PORTAL PROPRIETARY & CONFIDENTIAL
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated by [*****]. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
EXHIBIT 10.9
SOFTWARE LICENSE AND SUPPORT AGREEMENT
This Software License and Support Agreement is entered into by and between
Portal Software, Inc, a Delaware corporation with principal offices at ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Portal") and VIA Net
Works UK, Limited a limited liability company duly organized under the laws of
the United Kingdom, with principal offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. ("Licensee") and describes the terms and
conditions pursuant to which Portal shall license to Licensee and support
certain Licensed Software (as defined below). This Agreement shall become
effective on the date it is signed by Portal ("Effective Date").
1 1 Definitions
1.1 "Affiliate" means an entity Controlled by VIA ▇▇▇.▇▇▇▇▇ Inc. or its
Affiliates, or Controlling, a Party, where Control means the ownership or
control, directly or indirectly, of more than fifty percent (50%) of the
voting power of the shares (or other securities or rights) entitled to vote
for the election of directors or other governing authority, as of the
Effective Date of the Agreement or thereafter while this Agreement remains
in effect; provided that such entity shall be considered a Affiliate only
for the time during which such Control exists.
1.2 "Agreement" means this Software License and Support Agreement, including
any and all attached Schedules.
1.3 "Application" means the specific Application set forth in Schedule A hereto
of the Licensed Software running on one or more related computers at a
single location, that share the same Licensed Software Database.
1.4 "Confidential Information" means this Agreement and all its Schedules, any
addenda hereto signed by both parties, all software listings,
Documentation, information, data, drawings, benchmark tests,
specifications, trade secrets, strategic business information, market
information, marketing information, customer information, object code and
machine-readable copies of the Licensed Software, and any other proprietary
information supplied to Licensee by Portal or by Licensee to Portal which
is clearly marked as "confidential" if in tangible form, or identified as
"confidential" if orally disclosed. Further, any information which by its
nature or character or by the circumstances surrounding disclosure should
reasonably be deemed confidential shall be deemed Confidential Information
under this Agreement.
1.5 "Documentation" means the documentation and user manuals relating to the
use of the Licensed Software delivered by Portal to Licensee in either
printed or electronic form.
1.6 "Licensed Software" means (i) the software products designated on Schedule
A hereto provided to Licensee by Portal in executable form (but not the
Source Code), (ii) Documentation, (iii) any source code or object code
which Portal in its sole discretion may provide to Licensee from time to
time and (iv) any Updates, modifications, maintenance releases, bug fixes
or work-arounds which Portal may provide to Licensee from time to time.
1.7 "Licensed Software Database(s)" means any customer database(s) associated
with the Licensed Software which contains the Customer Records.
1.8 "Production Site(s)" means the address and location of the server
computer(s) on which the Licensed Software will be installed as set forth
on Schedule A as such addresses and locations may be modified from time to
time by Licensee on written notice to Portal.
1.9 "Restricted Release" means any version of the Licensed Software marked
alpha, beta or which is otherwise designated as a Restricted Release.
1.10 "Subscriber" means an individual customer record account object ("Customer
Record") in the Licensed Software Database. The total number of Subscribers
is exactly equal to the number of Customer Records in the Licensed Software
Database. If the Licensed Software is used to authenticate, ▇▇▇▇, rate or
otherwise track the activities of individual users within a corporate or
group account, each such individual user will be deemed a Subscriber for
the purposes of this Agreement.
1.11 "Updates" means any changes to the Licensed Software licensed hereunder
which Portal, in its discretion, makes generally available to its Licensed
Software licensees. Updates includes, without limitation, all major and
minor releases of the Licensed Software, but does not include new products,
features or modules which Portal licenses separately.
2 Grant of License
2.1 For so long as this Agreement remains in force Portal grants to Licensee a
perpetual, non-exclusive and non-transferable right to use the Licensed
Software at the designated Production Sites only for the specified
Application. Licensee may possess only the number of copies of any Licensed
Software necessary for the type of use specified herein and may use such
copies only in accordance with this Agreement and the Documentation. Portal
shall at all times retain ownership of all Licensed Software including any
Documentation and any copies thereof. Licensee may sublicense the licenses
granted in this Section 2 to its Affiliates provided that
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PORTAL PROPRIETARY & CONFIDENTIAL
(i) each such Affiliate shall become bound in writing (for Portal's
benefit) to Licensee's obligations under the Agreement, (ii) Licensee
assumes full responsibility for and guarantees the compliance of its
Affiliates with all such obligations (including without limitation all
payment obligations accrued by an Affiliate).
