EXHIBIT 10.5
Kana Communications, Inc.
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is effective as of
__________________________, 199______ ("Effective Date"), and is made by and
between:
Kana Communications, Inc., a California corporation , with its principal place
of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Kana") and
___________________, a _________________________ corporation, with its
principal offices at _________________________________________________
________________________________ ("Customer").
Whereas, Kana owns, or has licensed from the owner(s), copyrights and other
rights to the software product identified in Schedule A, and contained in the
master disk(s) ("Master Disk(s)") and associated documentation provided by Kana
under this Agreement (collectively, the "Software"); whereas, Customer desires
to receive a non-exclusive license to use such Software at the site(s) listed
below; and whereas, Kana is willing to grant such non-exclusive license to
Customer on the terms and conditions set forth below; the parties agree as
follows:
1. License. Subject to the terms of this Agreement, Kana grants to Customer a
-------
personal, nontransferable, nonsublicensable, nonexclusive, limited license to:
(a) use the Software in accordance with the documentation supplied by Kana only
on the machines and only at the location ("Licensed Site") and for the number of
authorized concurrent users ("Authorized Users") specified on Schedule A, and
----------
(b) make up to _________________________ (_____) duplicated copies of the
Software and the included documentation ("Authorized Duplicates"), provided such
Authorized Duplicates are used only at the Licensed Site. Any copies of the
Software made in violation of this Agreement shall be deemed copyright
infringement. Customer may install the Software onto, and use the Software on,
single station hard disks within the Licensed Site.
The Master Disk(s) shall only be used to make Authorized Duplicates and
shall be stored in a cool, safe place, along with a copy of this Agreement, when
not being so used. Customer shall make Authorized Duplicates of the Software
only from the Master Disk(s); no Authorized Duplicates shall be used to make
other Authorized Duplicates. Customer shall conspicuously label all Authorized
Duplicates as "Authorized Kana Duplicates."
2. Ownership of Software. As between the parties, title to and ownership of
---------------------
the Software, all proprietary rights therein, any accompanying printed materials
and all copies and portions thereof shall be and at all times remain in Kana.
The Software and accompanying printed materials are protected by copyright,
trademark and trade secret laws and international treaty provisions.
3. Restrictions. Customer agrees that under no circumstance shall it, or
------------
shall it cause or permit any third party to, (a) distribute or allow others to
distribute copies of the Software or the associated documentation to a person or
entity outside of the Licensed Site, (b) reproduce, modify or copy the Software
and associated documentation except as expressly permitted by this Agreement, or
as permitted by Kana in writing (c) provide, rent, sell, lease or otherwise
transfer the Software or any copy or part thereof or use it for the benefit of a
third party (d) reverse assemble, reverse compile or reverse engineer the
Software, or otherwise attempt to discover any Software source code or
underlying Proprietary Information (as defined below).
4. Confidentiality; Assignment.
---------------------------
a. Customer acknowledges that, in the course of using the Software and
performing its duties under this Agreement, it may obtain information relating
to the Software and/or to Kana ("Proprietary Information"). Such Proprietary
Information shall belong solely to Kana and includes, but is not limited to, the
existence of the Software, its features and mode of operation, this Agreement,
trade secrets, know-how, inventions (whether or not patentable), techniques,
processes, programs, ideas, algorithms, schematics, testing procedures, software
design and architecture, computer code, internal documentation, design and
function specifications, product requirements, problem reports, analysis and
performance information, software documents, and other technical, business,
product, marketing and financial information, plans and data.
b. During and after the term of this Agreement, Customer shall:
i. not use (except as expressly authorized by this Agreement) or
disclose Proprietary Information without the prior written consent of Kana,
unless such Proprietary Information becomes part of the public domain without
breach of this Agreement by Customer, its officers, directors, employees or
agents;
ii. take all reasonable measures to maintain the Proprietary
Information and Software in confidence;
iii. disclose the Software and Proprietary Information only to those
of its employees and consultants as are necessary for the use expressly licensed
hereunder, and only after such employees and contractors have agreed in writing
to be bound by the provisions of this Agreement;
iv. not, without the prior written consent of Kana, disclose or
otherwise make available the Software or copies thereof to any third party;
v. comply with all export laws and restrictions and regulations of
the U.S. Department of Commerce or other United States or foreign agency or
authority, and not, under any circumstances, export or re-export, or allow the
export or re-export of the Software any Proprietary Information or any copy or
direct product thereof or in violation of any such restrictions, laws or
regulations, or to any Group D:1 or E:2 country (or any national of such
country) specified in the then current Supplement No. 1 to Part 740, or, in
violation of the embargo provisions in Part 746, of the U.S. Export
Administration Regulations (or any successor regulations or supplement), even if
Customer is in compliance with all licenses and approvals required under
applicable export laws and regulations, including without limitation, those of
the U.S. Department of Commerce.
