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EXHIBIT 10.19
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement ("Agreement") is made and entered
into as of this 21st day of May, 1999, between BroadVision, Inc. ("BroadVision")
and
Company ▇▇▇▇.▇▇▇
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("Customer")
Address ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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In consideration of the mutual covenants and conditions contained in this
Agreement, the parties agree as stated herein. The following attachments,
required when applicable, are also part of this Agreement:
A. Current Licensing Practices
B. Required Provisions of Sublicenses
C. Professional Services Terms & Conditions
1. LICENSE.
A. BroadVision hereby grants to Customer a perpetual (unless terminated as
set forth herein), nonexclusive, and nontransferable license, subject to
the terms and conditions of this Agreement, to use the object code for the
Software. For the purpose of this Agreement, "Software" shall mean all
versions, including current, previous, and subsequent versions, of all
software products, together with operating instructions, user manuals,
training material, and other documentation as may, in BroadVision's sole
discretion, be supplied to Customer.
B. Customer may use the Software in accordance with BroadVision's published
licensing practices in force at the time of delivery of the applicable
Software products. BroadVision's current licensing practices are as set
forth in Attachment A.
C. Customer may not (a) rent, lease, or loan the Software; (b) electronically
transmit the Software over a network except as necessary for Customer's
licensed use of the Software; (c) use run-time versions of third-party
products embedded in the Software, if any, for any use other than the
intended use of the Software, (d) modify, disassemble, decompile, or
reverse engineer the Software; (e) transfer possession of any copy of the
Software to another party, except as expressly permitted herein; or (f)
use the Software in any way not expressly provided for in this Agreement.
There are no implied licenses. Customer agrees not to exceed the scope of
the licenses granted herein.
D. BroadVision also grants to Customer the right to grant nontransferable
sublicenses to portions of the Software, where such grants are explicitly
permitted by BroadVision's licensing practices. Customer shall require
each such sublicensee, before it may use or install the sublicensed
Software, to execute a written license agreement containing, at a minimum,
the required provisions specified in Attachment B. Customer shall
indemnify BroadVision for all losses, costs, damages, expenses, and
liabilities caused by Customer's failure to include required terms in its
sublicense agreements with its sublicensees.
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2. PAYMENT, PRICES.
A. Invoices shall be issued upon delivery of the products or services, unless
specified herein to the contrary, and shall be due and payable in United
States currency upon receipt by Customer. Payment shall be overdue thirty
(30) days after the delivery date specified on the invoice. Overdue
payments shall be subject to a finance charge of one and one-half percent
(1 1/2%) for each month or fraction thereof that the invoice is overdue,
or the highest interest rate permitted by applicable law, whichever is
lower. BroadVision shall also be reimbursed for its collection costs in
the event of late payments, including reasonable attorney's fees.
B. Software will be shipped FOB BroadVision's facility in Redwood City,
California, U.S.A., by commercial surface transportation. Transportation
charges in excess of such rates will be billed to Customer. Software shall
be deemed accepted upon delivery.
C. The prices stated in BroadVision quotations are exclusive of any federal,
state, municipal, value-added, foreign withholding or other governmental
taxes, duties, fees, excises, or tariffs now or hereafter imposed on the
production, storage, licensing, sale, transportation, import, export, or
use of the Software or any improvements, alterations, or amendments to the
Software. Customer shall be responsible for, and if necessary reimburse,
BroadVision for all such taxes, duties, fees, excises, or tariffs, except
for governmental or local taxes imposed on BroadVision's corporate net
income.
3. SOFTWARE MAINTENANCE.
A. BroadVision agrees to provide Customer with software maintenance subject
to the following provisions and conditions:
i. At Customer's request, BroadVision shall provide software maintenance
at prices to be quoted to Customer. Software maintenance shall
include (i) telephone and electronic mail support provided during
BroadVision's normal working hours, and (ii) standard releases
containing improvements or modifications to the Software, where such
improvements or modifications are not priced as separate new products
or options ("Standard Release").
ii. BroadVision shall provide software maintenance for any Standard
Release until 180 days after shipment of the subsequent Standard
Release.
