Exhibit No. 10.02
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This Agreement is made this 16th day of January, 2003 ("Effective Date")
by and between Netegrity, Inc., a Delaware corporation with its principal place
of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as licensee
("Netegrity") and Business Layers, Inc., a Delaware corporation with its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, as licensor ("Licensor").
1. DEFINITIONS
(a) The term "APPLICATION PACKAGE" means the Program (defined below)
combined with an integration module and (i) embedded, (ii) bundled
or (iii) sold contemporaneously with or subsequent to the sale of
Netegrity's [**] software (or software which replaces the [**]
software). The Application Package shall include all enhancements,
improvements, and modifications thereof, and all supporting
Documentation relating thereto and shall be identified by Netegrity
by a separate product number. Notwithstanding any provision to the
contrary herein, the Application Package does not include the [**]
software which is identified via a separate product number.
(b) The term "NETEGRITY" means Netegrity, Inc. and its subsidiaries and
affiliates. Subsidiary means a company which is majority-owned by
Netegrity.
(c) The term "DISTRIBUTOR" means a person or entity which is authorized
by Netegrity to market and distribute copies of software either on a
standalone basis or as embedded, integrated or bundled with
Distributor's product to End-Users, either directly or via
subdistributors.
(d) The term "DOCUMENTATION" means technical documentation, training
materials and, as available, End-User manuals, in both human
readable and electronic form. The Documentation is further described
in Schedule A.
(e) The term "END-USER" means an entity or person authorized to use the
Application Package, under a license agreement, which may be in the
form of a shrink-wrap or click-wrap license, provided by either
Netegrity or its Distributors in accordance with Section 2.2, and
without the right to further sublicense. The limitation on the right
to sublicense shall not prevent End Users from providing access to
the Application Package or Program to its customers, partners,
sub-contractors or affiliated companies so long as such access is
related to the beneficial use of End Users. In the event Netegrity
licenses the Application Package or Program to an End User who will
use the Application Package or Program as a provisioning Application
Service Provider (i.e. timeshare, facilities management,
outsourcing, service bureau, data processing service), Netegrity and
Licensor shall mutually agree on an appropriate fee structure to
determine the royalty fee which Netegrity will pay to Licensor for
such license. Notwithstanding the foregoing, Netegrity will remain
free at all times to set End User pricing at its discretion.
(f) The term "INTERNAL USE" means the use of the Application Package
and/or Program in connection with the marketing and distribution of
the Application Package for demonstrations, End Users or Distributor
evaluation, integration, testing, benchmarking, maintenance,
customer
support, training and integration-related development of the
Application Package or [**] pursuant to Section 19 of this
Agreement. Use of the Application Package for the foregoing limited
uses, by application developers, Distributors or End Users with whom
Netegrity has a binding agreement shall also be considered Internal
Use. Internal Use does not include Netegrity's production use of the
Program or Application Package for its own benefit. Netegrity shall
have the right to purchase under the provisions of this Agreement
the Program or Application Package for its own production use
provided it pays to Licensor a purchase fee equal to the applicable
minimum royalty fee specified in Section 3 of Schedule C, however,
such purchase fee will not be credited against the quarterly minimum
royalty fees paid by Netegrity.
(g) The term "OPERATING ENVIRONMENT(S)" means operating system software,
independent of hardware, on which the Program is or shall be
operable as listed in Schedule B. Except as otherwise provided in
Schedule B, additional Operating Environments may be added to
Schedule B by mutual agreement of the parties.
(h) The term "NET LICENSE FEE" means the license fee due and payable by
an End User or Distributor to Netegrity for the Application Package,
less any reseller fees, referral fees and discounts (applied as
described herein) credits or refunds related to the distribution or
sale of the Application Package or Program, non-recoverable sales
tax, VAT or other taxes related to the distribution or sale of the
Application Package or Program or other deductions related to the
distribution or sale of the Application Package or Program. Net
License Fees do not include maintenance and support fees.
(i) The term "PROGRAM" means Licensor's application software program
known as eProvision Software (inclusive of the workflow component
[**] version which will be created pursuant to Schedule E) or any
subsequent product that replaces the eProvision software, which is
or shall be made operable on the Operating Environment(s), and
includes any commercially available country or language-specific
version of the Program created by Licensor which is substantially
equivalent, together with all enhancements, improvements, and
modifications thereof, and all supporting Documentation relating
thereto. The Program is further described in Schedule A.
(j) The term "RELEASE" means a more current edition of the software and
related documentation for the purpose of codification of all
previously created enhancements, improvements and modifications.
2. GRANT
2.1 Subject to the terms and conditions specified in this Agreement, Licensor
grants and Netegrity hereby accepts a nonexclusive, world-wide,
nontransferable, revocable, limited license to:
(a) use the Program and Application Package for Internal Use;
(b) copy and distribute the Program, but only with the Application
Package;
(c) embed, integrate, bundle or combine the Program into or with
IdentityMinder;
(d) develop, translate, modify and make derivative works of the portion
of the Application Package which Netegrity provides;
(e) sublicense the use of the Program, but only as an integrated part of
or bundled with the Application Package, to potential End-Users or
Distributors for a reasonably limited period of time for evaluation,
including beta testing of the Application Package;
(f) sublicense the rights granted in subparagraphs (a), (b) and (d)
above to Distributors, and sublicense the rights granted in
subparagraphs (a), (c) and (d) above to contractors hired by
Netegrity, in both situations solely for the purposes of exercising
the rights and licenses granted
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herein, subject to the distributors and/or contractors being bound
by the obligations contained here relating to the Program and, as
between Netegrity and Licensor, Netegrity shall be liable for any
performance by Distributor or contractor which would constitute a
material breach of this Agreement; and
(g) provide a perpetual license to the Program, but only as part of the
Application Package, to End-Users, either directly or through
sub-distributors.
Notwithstanding any provision herein to the contrary, for a period of (i)
180 days from the effective date of this Agreement, or (ii) from the
effective date of this Agreement up to the date Netegrity first ships the
Application Package, whichever is sooner, Licensor hereby grants a license
to Netegrity to provide a perpetual sub-license to the Program, on a
stand-alone basis, to End Users, either directly or through Distributors,
in which case the Netegrity obligations contained herein with respect to
the Application Package, will apply to the Program and Netegrity shall
have the rights set forth in Sections 2, 6, 10, 14 and 19 of this
Agreement.
2.2 Prior to Netegrity's delivery of the Application Package to End-Users or
Distributors, Netegrity shall ensure that each End-User and Distributor
has subscribed to software protection obligations substantially the same
as those contained in this Agreement including reasonable nondisclosure
obligations covering End User's or Distributor's use of Licensor's
technical information.
2.3 Title to the Program and all enhancements, improvements and modifications
made thereto shall remain with Licensor. Notwithstanding anything to the
contrary, title to Netegrity software as referenced in this Agreement and
enhancements, improvements, and modifications made thereto shall remain
with Netegrity.
2.4 Licensor hereby grants to Netegrity, and Netegrity accepts, a
non-exclusive, royalty-free license under Licensor's copyrights in
Licensor's Documentation to (and to permit Distributors to), solely for
use with the Application Package:
(a) translate, edit, reformat, rewrite and create derivative works of
the Documentation;
(b) incorporate the Documentation, in whole or in part, into other
written materials prepared by or for Netegrity;
(c) use the Documentation for Internal Use; and
(d) reproduce and distribute modified and original versions of the
Documentation from master media worldwide, in hard copy or in an
on-line format, and, if such Documentation is in an on-line format,
allow Distributors and End-Users to make print copies of the same.
Documentation that is delivered to the U.S. Government shall include a
restrictive rights legend. In addition, Documentation shall contain the
Copyright notice specified in Section 12 of this Agreement and any third
party Copyright or proprietary right notice which Licensor is required by
written agreement to include in the Documentation provided Licensor
notifies Netegrity in writing of such requirement.
2.5 Notwithstanding Section 7.1, the parties will mutually agree on a solution
to addressing Netegrity's concerns regarding the [**]. In the event the
parties can not agree on a solution to this issue within fifteen (15) days
of the effective date of this Agreement, Netegrity shall have the right to
delay payment of the quarterly minimum royalty payments set forth Schedule
C until such time as the parties mutually agree on a solution. A breach of
this Section 2.5 shall not be deemed a [**] provision under Section 7.4.
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3. INTEGRATION, TESTING AND ACCEPTANCE OF PROGRAM
3.1 Licensor will carry out the [**] services specified in Schedule E. The
delivery dates for deliverables will be set forth in Schedule E. Licensor
shall dedicate the appropriate resources to ensure that the [**] services
detailed in Schedule E are performed within the specified time frames.
Licensor agrees that time is of the essence in the performance of the [**]
services.
3.2 Licensor shall deliver Documentation for the Program in accordance with
the specifications in Schedule A and delivery requirements for the Program
as set forth in this Agreement.
3.3 Licensor shall ship to Netegrity a diskette of the Program for each order
of the Application Package or Program received by Netegrity from an End
User or Distributor. Licensor shall ensure that Netegrity maintains an
inventory of not less than 10 copies of the Program during the term of
this Agreement. Subject to the provisions in this Agreement, Netegrity
shall have the right to distribute the Application Package and/or Program
via private labeled diskette or via electronic download.
