shall be deemed to be payable in the United States. In the event that RadView
desires to have any payment from ASG paid to any party outside the United
States, RadView shall be solely responsible for any withholding or transfer tax
or other tax, tariff or levy imposed by the United States or any other taxing
authority on such payment. Except as expressly provided for herein, all royalty
payments made hereunder, and payment of the Option price, are non-refundable.
9.3 ROYALTY FEES APPLICABLE UPON EXERCISE OF OPTION. In the event that
ASG exercises the Option, ASG shall pay Product and Product Maintenance
royalties to RadView pursuant to the revised royalty schedule set forth in
Section 10.
9.4 REVENUE FORECASTS. ASG shall deliver to RadView, within thirty (30)
days following the Effective Date, a written Product sales plan setting forth
the quarterly revenues ASG expects to generate from sales of the Products during
the first year of the Term based on calendar quarters. Such plan shall be
updated quarterly, upon the request of RadView, and the update delivered to
RadView, within thirty (30) days following the close of each calendar quarter.
9.5 QUARTERLY REPORTS. During the Term and for so long as ASG continues
to exercise its Extended Rights, as applicable, ASG shall deliver the following
quarterly reports and payments to RadView. Within ten (10) days following the
close of each calendar quarter, or partial quarter as the case may be, ASG will
deliver to RadView (a) a royalty report specifying the fees charged to each End
User for the Products and Product Maintenance (including renewals) sold during
such quarterly period and the corresponding royalties due thereon, and (b)
payment in full of the royalty amounts due as reflected in the royalty report
and which have not already been paid by ASG pursuant to the terms herein.
RadView shall be entitled to audit at its expense, on a reasonable basis, ASG
distribution of the Products and ASG's fulfillment of its royalty obligations to
ensure compliance with the terms of this Agreement; provided, however, that in
the event the audit reveals an underpayment by ASG in an amount equal to or
greater than five percent (5%) of the amounts payable to RadView for the audited
period, then ASG shall be responsible for the reasonable costs of such audit.
ASG shall also provide RadView, upon RadView's written request (which shall not
be made more than once in any six (6) month period), with a written
certification signed by an authorized representative of ASG confirming ASG's
compliance with the license and royalty requirements of this Agreement.
9.6 ASG TO DETERMINE ITS OWN RESALE PRICES. ASG shall determine its own
resale prices for each Product unilaterally and in its sole discretion;
provided, however, that ASG may not discount the pricing
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offered for the Products or Product Maintenance with respect to any sale by more
than the discount applied to ASG's own products for the same sale. Each party
understands that neither RadView nor any employee or representative of RadView
may give any special treatment, whether favorable or unfavorable, to ASG as a
result of ASG's pricing decisions.
9.7 EVALUATION COPIES. ASG may, in its sole discretion, distribute
Product evaluation copies to End Users, pursuant to the provisions of Section
4.3 above, at no charge, for the purpose of demonstrating the Product or for
other promotional purposes; provided, however, that broad-based or mass
distribution of evaluation copies is prohibited. ASG may, with the prior written
approval of RadView, customize an evaluation copy for a customer specific
proposal on a case-by-case basis.
9.8 NO OBLIGATION TO DISTRIBUTE OR CONTINUE DISTRIBUTING. RadView
acknowledges that (a) there is no assurance that any market opportunity for the
Products, or any of them, will exist in the future for ASG at a commercially
reasonable level, as determined by ASG, in its sole discretion; and (b) that ASG
shall have no obligation to distribute or to continue distributing the Products,
or any of them, and the determination whether or not to distribute or to
continue distributing any or all of the Products, for any reason whatsoever,
shall be made by ASG in its sole discretion.
9.9 EXPENSES. Except as expressly set forth herein, each party shall
bear all expenses incurred by such party in connection with its performance
hereunder. In no event shall either party incur any expense whatsoever on behalf
of the other party without first having received written authorization from such
other party unless otherwise expressly provided for herein.
10. ASG OPTION TO ACQUIRE EXTENDED RIGHTS
10.1. OPTION; EXERCISE. ASG shall have the option to acquire from RadView
a perpetual (subject to the termination provisions set forth in this section and
in Section 3 above) license to certain extended rights in the Products, on the
terms and conditions set forth in this Section 10 (the "Option"). The Option may
be exercised at any time during the six (6)-month period commencing on the
Effective Date (the date on which ASG effects an exercise of the Option pursuant
to the provisions below, the "Option Exercise Date"). The Option exercise price
is US$2,500,000 and shall be payable in two equal installments of US$1,250,000,
the first of which shall be due and payable upon the Option Exercise Date and
the second of which shall be due and payable upon the first anniversary of the
Option Exercise Date. To effectively exercise the Option, ASG shall, during the
Option period, deliver written notice to RadView of its decision to exercise the
Option, and deliver to RadView the first installment (US$1,250,000) of the
Option price. Failure by ASG to exercise the Option in a timely fashion shall
result in the forfeiture of the Option. Failure by ASG to timely remit to
RadView the second installment of the Option price within five (5) business days
after ASG's receipt of notice from Radview of ASG's failure to make payment of
such installment shall result in the immediate and automatic forfeiture of the
Extended Rights which ASG enjoyed following the Option Exercise Date; provided,
however, that any such forfeiture shall not abrogate ASG's obligation to deliver
the second Option payment. RadView shall use commercially reasonable efforts to
deliver a reminder to ASG of its obligation to make the second installment prior
to the date such installment payment is due; it being agreed, however, that any
failure by RadView to deliver such reminder shall not modify, qualify, diminish
or otherwise alter ASG's obligation to make a timely payment of the second
installment hereunder or the automatic forfeiture of rights in the event such
payment is not timely made.
10.2 ROYALTY PAYMENTS TO RADVIEW UPON EXERCISE OF OPTION. In the event
that ASG exercises the Option, then in addition to the Option price, ASG shall
continue to pay to RadView a royalty on all sales of the
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Products and Product Maintenance made by ASG during the twenty-four (24) month
period commencing upon the Option Exercise Date. Such royalty shall be an amount
equal to the greater of (a) [*] of the actual price charged by ASG on each
individual sale of Products and Product Maintenance, or (b) where such sale is
in an amount (i) equal to or less than US$100,000, [*] of the then current
RadView list prices for the Products and Product Maintenance, or (ii) greater
than US$100,000, [*] of the then current RadView list prices for the Products
and Product Maintenance. Royalty and other payments due during such twenty-four
(24) month period shall be made pursuant to the applicable terms set forth in
Section 9 above; RadView's audit rights, as provided in Section 9.5, shall also
continue through such twenty-four (24) month period.
