EXHIBIT 10.8
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
THIS OEM LICENSE AGREEMENT ("AGREEMENT") IS MADE AS OF THE EFFECTIVE DATE NOTED
BELOW ON THE SIGNATURE PAGE, EXECUTED BY AND BETWEEN CERTICOM CORP.
("CERTICOM"), A YUKON TERRITORY CORPORATION, AND DIVERSINET CORP., AN ONTARIO
COMPANY ("LICENSEE"). CERTICOM CONTRACT #: DIV.011102.001
STANDARD TERMS AND CONDITIONS FOR CERTICOM OEM LICENSE AGREEMENT- rev 2.20.02
1. LICENSE. This agreement consists of the following items (collectively,
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the "Agreement"): information sheets, these Terms and Conditions, and any
exhibits, attachments, or schedules referenced in this Agreement and attached
hereto. These Terms and Conditions are subject to the specific deal terms
contained on the referenced and attached exhibits ("Information Sheets"). In the
event of a conflict between the Information Sheets and these Terms and
Conditions, the Information Sheets will control.
(a) Materials. The "Materials" consist of all software products, and
special documentation listed in "Exhibit B- Products and Deliverables", as well
as any standard documentation distributed along with such software. A software
item listed on Exhibit B- Products and Deliverables may be generically referred
to in this Agreement as a "Licensed Product", or collectively, as "Licensed
Products."
(i) Limited License Grant (Internal Development). Certicom grants Licensee a
world-wide (subject to applicable government export regulations),
non-exclusive, non-transferable license to use, and to make a reasonable
number of copies of, the software products listed on the Exhibit B-
Products and Deliverables ("Software"), in object code format, solely in
order to create Licensee Applications.
(ii) Limited License Grant (Distribution). Certicom grants Licensee a world-wide
(subject to applicable government export regulations), non-exclusive,
non-transferable right to reproduce, distribute and use object code of the
following portions of the Software: libraries, sample code, and any other
items specifically designated as "runtime" in the Software ("Runtime") as
embedded in Licensee Applications. As part of such license, and subject to
the applicable terms, conditions, and restrictions in this Agreement,
Licensee may: (A) sublicense to its Distributors (as defined in Exhibit D)
the right to reproduce and distribute the Runtime (solely as embedded into
the Licensee Application); and, (B) sublicense to Customers (as defined in
Exhibit D) the right to use the Runtime.
(iii) As a condition of the license grants in 1(a)(i) & 1(a)(ii), above,
Licensee agrees to: (A) distribute (either directly or through
Distributors) the Runtime in object code form only, and only as integrated
into Licensee Applications; (B) provide in its agreements with users of
Licensee Applications that the user not use the Runtime except as
integrated into Licensee Applications; (C) indemnify, defend and hold
harmless Certicom, its directors, officers, and employees from and against
any claim, demand, cause of action, loss, damage, liability suit,
proceeding, judgment, or cost (excluding attorney fees), brought against
Certicom which is based on the creation, use or distribution of Licensee
Applications to the extent that such suit or proceeding does not arise or
result from: (i) Certicom's material breach of any agreement, obligation,
representation, warranty or covenant contained in this Agreement; (ii) any
wrongful, negligent action or failure to act by Certicom, its employees,
agents or independent contractors; or, (iii) any liability for which
Certicom is obligated to indemnify Licensee under Terms and Conditions
Section 9; and, (D) not permit further distribution of the Runtime by
Licensee's Customers except as authorised in this Agreement.
(b) Notices: Licensee must, and is hereby granted the right to, reproduce in
any Licensee Application (or its documentation), without modification as to
their meaning, all proprietary trademark, patent and copyright notices present
in the Materials (hereafter, "Certicom Notices").
(c) Delivery: Certicom agrees to deliver the Materials according to the
terms set forth on the Information Sheets or in an applicable Statement of Work.
If no such delivery terms are set forth and Certicom has not previously
delivered the Materials to Licensee under an executed evaluation agreement, then
delivery of the Materials will take place within four (4) Business Days after
the Effective Date. Delivery of Licensed Products may be subject to applicable
governmental approvals.
2. OWNERSHIP, TRADE SECRETS, PROTECTION.
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(a) All title and ownership in and to the Licensed Products, Certicom
trademarks, and the Certicom-supplied portions of items contained in the Terms
and Conditions Section 12 of this Agreement, including all intellectual property
rights such as copyright, trade secrets, patents and trade-marks, service marks,
shall at all times remain with Certicom and its licensors as appropriate.
Licensee will include in its license agreements and distribution agreements for
Licensee Applications provisions no less restrictive or protective of Certicom
than those specified in Terms and Conditions Sections 1(a)(iii)(B),
1(a)(iii)(D), 2, 3, and 8 as applicable. Should Licensee offer any warranties to
third parties on behalf of the Licensee Application, Licensee must be solely
responsible for these warranties.
(b) Licensee agrees that the techniques, algorithms, ideas, concepts, code,
and processes contained in the Materials constitute Certicom's trade secrets and
are subject to confidentiality protection. As such, Licensee agrees not to
reverse engineer, disassemble or decompile, or otherwise attempt to derive the
source code for, or perform cryptographic analysis upon, any Licensed Products
to the extent this restriction is permitted by law. To the extent the following
prohibition is permitted by law, Licensee is prohibited from creating any
Licensee
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
Application which gives third party proprietary software direct access to any of
the following items within the Licensed Products: (i) supported API(s); (ii)
security and authentication functionalities; or, (iii) any undocumented internal
functionality. By way of example and not for purposes of limiting the scope of
such restriction, a Licensee Application which permits a third party software
application to make calls directly to a listed item would be prohibited as
'giving direct access' under the terms of such restriction.
Licensee agrees to take all reasonable measures to keep confidential the
Materials, and protect Certicom's (and its licensor's) rights in the Materials
(including, for purposes of this Section, additional hardware, software or
information provided under Exhibit C. Licensee agrees not to disclose the
confidential portions of the Materials to anyone, or copy them, except as
permitted under this Agreement and except as follows: (a) to employees,
advisors, financing parties or contractors who are under an obligation of
confidentiality to the extent reasonably necessary to conduct business; (b) to
the extent that Material become publicly known through no fault of Licensee; (c)
to the extent Licensee is required to comply with any valid law, regulation,
statute, or order so long as Certicom receives reasonable advance notice of such
potential disclosure; and (d) to the extent required by Licensee to enforce,
establish, or interpret any right or duty at law or equity with respect to this
Agreement.
As used in this Section, the phrase "confidential portions of the Materials"
specifically does not include the Runtime elements solely to the extent that
such elements are distributed in accordance with the terms of Terms and
Conditions Section 1.
3. COMPLIANCE WITH LAWS. Licensee must comply with all applicable export,
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import, or other relevant laws of any applicable jurisdiction. Determination of
the applicable law is Licensee's responsibility. Licensee understands that the
Software is cryptographic in nature and therefore the Materials are highly
regulated. Licensee is strictly prohibited from exporting, re-exporting or
importing the Materials (after initial delivery by Certicom to Licensee),
regardless of method (including, for example and not by limitation by use of
physical delivery, e-mail, or download from FTP or website, etc.), without first
complying with all applicable government use, import, or export laws, rules,
regulations, orders, and obtaining any necessary approvals or permits. Obtaining
any necessary export or import approval for Licensee Applications and/or the
Materials (after initial delivery of the Materials by Certicom to Licensee) is
the sole responsibility of Licensee. For purposes of use of the Materials by
the U.S. Government, the Materials are provided as Commercial Computer Software
and Commercial Computer Software Documentation, and use, duplication and
disclosure by the U.S. Government is subject to the requirements set forth in
FAR ▇▇-▇▇▇-▇▇ "Commercial Computer Software - Restricted Rights" and its
successors in effect for all solicitations and resulting contract issued on or
after May 18, 1997, FAR 12.212(a) (Oct. 2000), FAR 52.227-19 (Jun. 1987), or FAR
52.227-14 (JUN 1987), DFARS 227.7202 (Oct. 1998), "Commercial Computer Software
and Commercial Computer Software Documentation", and DFARS 252.227-7013(c) (Nov.
1995), and any future amendments or successor regulations, as applicable. For
purposes of this Section manufacturer of the Materials is Certicom Corp., ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, (v) 905.507.4220, (f)
905.507.4230.
4. FEES. Licensee must pay to Certicom the particular fees (including any
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Special Terms) set forth in Exhibit A. Interest will accrue on all overdue
amounts on the first late date at a rate equal to the lesser of (i) 18% per year
or (ii) the highest rate allowed by law. If a normal part of its purchasing
system, Licensee agrees to return a Purchase Order (hereafter, "P. O."), along
with the executed copy of this Agreement. Any P.O. must be consistent with the
material terms of this Agreement (particularly with respect to the fee and
payment terms in this Section and the Information Sheets). Unless expressly
noted otherwise, all fees are non-refundable. All payments hereunder must be
made in lawful United States currency, and will be paid by Licensee to the
attention of Software Licensing at Certicom's address set forth below.