4. PAYMENTS
4.1 Netegrity shall pay to Licensor the fees set forth in Schedule C as sole
and complete compensation to Licensor for the licenses and services
granted or performed hereunder.
4.2 Unless otherwise indicated in Schedule C, within thirty (30) days after
the end of each quarter Netegrity shall deliver to Licensor a report which
details the royalty fees due for that quarter and other details (excluding
End User names) reasonably required by Licensor. Payments shall be due
immediately upon delivery of the report and shall be submitted no later
than fifteen (15) days after delivering such report, at the address
specified in Section 20.7. All payments shall be in U.S. dollars, and are
net of any taxes, duties, excises, withholding taxes or tariffs now or
hereinafter imposed on the Program or the Application Package required to
be paid by Netegrity. Any taxes, duties, excises, withholding taxes,
tariffs, fees, assessments or levies shall be the responsibility of
Netegrity with the exception of any taxes based on the net income of
Licensor. With each quarterly payment, Netegrity shall provide to Licensor
an accounting of the sublicenses granted by Netegrity during that calendar
quarter detailing the number of units sold and the amount due.
4.3 Netegrity shall pay Licensor no less than the royalty due under Section
4.1 except as otherwise mutually agreed between the parties on a
case-by-case basis.
5. TERM OF AGREEMENT
5.1 The initial term of this Agreement shall be three (3) years commencing on
the date first written above. This Agreement, unless otherwise terminated
as provided herein, shall be automatically extended for additional terms
of one (1) year each, unless a party gives written notice to the other
party of it's intent to terminate the Agreement at least one hundred and
eighty (180) days prior to the end of the initial term or any renewal term
or in accordance with the provisions of Section 5.2 and 5.3 below. If this
Agreement terminates due to such written notice, the provisions of Section
14.2 below shall govern.
5.2 After the initial 12 months of this Agreement, Netegrity may terminate the
Agreement at any time upon ninety (90) days prior written notice, without
cause. In the event of such termination,
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Netegrity shall pay the pro-rata portion of the Minimum Royalty Fee as
specified in Schedule C hereto, calculated up to the termination effective
date.
5.3 After the initial 18 months of this Agreement, Licensor may terminate this
Agreement by providing eighteen (18) months prior written notice provided
Licensor continues to provide the support and maintenance services as
specified in Section 14.
6. SUPPORT AND MAINTENANCE AND PROGRAM MANAGEMENT
6.1 Licensor shall provide the support and maintenance described in Schedule
D. During the initial term of the Agreement, at Netegrity's option,
Licensor will make available to Netegrity up to two dedicated full time
(i.e. 5 days a week and a minimum of 8 hours per day) systems engineers to
support Netegrity. Each system engineer shall meet the technical
requirements set forth in Schedule A and such individuals will be subject
to the reasonable approval of Netegrity.
Each system engineer shall be an employee of Licensor and Licensor shall
be solely responsible for paying the system engineer's salary and
benefits. In the event Netegrity exercises it option hereunder, Netegrity
will pay Licensor $[**] per systems engineer for such service, plus
reasonable actual travel and expenses in accordance with Netegrity's
travel policy. Payments shall be made on a quarterly basis in advance of
the applicable quarter.
Licensor shall provide one (1) system engineer as of the effective date of
this Agreement and will provide the second system engineer within sixty
(60) days of the effective date of this Agreement. In the event Netegrity
wishes to terminate, reduce or increase the number of system engineers
hereunder, it shall provide Licensor three (3) months prior notice,
provided, however, that in the event a system engineer fails to meet the
reasonable performance requirements established by Netegrity from time to
time, Netegrity shall have the right to terminate that system engineer
services with seven (7) days notice to Licensor. In the event of
termination of the system engineer services for any reason, Licensor shall
issue Netegrity a refund equal to a pro-rata portion of the unused
pre-paid fees for the system engineer and at Netegrity's option, shall
replace the system engineer within sixty (60) days with an individual
acceptable to Netegrity.
6.2 Licensor shall designate a Program Manager who shall act as a dedicated
liaison between Licensor and Netegrity. At a minimum, the Program Manager
shall be responsible for ensuring that the [**], testing and integration
services are performed in accordance with this Agreement. If requested by
Netegrity, the Program Manager or someone equally qualified on his behalf,
shall be required to travel to Netegrity's development and testing offices
no less than two (2) times a quarter until such time as the [**] work
specified in Schedule E has been completed and Licensor shall be solely
responsible for the travel expenses associated with such travel.
7. SOURCE CODE ESCROW
7.1 Licensor shall place the Program Source Code Materials in escrow with a
mutually agreed upon United States based third party software escrow agent
upon execution of this Agreement, in accordance with the escrow agent's
standard agreement provisions as modified by the terms of this Agreement.
For the purpose of this provision the "Program Source Code Materials"
shall mean the source code of the Program excluding any third party
technology embedded, integrated, bundled or combined in or with the
Program unless Licensor has the rights to provide the third party source
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code to Netegrity hereunder in which case the third party source code
shall automatically be included in the definition of the Program Source
Code Materials. Licensor shall provide Netegrity with a list of any and
all third party technology embedded, integrated, bundled or combined with
or in the Program and shall use reasonable commercial efforts to enter
into an agreement with such third parties to allow the third party source
code to be included in the Program Source Code Materials hereunder. All
escrow fees on an ongoing basis shall be paid by Netegrity. Licensor
agrees it will promptly deposit a current copy of the Program Source Code
Materials in escrow upon the commercial availability of each release. Upon
each deposit, the escrow agent shall be required to provide verification
that the deposited materials compile to the same version of the Program
provided hereunder. Subject to the terms and conditions specified herein
and effective upon the provisions of section 7.3 below becoming operative,
Licensor grants and Netegrity accepts for the remainder of the initial
term of this Agreement a non-exclusive, irrevocable, worldwide,
nontransferable, limited license to use the Program Source Code Materials
furnished to Netegrity under the Escrow Agreement. Under such license,
Netegrity shall be permitted to enhance, improve, modify, translate, make
derivative works of, test and develop the Program Source Code Materials to
exercise Netegrity's rights under this Agreement, which shall include
creating derivative works of the Program and Application Package which may
be distributed in accordance with Section 2 of this Agreement.
7.2 In the event the Program Source Code Materials are [**] pursuant to:
(i) Section 7.4 (a) hereunder, then Netegrity shall [**] under this Agreement;
(ii) Section 7.4 (b), (e), (f) or (g) hereunder, then Netegrity shall [**] its
distribution and sale of the Application Package and the applicable support and
maintenance fees;
(iii) Section 7.4 (c) or (d) hereunder, then Netegrity shall [**] specified in
Schedule C, including the [**] hereunder.
7.3 As used herein, the term "Program Source Code Materials" means the fully
commented source code, listings, flow charts, logic diagrams, software
tools, testing materials, and support documentation related to the Program
which is suitable and sufficient to permit a reasonably skilled software
engineer to build, enhance, improve, modify, maintain, test and support
the same.
7.4 Netegrity shall have the right to [**] the extent specified in section 7.1
above upon the occurrence of any one or more of the following events:
(a) the cessation by Licensor for any reason, to do business;
(b) the institution of any bankruptcy, receivership, insolvency,
reorganization, dissolution, liquidation, or other similar
proceedings by or against Licensor or all or any substantial part of
its property under any Federal or State law and, if against
Licensor, such proceedings shall not be dismissed within ninety (90)
days of the institution of such proceedings, subject to any such
proceedings preventing Licensor from performing its maintenance and
support obligations [**] under Schedule E under this Agreement; or
(c) the reduction of Licensor's [**] (excluding Quality Assurance
personnel) to less than [**] full time employees or the reduction of
all other [**] (excluding Quality Assurance personnel) to
6
less than [**] full time employees prior to the completion of the
[**] work specified in Schedule E; or
(d) [**] in [**] as determined by the [**]. For the purposes of this
provision [**]from the beginning of the period to the end of the
period ; or
(e) the failure by Licensor to perform any material support or
maintenance obligation [**] under Schedule E of this Agreement, and
such failure continues unremedied for a period of (i) forty-five
(45) days after written notice from Netegrity in the case of the
support and maintenance obligations or (ii) ninety (90) days after
written notice from Netegrity [**]; or
(f) the acquisition of Licensor by a third party which fails to perform
a material support or maintenance obligation [**] under Schedule E
of this Agreement and such failure continues unremedied for a period
(i) forty-five (45) days after written notice from Netegrity in the
case of the support and maintenance obligations or (ii) ninety (90)
days after written notice from Netegrity [**]; or
(g) delay in Licensors performance of a material support or maintenance
obligation [**] under in Schedule E for any reason specified in
Section 20.13 and (i) in the case of the support and maintenance
obligations such delay continues for a period of forty-five (45)
days after written notice from Netegrity or (ii) [**] such delay
continues for ninety (90) days after written notice from Netegrity.
Netegrity understands that its use of the Program Source Code Materials
may preclude the ability of Licensor to support the Software, and/or to
provide modifications, improvements, upgrades and new releases of the
Software. In the event of [**] under this Section 7 and Netegrity [**],
Licensor shall [**] of the Program which are [**] by Netegrity. Licensor
shall continue to provide support and maintenance as specified hereunder
for all [**] of the Program.