2.2 Portal will deliver to Licensee, as soon as is practicable, the necessary
password to enable Licensee to download from Portal's website one
machine-readable copy of the Licensed Software per each Production Site,
along with one machine-readable copy of the Documentation. Licensee may
not reproduce Licensed Software or Documentation except as expressly
provided under this Agreement.
2.3 Licensee may copy the Licensed Software and Documentation for backup,
testing and other internal, non-production uses or archival purposes
provided that all titles, trademark symbols, copyright symbols and
legends, and other proprietary markings are reproduced.
2.4 Licensee shall be permitted to develop, use and modify APIs, macros and
user interfaces provided by Portal. For the purposes of this Agreement,
such development shall be deemed an authorized modification of the
Licensed Software.
2.5 Portal grants and Licensee receives no other rights or licenses to the
Licensed Software, derivative works (as defined in the United States
copyright Act of 1976, Title 17 USC Section 101 et. Seq.) or any
intellectual property rights related thereto, whether by implication,
estoppel or otherwise, except those rights expressly granted in this
Section 2.
3 LICENSE RESTRICTIONS
3.1 Licensee agrees, except to the extent provided by Section 2.1 above, that
it will not itself, or through any parent, subsidiary, affiliate, agent
or other third party:
3.1.1 sell, lease, license, sublicense, or encumber with any portion of the
Licensed Software or Documentation;
3.1.2 except to the minimum extent necessary to comply with EC Directive, if
applicable, or other applicable legislation, decompile, disassemble,
or reverse engineer any portion of the Licensed Software or attempt to
discover any source code or underlying ideas or algorithms of any
Licensed Software;
3.1.3 other than to the extent permitted by Section 2.4 above, create any
Derivative Work based on the Licensed Software or any Portal
Confidential Information;
3.1.4 except to the extent provided by Section 2.1 above, use the Licensed
Software to provide processing services to third parties, commercial
timesharing, rental or sharing arrangements, or on a "service bureau"
basis or otherwise use or allow others to use the Licensed Software
for the benefit of any third party;
3.1.5 provide, disclose, divulge or make available to, or permit use of the
Licensed Software by persons other than employees and subcontractors
of Licensee and its Affiliates who are bound by confidentiality
obligations consistent with the terms and provisions herein, without
Portal's prior written consent;
3.1.6 use any Licensed Software, or allow the transfer, transmission,
export, or re-export of any Licensed Software or portion thereof in
violation of any export control laws or regulations administered by
the U.S. Commerce Department, OFAC, or any other government agency.
All the limitations and restrictions on the Licensed Software in this
Agreement also apply to the Documentation. At the present time, Portal
warrants that as of the Effective date the Licensed Software may be
exported to the European Union, Switzerland, Brazil, Argentina and/or
Mexico.
4 PAYMENTS AND TAXES
4.1 Unless otherwise agreed in writing, all payments due hereunder shall be
made in U.S. dollars. In addition to any remedies Portal may have
hereunder or at law, any payments more than forty five (45) days overdue
will bear a late payment fee of 1.5% per month, or, if lower, the maximum
rate allowed by law. Delinquency in payment will result in a delay or
suspension of the Licensed Software implementation timetable or services
(including Support Services) provided by Portal. Resumption of services
will occur after Licensee has brought itself current on all of its
outstanding payment obligations to Portal. The services will be scheduled
in accordance with the availability of Portal resources. Portal will not
be liable for any damages caused by rescheduling of suspended services
pursuant to this Section 4.1.
4.2 Licensee agrees to pay or reimburse Portal for all federal, state,
dominion, provincial, or local sales, use, personal property, payroll,
excise or other taxes, fees, or duties arising out of this Agreement or
the transactions contemplated by this Agreement (other than taxes on the
net income of Portal.) If any tax is payable by Licensee under this
Section 4.2, then the Licensee shall provide evidence of payment to
Portal and Portal shall use all reasonable efforts to obtain a credit,
rebate, or benefit for that amount against its own tax, and if it
receives such credit, rebate, or benefit it shall refund to Licensee an
amount equal to the lesser of the amount paid by Licensee and the credit,
rebate, or benefit obtained by Portal.
