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EXHIBIT 10.30
CONFIDENTIAL TREATMENT REQUESTED UNDER 17 C.F.R. SECTIONS 200.80(b)(4),
200.83 and 230.406.
[ISOCOR LOGO]
FLAGSHIP LICENSE AGREEMENT
FOR
GENERAL MAGIC, INC.
This AGREEMENT is made on March 31, 1998 ("the Effective Date") by and between
ISOCOR, a California corporation with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("ISOCOR"), and General Magic,
Inc., a Delaware corporation with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ("GENERAL MAGIC").
1. DEFINITIONS
1.1. "BINARY FORM" means the executable version of a Master Binary
program.
1.2. "END USER" shall mean persons or entities who subscribe to the
GENERAL MAGIC Service and who Use the Licensed Programs through the
General Magic Service.
1.3. "LICENSED PROGRAMS" shall be each program in software or firmware
form specified in Attachment A to this Agreement. The term
"Licensed Program" shall specifically include documentation and
related materials pertinent to such program and any updated program
or portion of a program hereinafter furnished to GENERAL MAGIC by
ISOCOR for use in connection with or replacement of a Licensed
Program.
1.4. "MASTER BINARY" shall mean the binary Licensed Programs designated
in Attachment A hereto as a Master Binary Program.
1.5. "SECURITY SOFTWARE" shall be that ISOCOR Licensed Programs
incorporating US export controlled cryptography systems. Such
Licensed Programs shall be marked for the territory in which it may
be used and sold (International, US only, or International/Non-US
only).
1.6. "USE" shall mean (i) the copying or duplicating of any portion of
a Licensed Program from storage units or media into equipment for
processing or (ii) the utilization of any form of a Licensed
Program by GENERAL MAGIC or General Magic Service's End Users.
1.7. "GENERAL MAGIC SERVICE" and GENERAL MAGIC'S voice accessible
integrated network service.
2. LICENSE GRANT
2.1. GRANT. ISOCOR grants to GENERAL MAGIC a perpetual, irrevocable
[except as provided in Section 11 ("Termination") for nonpayment of
license fees] worldwide, royalty-free (notwithstanding the required
license fees specified in Attachment A hereto) right and license to
copy and Use the Binary Form of the Licensed Programs on equipment
owned or controlled, in whole or in part, by GENERAL MAGIC for
providing the General Magic Service. This right and license is
limited to [**].
2.2. OTHER RESTRICTIONS. GENERAL MAGIC may not license, sublicense,
sell, rent or lease the Licensed Programs but may Use the Licensed
Programs to provide the General Magic Service to End Users. GENERAL
MAGIC agrees that it and its employees, consultants, directors,
officers, or others under GENERAL MAGIC'S control will not reverse
engineer, decompile or disassemble the Licensed Programs.
3. DELIVERABLES
3.1. MASTER BINARY PROGRAMS. ISOCOR will deliver to GENERAL MAGIC, in
accordance with the delivery schedules as specified Attachment A,
one copy of each of the Master Binary Licensed Programs listed in
Attachment A. Such programs will be in machine readable form.
3.2. DOCUMENTATION. With each Master Binary Licensed Program, ISOCOR
will provide to GENERAL MAGIC sufficient documentation for a
substantive technical understanding of the Licensed Program. Such
documentation will be in printed form.
4. PAYMENT TERMS
4.1. TERMS. As payment for the license grants and deliverables of this
Agreement, GENERAL MAGIC agrees to pay to ISOCOR the amounts
specified in Attachment A.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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4.2. RIGHT TO AUDIT. GENERAL MAGIC agrees to keep complete and accurate
records of the number of End Users of the Licensed Programs
hereunder. Upon ISOCOR's written request, GENERAL MAGIC will make
such records available to ISOCOR or its duly appointed
representative for examination at a mutually agreed time and place
to confirm that General Magic has not exceeded the [**] End Users
limit set forth in Section 2.1 ("License Grant"). Such examinations
will be conducted at ISOCOR's expense, no more than once in any
period of six (6) consecutive months, and if done at GENERAL MAGIC's
facilities, in a manner that does not unreasonably interfere with
GENERAL MAGIC's normal business operations. All records provided to
ISOCOR under this Section 4.2 will be considered GENERAL MAGIC's
Confidential Information subject to Section 8.3 ("Confidentiality").
4.3. LICENSED PROGRAMS SUPPORT AND UPDATE SERVICE FEES. Payment terms are
set forth in Section 6.3 for amounts due under this Agreement for
Licensed Programs Support and Update Services as defined in Section
6 of this Agreement.
4.4. PAST DUE AMOUNTS. In addition to its other rights hereunder,
including the right to terminate, ISOCOR may charge, and GENERAL
MAGIC agrees to pay, a service charge of one and one-half percent
(1-1/2%) per month, but not to exceed the maximum rate permitted by
applicable law, from the due date of the invoice until the date
paid for any invoice not paid in accordance with the terms of this
Agreement.
5. WARRANTY
5.1. PERIOD OF WARRANTY. For a period of ninety (90) days following
GENERAL MAGIC's receipt of the Licensed Programs, GENERAL MAGIC
shall be entitled to receive ISOCOR's maintenance service (the
Software Support and Update Service, as defined in Attachment B of
this Agreement) therefor, without charge.
5.2. SCOPE OF WARRANTY. ISOCOR warrants for the warranty period that the
Licensed Programs will perform substantially in accordance with the
accompanying documentation ("Documentation"). ISOCOR's sole
obligation hereunder shall be to (i) offer on a free of charge
basis during the warranty period the Licensed Programs Support and
Update Service as defined in Attachment B of this Agreement, and
(ii) to replace any defective media during the warranty period.
5.3. LIMITATION. ISOCOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY PRODUCT,
SERVICE OR RELATED MATERIALS PROVIDED UNDER THIS AGREEMENT.