Under no circumstances shall Netegrity provide or transfer the Program
Source Code Materials to any third parties, except that Netegrity may
retain third party contractors to use the Program Source Code Materials
for the purposes set forth in section 7.1 above, provided that such third
party contractors are bound in writing by the obligations set forth in
this Section, and Netegrity shall be fully liable for any violations of
the obligations by such third party contractor.
The Program Source Code Materials are proprietary and confidential
information of Licensor and are subject to the provisions of Section 16 of
this Agreement. Nothing in this Section 7 shall transfer to Netegrity
ownership to the Source Code Materials. In the event Netegrity [**]
pursuant to this Section 7, Licensor shall own any such modification or
changes and within a commercially reasonable time frame from completion of
the modifications, Netegrity will deliver to Licensor a copy of the
modified Program Source Code Materials created by Netegrity under this
Section 7. In the event that Netegrity creates a competing software
product to the Program it will not utilize any of its employees who have
had access to or confidential information (which for the purpose of this
Section 7.4 shall mean information that a reasonable person would deem
confidential under the circumstances) derived from the Program Source Code
Materials. This Paragraph shall survive the expiration or termination of
this Agreement for any reason.
7
The first time only that the [**] pursuant to Section 7.4 (c) or (d), in
the event Licensor remedies or cures the event that led to [**] within
thirty (30) days of Netegrity's notice to [**], Licensor shall have the
right to require that [**]. Solely under the circumstances detailed in
this paragraph, the source code escrow license applicable in connection
[**], shall terminate provided however, that Section 7 of this Agreement
shall apply to any future event which [**] under Section 7.4.
7.5 At Netegrity's sole option, at any time during the term of this Agreement,
Netegrity may require Licensor to train no fewer than three (3) and no
more than five (5) independent contractor software engineers, jointly
approved by Licensor and Netegrity, on the Program source code. Netegrity
will bear the cost of hiring the independent contractors provided however,
that Licensor shall bear the cost of its training personnel, any
associated travel expenses and all other expenses related to its
personnel. The training provided shall be sufficient to allow the
independent contractors to meet Licensor's [**], support and maintenance
obligations under this Agreement. [**] in accordance with this Section 7,
Netegrity shall have the right to contract directly with the independent
contractors in order to exercise Netegrity's rights under this Agreement.
The independent contractor software engineers may be used by Netegrity
solely to exercise Netegrity's rights under this Agreement.
8. [**]
In the event [**], Netegrity will [**] agreement. Licensor will notify
Netegrity [**] Licensor will [**].
9. TRAINING
9.1 For each release of the Program, Licensor shall provide to Netegrity a
minimum of three (3) training sessions, which may be attended by an
aggregate of thirty (30) Netegrity designated trainees with appropriate
experience, at such locations as may be mutually agreed. Each party shall
pay all reasonable travel and living expenses of its own personnel.
Netegrity shall supply appropriate training facilities and equipment. The
training services and materials to be so provided include the following:
(a) Technical training for the Program to Netegrity's pre-sales, and
technical engineering and services personnel up to twice per year, at a
mutually agreed upon central location in both North America and Europe.
Such training shall cover at least such information as may be required to
install, configure, and service the Program at End-User sites and
information on installing, configuring, or using new features, and shall
be adequate to permit Netegrity service personnel to detect and analyze
problems sufficiently for Netegrity to undertake problem resolution. Such
training shall also enable Netegrity personnel to implement and use new
Releases of the Program.
(b) Introductory sales training for the Program up to four times per
year, at a mutually agreed upon location in both North America and Europe.
(c) In-depth usage training annually for Netegrity's research and
development engineers. Such usage training shall address integration of
the Program with Netegrity software products.
9.2 Licensor shall provide master copies of available training materials for
sales, sales support, service, and research and development courses.
Licensor shall also provide to Netegrity media masters of
8
any available training materials, and computer-based training materials
developed by Licensor related to the Program. Netegrity shall have the
right to videotape (or otherwise record) any training sessions, at its
option, and to use such videotapes or recordings for training purposes.
For all such materials Netegrity shall have the license rights granted for
Documentation per Section 2.4 of the Agreement provided however, that the
research and development courses shall be used solely by Netegrity and
shall not be distributed or sublicensed to Distributors or End Users
hereunder. Licensor shall have no responsibility or liability in
connection with Netegrity or any third party use of the materials.
10. WARRANTIES, REPRESENTATIONS, AND INDEMNITY
10.1 Licensor represents and warrants that it or its licensors have all right,
title and interest in and to the Program licensed hereunder, that it has
the authority to enter into this Agreement and to grant the rights and
licenses provided herein, and that this Agreement violates no previous
agreement between Licensor and any third parties;
10.2 Licensor represents and warrants that the Program does not include any
software code which could be considered open source or copy left or
similar software classification.
10.3 Licensor represents and warrants that to the best of its knowledge, the
Program does not infringe, and that no claim has been made by any party
that the Program infringes, any patent, copyright, trademark, trade secret
or similar proprietary right of any third party ("Intellectual Property").
If Netegrity is charged by a third party with any Intellectual Property
infringement arising from Netegrity's sale, use or distribution of the
Program, Licensor shall defend and hold Netegrity harmless against such
claim, and will indemnify Netegrity for any and all losses, damages, costs
and expenses, including reasonable attorneys' fees, resulting from such
claim, provided that:
(a) Netegrity notifies Licensor in writing within seven (7) days after
receipt of the claim;
(b) Licensor is allowed to exercise control over the defense of the
claim, and all related settlement negotiations, provided Licensor
diligently defends the claim or pursues the settlement; and
(c) Netegrity provides Licensor, at Licensor's expense, with all
reasonably necessary assistance, information and authority to
perform the above.
10.4 In the event that any claim of infringement under Section 10.3 Licensor
shall, at Licensor's option, either:
(a) obtain a license from the third party for Netegrity to continue
using the infringing Program;
(b) modify the infringing Program to avoid such infringement; or
(c) after unsuccessfully using reasonable commercial efforts to provide
a) or b) above, terminate this Agreement with respect to the
infringing Program and refund to Netegrity an amount equal to one
hundred and fifty percent (150%) of Actual Damages (as defined
below) up to an amount not to exceed the all royalty fees paid
hereunder, including the quarterly minimum royalty fees. For the
purpose of this Section 10.4 "Actual Damages" shall mean all amounts
paid by Netegrity as a result of a claim under Section 10.3
including, all refunds of license and support and maintenance fees,
all royalty fees paid for the particular version of the Program
which is infringing, expert fees and attorney fees.
The foregoing indemnity shall not apply to infringements that arise from
the combination of the Program with any other product(s) where such
infringement would not have arisen without such combination.
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10.5 Licensor further warrants that the Program, when properly installed and
used, shall operate in substantial accordance with applicable functional
and performance specifications contained in Schedule A hereof.
10.6 Licensor further warrants that all services provided hereunder, including
without limitation the [**] support and maintenance services shall be
provided in accordance with this Agreement and shall be performed in a
workmanlike manner in keeping with the best practices of the industry.
10.7 Licensor further warrants and represents that as of the effective date of
this Agreement Licensor is not in discussions with any third party nor has
it agreed to initiate general discussions with any third party regarding
an acquisition, merger or other change the ownership structure of Licensor
or its assets including any ownership rights to the Program. In addition
to the other remedies available under this Agreement, in the event of a
breach of this Section 10.7 Netegrity shall be entitled to a refund of all
fees paid under this Agreement.
10.8 Netegrity represents and warrants that it has the corporate authority to
enter into this Agreement; that this Agreement violates no previous
agreement between Netegrity and any third parties; that no consent of any
third party is needed enter into this Agreement.
10.9 Netegrity represents and warrants that to the best of its knowledge, the
Netegrity software (including any third party software which Netegrity may
include in the portion of the Application Package which Netegrity
provides) which is combined with the Program to create the Application
Package ("Netegrity Software") does not infringe, and that no claim has
been made by any party that the Netegrity Software infringes, any patent,
copyright, trademark, trade secret or similar proprietary right of any
third party ("Intellectual Property"). If Licensor is charged by a third
party with any Intellectual Property infringement arising from the
Netegrity Software, Netegrity shall defend and hold Licensor harmless
against such claim, and will indemnify Licensor for any and all losses,
damages, costs and expenses, including reasonable attorneys' fees,
resulting from such claim, provided that:
(a) Licensor notifies Netegrity in writing within seven (7) days after
receipt of the claim;
(b) Netegrity is allowed to exercise control over the defense of the
claim, and all related settlement negotiations, provided Netegrity
diligently defends the claim or pursues the settlement; and
(c) Licensor provides Netegrity, at Netegrity's expense, with all
reasonably necessary assistance, information and authority to
perform the above.
The foregoing indemnity shall not apply to infringements that arise from
the combination of the Netegrity Software where such infringement would
not have arisen without such combination.
10.10 Each party shall defend and hold the other party harmless against such
claim, and will indemnify the other party for any and all losses, damages,
costs and expenses, including reasonable attorneys' fees, resulting from
its negligence or willful misconduct in performing its obligations under
this Agreement.