5 LICENSE FEE
In consideration of the rights granted herein, Licensee shall pay Portal the
license fee(s) as set forth in Schedule A. 6 Maintenance and Technical Support
6 MAINTENANCE AND TECHNICAL SUPPORT
6.1 Upon payment of the annual maintenance and support fee set forth on
Schedule A, Licensee shall be entitled to receive Updates and technical
support in accordance with Portal's Gold Level Support Policy ("Support
Services). Portal's current Gold Level Support Policy appears at Schedule
B. Support Services shall commence on the Effective Date of this
Agreement.
6.2 In the event Licensee fails to make any required Support Services payment
or otherwise elects to
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PORTAL PROPRIETARY & CONFIDENTIAL
discontinue Support Services, Portal shall have no obligation to provide
the Support Services described in this Section 6. In order to reinstate or
renew Support Services, Licensee must first pay Portal the then current
annual support services fee and all past support service fees. In the event
Licensee fails to make any required payment or in the event Licensee
breaches any of its material obligations under the Support Services
provisions and such breach has not been cured within sixty (60) days of
receipt of notice of breach, Portal may suspend or cancel Support Services.
No Updates of the Licensed Software will be provided to Licensee and no
Updates may be copied by Licensee to update any copies of the Licensed
Software unless Support Services have been purchased for such copies.
Support Services fees shall be billed on an annual basis, payable in
advance.
6.3 Portal shall have no obligation to support (a) altered, damaged or modified
Licensed Software (except as authorized by Portal) or any portion of the
Licensed Software incorporated into other software, (b) Licensed Software
that is not the then current or immediately previous sequential release,
but in any event Portal shall support each major release of the Licensed
Software for at least eighteen (18) months from its initial applicable
release date and at least six months from the initial general availability
of the next major release, (c) problems caused by Licensee's gross
negligence, abuse, or misapplication, or use of the Licensed Software other
than as specified in all material respects in Portal's user documentation
or other causes beyond the control of Portal, or (d) Licensed Software
installed in an operating environment or hardware environment for which the
Licensed Software has not been licensed. Portal shall have no liability for
any changes in Licensee's hardware which may be necessary to use the
Licensed Software.
6.4 Portal reserves the right to change its technical support guidelines and
procedures provided (i) Portal provides Licensee with at least sixty (60)
days prior written notice of such changes, and (ii) such changes do not
diminish Portal's overall technical support obligations to Licensee in any
material respect.
7 Restricted Release
If Licensee is selected for participation and elects to participate in a
Restricted Release program, Licensee agrees (i) Portal shall have no obligation
to correct errors in or deliver updates to the Restricted Release, (ii) Portal
shall have no obligation to otherwise support the Restricted Release, (iii)
Licensee will provide Portal with appropriate test data for the Restricted
Release if necessary to resolve problems in the Restricted Release encountered
by Licensee and will promptly report to Portal any error discovered in the
Restricted Release, (iv) the Restricted Release is experimental, may contain
problems and errors and is being provided to Licensee on an "AS-IS" basis with
no warranty of any kind, express or implied, (v) neither party will be
responsible to the other for any losses, claims or damages of whatever nature,
arising out of or in connection with the performance or nonperformance of the
Restricted Release, (vi) Licensee will not use the Restricted Release in
production applications without the prior written approval of Portal, and (vii)
Licensee will stop using and return or destroy any Restriction Release promptly
upon Portal's request.
8 Termination
8.1 This Agreement commences on the Effective Date and will remain in force
until it is terminated.
8.2 Portal may, by written notice to Licensee, terminate this Agreement if for
nonpayment or if Licensee is in breach in any material respect of Sections
2, 3, or 14 of this Agreement, which nonpayment or breach is not cured
within thirty (30) days after Portal gives Licensee written notice of such
breach;
8.3 Termination will become effective immediately or on the date set forth in
the written notice of termination and any payment obligations under this
Agreement shall immediately become due and owing. Termination of this
Agreement will not affect the provisions regarding Licensee's or Portal's
treatment of Confidential Information, provisions relating to the payments
of amounts due, provisions limiting or disclaiming Portal's liability,
and/or provisions regarding applicable law, which provisions will survive
termination of this Agreement. In the event of such termination of this
Agreement or any Licensed Software product license granted hereunder,
Portal will promptly refund all applicable pro-rated, prepaid annual
maintenance Support Services fees relating to the period following the
termination.
8.4 Upon termination, all licenses granted hereunder shall cease to be
effective and Licensee shall immediately cease all use of any affected
Licensed Software, Documentation and Portal Confidential Information.
