EXHIBIT 10.16
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement ("Agreement") is made and entered
into as of this 11th day of November, 1999, between BroadVision, Inc.
("BroadVision") and
Company ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
("Customer")
Address ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
In consideration of the mutual covenants and conditions contained in this
Agreement, the parties agree as stated herein. The following attachments,
required when applicable, are also part of this Agreement:
A. Current Licensing Practices
B. Required Provisions of Sublicenses
C. Professional Services Terms and Conditions
D. Business Terms
1. LICENSE.
A. BroadVision hereby grants to Customer a perpetual (unless terminated
as set forth herein), nonexclusive, and nontransferable (except in
accordance with the provisions of Section 11.B) license, subject to
the terms and conditions of this Agreement, to use the object code for
the Software. For the purpose of this Agreement, "Software" shall mean
all versions, including current, previous, and subsequent versions, of
all software products, together with operating instructions, user
manuals, training material, and other documentation as may, in
BroadVision's sole discretion, be supplied to Customer.
B. Customer may use the Software in accordance with BroadVision's
published licensing practices in force at the time of delivery of the
applicable Software products. BroadVision's current licensing
practices are as set forth in Attachment A. If BroadVision changes its
licensing practices, BroadVision will give Customer advance written
notice of such changes and such changes will be applicable to
subsequent purchases of Software licenses by Customer hereunder;
provided that, unless otherwise agreed by the parties, such changes
will not be effective with respect to future purchases of Software
licenses of the type previously purchased by Customer for a period of
six (6) months from the date BroadVision gives Customer notice of such
changes. Notwithstanding anything to the contrary contained herein or
in any other order forms, attachments, quotes or other documentation,
Customer may purchase at any time any BroadVision products or services
generally available to any BroadVision customers. Such purchase shall
be subject to discount rates set forth in any agreements or
attachments provided by BroadVision with respect to such purchase or
otherwise at prices agreed by the parties.
C. Customer may not (a) rent, lease, or loan the Software; (b)
electronically transmit the Software over a network except as
necessary for Customer's licensed use of the Software; (c) use
run-time versions of third-party products supplied by BroadVision
embedded in the Software, if any, for any use other than the intended
use of the Software; (d) modify, disassemble, decompile, or reverse
engineer the Software; (e) transfer possession of any copy of the
Software to another party, except as expressly permitted herein; or
(f) use the Software in any way not expressly provided for in this
Agreement. There are no implied licenses. Customer agrees not to
exceed the scope of the licenses granted herein.
D. BroadVision also grants to Customer the right to grant nontransferable
sublicenses to portions of the Software, where such grants are
explicitly permitted by BroadVision's licensing practices. Customer
shall require each such sublicensee, before it may use or install the
sublicensed Software, to execute a written license agreement
containing, at a minimum, the required provisions specified in
Attachment B. Customer shall indemnify BroadVision for all losses,
costs, damages, expenses, and liabilities caused by a sublicensee's
failure to honor the terms of such sublicense, or by Customer's
failure to include required terms in its sublicense agreements with
its sublicensees.
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2. PAYMENT PRICES.
A. Invoices shall be issued upon delivery of the products or services,
unless specified herein to the contrary, and shall be due and payable
in United States currency upon receipt by Customer. Payment shall be
overdue thirty (30) days after the delivery date specified on the
invoice. Overdue payments shall be subject to a finance charge of one
and one-half percent (1 1/2%) for each month or fraction thereof that
the invoice is overdue, or the highest interest rate permitted by
applicable law, whichever is lower. BroadVision shall also be
reimbursed for its collection costs in the event of late payments,
including reasonable attorney's fees.
B. Software will be shipped FOB BroadVision's facility in Redwood City,
California, U.S.A., by commercial surface transportation.
Transportation charges in excess of such rates will be billed to
Customer. Software shall be deemed accepted upon delivery.
C. The prices stated in BroadVision quotations are exclusive of any
federal, state, municipal, value-added, foreign withholding or other
governmental taxes, duties, fees, excises, or tariffs now or hereafter
imposed on the production, storage, licensing, sale, transportation,
import, export, or use of the Software or any improvements,
alterations, or amendments to the Software. Customer shall be
responsible for, and if necessary reimburse, BroadVision for all such
taxes, duties, fees, excises, or tariffs, except for governmental or
local taxes imposed on BroadVision's corporate net income.
3. SOFTWARE MAINTENANCE.
A. BroadVision agrees to provide Customer with software maintenance
subject to the following provisions and conditions:
i. At Customer's request, BroadVision shall provide software
maintenance at prices to be quoted to Customer. Software
maintenance shall include (i) telephone and electronic mail
support provided during BroadVision's normal working hours, and
(ii) standard releases containing improvements or modifications
to the Software, where such improvements or modifications are not
priced as separate new products or options ("Standard Release").
ii. BroadVision shall provide software maintenance for any Standard
Release until one year after shipment of the subsequent Standard
Release.
iii. Customer shall designate four or, with BroadVision's prior
written approval, more than four, Support Contact Persons, who
shall be responsible for communicating support issues to
BroadVision. Each Support Contact Person will be technically
competent with respect to the Software and knowledgeable about
the Customer's environment on which the Software is used.