c. Customer hereby assigns to Kana any invention, work of authorship,
idea or know-how (whether or not patentable) relating to the Software that is
conceived, learned or reduced to practice in the course of performance under
this Agreement and any patent rights, copyrights (including moral rights;
provided that non-assignable moral rights are waived to the extent permitted by
law), trade secret rights, and other rights with respect thereto. Customer
agrees to take any action reasonably requested by Kana to evidence, perfect,
obtain, maintain, enforce or defend the foregoing.
5. License Fee; Payment. Customer shall pay the license fee for the Software
--------------------
("License Fee") as set forth in Schedule A hereto. All payments are due and
----------
payable thirty (30) days after the date of Kana's invoice and shall be made in
U.S. Dollars in the United States. All such license fees are exclusive of
shipping, taxes, duties and the like, which shall be paid by Customer. All late
payments shall be assessed a service charge of 1.5% per month to the extent
allowed by law.
6. Installation; Training. Installation and training for the Software, if
----------------------
applicable, shall be provided only pursuant to the installation and training
terms and conditions set forth in Schedule A hereto.
----------
7. Upgrades; Support; Maintenance. Support and maintenance for the Software,
------------------------------
and all upgrades and new versions thereof, shall be provided only pursuant to
the support and maintenance terms and conditions set forth in Schedule A hereto.
----------
8. Termination. The license granted herein is effective until terminated.
-----------
The license in Section 1 may be terminated upon the following events; however,
upon termination, the terms of this Agreement, except for Sections 6 and 7, will
otherwise survive and remain in effect.
a. Termination by Customer. Upon termination by Customer, Customer will
-----------------------
cease all use of the Software and destroy or return to Kana the Master Disk(s),
all Authorized Duplicates and all documentation and copies thereof to Kana along
with a signed written statement expressing Customer's desire to terminate the
license and certifying that Customer has destroyed or returned to Kana, and is
no longer in possession of, any Software, Master Disk(s), Authorized Duplicates,
related documentation or any copies, portions or derivatives of any of the
foregoing.
Page 2 of 4
b. Termination by Kana. Kana may immediately terminate this Agreement if
-------------------
Kana determines that Customer has failed to comply with any of the terms and
conditions of this Agreement. Upon such termination by Kana, all licenses and
rights granted hereunder shall terminate, Customer will cease all use of the
Software, and Customer shall immediately return to Kana, the Software, the
Master Disk(s), all Authorized Duplicates, Proprietary Information, together
with any and all documents, notes and other materials relating to the Software,
including, without limitation, all Proprietary Information and all copies and
extracts of the foregoing and all documentation and copies thereof, along with a
signed written statement certifying that Customer has returned to Kana, and is
no longer in possession of, any Software, Master Disk(s), Authorized Duplicates,
related documentation or any copies, portions or derivatives of any of the
foregoing.
9. Limited Warranty and Disclaimer. Kana warrants that, for a period of
-------------------------------
ninety (90) days from the date of installation of the Software, (a) the Software
will perform substantially in accordance with the accompanying printed
materials, and (b) the medium upon which the Software is provided by Kana to
Customer shall be free from defects in material and workmanship under normal
use. This warranty covers only problems reported to Kana during the warranty
period. WARRANTY DISCLAIMER: EXCEPT AS EXPRESSLY STATED HEREIN, THE SOFTWARE IS
PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER BEARS ALL RISK RELATING TO
QUALITY AND PERFORMANCE OF THE SOFTWARE. The performance of the Software varies
with various manufacturers' equipment with which it is used. Kana does not
warrant that the Software or the functions contained in the Software will meet
Customer's requirements, operate without interruption or be error free.