10.3 DELIVERY OF SOURCE MATERIALS UPON EXERCISE OF OPTION. Promptly
following the Option Exercise Date, RadView shall provide to ASG copies of all
Source Materials for all versions of the Products distributed by ASG during the
period commencing on the Effective Date and continuing through the Option
Exercise Date. For purposes of this Section 10, the term "Source Materials"
shall refer to all existing and available source code, including related
reference files, resource files, and "include" files reasonably necessary to
compile the source code into machine executable form used in, or used in the
preparation of, each Product or the associated Access Keys, detailed compile and
link instructions, detailed packaging instructions for initial End User
delivery, a list of known product defects and bugs to the extent current and
open as of the Option Exercise Date, and product specifications and design
documents for any versions of the Products current as of the Effective Date or
released thereafter but prior to the Option Exercise Date; provided, however
that nothing in this Section 10.3 shall be construed to require RadView to
develop new or additional materials but rather, the term "Source Materials"
shall refer to all materials in the aforedescribed categories to the extent they
are available as of the Option exercise date; and provided further, that the
term Source Materials shall not refer to any source code or source code
documentation for third party products.
10.4 SOURCE CODE LICENSE. Upon ASG's proper exercise of the Option
pursuant to the terms in Section 10.1 above, ASG shall be granted, and RadView
does hereby grant to ASG contingent upon such proper exercise, a Source Code
license to use the Source Materials solely in support and furtherance of the
license grant set forth in this Section 10 and in Sections 4.1, 4.4 and 4.5
above, subject to the applicable terms in this Agreement. The Source Materials
shall be considered of the highest confidentiality to RadView and in no event
shall be disclosed, directly or indirectly, to any third party, without
RadView's prior written consent which consent RadView may withhold in its sole
discretion.
10.5 ENGINEERING ASSISTANCE. Following the Option Exercise Date, ASG
shall have the right to send, at ASG's sole expense, up to two (2) ASG engineers
to RadView's Research and Development site in Tel Aviv, Israel, for a period not
to exceed two (2) consecutive weeks, for the purpose of receiving training on,
and a knowledge transfer with respect to, the Source Materials. Such engineering
assistance shall be provided by a qualified RadView engineer whose support to
the ASG engineers shall be invoiced to ASG on a time and materials basis. The
two (2) week period of training referenced above must commence within thirty
(30) days following the Option Exercise Date. The applicable rate for the
RadView engineer(s) shall be US$150/hour. Except as provided herein, each party
shall otherwise bear its own costs and expenses with respect to the engineering
assistance which may be provided hereunder.
10.6 CONTINUING RIGHTS AND OBLIGATIONS. Following the Option Exercise
Date, all rights granted by RadView to ASG pursuant to Sections 4.1, 4.4 and 4.5
shall become perpetual and irrevocable subject to the applicable terms of this
Agreement including RadView's right to terminate this Agreement and the Extended
Rights, for cause pursuant to the terms set forth in Section 3 above, or ASG's
forfeiture of its Extended Rights pursuant to the terms of this section. Such
right to terminate shall continue following any expiration of the
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Term and for so long as ASG is exercising the Extended Rights. However, with the
exception of those obligations of RadView expressly set forth in this Section 10
or which would survive termination of this Agreement (as provided under Section
3 above), RadView shall have no further liability or obligation to ASG hereunder
following the expiration of the Term.
10.7 SECTION 4.6 DEEMED STRICKEN. Following the Option Exercise Date, the
restrictions set forth under Section 4.6 shall be suspended for a period of one
(1) year, pending ASG's timely payment to RadView of the second Option
installment (US$1,250,000) due at the expiration of such one (1) year period.
Upon ASG's timely payment to RadView of the second Option installment, the
provisions of Section 4.6 shall be deemed stricken from this Agreement and of no
further force and effect; provided, however, that any derivative work or new
product developed by ASG based on the Products and/or the Source Materials shall
be deemed a Product for purposes of this Agreement, including for purposes of
calculating the royalties due to RadView hereunder. For purposes of calculating
the applicable royalty on such derivative works or new products, the RadView
"list price" for such products shall be the RadView then current list price for
the RadView product closest in functionality to the derivative work or new
product. To be clear, following the Option Exercise Date, ASG shall have the
right to modify, prepare derivative works of, or prepare new works based on the
Products and/or the Source Materials; provided, however, that any derivative
product created by ASG shall not diminish or otherwise affect RadView's
pre-existing rights in its Products; and provided further, however, that in the
event RadView independently develops derivative software similar to that
developed by ASG, RadView's development shall not be subject to any intellectual
property infringement claim by ASG. Notwithstanding the foregoing, in the event
that ASG fails to timely make the second installment of the Option price, (a)
Section 4.6 shall be reinstated in full, (b) ASG's right to continue marketing
or selling any derivative works or new products it may have made pursuant to the
terms of this Section shall immediately cease, (c) ASG shall forfeit all rights
in and to such derivative works or new products, and (d) all right and title to
such derivative or new products shall automatically be assigned, in full and
irrevocably, to RadView.
11. CONFIDENTIAL INFORMATION
11.1 CONFIDENTIAL INFORMATION. For purposes of this Agreement, the term
"Confidential Information" shall refer to any information or material which is
proprietary to the disclosing party and shall include, whether or not designated
as such (a) the internal business, financial and marketing information of either
party, (b) the Product code and its technical documentation (including, without
limitation, the architecture, conceptual logic, know-how and other intellectual
property embodied in the Products and/or documentation, and made accessible to
ASG hereunder), (c) Product End User and training documentation, (d) the pricing
and royalty terms set forth in this Agreement, and (e) any other material or
information received from the other party and which is designated as
"Confidential" or "Proprietary", or which, under the circumstances surrounding
disclosure, ought to be recognized as the confidential or proprietary material
of the disclosing party. Confidential Information also includes any information
that the disclosing party obtains from any third party that the disclosing party
treats as proprietary or designates as Confidential Information, whether or not
owned by the disclosing party. Confidential Information does not include the
following: (i) information which is known by the receiving party at the time of
receipt from the disclosing party which is not subject to any other
nondisclosure agreement between the parties; (ii) information which is now, or
which hereafter becomes, generally known to the industry through no fault of the
receiving party, or which is later published or generally disclosed to the
public by the disclosing party; or (iii) information which is otherwise lawfully
developed by the receiving party without access to the disclosing party's
Confidential Information, or lawfully acquired from a third party without any
obligation of confidentiality.