10.11 THE WARRANTIES AND REPRESENTATIONS STATED WITHIN THIS AGREEMENT ARE
EXCLUSIVE, AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE
10
11. LIMITATION OF LIABILITY
EXCEPT FOR THE PROTECTIONS FOR INFRINGEMENT, NOTWITHSTANDING ANY OTHER
PROVISION IN THIS AGREEMENT THE PARTIES HEREUNDER SHALL SOLELY BE LIABLE
FOR ACTUAL DAMAGES AND IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES AND LOSS OF
PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING IN ANY WAY
OUT OF THIS AGREEMENT, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
12. COPYRIGHT
Netegrity shall ensure that such copyright and proprietary rights notices
which are appropriate to adequately protect both Netegrity's and
Licensor's (including 3rd party licensors provided Licensor has provided
Netegrity with notice of such 3rd party licensors and copies of the
appropriate copyright notices) copyrights and proprietary rights in the
Program and Application Package are placed on all such copies and on other
written materials distributed therewith by Netegrity. Licensor agrees that
Netegrity shall be permitted, in Netegrity's reasonable judgment, to
substitute Netegrity's name for that of Licensor in such copyright and
proprietary rights notices, consistent with the preservation of each
party's proprietary rights in the Program and Application Package provided
however, that Netegrity shall include Licensor's copyright notice and any
third party Copyright or proprietary right notice which Licensor is
required by written agreement to include provided Licensor notifies
Netegrity in writing of such requirement on the initialization screen of
the Application Package and on the end user technical documentation
13. DEFAULT
13.1 An event of default by Netegrity shall occur hereunder if Netegrity fails
to perform or observe any material covenant, condition or agreement to be
performed or observed by Netegrity hereunder, including any obligation of
payment, or breaches any representation or warranty contained herein, and
such failure or breach continues unremedied for a period of thirty (30)
days after written notice from Licensor.
13.2 An event of default by Licensor shall occur hereunder if Licensor fails to
perform or observe any material covenant, condition or agreement to be
performed or observed by Licensor hereunder or breaches any representation
or warranty contained herein and such failure or breach continues
unremedied for a period of thirty (30) days after written notice from
Netegrity.
14. REMEDIES/TERMINATION
14.1 Upon an event of default by either party, the other party shall have the
right to terminate this Agreement by giving the defaulting party prior
written notice of its intention to terminate. Termination shall
automatically occur thirty (30) days after receipt by the defaulting party
of such written notice if the default has not been cured.
14.2 Notwithstanding any of the above, the following rights and obligations of
the respective parties shall survive termination under this Section 14:
11
(a) the representations, warranties and indemnities under Section 10
shall bind the parties and their legal representatives, successors,
heirs and assigns;
(b) licenses and sublicenses granted by Netegrity and its Distributors
to End Users pursuant to this Agreement prior to the date of
termination shall continue in effect;
(c) the testing, maintenance, customer support licenses granted for
Internal Use shall continue in effect;
(d) Netegrity and its Distributors shall be permitted, pursuant to the
license rights and obligations of Section 2 and the payment
obligations of Section 4 hereof, to grant sublicenses to End-Users
for the Application Package for written orders received prior to the
effective date of such termination, but in no event shall any right
to sublicense pursuant to this provision extend for more than six
(6) months beyond the effective date of termination;
(e) all provisions of this Agreement relating to either party's
proprietary rights or to confidentiality of information disclosed by
either party;
(f) the limitations of liability of Section 11; and
(g) For four years from the effective date of termination, Licensor's
obligation to provide the update and maintenance support described
in Schedule D, under annual maintenance agreements then in force,
provided that the End User(s) stay within version compliance of the
support terms detailed in Schedule D, and subject to Netegrity
paying the mutually agreed upon maintenance fee which is detailed
Schedule C.
14.3 Should Licensor [**] of Section 2 of Schedule D [**] and such failure
continues for thirty (30) days after receipt of written notice from
Netegrity to Licensor, then Licensor shall pay a penalty to Netegrity. The
amount of the penalty shall be equal to [**] dollars ($[**])[**],
commencing thirty one (31) days after receipt of notice, [**] (i) in the
event Netegrity provides refunds to the End User or Distributor, the
greater of (a) [**] dollars ($[**]) or (b) the amount Netegrity actually
refunds to the End User or Distributor, but in no event more
than [**]percent ([**]%) of the affected End User's or Distributor's
license fee and annual maintenance fee for the Application Package or (ii)
[**] dollars ($[**]) if no refunds are provided by Netegrity.
14.4 The rights and remedies set forth in this Section 14 are in addition to
any other rights or remedies which otherwise may be available, in law or
in equity.
15. TRADEMARKS AND MARKETING MATERIALS
15.1 Netegrity shall be permitted, at its option, to repackage, market and
distribute the Application Package and associated documentation under
either its own product name and trademarks, or under Licensor's trademarks
currently or hereafter associated with the Program. Prior to Netegrity's
use of any such trademarks of Licensor, however, Netegrity agrees to
notify Licensor in writing as to how such trademarks are to be used, for
Licensor's approval. Such approval by Licensor shall not be unreasonably
withheld.
15.2 Licensor hereby grants to Netegrity, and Netegrity accepts, a
non-exclusive, royalty-free license under Licensor's copyrights in
Licensor's written marketing materials to (and to permit Distributors to),
solely for use with the Application Package:
(a) translate, edit, reformat, rewrite and create derivative works of
the marketing materials;
(b) incorporate the marketing material, in whole or in part, into other
written materials prepared by or for Netegrity; and
12
(d) reproduce and distribute modified and original versions of the
marketing material from master media worldwide, in hard copy or in
an on-line format, and, if such marketing materials are in an
on-line format, allow Distributors and End-Users to make print
copies of the same. In the event Netegrity reproduces and
distributes the marketing materials in their entirety or simply
reformats the marketing materials Netegrity will include Licensor's
Copyright notice and product reference on such materials.
15.3 Licensor shall have no right to use Netegrity's trademarks, or trade
names, or to refer to Netegrity or any of its subsidiaries or End-Users in
connection with the Program or Application Package, or with its promotion
or publication without the prior written approval of Netegrity. Such
approval by Netegrity shall not be unreasonably withheld.
16. CONFIDENTIALITY
16.1 It is expected that the parties will disclose to each other certain
information which may be considered by the disclosing party to be
confidential information. Each party recognizes the other's claim to the
value and importance of the protection of the other's confidential
information. All confidential information owned solely by one party,
identified in writing as being confidential, and disclosed to the other
party shall remain solely the property of the disclosing party, and its
confidentiality shall be maintained and protected by the other party with
the same degree of care used to protect its own confidential information,
but in any event, not less than a reasonable degree of care. Except to the
extent required or permitted by this Agreement, both parties agree not to
duplicate in any manner the other's confidential information or to
disclose it to any third party or to any of their employees not having a
need to know for the purposes of this Agreement. Each party shall ensure
that those of its employees to whom such confidential information is
disclosed have first been bound by obligations of confidentiality to said
party. The parties further agree not to use each other's confidential
information for any purpose other than the implementation of this
Agreement. Notwithstanding any other terms contained herein, the parties
agree financial information, furnished in any manner by either party, are
and shall be treated as Licensor confidential information.
16.2 Confidential information may include, but is not limited to, trade
secrets, processes, formulae, specifications, programs, software, test
results, technical know-how, methods and procedures of operation, business
or marketing plans, customer lists, and proposals. Notwithstanding the
foregoing, confidential information shall not include information which:
(a) is or becomes a part of the public domain through no act or omission
of the receiving party; (b) was in the receiving party's lawful possession
prior to the disclosure and had not been subject to limitations on
disclosure; (c) is lawfully disclosed hereafter to the receiving party by
a third party who, to the receiving party's best knowledge, did not
acquire the information directly or indirectly from the disclosing party
and was otherwise not restricted as to disclosure; (d) was independently
developed by the receiving party, without use of the information disclosed
under this Agreement or (e) is required to be disclosed by law or
regulation.
17. CHANGE OF CONTROL
13
17.1 In the event Licensor intends to (a) sell its corporate entity, (b) sell
or assign its ownership rights to the Program or (c) sell all or
substantially all of Licensor's assets, Licensor will [**] during which
time [**], as applicable. [**] confidential information and shall not
disclose this information to any party except those employees, and legal
and financial advisors, with a need to know (each of which shall be
required to hold the information in strict confidence). The details [**]
shall be maintained as confidential information by Licensor and Licensor
shall not disclose this information to any party except its legal and
financial advisors. For the purpose of this Section 17.1, Licensor shall
be deemed to have triggered this provision upon one or more of the
following events in relation to a potential transaction: (i) Licensor
engages a banker, (ii) Licensor's Board of Directors authorizes Licensor's
management to initiate discussions with an interested party or (iii)
Licensor or agent of Licensor is proactively seeking solicitations.
17.2 In the event Licensor receives a written or verbal offer to (a) be
acquired, merged or otherwise change the ownership structure of its
corporate entity, (b) purchase or otherwise acquire any ownership rights
to the Program or (c) purchase all or substantially all of Licensor's
assets, Licensor shall [**]. Licensor shall [**]
18. AUDIT.
Licensor shall have the right to audit, not more than once in each
calendar year and during normal business hours and in a manner that does
not interfere with Netegrity's business activities, Netegrity's records
and accounts to the extent necessary to verify that no underpayment has
been made by Netegrity hereunder. Such audit shall be conducted by an
independent audit firm at Licensor 's own expense, provided that if any
discrepancy or error exceeding ten percent (10%) of the money actually due
is found through the audit, the cost of the audit shall be born by
Netegrity.