5. TAXES. In addition to the fees payable by Licensee to Certicom, all
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taxes, duties or other charges of any kind resulting from this Agreement will be
the responsibility of Licensee. If any withholding tax or similar charge is
applicable to the fees paid by Licensee to Certicom, Licensee will pay such
additional amount such that Certicom would receive the total amount of the fees
it would have been paid but for such tax or levy. However, Licensee shall not
be liable for any taxes based on Certicom's net income.
6. BOOKS AND RECORDS, AUDIT. For each year until termination of this
---------------------------
Agreement, Licensee agrees to maintain, until four (4) years after such year,
complete books, records, documents and accounts relevant to computation and
accounting for amounts payable under this Agreement. Certicom will have the
right, at its sole discretion, cost and expense, to have an independent
reputable expert conduct, during normal business hours and not more frequently
than yearly, an audit of the appropriate records of Licensee to verify
compliance under this Agreement. Certicom must provide Licensee with at least
ten (10) days advance written notice. The auditor will be bound to keep
confidential the details of Licensee's business affairs and to limit disclosure
of the results of any audit to details of Licensee's compliance with the terms
of this Agreement,
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
and the sufficiency of the accounts and the amount (if any) of a payment
adjustment that should be made. Certicom agrees to take all reasonable measures
to keep confidential any information so disclosed to it by the auditor, and to
protect Licensee's rights in such information. Certicom agrees not to disclose
any such information received by it from the auditor to anyone, or to copy it
except as follows: (a) to employees, advisors, financing parties or contractors
who are under an obligation of confidentiality to the extent reasonably
necessary to conduct business; (b) to the extent that information become
publicly known through no fault of Certicom; (c) to the extent Certicom is
required to comply with any valid law, regulation, statute, or order so long as
Licensee receives reasonable advance notice of such potential disclosure; and
(d) to the extent required by Certicom to enforce, establish, or interpret any
right or duty at law or equity with respect to this Agreement. If such amounts
are found to be different than those reported, or the royalty fees accrued are
different than those reported, Licensee will be invoiced or credited for the
difference, as applicable. Any deficiency in royalties, including interest, will
be payable within thirty (30) days of such invoice. If the deficiency in
royalties paid by Licensee is the greater of; (i) more than five percent (5%) of
the royalties reported by Licensee for that quarter; or (ii) US$5,000.00.
Licensee must pay the reasonable expenses associated with such audit, to a
maximum audit fee and expenses of $10,000, in addition to the deficiency. In
addition, Certicom will have the right, for the next four (4) consecutive
calendar quarters, to exercise its audit rights on a quarterly basis.
Late royalty payments of any kind are subject to the accrual of interest as
described in Terms and Conditions Section 4.
7. LIMITED WARRANTY. Certicom represents and warrants to Licensee and
-----------------
acknowledges that Licensee has relied upon the completeness and accuracy of such
representation and warranty as expressly stated in this Section 7 in entering
into this Agreement, that for a period of thirty (30) days from the first date
that it delivers to Licensee the Materials that (a) the Licensed Product(s) will
operate in conformity with the material specifications for such item; (b) will
be free from material defects; and (c) the media, if any, on which the Software
is furnished will be free from material defects in materials and faulty
workmanship under normal use. Certicom's sole liability and Licensee's exclusive
remedy for any failure to meet these warranties will be limited to repair or
replacement of the defective Materials at Certicom's option and expense.
Certicom further represents, and warrants to Licensee as follows and
acknowledges that Licensee has relied upon the completeness and accuracy of such
representations and warranties in entering into this Agreement:
(a) Certicom shall ensure that it has all required licenses, consents,
approvals and permits from any person necessary to perform its obligations
under this Agreement and Certicom will otherwise comply with all statutes,
laws, rules, regulations and industry standards existing in Canada with
respect to the performance by Certicom of its obligations under this
Agreement;
8. WARRANTY DISCLAIMER. Except as provided in Terms and Conditions Section
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7, Certicom transfers the Materials to Licensee on an "as is" basis. The
warranties in Terms and Conditions Section 7 are in lieu of all other warranties
or conditions, and Certicom makes no other warranty, condition or representation
of any kind whether express or implied, and Certicom expressly disclaims the
implied warranties or conditions of merchantability, merchantable quality,
fitness for a particular purpose, infringement and those arising by statute or
otherwise in law or from the course of dealing or usage of trade. Certicom does
not represent or warrant that the Materials will meet any or all of Licensee's
particular requirements, that the operation of the Materials will be error-free
or uninterrupted, or that all programming errors in the Software can be found in
order to be corrected. All warranties provided in Terms and Conditions Section 7
are solely for the benefit of, and may not be transferred by Licensee, to any
third party.
9. INDEMNIFICATION.
---------------
(a) Obligation. Certicom will defend Licensee from any claim that the
Licensed Product(s), when used within the scope of this Agreement, infringe any
U.S. or Canadian patents rights of any third party and Certicom will indemnify
Licensee for any costs and damages (excluding reasonable attorney's fees)
awarded by a court against Licensee in respect of such a claim. In addition,
Certicom will also defend and indemnify Licensee for any costs and damages
(including reasonable attorney's fees) awarded by a court against Licensee for
any claim that the copies of the Licensed Product licensed to Licensee
hereunder, when used within the scope of this Agreement infringe any trade
secrets, copyrights, trademark or other intellectual property rights other than
patent rights of any third party.
(b) Conditions. Certicom's obligations under this Section are subject to
Licensee promptly notifying Certicom in writing of any such claim and promptly
tendering control of the defence and settlement of any such claim to Certicom at
Certicom's expense and with Certicom's choice of counsel. Licensee must
cooperate with Certicom, at Certicom's expense, in defending or settling such
claim.
(c) Remedial Options. Certicom may, at Certicom's sole option and expense:
(i) procure for Licensee the right to continue use of the pertinent item or
infringing part thereof as permitted under this Agreement; (ii) modify the
pertinent item or infringing part thereof with other software having
substantially the same capabilities; or (iii) if neither of the foregoing is
commercially practicable to achieve within a reasonable period of time, Certicom
may terminate
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
Licensee's right to use the pertinent item and refund to Licensee the amount it
has paid Certicom for such item less a pro-rata amount to reflect an estimated
useful life of three years.
(d) Limits on Scope of Indemnity. Certicom will have no liability for any
infringement arising from (i) the use of the Software other than as set forth in
its accompanying documentation or specifications; (ii) the modification of the
Software; or (iii) the combination or use of the Software with other software,
hardware, items or processes to the extent such infringement would have been
avoided by the use of the Software standing alone. This Section states
Certicom's entire obligation with respect to any claim regarding the
intellectual property rights of any third party.
10. TERM AND TERMINATION.
----------------------
(a) Term. Unless otherwise specified in Exhibit A, the term of this Agreement
will commence on the Effective Date and will continue for a one-year period
unless terminated earlier as set forth below, and will renew automatically for
another one-year period on each of the first and second anniversaries of the
Effective Date.
(b) Termination For Cause. Any of the following shall suffice to terminate this
Agreement:
(i) If Licensee fails to make any payment due within thirty (30) days
after receiving written notice from Certicom that such payment is
delinquent, Certicom may terminate this Agreement on written notice to
Licensee at any time following the end of such thirty (30) day period;
(ii) If Certicom (or, if this Agreement is assigned or transferred by
Certicom to a third party, if that assignee or transferee) fails to provide
support in accordance with this Agreement, Licensee may terminate this
Agreement on written notice to Licensor at any time following the end of a
thirty (30) day grace period. For further clarity, if this Agreement is
terminated for cause pursuant to this Section 10(b)(ii), then Licensee may
exercise its rights under the escrow provision in Section 14 of this
Agreement (iii) If either party materially breaches any term or condition
of this Agreement and fails to cure that breach within thirty (30) days
after receiving written notice of the breach, the non-breaching party may
terminate this Agreement on written notice at any time following the end of
such thirty (30) day period;
(iv) This Agreement will terminate automatically without notice and without
further action by Certicom in the event Licensee becomes insolvent (i.e.,
becomes unable to pay its debts in the ordinary course of business as they
come due), makes an assignment in violation of this Agreement or makes an
assignment for the benefit of creditors or if any other bankruptcy
proceedings are commenced by or against Licensee.
(c) Consequences. Upon the termination of this Agreement for any reason: (i)
all rights granted hereunder will automatically revert to Certicom; (ii)
Licensee must immediately pay to Certicom all amounts due and outstanding as of
the date of such termination or expiration, and return a Royalty Report if
applicable; and (iii) Licensee must (A) return to Certicom (or, at Certicom's
option, destroy) the originals and all copies of the Materials in Licensee's
possession or control; (B) erase any and all of the foregoing from all computer
memories and stored Licensee Applications within its possession or control; and
(C) provide Certicom with a written statement certifying that it has complied
with the foregoing obligations. End use licenses to Licensee Applications for
Customers granted by Licensee to Customers prior to termination will survive any
such termination.