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11.2 NO DISCLOSURE. During the term of this Agreement and thereafter, the
receiving party agrees to hold in confidence and not to disclose or reveal to
any third party any Confidential Information disclosed hereunder without the
clear and express prior written consent of a duly authorized representative of
the disclosing party; provided however, that RadView shall be entitled to
disclose such information and materials as may be required of it as the result
of its status as a publicly traded company and ASG shall be entitled to disclose
such information to its senior lenders under its then existing credit agreement
provided that such senior lenders agree to be bound, in writing, by the terms
protecting Confidential Information hereunder or are already otherwise bound in
writing to protect such information on terms at least as restrictive as those
set forth herein. The receiving party further agrees not to use or disclose any
of the Confidential Information for any purpose, at any time, other than for the
limited purpose(s) for which the disclosure was made as contemplated by this
Agreement. In the event that either party is directed to disclose any portion of
any Confidential Information of the other party or any other materials
proprietary to the other party in conjunction with a judicial proceeding or
arbitration, the party so directed shall immediately notify the other party both
orally and in writing. Each party agrees to provide the other with reasonable
cooperation and assistance in obtaining a suitable protective order and in
taking any other steps to preserve confidentiality.
12. OWNERSHIP
12.1 PRODUCTS. As between RadView and ASG, all right, title and interest
in and to, and ownership of, each Product, including all intellectual property
and trademarks related thereto, shall remain at all times exclusively in
RadView. With the exception of the express rights granted hereunder, ASG shall
not acquire any right, title, or interest therein. In no event shall any term in
this Agreement be construed as transferring any ownership rights to the Products
or any intellectual property incorporated therein or associated therewith, to
ASG. ASG is not licensed to use the Products internally, for its own business
purposes, nor for any purposes whatsoever except as may be expressly authorized
under the terms of this Agreement. Except as may be expressly authorized
pursuant to a grant above, ASG shall not sublicense, distribute, deliver,
disclose or otherwise provide to a third party the Product or any portion
thereof and any unauthorized attempt to assign, sublicense or grant other rights
to the Product to a third party shall be null and void.
12.2 MODIFICATIONS TO PRODUCTS; OTHER MATTER PREPARED BY ASG. As between
RadView and ASG, but subject to RadView's exclusive ownership rights in the
Products and RadView's rights under Section 10.7, all right, title and interest
in and to, and ownership of, any modifications to any Products or Product
materials made by ASG in accordance with this Agreement, shall remain at all
times exclusively in ASG, and RadView shall not acquire any right, title, or
interest therein; provided, however, that any derivative work or new product
created by ASG based on the Products or the Source Materials shall not diminish
or otherwise affect RadView's pre-existing rights in its Products, Source
Materials or documentation; and provided further, however, that in the event
either RadView or ASG independently develops derivative software or
documentation similar to that developed by the other party, RadView's or ASG's
development shall not be subject to any intellectual property infringement claim
by the other party.
12.3 PRODUCT PACKAGING AND MARKETING MATERIALS. Except for RadView's
pre-existing rights in the Products themselves and any other materials,
including documentation, delivered by RadView hereunder, ASG shall own all
components of the Product packaging and marketing materials developed by ASG or
by a third party on ASG's behalf.
12.4 PRODUCT NAME. ASG shall determine, in its sole discretion subject to
the limitations set forth in Section 4.5, the name under which each Product will
be marketed (the "Product Name"); provided that the foregoing shall not be
construed as permitting ASG to adopt a product name that would infringe or in
any way
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be similar to or based on any trademark or trade name of RadView's. Subject to
the foregoing, ASG shall own all right, title and interest in and to the Product
Name and goodwill related thereto, including, but not limited to, copyright and
trademark rights. RadView shall not have any right to use such Product Name,
notwithstanding any expiration or termination of this Agreement or the Extended
Rights, or any other circumstance pursuant to which ASG ceases to market the
Products.
12.5 TRADEMARKS. Nothing in this Agreement shall be construed as granting
either party a license to use any trademark, service ▇▇▇▇, trade name, logo,
designation or other identifier of the other party at any time during or after
the term of this Agreement without the prior written consent of the other party.
13. REPRESENTATIONS AND WARRANTIES
13.1 NOT APPLICABLE TO MODIFICATIONS BY ASG. No representation or
warranty made by RadView in this Section shall apply to any matter which is
caused by (a) any modification of any Product by ASG or by any third party
contractor of ASG and which would not exist but for such modification(s), or (b)
any service performed by ASG other than in accordance with the specific
directions and authorization of RadView.
13.2 FULL AUTHORITY. RadView hereby warrants and represents that it is
capable of performing its obligations hereunder and has the full right, power,
and authority to enter into and perform this Agreement and to grant to and vest
in ASG all rights herein set forth, free and clear of any third party claims,
rights, and obligations. ASG hereby warrants and represents that it is capable
of performing its obligations hereunder and has the full right, power, and
authority to enter into and perform this Agreement.