Customer agrees to provide BroadVision with timely written
notification containing all details of software problems
necessary for BroadVision to diagnose such problems. Customer
agrees to cooperate fully in providing BroadVision with
Customer's source code, in machine-readable form, and other
materials necessary to reproduce a reported software problem.
Subject to Customer's security requirements, Customer agrees to
provide BroadVision reasonable direct or remote access and test
time on Customer's BroadVision system, for the purpose of
diagnosing reported software problems. If BroadVision provides
on-site services at Customer's request in connection with
software maintenance, Customer shall reimburse BroadVision for
all travel and other reasonable out-of-pocket expenses incurred
with respect to such services.
iv. Software maintenance may also include any patch releases ("Patch
Releases") that BroadVision, in its sole discretion and expense,
makes available. Patch Releases are intended to address material
deviations between the Software and its published specifications
until a Standard Release can be made available. Customer may
install Patch Releases at its option.
v. BroadVision shall not be responsible for maintaining Software
that fails to comply with its published specifications if such
non-compliance is the result of modification of the Software by
Customer or third parties. If BroadVision expends its time on a
noncompliance found to be the result of any of the preceding,
Customer shall pay BroadVision for such time at BroadVision's
then-current hourly consulting rate.
B. BroadVision will provide at least 60 days written notice of each
annual renewal (including the amount of the annual maintenance fee),
and Customer may renew software maintenance may for a one-year period
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at BroadVision's then-current prices for software maintenance by
delivering BroadVision a purchase order for such renewal on or before
the renewal date. In no event will the Software maintenance fee,
expressed as a percentage of list price for the Software, increase by
more than the greater of five percent (5%) or the increase in the US
Consumer Price Index over the amount charged the previous year
(subject to adjustments resulting from Software being added to
maintenance coverage during the prior maintenance period or as of the
start of the renewal period). In the event of termination for
Customer's breach or Customer's convenience, all maintenance fees
shall be immediately due and payable without notice; in the event of
termination for any other reason, Customer shall be entitled to a
refund of maintenance fees already paid, prorated for the unused
portion of such fees.
C. Annual software maintenance fees are due and payable in advance; in
all other respects payments are subject to the terms and conditions of
the Agreement. Subject to adjustment for Software license purchases
made during an annual maintenance period, annual maintenance fees as a
percent of list price for the Software to which the maintenance fee
applies will not increase by more than five percent (5%) per year.
D. If Customer initially declines software maintenance and then
subsequently elects to commence maintenance, or if maintenance for an
item of Software is discontinued at Customer's request and then
subsequently renewed, Customer shall pay the maintenance fees that
would have been due for the period during which maintenance was not
provided.
4. TITLE TO SOFTWARE.
A. Customer shall include BroadVision's copyright or proprietary rights
notice on any copies of the Software or associated documentation,
including copyright or proprietary rights notices of third parties
that are included on media or in documentation provided by
BroadVision. Customer acknowledges that the Software is the property
of BroadVision or its licensors.
B. Unless otherwise requested by BroadVision, Customer shall ensure that
the phrase, "Personalized by BroadVision One-To-One" shall appear
prominently on the logon screen, splash screen, or other first view of
the Customer's application seen by consumers or other end-users when
they enter such application. The above phrase shall be a hypertext
link to a URL specified by BroadVision. Customer's use of the phrase
shall be in accordance with BroadVision's guidelines for use of the
▇▇▇▇.
5. WARRANTY.
BroadVision warrants that the Software will conform in all material
respects to its written specifications when installed and for 90 days
thereafter. For purposes of this Agreement, the sole source of such
specifications shall be BroadVision's written user documentation. Customer
will notify BroadVision within 10 days after the expiration of the warranty
period of any nonconformity. Where a material nonconformity exists within
the warranty period, and proper notice has been given to BroadVision,
BroadVision will, as its sole and exclusive liability to Customer, use due
diligence to correct the nonconformity and provide Customer with one copy
of any such corrected version of the Software, or, if BroadVision is unable
to correct such nonconformances within a reasonable period of time, refund
all license fees paid to it for the Software, or the most recent software
maintenance fee paid for the Software, if the nonconformity relates to a
Standard Release delivered pursuant to Section 3 herein. THIS WARRANTY IS
IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, AND
BROADVISION EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT.
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6. LIMITATION OF LIABILITY.