8.5 Within fourteen (14) days of the date of termination or discontinuance of
this Agreement for any reason whatsoever, Licensee shall return the
Licensed Software and all copies thereof, in whole or in part, all related
Documentation and all copies thereof, and any other Confidential
Information in its possession. Licensee shall furnish Portal, at Portal's
request, with a certificate signed by an executive officer of Licensee
verifying that the same has been done.
8.6 Termination is not an exclusive remedy and all other remedies will be
available whether or not termination occurs.
9 Patent and copyright indemnity
9.1 Portal will defend and indemnify Licensee for all costs (including
reasonable attorneys fees) arising from a claim that the Licensed Software
infringes a copyright or patent or constitutes a violation of a trade
secret provided that (i) Licensee notifies Portal in writing within thirty
(30) days of the claim (ii) Portal has sole control of the defense and all
related settlement negotiations, and (iii) Licensee provides Portal with
the assistance, information, and authority necessary to perform the above;
reasonable out-of- pocket expenses incurred by Licensee in providing such
assistance will be reimbursed by Portal.
9.2 Portal shall have no liability for any claim of infringement based on (i)
use of a superseded or altered release of the Licensed Software, except for
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PORTAL PROPRIETARY & CONFIDENTIAL
which alteration(s) or modification(s) has been made by Portal or under
Portal's direction, if such infringement would have been avoided by the use
of the current unaltered release of the Licensed Software that Portal
provides to Licensee, or (ii) the combination, operation, or use of any
Licensed Software furnished under this Agreement with programs or data not
furnished by Portal if such infringement would have been avoided by the use
of the Licensed Software without such programs or data.
9.3 In the event that the Licensed Software is held or believed by Portal to
infringe, or Licensee's use of the Licensed Software is enjoined, Portal
shall have the option, at its expense, and preferably in the following
order to the extent commercially practicable, (a) obtain for Licensee a
license to continue using the Licensed Software, (b) modify the Licensed
Software to be non-infringing in a manner that does not materially reduce,
restrict or adversely impact the functionality of the Licensed Software,
(c) substitute the Licensed Software with other software reasonably
suitable to Licensee, or (d) if none of the foregoing remedies are
commercially feasible, terminate the license for the infringing Licensed
Software and refund the fees paid for that Licensed Software, prorated over
a five-year term from the Effective Date of this Agreement or applicable
amendment or additions schedule. This Section 9.3 states Portal's entire
liability for infringement.
10 Warranty
10.1 Portal warrants that it has title to and/or the authority to grant licenses
of the Licensed Software, including without limitation, any third party
products that may contained therein or distributed therewith.
10.2 Portal warrants to Licensee that the Licensed Software will perform in
substantial accordance with the Documentation for a period of one hundred
eighty (180) days from the Effective Date. If the Licensed Software does
not perform as herein warranted, Portal shall undertake at its own expense
to correct the non- conforming part of the Licensed Software. If correction
is not reasonably possible or commercially practicable, Portal shall refund
the monies paid by Licensee for that non-conforming Licensed Software.
10.3 Portal warrants that the Licensed Software is designed to be used prior to,
during and after the calendar year 2000 and that the Licensed Software will
operate during each such time period without error relating to, or the
product of, date data which references different centuries or more than one
century. If the Licensed Software does not perform as warranted, Portal
shall undertake at its own expense to correct the non-conforming part of
the Licensed Software, or if correction is reasonably not possible, replace
such non-conforming part of the Licensed Software free of charge. If
neither of the foregoing is commercially practicable, Portal shall refund
the license and annual maintenance support fees paid by Licensee for the
non-conforming Licensed Software. If a refund is made in the manner herein
contemplated, the parties will amend the definition of "Licensed Software"
in Schedule A to reflect the same. The foregoing Year 2000 Warranty shall
not apply (i) if the Licensed Software is used or interfaced with other
software, data or operating systems which are not Year 2000 compliant, (ii)
if the Licensed Software has been modified in a manner not authorized by
Portal, or (iii) if Licensee fails to install an Update if the
non-compliance would have been avoided by installation of such Update.
10.4 Portal's warranty obligations as set forth above are made to and for the
benefit of Licensee only and shall be enforceable against Portal only if:
10.4.1 The Licensed Software has been properly installed and has been used
at all times in accordance with the Documentation and this Agreement;
10.4.2 All modifications, alterations or additions to the Licensed Software, if
any, have been made using Licensed Software Customization Tools provided
by Portal to Licensee or in a manner authorized by Portal.
10.5 Except as set forth in this Section 10, Portal makes no warranties, whether
express or implied, or statutory regarding or relating to the Licensed
Software or the Documentation, or any materials or services furnished or
provided to Licensee under this Agreement. Specifically, Portal does not
warrant that the Licensed Software will be error free or will perform in an
uninterrupted manner. To the maximum extent allowed by law, Portal
specifically disclaims all implied warranties of merchantability and
fitness for a particular purpose (even if Portal had been informed of such
purpose) with respect to the Licensed Software, Documentation and support
and with respect to the use of any of the foregoing.
11 Limitation of liability
11.1 IN NO EVENT WILL PORTAL OR ITS SUBCONTRACTORS BE LIABLE FOR ANY LOSS OF
PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN
CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE
LICENSED SOFTWARE OR SERVICES PERFORMED HEREUNDER OR ANY DELAY IN DELIVERY
OR FURNISHING THE LICENSED SOFTWARE OR SAID SERVICES WHETHER ALLEGED AS A
BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF
PORTAL HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11.2 PORTAL'S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES OR LOSS, HOWSOEVER ARISING
OR CAUSED, WHETHER OR NOT ARISING FROM PORTAL'S NEGLIGENCE, SHALL IN NO
EVENT BE GREATER THAN (A) IN THE EVENT SUCH DAMAGE IS NOT RELATED TO
SUPPORT, THE LICENSE FEE SPECIFIED IN SCHEDULE A RELATED TO THE PARTICULAR
LICENSED SOFTWARE PROGRAM WHICH CAUSED THE DAMAGE OR LOSS, OR (B) IN THE
EVENT SUCH DAMAGE OR LOSS IS RELATED TO SUPPORT, THE SUPPORT FEES PAID BY
LICENSEE FOR THE THEN CURRENT SUPPORT TERM.
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PORTAL PROPRIETARY & CONFIDENTIAL
11.3 No employee, agent, representative or affiliate of Portal has authority to
bind Portal to any oral representations or warranty concerning the Licensed
Software. Any written representation or warranty not expressly contained in
this Agreement is unenforceable.
12 AUDIT RIGHTS/QUARTERLY REPORTS
12.1 Licensee shall keep and maintain full and accurate records regarding its
obligations under this Agreement and the number of Subscribers of the
Licensed Software Database. Portal or its representatives shall be entitled
to review and audit such books and records, no more often than once per
year, and/or Licensee's compliance with the provisions of this Agreement
from time to time during normal business hours by providing written notice
to Licensee at least ten (10) business days prior to such audit. If any
such audit reveals a deficiency in any amounts due to Portal hereunder,
Licensee will immediately pay such amounts as are required to re-establish
compliance with the terms of this Agreement.
12.2 Commencing on the third anniversary of the Effective Date, Licensee will
provide Portal with annual reports setting forth the gross annual revenue
(to be determined in accordance with GAAP) for Licensee and its Affiliates
for the immediate preceding year and a reasonable description of any
amounts owed to Portal under this Agreement.
13 ASSIGNMENT/BINDING AGREEMENT
13.1 Neither this Agreement nor any rights under this Agreement may be assigned
or otherwise transferred by Licensee (by operation of law or otherwise), in
whole or in part, without Portal's prior written consent. Notwithstanding
the foregoing:
13.1.1 In the event that Licensee is acquired by a third party by way of merger,
acquisition, or a sale of all or substantially all of Licensee's assets
in one or more related transactions, but where there is no co-mingling of
the assets of Licensee and the third party acquirer, such acquisition
shall not be deemed a prohibited transfer or assignment and Licensee and
its Affiliates shall have the right to continue using the Licensed
Software as if no such transfer or assignment had occurred and the third
party acquirer and its affiliates (excluding Licensee and its Affiliates)
shall have no rights to use the Licensed Software.
13.1.2 Subject to Section 13.2 below, Licensee may assign this Agreement in its
entirety to an Affiliate by providing written notice to Portal.
13.1.3 Subject to Sections 13.1.4, 13.1.5, and 13.2 below, Licensee may assign
this Agreement in its entirety by way of merger, acquisition or sale of
all or substantially all of its voting rights in one or more related
transactions.