13.3 PRODUCT OPERATION. RadView warrants that the Products (exclusive of
New Releases), and each of them, will, upon their initial delivery to ASG be
free from any material Nonconformities, and will operate and run substantially
in conformance with the specifications and the End User documentation for the
particular Product for a period of ninety (90) days following the initial
delivery of the Product to ASG. Should any Nonconformity be detected by ASG and
reported to RadView by ASG during such period, then provided that the
Nonconformity is replicable and ASG provides to RadView the information and
assistance reasonably required by RadView to recreate the Nonconformity and the
circumstances of its occurrence, RadView shall address any such replicable
Nonconformity with an effort commensurate with its severity and shall use
commercially reasonable best efforts to prepare and deliver to ASG, at no charge
to ASG, a Correction within a reasonable period of time, as evaluated based on
the severity of the Nonconformity and the sufficiency of interim or partial
remedies which might be available pending a final cure of the Nonconformity;
provided, however, that in the event RadView is unable to deliver to ASG a
Correction within a reasonably period of time, RadView will notify ASG of its
inability to provide the Correction, terminate the licenses with respect to such
non-conforming Product, accept return of all copies of the non-conforming
Product delivered to ASG and all copies of such Product previously sold to End
Users, and refund to ASG the royalties paid by ASG with respect to the returned
copies of the non-conforming Product sold to End Users prior to RadView's
delivery of the notice to ASG. Notwithstanding the foregoing, RadView shall not
be responsible for Nonconformities that result from any modification of a
Product not made or authorized by RadView. With respect to New Releases, RadView
shall offer the same warranty during the ninety (90) day period following the
initial delivery of such New Release to ASG; the applicable refund with respect
to a non-conforming New Release delivered to an End User (a) shall be the
Maintenance royalty fee paid with respect to the applicable End User for the
Maintenance term during which the New Release was delivered (provided that where
the Maintenance term was more than one (1) year in length, the Maintenance fee
royalty refund shall be limited to the prorated portion of the Maintenance fee
royalty which reflects one (1) year of the term). SUBJECT TO THE FOREGOING,
RADVIEW DOES NOT WARRANT THAT THE PRODUCTS WILL PERFORM ERROR FREE OR
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WITHOUT INTERRUPTIONS, NOR DOES RADVIEW WARRANT THAT THE SOFTWARE WILL MEET
ASG'S REQUIRMENTS OR THE REQUIREMENTS OF ASG'S END USERS. Except as expressly
provided for in this Section 13.3, ASG agrees to bear the entire risk as to the
adequacy and performance of the products. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN THIS SECTION 13.3, RADVIEW DISCLAIMS ALL WARRANTIES, EXPRESS OR
IMPLIED, WITH REGARD TO THE PRODUCTS AND USER DOCUMENTATION INCLUDING, WITHOUT
LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILTY AND FITNESS FOR A
PARTICULAR PURPOSE, OR THOSE ARISING FROM THE COURSE OF DEALING BETWEEN THE
PARTIES OE USAGE OF TRADE. This Section 13.3 sets forth ASG's exclusive remedy
and RadView's sole responsibility in the event of a Product Nonconformity. This
warranty is made solely to ASG, and ASG acknowledges and agrees that RadView
extends no warranties of any sort or nature to or by any third party, including
any End User, or with respect to any third party product or service not licensed
and provided by RadView hereunder. Any Nonconformities which may be identified
in subsequent versions or releases of the Products shall be addressed pursuant
to the provisions of Section 7.2 above.
14. INTELLECTUAL PROPERTY WARRANTY
RadView warrants that the Products, or any of them, do not infringe a third
party intellectual property right and that RadView has the right to grant the
licenses granted hereunder. ASG agrees that RadView's and its vendors' entire
liability and ASG's sole and exclusive remedy for breach of the foregoing
intellectual property warranty and for the comparable warranty and
representation set forth in Section 13.2 above, shall be as set forth in Section
15 below.
15. INDEMNITIES
15.1 INDEMNIFICATION OF ASG BY RADVIEW. Subject to the terms of this
Section 15.1, RadView shall indemnify and hold ASG harmless from and with
respect to any loss or damage (including reasonable attorneys' fees and costs),
arising out of or relating to any claim, demand, suit or proceeding brought by a
third party against ASG solely insofar as such claim, demand, suit or proceeding
shall be based upon a claim by such third party alleging facts or circumstances
that, if true, would constitute a breach of the intellectual property warranty
set forth in Section 14 above. ASG shall give RadView prompt written notice and
control over the defense (and settlement as applicable) of any such claim and
shall provide RadView such reasonable cooperation and assistance as RadView may
request from time to time. ASG shall have the right, but not the obligation, to
participate in such litigation or proceeding at its sole expense through counsel
of its own choosing; ASG shall also have the sole responsibility to defend, at
its expense, any claims that might be brought in conjunction or association with
an indemnifiable claim but which are not, themselves, indemnifiable. RadView
shall pay any damages and costs ruled against ASG (or paid or payable by ASG
pursuant to a settlement agreement, provided that RadView will not enter into
any settlement which includes an admission of guilt or which imposes a liability
or obligation on ASG without the prior written consent of ASG which shall not be
unreasonably withheld or delayed) in connection with such a claim, demand, suit
or proceeding. ASG shall permit RadView to control such litigation. The
commencement of any litigation covered by this Section 15.1 shall not affect
ASG's obligation to pay Product and Product Maintenance royalties that may
accrue to RadView hereunder. If a final injunction is obtained against ASG's
distribution of a Product due to a breach of the intellectual property warranty
set forth above, or if, in RadView's sole judgment, it would be cost effective
to do so, then RadView may, at its option and expense, (a) procure for ASG the
right to continue distributing such Product, (b) replace or modify the Product
so that it is no longer infringing but continues to provide comparable
functionality, or (c) repossess all copies of the infringing Product in
Customer's possession or sold to End Users, terminate all licenses to the same,
and reimburse ASG,
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on an amortized basis, for the royalty fees paid with respect to such Product
(such amortization calculated on a five year straight line amortization rate
commencing as of the date the royalty was paid).