iii. Customer shall designate one or, with BroadVision's prior written
approval, more than one Support Contact Person, who shall be
responsible for communicating support issues to BroadVision. Customer
agrees to provide BroadVision with timely written notification
containing all details of software problems necessary for BroadVision
to diagnose such problems. Customer agrees to cooperate fully in
providing BroadVision with Customer's source code, in
machine-readable form, and other materials necessary to reproduce a
reported software problem. Subject to Customer's security
requirements, Customer agrees to provide BroadVision reasonable
direct or remote access and test time on Customer's BroadVision
system, for the purpose of diagnosing reported software problems. If
BroadVision provides on-site services at Customer's request in
connection with software maintenance, Customer shall reimburse
BroadVision for all
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travel and other reasonable out-of-pocket expenses incurred with
respect to such services.
iv. Software maintenance may also include any patch releases ("Patch
Releases") that BroadVision, in its sole discretion, makes available.
Patch Releases are intended to address material deviations between
the Software and its published specifications until a Standard
Release can be made available. Customer may install Patch Releases at
its option.
v. BroadVision shall not be responsible for maintaining Software that
fails to comply with its published specifications if such
non-compliance is the result of modification of the Software by
Customer or third parties. If BroadVision expends its time on a
noncompliance found to be the result of any of the preceding,
Customer shall pay BroadVision for such time at BroadVision's
then-current hourly consulting rate.
B. Unless terminated by either party with at least ninety days notice,
software maintenance will automatically be renewed for successive one-year
periods at BroadVision's then-current prices for software maintenance. In
the event of termination for Customer's breach or Customer's convenience,
all maintenance fees shall be immediately due and payable without notice;
in the event of termination for any other reason, Customer shall be
entitled to a refund of maintenance fees already paid, prorated for the
unused portion of such fees.
C. Annual software maintenance fees are due and payable in advance; in all
other respects payments are subject to the terms and conditions of the
Agreement.
D. If Customer initially declines software maintenance and then subsequently
elects to commence maintenance, or if maintenance for an item of Software
is discontinued at Customer's request and then subsequently renewed,
Customer shall pay the maintenance fees that would have been due for the
period during which maintenance was not provided.
4. TITLE TO SOFTWARE.
A. Customer shall include BroadVision's copyright or proprietary rights
notice on any copies of the Software or associated documentation,
including copyright or proprietary rights notices of third parties that
are included on media or in documentation provided by BroadVision.
Customer acknowledges that the Software is the property of BroadVision or
its licensors.
B. Unless otherwise requested by BroadVision, Customer shall ensure that the
phrase, "Personalized by BroadVision One-To-One" shall appear prominently
on the logon screen, splash screen, or other first view of the Customer's
application seen by consumers or other end-users when they enter such
application. The above phrase shall be a hypertext link to a URL specified
by BroadVision. Customer's use of the phrase shall be in accordance with
BroadVision's guidelines for use of the ▇▇▇▇.
5. WARRANTY.
BroadVision warrants that the Software will conform in all material respects
to its written specifications when installed and for 90 days thereafter. For
purposes of this Agreement, the sole source of such specifications shall be
BroadVision's written user documentation. Customer will notify BroadVision
within 10 days after the expiration of the warranty period
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of any nonconformity. Where a material nonconformity exists within the
warranty period, and proper notice has been given to BroadVision, BroadVision
will, as its sole and exclusive liability to Customer, use due diligence to
correct the nonconformity and provide Customer with one copy of any such
corrected version of the Software, or, if BroadVision is unable to correct
such nonconformances within a reasonable period of time, refund all license
fees paid to it for the Software, or the most recent software maintenance fee
paid for the Software, if the nonconformity relates to a Standard Release
delivered pursuant to Section 3 herein. THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, AND BROADVISION EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, OR NONINFRINGEMENT.
6. LIMITATION OF LIABILITY.
BroadVision's liability to Customer under this Agreement or for any other
reason relating to the products and services provided under this Agreement,
including claims for contribution or indemnity, shall be limited to the
amount paid to BroadVision under this Agreement. NOTWITHSTANDING THE FAILURE
OF ESSENTIAL PURPOSE OF ANY REMEDY UNDER THIS AGREEMENT, THE PARTIES AGREE
THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF USE, PROVIDED THAT
FOR PURPOSES OF THIS SECTION 6 LOST REVENUES RELATED TO UNAUTHORIZED USE OR
DISCLOSURE OF THE SOFTWARE SHALL BE DEEMED A DIRECT DAMAGE.
7. INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
BroadVision will defend and hold harmless Customer against any claim that the
Software constitutes infringement of a patent, copyright, trademark, or trade
secret. BroadVision shall also indemnify Customer for any reasonable expense
incurred by Customer in connection with the foregoing. BroadVision's
obligations under this section are conditioned upon BroadVision having sole
control of any such action, and upon Customer notifying BroadVision
immediately in writing of the claim and giving authority, information, and
assistance necessary to settle or defend such claim. If the use of the
Software infringes or is enjoined, or BroadVision believes it is likely to
infringe or be enjoined, BroadVision may, at its sole option, (i) procure for
Customer the right to continue use of the licensed Software as furnished;
(ii) replace the licensed Software; (iii) modify the licensed Software to
make it non-infringing, provided that the Software still substantially
conforms to the applicable specifications; or (iv) if BroadVision, after
using all commercially reasonable efforts, is unable to accomplish the
foregoing remedies, terminate the license and refund the license fee for the
Software, less a proportional adjustment for the time the Software was used
by Customer, equal to the ratio of the time elapsed since the delivery date
to five (5) years. The indemnity provided herein shall not apply if the
alleged infringement arises from: (a) the use of other than a currently
supported, unaltered release of the licensed Software; (b) the use of
Software that has been modified or merged with other programs by Customer; or
(c) the use of the licensed Software in combination with software or hardware
not provided under this Agreement. The foregoing states BroadVision's sole
and exclusive liability for patent, copyright, or other proprietary rights
infringement.
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8. CONFIDENTIALITY OF SOFTWARE AND DOCUMENTS.
A. Customer shall not reproduce, duplicate, copy, sell, or otherwise
disclose, or disseminate the Software, including operating instructions,
user manuals, and training materials, in any medium except as authorized
herein. Customer may make copies of the Software, in machine readable
form, only as is reasonably necessary for archival and backup purposes.
B. Customer expressly undertakes, using reasonable efforts not less than it
exercises for its own confidential materials, to retain in confidence, and
to require its employees or consultants to retain the Software in
confidence, and will make no use of such information, except under the
terms and during the existence of this Agreement, and only to the extent
that such use is necessary to Customer's employees or consultants in the
course of their employment.
C. The provisions of this section shall survive the termination of this
Agreement for a period of five (5) years.
D. Customer shall not release the results of any benchmark of the Software,
or of any third party products embedded in the Software, without
BroadVision's prior written approval.
9. AUDIT RIGHTS.
At BroadVision's request, but in no event more than twice annually, Customer
shall provide BroadVision with a report detailing its use of the Software. No
more than once annually, BroadVision may audit Customer's records to ensure
that license and other fees have been properly paid in compliance with this
Agreement. Any such audit will be conducted during regular business hours at
Customer's offices and shall not interfere unreasonably with Customer's
business activities. If an audit reveals that Customer has underpaid its
total fees by more than five percent (5%), then Customer shall pay
BroadVision's reasonable costs of conducting the audit, in addition to the
underpaid amount.
10.TERM/TERMINATION.
This Agreement is effective on the earlier of (i) the date of shipment of the
Software or (ii) the date set forth above, and continues until terminated as
provided herein, or by agreement of both parties. BroadVision may terminate
this Agreement upon: (a) any material breach of this Agreement by Customer
that is not cured within 30 days following written notice thereof; or (b)
failure by Customer to pay license fees for Software under the payment terms
specified in this Agreement or as stated on BroadVision's invoice for such
Software, which failure remains uncured after thirty (30) days written notice
thereof. Upon termination of this Agreement for any of the above reasons, all
licenses granted hereunder terminate and Customer will immediately destroy
the Software and all copies in any form. Upon termination for any other
reason, Customer may continue to use the Software, provided that Sections 1,
2 (to the extent that any amounts are owed to BroadVision as of the
termination date), 4, 6, 7, 8, 9, and 11 shall survive the termination of
this Agreement, and BroadVision may terminate Customer's use of the Software
upon a material breach of any of the surviving sections.