11. LIMITATION OF LIABILITY.
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(a) EXCEPT WITH RESPECT TO MISAPPROPRIATION OF INTELLECTUAL PROPERTY AND
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SECTIONS 2 AND 11(C) OF THIS AGREEMENT, EACH PARTY AGREES THAT ANY LIABILITY ON
THE PART OF THE OTHER PARTY FOR BREACH OF THE WARRANTIES CONTAINED HEREIN OR ANY
OF THE OTHER PROVISIONS OF THIS AGREEMENT OR ANY OTHER BREACH GIVING RISE TO
LIABILITY OR IN ANY OTHER WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR
ANY CAUSE OF ACTION WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING
BREACH OF CONTRACT, STRICT LIABILITY, TORT INCLUDING NEGLIGENCE OR ANY OTHER
LEGAL OR EQUITABLE THEORY), WILL BE LIMITED TO THE OTHER PARTY'S DIRECT DAMAGES
IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT PAID TO CERTICOM BY LICENSEE UNDER
THIS AGREEMENT DURING THE TWO YEARS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
(b) EXCEPT WITH RESPECT TO MISAPPROPRIATION OF INTELLECTUAL PROPERTY AND
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SECTIONS 2 AND 11(C) OF THIS AGREEMENT, EACH PARTY AGREES THAT IN NO EVENT WILL
THE OTHER PARTY BE LIABLE FOR DAMAGES IN RESPECT OF INCIDENTAL, ORDINARY,
PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, BUT NOT
LIMITED TO, BUSINESS INTERRUPTION, LOST BUSINESS REVENUE, LOST PROFITS, FAILURE
TO REALIZE EXPECTED SAVINGS, ECONOMIC LOSS, LOSS OF DATA, LOSS OF BUSINESS
OPPORTUNITY OR ANY CLAIM AGAINST SUCH PARTY BY ANY
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
THIRD PARTY.
(C) WITH RESPECT TO EACH PARTY'S OBLIGATION TO INDEMNIFY THE OTHER PARTY AS
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PER SECTIONS 1(a)(iii)(C) AND 9, THE PARTIES AGREE THAT EACH OTHER'S LIABILITY
SHALL NOT EXCEED MORE THAN TWICE THE TOTAL AMOUNT OF FEES PAID TO CERTICOM UNDER
THIS AGREEMENT.
(D) THE PARTIES TO THIS AGREEMENT ACKNOWLEDGE THAT THE LIABILITY EXPRESSED
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IN THIS TERMS AND CONDITIONS SECTION 11 REPRESENTS A MATERIAL BASIS FOR SETTING
THE FEES IN THIS AGREEMENT.
12. BRANDING & PUBLICITY.
---------------------------
(a) Publicity Efforts: Licensee and Certicom agree to engage in mutually
beneficial publicity efforts as a means of announcing/publicizing the
relationship between Certicom and Licensee.
(b) Application Security Branding:
(i) General. Licensee agrees to use reasonable efforts to incorporate the
Certicom security ▇▇▇▇ directly into Licensee Applications incorporating
the Run-Time. Licensee agrees to include Certicom provided copyright
information in product documentation for Licensee Applications that include
documentation.
(ii) Referencability: Certicom may consider Licensee as a reference vendor
in its marketing and securities filings materials. Certicom will provide
Licensee's appointed marketing contact with written notification of
instances where Licensee is being mentioned as a reference vendor. If
Licensee does not respond to Certicom within 14 days of such notification,
Certicom will consider this to be permission granted by Licensee.
(iii) Parties may refer to each other's company and products for marketing
purposes including but not limited to use for corporate or sales
presentations and on its respective web site. Parties may terminate this
right upon reasonable grounds with thirty (30) days prior written notice to
the other party.
(c) Any and all trademarks and trade names which Certicom uses in connection
with the license granted hereunder ("Certicom Marks") are and remain the
exclusive property of Certicom Corp. Nothing contained in this Agreement may be
deemed to give Licensee any right, title or interest in any Certicom Marks.
Subject to notice from Certicom in writing which modifies or cancels such
license at Certicom's sole discretion, during the continuance of this Agreement,
Certicom hereby grants Licensee a nonexclusive, revocable license to the
Certicom Marks for normal advertising, marketing and promotion of Licensee
Applications according to guidelines that Certicom may issue from time to time.
Licensee must act consistently with Certicom's ownership of the Certicom Marks
and may not use Certicom Marks in a disparaging manner. Licensee agrees to use
correct trademark notices on advertisements, sales literature, dealer materials,
press releases and other marketing materials, which use or display Certicom
Marks. Licensee agrees to provide samples of all Licensee's marketing materials
and Licensee Applications containing Certicom Marks to Certicom for prior
approval. If Certicom rejects any of Licensee's use of Certicom Marks, then the
parties may cooperate reasonably in order modify such materials for approval
prior to release or use by Licensee. To the extent that Certicom withdraws any
portion of the trademark license granted in this subsection, Licensee's
obligations under Sections 12 (b) and (c), above, will also terminate if the
rights necessary to comply with such obligation are withdrawn.
13. INTERPRETATION OF THIS AGREEMENT.
-----------------------------------
This Agreement (any fully executed addenda or amendments) is the entire
Agreement to date between the parties regarding the Materials and supersedes any
such prior agreement or communication. Any subsequent waiver or modification of
this Agreement, or any part, shall only be effective if reduced to writing and
signed by both parties. No delay or failure to enforce any right under this
Agreement will be considered a waiver of a party's rights thereafter to enforce
each and every right and provision of this Agreement. Any provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
that jurisdiction, be ineffective to the extent of such invalidity or
unenforceability and shall be severed from the balance of this Agreement, all
without affecting the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction and
appropriate amendments shall be made to this Agreement to put the party who is
disadvantaged by such invalidity or unenforceability in the same financial
position as if no provision hereof were invalid or unenforceable. The parties
agree to immediately negotiate in good faith a replacement for any such
provision in order to preserve the interests of the parties to the extent
permitted by law. As used herein, a "Business Day" will mean 9:00 a. m. to 5:00
p. m. (Eastern Time), on a Monday through Friday, excluding all national legal
holidays. The "Effective Date" of this Agreement will be the first date Certicom
signs it after Licensee has also executed it. This Agreement will be binding
upon, and inure to the benefit of, the successors, heirs and assigns of the
parties. This Agreement may be executed in two identical counterparts, each of
which will be considered an original for all purposes. Licensee and Certicom are
independent contracting parties. Neither Licensee nor Licensee employees,
consultants, contractors or agents are agents, employees or joint-venturers of
Certicom, nor do they have any authority to bind Certicom by contract or
otherwise to any obligation. Licensee agrees
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
not to make any statements that state or imply that Certicom certifies or
guarantees Licensee Applications or that Licensee Applications are warranted,
tested or approved by Certicom. No party shall be liable for any delay or
failure to perform under this Agreement if such delay or failure is due to any
contingency beyond its reasonable control including acts of God, war, explosion,
fire, flood or civil disturbance. The party experiencing any delay or failure as
a result of any such contingency shall:
(a) provide prompt written notice thereof to the other party;
(b) use reasonable commercial efforts to either remedy the delay or failure or
to establish a workaround plan to remedy the delay or failure in a manner
which minimizes the disruption to the other party and then forthwith
proceed to implement and complete such workaround plan; and
(c) use reasonable commercial efforts to eliminate the contingency causing the
delay or failure.
Notwithstanding the foregoing, in the event that the delay or failure continues
or is anticipated to continue for a period of at least twenty (20) Business Days
from the date of receipt of the notice thereof by either party, such party shall
have the right to terminate all or any part of this Agreement forthwith upon
written notice to the other party. Unless otherwise specifically expressed in
this Agreement, the specific business terms and negotiated customisations to
this Agreement will be considered confidential ("Business Terms"), and neither
party my disclose such information to third parties except as follows: (a) to
employees, advisors, financing parties or contractors who are under an
obligation of confidentiality to the extent reasonably necessary to conduct
business; (b) to the extent that such Business Terms become publicly known
through no fault of the parties; (c) to the extent required to comply with any
valid law, regulation, statute, or order so long as the non-disclosing party
receives reasonable advance notice of such potential disclosure; and (d) to the
extent required to enforce, establish, or interpret any right or duty at law or
equity with respect to this Agreement.
14. SOURCE CODE ESCROW
In the event Certicom does not provide to Licensee human-readable source code
for any Software or module of any Software licensed under this Agreement, upon
Licensee's request and at the Licensee's expense, Certicom will deposit, with a
third party Escrow Agent, such source code and related materials sufficient to
enable a reasonably skilled programmer or analyst to maintain and enhance the
Software licensed hereunder ("ESCROW DEPOSIT"). The Escrow Deposit will be made
available to Licensee in accordance with the Escrow Agreement between Certicom
and the Escrow Agent, as attached as Exhibit E. The Escrow Deposit will be
made available to Licensee upon Licensee's written notice to the Escrow Agent in
the event that Certicom has become insolvent or bankrupt, or fails to remedy a
material breach of its obligations as set forth in this Agreement after passage
of thirty (30) days as per Section 10(b)(iii) ("Event of Escrow Release"). Upon
the occurrence of the Event of Escrow Release and the ensuing transfer by the
Escrow Agent of the Escrow Deposit to Licensee, Licensee and its permitted
sublicensees shall have a, non-exclusive, world-wide right and license under any
copyrights, trade secrets or patents applicable to said Escrow Deposit to use,
reproduce, have reproduced, edit, merge, translate, enhance, or otherwise modify
Certicom's Software and source code, its related materials, and know-how for any
purpose consistent with the rights and sub-licensing rights granted to Licensee
by the Certicom herein, including the support and maintenance of the Licensee
software for the remaining term of this Agreement.