15.2 INDEMNIFICATION OF RADVIEW BY ASG. Subject to the terms of this
Section 15.2, ASG shall indemnify and hold RadView harmless from and with
respect to any loss or damage (including reasonable attorneys' fees and costs),
arising out of or relating to any claim, demand, suit or proceeding brought by a
third party against RadView solely insofar as such claim, demand, suit or
proceeding shall be based upon a claim by such third party: (i) alleging facts
or circumstances that, if true, would constitute a breach of any license rights
granted to ASG by RadView; (ii) that a Product, or any version thereof, is
defective as the result of any modification to, or Product version or derivative
work, made or authorized by ASG but not made or authorized by RadView; (iii)
that any Product documentation, including marketing materials, made or
authorized by ASG or its authorized resellers or distributors, contains false,
misleading or otherwise actionable representations that were not expressly
authorized by RadView, in writing, (iv) that a new product or derivative work
developed by ASG based on the Source Materials or a Product is defective or
infringing of a third party right but only to the extent that the infringement
is not in the Source Materials or the Product but is attributable to the work of
ASG. RadView shall give ASG prompt written notice of any such claim and shall
provide ASG such reasonable cooperation and assistance as ASG may request from
time to time in the defense thereof. RadView shall have the right, but not the
obligation, to participate in such litigation or proceeding at its sole expense
through counsel of its own choosing. RadView shall also have the sole
responsibility to defend, at its expense, any claims that might be brought in
conjunction or association with an indemnifiable claim but which are not,
themselves, indemnifiable. ASG shall pay any damages and costs assessed against
RadView (or paid or payable by RadView pursuant to a settlement agreement,
provided that ASG will not enter into any settlement which includes an admission
of guilt or which imposes a liability or obligation on RadView without the prior
written consent of RadView which shall not be unreasonably withheld or delayed)
in connection with such a claim, demand, suit or proceeding. RadView shall
permit ASG to control such litigation.
16. LIMITATION OF LIABILITY AND EXCLUSION OF CONSEQUENTIAL DAMAGES
WITH THE EXCEPTION OF RADVIEW'S BREACH OF SECTION 14 (INTELLECTUAL PROPERTY
WARRANTY), EITHER PARTY'S MATERIAL BREACH OF SECTION 11 (CONFIDENTIAL
INFORMATION) (TO THE EXTENT SUCH BREACH WAS WILLFUL, GROSSLY NEGLIGENT OR
RECKLESS), EACH PARTY'S OBLIGATIONS UNDER SECTION 15 (INDEMNITIES), A MATERIAL
UNCURED BREACH BY ASG OF SECTION 4 (LICENSE TERMS), OR A MATERIAL UNCURED BREACH
OF THE LICENSE TERMS RELATING TO THE SOURCE MATERIALS BY ASG, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER FOR (1) INCIDENTAL, INDIRECT, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR (2) ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE,
DATA, REVENUES, BUSINESS OR PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE
PRODUCTS OR SERVICES, IN EITHER EVENT ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, OR THE PERFORMANCE OR NON-PERFORMANCE OF EITHER PARTY HEREUNDER, OR
THE PRODUCTS OR SERVICES PROVIDED BY OR THROUGH RADVIEW HEREUNDER, EVEN IF THE
WARRANTY REMEDY FAILS IN ITS ESSENTIAL PURPOSE AND EVEN IF SUCH PARTY HAD BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY AGREES THAT THE OTHER
PARTY'S LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR RELATING TO ANY
SERVICE OR PRODUCT PROVIDED HEREUNDER SHALL, WITH THE EXCEPTION OF EITHER
PARTY'S BREACH OF SECTION 11 (CONFIDENTIAL INFORMATION) (TO THE EXTENT SUCH
BREACH WAS WILLFUL, GROSSLY NEGLIGENT OR RECKLESS), EACH PARTY'S OBLIGATIONS
UNDER SECTION 15 (INDEMNITIES), A MATERIAL UNCURED BREACH BY ASG OF SECTION 4
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(LICENSE TERMS), OR A MATERIAL BREACH OF THE LICENSE TERMS RELATING TO THE
SOURCE MATERIALS BY ASG, BE LIMITED SOLELY TO THE FIRST PARTY'S DIRECT DAMAGES.
RADVIEW EXPRESSLY DISCLAIMS, AND ASG AGREES, THAT RADVIEW SHALL HAVE NO
LIABILITY OF ANY KIND FOR ANY THIRD PARTY PRODUCT OR SERVICE NOT PROVIDED BY
RADVIEW HEREUNDER. Any claim made under or in connection with this Agreement
and/or the Products or Services provided hereunder shall be made within one (1)
year from the date on which the claiming party first had notice of the facts
giving rise to the claim.
17. NOTICES
Notice to either party to this Agreement shall be deemed received on the
day of delivery if delivered, with confirmation of receipt, by electronic
facsimile, by courier or by hand during normal business hours, and the following
day if delivered after normal business hours. Delivery of all notices shall be
made to the following persons at the respective addresses of the parties first
set forth above: for RadView, to the attention of its Chief Financial Officer
(fax. number (▇▇▇) ▇▇▇-▇▇▇▇); for Customer, to the attention of General Counsel
(fax. number ▇▇▇-▇▇▇-▇▇▇▇).
18. MISCELLANEOUS
18.1 ENTIRE AGREEMENT. This Agreement, including the Exhibits hereto,
constitutes the entire understanding and agreement between the parties hereto
and supersedes any and all prior or contemporaneous representations,
understandings and agreements between ASG and RadView with respect to the
subject matter hereof, all of which are merged herein. Notwithstanding the
foregoing, the parties understand and agree that any confidentiality agreements
between the parties are separate from this Agreement, and, except as may be
expressly stated herein, nothing contained in this Agreement shall be construed
as affecting the rights or obligations of either party set forth in any such
agreement. It is expressly understood and agreed that no employee, agent or
other representative of either party has any authority to bind such party with
regard to any statement, representation, warranty, or other expression unless
the same is specifically set forth or incorporated by reference herein. It is
further acknowledged and agreed that no usage of trade or custom and practice
within the industry, and no regular practice or method of dealing between the
parties hereto, shall be used to modify, supplement or alter in any manner the
terms of this Agreement or any part hereof. This Agreement shall not be
modified, amended or in any way altered except by an instrument in writing
signed by an officer of RadView and an officer of ASG.
18.2 INDEPENDENT PARTIES. Nothing contained herein shall be deemed to
create or construed as creating a joint venture or partnership between ASG and
RadView. Neither party is, by virtue of this Agreement or otherwise, authorized
as an agent or legal representative of the other party. Neither party is granted
any right or authority to assume or to create any obligation or responsibility,
express or implied, on behalf of or in the name of the other party or to bind
such other party in any manner. Further, it is not the intention of this
Agreement or of the parties hereto to confer a third party beneficiary right of
action upon any third party or entity whatsoever, and nothing hereinbefore or
hereinafter set forth shall be construed so as to confer upon any third party or
entity other than the parties hereto a right of action under this Agreement or
in any manner whatsoever.