5.4. YEAR 2000 COMPLIANCE. ISOCOR warrants that each version of the
software referenced in Attachment A hereto as ISOCOR Global Server
(SKU QA496) and the ISOCOR N-Plex Global Director Server (SKU
QA492) is and will be Year 2000 Compliant. In addition, ISOCOR
warrants that on or before June 1, 1998, ISOCOR will issue and
deliver to GENERAL MAGIC an update of the ISOCOR Global Directory
Server (SKU QA467) that will be Year 2000 Compliant and that each
subsequent version of the ISOCOR Global Directory Server, including
updates, upgrades and any other releases, will also be Year 2000
Compliant. This warranty does not apply to the extent that use or
performance of the Licensed Programs is adversely affected by
hardware, third party programs, or modifications made to the
Licensed Programs not authorized in writing by ISOCOR. ISOCOR's
sole liability at ISOCOR's option shall be: (1) repair the Licensed
Programs to be Year 2000 Compliant; (2) substitute Year 2000
Compliant programs with substantially the same functionality as the
Licensed Programs, or (3) return any paid license fees to GENERAL
MAGIC upon return of the Licensed Programs. For purposes of this
Agreement, Year 2000 Compliant means that the use and performance
of the software will not be adversely affected in any way by any
change in date including the change from December 31, 1999 to
January 1, 2000.
5.5. TIME BOMBS AND VIRUSES. ISOCOR warrants that no portion of the
Licensed Programs, or any Releases thereof, will contain at the
time of delivery to GENERAL MAGIC any "back door", "time bomb",
"Trojan horse", "worm", "drop dead device", "virus", or other
computer software code or routines or hardware components designed
to disable, damage, impair, electronically repossess or erase end
user's copy of the software or other software or data. For failure
to comply with this warranty, ISOCOR shall immediately replace all
copies of the affected Licensed Programs in the Possession of
GENERAL MAGIC. All costs incurred with replacement including, but
not limited to, cost of media, shipping and deliveries shall be
borne by ISOCOR.
6. LICENSED PROGRAMS SUPPORT AND UPDATE SERVICES
6.1. INITIAL PERIOD OF SERVICE. Upon the date of the expiration of the
limited warranty ("SSUS date"), as provided in Section 5 of this
Agreement, ISOCOR will continue the ISOCOR Software Support and
Update Service ("SSUS") to GENERAL MAGIC on an annual fee basis. If
GENERAL MAGIC wishes to cancel
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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the SSUS, written notice of this intent must be received by ISOCOR
within thirty (30) days prior to the expiration of the warranty
period.
6.2. RENEWAL. The SSUS coverage in continuous. GENERAL MAGIC shall
receive notification of the SSUS coverage thirty (30) days prior
to the beginning of each successive year. If no written notice of
cancellation is received within thirty (30) days of the
commencement of the successive period, ISOCOR shall invoice the
amounts as specified in Section 6.3. In the event that GENERAL
MAGIC wishes to reinstate coverage at a later date after a previous
cancellation, service may be renewed at ISOCOR's then standard
rates for such service, plus an adjustment fee for the period of
lapse.
6.3. FEES FOR SERVICE. ISOCOR will invoice GENERAL MAGIC the lesser of:
the annual amount specified in Attachment A, or ISOCOR's then
standard rates for the annual Licensed Programs Support and Update
Service.
6.4. DEFINITION OF SERVICES. SSUS provided by ISOCOR to GENERAL MAGIC is
defined in Attachment B to this Agreement.
6.5. ISOCOR'S SUPPORT TO GENERAL MAGIC EXCLUSIVELY. ISOCOR shall have no
obligation to provide any consultation or maintenance support to
GENERAL MAGIC's End Users with respect to all or any part of the
Licensed Programs or other subject matter of this Agreement and
ISOCOR shall supply SSUS directly to GENERAL MAGIC.
6.6 AGREEMENT APPLIES TO UPDATES. This Agreement shall extend to
Attachment B Updates upon delivery from ISOCOR to GENERAL MAGIC.
6.7. LIMITATIONS. If ISOCOR is requested pursuant to Sections 5 or 6 of
this Agreement, to correct an error and such error is found to be
caused solely by GENERAL MAGIC's negligence, reconfiguration of the
software by GENERAL MAGIC following installation, operator error or
misuse, or any other cause not inherent in the Master Binary
Licensed Programs, ISOCOR reserves the right to invoice GENERAL
MAGIC, and upon receipt of a proper invoice GENERAL MAGIC agrees to
pay for such support services on a time and materials basis at
ISOCOR's then prevailing standard rate.
7. RIGHTS OF ISOCOR
7.1. RIGHTS RETAINED BY ISOCOR. Nothing in this Agreement shall prohibit
ISOCOR in any manner from using, developing, marketing, licensing,
or otherwise disposing of ISOCOR's Licensed Programs or concepts
embodied therein anywhere in the world; nor shall anything herein
be construed to grant to GENERAL MAGIC any rights in or to any
other present of future products of ISOCOR whether or not similar
to Licensed Programs except rights to Use under this the terms of
this Agreement any updates or upgrades provided under SSUS.
7.2. PROPRIETARY RIGHTS. ISOCOR represents to GENERAL MAGIC that all
portions of the Licensed Programs and documentation to be supplied
by ISOCOR hereunder are owned by ISOCOR and/or others and are
proprietary in nature. GENERAL MAGIC (i) shall respect such claim
of proprietary right, (ii) shall protect such information at least
to the extent that it protects its own proprietary information,
(iii) shall not use such information except for the purposes for
which it is being made available as set forth in this Agreement and
(iv) shall not reproduce, print, disclose, or otherwise make said
information available to any third party, in whole or in part, in
whatever form, subject to the same exceptions as those set forth in
Section 8.3 ("Non-Disclosure").
7.3. PRESERVATION OF NOTICES. ISOCOR and/or others shall retain title to
and ownership of copyrights to the Licensed Programs and related
materials that are provided by ISOCOR to GENERAL MAGIC. Appropriate
copyright notices shall be placed by ISOCOR or ISOCOR's suppliers
on the materials supplied by ISOCOR and shall be embedded in the
Master Binary Licensed Programs, and such notices shall be retained
on full or partial copies made by GENERAL MAGIC. GENERAL MAGIC
agrees to reproduce and include any notices, including any
proprietary notices, copyright notices, and restricted rights
legends, appearing thereon in any copies GENERAL MAGIC makes
pursuant to this Agreement.
8. CONFIDENTIALITY.
8.1. CONFIDENTIALITY. GENERAL MAGIC shall not reproduce, duplicate, copy
or otherwise disclose, distribute or disseminate said Licensed
Program(s) and related documentation provided under this Agreement
in any media, other than as provided for herein for the purposes of
this Agreement.