15. GENERAL.
-------
(a) All notices hereunder will be in writing and must be duly given if
delivered personally or sent by registered or certified mail, return receipt
requested, postage prepaid, to the respective addresses of the parties appearing
in this Agreement. Any notice given will be deemed to be received: (i) on the
date which it is delivered if delivered personally, (ii) or, if mailed, on the
fifth business day next following the mailing thereof. Either party may change
its address for notices by giving notice of such change as required in this
clause (a). Licensee's contact information is given on Exhibit A- Customer
Information Sheet, and Certicom's contact information is given in Exhibit B
Section III.
(b) This Agreement, the license rights granted hereunder and the Materials,
or any part thereof, may not be assigned or transferred by Licensee
("Transfer"), without the prior written consent of Certicom, consent of which
shall not be unreasonably withheld. Any such transfer without the prior written
consent of Certicom will be ineffective. In any case, any such transfer absent
Certicom's written permission will immediately and automatically terminate this
Agreement without further action by Certicom.
(c) The laws in force in the Province of Ontario will govern this
Agreement, and any litigation or other dispute resolution between the parties
relating to this Agreement or its construction will take place in the courts of
that province. The parties consent to the personal jurisdiction of, and venue
in, the provincial and national courts as
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
specified, above. The parties agree that the United Nations Convention on
Contracts for the International Sale of Goods do not apply to this Agreement.
(d) The provisions in Terms and Conditions Sections 1(a)(iii)(C)- Licensee's
Indemnification, 2- Ownership, Protection, 4 -Fees (applicable to royalty fees
owed at time of termination), 6- Books and Records, Audit, 7- Limited Warranty,
8- Warranty Disclaimer, 9-Indemnification, 10-Term and Termination,
11-Limitation of Liability, 13- Interpretation of Agreement, 15-General
(inclusive), and Exhibit E- Source Code remain in force and effect after the
termination of this Agreement.
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
INFORMATION SHEETS
EXHIBIT A
I. LICENSEE INFORMATION:
Licensee Name: Diversinet Corp.
Street Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇: Toronto, St. & Zip. Code: ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Main Co. Tele. # (v): ▇▇▇-▇▇▇-▇▇▇▇ (fax): ▇▇▇-▇▇▇-▇▇▇▇
General. Billing Contact (name, title, email & phone): ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Controller, ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇
----------------------
Billing Address: same as above
Royalty Report Contact (name, title, email & phone): ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Controller,
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇
----------------------
Royalty Report Address:
Shipping Address (if different from above):
-------------------------------------
Person Signing Contract (name, title, email & phone): ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice
President- Products, ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, 416-756-2324
-----------------------
Marketing Representative Contact (name, title, email & phone): ▇▇▇▇ ▇▇▇▇▇▇▇,
VICE PRESIDENT SALES & MARKETING
Licensee's P. O. # (Attach Copy):
-------------------------
II. FEES:
Yearly Base Fee: $40,000
Royalty Fee & Type:
(a) 5% of Licensee's Gross Revenue from Licensee Applications, excluding
(except as noted in II(b), below) fees earned from the sale, licensing or
distribution of the Passport Certificate Server(R) and the Passport
Authorization Product(TM) ("Conditionally Exempt Products"). For greater
certainty, Gross Revenue includes revenue derived by Licensee from the use
(or use by third parties where such use is authorized (directly or
indirectly) by Licensee) of any Licensee Application (including the
Passport Certificate Server(R) and Passport Authorization Product(TM)) to
issue or authenticate a digital certificate or permit.
(b) If Licensee bundles the sale, license, distribution, or any other
right to obtain or use digital certificates or digital permits
("Certificate Rights") with the distribution of Licensee Applications that
fall within the definition of Conditionally Exempt Products, Licensee shall
pay Certicom the Percentage Royalty (noted in Section II (a), above) of the
incremental value the Certificate Rights add to such bundle. Such
incremental value will be determined by mutual written agreement, as
provided in Exhibit D1, Section V.
Yearly Support Fee: Included as part of yearly base fee.
Fee Terms:
(a) Yearly Base Fee: In the first year, Licensee must pay the Yearly Base
Fee set out in II, above within thirty (30) days after the invoice
date. Thereafter, the Yearly Base Fee will be due in advance for each
one (1) year term on the anniversary of the Effective Date for each
subsequent one (1) year period until this Agreement terminates.
(b) Yearly Support Fee: If a Yearly Support Fee is indicated in this
subsection II, above, Licensee must pay such Yearly Support Fee within
thirty (30) days after the invoice date. Thereafter, the Yearly
Support Fee will be due on the anniversary of the Effective Date for
the term of this Agreement.
(c) Royalty Fee: If applicable, Licensee must pay the royalty fee above,
as specified in Exhibit D.
(d) General: Unless stated expressly otherwise, Licensee must pay any
other fees designated on this Exhibit within thirty (30) days of
invoice date. Payment of local taxes, duties and fees are the
responsibilities of the Licensee. For Licensees having a principal
Diversinet.Certicom.OEM.License.Agreement.02.25.02.
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
place of business outside of the U.S. or Canada, Licensee agrees to
provide Certicom with a letter of credit in an amount, and from a
source, reasonably acceptable to Certicom within ten (10) days of the
Effective Date.
III. SUPPORT TYPE: Standard Premier 7 by 24
IV. SPECIAL LICENSE TERMS:
1. For greater certainty, the fee structure in this Agreement is based upon
information received from Licensee regarding its proposed business model
for the Licensee Application. Should Licensee significantly alter such
business model, the fee structure of this Agreement shall be subject to
modification as mutually agreed.
2. Upon execution of this Agreement by both parties, Licensee's Certicom OEM
License Agreement, dated March 16, 1998 (the "Prior License"), shall
immediately terminate by mutual agreement, without being an occasion of
breach by either party. The terms related to the effects of termination in
the Prior License shall not apply and the Software (Security Builder
version 1.2) delivered under the Prior License shall be considered Software
under this Agreement.
3. Governing Assumptions. The royalty structure negotiated between the parties
is based upon Licensee's current or planned business model for obtaining
revenue from the distribution of Licensee Applications to customers,
whereby Licensee does not distribute the Passport Client as a standalone
software development toolkit. Should Licensee change its licensing model
for any Licensee Application such that the governing assumptions, for which
the parties relied upon to derive the current royalty structure are no
longer accurate, the parties agree to revisit the royalty to reflect
parties' then current pricing and business model, and to come to a written
mutual agreement.
4. Licensee may use the Licensed Products to act as registration authority,
subject to the terms of this Agreement.
V. LICENSEE APPLICATION(S): DIVERSINET'S PASSPORT PRODUCT LINE, INCLUDING THE
PASSPORT CERTIFICATE SERVER, THE PASSPORT CLIENT AND THE PASSPORT AUTHORIZATION
PRODUCT.
Licensee agrees that the scope of the Licensee Application as defined above does
not include Licensee's use of the Materials to: (a) act as a certification
authority without Certicom's prior written approval; (b) develop or use as an
IPSec-compliant virtual private network client (or elements thereof) for mobile,
handheld, or other constrained computing devices; or (c) provide any Certicom
technology to any of the following entities currently known as: Verisign Inc.,
Baltimore Technologies, Entrust, Inc., and RSA Security, Inc. to the extent
permitted by law . Licensee agrees the foregoing restriction is a material
component of this Agreement and is part of the scope of the permitted Licensee
Application. Licensee Applications must also represent a substantial functional
and value added enhancement over and above the Software, such that the primary
reason for a hypothetical potential user to license or acquire such Licensee
Application is other than simply to obtain the right to use the Software. For
greater certainty, Licensee products that do not contain any Certicom Software
or make use of Certicom technology will not be considered a Licensee
Application, nor will such Licensee software be subject to this Agreement.
VI. CERTICOM POINT-OF-CONTACT: ▇▇▇▇ ▇▇▇▇▇▇
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
PRODUCTS/ DELIVERABLES- EXHIBIT B
Certicom agrees to deliver the following Licensed Products.
I. MATERIALS: Where applicable each Licensed Product will be designated with a
version number followed by a revision notation. Unless specifically stated in
this Exhibit Section II (Licensed Product Information), below, or Exhibit A IV
(Special License Terms), Certicom agrees to provide Licensee with the most
current revision that Certicom generally makes commercially available to third
parties as of the Effective Date of this Agreement, for the combination of the
noted version number and specific operating environment (platform, OS, and if
applicable, processor and development environment) for a Licensed Product. For
use in describing Licensed Products below, a revision noted as "x" simply
denotes an intention to supply such latest revision that is made generally
commercially available to third parties as of the Effective Date, as described
in this paragraph.
