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EXHIBIT 10.13
SEARCH'97(TM) OEM AGREEMENT
BETWEEN
VERITY, INC.
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("VERITY")
AND
ELOQUENT, INC.
("LICENSEE")
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1. DEFINITIONS. Certain of the defined terms used in this Agreement are as
follows:
1.1 "SOFTWARE" means the computer software, in object code form only,
which Verity owns or has the right to license to Licensee under this Agreement,
including the Development Software and the Run-Time Software, for use in
connection with Application. The specific Verity products incorporating the
Software to be licensed to Licensee are listed in Exhibit A.
1.2 "RUN-TIME SOFTWARE" means the portion of the Software which must be
incorporated in the Application to execute the search, retrieval and other
functionality of the Software.
1.3 "DEVELOPMENT SOFTWARE" means the tools and other portions of the
Software (including, without limitation, LIBVDL(#).LIB and LIBVDL(#).a code)
which are used to incorporate the Run-Time Software in the Application and
enable the Run-Time Software to provide search, retrieval and other
functionality within the Application.
1.4 "DOCUMENTATION" means the documentation, instructions and user's
guides, including updates thereto, relating to the Software, whether in printed
or electronic format, provided by Verity to Licensee for the purposes of this
Agreement.
1.5 "APPLICATION" means the software application program, including
content or data owned or licensed by Licensee from third parties, which is
developed by Licensee with the use of the Development Software and which
executes the Run-Time Software for the purposes described in Exhibit C. The
Application shall be enabled solely for the "Basic Search" and "Advanced Search"
functionality (as defined in Exhibit A) incorporated in the Software. The
Application shall not provide direct or exposed access to the development tools
or capabilities of the Development Software. The Application shall access,
modify, and/or manipulate only those Collections which it creates.
1.6 "COLLECTIONS" means the data structures created by Software and
required for the Run-Time Software to operate.
1.7 "PLATFORM" means a binary compatible combination of hardware and
operating system software supported by Verity that will run the Software and the
associated Application. The supported Platforms upon which Licensee may operate
the Software and the Application are set forth in Exhibit C.
1.8 "TERRITORY" means worldwide.
2. LICENSE GRANT.
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2.1 APPOINTMENT OF LICENSEE. Verity appoints Licensee as a Search'97Tm
OEM and, subject to the terms and conditions of this Agreement, grants to
Licensee certain rights to the Software during the term of the Agreement, as set
forth below. The parties acknowledge that the Software may contain software
licensed by Verity from third parties (the "Verity Licensors. Verity reserves
all rights not expressly granted hereunder.
2.2 THE DEVELOPMENT SOFTWARE.
2.2.1 DEVELOPMENT OF APPLICATION. Verity grants to Licensee a
nonexclusive and nontransferable right to use the Development Software on the
Platforms at Licensee's locations solely in the United States and solely for
internal development of the Application and related internal demonstration and
training of its personnel. In connection with such use, Licensee shall have the
right to make a reasonable number of copies of the Development Software for
normal backup and archival purposes only.
2.3 APPLICATION DISTRIBUTION. Verity grants to Licensee a nonexclusive
and nontransferable right to use, market, reproduce and distribute the Run-Time
Software solely as an embedded component of the Application and only in the
Territory. Licensee's right to distribute the Application is limited to those
persons who sublicense the Application for their own business or personal use
("End Users") and those persons who sublicense the Application for
redistribution to End Users ("Resellers"). To help assure quality, the
Application may only be licensed for use on the Platforms. Licensee acknowledges
that Licensee has no right to use, or sublicense others to use, the Software for
any dial-up, remote access, interactive, Internet-based or other on-line service
except that Licensee does have the right to use and sublicense Resellers and End
Users the Application for any dial up, remote access, interactive, Internet
based, extranet based, intranet based or other on-line service, provided that
such is made via the use of the Licensee Application on the client as well as on
the server site.
2.4 DOCUMENTATION. Verity grants to Licensee a nonexclusive and
nontransferable right to reproduce the Documentation only in the United States
solely: (i) to distribute the End User portions of the Documentation in the
Territory with the Application and (ii) for use internally by Licensee's
personnel in the United States in connection with the support of the
Application.
2.5 SUBLICENSE RIGHTS.
(a) REPRODUCTION. Licensee may sublicense its right to reproduce
the Application and the Documentation only to subcontractors (other than
Resellers) in the United States who agree in writing to be bound by terms
substantially similar to Section 9 ("Confidentiality"). Licensee and its
subcontractors will manufacture each copy of the media containing, the Software
under a quality assurance program designed to accurately reproduce the
Application without introduction of a virus or other embedded device or code in
the Software (e.g., back door, time bomb, Trojan Horse or worm) that is intended
to obstruct or prevent use of the Software.
