EXHIBIT 10.1
Software License Agreement
This Software License Agreement ("Agreement") is executed by and between TenFold
Corporation, a Delaware Corporation ("TenFold"), with its principal office at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and the Indus Group,
Inc., a California corporation ("INDUS"), with its principal office at ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. The terms of this Agreement shall apply to
each Program license granted and to all services provided by TenFold under this
Agreement.
I. DEFINITIONS
1.1 "Program" shall mean the computer software owned or distributed by
TenFold, including any updates and enhancements, for which INDUS is
granted a license pursuant to this Agreement, and the user guides and
manuals for use of the software ("Documentation"). Each Program is
described in an appropriate Exhibit to this Agreement.
1.2 "Effective Date" shall mean the date on which both parties agree that
that this Agreement should take effect. The Effective Date approximates
the date that both parties execute this Agreement or the date that
TenFold begins providing services.
1.3 "Services" shall mean staff work done by TenFold relating to the
implementation of the Programs or to post-implementation analysis,
research, error correction, applications design and development, support,
training, or any other work done on behalf of INDUS. Services for which
INDUS has retained TenFold are defined in an appropriate Exhibit to this
Agreement.
II. PROGRAM LICENSE
2.1 Rights Granted
A. TenFold grants to INDUS a license to use the object code version of the
Programs INDUS obtains under this Agreement, as described in Exhibit A to
this Agreement.
B. INDUS agrees not to cause or permit the reverse engineering, disassembly,
or decompilation of the Programs.
C. TenFold shall retain all title, copyright, and other proprietary rights
in the Programs. INDUS does not acquire any rights, express or implied,
in the Programs, other than those specified in this Agreement.
2.2 Transfer and Assignment. INDUS may not assign this Agreement to a third
party (i.e., a legal entity separate from INDUS).
III. TERM AND TERMINATION
3.1 Term. Each Program license granted under this Agreement shall remain in
effect for the duration of the term described in Exhibit A to this
Agreement, unless the license or this Agreement is terminated as provided
in Section 3.2 or 3.3.
3.2 Termination by INDUS. INDUS may terminate this Agreement or any license
if TenFold has materially breached its obligations hereunder, and such
breach has remained uncured for 30 days after written notice. However,
termination shall not relieve INDUS's obligations specified in Section
3.4.
3.3 Termination by TenFold. TenFold may terminate this Agreement or any
license upon written notice if INDUS materially breaches this Agreement
and fails to correct the breach within 30 days following written notice
specifying the breach.
3.4 Effect of Termination. Termination of this Agreement or any license shall
not limit either party from pursuing other remedies available to it,
including injunctive relief. The parties' rights and obligations under
Sections 21.B, 21.C, 22, and Articles III, IV, and V shall survive
termination of this Agreement.
3.5 Handling of Programs Upon Termination. If a license granted under this
Agreement expires or otherwise terminates, INDUS shall (a) cease using
the applicable Programs, and (b) certify to TenFold within one month
after expiration or termination that INDUS has destroyed or has returned
to TenFold the Programs and all copies. This requirement applies to
copies in all forms, partial and complete, in all types of media and
computer memory, and whether or not modified or merged into other
materials.
IV. WARRANTY AND INDEMNITY
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4.1 TenFold Warranty. TenFold warrants that it owns all right, title, and
interest to, or has the full right to license any Program it subsequently
licenses to INDUS and that (i) any such Program will materially conform
to Documentation that is delivered with the Program, (ii) the Program has
been developed in a workmanlike manner, and (iii) the Program does not
infringe upon the copyright, patent, trade secret, and/or property rights
of any third party nor does it constitute a misappropriation of any
property rights.