II. LICENSED PRODUCT INFORMATION
Licensed Product # 1: Security Builder for
Java Version/model #: 1.x
-------------------------------- --------------------
Platform/OS (& vers. #): various
Processor (if applicable): various
----------------------------------------------
Develop. Env. (i.e. compiler): JDK 1.1, 1.2, 1.3
------------------------------
Object Code Obfuscated Source Code Clear Source Code *
See Exhibit E for Clear and Obfuscated Source Code use grant and restrictions
Standard Product Custom Product - Services to be rendered per Statement of Work
Licensed Product # 2: Security
Builder Version/model #: 3.x
-------------------------------- --------------------
Platform/OS (& vers. #)/ Processor (if applicable)/
-----------------------------
Develop. Env. (i.e. compiler): See chart below
--------------------------------
Object Code Obfuscated Source Code Clear Source Code *
See Exhibit E for Clear and Obfuscated Source Code use grant and restrictions
Standard Product Custom Product - Services to be rendered per Statement of Work
PLATFORM OPERATING SYSTEM PROCESSOR COMPILER
SB VERSION 3.X
AIX 32-bit AIX 4.3.3 32-bit RS6000 xlc (cc) compiler
AIX 64-bit AIX 4.3.3 64-bit RS6000 xlc (C for AIX Compiler Version 5.0.0.0)
HPUX B11.00 32-bit HP-UX B.11.00, 32-bit PA8000 cc HP92453-01 A.11.01.00 HP C Compiler
HPUX B11.00 64-bit HP-UX B.11.00, 64-bit PA8000 cc (HP C Compiler)
Linux x86 (Red Hat Intel x86,
6.1) Red Hat Linux 6.1 Pentium Family gcc version 2.95.2.19991024
Motorola 68K
PalmOS m68K Palm OS 3.5 Dragonball Metrowerks CodeWarrior 7.0 for PalmOS Platform
Microsoft (R) 32-bit C/C++ Optimizing Compiler
RIMOS i386 RIM OS Intel 386 Version 12.00.8168 for 80x86
Solaris 2.7 ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇-▇▇▇ Solaris 2.7 Sun SPARC gcc version 2.95.2.19991024
Solaris 2.7 Sparc WS Sun UltraSPARC
64-bit Solaris 2.7 II Sun WorkShop 6 update 1 C 5.2 2000/09/11
Intel x86,
Solaris 2.8 x86 Solaris 2.8 Pentium Family gcc version 2.95.2.19991024
VxWorks 5.4 i386 VxWorks 5.4 Intel 386 cc386
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
VxWorks 5.4 i486 VxWorks 5.4 Intel 486 cc386
VxWorks 5.4 Pentium VxWorks 5.4 Intel Pentium cc386
Intel x86, Microsoft (R) 32-bit C/C++ Optimizing Compiler
▇▇▇▇▇ ▇▇▇ Win95,Win98,Win2000,▇▇▇▇ Pentium Family Version 12.00.8168 for 80x86
WinCE 3.0 PocketPC Intel StrongARM Microsoft (R) 32-bit C/C++ Optimizing Compiler
SA1110 "IPAQ" WinCE 3.0 1110 Version 12.01.8569 for ARM
WinCE 3.0 PocketPC Microsoft (R) 32-bit C/C++ Optimizing Compiler
▇▇▇ "▇▇▇▇▇" WinCE 3.0 Hitachi SH3 Version 12.01.0014 for Hitachi ▇▇
▇▇▇▇▇ 3.0 PocketPC Microsoft (R) 32-bit C/C++ Optimizing Compiler
MIPS WinCE 3.0 MIPS Version 12.01.8687 for MIPS R-Series
WinCE 3.0 PocketPC Intel x86, Microsoft (R) 32-bit C/C++ Optimizing Compiler
x86 ▇▇ ▇▇▇▇▇ 3.0 Pentium Family Version 12.00.8186 for 80x86
Solaris 2.7 Sparc WS Sun UltraSPARC
32-bit Solaris 2.7 II Sun Workshop 6 update 1C 5.2 2000/09/11
ASSOCIATED ITEMS:
---------------------------------------------------------------
Licensed Product # 3: Security Builder
------------------------------------------
Version/model #: 2.x
--------------------------------
Platform/OS (& vers. #)/ Processor (if applicable)/ Develop. Env. (i.e.
compiler): WinCE v. 2.x for MIPS, ARM, x286, SH3 processors; Palm, RIM, Linux
x86, Win32 bit code for Windows 95, 98, 2000, NT, ME and XP, Solaris ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ 32 bit, and HPUX 64
Object Code Obfuscated Source Code Clear Source Code *
See Exhibit E for Clear and Obfuscated Source Code use grant and restrictions
Standard Product Custom Product - Services to be rendered per Statement of Work
ASSOCIATED ITEMS:
---------------------------------------------------------------
* CERTICOM LICENSES ITS UNDERLYING CRYPTOGRAPHIC LIBRARIES IN OBJECT CODE OR
OBFUSCATED SOURCE CODE FORMAT, EVEN IN PRODUCTS WHICH ARE OTHERWISE IN CLEAR
SOURCE CODE.
III. CERTICOM CONTACT INFORMATION. SALES: CERTICOM CORP. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, (V) 510.780.5400, (F) 510.780.5401 MANAGEMENT,
CRYPTOGRAPHIC RESEARCH AND PRODUCT DEVELOPMENT: CERTICOM CORP. ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, (V) 905.507.4220, (F) 905.507.4230;
URL- ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
----------------
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
MAINTENANCE AND TECHNICAL SUPPORT - EXHIBIT C1: STANDARD LEVEL (COLLECTIVELY
"SERVICES")
PRIMARY TECHNICAL SUPPORT CONTACT (NAME & TITLE): ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, DIRECTOR-
SECURITY INFRASTRUCTURE
E-MAIL ADDRESS & TELE. (LICENSEE'S SUPPORT CONTACT): ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇,
----------------------
416-756-2324
ALTERNATE/ "BACK-UP" TECHNICAL SUPPORT CONTACT (NAME & TITLE): ▇▇▇ ▇▇▇▇▇▇,
DIRECTOR ENGINEERING
E-MAIL ADDRESS & TELE. (ALTERNATE SUPPORT CONTACT):▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇,
416-756-2324
I. GENERAL MAINTENANCE & SUPPORT SERVICE TERMS
a. Certicom will accept support questions from Licensee via any of the
following methods: 1) voice calls to 800.511.8011; 2) facsimile transmissions to
800.474.3877; or 3) electronic mail messages via the Internet using SMTP
compliant software (hereafter "E Mail") addressed to ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇,
--------------------
regarding the functions of the Software, as well as questions about how to make
full use of the Software (hereafter, "Support Issues"). In addition,
international customers may find the following contact numbers more convenient:
▇.▇▇▇.▇▇▇.▇▇▇▇ (voice) & ▇.▇▇▇.▇▇▇.▇▇▇▇ (facsimile). Licensee agrees to be
solely responsible for the maintenance and support of Licensee Applications and
Licensee must instruct its customers and licensees to contact Licensee directly.
b. Support Issues must be referred by "Primary Technical Support Contact" or,
when such person is unable to ask Support Issues or receive responses, then the
"Alternate Support Contact" noted at the beginning of this Exhibit
(collectively, the "Support Channel"). Licensee may change the name and contact
information for its Support Channel by written notice to Certicom (which for
such purpose includes E-Mail). It is Licensee's responsibility to provide
Certicom with initial names and contact information for its Support Channel (and
to keep that information current) to receive Services.
c. Mandatory Revisions. In the event that Certicom, in its sole reasonable
discretion, determines that a Licensed Product is, or may (as applicable): (i)
subject to a material defect; (ii) the subject of a material security breach;
or, (iii) be subject to a third party infringement suit of any kind; Certicom
may issue a Mandatory Revision in correction of one or more of these issues.
Such Mandatory Revision must have substantially similar (or greater)
functionality to the Licensed Product being replaced. Certicom disclaims all
liability and obligations (including by way of illustration and not as a
limitation indemnity and express warranty provisions) that arise due to, or are
result of, Licensee's failure to substitute a Mandatory Revision in a timely
fashion.d. On Site Support and Training. On site support and training may be
available, subject to Certicom's reasonable discretion, at Certicom's then
current time and materials fee for each technician, including incidental
expenses for traveling and lodging, if any. Minimum charges of, respectively,
one day and two days apply to onsite support (one (1) day) and training (two (2)
days).
e. Services for any Custom Product(s) may be available, at Certicom's
reasonable discretion, to Licensee at $US 185/ person-hour plus materials.
II. SPECIFIC STANDARD LEVEL SUPPORT TERMS
a. Certicom's response to Support Issues will be typically made according to the
Service Level Objectives defined below. On average, Certicom aims to achieve a
90% attainment rate based on technical support for all of its licensees.