(b) SUBLICENSE AGREEMENTS. Any distribution of the Application
shall be accomplished under a license agreement ("Sublicense Agreement") between
the Licensee and the person to whom the distribution is made. Each Sublicense
Agreement pertaining to a distribution to a Reseller (including Resellers
through multiple tiers of distribution) shall be signed by the Reseller and
shall contain terms and conditions at least as protective of Verity's
proprietary rights as the terms and conditions of this Agreement, including,
without limitation, the applicable provisions of Sections 2.3 (subject to
section 2.5(a)), 7, 8, 9, 10 (disclaimer only), 11.2, 12, 13, 15.4, 15.6 and
15.7. Any Sublicense Agreement pertaining to a distribution to an End User in
the United States may be through a shrink-wrap substantially in the form
attached as Exhibit D, so long as the End User is required to take an
affirmative act of consent to the terms of such shrink-wrap by opening the
Application package or clicking a button to initiate installation only after an
opportunity to view the applicable terms and conditions. Licensee will promptly
notify Verity of any violation of a Sublicense Agreement of which it becomes
aware, and will take commercially reasonable efforts to enforce each Sublicense
Agreement with at least the same degree of diligence used in enforcing similar
agreements governing end users of Licensee's own products. Such Sublicense
Agreements shall also state that Verity is a third party beneficiary of such
agreements with respect to provisions relating to use of the Application, and
that such provisions are also enforceable by Verity.
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2.6 SAMPLE APPLICATIONS. Licensee agrees to deliver to Verity ten (10)
copies of a Demo Disk Application within thirty (30) days of execution of this
Agreement. Licensee grants to Verity a worldwide, nonexclusive, nontransferable,
royalty-free and fully-paid right and license solely to use such copies
internally and to demonstrate such copies to existing and potential customers
for marketing purposes subject to the terms and conditions set forth for each
Demo Disk.
3. TERM. This Agreement shall remain in effect for an initial term of three (3)
years from the Effective Date, unless terminated earlier in accordance with
Section 14. The Agreement will renew automatically for successive one (1) year
terms unless written notice of termination is received by either party at least
thirty (30) days prior to the end of the then-current initial term or renewal
term.
4. LICENSE AND OTHER FEES. Fees (including sublicense fees) for the Software and
for all related support, training and other services offered by Verity are set
forth in Exhibit A. Licensee will pay all applicable shipping charges and taxes
(except for taxes based upon Verity's net income). All amounts required to be
paid to Verity hereunder shall be paid within thirty (30) days from the date of
Verity's valid applicable invoice.
5. SOFTWARE SUPPORT AND TRAINING.
5.1 INTERNAL SOFTWARE SUPPORT. During the term of this Agreement,
Licensee may obtain Software support, as further described in Exhibit B from
Verity for the purpose of Licensee's provision of support to its End Users and
Resellers. All items delivered by Verity in providing such support, including
Error Corrections and Software Updates, shall be deemed to become a part of the
applicable Software and shall be subject to all terms and conditions of this
Agreement.
5.2 SECOND-LINE SOFTWARE SUPPORT. Licensee is responsible for providing
front-line support to its End Users and Resellers with respect to Software
installation, on-going technical support, training and consultations relating to
the Application. Any direct request to Verity for support services by the
Licensee's End Users or Resellers; will be referred to Licensee.
6. ORDERING AND DELIVERY OF SOFTWARE. All orders for Software or other products
or services issued by Licensee shall be deemed subject to this Agreement and
shall specify the quantity ordered, the discounted price, Platform, and the
location thereof Licensee understands and agrees that any additional terms and
conditions of the Licensee's order shall be void and of no effect. No orders
shall be binding until the earlier of Verity's written confirmation or shipment.
Upon receipt of Licensee's initial purchase order, Verity shall deliver to
Licensee (i) the number of copies of Verity products comprising the Software
described on Exhibit A, (ii) one (1) golden master copy of the Run-Time Software
on magnetic media and (iii) one (1) copy of the Documentation. Verity shall
deliver to Licensee one (1) copy of any Error Corrections or Software Updates to
the Software on magnetic media and one (1) copy each of the applicable
Documentation, if any, promptly upon distribution by Verity of such Error
Corrections and Updates to other Verity OEMs. All shipments shall be FOB
shipping point. All orders delivered shall be deemed accepted by Licensee upon
delivery.