Except for BroadVision's liability to Customer under Section 7 of this
Agreement, BroadVision's liability to Customer under this Agreement or for
any other reason relating to the products and services provided under this
Agreement, including claims for contribution or indemnity, shall be limited
to the amount paid to BroadVision under this Agreement. NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY UNDER THIS AGREEMENT, CUSTOMER
AGREES THAT IN NO EVENT SHALL BROADVISION BE LIABLE FOR SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF
USE.
7. INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
This Section 7 sets forth BroadVision's sole and exclusive liability to
Customer and Customer's sole and exclusive rights against BroadVision, with
respect to any claim relating to any alleged or actual infringement or
misappropriation by BroadVision of any third party intellectual property
right. BroadVision will defend any action against Customer claiming that
the Software constitutes infringement of a duly issued patent existing or
issued prior to the initial delivery date of the applicable Software,
copyright, trademark, or trade secret. BroadVision shall indemnify Customer
for any reasonable expense incurred by Customer in connection with the
foregoing. BroadVision's obligations under this section are conditioned
upon BroadVision having sole control of any such action, and upon Customer
notifying BroadVision immediately in writing of the claim and giving
authority, information, and assistance necessary to settle or defend such
claim. If the use of the Software infringes or is enjoined, or BroadVision
believes it is likely to infringe or be enjoined, BroadVision may, at its
sole option, (i) procure for Customer the right to continue use of the
licensed Software as furnished; (ii) replace the licensed Software; (iii)
modify the licensed Software to make it non-infringing, provided that the
Software still substantially conforms to the applicable specifications; or
(iv) if BroadVision, after using all commercially reasonable efforts, is
unable to accomplish the foregoing remedies, terminate the license and
refund the license fee for the Software, less a proportional adjustment for
the time the Software was used by Customer, equal to the ratio of the time
elapsed since the delivery date to five (5) years. The indemnity provided
herein shall not apply if the alleged infringement arises from: (a) the use
of other than a currently supported, unaltered release of the licensed
Software; (b) the use of Software that has been modified or merged with
other programs by Customer; or (c) the use of the licensed Software in
combination with software or hardware not provided under this Agreement
(other than software and hardware described in BroadVision's specifications
or documentation for the Software as capable of being used with the
Software or as otherwise agreed in writing by BroadVision). The foregoing
states BroadVision's sole and exclusive liability for patent, copyright, or
other proprietary rights infringement.
8. CONFIDENTIALITY OF SOFTWARE AND DOCUMENTS.
A. Customer shall not reproduce, duplicate, copy, sell, or otherwise
disclose, or disseminate the Software, including operating
instructions, user manuals, and training materials, in any medium
except as authorized herein. Customer may make copies of the Software,
in machine readable form, only as is reasonably necessary for archival
and backup purposes.
B. Customer expressly undertakes, using reasonable efforts not less than
it exercises for its own confidential materials, to retain in
confidence, and to require its employees or consultants to retain the
Software in confidence, and will make no use of such information,
except under the terms and during the existence of this Agreement, and
only to the extent that such use is necessary to Customer's employees
or consultants in the course of their employment.
C. The provisions of this section shall survive the termination of this
Agreement for a period of five (5) years.
D. Customer shall not release the results of any benchmark of the
Software, or of any third party products embedded in the Software,
without BroadVision's prior written approval.
9. AUDIT RIGHTS.
At BroadVision's request, but in no event more than twice annually,
Customer shall provide BroadVision with a report detailing its use of the
Software. No more than once annually, BroadVision may audit Customer's
pertinent records to ensure that license and other fees have been properly
paid in compliance with this Agreement. BroadVision will give Customer at
least three business days notice of its intention to perform such an audit.
Any such audit will be conducted during regular business hours at
Customer's offices and shall not interfere unreasonably with Customer's
business activities. If an audit reveals that Customer has underpaid its
total fees by more than five percent (5%), then Customer shall pay
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BroadVision's reasonable costs of conducting the audit, in addition to the
underpaid amount; provided, that if Customer reasonably disputes the
findings of such an audit and Customer and BroadVision are unable to
resolve the dispute, Customer and BroadVision will select a mutually
agreeable an independent auditor to review the audit work performed by
BroadVision. If the independent audit reveals that Customer has underpaid
its total fees by more than five percent (5%), Customer will pay the
reasonable costs of conducting both BroadVision's and the independent
auditor's audits. If the independent audit reveals that Customer has
underpaid its total fees by five percent (5%) or less, BroadVision will pay
the reasonable costs of conducting both BroadVision's and the independent
auditor's audits.