19. LOCALIZATION [**] REQUESTS.
19.1 Netegrity may request that Licensor provide foreign language versions of
the Program [**] based on the needs of Netegrity's potential end users or
distributors or based on Netegrity's geographic distribution plans. Licensor
will use reasonable commercial efforts to accommodate such requests within the
reasonable time frames specified by Netegrity. In the event the parties cannot
mutually agree on the performance [**], Netegrity shall [**]. Licensor agrees to
provide Netegrity with [**] related documentation.
19.2 [**] Netegrity in accordance with Section 19.1(a) or (b) above ("[**]"),
the parties will mutually agree on whether Netegrity will [**]. In the event
Netegrity [**], Licensor shall [**] for Netegrity, and the [**] hereunder. The
term [**] shall not include any [**] which term shall mean any [**]. In such
case, Licensor shall be responsible for [**], including retaining the
functionality provided by [**], for the remainder of the term of this Agreement.
Notwithstanding any provision in this Agreement to the contrary, in the event
Netegrity [**], Netegrity shall [**] which Netegrity [**] and Netegrity shall be
[**] provided, however, that Licensor shall [**] and Netegrity shall [**]Nothing
in this Agreement shall [**] the Program or a derivative work of the Program.
19.3 In the event Netegrity [**] in accordance with Section 19.2(b) above,
Netegrity shall [**] in accordance with Schedule C of this Agreement [**].
Notwithstanding anything this Agreement to the contrary, in the event Netegrity
[**].
The following definitions shall apply to this Section 19.3:
14
"[**]" shall mean an ePM [**] listed in Schedule E or any [**] at the time
Netegrity [**] under this Section 19.
"[**]" shall mean [**] Schedule A, Section 3(a)-(h).
In the event [**], Netegrity shall [**] to Netegrity hereunder for the [**]
Feature. For the sole purposes of calculating the royalty due under this Section
19, the [**] definition of the Application Package.
20. GENERAL
20.1 Netegrity shall have full freedom and flexibility in its marketing effort
for the sublicensing of the Application Package (including, without
limitation, whether to market or to discontinue marketing, its method of
marketing, terms and conditions and pricing). Netegrity makes no guarantee
or commitment hereby as to the success of such marketing effort, and
Licensor agrees that Netegrity has no obligation to Licensor whatsoever
other than as specifically provided in this Agreement.
20.2 Licensor will in all matters relating to this Agreement act as an
independent contractor. The relationship between Licensor and Netegrity is
that of licensor and licensee, respectively. Neither party will represent
that it has any authority to assume or create any obligation, express or
implied, on behalf of the other party, or to represent the other party as
agent, employee, or in any other capacity, except as specifically provided
herein.
20.3 This Agreement, along with Schedules A through G attached hereto and
hereby incorporated by reference, sets forth the entire Agreement between
the parties and supersedes prior proposals, agreements and representations
between them related to the licensing and maintenance of the Program and
Application Package, whether written or oral. No modifications or
amendments to this Agreement shall be binding upon the parties unless made
in writing and duly executed by authorized officials of Licensor and
Netegrity.
20.4 No action, regardless of form, arising out of the transactions under this
Agreement may be brought by Netegrity or Licensor more than two (2) years
after the cause of action has occurred.
20.5 Neither party shall assign any of its rights or obligations hereunder
without prior written consent of the other party, which shall not be
unreasonably withheld except Netegrity may assign this Agreement to (i) a
subsidiary or (ii) any person or entity which succeeds to the business of
Netegrity by merger, share exchange, or sale of all or substantially all
of the assets of Netegrity.
20.6 Either party's failure to exercise any right under this Agreement shall
not constitute a waiver of any other terms or conditions of this Agreement
with respect to any other subsequent breach, nor a waiver by such party of
its right at any time thereafter to require exact and strict compliance
with the terms of this Agreement.
20.7 Any notice required or permitted to be made or given to either party
hereto pursuant to this Agreement shall be delivered by hand, by courier
service, or by registered or certified mail (return receipt requested,
postage prepaid). Notices shall be addressed to the other party at its
address set forth on the first page of this Agreement, or to such other
address as it shall designate by written notice given to the other party,
and to the attention of the parties set forth below:
Netegrity: General Counsel
cc: Chief Financial Officer
Licensor: General Counsel
cc: Chief Financial Officer
15
Notice shall be effective: (a) as of the date personally delivered if by
hand or courier service; or (b) for notices sent by mail, on the earlier
of receipt or five (5) business days after the postmark date. Notices also
may be delivered by facsimile or other electronic means if possible (but
must be confirmed in writing as above) and notices so delivered shall be
effective upon actual receipt of the electronic transmission.
20.8 Licensor will not transfer the Program to Netegrity in violation of any
U.S. or foreign laws or regulations. In the event Licensor has an Export
Control Classification Number (ECCN) for the Program Licensor shall
provide Netegrity with the ECCN. The parties shall comply with applicable
federal, state and local laws, rules and executive orders as its pertains
to this Agreement and shall obtain and maintain all permits, licenses and
certificates required by any regulatory body for resale, distribution and
use of the Program. At Licensor's sole expense, Licensor shall provide
Netegrity with reasonable administrative support and information required
to comply with any applicable U.S. or Foreign laws or regulations
regarding the sale and distribution or the Application Package or Program.
20.9 Each party shall, at its own expense, at all times during the term of this
Agreement provide and maintain in effect those insurance policies and
minimum limits of coverage as designated below, and any other insurance
required by law in any state where the party provides services under this
Agreement, with insurance companies authorized to do business in the
jurisdiction where the work is to be performed. In no way do these minimum
requirements limit the liability assumed elsewhere in this Agreement,
including but not limited to each party's indemnity obligations.
- Workers' Compensation and Employer's Liability Insurance.
Workers' Compensation insurance shall be provided as required
by any applicable law or regulation and, in accordance with
the provisions of the laws of the nation, state, territory or
province having jurisdiction over Licensor's employees.
Employer's Liability insurance shall be provided in amounts
not less than $1,000,000.
- Commercial General Liability Insurance. Licensor shall carry
Commercial General Liability insurance covering all operations
by or on behalf of Licensor arising out of or connected with
this Agreement providing insurance for bodily injury, property
damage, personal injury and advertising injury, with limits of
not less than $1,000,000 each occurrence and $2,000,000 in the
aggregate.
- Errors and Omissions Liability Insurance (Professional
Liability). Licensor shall carry insurance Professional
Liability with limits of not less than $2,000,000 per
occurrence or per claim and $2,000,000 in the annual
aggregate.
20.10 This Agreement shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts whose courts (including Federal
Courts located therein) shall have exclusive jurisdiction to resolve any
dispute hereunder. Licensor hereby consents and submits itself to the
jurisdiction of such courts and does hereby waive, in concert with
Netegrity, its right to a jury trial for the resolution of any such
dispute. The parties agree that the United Nations Convention on Contracts
for the International Sale of Goods shall not apply to any of the
transactions contemplated by this Agreement.
16
20.11 If any provision of this Agreement is declared void, illegal or
unenforceable, the provision shall be deemed amended as necessary to
conform to applicable laws or regulations, or if it cannot be so amended
without materially altering the intention of the parties, the remainder of
the Agreement shall continue in full force and effect as if the offending
provision were not contained herein.
20.12 This Agreement and the provisions hereof shall be binding upon each of the
parties, their successors, heirs and permitted assigns.
20.13 In the event Licensor is prevented or delayed in performing any of its
material maintenance or support obligations [**] specified in Schedule E
under this Agreement [**] (excluding Quality Assurance personnel) to less
than[**] full time employees or the reduction of all Licensor's other [**]
(excluding Quality Assurance personnel) to less than [**] full time
employees due to war or terrorism, war, or military draft, and (i) in the
case of the support and maintenance obligations such delay continues for a
period of forty-five (45) days after written notice from Netegrity or (ii)
[**] such delay continues for ninety (90) days after written notice from
Netegrity. Netegrity shall [**] pursuant to Section 7 hereunder.
20.14 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and effective as of the day and year first above written.
NETEGRITY, INC. ("Netegrity") BUSINESS LAYERS, INC. ("Licensor")
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/▇▇▇▇▇ ▇▇▇▇
------------------------------ ------------------------------
(Signature) (Signature)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇
------------------------------ ------------------------------
Title: Chairman, President, & CEO Title: President & CEO
------------------------------ ------------------------------
17
SCHEDULE A
PROGRAM SPECIFICATIONS AND SYSTEM ENGINEER REQUIREMENTS
1. REFERENCE DOCUMENTS
The following manuals of the Licensor, that describe the functionality of the
Program, are incorporated herein by reference:
a) eProvision Software Manual
b) Document describing [**] integration per Schedule E.
c) API Guide
2. DEVELOPMENT OF PROGRAM
a) Licensor will assist Netegrity in the [**] of the Application
Package according to Schedule E.
b) Licensor will provide a [**], and other resources to support the
Netegrity Phase Review Process according to Schedule F.