18.3 WAIVER. No waiver of any provision of this Agreement or any rights
or obligations of either party hereunder shall be effective, except pursuant to
a written instrument signed by the party or parties waiving compliance, and any
such waiver shall be effective only in the specific instance and for the
specific purpose stated in such writing.
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18.4 AMENDMENTS. All amendments or modifications of this Agreement shall
be binding upon the parties despite any lack of consideration so long as the
same shall be in writing and executed by the parties hereto in accordance with
the other terms of this Agreement regarding modifications.
18.5 SEVERABILITY OF PROVISIONS. In the event that any provision hereof
is found invalid or unenforceable pursuant to judicial decree or decision, the
remainder of this Agreement shall remain valid and enforceable according to its
terms.
18.6 ASSIGNMENT. Neither party shall have the right to, and each party
covenants that it will not, assign or transfer this Agreement or any of its
rights, duties or obligations hereunder, and this Agreement may not be
involuntarily assigned or assigned by operation of law, without the prior
written consent of the other party, which consent may be granted or withheld by
such other party in its sole discretion, except that either party shall have the
right to assign or transfer this Agreement or any interest herein (including
rights and duties of performance) to any entity: (i) which owns more than fifty
percent (50%) of such party's issued and outstanding capital stock or voting
interest; (ii) in which such party owns more than fifty percent (50%) of the
issued and outstanding capital stock or voting interest; (iii) which acquires
all or substantially all of such party's operating assets, or (iv) into which
such party is merged or reorganized pursuant to any plan of merger or
reorganization. Any attempted assignment without such consent shall be null and
void. Notwithstanding the foregoing, ASG shall be able to assign its rights
under this Agreement to its senior lenders under its then existing credit
agreement provided that such credit agreement shall not be construed to in any
way alter, diminish, qualify or otherwise change the terms of this Agreement and
the rights and obligations of the parties hereunder. This Agreement shall be
binding upon and inure to the benefit of each of the parties hereto and their
respective legal successors and permitted assigns.
18.7 CHOICE OF LAW; FORUM AND JURISDICTION. This Agreement was entered
into in the State of Delaware, and its validity, construction, interpretation
and legal effect shall be governed by the laws and judicial decisions of the
State of Delaware applicable to contracts entered into and performed entirely
within the State of Delaware and by applicable federal law, with the exception
of Delaware's choice-of-law provisions. The parties agree that the exclusive
venue for any claims brought hereunder shall be in or around Boston,
Massachusetts, and both parties hereby consent and submit to personal
jurisdiction of Massachusetts. The parties further agree that all disputes,
claims or controversies arising out of or relating to this Agreement, whether
based on facts occurring before, during or after the term of this Agreement,
that are not resolved by the parties' good faith attempt to negotiate a
resolution shall be submitted to final and binding arbitration before the
American Arbitration Association ("AAA") (or another entity agreed upon by the
parties), pursuant to the United States Arbitration Act, 9 U.S.C. Section 1, et.
seq.; provided, however, that nothing herein shall prevent either party from
seeking injunctive relief in a court of law or other administrative forum with
respect to violations of the terms of Section 11 (Confidential Information)
above or ASG's misuse of the Source Materials. The arbitration will be conducted
in accordance with the provisions of AAA's (or other agreed upon entity's) rules
and procedures in effect at the time of the filing of the demand for
arbitration. The parties will cooperate with AAA (or other agreed upon entity)
and each other in selecting a single arbitrator who shall be a former judge or
justice with substantial experience in resolving business disputes with
particular experience in resolving disputes involving computer software. The
arbitrator shall have the power to award costs and attorneys' fees to the
prevailing party. In the absence of such an award, the cost of arbitration will
be shared equally by the parties and each party shall bear its own expenses. The
provisions of this section may be enforced by any court of competent
jurisdiction. The arbitrator shall not be empowered to award damages in excess
of, or inconsistent with, the liability limitations contained in this Agreement.
The parties mutually and voluntarily agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not
* Confidential
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apply to transactions covered by this Agreement. Customer agrees not to permit
the delivery of the Software in violation of any applicable United States or
Canadian export control laws, restrictions and regulations relating to the
distribution of technical information and software, as they exist from time to
time, including, without limitation, those promulgated by the United States
Department of Commerce.
18.8 ATTORNEYS' FEES. In the event any litigation or other proceeding is
brought by either party arising out of or relating to this Agreement, the
prevailing party in such litigation or other proceeding shall be entitled to
recover from the other party all costs, attorneys' fees and other expenses
incurred by such prevailing party in such litigation or proceeding.
18.9 FORCE MAJEURE. Neither party shall be deemed in default if its
performance or obligations hereunder are delayed or become impossible or
impractical by reason of any act of God, war, fire, earthquake, labor dispute,
accident, civil commotion, epidemic, act of government or government agency or
officers, or any other cause beyond such party's control.
18.10 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
18.11 NO HIRE. Subject to any limitations of applicable law, for the Term
(as that may be renewed and/or extended by agreement of the parties), and for a
three (3) year period thereafter, neither party may solicit for employment or
employ, directly or indirectly, without the prior written consent of the other
party, any employee or former employee of the other party who has acted, at any
point during the Term, as an executive, sales representative, pre-sales
professional, product manager, technical support person, software engineer,
software architect or like position with technical know-how and skills relating
to the Products unless such employee or former employee has left the employment
of the other party at least six (6) months prior to the date of any such
solicitation or hiring.
18.12 NO UNANNOUNCED MODIFICATIONS TO SIGNATURE DOCUMENTS. By signing and
delivering this Agreement and/or any schedule, exhibit, amendment, or addendum
thereto, each party will be deemed to represent to the other that the signing
party has not made any changes to such document from the draft(s) originally
provided to the other party by the signing party, or vice versa, unless the
signing party has expressly called such changes to the other party's attention
in writing (e.g., by "redlining" the document or by a comment memo or email).