10. TERM/TERMINATION.
This Agreement is effective on the earlier of (i) the date of shipment of
the Software or (ii) the date set forth above, and continues until
terminated as provided herein, or by agreement of both parties. BroadVision
may terminate this Agreement upon: (a) any material breach of this
Agreement by Customer that is not cured within 10 business days following
written notice thereof; or (b) failure by Customer to pay license fees for
Software under the payment terms specified in this Agreement or as stated
on BroadVision's invoice for such Software. Upon termination of this
Agreement for any of the above reasons, all licenses granted hereunder
terminate and Customer will immediately destroy the Software and all copies
in any form. Upon termination for any other reason, Customer may continue
to use the Software, provided that Sections 1, 2 (to the extent that any
amounts as owed to BroadVision as of the termination date), 4, 6, 7, 8, 9,
and 11 shall survive the termination of this Agreement, and BroadVision may
terminate Customer's use of the Software upon a material breach of any of
the surviving sections.
11. GENERAL.
A. WAIVER/AMENDMENT. No waiver, amendment, or modification of any
provision of this Agreement shall be effective unless in writing and
signed by the party against whom such waiver, amendment, or
modification is sought to be enforced. No failure or delay by either
party in exercising any right, power or remedy under this Agreement,
except as specifically provided herein, shall be deemed as a waiver of
any such right, power, or remedy.
B. ASSIGNMENT. Either party may assign this Agreement to an entity
acquiring substantially all of its assets or merging with it, provided
that such assignee agree in writing to assume all obligations under
this Agreement. Except as set forth above, neither party may assign any
of its rights or delegate any of its obligations under this Agreement
to any third party without the express written consent of the other.
Any attempted assignment in violation of the foregoing shall be void
and of no effect. Subject to the above, this Agreement shall be binding
upon and inure to the benefit of the successors and assigns of the
parties hereto.
C. DISPUTES. The rights of the parties hereunder shall be governed by the
laws of the State of California without giving effect to principles of
conflicts of laws. Any suits brought hereunder may be brought in the
federal or state courts in Santa ▇▇▇▇▇ County, California, and Customer
submits to the jurisdiction thereof. The parties expressly exclude the
application of the 1980 United Nations Convention on Contracts for the
International Sale of Goods, if applicable. Customer acknowledges that
the Software contains trade secrets, the disclosure of which would
cause substantial harm to BroadVision that could not be remedied by the
payment of damages alone. Accordingly, BroadVision will be entitled to
preliminary and permanent injunctive relief and other equitable relief
for any breach of BroadVision's intellectual property rights in the
Software.
D. SEVERABILITY. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement shall remain in full force and effect.
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E. EXPORT. Customer acknowledges that the laws and regulations of the
United States restrict the export of the Software. Customer agrees that
it will not export or re-export the Software in any form without first
obtaining the appropriate United States and foreign government
approvals.
F. NOTICE. Any notice, consent, or other communication hereunder shall be
in writing, and shall be given personally, by confirmed fax or express
delivery to either party at their respective addresses:
(i) to BroadVision at:
BroadVision, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Attn: Chief Financial Officer
(ii) to Customer at:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Legal Department
or such other address as may be designated by written notice of either
party. Notices shall be deemed given when delivered or transmitted, or
seven days after deposit in the mail.
G. INDEPENDENT CONTRACTORS. The parties' relationship shall be solely that
of independent contractor and nothing contained in this Agreement shall
be construed to make either party an agent, partner, joint venturer, or
representative of the other for any purpose.
H. FORCE MAJEURE. If the performance of this Agreement, or any obligation
hereunder, except the making of payments, is prevented, restricted, or
interfered with by reason of any act or condition beyond the reasonable
control of the affected party, the party so affected will be excused
from performance to the extent of such prevention, restriction, or
interference.
I. ENTIRE AGREEMENT. This Agreement, including all Attachments hereto,
constitutes the complete and exclusive agreement between the parties
with respect to the subject matter hereof and supersedes all proposals,
oral, or written, all previous negotiations, and all other
communications between the parties with respect to the subject matter
hereof. The terms of this Agreement shall prevail notwithstanding any
different, conflicting, or additional terms that may appear in any
purchase order or other Customer document; provided, however, that the
provisions of Attachment D shall govern in the event of any conflict
between the provisions of this Software License and Services Agreement
and Attachment D with respect to the Software initially ordered
hereunder. All products and services delivered by BroadVision to
Customer are subject to the terms of this Agreement, unless
specifically addressed in a separate agreement.
Agreed to by: BroadVision, Inc.
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Signature
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Printed Name
CFO
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Title
CUSTOMER: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
/S/ ▇▇▇▇▇▇ ▇▇▇▇
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Signature
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Printed Name
President
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Title
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ATTACHMENT A TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
BROADVISION LICENSING PRACTICES
BroadVision's current standard licensing practices are as follows for the
products listed below. These practices are in effect as of June 15, 1999.