13.1.4 In the event of an assignment of this Agreement pursuant to Section
13.1.3 above occurring within three years of the Effective Date, the
number of Subscribers in the Licensed Software Database(s) shall be
counted immediately prior to the assignment and the acquiring entity and
the original VIA ▇▇▇.▇▇▇▇▇ Inc. Affiliates shall have a perpetual license
for that number of Subscribers plus 10% (which number shall be
distributed across the acquiring entity and the Affiliates). The annual
maintenance Support Services fee for those Subscriber licenses shall be
an amount equal to 20% of the aggregate license fees due or paid to
Portal on the first day of the applicable annual maintenance Support
Services term. During the six month period immediately following the
assignment Portal will negotiate in good faith with the acquiring entity
to determine the applicable future license and Support Services fees.
13.1.5 In the event of a transfer or assignment of this Agreement pursuant to
Section 13.1.3 above occurring more than three years from the Effective
Date, the acquiring entity and the original Affiliates shall be permitted
to continue using the Licensed Software for up to six (6) months
following the assignment provided such entity and Affiliates shall pay
Portal all amounts (appropriately adjusted to reflect the six months of
usage) that would have been owed by Licensee and its Affiliates had no
assignment occurred. During the aforementioned six month period Portal
will negotiate in good faith with the acquiring entity to determine the
applicable future license and Support Services fees.
13.2 Notwithstanding the foregoing or anything else in this Agreement, no
transfer or assignment of this Agreement shall be effective unless and
until (i) the purported assignee/transferee becomes bound in writing to all
of Licensee's obligations under this Agreement; (ii) Licensee must not be
in default of any material provision of this Agreement, including without
limitation any payment obligations hereunder, at the time of transfer or
assignment. The license(s) transferred to the assignee/transferee shall be
restricted to the continued operation of Licensee's original business and
Application and shall not apply to other businesses of the
assignee/transferee, even if such businesses are similar to or the same as
the original Application. Further, the rights granted to Licensee with
respect to its Affiliates shall not be applicable to the subsidiaries or
affiliates of the assignee/transferee.
14 CONFIDENTIALITY
14.1 Each Party acknowledges that the Confidential Information constitutes
valuable trade secrets and each party agrees that it shall use the
Confidential Information of the other party solely in accordance with the
provisions of this Agreement and it will not disclose, or permit to be
disclosed, the same directly or indirectly, to any third party without the
other party's prior written consent. Each party agrees to exercise due care
in protecting the Confidential Information from unauthorized use and
disclosure. However, neither party bears any responsibility for
safeguarding any information that it can document in writing (i) is in the
public domain through no fault of its own, (ii) was properly known to it,
without restriction, prior to disclosure by Disclosing Party, (iii) was
properly disclosed to it, without restriction, by another person with the
legal authority to do so, (iv) is independently developed by Receiving
Party without use or reference to Disclosing Party's
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PORTAL PROPRIETARY & CONFIDENTIAL
Proprietary Information or (v) is required to be disclosed pursuant to a
judicial or legislative order or proceeding; provided that, to the extent
permitted by and practical under the circumstances, Receiving Party
provides to Disclosing Party prior notice of the intended disclosure and an
opportunity to respond or object to the disclosure or if prior notice is
not permitted or practical under the circumstances, prompt notice of such
disclosure.
14.2 In the event of actual or threatened breach of the provisions of Section 3
or Section 14, the non-breaching party will be entitled to immediate
injunctive and other equitable relief, without bond and without the
necessity of showing actual damage.
15 NOTICE
Any notice required or permitted under the terms of this Agreement or required
by law must be in writing and will be deemed delivered on the date set forth in
the written notice of confirmation of delivery. Notice will be sent to the
following addresses:
For Licensee:
Director of Information Technology
VIA ▇▇▇.▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
cc:
General Counsel
VIA ▇▇▇.▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
For Portal:
General Counsel
Portal Software, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
16 MISCELLANEOUS
16.1 Force Majeure. Neither party will incur any liability to the other on
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account of any loss or damage resulting from any delay or failure to
perform all or any part of this Agreement if such delay or failure is
caused, in whole or in part, by events, occurrences, or causes beyond its
control and without negligence of the parties. Such events, occurrences or
causes will include, without limitation, acts of God, strikes, lockouts,
riots, acts of war, earthquakes, fire and explosions, but the ability to
meet financial obligations is expressly excluded.
16.2 Waiver. Any waiver of the provisions of this Agreement or of a party's
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rights or remedies under this Agreement must be in writing to be effective.