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND
LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR
BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED
IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT
AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
* Confidential
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
▇▇▇▇▇ SYSTEMS GROUP, INC. RADVIEW SOFTWARE, LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Title: President and CEO Title: President and CEO
-------------------------------- --------------------------------
Date: Date:
--------------------------------- --------------------------------
EXHIBITS:
A. PRODUCTS
B. END USER LICENSE; EVALUATION LICENSE
C. THIRD PARTY COMPONENTS AND TECHNOLOGY
* Confidential
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EXHIBIT A
PRODUCTS COVERED BY AGREEMENT
Core Products:
- TestView Manager
- WebLOAD
- WebRM and RM Workstations
- WebFT and FT Player
WebLOAD Add-On Products:
- WebServices for WebLOAD
- DDOS for WebLOAD
- Internet Protocol Pack for WebLOAD
- Application Probing for WebLOAD
WebFT Add-On Products:
- WebServices for WebFT
- Internet Protocol Pack for WebFT
* Confidential
-20-
EXHIBIT B
B1. ASG STANDARD END USER LICENSE AGREEMENT
* Confidential
-21-
B2. RADVIEW SCHEDULE OF LICENSE TERMS TO BE ADDED TO ASG STANDARD END USER
LICENSE AGREEMENT
Supplemental terms applicable to [ASG to insert name of RadView software] (the
"Software"). In the event of a conflict between the terms of this Schedule and
the terms in the body of the Agreement, the terms of this Schedule shall govern
and supersede the conflicting terms in the Agreement, solely with respect to the
Software.
1. Client shall have the right to use the Software solely for its internal
business purposes, and not on behalf of any third party, whether performed
for a fee or gratis, including, without limitation, any corporate affiliate
or related company, or any Client customer, nor for any service bureau or
other commercial purposes, without the prior written consent of the Software
third party supplier. The terms of the Agreement and this Schedule shall be
applicable to any and all updates or upgrades provided to Client pursuant to
a maintenance agreement or otherwise. The Software can only be installed and
operated on the number of designated CPUs identified in the purchase order
for the Software. Client can make, but not install, one additional copy of
the Software for disaster recovery purposes only, and shall include in any
such copy all proprietary language and notices set forth.
2. The license granted herein is perpetual. Client may elect to cancel
Maintenance, and provided all fees due under the Agreement are paid in full,
retain the right to use the Software in accordance with the terms and
conditions of the Agreement and this Schedule. If Client elects to cancel
Maintenance, Client (i) shall not be entitled to a refund of any fees which
are due and payable under this Agreement or which have been paid, and (ii)
shall not be entitled to receive any rights provided for in the Agreement
related to Maintenance, including Customer Support Desk, error corrections,
enhancements, improvements and updates. Client may elect to reinstate
Maintenance by paying (i) the Maintenance Fee for the period for which
Client had refused or discontinued its subscription for Maintenance
Services, (ii) a 50% surcharge on the Maintenance Fee for the period Client
had refused or discontinued its subscription of Maintenance Services to
cover ASG's costs of upgrading Client to the current release of the
Software, and (iii) the Maintenance Fee for the new Maintenance period. All
of the foregoing Maintenance Fees shall be at ASG's then current list price.
All license and maintenance fees paid hereunder are non-refundable unless
otherwise expressly set forth in the agreement.
3. In addition to the license restrictions set forth in the Agreement,
Client shall not sell, publish, disclose, display, make unauthorized copies
of, reverse engineer, translate or make derivative works of the Software.
Client shall be responsible for (a) installing, managing and operating the
Software, and (b) any interfacing between the Software and all other
software or database(s) used by Client.
4. Client shall only use, on a concurrent basis, the number of Virtual
Clients, as defined below, and/or the number of Connected Workstations, as
defined below, for which Client has paid the applicable license fee and
which shall be controlled by the License File during the use and operation
of the Software. For purposes of this Agreement, (a) the term "'Virtual
Client" shall refer to an artificial client entity that simulates a real
client accessing the web application that is being tested, (b) the term
"Connected Workstation" shall refer to a software console that, when
connected to [the enterprise version of the Software], can be used to set
up, run and control the test session, and (c) the term "License File" shall
refer to the file run during the installation of the Software which defines
the scope and duration of the license (including, without limitation, the
number of authorized CPUs on which the software can be loaded, the number of
authorized users of the Software, the number of licensed Virtual Clients and
the license term).
5. The Agreement, as it pertains to the Software, may not be assigned,
sublicensed, delegated or otherwise transferred by Client to any third party
without the prior written consent of ASG, which consent shall not be
unreasonably withheld or delayed, except in the event of an assignment to a
third party who purchases all or substantially all of Customer's assets or
stock, who agrees in writing to be bound by the terms of the Agreement,
including this Schedule, and such written agreement is delivered to ASG, and
who is not a direct competitor of the third party supplier of the Software.
6. All third party suppliers of the Software shall be deemed third party
beneficiaries of the Agreement and this Schedule with respect to their
respective software components. Such third party suppliers may include,
without limitation and as applicable, RadView Software, Sun Microsystems
Inc., World Wide Web Consortium, Certicom, Roguewave, RSA Data Security
Inc., Consensus Development Corporation, Global Majic Software Inc.,
Microsoft Corporation, Software FX, Inc., and Sun Microsystems.
* Confidential
-22-
7. In addition to the limitations on liability set forth in the Agreement,
ASG and its third party suppliers shall have no liability for any
incidental, consequential, special, or punitive damages or for loss of
profits, revenues, data, or use, or for the cost of substitute products or
services with respect to the Software or services related thereto. Client
further acknowledges and agrees that any and all claims relating to the
Software shall be brought exclusively against ASG. Client shall have no
cause of action or claim against any third party supplier of the Software
for any reason whatsoever.
8. The Software is "Restricted Computer Software." Use, duplication, or
disclosure by the U.S. Government is subject to restrictions as set forth in
this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a)
(1995), DFARS 252.227-7013 (OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19,
or FAR 52.227-14, as applicable, and as amended. The Contractor/Manufacturer
can be contacted through ASG
9. THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN ONLINE CONTROL OF
AIRCRAFT, AIR TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS, OR IN
THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY.
IN NO EVENT SHALL CLIENT SHALL USE OR REDISTRIBUTE THE SOFTWARE FOR SUCH
PURPOSES.
10. The details of this Agreement and Schedule, the Software, and the
Software Documentation shall be deemed Confidential Information.