- ONE-TO-ONE DEVELOPMENT SYSTEM -- licensed on a per-user basis. In
other words, each individual who will use the One-To-One Development
System to develop BroadVision One-To-One applications must be
separately licensed. Customer may reassign One-To-One Development
System licenses within reason, for example as employees terminate
employment or transfer to other departments. One-To-One Development
System products include:
- ENTERPRISE DEVELOPMENT SYSTEM -- the basic BroadVision
development system
- APPLICATION DEVELOPMENT SYSTEM -- includes the
Enterprise Development System and the objects and other
products necessary to develop ONE of the BroadVision
Applications (Retail Commerce, Financial, or Knowledge)
- TWO APPLICATION DEVELOPMENT SYSTEM -- same as the
Application Development System, but for TWO of the
BroadVision Applications (NOTE: Business Commerce by
itself is counted as a Two Application Development
System)
- THREE APPLICATION DEVELOPMENT SYSTEM -- same as the
Application Development System, but for THREE of the
BroadVision Applications
- ONE-TWO-ONE DEPLOYMENT SYSTEM -- licensing is based on the maximum
number of Profiled Users permitted to be tracked by BroadVision
One-To-One applications. A Profiled User corresponds to a record in
the BroadVision user profile database. The record maintains
information about the user's profile and may refer to external
sources for additional profile information. The number of Profiled
Users represents the number of one-to-one relationships that
Customer wants to maintain with its users. By licensing a number of
profiled users the customer is paying for the right to keep that
many records in the BroadVision user profile database at any point
in time. Examples of Profiled Users include, but are not limited to
customers, partners and employees.
- ONE-TO-ONE TOOLS -- licensed on a per-user basis, similar to the
One-To-One Development System products. One-To-One Tools include:
- ONE-TO-ONE COMMAND CENTER, formerly known as the Dynamic
Command Center, or DCC
- ONE-TO-ONE PUBLISHING CENTER, formerly known as the
Content Management Center, or CMC
- ONE-TO-ONE INSTANT PUBLISHER
- ONE-TO-ONE DESIGN CENTER, formerly known as the Visual
Design Center, or VDC
[NOTE: The One-To-One Command Center, the One-To-One Publishing
Center, and the One-To-One Instant Publisher may be sublicensed to
third parties using Customer's application software in accordance
with the terms of this Agreement.]
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ATTACHMENT B TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
REQUIRED PROVISIONS OF SUBLICENSE AGREEMENTS
Each agreement sublicensing the Software entered into between Customer and
Customer's end-users ("End-Users", "end-User License") shall, at a minimum,
state the following:
a. End-Users shall have the right to duplicate the Software only
for backup or archival purposes and to transfer the Software to
a backup computer in the event of computer malfunction.
End-Users shall not make the Software available on any
timesharing or other rental arrangements. End-Users may not
transfer their rights under the End-User License agreement
without BroadVision's permission.
b. End-Users shall not cause or permit the reverse engineering,
disassembly, or decompilation of the Software.
c. Title shall not pass to the End-User.
d. The End-User License agreement shall not include warranties,
express or implied, made on behalf of BroadVision.
e. BroadVision shall not be liable for any damages, whether direct,
indirect, incidental, or consequential, arising from the use of
the Software.
f. At the termination of the End-User License, the End-User shall
discontinue use and shall destroy or return the Software to
BroadVision, including all archival or other copies.
g. The End-User License shall state that BroadVision is a
third-party beneficiary of the End-User License.
h. The End-User shall not publish any result of benchmark tests on
the Software.
i. The End-User shall comply fully with all relevant regulations of
the United States Department of Commerce and with the U.S.
Export Administration to assure that the Software is not
exported in violation of the code and regulations.
Page 1 of 1
ATTACHMENT C TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
PROFESSIONAL SERVICES TERMS AND CONDITIONS
This Attachment C is incorporated into the Software License and Services
Agreement (the "Agreement") dated the ____ day of October, 1999 between
BroadVision, Inc. ("BroadVision") and ReSource/Phoenix, Inc. ("Customer"). The
terms and conditions contained herein are subject in all respects to the terms
and conditions of that Agreement, except that in the event of a conflict between
the terms of this Attachment C and the Agreement, the terms of this Attachment C
shall govern.
1. SCOPE OF WORK; CONSIDERATION.
BroadVision will perform such services as set forth in an exhibit to this
Attachment C, or in a purchase order prepared by Customer and accepted by
BroadVision, or in any other written form agreed to by the parties (the
"Statement of Work"). Unless otherwise set forth in the Statement of Work,
in consideration of BroadVision's performance as herein set forth, Customer
agrees to pay BroadVision the actual charges for the services performed and
expenses incurred, and Customer will be invoiced once each month for all
charges incurred in the previous period(s). The services or other
deliverables provided under each Statement of Work shall be deemed accepted
on delivery, unless otherwise specified in the Statement of Work. In the
event of a conflict between the terms of any Statement of Work and this
Attachment C, the terms of the Statement of Work shall govern with respect
to the services specified in that Statement of Work.