Failure, neglect or delay by a party to enforce the provisions of this
Agreement or its rights or remedies at any time will not be construed to be
deemed a waiver of such party's rights under this Agreement and will not in
any way affect the validity of the whole or any part of this Agreement or
prejudice such party's right to take subsequent action.
16.3 Severability. If any term, condition or provision in this Agreement is
------------
found to be invalid, unlawful or unenforceable to any extent, the parties
shall endeavor in good faith to agree to such amendments that will
preserve, as far as possible, the intentions expressed in this Agreement.
If the parties fail to agree on such an amendment, such invalid term,
condition or provision will be severed from the remaining terms, conditions
and provisions, which will continue to be valid and enforceable to the
fullest extent permitted by law.
16.4 Entire Agreement. This Agreement (including the Schedules and any addenda
----------------
hereto signed by both parties) contains the entire agreement of the parties
with respect to the subject matter of this Agreement and supercedes all
previous communications, representations, understandings and agreements,
either oral or written, between the parties with respect to said subject
matter.
16.5 Standard Terms of Licensee. No terms, provisions or conditions of any
--------------------------
purchase order, acknowledgement or other business form that Licensee may
use in connection with the acquisition or licensing of the Licensed
Software will have any effect on the rights, duties or obligations of the
parties under, or otherwise modify, this Agreement, regardless of any
failure of Portal to object to such terms, provisions, or conditions.
16.6 Public Announcements/Publicity. Licensee and Portal agree to cooperate
------------------------------
regarding mutually agreed upon public relations activities, including
public announcements, joint press releases, and other activities to be
mutually agreed. Neither party will perform such activities without the
prior written consent of the other party, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, the parties will
cooperate in good faith to issue a mutually acceptable joint press releases
within 30 days of the Effect Date and within 30 days of the first
production use of the Licensed Software. Licensee agrees to participate, on
a commercially reasonable basis, with Portal in joint marketing and public
relations activities including without limitation issuance of a joint press
release and, at Portal's request, participation in Portal's Success Stories
customer profile program; provided that any material expenses incurred by
Licensee in such participation shall be borne by Portal. Notwithstanding
anything else in this Agreement, neither party shall be precluded from
making disclosures concerning the subject matter of this Agreement to the
extent such disclosures are required to comply with securities law, court
order or similar order of an administrative or regulatory agency. Further,
either party shall be entitled to disclose this Agreement and its terms and
conditions to its financing source, auditors, attorneys and other agents to
the extent necessary to enforce such party's rights or perform its
obligations pursuant to this Agreement; provided that such financing
sources, auditors, attorneys and agents keep such information confidential.
Licensee agrees to be a reference account for Portal and will participate
in at least four (4) telephone reference inquiries per year and at least
one (1) onsite visit per year provided that Portal shall give Licensee
reasonable advanced notice of not less than (i) 48 hours in the case of a
telephone reference visit and (ii) 7 days in the case of an onsite visit.
Further,
Software License & Support Agreement Page 6 of 7
PORTAL PROPRIETARY & CONFIDENTIAL
Portal shall be permitted to identify Licensee as a customer so long as
such use does not imply endorsement. Licensee shall not be required to host
any direct competitor of Licensee and Licensee reserves the right to
approve in advance all hosting dates and times.
16.7 Counterparts. This Agreement may be executed in counterparts, each of which
------------
so executed will be deemed to be an original and such counterparts together
will constitute one and the same Agreement.
16.8 Applicable Law. This Agreement will be interpreted and construed pursuant
--------------
to the laws of the State of California and the United States without regard
to conflict of laws provisions thereof, and without regard to the United
Nations Convention on the International Sale of Goods. Any legal action or
proceeding relating to this Agreement shall be instituted in a state or
federal court in Santa ▇▇▇▇▇ County, California. Portal and Licensee agree
to submit to the jurisdiction of, and agree that venue is proper in, these
courts in any such action or proceeding. The prevailing party in any action
to enforce this Agreement will be entitled to recover its attorney's fees
and costs in connection with such action. Licensee represents that it is
not a government agency and it is not acquiring the license pursuant to a
government contract or with government funds.
IN WITNESS WHEREOF, the authorized representatives of the parties hereby bind
the parties by signing below:
VIA Net Works UK, Limited
"Licensee"
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: Director
----------------------------------
Date: 10-25-99
-----------------------------------
Portal Software, Inc.