3. DELIVERY OF PROGRAM
Licensor will deliver the version 3.0 of Program as of the effective date of the
Agreement. Version 3.0 will include the following components running within the
Operating Environment as specified in Schedule B:
a) eProvision Server software & components
b) eProvision [**]
c) eProvision [**]
d) [**], as specified in Schedule E, in addition all
future Licensor developed [**]
e) eProvision [**] sync server
f) eProvision [**] Reset server
g) [**]
h) eProvision [**]
Licensor will deliver the generally available production version of the [**] of
the Program on or before September 30, 2003. The [**] is a separate product with
no backward compatibility to the NT/2000. It is neither an upgrade nor Release
of version 3.0 (and related versions) but will be included within the definition
of the Program and available as at no additional license fee to End Users of
version 3.0 of the Program (under a maintenance agreement). The [**] will be
localization-ready, such that the Program is able to be localized into languages
that require double byte support. The [**] includes the following components
running within the Operating Environment as specified in Schedule B:
a) eProvision Server software & components
b) eProvision [**]
c) eProvision [**]
d) [**], as specified in Schedule E, in addition all
future Licensor developed [**]
e) eProvision [**] sync server*
f) eProvision [**] Reset server*
g) [**]
h) eProvision [**]
*[**] shall be supported as described in Schedule E ("[**] Support").
4. DOCUMENTATION
The Documentation to be provided for the Program shall be sufficiently detailed
to allow a reasonably skilled software engineer to integrate the Program with
the Netegrity application software to create an Application Package and
maintain, test and support the Program portion of the Application Package. The
Documentation shall describe the Program subroutines to which Netegrity must
develop an interface (the subroutine calls) in order to develop the Application
Package (see Addendum A for more detail). The Documentation shall reflect the
then-current Release of the Program. The Documentation shall not include
functionality not provided by the Program in the then-current Release.
Specifically, documentation will be delivered for all software itemized in
section 3 above.
Licensor shall provide any subsequent versions of these reference documents or
additional product, support, or training documentation produced by Licensor for
existing or future releases of the Program.
5. ACCEPTANCE TESTING
Licensor will develop a test plan and acceptance test for review and approval by
Netegrity, such approval not to be reasonably withheld and to be provided within
fourteen (14) calendar days of receipt. The test plan will describe how the
Program and Releases (including fixes and interim releases) will be tested prior
to delivery to Netegrity. The test plan shall include the [**] tests, [**]
tests, and [**] tests Licensor normally performs, so long as they are reasonably
inclusive. Licensor will test the Program as set forth in the test plan in order
to demonstrate compliance with the specifications set forth in Schedule E.
Licensor shall provide a "[**]" that contains the Program with interfaces. The
sample program shall demonstrate the operation of the Program functions (as
described in Part 2 above) and serve as an example of how to create the
interfaces (subroutine calls) to create an Application Package. Delivery of the
tested Program for review and acceptance by Netegrity, shall include tests and
test results where such acceptance will not be reasonably withheld.
6. EXPERIENCE AND TECHNICAL REQUIREMENTS FOR SYSTEM ENGINEER.
A System Engineer must be able to present the product at both a business and
technical level including being able to present the products [**] points ([**]
support etc.) and describe how it is integrated with Netegrity's product.
The candidate should have at least 1 year of experience supporting the Program
and must be able to install, configure and customize the Program in POC
situations.
SCHEDULE B OPERATING ENVIRONMENTS
Upon the request of Netegrity, Licensor will provide the Program for the
Operating Environments listed in this Schedule.
For the License Fees described in Schedule C, the Program shall be made
available to Netegrity for all Operating Environments on which it is made
available to any licensees of Licensor and this Schedule shall be deemed to
include same. The Program will initially be made available by Licensor for the
Operating Environments listed below. Subsequent versions for Operating
Environments will be provided in accordance with this Schedule B and Sections 3
and 6 of this Agreement at no additional charge to Netegrity.
OPERATING ENVIRONMENTS:
Licensor will minimally support the Operating Environment* listed below for
following versions of the Program:
1. eProvision 3.0 solution
a. This version will support eProvision Software version 3.0 on
b. Additionally the Operating Environment will require:
i. Crystal Reports (Then currently supported version)
ii. MS-SQL 2000
iii. LDAP Directory Server ([**])
c. ePM Server on Windows 2000 SP2 Member Server
2. eProvision [**] solution
a. This version will support both the eProvision [**] software
and all components listed in Schedule A, running on either
[**] or Windows 2000.
b. Additionally the Operating Environment will require:
i. [**]
ii. [**]
iii. [**]
iv. [**]
c. The ePM server will run independently on [**]
d. The ePM server will run independently on Windows 2000
e. The ePM Password Reset & Sync servers support will be as set
forth in Schedule E ([**] Support)
f. The ePM Password Reset & Sync servers will run independently
on Windows 2000
*The components of the Operating Environment will not be supplied by Licensor,
except for the eProvision Software (3.0 and [**]).
SCHEDULE C PAYMENTS
1. ROYALTY FEES
Royalty fees are due and payable by Netegrity to Licensor hereunder for the
Program based upon a percentage of the Net License Fees charged by Netegrity for
the Application Package. Notwithstanding anything in the Agreement to the
contrary, in the event Netegrity distributes the Program pursuant to Section 2.1
on a stand-alone basis, the royalty fee shall be based on the Net License Fee of
the Program. No royalty fee payments are due hereunder for the Program or the
Application Package used for Internal Use.
2. ROYALTY FEE CALCULATION FOR ORDERS OVER $[**]
For each order of the Application Package by an End User or Distributor from
Netegrity for which the Net License Fee is $[**] or more, Netegrity will pay
Licensor royalty fees on a quarterly basis, payments shall be due in accordance
with Section 4.2 of the Agreement, determined by the Cumulative Net License Fees
received by Netegrity. Cumulative Net License Fee shall mean the aggregate of
all Net License Fees (over or under $[**]) received by Netegrity from the
effective date of the Agreement for the sale of the Application Package or
Program through the end of the applicable calendar quarter. The Royalty
Percentage will be reduced only as of the date the Cumulative Net License Fee
threshold is met.
CUMULATIVE NET LICENSE FEES TO ROYALTY PERCENTAGE
NETEGRITY
--------------------------------- ------------------
$[**] - $[**] [**]%
$[**] - $[**] [**]%
$[**] - AND UP, with a minimum [**]%
average of quarterly Net License
Fees to Netegrity of $[**], as
specified below
For the first two quarters after Netegrity has received a minimum of $[**] in
Cumulative Net License Fees the royalty percentage shall be [**]%. Thereafter,
the royalty fee payable to Licensor shall be determined as follows:
After the end of each calendar quarter, Netegrity will calculate the average Net
License Fees for the prior four (4) calendar quarters.
If the average Net License Fees are $[**] or more, the royalty fee for the
immediately preceding calendar quarter will be [**]% of the Net License Fees.
If the average Net License Fees are less than $[**], the royalty fee for the
immediately preceding calendar quarter will be [**]% of the Net License Fees.
3. ROYALTY FEE FOR ORDERS LESS THAN $[**]
For each order of the Application Package by an End User or Distributor for
which the Net License Fee is less than $[**] Netegrity will pay the greater of
the royalty fee calculated in accordance with Section 2 above or a minimum
royalty fee ("Minimum Royalty Fee") calculated as follows:
- Option 1. [**]% of Licensor's then-current published list price for
the Program. For purpose of calculating the list price for this
Option 1 the Program includes: (a) the published Server price, (b)
the published price for the resources [**] as listed in Schedule E
or provided after the effective date of the Agreement, but does not
include (x) resources [**] (except as referred to below), End-Users,
Distributors, or third parties or (y) the price of the eProvision
[**] modules.
- OR
- Option 2. [**]% of Licensor's then-current published list price for
the Program. For purpose of calculating the list price for this
Option 2 the Program includes: (a) the published price for the
resources [**] as listed in Schedule E or provided after the
effective date of the Agreement, but does not include (x) resources
[**] (except as referred to below), End-Users, Distributors, or
third parties, or (y) the then-current published Server price or (z)
the price of the eProvision [**] modules.
- Netegrity shall have the right to choose Option 1 or Option 2 when
paying the initial Royalty Fee under this Section 2. During the
first year of this Agreement Netegrity may change the calculation to
either Option 1 or Option 2 no more than two times. For each
subsequent year of the Term, Netegrity shall choose either Option 1
or Option 2 in the first quarter of the year and such option shall
be used for the remainder of that particular year.
- Notwithstanding anything in this provision to the contrary, for the
purpose of calculating the royalty fee due under this Section 3 for
orders of the [**] the Licensor's published list price for the
module [**] or in the event Licensor does not have a separate
published list price for the [**] the royalty fee will be calculated
under Section 2 of this Schedule C.
For the purpose of performing this calculation the maximum list price to be used
at any time shall not exceed Licensor's list price as of the effective date of
this Agreement, a copy of which is attached hereto as Exhibit G.
4. CALCULATION OF NET LICENSE FEES BASED ON DISCOUNTS TO END USERS
In the event Netegrity licenses the Application Package directly to an End User
for a license fee which is less than Netegrity's standard End User list price
for the Application Package, the Net License Fee for that license (the
"Discounted License") will be calculated as follows:
a. Netegrity shall determine the weighted average discount. The weighted
average discount is calculated as the total discounted net license fees
divided by the total list price for the Application Package and any other
Netegrity software product provided to an End User over a [**] period
("Weighted Average Discount"). For example, if the End User made one
purchase where the total list price was $[**] and the total discounted net
license fee was $[**], and then made a subsequent purchase, [**], where
the total list price was $[**] and the total discounted
net license fee was $[**], then the Weighted Average Discount would be
based on a total list price of $[**] and a total discounted net license
fee of $[**], or a [**]% Weighted Average Discount.
b. The [**] period will be calculated from [**] prior to the date of the
Discounted License to [**] after the date of the Discounted License.
c. The Weighted Average Discount will be applied to Netegrity's standard list
price for the Application Package in order to determine the Net License
Fee for that license.
d. Notwithstanding any payment provisions herein to the contrary, the royalty
fee for that license will be due from Netegrity to Licensor on a quarterly
basis and any adjustments based on future discounts will be applied in the
subsequent quarter.