Customer's exclusive remedy for breach by Kana of its limited warranty set forth
above shall be replacement of any defective Software or medium upon its return
to Kana within the warranty period, or if Kana is unable to provide a
replacement which is free of defect, refund of the license fee paid by Customer.
10. Limitation of Remedies and Damages. ANY LIABILITY OF KANA WILL BE LIMITED
----------------------------------
TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE OR IN KANA'S OPINION
IMPRACTICAL, TO REFUND OF THE LICENSE FEE. KANA SHALL NOT BE RESPONSIBLE OR
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND
CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF
SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF
PROFITS, BUSINESS INTERRUPTION, LOSS OR INACCURACY OF DATA OR COST OF
PROCUREMENT OF SUBSTITUTE GOODS, ARISING OUT OF THE USE OF OR INABILITY TO USE
THE SOFTWARE, EVEN IF KANA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL KANA'S LIABILITY EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE
SOFTWARE. KANA SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE
CONTROL. Because some jurisdictions do not allow the exclusion or limitation of
liability of consequential or incidental damages, the above limitation may not
apply.
11. Government Use.
--------------
If Customer is a unit or agency of the government, or acquiring the Software
with government funds, the software and documentation are provided subject to
Kana's standard commercial license; provided, however, that any contracts with
non-defense agencies subject to the FAR, the Government shall have the rights
set forth in subparagraph (c) of FAR 52.227-19, "Commercial Computer Software-
Restricted Rights," as applicable.
12. Nonassignability. Neither the rights nor the obligations arising under
----------------
this Agreement are
Page 3 of 4
assignable or transferable by Customer, and any such attempted assignment or
transfer shall be void and without effect.
13. Execution of Agreement, Controlling Law, Attorneys' Fee. This Agreement
-------------------------------------------------------
shall become effective as of the Effective Date and only upon its execution by
both Kana and Customer. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regard to the
conflicts of law provisions thereof and without regard to the United Nations
Convention on the International Sales of Goods. In any action to enforce this
Agreement the prevailing party will be entitled to costs and attorneys' fees.
14. Equitable Relief. Customer acknowledges and agrees that due to the unique
----------------
nature of Kana's Proprietary Information, there can be no adequate remedy at law
for any breach of its obligations hereunder, that any such breach may allow
Customer or third parties to unfairly compete with Kana resulting in irreparable
harm to Kana and, therefore, that upon any such breach or threat thereof, Kana
shall be entitled to injunctions and other appropriate equitable relief, in
addition to whatever remedies it may have at law.
15. Notice. Any notice, report, approval or consent required or permitted
------
hereunder shall be in writing and will be deemed to have been effectively given:
(i) immediately upon personal delivery or facsimile transmission to the parties
to be notified, (ii) one (1) day after deposit with a commercial overnight
courier with tracking capabilities, or (iii) three (3) days after deposit with
the United States Postal Service, by registered or certified mail, postage
prepaid to the respective addresses of the parties as set forth above.
16. Waiver. The waiver by either party of a breach of this Agreement or any
------
right hereunder shall not constitute a waiver of any subsequent breach of this
Agreement; nor shall any delay by either party to exercise any right under this
Agreement operate as a waiver of any such right. If any provision of this
Agreement shall be adjudged by any court of competent jurisdiction to be
unenforceable or invalid, that provision shall be limited or eliminated to the
minimum extent necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
17. BASIS OF BARGAIN. 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.
18. Entire Agreement. This Agreement constitutes the entire agreement between
----------------
the parties hereto related to the subject matter hereof, and any and all written
or oral agreements, except for any Nondisclosure Agreements or Beta Test
Agreements, heretofore existing between the parties hereto, are expressly
cancelled. Any modifications of this Agreement must be in writing and signed by
both parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
KANA COMMUNICATIONS, INC.
By_____________________________________
_______________________________________
Name (Print)
_______________________________________
Title
CUSTOMER
By_____________________________________
_______________________________________
Name (Print)
_______________________________________
Title
Page 4 of 4
Schedule A
----------
SEE ATTACHED QUOTATION