SEVERITY SEVERITY NAME DESCRIPTION ESTIMATED RESPONSE STATUS REPORTS
LEVEL TIME
-------- ------------- ------------------------------------------------------- ------------------ --------------
1 Critical Licensee business process is severely affected and 4 Business Hours Daily
there is no workaround.
-------- ------------- ------------------------------------------------------- ------------------ --------------
2 Serious Licensee business process is affected but a
workaround exists 6 Business Hours Twice Weekly
-------- ------------- ------------------------------------------------------- ------------------ --------------
3 Medium Impact Licensee business process affected but there is no loss
of functionality 1 Business Day Twice Monthly
-------- ------------- ------------------------------------------------------- ------------------ --------------
4 Low Impact All other inquiries or requests including product
enhancements and documentation error or
information request 3 Business Days Monthly
-------- ------------- ------------------------------------------------------- ------------------ --------------
Certicom will dedicate reasonable engineering resources to support in order to
meet the Service Level Objective. The estimated response times stated within the
Service Level Objective are not intended to guarantee the time within which
Certicom will supply a correction, solution or answer to a Support Question, but
where appropriate and reasonable, may simply be an acknowledgment that Certicom
has received the report and is attempting to correct the problem.
b. Updates. Unless specifically modified in the Exhibit A.IV, during the term of
Standard Support, Certicom will make available new revisions for the Software
(designated by a revision number with a higher number to the right of the
leftmost decimal point) ("Updates"), but not versions of the Software (which are
designated with a higher number to the left of the leftmost decimal point)
("Upgrades"), or Custom Releases of the Software (which are designated at the
end of the version number sequence with a letter or a customer's name) which
Certicom publicly makes available to licensees according to its own release or
development schedule. In any case, Licensee's right to receive Updates will be
limited to the Software as licensed herein, and all Updates so delivered will be
governed by the terms and conditions in this Agreement regarding Software.
c. Support for Prior Releases. Certicom will support (with respect to Sections
II (a) and b), above) a superceded release of the Software for a period of at
least six (6) months after the date its replacement release was made publicly
available, solely with respect to Licensed Product #3- Security Builder, version
2.x, Certicom will provide support for up to one year from the Effective Date of
this Agreement.
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
ROYALTY PAYMENTS- PERCENTAGE ROYALTY BASED: EXHIBIT D1
I. DEFINITIONS. The following terms will have the meaning defined below:
"Distributor" means a reseller, OEM, dealer or distributor in the business
of reselling or sublicensing the Licensee Application to Customers,
directly or through one or more Distributors, by virtue of authority of
Licensee. Licensee Applications resold and sublicensed by a Distributor
must bear Licensee's trademarks and service marks and must not be privately
labeled by such Distributor or other parties. A Distributor must have no
right to modify any part of the Licensee Application.
"Customer" means a person or entity sublicensing Software object code as
part of a Licensee Application from Licensee or a Distributor solely for
personal or internal use and without right to sublicense such Licensee
Application to any other person or entity.
"Gross Revenues" shall mean the gross amount of all cash, in kind, or other
consideration actually received by Licensee from third parties at any time
in consideration of the use, license, rental, sale, transfer, subscription
to, or distribution of any Licensee Application, where such use is
authorized (directly or indirectly) by Licensee to a third party. For
greater certainty, such "use" may also include, where applicable, use of
the Licensee Application to control access by third parties to products,
services, or information. Gross Revenue excludes any amounts received by
Licensee for sales and use taxes, shipping, insurance, and duties. For
purposes of determining Gross Revenues, the amount of in-kind or other non
cash consideration receivable by Licensee will be deemed to have a dollar
value equal to the average cash price of the particular Licensee
Application for the previous year (the "Standard Price"), less all cash
paid. With respect to a Licensee Application which is licensed as part of a
larger group of products or as an integral part of another product (a
"Bundle") and sold at a discount, for purposes of determining Gross
Revenues, the discount applicable to the Licensee Application must be at a
percentage no greater than the lowest percentage applied to other
discounted products within that Bundle.
II. PERCENTAGE ROYALTY. Licensee agrees to pay to Certicom the Royalty
Percentage(s) (set out on any Information Sheets) of Licensee's Gross Revenue.
For greater certainty, such Royalty is owed whenever Licensee Applications
include, use, or are enabled by, any Certicom proprietary technology implemented
by the Software, whether such technology is provided as part of the Software or
via products (software or hardware) or services provided by a third party. Use
of licensee application to issue a certificate or permit within thirty (30) days
after the end of each calendar quarter Licensee agrees to pay to Certicom the
Royalty Percentage for Gross Revenue from Licensee Applications in such quarter.
For greater certainty, unless specifically noted on the Information Sheets, the
royalty negotiated between the parties is based upon the total value of the
Licensee Application as a functioning product (or project) with the Software
incorporated therein ("Total Value"). To insure that Licensee pays the proper
percentage royalty upon the Total Value, any Licensee Application must represent
a substantial functional and value added enhancement over and above the
Software, such that the primary reason for a potential user to purchase such
Licensee Application is other than to obtain the right to use the Software. All
payments are subject to any appropriate Special Terms on the Information Sheets.
III. ROYALTY REPORTS. Substantial compliance with the provisions of this
subsection will be considered a material element of this Agreement. Licensee
agrees to provide (and update as necessary) contact information for a Licensee
officer responsible for reporting Licensee's royalties as required herein
("Royalty Contact"). A report in reasonably detailed form setting forth the
calculation of fees due from Licensee and detailed form setting forth the
calculation of royalties due from Licensee, and signed by the Royalty Contact,
will be delivered to Certicom within twenty days after the close of each
calendar quarter during the term of this Agreement, regardless of whether
royalty payments are due pursuant to Section II of this Exhibit. Upon request
from Licensee, Certicom will provide an example of a standard royalty report for
Licensee's use. The report must include, at a minimum, the following information
with respect to the relevant quarter:
(a) The name of each Licensee Application;
(b) The Gross Revenue from each named Licensee Application invoiced, sold,
licensed, rented, used and/or distributed or delivered to Customers
and Distributors in the preceding quarter as well as an aggregate for
the calendar year to date;
(c) A calculation of the total actual royalties due to Certicom for the
immediate preceding quarter, as well as the aggregate amount for the
whole calendar year to date.
(d) Whether any Royalty is due from Conditionally Exempt Products as
provided in Exhibit A, Section II(b).
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
IV. CONDITIONALLY EXEMPT PRODUCTS BUNDLED WITH CERTIFICATE RIGHTS. In the event
that Royalties are reported as due from Conditionally Exempt Products (as
provided under Section III(d), above), Licensee and Certicom shall timely
cooperate to fairly determine the portion of the value to be attributed to
Certificate Rights within the consideration actually received by Licensee from
third parties at any time in consideration of the use, license, rental, sale,
transfer, subscription to, or distribution of such Conditionally Exempt
Products. The parties' mutual written determination on such subject may be
memorialized by an unambiguous E-mail exchanged between the parties.
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
SIGNATURES OF THE PARTIES
Certicom Corp., a corporation organized under the laws of the Yukon
Territory (including its wholly owned subsidiaries) hereby licenses the
Materials which includes the Software, documentation noted above, and the
person or entity noted as Licensee agrees to accept such license and pay
the fees noted above, all in accordance with these Standard Terms and
Conditions and all attached exhibits, attachments, or schedules referenced
in this Agreement and attached hereto, specifically Exhibits A, B (which
are mandatory exhibits), C1 (alternate support level terms), D1 ( royalty
terms) and Exhibit E (escrow agreement). Where a reference in the Terms and
Conditions is made to an Exhibit "C" or "D" without an associated version
number, such reference is intended to include the specific Exhibit version
number referenced on this page and attached hereto.
AGREED TO AND ACKNOWLEDGED BY:
CERTICOM CORP. DIVERSINET CORP.
----------------------------------- -----------------------------------
By: By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: (Please print) Name: (Please print)
----------------------------------- -----------------------------------
Title: Title: Vice President - Products
----------------------------------- -----------------------------------
Date: Date:
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
MASTER PREFERRED ESCROW AGREEMENT- EXHIBIT E
Master Number _0305073-00002
This agreement "Agreement" is effective _____________, 20____ among DSI
Technology Escrow Services, Inc. ("DSI"), Certicom Corp. ("Depositor") and any
additional party signing the Acceptance Form attached to this Agreement
("Preferred Beneficiary"), who collectively may be referred to in this Agreement
as the parties ("Parties").
A. Depositor and Preferred Beneficiary have entered or will enter into a
license agreement, development agreement, and/or other agreement regarding
certain proprietary technology of Depositor (referred to in this Agreement as
"the License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology
except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical
to Preferred Beneficiary in the conduct of its business and, therefore,
Preferred Beneficiary needs access to the proprietary technology under certain
limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with
DSI to provide for the retention, administration and controlled access of
certain proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ [Bankruptcy] Code, Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 Obligation to Make Deposit. Upon the signing of this Agreement by the
----------------------------
parties, including the signing of the Acceptance Form, Exhibit A naming the
Deposit Account, Depositor agrees to deliver to DSI the proprietary technology
and other materials ("Deposit Materials") required to be deposited by the
License Agreement or, if the License Agreement does not identify the materials
to be deposited with DSI, then such materials will be identified on Exhibit B.