7. RECORDS AND REPORTS. Licensee shall keep complete and accurate records
relating to its use and marketing of the Application in accordance with standard
business practices in the computer industry and generally accepted accounting
principles. Within thirty (30) days after each calendar quarter, Licensee shall
provide Verity with a written sales report in the form supplied by Verity. Such
reports shall, at a minimum, contain information detailing each Application
distributed for the applicable reporting quarter, including (i) the number of
copies sold during the reporting period and the region of distributions, broken
down by month and on a cumulative basis; (ii) an accounting of the sublicense
fees associated with such copies; and (iii) second-line support fees due to
Verity associated with such copies. To assure compliance with the payment and
reporting requirements of this Agreement, Verity's independent auditors may
inspect Licensee's applicable records from time to time, but no more frequently
than once per year, upon ten (10) days notice and during normal business hours.
In the event any inspection of Licensee's records indicates an underpayment of
an amount equal to or greater than five percent (5%) of any amounts due
hereunder, Licensee shall promptly reimburse Verity for all reasonable expenses
associated with such inspection along with the deficient amounts.
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8. TITLE, USE OF TRADE NAMES AND TRADEMARKS.
8.1 PROPRIETARY RIGHTS. Title and ownership of all proprietary rights in
the Software, including any copyright, patent, trade secret, trademark or other
intellectual property rights, will at all times remain the property of Verity
and the Verity Licensors. Licensee agrees not to remove or obliterate any
copyright, trademark or proprietary rights notices of Verity or the Verity
Licensors from the Software or Documentation and shall reproduce all such
notices on all authorized copies of the Software or Documentation. Licensee
shall not modify, translate, disassemble, decompile, reverse engineer or cause
or allow discovery of the source code of the Software in any way. In addition,
Licensee shall include a copyright notice in the "About" screen.
8.2 TRADEMARKS. Verity hereby grants to Licensee a non-exclusive,
limited license to use the applicable Verity trademarks and logos ("Trademarks")
solely as permitted in this Agreement. Licensee agrees to cooperate with Verity
in facilitating Verity's monitoring and control of the nature and quality of
such products and services, and to supply Verity with specimens of use of the
Trademarks upon request. Licensee understands and agrees that the use of any
Trademark in connection with this Agreement shall not create any right, title or
interest, in or to the use of the Trademark and that all such use and goodwill
associated with the Trademark will inure to the benefit of Verity. Licensee
agrees not to register or attempt to register any Trademarks.
8.3 BRANDING; COOPERATIVE EFFORTS. The parties agree to determine mutual
co-marketing obligations at a later date.
9. CONFIDENTIALITY. Each party shall hold in confidence all materials or
information disclosed to it in confidence hereunder ("Confidential Information")
which are marked as confidential or proprietary, or if disclosed verbally,
reduced to writing and marked confidential within thirty (30) days after the
date of disclosure. Confidential Information shall also include any new product
information or the results of any bench ▇▇▇▇ or similar tests on the Software
conducted by Licensee or divulged by Licensee to Verity. Each party agrees to
take precautions to prevent any unauthorized disclosure or use of Confidential
Information consistent with precautions used to protect such party's own
confidential information, but in no event less than reasonable care. The
obligations of the parties hereunder shall not apply to any materials or
information which; (a) is now, or hereafter becomes, through no act or failure
to act on the part of the receiving party, generally known or available; (b) is
known by the receiving party at the time of receiving such information as
evidenced by its records; (c) is hereafter furnished to the receiving party by a
third party, as a matter of right and without restriction on disclosure; (d) is
independently developed by the receiving party without any breach of this
Agreement; or (e) is the subject of a written permission to disclose provided by
the disclosing party. Notwithstanding any other provision of this Agreement,
disclosure of Confidential Information shall not be precluded if such
disclosure:
(a) is in response to a valid order of a court or other
governmental body of the United States or any political subdivision thereof,
provided, however, that the responding party shall first have given notice to
the other party hereto and shall have made a reasonable effort to obtain a
protective order requiring that the Confidential Information so disclosed be
used only for which the order was issued;
(b) is otherwise required by law; or
(c) is otherwise necessary to establish rights or enforce
obligations under this Agreement, but only to the extent that any such
disclosure is necessary.
10. WARRANTY. Verity warrants to Licensee that for a period of ninety (90) days
from the date of delivery of the Software to Licensee that the Software used by
Licensee shall substantially perform in accordance with Verity's applicable
Documentation. Licensee's sole and exclusive remedy shall be for Verity to
modify or correct the Software or, if Verity is unable to provide a reasonable
work-around for the error, Verity will accept the return of the defective
Software in Licensee's possession and Verity will refund the license fees paid
by Licensee for such Software. This warranty shall not apply to any Software
which has been modified by Licensee or by any party other than Verity, or which
has been improperly installed or used in any manner other than as authorized
under this Agreement. EXCEPT AS SET FORTH IN THIS SECTION, VERITY AND VERITY
LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS
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FOR A PARTICULAR PURPOSE. The Software is warranted only to Licensee, and
Licensee shall not extend any warranties for or on behalf of Verity or Verity
Licensors to End Users, Resellers, or any other third parties.
11. INFRINGEMENT INDEMNIFICATION.
11.1 BY VERITY. Verity agrees to indemnify and hold Licensee harmless
from all settlements agreed to by Verity and all costs and direct damages
awarded to a third party to the extent they arise out of a claim that the
Software as delivered to Licensee infringes a copyright enforceable in a country
which is a signatory to the Berne Convention; however, provided such country is
not on the U.S. Department of Commerce Watch List, U.S. patent, or trade secret
under U.S. law of a third party. Such obligation is subject to the following
conditions (i) Licensee shall notify Verity in writing within thirty (30) days
of the date Licensee first becomes aware of a claim; (ii) Verity has sole
control of the settlement, compromise, negotiation and defense of any such
action; and (iii) Licensee gives Verity all reasonably available information,
assistance and authority, at Verity's reasonable expense, to enable Verity to do
so. Verity may, at its option, obtain the right to continued use of the
Software, substitute other equivalent software, or modify the Software so it is
no longer infringing, or, if none of the foregoing remedies are available,
terminate Licensees right to the allegedly infringing Software and refund to
Licensee the amount which Licensee has paid for such Software, depreciated on a
straight-line basis over a five-year period. The foregoing indemnity shall not
apply to any infringement claim arising from Software which has been modified by
parties other than Verity or use of the Software in conjunction with other
software or hardware where use with such other software or hardware gives rise
to an infringement claim. THE FOREGOING STATES LICENSEE'S SOLE AND EXCLUSIVE
REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS
OF ANY KIND, AND VERITY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF
NONINFRINGEMENT.
11.2 BY LICENSEE. Licensee agrees to indemnify and hold Verity harmless
from all settlements agreed to by Licensee and all costs and direct damages
awarded to a third party to the extent they arise out of a claim that the
portions of the Application other than the Software ("Licensee Product")
infringes a copyright enforceable in a country which is a signatory to the Berne
Convention; however, provided such country is not on the U.S. Department of
Commerce Watch List, U.S. patent or trade secret under U.S. law of a third
party. Such obligation is subject to the following conditions (i) Verity shall
notify Licensee in writing within thirty (30) days of the date Verity first
becomes aware of a claim; (ii) Licensee has sole control of the settlement,
compromise, negotiation and defense of any such action; and (iii) Verity gives
Licensee all reasonably available information, assistance and authority, at
Licensee's expense, to enable Licensee to do so. Notwithstanding , the
foregoing, Licensee shall have no liability for nor shall Licensee indemnify
Verity against any infringement claim based solely on the Software or any
infringement claim that could have been avoided by use of software other than
the Software. THE FOREGOING STATES THE ENTIRE AND EXCLUSIVE OBLIGATION OF
LICENSEE TO VERITY RELATING TO ANY ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS,
TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
12. LICENSEE INDEMNIFICATION. Licensee shall defend, indemnify and hold harmless
Verity and Verity Licensors from and against any claims by a Reseller, End User,
or other party arising out of (i) Licensee's or a Reseller's failure to obtain a
valid Sublicense Agreement or (ii) except as permitted by this Agreement,
Licensee's making representations or warranties regarding the Software to End
Users, Resellers or other third parties.
13. LIMITATION OF LIABILITY. NEITHER PARTY AND ITS LICENSORS' AGGREGATE
LIABILITY UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL EXCEED ONE
HUNDRED THOUSAND DOLLARS (US$100,000). NEITHER PARTY WILL BE LIABLE FOR LOST
PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
REGARDLESS OF THE FORM OF ACTION, EVEN IF SUCH PARTY IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE ABOVE, THE LIMITATIONS SET
FORTH IN THIS SECTION SHALL NOT APPLY IF THE OTHER PARTY CAN BE SHOWN TO HAVE
FAILED TO EXERCISE REASONABLE CARE IN THE PRODUCTION AND/OR SUPPLY OF THE
SOFTWARE AND/OR DOCUMENTATION AND/OR THE PERFORMANCE OF ITS OBLIGATIONS UNDER
THIS AGREEMENT AND SUCH FAILURE RESULTS IN DEATH OR PERSONAL PHYSICAL INJURY.