4.2 Infringement Indemnity. TenFold will defend and indemnify INDUS against a
claim that the Programs infringe a third party's copyright, patent, or
other proprietary right provided that (a) INDUS notifies TenFold in
writing within 30 days of its receipt of notice of the claim; (b) TenFold
has sole control of the defense and all related settlement negotiations
provided that any such settlement shall not be adverse to the interests
of INDUS; and (c) INDUS provides TenFold with reasonable assistance,
information and authority necessary to perform TenFold's obligations
under this Section. TenFold shall have no liability for any claim of
infringement based on use of a superseded or altered release of Programs
if the infringement would have been avoided by the use of a current
unaltered release of the Programs which TenFold provides to INDUS at
least 90 days prior to the date of any alleged infringement.
In the event the Programs are held or are believed by TenFold to
infringe, or if INDUS is enjoined or otherwise prohibited from using the
Programs, TenFold shall have the option, at its expense, to (a) modify
the Programs to be noninfringing; (b) obtain for INDUS a license to
continue using the Programs; or if (a) and (b) are impracticable then (c)
terminate the license for the infringing Programs.
V. GENERAL TERMS
5.1 Nondisclosure. By virtue of this Agreement, the parties may have access
to information that is confidential to one another ("Confidential
Information"). Confidential Information includes, but is not limited to,
the Programs, data, trade secrets, business processes, organization
charts, customer information, the terms and pricing under this Agreement,
and all information clearly identified as confidential.
A party's Confidential Information shall not include information that (a)
is or becomes a part of the public domain through no act or omission of
the other party; (b) was in the other party's lawful possession prior to
the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on
disclosure or (d) is independently developed by the other party. INDUS
shall not disclose the results of any benchmark tests or any other
performance or usability information about the Programs to any third
party without TenFold's prior written approval.
The parties agree to hold each other's Confidential Information in
confidence. The parties agree, unless required by a lawful court order,
subpoena or similar legal request, not to make each other's Confidential
Information available in any form to any third party or to use each
other's Confidential Information for any purposes other than the
implementation of this Agreement. Each party agrees to take all
reasonable steps to ensure that Confidential Information is not disclosed
or distributed by its employees or agents in violation of the terms of
the Agreement.
Each party acknowledges that failure to comply with this Section 5.1 may
irreparably harm the business of the other party, and that a breach of
one party's obligations under this Section 5.1 shall entitle the other
party to seek immediate injunctive relief, in addition to any other
remedies that it may have.
5.2 Governing Law. This Agreement, and all matters arising out of or relating
to this Agreement, shall be governed by the laws of the State of
California, and shall be deemed to be executed in California.
5.3 Jurisdiction. Any legal action or proceeding relating to this Agreement
shall be instituted in a state or federal court in the Northern District
of California. TenFold and INDUS agree to submit to the jurisdiction of,
and agree that venue is proper in, these courts in any such legal action
or proceeding.
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5.4 Notice. All notices, including notices of address change, required to be
sent hereunder shall be in writing and shall be deemed to have been given
when mailed by first class mail to the addressees in the first paragraph
of this Agreement.
5.5 Limitation of Liability. Except in the event of any breach by INDUS of
the license terms in Section II above, or any breach of its obligations
in Section 5.1 above, in no event shall either party be liable for any
indirect, incidental, special or consequential damages, or damages for
loss of profits, revenue, data or use, incurred by either party or any
third party, whether in an action in contract or tort, even if the other
party has been advised of the possibility of such damages.
5.6 Severability. In the event any provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions of this Agreement will
remain in full force.
5.7 Waiver. The waiver by either party of any default or breach of this
Agreement shall not constitute a waiver of any other or subsequent
default or breach. Except for actions for breach of TenFold's proprietary
rights in the Programs, no action, regardless of form, arising out of
this Agreement may be brought by either party more than one year after
the cause of action has accrued.
5.8 Export Administration. INDUS agrees to comply fully with all relevant
export laws and regulations of the United States ("Export Laws") to
assure that neither the Programs nor any direct product thereof are (1)
exported, directly or indirectly, in violation of Export Laws or (2) are
intended to be used for any purposes prohibited by the Export Laws,
including, without limitation, nuclear, chemical or biological weapons
proliferation.
5.9 Relationship Between the Parties. TenFold is an independent software
company; nothing in this Agreement shall be construed to create a
partnership, joint venture or agency relationship between the parties.