If Exhibit B is applicable, it is to be prepared and signed by Depositor and
Preferred Beneficiary. DSI shall have no obligation with respect to the
preparation, signing or delivery of Exhibit B.
1.2 Identification of Tangible Media. Prior to the delivery of the Deposit
---------------------------------
Materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. Exhibit B shall be signed by
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no obligation with
respect to this Agreement, except the obligation to notify the parties regarding
the status of the account as required in Section 2.2 below.
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
1.3. Escrow Account Name Identification. Subject to this Article 1, and at the
------------------------------------
time Depositor makes the initial deposit with DSI in accordance with Section 1.2
above, Depositor shall complete and sign Exhibit A naming the initial account
upon which the Deposit Materials are written or stored.
1.4 Deposit Inspection. When DSI receives the Deposit Materials and Exhibit
-------------------
B, DSI will conduct a deposit inspection by visually matching the labeling of
the tangible media containing the Deposit Materials to the item descriptions and
quantity listed on Exhibit B. In addition to the deposit inspection, Preferred
Beneficiary may elect to cause a verification of the Deposit Materials in
accordance with Section 1.7 below.
1.5 Acceptance of Deposit. At completion of the deposit inspection, if DSI
-----------------------
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit A, DSI will date and sign Exhibit A and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on Exhibit A, DSI will
(a) note the discrepancies in writing on Exhibit A; (b) date and sign Exhibit A
with the exceptions noted; and (c) mail a copy of Exhibit A to Depositor and
Preferred Beneficiary. DSI's acceptance of the deposit occurs upon the signing
of Exhibit A by DSI. Delivery of the signed Exhibit A to Preferred Beneficiary
is Preferred Beneficiary's notice that the Deposit Materials have been received
and accepted by DSI.
1.6 Depositor's Representations. Depositor represents as follows:
----------------------------
a. Depositor lawfully possesses all of the Deposit Materials deposited
with DSI;
b. With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to DSI and Preferred Beneficiary the rights as
provided in this Agreement;
c. The Deposit Materials are not subject to any lien or other
encumbrance;
d. The Deposit Materials consist of the proprietary technology and other
materials identified either in the License Agreement or Exhibit B, as
the case may be; and
e. The Deposit Materials are readable and useable in their current form
or, if any portion of the Deposit Materials is encrypted, the
decryption tools and decryption keys have also been deposited.
1.7 Verification. Preferred Beneficiary shall have the right, at Preferred
------------
Beneficiary's expense, to cause a verification of any Deposit Materials.
Preferred Beneficiary shall notify Depositor and DSI of Preferred Beneficiary's
request for verification. Depositor shall have the right to be present at the
verification. A verification determines, in different levels of detail, the
accuracy, completeness, sufficiency and quality of the Deposit Materials. If a
verification is elected after the Deposit Materials have been delivered to DSI,
then only DSI, or at DSI's election an independent person or company selected
and supervised by DSI, may perform the verification.
1.8 Deposit Updates. Unless otherwise provided by the License Agreement,
----------------
Depositor shall update the Deposit Materials within 60 days of each release of a
new version of the product which is subject to
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
the License Agreement. Such updates will be added to the existing deposit. All
deposit updates shall be listed on a new Exhibit B and the new Exhibit B shall
be signed by Depositor. Each Exhibit B will be held and maintained separately
within the escrow account. An independent record will be created which will
document the activity for each Exhibit B. The processing of all deposit updates
shall be in accordance with Sections 1.2 through 1.6 above. All references in
this Agreement to the Deposit Materials shall include the initial Deposit
Materials and any updates.
1.9 Removal of Deposit Materials. The Deposit Materials may be removed
-------------------------------
and/or exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
2.1 Confidentiality. DSI shall maintain the Deposit Materials in a secure,
---------------
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Deposit Materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or any other order from a court or other judicial tribunal
pertaining to the disclosure or release of the Deposit Materials, DSI will
immediately notify the parties to this Agreement unless prohibited by law. It
shall be the responsibility of Depositor and/or Preferred Beneficiary to
challenge any such order; however, that DSI does not waive its rights to present
its position with respect to any such order. DSI will not be required to
disobey any order from a court or other judicial tribunal. (See Section 7.5
below for notices of requested orders.)
2.2 Status Reports. DSI will issue to Depositor and Preferred Beneficiary
---------------
a report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 Audit Rights. During the term of this Agreement, Depositor and
-------------
Preferred Beneficiary shall each have the right to inspect the written records
of DSI pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 Title to Media. Depositor hereby transfers to DSI the title to the
----------------
media upon which the proprietary technology and materials are written or stored.
However, this transfer does not include the ownership of the proprietary
technology and materials contained on the media such as any copyright, trade
secret, patent or other intellectual property rights.
3.2 Right to Make Copies. DSI shall have the right to make copies of the
-----------------------
Deposit Materials solely as reasonably necessary to perform this Agreement. DSI
shall copy all copyright, nondisclosure, and other proprietary notices and
titles contained on the Deposit Materials onto any copies made
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
by DSI. With all Deposit Materials submitted to DSI, Depositor shall provide
any and all instructions as may be necessary to duplicate the Deposit Materials
including but not limited to the hardware and/or software needed.
3.3 Right to Transfer Upon Release. Depositor hereby grants to DSI the
----------------------------------
right to transfer Deposit Materials to Preferred Beneficiary upon any release of
the Deposit Materials for use by Preferred Beneficiary in accordance with
Section 4.5. Except upon such a release or as otherwise provided in this
Agreement, DSI shall not transfer the Deposit Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 Release Conditions. As used in this Agreement, "Release Condition"
-------------------
shall mean the following:
a. Depositor's continued failure to substantially carry out material
support obligations or continued material breach by Depositer to fulfill
its obligation pursuant to the License Agreement;
b. Depositor's continued failure to continue to do business in the
ordinary course; or,
c. Such further or different conditions (or set of conditions) agreed to
in the License
4.2 Filing For Release. If Preferred Beneficiary believes in good faith
--------------------
that a Release Condition has occurred, Preferred Beneficiary shall provide to
DSI and Depositor written notice of the occurrence of the Release Condition and
a request for the release of the Deposit Materials. Upon receipt of such
notice, DSI shall provide a copy of the notice to Depositor by commercial
express mail.
4.3 Contrary Instructions. From the date DSI mails the notice requesting
----------------------
release of the Deposit Materials, Depositor shall have thirty business days to
deliver to DSI contrary instructions ("Contrary Instructions"). Contrary
Instructions shall mean the written representation by Depositor that a Release
Condition has not occurred or has been cured. Upon receipt of Contrary
Instructions, DSI shall send a copy to Preferred Beneficiary by commercial
express mail. Additionally, DSI shall notify both Depositor and Preferred
Beneficiary that there is a dispute to be resolved pursuant to the Section 7.3.
Subject to Section 5.2 of this Agreement, DSI will continue to store the Deposit
Materials without release pending (a) joint instructions from Depositor and
Preferred Beneficiary; (b) dispute resolution pursuant to Section 7.3; or (c)
order of a court.
4.4 Release of Deposit. If DSI does not receive Contrary Instructions from
-------------------
the Depositor, DSI is authorized to release the Deposit Materials to the
Preferred Beneficiary or, if more than one beneficiary is registered to the
deposit, to release a copy of the Deposit Materials to the Preferred
Beneficiary. However, DSI is entitled to receive any fees due DSI before making
the release. Any copying expense in excess of $300 will be chargeable to
Preferred Beneficiary. Upon any such release, the escrow arrangement will
terminate as it relates to the Depositor and Preferred Beneficiary involved in
the release.
4.5 Right to Use Following Release. Unless otherwise provided in the
----------------------------------
License Agreement, upon release of the Deposit Materials in accordance with this
Article 4, Preferred Beneficiary
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
shall have the right to use the Deposit Materials for the sole purpose of
continuing the benefits afforded to Preferred Beneficiary by the License
Agreement. Preferred Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit Materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 Term of Agreement. The initial term of this Agreement is for a period
-------------------
of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly instruct DSI
in writing that the Agreement is terminated; (b) Preferred Beneficiary instructs
DSI in writing that the Agreement is terminated as it relates to Preferred
Beneficiary; or (c) DSI instructs Depositor and Preferred Beneficiary in writing
that the Agreement is terminated for nonpayment in accordance with Section 5.2
or by resignation in accordance with Section 5.3. If the Acceptance Form has
been signed at a date later than this Agreement, the initial term of the
Acceptance Form will be for one year with subsequent terms to be adjusted to
match the anniversary date of this Agreement. If the deposit materials are
subject to another escrow agreement with DSI, DSI reserves the right, after the
initial one year term, to adjust the anniversary date of this Agreement to match
the then prevailing anniversary date of such other escrow arrangements.