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8.2. SAFEGUARD OF INFORMATION. GENERAL MAGIC shall take all reasonable
steps to safeguard the Master Binary Licensed Programs so as to
ensure that no unauthorized copies of said Licensed Programs are
made in whole or in part. GENERAL MAGIC expressly acknowledges
that the ISOCOR supplied Licensed Programs are confidential and
proprietary to ISOCOR and GENERAL MAGIC agrees to receive the
information and maintain it as confidential information, using at
a minimum the same degree of care as is used for GENERAL MAGIC's
own trade secrets.
8.3. NON-DISCLOSURE. During the term of the Agreement and for five (5)
years thereafter, each party to this Agreement (i) shall treat as
confidential and proprietary all confidential information
disclosed by the disclosing party; and (ii) shall not disclose
such confidential information to any employee or subcontractor
not having executed a confidentiality agreement with the
receiving party protecting such information, having terms no less
stringent than those in this Section 8; and (iii) shall not
disclose such information to any employee or contractor not
having a specific need to know such information for the purpose
of this Agreement; and (iv) shall ensure that such employee or
subcontractor shall use such information only in connection with
his or her proper performance of this Agreement. The obligations
of the parties hereunder shall not apply to any materials or
information which a party can demonstrate, through documented
evidence (i) is now, or hereafter becomes, through no act or
failure to act on the part of the receiving party, generally
known or available; (ii) is known by the receiving party at the
time of receiving such information as evidenced by its records;
(iii) is hereafter furnished to the receiving party by a third
party as a matter of right and without restriction on disclosure;
(iv) is independently developed by the receiving party without
any breach of this Agreement; or (v) is the subject of a written
permission to disclose provided by the disclosing party.
Notwithstanding any other provision of this Agreement, disclosure
of Confidential Information shall not be precluded if such
disclosure: (a) is in response to a valid order of a court or
other governmental body of the United States or any political
subdivision thereof; provided, however, that the responding party
shall first have given notice to the other party hereto so that
such other party may attempt to prevent such disclosure and if
disclosed, the responding party shall have made a reasonable
effort to obtain a protective order requiring that the
Confidential Information so disclosed be used only for the
purpose for which the order was issued and be treated as
confidential and under seal; (b) is otherwise required by law; or
(c) is otherwise necessary to establish rights or obligations
under this Agreement, but only to the extent that any such
disclosure is reasonably necessary. For purposes of this
Agreement, Confidential Information shall mean all materials or
information disclosed hereunder by one party to the other party
in confidence and shall include the source code of any programs
owned by either party or its suppliers with which the other party
may come into contact in the course of performance of the
Agreement.
8.4. PRICE CONFIDENTIALITY. GENERAL MAGIC is also hereby advised that
ISOCOR considers all its agreements and the terms therein,
including pricing and service arrangements, as confidential, and
the parties agree that this Agreement will be treated accordingly
as set out in this Section 8. Notwithstanding the foregoing, each
party may disclose the terms of this Agreement to (i) it's
attorneys and accountants, and (ii) third parties under a duty of
confidentiality in connection with a contemplated merger or sale
or investment in such party's business.
9. INDEMNIFICATION AGAINST INFRINGEMENT
9.1. INFRINGEMENT. ISOCOR represents that it has the sufficient right,
title and interest in the Licensed Programs to enter into this
Agreement. ISOCOR agrees, at its own expense, to indemnify and
defend GENERAL MAGIC and hold GENERAL MAGIC harmless against any
suit, claim, or proceeding brought against GENERAL MAGIC alleging
that any use of the Licensed Programs as delivered by ISOCOR,
infringes any US patent, Berne Convention copyright or US
trademark or any trade secrets of any third parties, provided
that GENERAL MAGIC (i) promptly notifies ISOCOR in writing of any
such suit, claim or proceeding, (ii) allows ISOCOR at its
expense, to direct the defense of such suit, claim, or
proceeding, (iii) gives ISOCOR full information and assistance
necessary to defend such suit, claim, or proceeding and (iv) does
not enter into any settlement of any such suit, claim or
proceeding without ISOCOR written consent.
9.1.1. Exception: ISOCOR shall not provide indemnification for
GENERAL MAGIC under Section 9.1 or otherwise in regard
to actions brought arising from any use, sale or
transportation of Security Software in violation of its
labeling.
9.2. REMEDIES. Following written notice of a suit, claim or
proceeding or a threat of suit, claim or proceeding requiring
indemnification under Section 9.1 above, ISOCOR shall have the
right, but no obligation, at its sole option, to (i) procure for
GENERAL MAGIC the right or license to use the Licensed Programs
as
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furnished hereunder, or, (ii) replace or modify the Licensed
Programs to make the same non-infringing, or (iii) return to
GENERAL MAGIC fees applicable to the infringing Licensed Program
and to accept return of same Licensed Programs and related
documentation without further liability of ISOCOR. If ISOCOR
elects to replace or modify the Licensed Programs, such
replacement shall have substantially the same features and
functionality as the Licensed Programs in Attachment A.
9.3. LIMITATION. ISOCOR shall have no liability for any claim that
ISOCOR lacks right, title and interest to the Licensed Programs
or any claim of copyright or patent infringement, based on (i)
GENERAL MAGIC's modification or combination of the Licensed
Programs with any 3rd party software other than Windows NT
v.4.0, if such claim would have been avoided had the Licensed
Programs not been modified, combined or integrated with the 3rd
party software other than Windows NT v.4.0. and (ii) any use,
sale or transportation of Security Software in violation of its
labeling.
9.3.1. GENERAL MAGIC agrees, at its own expense, to defend
ISOCOR and hold it harmless against any suit, claim or
proceeding arising under this Section 9.3 provided that
ISOCOR (i) promptly notifies GENERAL MAGIC in writing
of any such suit, claim or proceeding known to it, (ii)
allows GENERAL MAGIC, at its expense, to direct the
defense of such suit, claim, or proceeding, (iii) gives
GENERAL MAGIC full information and assistance necessary
to defend such suit, claim or proceeding and (iv) does
not enter into any settlement of any such suit, claim
or proceeding without GENERAL MAGIC's consent.
10. LIMITATIONS OF LIABILITY
10.1. LIMITATION OF LIABILITY. Except for liability arising from
Sections 9 (Indemnification Against Infringement) and 8
(Confidentiality), each party's liability to the other party
under any provision of this Agreement, or any transaction
contemplated by this Agreement shall be limited to [**].
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT,
SPECIAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING
OUT OF ITS PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THIS
AGREEMENT OR OTHERWISE. Each party releases the other party from
all obligation, liability, claims or demands in excess of the
limitations provided in this Section 10.1.
11. TERMINATION
11.1. TERMINATION FOR DEFAULT. Material Breach of this Agreement shall
be specifically defined as GENERAL MAGIC's nonpayment of license
fees or either party's breach of confidentiality. Upon material
breach of any obligations under this Agreement, the party
committing the breach shall be deemed in default. The other
party may terminate this Agreement, upon thirty (30) days
written notice to the party in default. Such termination shall
become effective unless the defaulting party shall cure all
aspects of the default and so notify the terminating party of
the cure in writing within the thirty (30) day period. If ISOCOR
terminates this Agreement as provided above due to non-payment
of license fees all licenses granted herein will terminate as of
the date of termination of this Agreement.
11.2. GENERAL MAGIC's OBLIGATION UPON TERMINATION OF LICENSES. Should
this Agreement be terminated due to GENERAL MAGIC's non-payment
of license fees, GENERAL MAGIC shall, on the effective date of
termination, immediately discontinue the Use of each Licensed
Program and any and all portions thereof. Within five (5) days
after the effective date of termination, GENERAL MAGIC shall
deliver to ISOCOR or to ISOCOR's authorized representative, each
Licensed Program copy and all related materials F.O.B. ISOCOR's
designated shipping point or destroy the Licensed Program and
deliver certification thereof to ISOCOR within five (5) days
after the effective date of termination.
11.3. UNPAID AMOUNTS. Immediately upon termination, any earned but
unpaid amounts due ISOCOR shall become immediately due and
payable by GENERAL MAGIC to ISOCOR, including, but not limited
to, any unpaid license fees.
11.4. SURVIVAL OF OBLIGATION. Any termination of this Agreement shall
not relieve either party of any obligation under Section 2
("License Grant", except for termination based on nonpayment or
late payments), Section 4 ("Payment Terms" to the extent amounts
are owed prior to the effective date of termination), Section 5
("Warranty"), Section 7 ("Rights of ISOCOR"), Section 8
("Confidentiality"), Section 9 ("Indemnification Against
Infringement"), Section 10 ("Limitations of Liability"), Section
12 ("Assignment"), Section 13 ("Notices"), Section 14 ("General
Provision") and Section 15 ("Compliance and Severability").
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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12. ASSIGNMENT
12.1. ASSIGNMENT. This Agreement may not be assigned by either party
without the express written consent of the other party, except that
either party may assign or transfer this Agreement, in whole or in
part, to any of its affiliates or to any successors to
substantially all that part of such parties business to which this
Agreement relates. Subject to the foregoing, any assignee hereunder
shall be subject to all of the terms, conditions and provisions of
this Agreement.
12.2. BINDING EFFECT. Subject to the limitations hereinabove expressed,
this Agreement will inure to the benefit of and be binding upon the
parties, their successors, administrators, personal representatives,
guardians, heirs and assigns.
12.3. EXPORT CONTROLS. In exercising its rights under this Agreement,
GENERAL MAGIC agrees to comply strictly and fully with all export
controls imposed on the Licensed Programs by any country or
organization of nations within whose jurisdiction GENERAL MAGIC
operates or does business, and expressly those of the United
States. Examples of organizations of nations that may have export
controls pursuant to treaty or international agreement are: The
North Atlantic Treaty Organization, The European Economic
Community, The Andean Common Market, and the Association of
Southeast Asian Nations.
12.3.1. GENERAL MAGIC expressly agrees to comply in full with any
current existing applicable restrictions under the above
jurisdictions on export to the following countries:
Armenia, Angola, Azerbaijan, Burma, Belarus, China, Cuba,
Cypress, Georgia, Guatemala, Haiti, Iran, Iraq, Kazakhstan,
North Korea (Democratic People's Republic of Korea),
Kyrgyzstan, Liberia, Moldova, Mongolia, Nigeria, Peru,
Rwanda, Russia, Somalia, South Africa, Sudan, Syria,
Tajikistan, Turmenistan, Ukraine, Uzbekistan, Vietnam,
Yemen, Former Yugoslavia, and Zaire.
12.4. ENCRYPTION. With respect to exportation or re-exportation of the
Products from the United States, and expressly in regard to
Security Products, GENERAL MAGIC agrees not to export or permit
exportation outside of the United States without first (i)
obtaining any required written permission to do so from the United
States Office of Export Administration and other appropriate
governmental agencies of the United States, or (ii) complying fully
and strictly with all requirements of any general license exempting
the exportation from the requirement for that permission. These
restrictions may also apply to re-exportation from the United
States of imported Licensed Programs.
13. NOTICES. Any notice required under this Agreement shall be given in
writing and shall be deemed effective upon delivery of the party to whom
addressed by (i) express courier, upon written verification of actual
receipt, (ii) facsimile, upon confirmation of receipt generated by the
sending device, or (iii) five days after sending, via certified mail,
return receipt requested. All notices shall be sent to the following
addresses (or such addresses as the parties may designate in writing):
13.1. If to General Magic: General Magic, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel
13.2. If to ISOCOR: ISOCOR, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attn: Contracts Administration.
14. GENERAL PROVISIONS
14.1. AGREEMENT PREVAILS. In the event that any provision of any purchase
order or receipt issued by GENERAL MAGIC is inconsistent with the
provisions of this agreement, then the terms of this Agreement will
prevail.
14.2. TAXES. Payments shown in Attachment A are exclusive of all sales,
use, withholding and other taxes. Any tax ISOCOR may be required to
collect or pay upon the sale or delivery of the products, other
than taxes related to the income of ISOCOR, shall be paid by
GENERAL MAGIC, or in lieu thereof, GENERAL MAGIC shall provide a
tax exemption certificate acceptable to the taxing authorities. On
sales outside the United States, all required import/export duties,
licenses and fees shall be payable by GENERAL MAGIC in addition to
the stated payments to ISOCOR.
14.3. DELIVERY. Delivery will be made as defined in Attachment A, and
will be F.O.B. ISOCOR's shipping location. In the absence of
specific written instruction from GENERAL MAGIC, ISOCOR will select
the carrier but shall not thereby assume any liability in
connection with shipment, nor shall the carrier be construed to the
agent of ISOCOR.
14.4. FORCE MAJEURE. Neither party shall be responsible for delays or
failures in performance resulting from acts beyond the control of
such party. Such acts shall include but not be limited to acts of
God, labor conflicts, acts of war or civil disruption, governmental
regulations imposed after the fact, public utility failures,
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industry wide shortages of labor or material, or natural disasters.
15. COMPLIANCE AND SEVERABILITY
15.1. PERFORMANCE. ISOCOR and GENERAL MAGIC each agree that it will
perform its obligations under this Agreement in accordance with all
applicable laws, rules and regulations now or hereafter in effect.
15.2. SEVERABILITY. If any provision of this Agreement is invalid or
unenforceable the unenforceability of such provision shall not
affect the other provisions of this Agreement and all provisions
not affected by such invalidity or unenforceability shall remain in
full force and effect.
15.3. ATTORNEY'S FEES. If either party employs attorneys to enforce any
rights arising out of or relating to this Agreement, the prevailing
party in such disputes shall be entitled, in addition to its other
rights hereunder, to recover reasonable attorney's fees and related
expenses, including the fees and expenses of any appeal.
15.4. GOVERNING LAW. Should a dispute arise out of this Agreement, the
parties shall first employ every reasonable means of good faith
negotiations to resolve such a dispute. Thereafter, any dispute
relating to this Agreement shall be settled by binding arbitration
in English in Los Angeles, California under the rules of the
American Arbitration Association before a single arbitrator
experienced in the software industry. Judgment upon the
arbitrator's award may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, claims for temporary or
preliminary preservation or relief (such as a temporary restraining
order or a preliminary injunction) relating to breaches of
proprietary rights arising out of this Agreement may be submitted
to a court having jurisdiction thereof instead of arbitration. The
parties hereto agree to exclusive jurisdiction and venue of the
state and Federal courts located in Los Angeles County, California.
15.5. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
arrangements and understandings between the parties and constitutes
the entire agreement between the parties relating to the subject
matter hereof. No addition to or modification of any provision of
this Agreement shall be binding unless made by a written instrument
signed by a duly authorized representative of each party. The
headings and clauses of this Agreement appear for ease of reference
only and shall not affect the interpretation or effect of this
Agreement.
15.6. WAIVER. No waiver by either party of strict compliance with any of
the terms and conditions of this Agreement shall constitute a
waiver of any subsequent failure of the other party to comply
strictly with each and every term and condition hereof.
15.7. LEGAL RELATIONSHIP. Nothing in this Agreement shall create, or be
deemed to create, a formal legal partnership or the relationship of
principal and agent or employer and employee between the parties.
GENERAL MAGIC is not and shall not hold itself out as ISOCOR's
agent for sale of the Licensed Programs or as being entitled to
bind ISOCOR in any way. Neither party shall use any corporate name
deceptively similar to the other party's name (or incorporate the
intellectual property, trademarks or name in its corporate name)
or trademarks, tending to give the impression that any relationship
exists between the parties without the other parties written
consent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representative. All copies of
this Agreement, signed by both parties, shall be deemed originals.
FOR GENERAL MAGIC: FOR ISOCOR:
Signature /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ Signature /s/ [SIGNATURE ILLEGIBLE]
-------------------------- --------------------------
Name ▇▇▇▇ ▇. ▇▇▇▇▇ Name [SIGNATURE ILLEGIBLE]
------------------------------ -------------------------------
Title V.P. Business Affairs Title
------------------------------ ------------------------------
Date March 31, 1998 (as of) Date
------------------------------ ------------------------------
7
8
ATTACHMENT A
LICENSE, TRAINING, SUPPORT FEES AND LICENSED PROGRAMS DEFINITION
1. LICENSED PROGRAMS DESCRIPTION. "Licensed Programs" shall mean one copy of
the master binary form of the products and corresponding Stock Keeping
Units ("SKUs") listed in Table A-1 below.
TABLE A-1: LICENSED PROGRAMS DEFINITION
------------------------------------------------------------------------------------
ISOCOR PLATFORM LICENSED PROGRAMS
SKU DESCRIPTION
------------------------------------------------------------------------------------
QA467 Windows NT v4 ISOCOR Global Directory Server for N-Plex Global
[**]
------------------------------------------------------------------------------------
QA496 Windows NT v4 ISOCOR Global Server -- no mailboxes, ISP license
(US/Canada only)
------------------------------------------------------------------------------------
QA492 Windows NT v4 N-Plex Global Server -- additional mailbox components
[**]
------------------------------------------------------------------------------------
2. LICENSE FEES
GENERAL MAGIC shall pay on or before April 9, 1998, [**] to ISOCOR as the
one time license fee for Use of Licensed Programs.
3. DELIVERY. Delivery of all Licensed Products shall be made on or before
April 5, 1998.
4. INSTALLATION, DEPLOYMENT AND TESTING SERVICES. At GENERAL MAGIC's option,
ISOCOR shall provide on-site installation, deployment, and testing
services at a cost of Seventeen Hundred Fifty ($1,750) US Dollars per day
per person (plus reasonable actual travel, lodging, and subsistence
costs). All services and expenses will be invoiced monthly as charges
accrue and all invoices are due and payable within thirty (30) days from
GENERAL MAGIC's receipt of any ISOCOR invoice. The installation,
deployment, and testing services shall be defined in a mutually agreed
upon written work order describing the scope of work, schedule and an
estimated number of working days for completion and will be effective on
the issuance of a Purchase Order. At GENERAL MAGIC'S request, ISOCOR
shall provide technical assistance on the installation and deployment of
the Year 2000 compliant Global Directory Server (SKU QA467) product at no
cost to GENERAL MAGIC.
5. SOFTWARE SUPPORT AND UPDATE SERVICE. Upon the date of the expiration of
the limited warranty, ISOCOR shall provide GENERAL MAGIC the annual
Software Support and Update Service described in Attachment B at an annual
cost of [**] U.S. Dollars per year. Payment for the first year of service
will be due and payable one calendar year from the date of expiration of
the limited warranty. Thereafter, all payments for SSUS shall be due and
payable prior to commencement of the next annual service.
6. TRAINING COSTS. Should GENERAL MAGIC require training in addition to the
training in Section 3.2 of Attachment B (which is provided free of
charge), ISOCOR shall provide training at a rate of the lesser of (a) [**]
US Dollars per day per trainee or (b) the rate for such services being
offered to ISOCOR's then current customers in Santa Monica, California
(GENERAL MAGIC shall be responsible for all travel, lodging and
subsistence expenses relating to its trainees). All training fees and
expenses will be invoiced monthly as charges accrue and payable within
thirty (30) days from GENERAL MAGIC's receipt of any ISOCOR invoice. The
training will proceed on a mutually agreeable schedule and contain
mutually agreeable subject matter.
7. GENERAL MAGIC FLAGSHIP CUSTOMER RELATIONSHIP
As outlined above, the corporate pricing for the Licensed Programs and
SSUS includes the following additional services:
< PARTNER'S MEETING PARTICIPATION
ISOCOR holds an annual Partners Meeting which your organization
may attend. This of ISOCOR Flagship
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
9
customers and key ISOCOR Engineers and development staff creates
a forum in which ISOCOR can formally receive input from our
customers, which results in understanding the requirements of
our customers. These meetings can result in new products,
product feature enhancements, support enhancements improving the
overall relationship with our key customers.
< ISOCOR MANAGEMENT INVOLVEMENT
Quarterly meetings will be conducted with ISOCOR Management (VP
Level or above) as well as Regional Management. These meetings
will provide the forum for addressing business issues, sharing
strategic plans where appropriate, and partnership planning and
attendance is optional for CUSTOMER
< PRIORITY ACCESS TO PROFESSIONAL SERVICES
Customer receives priority access for pre, post, and project
planning services via the designated customer service account
manager. This provides the customer with on demand access to
valuable resources.
< PARTICIPATION IN ISOCOR CASE STUDY AND CUSTOMER PROFILE
MARKETING ACTIVITIES.
Customer will be featured in ISOCOR corporate success stories and
profiled as a enterprise user of messaging. All such activities
will require the prior written approval and content verification
of the customer success stories by CUSTOMER.
9
10
ATTACHMENT B:
ISOCOR STANDARD SOFTWARE SUPPORT AND UPDATE SERVICE
WITH
MISSION CRITICAL 24 X 7 SUPPORT
1. STANDARD SUPPORT AND UPDATE SERVICE ("SSUS") For as long as GENERAL MAGIC
subscribes to and pays for SSUS, ISOCOR shall maintain a Technical
Support Hotline staffed by personnel with knowledge of the Products.
GENERAL MAGIC shall have access to this service during ISOCOR's normal
office hours which currently run from 6:00 a.m. through 6:00 p.m. Pacific
Standard Time ("Normal Business Hours"). For mission critical support,
GENERAL MAGIC shall have access to ISOCOR's hotline 24 hours per day with
phone numbers provided by ISOCOR. ISOCOR shall apply commercially
reasonable efforts to (i) answer technical questions arising in the
course of using the Products; (ii) correct any program errors which fall
into one of the three categories specified below and are reproducible by
ISOCOR; and, (iii) provide work-around solutions to problems in
accordance with applicable specifications and product manuals, provided,
however, that such program errors have not been introduced through
modifications made by GENERAL MAGIC.
2. CATEGORIES OF PROBLEMS AND RESPONSES: Three classes of program errors are
provided for, and shall be responded to DURING NORMAL HOURS by ISOCOR
under this Agreement as follows:
2.1. MISSION CRITICAL -- The Product fails to function according to its
published specifications and GENERAL MAGIC is unable to proceed
without a fix to the problem or a work-around solution provided by
ISOCOR (no functionality, e.g., system down problems).
2.1.1. MISSION CRITICAL category problems shall be directly
reported to ISOCOR Technical Support by telephone at numbers
provided by ISOCOR. All such problems will be assigned
immediately upon receipt to a Technical Support Specialist.
ISOCOR will initially respond to GENERAL MAGIC within two
hours of receipt of the MISSION CRITICAL program error by
ISOCOR. This response will inform GENERAL MAGIC of the
identity of ISOCOR personnel assigned and of the plan to
correct the problem. ISOCOR will in addition provide twice
daily status updates until the problem has been fixed. The
Technical Support Engineer assigned to the problem will use
all commercially reasonable endeavors to reduce the MISSION
CRITICAL program error to a MILD/MODERATE program error. If
this is not accomplished within four hours from notification
of the error by GENERAL MAGIC, then an ISOCOR Development
Engineer will be assigned to the problem. The Technical
Support Engineer and Development Engineer will work directly
with GENERAL MAGIC to reduce the MISSION CRITICAL program
error to a SEVERE program error.
2.2. SEVERE -- The Product contains major functional problems against its
published specifications which GENERAL MAGIC is able to work around
but to the extent that the Product can only be used to a limited
degree (partial or limited functionality).
10
11
2.2.1. SEVERE category problems shall be directly reported to
ISOCOR Technical Support by telephone or e-mail. All such
problems will be assigned within two hours from receipt to a
Technical Support Specialist.
ISOCOR will initially respond to GENERAL MAGIC within two
hours of receipt of the SEVERE program error by ISOCOR. This
response will inform GENERAL MAGIC of the identity of ISOCOR
personnel assigned and of the plan to correct the problem.
ISOCOR will in addition provide daily status updates until
the problem has been fixed. The Technical Support Engineer
assigned to the problem will within four hours of receipt of
reported program error from GENERAL MAGIC, use all
commercially reasonable endeavours to resolve the problem. If
this is not accomplished within six hours from notification
of the error, then an ISOCOR Development Engineer will be
assigned to the problem. The Technical Support Engineer and
Development Engineer will work directly with GENERAL MAGIC
until they are successful in correcting the identified
problem. ISOCOR may elect to provide a fully supported
temporary modification or workaround to the program in the
short term, with a permanent modification included in the
next scheduled maintenance release of the Product.
2.3 MILD/MODERATE - Product or documentation contains incorrect logic,
incorrect descriptions, or functional problems which GENERAL MAGIC
is able to work around or where a temporary correction has been
implemented (full functional but needs improvement).
2.3.1. Mild/Moderate category problems shall be directly reported
to ISOCOR Technical Support by telephone or e-mail. ISOCOR's
response to the Mild/Moderate category shall be to provide
commercially reasonable efforts to schedule the personnel
and effort required to solve the problem commensurate with
the severity of the problem. The correction of such errors
shall be performed within the limits of ISOCOR's resources
consistent with the obligations of ISOCOR to it other
customers. ISOCOR may elect to include the modification in
the next scheduled maintenance release of the Product. ISOCOR
will initially respond to GENERAL MAGIC within 24 hours of
receipt by ISOCOR of the MILD/MODERATE program error.