5. QUARTERLY MINIMUM ROYALTY FEES
Netegrity will make quarterly minimum royalty fee payments to Licensor which
shall be credited towards the actual royalty fees due during the term of this
Agreement.
The quarterly minimum royalty fees and payment schedule for 2003 are set forth
below.
Quarterly Minimum Royalty Fees Quarter End Date
------------------------------ ----------------
$[**] 15 days after effective date of this
Agreement
$[**] June 30, 2003
$[**] September 30, 2003
$[**] December 31, 2003
Payment of the quarterly minimum royalty fee shall be due net thirty (30)
days from the end of the Calendar Quarter.
If Licensor has not delivered to Netegrity the production version of the
[**] Program as defined in Schedule A, on or before [**], the quarterly
minimum royalty fee payments which are due under this Section 4 will be
reduced proportionally based on the number of days the release is delayed
calculated from [**]. For example, if Licensor does not release the
production version of the [**] Program until October 31, 2003 the
following adjustment to the quarterly minimum royalty fee shall occur. In
this case, the release would be 31 days late and there is a total of 92
days from October 1st through the end of the quarter, December 31st. Hence
the January 31 quarterly minimum royalty of $[**] shall be reduced by
[**]% (31 divided by 92) to $[**]. In addition to the other rights set
forth in the Agreement, in the event delivery of the [**] Program is past
due and a quarterly minimum royalty fee payment is due, Netegrity shall be
entitled to withhold the quarterly minimum royalty fee payments until such
time as Licensor has delivered the [**] Program. The foregoing shall not
apply to actual Royalty Fees due.
The second year aggregate quarterly minimum royalty fee will be $[**],
($[**] quarterly) or [**]% of the actual royalty fees paid to Licensor
during the first year, whichever is greater and shall be due quarterly
commencing on March 31, 2004 and payment shall be due net thirty days.
The third year aggregate quarterly minimum royalty fees will be [**]% of
the previous year's minimum royalty fee or [**]% of the previous year's
actual royalty fee, whichever is greater; provided however, that the
minimum royalty fee for year 2 and 3 shall be capped at $[**] per year.
Notwithstanding anything in this Agreement to the contrary, the minimum
royalty fees for the final three (3) months of the term will be $[**].
6. MARKETING FUNDS
After the initial 12 months of the Agreement, Business Layers shall
reimburse Netegrity up to $[**] per quarter, for direct expenses incurred
in marketing the Application Package, against reasonable proof of incurred
expenses. Payment shall be due within thirty (30) days of the end of the
applicable quarter. In the event payment is past due, Netegrity shall have
the right to withhold the payment amount due from subsequent minimum
royalty fees.
7. SUPPORT/UPDATE FEES
In exchange for the level three support and upgrades, as further detailed
in Schedule D, Netegrity will pay Licensor a support fee equal to [**]% of
the maintenance revenue received by Netegrity for support and maintenance
of the Application Package.
SCHEDULE D UPDATES AND MAINTENANCE
1. UPDATES
Licensor shall ensure that the Program is maintained such that the Program
interfaces are 1) functionally equivalent between version 3.0 and the first [**]
release, 2) compatible with the current and immediately preceding Release
necessary for the continued operation of the Program within the Application
Package for future releases, or 3) any Program interfaces that will be changed
will be approved by Netegrity, where such approval will be provided within 14
days and will not be reasonably with held and any Program interfaces removed
will be deprecated one (1) major prior to being removed. The foregoing shall not
apply where (i) releases of related software (i.e. operating system) preclude
compatibility, and are either not within Licensor control or Program interface
changes are mutually agreeable, or (ii) Enhancements or Improvements made to the
Operating Environment make extension of existing interfaces impractical and,
thus, new interfaces are required. At a minimum, Licensor shall provide support
for the current version and previous version of the Program.
All Releases of the Program implemented by Licensor shall be made available to
Netegrity no later than the date made available by Licensor to other licensees
of Licensor utilizing the Program. Licensor shall notify Netegrity of beta-tests
of the Program and allow Netegrity, at Netegrity's option, to beta-test each new
Release of the Program. Each Release shall contain all error corrections
previously made by Licensor and/or new enhancements, improvements and
modifications to the Program. Licensor shall, with each Release, provide
Netegrity with a list of all known outstanding verified errors and include a
summary of all changes made to the Program. All new Releases of the Program
shall be tested in accordance with Section 3 hereunder and shall materially
perform in accordance with the specifications set forth in Schedule A and E.
Licensor will provide its standard and available Upgrade and migration tools,
utilities, documentation and training, consistent with the terms of this
Agreement, for each subsequent release of their software.
Upgrades: Licensor shall provide, at no additional fee, all future Releases of
the Program as defined in Schedule A, the enhancements in Schedule E, and all
additional features or components provided by the Licensor to their End-Users
under maintenance and support agreements.
2. MAINTENANCE
For the maintenance fee specified in Schedule C, Licensor shall provide the
maintenance support described in this Schedule D.
Netegrity shall provide Level 1 Support and Level 2 Support as defined below to
all End-Users. Licensor shall provide Level 3 Support.
- "Level 1 Support" includes receipt of End User calls regarding
Errors, maintenance verification, and screening.
- "Level 2 Support" includes efforts to reproduce and Resolve an
Error, Resolution of which does not require source code
modification.
- "Level 3 Support" includes efforts to reproduce and Resolve an
Error, Resolution of which may require source code modification,
including but not limited to remote support through telephone,
e-mail, facsimile and/or other reliable means of communication.
Prior to forwarding an error to Licensor, Netegrity shall perform the following
tasks:
1. Search Netegrity and Licensor's Knowledge Base and historical
support cases;
2. Check existing technical notes and error reports issued by Licensor;
3. Analyze all applicable Program error logs provided Licensor provides
documentation to access and analyze those logs;
4. Identify and isolate problem as being within the Program;
5. Consult Netegrity subject matter experts on the Application Package;
6. Make reasonable commercial efforts to reproduce the problem on
Netegrity internal systems. In the event Netegrity is not be able to
reproduce the problem, Netegrity will provide Licensor reasonable
access to the End-User sufficient to reproduce the problem.
7. Obtain customer and Program files prior to escalation.
Licensor agrees to correct all reproducible errors, defects and malfunctions in
the Program that are identified, classified and reported by Netegrity as
follows:
Error Class Criteria
----------- --------
P1, Fatal or Severe Impact System hangs or crashes, or production is
not possible without use of the Program; or
Problem causes severe production impact,
and/or workaround (if available) is not
reasonably acceptable by the End User.
P2, Degraded Operations Errors disabling only certain functions that
are not severe, but cause customer
dissatisfaction and for which a reasonably
acceptable workaround to the End User
exists.
P3, Minimal Impact All other errors.
2.2 Upon Licensor's receipt of an error report from Netegrity's designated
support personnel, Licensor shall make reasonable efforts to take
corrective action to remedy the reported error within the following time
schedule:
REMEDY LEVELS (DEFINED BELOW)
---------------------------------------------------------------
ERROR CLASS 1ST LEVEL 2ND LEVEL FINAL LEVEL
----------- --------- --------- -----------
P1 1 hour* Constant effort until relief Within 30 days
provided
P2 24 hours* 8 days Within 90 days
P3 5 days* -------- At Licensor's
option.
- Netegrity's Level 2 Support Engineer shall support Licensor through
each Remedy Level. Licensor will maintain 2 to 4 live installations
of the IdentityMinder and Application Package
only for the purposes or meeting their obligations under this
agreement and not for production use. Netegrity will provide
training to Business Layers for up to 6 engineers on the Application
Package and IdentityMinder provided Licensor covers all expenses
associated with travel. Additional training will be available at
[**]% of Netegrity's then current list price provided Licensor
covers all travel and expenses to attend sessions.
- If call is received during 9:00 a.m.-5:00 p.m., Licensor's local
time, Monday through Friday, excluding holidays; otherwise, times
commence next business day. Licensor will provide 24x7, 365 days a
year coverage by a Level 1 Engineer for P1 error classes. Licensor
will then escalate the issue to Level 2 or Level 3 as required to
meet timelines.
- The Licensor provided 24x7 support coverage will only be utilized by
on behalf of Netegrity's customers who have contract terms providing
24x7 coverage on Priority 1 tickets. In the event of a P1 ticket
Licensor shall escalate such ticket to its most senior individual
until the ticket is resolved.
The required Licensor action for each error classification at each remedy
level specified above is as follows:
1st Level: Acknowledgment of receipt of error report with written
confirmation delivered to Netegrity during the next business
day.
2nd Level: Temporary fix - a modification or workaround which allows the
user to bypass the error, but may not be in a form suitable
for general distribution to all of Licensor's licensees.
Final Level: Official fix - a new Release which fulfills the requirements
of Section 2.3 below and is in a form suitable for general
distribution to all of Licensor's licensees.