5.2 Termination for Nonpayment. In the event of the nonpayment of fees owed
--------------------------
to DSI, DSI shall provide written notice of delinquency to the parties to this
Agreement affected by such delinquency. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is not
received in full by DSI within one month of the date of such notice, then at any
time thereafter DSI shall have the right to terminate this Agreement to the
extent it relates to the delinquent party by sending written notice of
termination to such affected parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 Termination by Resignation. DSI reserves the right to terminate this
-----------------------------
Agreement, for any reason, by providing Depositor and Preferred Beneficiary with
100-days' written notice of its intent to terminate this Agreement. Within the
100-day period, the Depositor and Preferred Beneficiary may provide DSI with
joint written instructions authorizing DSI to forward the Deposit Materials to
another escrow company and/or agent or other designated recipient. If DSI does
not receive said joint written instructions within 100 days of the date of DSI's
written termination notice, then DSI shall destroy, return or otherwise deliver
the Deposit Materials in accordance with Section 5.4.
5.4 Disposition of Deposit Materials Upon Termination. Subject to the
------------------------------------------------------
foregoing termination provisions, and upon termination of this Agreement, DSI
shall destroy, return, or otherwise deliver the Deposit Materials in accordance
with Depositor's instructions. If there are no instructions, DSI may, at its
sole discretion, destroy the Deposit Materials or return them to Depositor. DSI
shall have no obligation to destroy or return the Deposit Materials if the
Deposit Materials are subject to another escrow agreement with DSI or have been
released to the Preferred Beneficiary in accordance with Section 4.4.
5.5 Survival of Terms Following Termination. Upon termination of this
-------------------------------------------
Agreement, the following provisions of this Agreement shall survive:
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials;
c. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.3) and Right to Use Following Release (Section
4.5), if a release of the Deposit Materials has occurred prior to
termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically state they survive
the termination of this Agreement.
ARTICLE 6 -- DSI'S FEES
6.1 Fee Schedule. DSI is entitled to be paid its standard fees and expenses
-------------
applicable to the services provided, which may be increased once in advance of
the renewal of each annual term. DSI shall notify the party responsible for
payment of DSI's fees at least 60 days prior to any increase in fees. For any
service not listed on DSI's standard fee schedule, DSI will provide a quote
prior to rendering the service.
6.2 Payment Terms. DSI shall not be required to perform any service unless
--------------
the payment for such service and any outstanding balances owed to DSI are paid
in full. Fees are due upon receipt of a signed contract or receipt of the
Deposit Materials whichever is earliest. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 Right to Rely on Instructions. DSI may act in reliance upon any
---------------------------------
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI will
not be required to inquire into the truth or evaluate the merit of any statement
or representation contained in any notice or document. No party shall be
responsible for failure to act as a result of causes beyond the reasonable
control of such party.
7.2 Indemnification. Depositor and Preferred Beneficiary each agree to
---------------
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees and other
liabilities ("Liabilities") incurred by DSI relating in any way to this escrow
arrangement unless such Liabilities were caused solely by the negligence or
willful misconduct of DSI.
7.3 Dispute Resolution. Any dispute relating to or arising from this
-------------------
Agreement shall be resolved by arbitration under the Commercial Rules of the
American Arbitration Association, with reasonable
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
discovery activities permitted. Three arbitrators shall be selected. The
Depositor and Preferred Beneficiary shall each select one arbitrator and the two
chosen arbitrators shall select the third arbitrator, or failing agreement on
the selection of the third arbitrator, the American Arbitration Association
shall select the third arbitrator. However, if DSI is a party to the
arbitration, DSI shall select the third arbitrator. Unless otherwise agreed by
Depositor and Preferred Beneficiary, arbitration will take place in San
Francisco, California, USA. Any court having jurisdiction over the matter may
enter judgment on the award of the arbitrator(s). Service of a petition to
confirm the arbitration award may be made by First Class mail or by commercial
express mail, to the attorney for the party or, if unrepresented, to the party
at the last known business address.
7.4 Controlling Law. This Agreement is to be governed and construed in
----------------
accordance with the laws of the State of California, without regard to its
conflict of law provisions.
7.5 Notice of Requested Order. If any party intends to obtain an order from
----------------------------
the arbitrator or any court of competent jurisdiction which may direct DSI to
take, or refrain from taking any action, that party shall:
a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the
reasonable value of the services to be rendered pursuant to such
order; and
c. Ensure that DSI not be required to deliver the original (as opposed to
a copy) of the Deposit Materials if DSI may need to retain the
original in its possession to fulfill any of its other escrow duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement, which includes the Acceptance Form
-----------------
and Exhibits A, B, and C described herein, embodies the entire understanding
among all of the parties with respect to its subject matter and supersedes all
previous communications, representations or understandings, either oral or
written. DSI is not a party to the License Agreement between Depositor and
Preferred Beneficiary and has no knowledge of any of the terms or provisions of
any such License Agreement. DSI's only obligations to Depositor or Preferred
Beneficiary are as set forth in this Agreement. No amendment or modification of
this Agreement shall be valid or binding unless signed by all the parties
hereto, except that Exhibit B or C need not be signed by DSI, and the Acceptance
Form need only be signed by the parties identified therein.
8.2 Notices. All notices, invoices, payments, deposits and other documents
-------
and communications shall be given to the parties at the addresses specified in
the attached Exhibit C and Acceptance Form. It shall be the responsibility of
the parties to notify each other as provided in this Section in the event of a
change of address. The parties shall have the right to rely on the last known
address of the other parties. Unless otherwise provided in this Agreement, all
documents and communications may be delivered by First Class mail.
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
8.3 Severability. In the event any provision of this Agreement is found to
------------
be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the
validity of this Agreement nor the remaining provisions herein, and the
provision in question shall be deemed to be replaced with a valid and
enforceable provision most closely reflecting the intent and purpose of the
original provision.
8.4 Successors. This Agreement shall be binding upon and shall inure to the
----------
benefit of the successors and assigns of the parties. However, DSI shall
have no obligation in performing this Agreement to recognize any successor
or assign of Depositor or Preferred Beneficiary unless DSI receives clear,
authoritative and conclusive written evidence of the change of parties.
8.5 Regulations. Depositor and Preferred Beneficiary are responsible for
-----------
and warrant compliance with all applicable laws, rules and regulations,
including but not limited to customs laws, import, export, and re-export laws
and government regulations of any country from or to which the Deposit Materials
may be delivered in accordance with the provisions of this Agreement.
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
EXHIBIT A
PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number: ▇▇▇▇▇▇▇-00002
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that __________________ is the Preferred Beneficiary
referred to in the Master Preferred Escrow Agreement effective___________,
20_____ with DSI as the escrow agent and ___Certicom, Inc._____________ as the
Depositor. Preferred Beneficiary hereby agrees to be bound by all provisions of
such Agreement.
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
Account Name Account Number
------------- ---------------
--------------------------------------- ----------------------------------
--------------------------------------- ----------------------------------
--------------------------------------- ----------------------------------
Notices and communications to Preferred
Beneficiary should be addressed to: Invoices should be addressed to:
Company Name:
--------------------------- ----------------------------------
Designated Contact:
--------------------- ----------------------------------
Telephone: Contact:
----------------------------- --------------------------
Facsimile:
----------------------------- ----------------------------------
E-Mail: P.O.#, IF REQUIRED:
---------------
--------------------------------------- ----------------------------------
Preferred Beneficiary Depositor
By: By:
------------------------------------ -------------------------------
Name: Name:
---------------------------------- -----------------------------
Title: Title:
---------------------------------- -----------------------------
Date: Date:
---------------------------------- -----------------------------
DSI Technology Escrow Services, Inc.
----------------------------------------
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Date:
-----------------------------------
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
EXHIBIT B
MATERIALS TO BE DEPOSITED
Account Number: ▇▇▇▇▇▇▇-00002
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of the following:
Licensed Products as per license agreement:
Security Builder, version 2.x and 3.x for "C" and 1.x for Java
Certicom Corp.
Depositor ------------------------ ---------------------------------
Preferred Beneficiary
By: By:
------------------------------------ -------------------------------
Name: Name:
---------------------------------- -----------------------------
Title: Title:
---------------------------------- -----------------------------
Date: Date:
---------------------------------- -----------------------------
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CERTICOM(TM) CERTICOM(R) OEM LICENSE AGREEMENT
EXHIBIT C
DESIGNATED CONTACT
Master Number
----------------------
Notices and communications
should be addressed to: Invoices should be addressed to:
Company Name: Accounts Payable
---------------------------- ----------------
Address: Certicom Corp.
--------------------------------- ---------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------- ---------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------- ---------------------
Designated Contact: Contact:
---------------------- ---------------------------
Telephone:
------------------------------ -----------------------------------
Facsimile: P.O.#, IF REQUIRED:
------------------------------ ----------------
E-MAIL:
---------------------------------
Verification Contact:
-----------------------------------
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Deposit Materials and Invoice inquiries and fee remittances
notices to DSI should be addressed to: to DSI should be addressed to:
DSI Technology Escrow Services, Inc. DSI Technology Escrow Services, Inc.
Contract Administration PO Box 45156
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
----------------
Date:
------------------------------------
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