* Confidential
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B3. ASG EVALUATION LICENSE AGREEMENT
IMPORTANT - PLEASE READ CAREFULLY BEFORE OPENING ENVELOPE OR INSTALLING
SOFTWARE ON YOUR COMPUTER
[ASG SOFTWARE SOLUTIONS LOGO]
SOFTWARE EVALUATION AGREEMENT
Opening this sealed disk envelope or installing the Product on your computer
constitutes acceptance of this Software Evaluation Agreement ("Agreement") by
Company. If you do not agree to all of the terms of this Agreement, you must
return this Product (with the disk envelope still sealed), and all manuals and
documentation immediately to ▇▇▇▇▇ Systems Group, Inc. ("ASG")
TERMS AND CONDITIONS
1. ASG grants and Company accepts a nonassignable, nonexclusive and
nontransferable right to use the Product(s) internally, solely for the
purposes of evaluating the Product(s). Company will not disassemble,
reverse engineer, decrypt, decompile, create derivative works from, or
translate the Product, or any portion thereof, or recreate or attempt to
recreate the Product, in whole or in part by reference to the Product, or
perform any process intended to determine the source code for the Product;
nor shall Company sublicense, distribute, deliver, disclose or otherwise
provide to a third party the Product or any portion thereof and any
unauthorized attempt to assign, sublicense or grant other rights to the
Product shall be immediately and automatically void; nor may Customer
modify the Product except as contemplated by the Software user
documentation.
2. The term of the evaluation shall commence upon the date of shipment of the
Product(s) and shall operate for a period of thirty (30) days only. Any
extension to the evaluation period beyond a period of thirty (30) days may
be authorized by ASG, in its sole discretion, upon receipt of Company's
written request stating the reason(s) such an extension is required.
3. Company acknowledges that the Product(s) is/are the property of ASG or
ASG's Licensor and Company's only right with respect to the Product(s) is
to use the Product(s) in accordance with the terms and conditions of this
Agreement. Company will use all reasonable care and take all necessary
steps to prevent the Product(s) from being acquired by unauthorized
persons, and Company will take appropriate action with any persons
permitted access to the Product(s) so as to enable Company to satisfy its
obligation hereunder. Company understands that these obligations shall
survive the expiration of the evaluation period.
4. Upon the expiration of the evaluation period, Company will either: (a)
execute a Software Licensing Agreement for the Product(s), or (b) remove
the Product(s) from the host computer and any additional computers and
return the Product(s) and associated documentation to ASG.
5. COMPANY AGREES THAT THE PRODUCT(S) IS/ARE BEING PROVIDED ON AN "AS IS"
BASIS. ASG SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY AS TO
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY AGREES TO
ASSUME ALL RISK AND LIABILITY ASSOCIATED WITH ITS EVALUATION USE OF THE
SOFTWARE. ASG SHALL NOT BE LIABLE TO COMPANY FOR ANY DAMAGES, WHETHER
DIRECT, INDIRECT, OR CONSEQUENTIAL WHICH ARE IN ANY WAY DIRECTLY OR
INDIRECTLY RELATED TO THE USE OF THE PRODUCT(S) BY THE COMPANY.
6. Company acknowledges that it has read this Agreement, understands it, and
agrees to be bound by its terms and conditions. Company further agree that
this is the complete and exclusive statement of the Agreement between
Company and ASG, superseding any proposal or prior Agreement, oral or
written, and any other communications between Company and ASG relating to
the subject matter of this Agreement.
▇▇▇▇▇ Systems Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇) ▇▇▇ ▇▇▇-▇▇▇▇
* Confidential
-24-
* Confidential
-25-
EXHIBIT C
THIRD PARTY COMPONENTS AND TECHNOLOGY
ASSOCIATED PRODUCT
------------------------------------
THIRD PARTY PRODUCT NAME TESTVIEW WEBLOAD WEBFT
------------------------ ----------------------------------------------- ------------ ----------- ---------
ActiveCube ActiveCube Exporting Capabilities X X
ActiveCube Active Reports Viewer X X
ActiveX Control X
Apachi Axis X
APEX Software True OLE DBGrid X X
Corporation
Blue Sky Software RoboHelp Classic X
Certicom SSL Plus X
Data dynamics Active reports for .NET X
Dundas Dundas Files X X
Faircom Ctree X
Global Majic Software GMS Automobile Gauge X
Inc
Global Majic Software GFX Module Ocx X
Inc
Global Majic Software GMS Odometer ActiveX Control X
Inc
Hallogram Publishing Component Toolbox X
Infragistics Net Advantage 2004, ver 2 X
Innovasys Properties List Control X X
Macrovision FlexLM X
▇▇▇▇▇ software GridWiz X X
International
MicroQuill SmartHeap X
Microsoft Microsoft Forms X X
Microsoft ATL Module for Windows NT X X
Microsoft Microsoft C Runtime Library X X X
Microsoft Microsoft MFC Library X X X
Microsoft Extended MAPI 1.0 for Windows NT X X
Microsoft Microsoft Data Grid Control 6.0 X X
Microsoft Microsoft Data List Control 6.0 X X
Microsoft Microsoft ADO Data Control 6.0 X X
Microsoft Microsoft FlexGrid Control 6.0 X X
Microsoft Microsoft Standard Data Formatting Object DLL X X
Microsoft Microsoft Masked Edit Controls X X
Microsoft Microsoft OLE 2.30 for Windows NT X X
Microsoft Microsoft GFX Module Ocx X X
Microsoft Microsoft ActiveX Control X X
Microsoft Microsoft CMDialog ActiveX Control DLL X X
Microsoft Microsoft common control X X
Microsoft Microsoft Rich Edit X X
Mozilla Mozilla DLL X X
* Confidential
-26-
ASSOCIATED PRODUCT
------------------------------------
THIRD PARTY PRODUCT NAME TESTVIEW WEBLOAD WEBFT
------------------------ ----------------------------------------------- ------------ ----------- ---------
Nsoftware ipworks library X
Quicksoft Corp. EasyMail X X
RogueWave Stingray Objective Toolkit/X 2.0 X X
RogueWave Tools H++ library X X X
RogueWave Threads H++ library X X X
RSA Data Security Inc BSAFE X
SAP SAP library X
Software FX Chart FX X X
Ssleay SSL Certificate Module X
Sun Microsystems JRE X
Word Wide Web Consortium Jigsaw X
* Confidential
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