2. LIMITATION OF CHARGES.
No liability shall be incurred by Customer in excess of the amount, if any,
set forth in the Statement of Work unless and until such Statement of Work
is amended in writing by both parties. Such amount normally includes
professional services, but not materials and out-of-pocket expenses
reasonably required for contract performance. BroadVision is not required to
continue performance beyond the funding limitation set forth therein unless
and until Customer shall have notified BroadVision in writing that such
funding limitation has been increased and shall have specified in such
notice a revised estimated charge. When and to the extent that the funding
limitation set forth has been increased, any charges incurred by BroadVision
in excess of the funding limitation prior to the increase shall be
allowable, due and payable to the same extent as if such charges were
incurred after such increase in the estimated charge and funding limitation.
3. CHANGES.
Changes shall be made in writing and signed by authorized representatives of
Customer and BroadVision. All such changes shall specify the changes
ordered, any increases in the estimated charges for performance, adjustment
to the schedule of performance, and any changes to other terms and
conditions as may be effected thereby.
4. TITLE.
BroadVision shall have title to the software, systems design, and
documentation arising out of performance or delivery to Customer under a
Statement of Work. The parties acknowledge that performance thereunder may
result in the development of new concepts, software, methods, techniques,
processes, adaptations, and ideas, in addition to BroadVision's prior
technology which may be incorporated in BroadVision's performance. The
parties agree that the same shall belong to BroadVision exclusively without
regard to the origin thereof. With respect to all such software, system
design information and documentation delivered to or disclosed to Customer
pursuant to the Statement of Work ("Application Software"), BroadVision
hereby grants to Customer, as of the time that any such Application Software
is disclosed to Customer by or on behalf of BroadVision, a license in
respect of the software so disclosed. Unless otherwise agreed to in writing
by the parties, each such license shall be a perpetual, irrevocable,
non-exclusive, non-transferable, royalty-free license to use the Application
Software in conjunction with the Software and for any use of the Software
permitted by this Agreement; provided, that for purposes of the foregoing,
the term "use" shall include the right for Customer to create derivative
works from the Application Software for use in conjunction with the
Software.
5. LIMITATION OF LIABILITY.
BROADVISION'S LIABILITY TO CUSTOMER UNDER THIS ATTACHMENT C, INCLUDING
CLAIMS FOR CONTRIBUTION OR INDEMNITY, SHALL BE LIMITED TO THE AMOUNTS PAID
BY CUSTOMER FOR THE SERVICES PROVIDED HEREUNDER.
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6. DISCLAIMER OF WARRANTY.
THE SERVICES PROVIDED UNDER THIS ATTACHMENT C AND THE APPLICATION SOFTWARE
ARE OFFERED EXCLUSIVE OF ANY WARRANTY, INCLUDING, WITHOUT LIMITATION, ALL
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY
OTHER WARRANTY, WHETHER EXPRESSED OR IMPLIED.
7. ON-SITE PERSONNEL.
The parties acknowledge that it may be necessary for the employees of each
to be present at the facilities of the other for extended periods of time.
The parties agree to provide the employees of the other with all reasonable
facilities and services to assure that their services may be properly
performed. Each party will instruct their employees to conform with the
internal regulations and procedures of the other party while on such party's
premises.
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Attachment D
ATTACHMENT D TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
BUSINESS TERMS
*
-----------------------------------------
Private and Confidential
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment, and have been filed separately with the Commission.
Page 1 of 1
Attachment E
ATTACHMENT E TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
SUPPORT POLICIES
BROADVISION SUPPORT POLICY
BroadVision endeavors to provide a high level of support, and offers a number of
support packages designed to meet the needs of its diverse customer base. This
document outlines BroadVision "Basic Support."
The Basic Support package uses a case tracking procedure to track
customer-reported problems. Using this system, BroadVision support engineers
open cases in the order in which they are received. Cases have different
priorities and will be treated accordingly. Standard support is provided from
9am to 6pm PT in America, and 9am to 6pm GMT in Europe. If a case hasn't been
opened after 1 day, the Support manager will be notified. After 2 days the
Support Director will be notified.
CASE ESCALATION AND 'HOT SITE' STATUS
The support engineer opening a case will set case priority. A customer may
request that a case be escalated at any time by contacting the Support engineer
or the Support Manager.
Unusually important site problems will be considered 'hot sites'. This includes
such issues as serious reliability problems or significant performance problems
on production systems. To escalate a case, the customer may notify their Support
engineer or the Support Manager. A 'hot site' will gain Executive level
attention and all necessary resources to resolve the issue as quickly as
possible.