3. OBLIGATIONS OF GENERAL MAGIC UNDER STANDARD SSUS
3.1. GENERAL MAGIC'S DESIGNATED STAFF. GENERAL MAGIC agrees to
establish its own central supportstaff, through which it will
channel all communication and information/update exchange with
ISOCOR regarding this service. ISOCOR shall provide service under
this Agreement solely to GENERAL MAGIC through the central
supportstaff, and shall not be responsible to support GENERAL
MAGIC's individual sites or those of its affiliates or customers.
GENERAL MAGIC shall designate 3 representatives as designated staff
(it is GENERAL MAGIC's duty to keep the 3 names current) with
access to SSUS.
3.2. STAFF TRAINING. GENERAL MAGIC shall maintain an adequate number of
personnel trained in the technical support aspects of the Products.
It is required that two of GENERAL MAGIC's personnel complete
ISOCOR's Technical Support 4 day Training Program at Santa Monica,
California, within 120 (one hundred and twenty) days of the signing
of this Agreement. The ISOCOR Technical Support 4 day Training
11
12
Program will be offered yearly (as long as GENERAL MAGIC is on
SSUS") to 3 of GENERAL MAGIC's designees on a mutually agreeable
schedule at no charge to GENERAL MAGIC (except GENERAL MAGIC is
responsible for travel, lodging and sustenance expenses of their
designees).
3.2.1. PAYMENT FOR SSUS. After expiration of the Limited
Warranty Period or after purchasing the Products "as
is", GENERAL MAGIC must purchase from ISOCOR the
annual SSUS according to the Agreement or SSUS
contract.
4. TECHNICAL BULLETINS AND UPDATES
ISOCOR will provide GENERAL MAGIC applicable Product Technical Bulletins
and Application Notes as they become available, and will advise GENERAL
MAGIC of new Major and Minor software updates to Products as soon as they
are formally released to the marketplace. For six (6) months from the
release date of a new Major or Minor software update, GENERAL MAGIC is
entitled to order that update at no additional charge, (i) so long as the
Product being updated is under current SSUS Subscription, or (ii) is still
covered by its initial Limited Warranty.
4.1. MINOR SOFTWARE UPDATES are those containing minor improvements
and error corrections to an existing Product and are represented
by an increment to the product version number to the right of
the decimal point, e.g. V1.1 to V1.21, etc.
4.2. MAJOR SOFTWARE UPDATES may contain substantial functionality
improvements, or new functionality, in addition to minor
improvements and error corrections, and are represented by an
increment to the product version number to the left of the
decimal point, e.g. V2.0, V3.0, etc. Major updates also include
any new Product offered to ISOCOR's customers which improves the
functionality of the Licensed Programs or supersedes any Licensed
Products.
4.3. NEW PRODUCTS NOT INCLUDED. SSUS does not cover free upgrades or
exchanges of Products for different products which may implement
different language, alternate platform versions, alternate
operating systems, or a new standards base.
4.4. SUPPORT FOR PRIOR VERSIONS. ISOCOR will support a previous
version (major and minor) release for six (6) months following
release of a new version of a Product.
4.5. FORM OF TECHNICAL INFORMATION. ISOCOR reserves the sole right to
provide any information under this Agreement in one of three
forms. The three forms are: (i) Field Service Bulletins -
Written advisory form, or (ii) Software Modifications - Revised
Product containing modifications, or (iii) New Software Modules
- Revised Product modules for inclusion within the Product.
5. MISSION CRITICAL 24 X 7 SUPPORT
For as long and GENERAL MAGIC subscribes to and pays for SSUS, GENERAL
MAGIC shall have access to ISOCOR's Out of Hours Hotline 24 hours per day,
7 days per week. During these hours ISOCOR shall use all commercially
reasonable efforts to respond to Mission Critical program errors, in
accordance with Paragraph 2.1.1. Foreign and domestic telephone numbers for
this Hotline support shall be provided by ISOCOR to GENERAL MAGIC.
6. ADDITIONAL OBLIGATIONS OF GENERAL MAGIC.
6.,1. ISOCOR SITE VISIT. It may be required for ISOCOR support
personnel to visit
12
13
GENERAL MAGIC's site in order to understand GENERAL MAGIC's
configuration.
6.2. BACKUP REQUIREMENTS. If the Extended Hour Software Support and
Update Service is selected GENERAL MAGIC shall make daily
backups of the system under support. Before calling the Out of
Hours Hotline, GENERAL MAGIC must use reasonable endeavors to
return the user's system to a working state: that is, the state
the system was in before the problem occurred.
6.3. RECORD KEEPING AND PREPARATION. Before making an Out of Hours
Hotline call, GENERAL MAGIC should have the following useful
information available:
6.3.1. Detailed System configuration files
6.3.2. Detailed log files
6.3.3. Detailed trace files, if available
6.3.4. Configuration and login details to allow the ISOCOR
Technical Support Engineer to have remote access to
the client site over TCP/IP, Async, APS.
6.3.5. GENERAL MAGIC must keep a detailed Change Log of any
system configuration changes and on request shall make
these log files available to ISOCOR Support staff.
7. ADDITIONAL OBLIGATIONS OF ISOCOR
o SUPERIOR TECHNICAL SUPPORT
This includes: maintenance support, upgrade support, application of
technology consulting, training, technology review, technology
planning, and architecture design.
o DEDICATED SENIOR ACCOUNT MANAGER.
A technical support individual assigned to your organization, familiar
with your staff, architecture, environment, and product deployment.
o SPECIAL SUPPORT ACCESS PRIVILEGES
Private dedicated support line to technical support services.
13
14
[ISOCOR LETTERHEAD]
1 October, 1998
Mr. ▇▇▇ ▇▇▇▇▇▇▇▇▇
General Magic
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
This letter ("Letter") sets forth the terms of our agreement regarding the use
of selected source code and amends the License Agreement between General Magic,
Inc. ("General Magic") and ISOCOR dated March 31, 1998 ("Agreement") as follows:
1. FOR THE PURPOSE OF THIS LETTER, THE FOLLOWING TERMS SHALL HAVE THE
FOLLOWING MEANING:
1.1 DERIVATIVE WORK means all copyrights, patents, trade secrets, or
other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship
developed or created by General Magic using the Software (as
defined herein.
1.2 DOCUMENTATION means an e-mail that ISOCOR will provide to an
individual nominated by General Magic that explains how to
configure the extension DLL to allow an external program to be
called when a new mail account is created, modified or deleted.
1.3 SOFTWARE means a [**] from N-PLEX Global Server (QA492) which will
contain the required entry points in the DLL and the header file
documenting prototypes. There will be no functionality in the
skeleton and General Magic will be responsible for developing any
and all functionality related to General Magic's needs. It will also
include Documentation as defined herein. The Software will be in the
C programming language and will compile using Microsoft Visual C++
5.1 or later.