2.3 For Final Level remedies, Licensor shall conduct tests and performance
measurements on the finally corrected Program to sufficiently demonstrate
that Licensor has remedied each error reported to it and that with such
corrections the Program continues to meet the applicable functional and
performance requirements.
2.4 Within thirty (30) days of Netegrity's receipt of all corrections
performed under this Section 2, Netegrity shall either accept or reject
same, by providing written notice to Licensor. In the event of rejection,
Netegrity's written notice shall specify all errors. Within thirty (30)
days of receipt of such written report or the remaining schedule period
for the relevant level (whichever is longer), Licensor shall correct,
modify or otherwise change the Program to correct any and all such
reported deficiencies.
2.5 All corrections under this Section 2 shall be furnished with sufficient
information and instructions to enable Netegrity employees to install and
fully understand the corrections. Licensor shall also supply to Netegrity
updated Documentation, consistent with the requirements of Section 3.4 of
the Agreement specifying any and all changes which have been made to the
Program in order to correct such deficiencies.
2.6 Licensor shall provide Netegrity with a weekly report of all outstanding
Netegrity (and other licensee) reported deficiencies of the Program,
including the current status and the expected resolution dates. Such
report shall also include common problems reported by other licensees and
the known solutions available.
2.7 Licensor shall provide the maintenance service described in this Section 2
of Schedule D on the latest Release, and the immediately prior Release of
the Program. Licensor shall provide such maintenance on the current
Release and up to one full major prior release. On the prior release
licensor will not provide enhancements or Patch fixes but will provide bug
fixes and resolution to P1 problems.
2.8 In the event Licensor is required to go on-site to provide maintenance
support for non P1 or P2 issues, Netegrity shall reimburse Licensor on a
time and materials basis of $[**] a day plus reasonable travel expenses in
accordance with Netegrity's travel policy.
SCHEDULE E
Licensor Product Enhancements
PRODUCT ENHANCEMENTS
1. Licensor will provide [**] and related activity data. Licensor will
[**]. Specifically, [**]:
a) When the [**].
b) When the [**].
c) When the [**].
d) When the [**].
2. Licensor [**]: The [**], which will in turn [**]. The [**], and in
[**]. These [**] include the following:
a. [**]
- [**]-use [**].
- [**]-use [**].
b. [**]
- [**]-use [**].
- [**]-use [**].
- [**]-[**] from/to [**].
- [**]-[**] of the [**].
c. [**]
- [**]-[**] in the [**].
d. [**]
- [**]-use [**].
- [**]-use [**].
3. Licensor will [**]. These are [**].
DOCUMENTATION
- [**]: Specifying [**]. This is currently covered in the [**].
- [**]: Licensor will [**].
- [**]: Licensor will provide Netegrity [**]
Licensor will make [**].
- These documents will form the basis [**].
In addition, Licensor will provide Netegrity [**]
SUPPORT:
To facilitate best practices and training for customer support and for
engineering support, Licensor & Netegrity will deploy the following strategies:
- [**] Support:
- Licensor will [**]. This should include [**].
- [**]: Licensor will supply [**].
- [**]: Licensor can provide [**].
- [**] Support: Licensor will provide [**].
- [**]: Licensor will supply [**].
- [**]: Licensor can provide [**].
[**]: [**]. See the document entitled [**] for more details.
It is assumed that [**].
- [**]: The parties will mutually agree on the specific requirements
of this provision.
- [**]. See the document entitled [**] for more details. It is assumed
that the [**].
- [**]. See the document entitled [**] for more details. It is assumed
that the [**].
[**]: Netegrity will [**]. This will be [**].
[**] Support:
Licensor shall provide the [**] and Licensor shall provide [**].
Nothing in this provision shall change the obligations [**].
- [**]The parties will cooperate [**].
[**]
1. Licensor and Netegrity will [**]. Licensor will make available [**].
Netegrity shall provide [**]. Licensor will provide [**] Netegrity
shall [**]. Netegrity shall have [**].
2. Licensor will provide functional and system testing of the Licensor
provided technology at the system and component level.
3. Licensor will provide Netegrity [**] provided Licensor [**].
4. Licensor will provide [**] on the following page:
SCHEDULE F PHASE REVIEW PROCESS
[**] PLANNING
Licensor will [**] process of each release of the Program, including the
following:
ePM LIST
Update Date: Nov 2002
EPM NAME EPM VER EPM TYPE INSTALL METHOD TARGET SYSTEM VERSION
-------- ------- -------- -------------- ---------------------
**Confidential Materials omitted and filed separately with the
Securities and Exchange Commission**
1. The [**] for those requirements.
2. The Licensor will [**] Licensor.
3. The Licensor will [**].
Licensor will [**]. Minimally this will include:
1. [**] from the Licensor [**].
2. Licensor shall [**] to Licensor. Licensor shall provide [**]. For
reference only [**].
3. Licensor shall [**] the tasks covered by Paragraphs 1 and 2 above.
PHASE EXIT CHECKLISTS
Summary of Phases:[**]
[**]
SCHEDULE G
Business Layers Price List
eProvision Pricing:
B C D E F G H I
--- --- --- --- --- --- --- ---
ePROVISIONING PRICING SHEET
Cost
License fees:
**Confidential Materials omitted and filed separately
with the Securities and Exchange Commission.**
Maintenance fees:
eProvision Pricing Example:
B C D E F G H I
--- --- --- --- --- --- --- ---
ePROVISIONING PRICING SHEET
Cost
License fees:
**Confidential Materials omitted and filed separately
with the Securities and Exchange Commission.**
Maintenance fees:
AMENDMENT 1
TO THE
SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT
This Amendment 1 is made this 26th day of March, 2003 ("Effective Date") to the
Software License and Distribution Agreement dated January 16, 2003,
("Agreement") by and between Netegrity, Inc., a Delaware corporation with its
principal place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ as
licensee ("Netegrity") and Business Layers, Inc., a Delaware corporation with
its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ("Business Layers").
RECITALS
WHEREAS, the parties have entered into the Agreement and now wish to amend
the Agreement to make such changes as are specifically covered herein.
NOW, THEREFORE, for good and valuable consideration, and in consideration
of the mutual covenants and conditions herein set forth, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
Section 1 of the Agreement (Definitions) is hereby amended to include the
following definitions:
"OEM Agreement" means the software license and distribution agreement between
Licensor and [**] under which Licensor has the right to sublicense and
distribute the [**] Software.
"[**] Software" means the [**] software components which
Licensor licenses from [**] under the OEM Agreement and any modifications or
updates thereto which are embedded in, combined with or licensed in association
with the Program, including but not limited to the [**] software component
embedded in Licensor's eProvision [**] and eProvision [**].
Section 2.5 of the Agreement (Grant) is hereby amended by adding the following
language to the end of the paragraph:
The parties hereby acknowledge that, provided Licensor fulfills all of its
obligations under this Amendment 1, the terms of this Amendment 1 satisfy
Licensor's obligations under this Section 2.5 of the Agreement.
Section 7 of the Agreement (Source Code Escrow) is hereby amended to add the
following new provisions 7.6 and 7.7:
7.6 Licensor hereby represents and warrants that as of the effective date of
this Amendment it has entered into a valid, written agreement with [**] under
which Licensor has the following minimum source code provisions:
a. During the Term of the OEM Agreement, [**] shall deposit and
maintain fully documented copies of the [**] Software source code and all its
components thereof, including all future modifications or updates, promptly with
DSI Inc.
b. DSI will [**]:
(i) [**] for any reason, [**];
(ii) [**] to provide maintenance or support for the [**] Software
during the period [**], in which case [**] to provide this support for existing
Customers of Business Layers (including its affiliates and Distributors) during
this period; or
(iii) [**] to perform any material support or maintenance
obligation, according to the performance obligations under the OEM Agreement,
[**].
In the event [**] in accordance with this provision, [**] for the purpose of
meeting its obligations under this Agreement.
Section 7.7
In the event of any of the following:
a. a cessation by Licensor, for any reason, to do business; or
b. the institution of any bankruptcy, receivership, insolvency,
dissolution, liquidation, or other similar proceedings by or against Licensor
under any Federal or State law and, if against Licensor, such proceedings shall
not be dismissed within ninety (90) days of institution, subject to any such
proceedings preventing Licensor from performing its maintenance and support or
development obligations under this Agreement,
then, subject to Netegrity agreeing to be bound by the terms and conditions of
the OEM Agreement, all rights which have been granted to Licsensor under the OEM
Agreement shall automatically be assigned to Netegrity until the expiration date
of this Agreement or the OEM Agreement, whichever is sooner, and any Royalty
Fees which Netegrity is obligated to pay to Licensor under this Agreement shall
be [**] under the assigned OEM Agreement.
Except as specifically amended above, the Agreement shall remain in full force
and effect in the original form agreed by the Parties, and is hereby ratified
and confirmed.
This Amendment 1 may be executed and delivered in counterparts, each of which
shall constitute an original, and all of which together shall constitute one
Amendment. A facsimile, telecopy or other reproduction of this Amendment may be
executed by each Party, and an executed copy of this Amendment may be delivered
by each Party by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such Party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes.
IN WITNESS WHEREOF, the Parties have executed this Amendment No. 1 on the
date first written above.
BUSINESS LAYERS, INC:
Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: CFO
--------------------------------
NETEGRITY, INC.:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Title: CFO
--------------------------------