A hot site will have a dedicated Support engineer until it is resolved. The
customer is expected to provide technical resources, remote access and
reproducible cases as necessary. BroadVision will manage a list of issues to be
resolved in the escalation to be communicated daily by the assigned Support
engineer. Once all the issues are resolved, the escalation to 'hot site' will be
closed.
PRIORITY 1
The highest level is reserved for site-down type failures. Once BroadVision
support is notified that a site is down they will start work to restore the site
as soon as possible. If a site is not restored after 4 hrs of work the Support
engineer will move the site to 'hot site' status. The WPSO engineer who worked
on the site will be contacted and Support Director notified of escalation. After
1 day of escalation VP WPSO and VP Engineering will be notified. The VPs will
identify additional resources to work on the problem. After 2 days of escalation
the CEO will be notified.
PRIORITY 2
Level 2 is for serious problems on a site not causing total failure, BroadVision
Support will start work on the site as soon as they are aware of the problem. If
a workaround has not been developed after 1 day of work by Support then the
Support Director will be notified. After 3 days of work VP WPSO and VP
Engineering will be notified.
PRIORITY 3
The third level is for general issues on a site not causing serious problems. If
a case isn't resolved after 2 days the Support Manager will be notified. After 3
days the Support Director will be notified.
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Attachment E
PRIORITY 4
The lowest level is for questions or issues on a site not requiring immediate
action. If a case isn't resolved after 3 days the Support Manager will be
notified. After 5 days the Support Director will be notified.
AFTER-HOURS SUPPORT
An optional support package (not included with the Customer's initial package)
is available to provide support 7 days a week, 24 hrs a day for assistance with
serious problems on live-sites. It will not support development
questions/issues. Customers with this support will be provided with a single
pager number to contact the on-call Support person in the case of a priority 1
support call. It is preferred that the customer must provide BroadVision dialup
access to the site in order to for support to able to provide assistance in the
recovery process. The Support engineer on call will have a laptop so that he/she
can then dial into the website and help effect system recovery.
DOCUMENTING KNOWN PROBLEMS
BroadVision has a policy of sharing bug lists with customers. The intent is to
pro-actively let the customers know about known problems and document
workarounds. BroadVision Support, Engineering and Product Management will decide
which problems to report.
Today we publish some of this information in the Known Problems section of the
Release Notes. The following is our policy of enhancing this information as well
as updating the known bugs every month and making it available through the
support section of the BroadVision web site.
1. Currently we provide the following information in the Known Problems section
of the Release Notes. The Release Notes will be updated upon every release.
Bug Information: problem ID, brief description, any known workaround
2. Starting with version 4.1 Technical Support will update the Known Bugs
section to include known bugs reported since the last release. This will be
updated once a month. Since the updates will be written by Technical
Support, it will be directed to an engineering audience. At product release
time, Tech Pubs will roll them into the formal Release Notes.
3. We will also make the following patch information available on our Tech
support site:
Patch Number:
Date released: [can also list those in preparation, with a planned release
date]
Required previous patches: [patch numbers or 'none']
Resolved problems: [list of problem numbers]
Page 2 of 3
Attachment E
PRODUCT ENHANCEMENT REQUEST PROCEDURE
To submit an enhancement request:
Log in to ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇\login.html. Select Support, and then click "Submit a
new ticket". Include the text "Enhancement" in the description before submitting
the request, and the product you wish to submit an enhancement request for.
PM will review enhancements on a weekly basis and respond to you, the submitter,
with the status
Getting enhancements into an upcoming product release:
At the start of each Project Product Manager will go through the enhancement
list with ISG and engineering to determine which should be included in the next
release. If there are specific features that need to be included to satisfy a
project need, please include that information in the ER when submitted, and
email the appropriate Product Manager.
COMPATIBILITY POLICY
This section clarifies BroadVision's policy on compatibility between production
releases. BV will provide a migration path between the objects, templates, and
scripts, components and content that customers have created with a production
release of One-To-One to the next production release of One-To-One. Addressing
these in turn:
1. BroadVision Standard objects - if we change the tag syntax of BV standard
objects we will provide tools and procedures needed to migrate those objects
from one release to the next. This will provide migration path for templates
using BV standard objects.
2. BroadVision Standard components - if we change the signature of BV standard
components we will provide tools and procedures needed to migrate scripts
from one release to the next. This will provide migration path for scripts
using BV standard components.
3. BroadVision APIs - we will in general maintain backward compatibility
between BroadVision APIs. In cases, where this is not possible or desirable
we will provide tools and procedures to migrate the APIs. This will provide
migration path for custom dynamic objects that use our APIs.
4. Database - when we make schema changes we will provide migration tools to
update the older schema and content from one production release of
One-To-One to the next.
Please note that we do not guarantee compatibility between Beta and FCS versions
of any given release. However, we will strive to not have major API, tag-syntax
or schema changes between Beta and FCS releases.