11.GENERAL.
A. Waiver/Amendment. No waiver, amendment, or modification of any provision
of this Agreement shall be effective unless in writing and signed by the
party against whom
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such waiver, amendment, or modification is sought to be enforced. No
failure or delay by either party in exercising any right, power or remedy
under this Agreement, except as specifically provided herein, shall be
deemed as a waiver of any such right, power, or remedy.
B. ASSIGNMENT. Either party may assign this Agreement to an entity acquiring
substantially all of its assets or merging with it, provided that such
assignee agree in writing to assume all obligations under this Agreement.
Except as set forth above, neither party may assign any of its rights or
delegate any of its obligations under this Agreement to any third party
without the express written consent of the other. Any attempted assignment
in violation of the foregoing shall be void and of no effect. Subject to
the above, this Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the parties hereto.
C. Disputes. The rights of the parties hereunder shall be governed by the
laws of the State of California without giving effect to principles of
conflicts of laws. Any suits brought hereunder may be brought in the
federal or state courts in Santa ▇▇▇▇▇ County, California, and Customer
submits to the jurisdiction thereof. The parties expressly exclude the
application of the 1980 United Nations Convention on Contracts for the
International Sale of Goods, if applicable.
Customer acknowledges that the Software contains trade secrets, the
disclosure of which would cause substantial harm to BroadVision that could
not be remedied by the payment of damages alone. Accordingly, BroadVision
will be entitled to preliminary and permanent injunctive relief and other
equitable relief for any breach of BroadVision's intellectual property
rights in the Software.
D. SEVERABILITY. If any provision of this Agreement shall be held by a court
of competent jurisdiction to be contrary to law, the remaining provisions
of this Agreement shall remain in full force and effect.
E. EXPORT. Customer acknowledges that the laws and regulations of the United
States restrict the export of the Software. Customer agrees that it will
not export or re-export the Software in any form without first obtaining
the appropriate United States and foreign government approvals.
F. NOTICE. Any notice, consent, or other communication hereunder shall be in
writing, and shall be given personally, by confirmed fax or express
delivery to either party at their respective addresses:
(i) to BroadVision at:
BroadVision, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
Attn: Chief Financial Officer
(ii) to Customer at:
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▇▇▇▇.▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
or such other address as may be designated by written notice of either
party. Notices shall be deemed given when delivered or transmitted, or
seven days after deposit in the mail.
G. INDEPENDENT CONTRACTORS. The parties' relationship shall be solely that of
independent contractor and nothing contained in this Agreement shall be
construed to make either party an agent, partner, joint venturer, or
representative of the other for any purpose.
H. FORCE MAJEURE. If the performance of this Agreement, or any obligation
hereunder, except the making of payments, is prevented, restricted, or
interfered with by reason of any act or condition beyond the reasonable
control of the affected party, the party so affected will be excused from
performance to the extent of such prevention, restriction, or
interference.
I. ENTIRE AGREEMENT. This Agreement, including all Attachments hereto,
constitutes the complete and exclusive agreement between the parties with
respect to the subject matter hereof and supersedes all proposals, oral,
or written, all previous negotiations, and all other communications
between the parties with respect to the subject matter hereof. The terms
of this Agreement shall prevail notwithstanding any different,
conflicting, or additional terms that may appear in any purchase order or
other Customer document. All products and services delivered by
BroadVision to Customer are subject to the terms of this Agreement, unless
specifically addressed in a separate agreement.
Agreed to by: BROADVISION, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Printed Name
CFO
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Title
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CUSTOMER: ▇▇▇▇.▇▇▇
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Company Name
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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Signature
▇▇▇▇ ▇▇▇▇▇▇
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Printed Name
Vice President, Engineering
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Title
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ATTACHMENT A
CURRENT LICENSING PRACTICES
Not Yet Applicable.
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ATTACHMENT B
REQUIRED PROVISIONS OF SUBLICENSES
Not Yet Applicable.
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ATTACHMENT C
PROFESSIONAL SERVICES TERMS & CONDITIONS
Not Yet Applicable.
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