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
15
2 LICENSE TO USE SOFTWARE - The following is added to Section 2 ("License
Grant") of the Agreement: ISOCOR grants to General Magic a perpetual,
irrevocable, worldwide, non-exclusive right to use the Software to prepare
Derivative Works, and to use a reasonable number of copies in Binary Form
the Derivative Works with the Software in conjunction with the Licensed
Programs. ISOCOR shall own all Derivative Works. ISOCOR grants to General
Magic a perpetual, irrevocable, worldwide, non-exclusive, royalty-free
right to sublicense the Derivative Works to third parties, provided that
any such sublicenses are exclusively for use of the Derivative Works with
the N-Plex Global Server software.
3 CONFIDENTIALITY. The Software and this Letter shall be Confidential
Information as defined in Section 8 ("Confidentiality") of the Agreement.
General Magic agrees not to reproduce, duplicate or copy, or disclose,
distribute or disseminate the Software, except as provided herein and in
the Agreement.
4 DISCLAIMER OF WARRANTIES. "The following provisions apply only to the
Software that is the subject of this Letter, and in no way modify or amend
Section 5 ("Warranty") of the Agreement with respect to the Licensed
Programs: The SOFTWARE is provided "AS IS", with NO WARRANTY OF ANY KIND.
The entire risk of quality and performance of the SOFTWARE, with or
without Derivative Works, is with General Magic. ISOCOR does not warrant
that the SOFTWARE will perform error free or that reported errors will be
corrected.
4.1 WARRANTIES TO DERIVATIVE WORK. General Magic's Derivative Works are
provided "AS IS", with NO WARRANTY OF ANY KIND. The entire risk of
quality and performance of the Derivative Works is with user of the
Derivative Works. General Magic does not warrant that the
Derivative Works will perform error free or that reported errors
will be corrected. GENERAL MAGIC AND/OR ITS SUPPLIERS DISCLAIM ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE DERIVATIVE WORKS.
4.2 NO OTHER WARRANTIES. ISOCOR, AND/OR ITS SUPPLIERS, DISCLAIM ALL
OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE.
4.3 NO ISOCOR LIABILITY FOR CONSEQUENTIAL DAMAGES. THE FOLLOWING
PROVISION APPLIES ONLY TO THE SOFTWARE THAT IS THE SUBJECT OF THIS
LETTER AND IN NO WAY MODIFIES OR AMENDS SECTION 10 ("LIMITATIONS OF
LIABILITY") OF THE AGREEMENT WITH RESPECT TO THE LICENSED PROGRAMS:
"IN NO EVENT SHALL ISOCOR AND/OR ITS SUPPLIERS BE LIABLE FOR ANY
DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS
OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OTHER PECUNIARY LOSS OR
16
INCIDENTAL OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE OF OR
INABILITY TO USE THE SOFTWARE, EVEN IF ISOCOR HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
4.4 NO GENERAL MAGIC LIABILITY FOR CONSEQUENTIAL DAMAGES. IN NO EVENT
SHALL GENERAL MAGIC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OTHER PECUNIARY LOSS OR INCIDENTAL OR CONSEQUENTIAL
DAMAGES) ARISING OUT OF THE USE OF THE DERIVATIVE WORK OR INABILITY
TO USE THE SOFTWARE, EVEN IF GENERAL MAGIC HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
5 DELIVERY. ISOCOR will e-mail the Software to one individual designated by
General Magic within thirty calendar days after execution of this Letter
by both parties.
6 EFFECT ON AGREEMENT. Any Derivative Works shall constitute third party
programs for purposes of Section 5.4 of the Agreement and third party
software for purposes of Section 9.3 of the Agreement. Except as provided
in this Letter, all provisions applying to the Licensed Programs under the
Agreement, including without limitation Section 9 ("Indemnification
Against Infringement") shall also apply to the Software.
7 NON-RECURRING ENGINEERING TIME ("NRE"). ISOCOR shall provide to General
Magic during normal business hours up to a total of eight hours of
telephone or e-mail support to assist with the development of the
Derivative Work. The scope of the NRE shall be limited to the architecture
of the extension mechanism and its interaction with the N-Plex product.
All information communicated to General Magic shall remain the property of
ISOCOR and shall be considered confidential under the Agreement.
8 SUPPORT. ISOCOR shall not provide SSUS for the Derivative Work or for the
Software with or without the Derivative Work. ISOCOR shall not provide any
updates, upgrades, new versions, revisions, or future enhancements of the
Software to General Magic.
9 EFFECTIVENESS OF AGREEMENT. Except as expressly provided herein, nothing
in this Letter shall be deemed to waive or modify any of the provisions of
the Agreement, or addendum thereto. In the event of any conflict between
the Agreement, the attachments, this Letter, or any other Amendment or
addendum thereof, the document of later time shall prevail.
10 COUNTERPARTS AND FACSIMILE DELIVERY. This Letter may be executed in two or
more identical counterparts, each of which shall be deemed to be an
original and all of which taken together shall be deemed to constitute the
Letter when a duly authorized representative of each party has signed a
counterpart. The parties may
17
sign and deliver this Letter by facsimile transmission. Each party agrees
that the delivery of the Letter by facsimile shall have the same force and
effect as delivery of original signatures and that each party may use such
facsimile signatures as evidence of the execution and delivery of the
Letter by all parties to the same extent that an original could be used.
11 POSSIBLE CONSEQUENCES. General Magic acknowledges that the Software runs
in the same process as mission critical functions of the Licensed
Programs. Further, General Magic acknowledges that the Software DLL has
the ability to [**]. Therefore, General Magic agrees that ISOCOR is not
responsible for any malfunctions or performance degradation of the
Licensed Programs relating to the use of the Software with the Derivative
Works.
If you accept the terms of this letter, please sign below and ISOCOR will
execute this letter. If you have any questions, please do not hesitate to call
me.
Sincerely,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Associate Vice President
The parties signed below accept the terms and conditions set forth above.
GENERAL MAGIC, INC. ISOCOR
Signature /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Signature [Signature Illegible]
------------------------- -------------------------
Name/Title Director of Technology Name/Title [Name Illegible]
------------------------- ------------------------
Date 10/1/98 Date: 10/26/98
----------------------------- ----------------------------
[**] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