If you have any questions or suggestions please send email to
▇▇-▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
Page 3 of 3
BROADVISION PRODUCTS
YEAR 2000 COMPLIANCE
STATEMENT OF YEAR 2000 COMPLIANCE
BroadVision One-To-one Version 4 products are year 2000 compliant. BroadVision
One-To-One Version 3.0 products with the applicable year 2000 patches are year
2000 compliant. Both versions require year 2000 compliant hardware, operating
systems, databases, compilers and other related components. Versions prior to
3.0 have not been tested for year 2000 compliance.
This representation is with respect to BroadVision's products only and is not a
representation or warranty that software applications developed using these
products are or will be year 2000 compliant. Since there are many interrelated
dependencies in complex systems, it is the licensee's responsibility to ensure
that their applications, including those built using BroadVision's products,
have undergone the level of testing and certification that is appropriate to
ensure year 2000 compliance.
DEFINITION OF YEAR 2000 COMPLIANCE
Year 2000 compliant means accurately processing date/time data, including, but
not limited to, calculating, comparing, and sequencing, from, into, and between
the twentieth and twenty-first centuries, and between the years 1999 and 2000,
including recognizing the year 2000 as a leap year. Year 2000 compliance
requires that all interfacing applications and systems provide and receive
date/time data in a consistent format.
CONFORMANCE TO BSI DEFINITION
BroadVision products adhere to the definition set forth in DISC PD2000-1, A
Definition of Year 2000 Conformity Requirements, by British Standards
Institution Committee. The definition states:
RULE 1. No value for current date will cause any interruption in
operation.
RULE 2. Date-based functionality must behave consistently for dates prior
to, during and after year 2000.
RULE 3. In all interfaces and data storage, the century in any date must
be specified either explicitly or by unambiguous algorithms or
inferencing rule
RULE 4. Year 2000 must be recognized as a leap year.
Version Details
PRODUCT VERSION YEAR 2000 STATUS
----------------------------------------------------------------------------------------------
One-To-One, all products 4 Year 2000 compliant
----------------------------------------------------------------------------------------------
One-To-One application system 3.0 Year 2000 compliant with Y2K patch which:
One-To-One Dynamic Command - Corrects problem with payment object not
Center (DCC) handling 2 digit years correctly
One-To-One Visual Development - Provides user-defined window for adding
Center (VDC) century to 2 digit years
----------------------------------------------------------------------------------------------
One-To-One Financial 3.0 Year 2000 compliant
----------------------------------------------------------------------------------------------
One-To-One Knowledge 3.0 Year 2000 compliant
----------------------------------------------------------------------------------------------
One-To-One Commerce 3.0 Year 2000 compliant with Y2K patch which:
- Corrects problem with purchase receive
object not handling 2 digit years correctly
----------------------------------------------------------------------------------------------
One-To-One Content 3.0 Year 2000 compliant with Y2K patch which:
Management Center (CMC)
- Corrects problem with Java 2 digit year
sliding date convention
Page 1 of 2
BROADVISION PRODUCTS
YEAR 2000 COMPLIANCE
Software Requirements for Year 2000 Compliance
BROADVISION ONE-TO-ONE VERSION 4 PRODUCTS
OPERATING SYSTEMS
- Sun Solaris 2.6 or Solaris 2.5.1 with Y2K patches - Hewlett-Packard
HP-UX 10.20 with Y2K patches - Microsoft Windows NT 4.0 with SP4
DATABASES
- Oracle 8.0.x or 7.3.x - Sybase 11.0.3.2 & Open Client 11.1.1 - Informix
7.22.UC - Microsoft SQL Server 7.0
WEB SERVERS
- Netscape Enterprise Server 3.5.1
- Microsoft Internet Information Server 4.0
ORB
- Iona Orbix 2.2
ROGUE WAVE
- Tools.h++ 7.0.2
- DBTools.h++ 2.1.1
- Money.h++ 1.4.1
BROADVISION ONE-TO-ONE VERSION 3.0 PRODUCTS
OPERATING SYSTEMS
- Sun Solaris 2.5.1 with Y2K patches - Hewlett-Packard HP-UX 10.20 with
Y2K patches - Microsoft Windows NT 4.0 with SP4
DATABASES
- Oracle 7.3
- Sybase 11.0.3.2 & Open Client 11.1.1 - Informix 7.22.UC - Microsoft SQL
Server 6.5 SP5
WEB SERVER
- Netscape Enterprise Server 2.0.1 or 3.0
- Microsoft Internet Information Server 4.0
ORB
- Iona Orbix 2.2
ROGUE WAVE
- Tools.h++ 7.0.2
- DBTools.h++ 2.1.1
- Money.h++ 1.4.1
BROADVISION, INC. /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, CFO
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Printed Name and Title
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Date
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