"Portal"
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Title: General Counsel
----------------------------------
Date: 10-29-99
-----------------------------------
Software License & Support Agreement Page 7 of 7
Portal Proprietary & Confidential
SCHEDULE A
SECTION 1.0 LICENSED SOFTWARE
The following Portal Software products and their associated online documentation
will be provided by Portal and will comprise the "Licensed Software":
. Infranet 6.0 (including DNA Manager, Business Account Manager and Virtual
ISP Manager and Infranet 5.5.3 and the following language localizations:
English, French, German, Spanish, Japanese, Simplified Chinese,
Traditional Chinese and Korean)
. Infranet Report Developer, including one (1) Seagate(R) Crystal Info
Designer Add-in Tool and five (5) Seagate(R) Crystal Info Desktop Client
Licenses
. Infranet standard issue policy facilities modules source code and
application programming interfaces
. Dial-up Manager
. Mail Server Manager
. LDAP Manager
SECTION 2.0 APPLICATION DESCRIPTION//INITIAL SUBSCRIBER LIMIT
2.1 Application: Billing and customer care of Subscribers to Licensee's ISP
services.
2.2 Initial Subscriber Limit: Unlimited during the initial seven year term of
this Agreement. Six months prior to the seventh year anniversary of the
Effective Date of this Agreement the parties will negotiate in the good
faith the license and maintenance Support Services fees going forward.
The parties will take into consideration such factors as Portal's then-
current pricing in license agreements entered into with customers
licensing the Licensed Software in comparable volumes for the same
Application. If the parties, despite their good faith efforts, are unable
to reach agreement by the seventh anniversary of the Effective Date this
Agreement, Licensee shall have a perpetual license to use the Licensed
Software for the number and type of Subscribers in the Licensed Software
Databases on the last day of the seven year term. Unless the parties
otherwise agree in writing, the annual Gold Level support fee after the
seven year term shall be equal to the annual Gold Level Maintenance
Support Services fee for the seventh year increased annually by the then-
current CPI. The foregoing shall not preclude Licensee from changing to
another then-offered Support Services plan or terminating Support
Services at Licensee's option.
SECTION 3.0 INSTALLATION SITES
3.1 Production Site(s): [to be determined]
3.2 Development Site(s): [to be determined]
3.3 Backup Site(s): [to be determined]
SLSA Schedule A Page A-1
Portal Proprietary & Confidential
*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.*****
SECTION 4.0 LICENSE AND MAINTENANCE SUPPORT SERVICE FEES
4.1 Software License Fees
--------------------------------------------------------------------------------------------------------------------
Description License Fees Payment Due Dates
--------------------------------------------------------------------------------------------------------------------
License Fee Payment No. 1 [*****] December 1, 1999
--------------------------------------------------------------------------------------------------------------------
License Fee Payment No. 2 [*****] June 1, 2000
--------------------------------------------------------------------------------------------------------------------
License Fee Payment No. 3 [*****] December 1, 2000
--------------------------------------------------------------------------------------------------------------------
The foregoing table sets forth the non-refundable, non-cancelable license
fees for the Licensed Software for the Application for an unlimited number of
Subscribers for the first three years of this Agreement. Within thirty (30) days
of the fourth (4th) anniversary of the Effective Date, Licensee will provide
Portal with a written report setting forth the total annual gross revenues
(under GAAP) for Licensee and its Affiliates in connection with the Application
("Annual Revenue"). Licensee will pay Portal a license fee in an amount equal to
[*****] less an amount equal to all Licensed Software license fees previously
paid to Portal under this Agreement. Licensee will provide Portal with similar
Annual Revenue reports and associated payments on the 5th, 6th and 7th
anniversaries of the Effective Date.
4.2 Annual Gold Level Support Services Fees
Portal will provide one year of Gold Level Maintenance Support Services for
the number of Subscribers set forth in Section 2.2 above for the annual fees set
forth below.
--------------------------------------------------------------------------------------------------------------------
Portal Support Services Annual Fee Annual Payment Date
--------------------------------------------------------------------------------------------------------------------
December 1, 1999
Gold Level Support Services [*****] --------------------------------------
(first three (3) years) December 1, 2000
--------------------------------------
December 1, 2001
--------------------------------------------------------------------------------------------------------------------
After the first three years the annual fee for Gold Level maintenance
Support Services shall be calculated as being an amount equal to 20% of the
aggregate license fees paid to Portal plus all license fees due or payable on or
before the time of maintenance Support Services renewal.
SLSA Schedule A Page A-2