14. TERMINATION. This Agreement may be terminated earlier by either party on
thirty (30) written days notice
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to the other party if the other party fails to materially perform any obligation
hereunder and such failure is not cured within such thirty (30) day period;
provided, however, that either party may terminate this Agreement immediately
upon delivery of notice in connection with any breach by the other of Sections
2, 8.1 or 9. Upon termination or expiration, Licensee's licenses hereunder shall
terminate, all open orders shall automatically terminate, and Verity shall have
no obligation to fill such orders. In such event, Licensee shall immediately
cease using, marketing, reproducing and distributing the Software and shall
return all copies thereof to Verity, along with a certification signed by an
officer of Licensee that no copies have been retained by Licensee, except for
archival purposes. However, if the Agreement terminates or expires for any
reason other than Verity's termination of Licensee in accordance with this
Section, Licensee shall have the right to distribute all copies of the Software
paid for hereunder which are then in its inventory on the effective date of
termination (which amount shall not exceed Licensee's average monthly inventory
of the Application for the twelve months preceding the termination date); and
Licensee shall have the right to continue to use the Software internally at no
additional charge upon execution of Verity's then-current applicable end user
agreement to support End User customers who have valid Sublicense Agreements in
effect on the effective date of termination.. Nothing in this Section shall
effect the rights of the End User customers who have valid Sublicense Agreements
in effect on the effective date of termination. The obligations of each party
under Sections 4, 7, 8.1, 9, 10, 11, 12, 13, 14 and 15 shall survive termination
or expiration of this Agreement.
15. MISCELLANEOUS.
15.1 NO ASSIGNMENT. Neither party may transfer or assign this Agreement
or any rights or obligations hereunder without the prior written consent of the
other party.
15.2 NOTICES. Any notice required under this Agreement shall be given in
writing and shall be deemed effective upon delivery to the party to whom
addressed by (i) any means upon written verification by other party of actual
receipt or (ii) five days after sending, via certified mail, return receipt
requested. All notices shall be sent to the applicable address on the cover page
hereof or to such other address as the parties may designate in writing, with a
copy to the president and to the legal department of such party.
15.3 GOVERNING LAW. This Agreement shall be governed and interpreted by
the laws of the State of California, without giving effect to its principles of
conflicts of law. The parties agree that the United Nations Convention on
Contracts for the International Sales of Goods is specifically excluded from
application to this Agreement. In any legal action relating to this Agreement,
Licensee agrees to the exercise of jurisdiction over Licensee by a state or
federal court in Santa ▇▇▇▇▇ County, California. In the event an action is
brought to enforce any provision or declare a breach of this Agreement, the
prevailing party shall be entitled to recover, in addition to any other amounts
awarded, reasonable legal and other related costs and expenses, including
attorney's fees, incurred thereby.
15.4 INJUNCTIVE RELIEF. It is expressly agreed that a material breach of
this Agreement will cause irreparable harm to Verity and that a remedy at law
would be inadequate. Therefore, in addition to any and all remedies available at
law, Verity and/or Verity Licensors shall be entitled to injunctive relief
against Licensee in the event of any threatened or actual violation of any or
all provisions in this Agreement.
15.5 INDEPENDENT CONTRACTOR. Licensee is an independent contractor, and
nothing in this Agreement shall be deemed to create a joint venture,
partnership, or agency relationship between the parties. Neither party has the
right or authority to assume or create any obligation or responsibility on
behalf of the other.
15.6 EXPORT. Licensee agrees that it will not export or re-export the
Software or the Application without the appropriate United States Government or
any other government licenses.
15.7 GOVERNMENT END USERS. The Software (a) was developed at private
expense, is existing computer software and no part of it was developed with
government funds, (b) is a trade secret of Verity for all purposes of the
Freedom of Information Act, (c) is commercial computer software submitted with
only those rights provided in Verity's then-current standard end-user license
agreement (d) in all respects is proprietary data belonging solely to Verity,
(e) is unpublished and all rights are reserved under the copyright laws of the
United States. For units of the Department of Defense (DoD) this Software is
licensed only with those rights specified in Verity's-then-current standard End
User license agreement, and use, duplication or disclosure of the Software is
subject to the restrictions set forth in such end-
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user license agreement.
15.8 FORCE MAJEURE. Neither party shall be liable hereunder by reason of
any failure or delay in the performance of its obligations hereunder (except for
the payment of money) on account of strikes, shortages, failure of suppliers,
riots, insurrection, fires, floods, storms, earthquakes, acts of God, war,
governmental action, labor conditions, or any other cause which is beyond the
reasonable control of such party.
15.9 ENTIRE AGREEMENT. If any portion of this Agreement is determined to
be or becomes unenforceable or illegal, such portion shall be deemed eliminated
and the remainder of this Agreement shall remain in effect in accordance with
its terms as modified by such deletion. No waiver of any breach of this
Agreement shall be effective unless in writing, nor shall any breach constitute
a waiver of any subsequent breach of any provision of this Agreement. This
Agreement (including all Exhibits) contains the entire agreement and
understanding between the parties with respect to the subject matter hereof, and
supersedes all prior agreements, negotiations, proposals and communications
between the parties. Moreover, this Agreement shall replace and supersede any
Verity end user license agreement included with the package of any Software used
by Licensee. This Agreement may be executed in counterparts.
The foregoing is agreed to effective as of the last execution date below
(the "Effective Date"):
VERITY, INC. ELOQUENT, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------- ------------------------------------
Title: Corporate Attorney Title: Chief Financial Officer
-------------------------- -----------------------------------
Date: 5/30/97 Date: 5/30/97
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VERITY, INC.
OEM Agreement
EXHIBIT A
FEES
1. LICENSED SOFTWARE:
Software includes solely:
one (1) copy of Search'97 Developer Kit on the Platforms specified in
Exhibit C.
2. LICENSE FEE:
(A) DEVELOPMENT SOFTWARE LICENSE FEE:
Licensee has fully paid for and Verity has delivered to Licensee the
licensed Software specified in Section I of this Exhibit A.
For a period of twelve (12) months from the Effective Date, Licensee may
acquire additional Search'97 Developer Kit licenses including internationalized
tool kit licenses for Asian languages on additional platforms at Verity's
then-current list price less a fifty percent (50%) discount. If Licensee elects
to acquire the additional internationalized versions of the Search'97 Developer
Kit within sixty (60) days from the Effective Date, then the royalty rates
specified below in Section 2B shall apply to licensing and distribution of such
internationalized Application.
(B) RUN TIME SOFTWARE LICENSE FEE:
Licensee shall pay to Verity subject to the following minimum royalty
payments:
(i) For Eloquent Navigation Server - Two Hundred Dollars (US$200) per
client/server Application except that no minimum per server will be required for
single transactions of One Hundred Thousand Dollars (US$100,000) in license fee
to Licensee;
(ii) For Eloquent Author - One Hundred Dollars (US$100) per Author; and
(iii) For Eloquent Reauthor - Ten Dollars (US$10) per Reauthor
(a) two and one half percent (2.5%) of Net Revenues accrued and/or paid to
Licensee during each calendar quarter related to all licensing and distribution
of Application which include the Verity Software with Basic Search functionality
and (b) seven and one half percent (7.5%) of Net Revenues accrued and/or paid to
Licensee during each calendar quarter related to all licensing and distribution
of Application which include the Verity Software with Basic and Advanced Search
functionality to End Users and Resellers, including without limitation all
royalties and one-time fees, within thirty (30) days of the end of each calendar
quarter ("Distribution License Fees").
For purposes of this Agreement, "Net Revenues" means gross revenues less
applicable taxes, shipping and handling charges related to distribution and
licensing of the applications, credits and returns.
Upon the Effective Date, due and payable net thirty (30) days, Licensee shall
pay Verity a nonrefundable prepaid license fee equal to Twenty Five Thousand
Dollars (US$25,000) ("Prepaid License Fees") against which the currently due
sublicense fees of Four Thousand Five Hundred Dollars (US$4,500) and the
Distribution License Fees subsequently incurred, due and owing, to Verity shall
apply until such prepaid license fee amount is exhausted. Upon termination or
expiration of this Agreement for any reason, all unrecouped Prepaid License Fees
paid to Verity shall be nonrefundable and nonrecoupable.
3. EVALUATION COPIES: Notwithstanding Paragraph 2 above, Verity grants Licensee
the right to provide evaluation copies of the Application incorporating the
Run-Time Software ("Evaluation Copies") to End Users. The evaluation period for
each Evaluation Copy shall be for a period of ninety (90) days from receipt by
the End User unless otherwise authorized in writing by Verity. The End User
shall be authorized to use the Evaluation Copy solely for evaluating its
applicability to its requirements and shall not be for any commercial or private
benefit use. Licensee may provide Evaluation Copies only to End Users who have
executed a written evaluation agreement substantially similar to Verity's
standard evaluation agreement, a copy of which will be provided to Licensee upon
written request.
4. INTERNAL SUPPORT: Upon the Effective Date, within thirty (30) days of such
date, Licensee shall pay Verity the fee for internal support of the number of
copies of Software set forth above, equal to eighteen percent
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(18%) of the license fee or One Thousand Eight Hundred Dollars (US$1,800).
5. SECOND LINE SUPPORT: For the period Licensee obtains internal support,
Licensee shall additionally pay Verity the fee for second line support equal to
ten percent (10%) of the aggregate sublicense fees paid to Verity. Such fees to
be submitted with the quarterly sales report for all new customers and all
customers renewing, annual maintenance during the applicable quarter.
6. TRAINING. All training shall be made available for a training fee to be paid
by Licensee in addition to the amount payable pursuant to Paragraph 2 above.
Such training fee shall equal Verity's then-current training rates less a twenty
percent (20%) discount.
7. DOCUMENTATION. Verity shall provide one (1) copy of the applicable user
documentation with each copy of Development Software. Additional copies are
available to Licensee at $65.00 each.
8. PRICE LIST. Verity reserves the right to withdraw or change the availability
of the Software from its then-current product availability and price list at any
time.
9. BASIC SEARCH. The functionality of Basic Search shall include only Boolean
(and, or, not), accrue, near, near/n, many, wild card, phrase, sentence,
paragraph, word, soundex, 128 indexes, stem and thesaurus (English only) with
full multi-byte support. ASCII, HTML and SGML support.
10. ADVANCED SEARCH: The functionality of Advanced Search shall include
clustering, summarization, query by example (QBE), and ability to create and use
Topics.
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VERITY, INC.
OEM Agreement
EXHIBIT B
SOFTWARE SUPPORT TERMS AND CONDITIONS
For all Licensees who purchase Maintenance Services, Verity provides support in
the form of Error Corrections, Software Updates, and Hotline Telephone Support.
For Software which is supported, Maintenance Services are provided only for the
current release and the most recent previous release of the Software.
The initial effective date of Maintenance Services is the date Software is
shipped from Verity's facility.
DESCRIPTION OF SERVICES PROVIDED DURING A MAINTENANCE PERIOD
(A) ERROR CORRECTIONS. Verity shall exercise commercially reasonable
efforts to correct any error reported by the Licensee in the current unmodified
release of the Software in accordance with the priority level reasonably
assigned to such error by Verity. If a reported error has caused the Software to
be inoperable, or the Licensee's notice to Verity states that the reported error
is substantial and material with respect to the Licensee's use of the product,
Verity shall use its reasonable commercial efforts to correct such error or to
provide expeditiously a software patch or bypass around such error. The Licensee
acknowledges that all reported errors may not be corrected.
(B) SOFTWARE UPDATES. Verity provides, at no additional cost, one (1)
copy of all published revisions to the printed documentation and one (1) copy
of, or authorization to copy, new releases of the products, which are not
designated by Verity as new products for which it charges a separate fee.
(C) TELEPHONE HOTLINE SUPPORT. Verity provides telephone assistance to
all Licensees who have purchased Maintenance Services. Verity Support personnel
are available to answer questions related to Verity's supported products and how
they perform with compatible hardware systems. Assistance in the development of
custom applications for Verity's products is not included in standard hotline
support. If Licensees wish to acquire such support, it is available through
Verity's Consulting group at the then-current consulting rates.
PRIORITY LEVELS OF ERRORS
In the performance of Maintenance Services, Verity applies priority ratings to
problems reported by Licensees.
(A) PRIORITY I ERRORS.
DESCRIPTION: Program errors that prevent some function process
from substantially meeting the functional specification and
which seriously affect the overall performance of the function
or process and no work-around is known.
VERITY RESPONSE: Verity shall promptly initiate the following
procedures: (1) assign senior Verity engineers to correct the
error; (2) notify senior Verity Management that such errors have
been reported and that steps are being taken to correct the
error; (3) provide Licensee with periodic reports on the status
of corrections; (4) commence work to provide Licensee with a
work-around until final solution is available; (5) provide final
solution to Licensee as soon as it is available.
(B) PRIORITY II ERRORS.
DESCRIPTION: Program errors that prevent some function or
process from substantially meeting functional specification, but
has a reasonable work-around.
VERITY RESPONSE: Verity shall provide a work-around to the
Licensee and shall exercise commercially reasonable efforts to
include the fix for the error in the next software maintenance
release.
(C) PRIORITY III ERROR.
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DESCRIPTION: Program errors that prevent some portion of a
function from substantially meeting functional specification but
do not seriously affect the overall performance of the function.
VERITY RESPONSE: Verity may include the fix for the error in the
next major release of the Software.
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VERITY, INC.
OEM Agreement
EXHIBIT C
OEM APPLICATION
DESCRIPTION OF APPLICATIONS.
The Application(s) shall consist solely of Licensee's software application
program developed for/by Licensee and in existence as of the Effective Date,
currently known as "Eloquent Navigation Server", "Eloquent/CD", "Eloquent
Author", and "Eloquent Reauthor", together with substantially similar versions
of such Application as enhanced to include new additions, updates, upgrades, bug
fixes and other error corrections made from time to time.
------------------------------------------------------------
Product Function
------------------------------------------------------------
Eloquent Navigation Server store and access content. One
method of access uses search
over text.
Eloquent/CD allow viewing and navigation
of content on a CD. One
method of navigation is by
text search.
Eloquent Author compress, edit, and synchronize
audio, video, text and slides
to create viewable content
Indexes for future possible
test search.
Eloquent Reauthor modify and reuse existing
content. May reindex text.
Eloquent Demo Disk limited content version of
Eloquent/CD
------------------------------------------------------------
PLATFORMS:
Windows 95/NT, MAC
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EXHIBIT D
SHRINK WRAP AGREEMENT
NOTICE TO THE USER: BY OPENING THIS PACKAGE YOU INDICATE YOUR ACCEPTANCE OF
THESE TERMS. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, RETURN THE
PACKAGE UNOPENED WITHIN THIRTY (30) DAYS TO THE SUPPLIER OF THIS PACKAGE.
LICENSE GRANT. Eloquent, Inc. ("Eloquent") grants to you a limited,
non-exclusive, nontransferable, royalty-free license to use one copy of the
executable code of the Eloquent software contained on this CD-ROM (collectively
"Software") on only a single computer at any time. You may not rent, lease,
sell, sublicense, assign, or otherwise transfer the Software, including any
accompanying printed materials, nor may you create derivative works of or
otherwise modify the Software. You may not reverse engineer, decompile or
otherwise disassemble the Software except to the extent that this restriction is
expressly prohibited by applicable law. This license will terminate
automatically if you do not comply with the terms of this Agreement.
TITLE. You acknowledge that title and full ownership rights to the Software will
remain the exclusive property of Eloquent or its suppliers, and you will not
acquire any rights to the Software except as expressly set forth above.
SOFTWARE MAINTENANCE. Eloquent is not obligated to provide maintenance or
updates to you for the Software unless agreed to under separate agreement.
DISCLAIMER. THE SOFTWARE IS LICENSED "AS IS," WITHOUT WARRANTY OF ANY KIND.
ELOQUENT EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR
IMPLIED, INCLUDING BUT WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD
PARTY RIGHTS. YOU ASSUME THE ENTIRE RISK AS TO QUALITY AND PERFORMANCE OF THE
SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU, AND NOT ELOQUENT, ASSUME THE
ENTIRE COST OF ALL NECESSARY REPAIR AND ANY OTHER COSTS, DAMAGES OR LIABILITIES
RELATED THERETO. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES,
LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATIONS OR EXCLUSIONS MAY
NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO
HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
DATA DISCLAIMER. This product is made up of Software plus data comprised of
statements and information provided by the sponsor and provider of this product
("Sponsor"). Any statements or information contained in this product are solely
those of the Sponsor or of the individuals depicted in this product, and not of
Eloquent. Eloquent will have no responsibility for any such statements or other
information.
NO LIABILITY FOR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL ELOQUENT OR ITS
SUPPLIERS BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR
LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS
INFORMATION, ARISING OUT OF THIS AGREEMENT OR USE OR INABILITY TO USE THE
SOFTWARE, EVEN IF ELOQUENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXPORT. You agree that you will not export or re-export the Software without the
appropriate United States and foreign government licenses and you shall
otherwise comply with all applicable export control laws.
GOVERNMENT END USERS: The Software is comprised of "commercial computer
software" and "commercial computer software documentation" as such terms are
used in 48 C.F.R. 12.212 (SEPT 1995) and is provided to the Government (i) for
acquisition by or on behalf of civilian agencies, consistent with the policy set
forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of
the Department of Defense, consistent with the policies set forth in 48 C.F.R.
227-7202-1 (JUN 1995) and 227.7202-3 (JUN 1995).
GOVERNING LAW. This Agreement will be governed by the laws of the State of
California without regard to conflict of laws principles. The United Nations
Convention on Contracts for the International Sale of Goods is expressly
disclaimed.
GENERAL. To the extent the Software contains software from third parry
suppliers, such suppliers are third party beneficiaries of this Agreement. You
agree that this is the entire agreement between you and Eloquent with respect to
the use of the Software which supersedes any prior agreement, whether written or
oral, and all other communications between the parties relating to the subject
matter of this Agreement. In the event of invalidity of any provision of this
Agreement, the parties agree that such invalidity shall not affect the validity
of the remaining portions of this Agreement.