5.10 Entire Agreement. This Agreement and the Exhibits constitute the complete
agreement between the parties and supersedes all prior or contemporaneous
agreements or representations, written or oral, concerning the subject
matter of this Agreement. This Agreement may not be modified or amended
except in a writing signed by a duly authorized representative of each
party; no other act, document, usage or custom shall be deemed to amend
or modify this Agreement.
The Effective Date of this Agreement shall be as of March 4, 1997.
Executed by INDUS Executed by TenFold:
Authorized Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Authorized Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO Title: President & CEO
Date: March 3, 1997 Date: March 3, 1997
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COMMISSION
Exhibit A
(to the Software License Agreement)
TenFold Architecture License
I. Description of Programs.
The TenFold Architecture ("Programs") is an integrated applications
software development technology for building sophisticated, mission-
critical, distributed software applications.
II. License Rights Granted.
II.A. TenFold grants to INDUS a nonexclusive, nontransferable license to use the
object code version of the Programs as follows:
i. to use the Programs to develop and maintain applications on an
unlimited number of computers within INDUS;
iii. to use the Documentation provided with the Programs in support of
INDUS's authorized use of the Programs;;
iv. to copy the Programs for archival or backup purposes; no other copies
shall be made without TenFold's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be
reproduced in such copies. All archival and backup copies of the
Programs are subject to the terms of this Agreement.
II.B INDUS may not sell, license, sublicense, or otherwise provide the Programs
or derivative Programs to any third party for relicensing, resale, or
other form of distribution;
II.C INDUS shall not copy or use the Programs (including the Documentation)
except as otherwise specified in this Agreement.
II.D TenFold shall retain all title, copyright, and other proprietary rights in
the Programs, and any enhancements made to the Programs by either party.
INDUS does not acquire any rights, express or implied, in the Programs,
other than those specified in the Agreement and related Exhibits. Subject
to TenFold's ownership of the Programs, INDUS retains all title,
copyright, and other proprietary rights in the applications it
independently develops with the Programs. INDUS acquires no rights to
distribute the Programs with these applications.
III. Enhancements to the Programs.
TenFold agrees to provide INDUS with all new releases of the Programs it
completes within 1997. TenFold has discussed it's development plans for
enhancing the TenFold Architecture with INDUS. TenFold agrees to use its
best efforts to complete these enhancements in 1997, which may include:
. Providing the TenFold Architecture in a Windows/NT Operating System
environment, including support for the desktop components of Active X
. Release configuration control
. An internet strategy
. An ability to couple the TenFold Architecture to the INDUS PORTAL/95
front end (e.g., through an API), providing a migration path for
existing INDUS clients
. Porting the TenFold architecture to OS/390
. Support for DB/2
. Providing the TenFold Architecture as a reporting tool for PASSPORT
objects
. Support for the MS SQLServer Database
IV. Support Services.
TenFold agrees to provide during 1997 telephone assistance with the
TenFold Architecture from TenFold technical staff during normal business
hours. During non-business hours, TenFold may provide access to technical
staff through a paging, on-call, or other similar method.
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INDUS agrees to purchase standard annual TenFold Architecture Support
Services for an annual fee of [XXXXX] to be invoiced and paid monthly in
arrears, commencing when requested by INDUS but in any event no later than
June 1, 1998.
INDUS may also obtain additional services from TenFold, at INDUS's option,
as described in Exhibit B.
V. Term.
This license grant shall remain in effect perpetually unless this license
or the Agreement is terminated as provided in Section 3.2 or 3.3 of the
Agreement.
VI. Competition.
INDUS develops and licenses applications in three functional areas: Work
Management, Materials and Procurement, and Safety and Compliance, for
process industries. TenFold agrees not to develop or license process-
industry-specific applications with similar functionality to INDUS's
current applications (as of the Effective Date of this Exhibit), and using
the TenFold Architecture, to customers in process industries. Process
industries shall mean electric utility, petrochemical, chemical refining,
steel and forest products companies whose primary business processes
involve converting raw materials into commodity materials. TenFold agrees
that if it licenses the Programs to companies in process industries, it
will license the Programs on an application by application basis (not a
site license for the TenFold Architecture), unless INDUS approves
otherwise. TenFold agrees not to license the TenFold Architecture to the
following seven INDUS competitors:
. SAP AG
. TSW International
. PSDI - Project Software Development, Inc.
. Marcom, Inc.
. Revere, Inc.
. ▇▇▇▇▇▇ ▇▇▇▇▇
. Synercom, a division of Health Care Computer Corporation
The term of this section VI. shall be until the earlier to occur of (a)
five years after the Effective Date of this Exhibit A, or (b) upon INDUS's
ownership of TenFold decreasing by 50% or more than that held by INDUS
immediately after the Effective Date of the Agreement unless extended at
the mutual agreement of the parties.
VII. Source Code Escrow.
Subject to a mutually acceptable agreement ("Escrow Agreement") among,
TenFold, INDUS, and a mutually agreed escrow agent. TenFold will deposit
into escrow (a) a copy of the Program source code no later than 60 days
from execution of the Escrow Agreement; (b) source code for major new
releases of the Programs provided under this Agreement or standard support
agreements, within 60 days of delivery to INDUS. The escrowed material
shall be maintained under an agreement which provides that if TenFold
enters into proceedings under Chapter 7 or 11 of the U.S. Bankruptcy Code
which are not dismissed within 60 days after their commencement, then
INDUS will be able to obtain the relevant escrowed material in accordance
with mutually agreed upon escrow release procedures. Any escrowed material
furnished under this provision shall be considered licensed subject to the
terms of this Agreement and related Exhibits and shall be used solely to
maintain the Programs. The parties shall evenly share the cost of the
escrow agent's fees for the arrangement.
VIII. Business Relationships.
TenFold and INDUS envision working together to develop new customer
relationship in the process industries and other industries, and for both
existing INDUS and TenFold applications as well as new
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applications. The parties agree to use reasonable efforts to develop a
mutually acceptable agreement defining the specific details of this
relationship (e.g., sales, marketing, licensing, ownership, service,
training and support arrangements).
The Effective Date of this Agreement shall be as of March 4, 1997.
Executed by INDUS Executed by TenFold:
Authorized Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Authorized Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO Title: President & CEO
Date: March 3, 1997 Date: March 3, 1997
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OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
Exhibit B
(to the Software License Agreement)
General Services
I. Description of Services.
INDUS retains TenFold to provide the following services:
. Research, analysis, problem solving, error correction, enhancements,
training, and other service related to the TenFold Architecture or
applications that INDUS develops with the TenFold Architecture, or
. Other services that INDUS may from time to time request and authorize
for TenFold to perform on its behalf.
II. Fees for Services.
In consideration for TenFold staff work, INDUS agrees to pay TenFold a
daily rate for the staff based upon the position held by such staff member.
TenFold's daily rates for staff positions and representative staff names
(which may change from time to time) are:
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Staff position title Names of staff Daily rate
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Senior manager ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ [XXXXX]
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Senior technologist ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, [XXXXX]
et cetera
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Manager ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Al [XXXXX]
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, et cetera
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Developer ▇▇▇▇ ▇▇▇▇▇▇▇, Terek El-Sadany, [XXXXX]
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Emmet Sun, et cetera
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For any on-site services requested by INDUS, INDUS shall reimburse
TenFold for actual, reasonable travel and out-of-pocket expenses incurred.
TenFold agrees to invoice INDUS weekly.
III. Approval to provide Services.
INDUS requires and TenFold agrees that no service are to be provided
under this Exhibit without written approval to do so. Such approval can
only be granted by ▇▇▇▇▇▇ ▇▇▇▇▇▇ or a successor to such person designated
by INDUS.
The Effective Date of this Exhibit shall be as of March 4, 1997.
Executed by INDUS Executed by TenFold:
Authorized Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Authorized Signature: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President & CEO Title: President & CEO
Date: March 3, 1997 Date: March 3, 1997
[XXXXX] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION