OEM SERVICE PROVIDER LICENSE AGREEMENT RSA SECURITY, INC

EXHIBIT 10.13

OEM SERVICE PROVIDER LICENSE AGREEMENT
RSA SECURITY, INC.

Thank you for choosing to do business with us. This Agreement has the purpose of licensing you the right to (i) incorporate the RSA Software into your products and (ii) use and/or distribute to end users the RSA Software solely as incorporated into such products for the purpose of providing Your service. In return, You agree to pay RSA the license fees described in this Agreement (or its attachments) which typically comprise an initial payment of license fees, plus ongoing royalties, but, alternatively may consist of annual license fee amount, paid-up license fee amounts or other arrangements as described in this Agreement. This license is for object code only. Maintenance and support for the RSA Software licensed, if elected, is under separate terms and conditions. This License Agreement is to be construed and interpreted in accordance with this general purpose, though any conflict between this general purpose and the express terms found in this Agreement shall be resolved in favor of the express terms.

This LICENSE AGREEMENT (the “Agreement”), effective as of the later date of execution (“Effective Date”), is entered into by and between RSA Security, Inc., a Delaware corporation (“RSA”), having a principal address at 2955 Campus Drive, Suite 400, San Mateo, CA 94403-2507, and the Enterprise identified above.

1. DEFINITIONS

     The following terms when used in this Agreement shall have the following meanings:

      1.1 “Distributor” means a dealer or distributor in the business of relicensing or distributing Client Licensed Products to End User Customers, directly or through one or more Distributors, by virtue of authority granted by You for the purpose of providing the Licensed Service. Client Licensed Products relicensed or distributed by a Distributor shall bear Your trademarks and service marks and shall not be privately labeled by such Distributor or other parties. A Distributor shall have no right to add to or modify any part of a Licensed Product.

      1.2 “End User Customer” means a person or an entity receiving the RSA Software as part of a Client Licensed Product from You or a Distributor for personal or internal use to

obtain the Licensed Service and primarily not for resale, redistribution or other transfer of such Client Licensed Product to any other person or entity.

      1.3 “Licensed Product(s)” means one or more of Your products or product groups identified in the attached “License/Product Schedule Exhibit” which has been or will be developed by You and which incorporates in any manner any portion of the RSA Software. A Licensed Product (i) must represent a significant functional and value enhancement to the RSA Software, (ii) shall not expose or, directly or indirectly, pass through any APIs, and (iii) shall not be a security add-on or “bolt-on,” the primary purpose of which is providing security to a third party’s product. A Licensed Product consists of a client component (“Client Licensed Product”) and a server component (“Server Licensed Product”). Each component of a Licensed Product shall be capable of operating only in conjunction with the other component. The Server Licensed Product must be owned and operated by You at Your site, and You shall have no right to change a license fee or comparable fee for distribution of the Client Licensed Product.

      1.4 “Licensed Service(s)” means one or more of Your services identified in the attached “License/Product Schedule Exhibit” which has been or will be developed by You and which uses or is supported by the Licensed Products. The Licensed Service must represent a significant functional and value enhancement to the RSA Software, such that the primary reason for an End User Customer to obtain the Licensed Service is other than the right to use the RSA Software. Only You may provide the Licensed Service.

      1.5 “RSA Software” means RSA’s proprietary software identified on the attached “License/Product Schedule Exhibit” (and including only those algorithms listed therewith), as further described in the User Manual(s) associated therewith.

      1.6 “Updates” means any new version of the RSA Software designated by a progressing of the release number (either right or left of the decimal point) following the version initially shipped hereunder.

      1.7 “User Manual” means the most current version of the user manual and/or reference manual customarily supplied by RSA to entities who license the RSA Software.

      1.8 “Subscriber” means a person or entity to whom a copy/unit of the Client Licensed Product has been distributed and who has paid You any cash or in-kind consideration at any time for the Licensed Service, whether as use, transaction, subscription, or service fees or any comparable fees based on or involving the use of the Licensed Service. You shall have no right to charge a license fee or comparable fee for distribution of the Client Licensed Product.

2. LICENSES

      2.1 License Grant. During the term of this Agreement and within the Field of Use limitation set forth in the “License/Product Schedule Exhibit” attached hereto RSA hereby grants You a non-exclusive, non-transferable license to:

           2.1.1 (i) incorporate the RSA Software in object or byte code format into a Licensed Product; (ii) reproduce and have reproduced the RSA Software in object or byte code format as incorporated in a License Product and as reasonably needed for inactive backup or

archival purposes; (iii) license or otherwise distribute the RSA Software in the Territory as incorporated in a Client Licensed Product (if distribution of such Licensed Product is not prohibited in the attached “Licensed/Product Schedule Exhibit”) to End User Customers, directly or indirectly through one or more Distributors; and (iv) reproduce, have reproduced and distribute the RSA Software in the Territory as incorporated in a Licensed Product to Your employees at Your site(s) and for use by such employees solely for the purpose of providing the Licensed Service to End User Customers or supporting the Licensed Service.

           2.1.2 (i) use the User Manual to support End User Customers and the Licensed Service; (ii) modify and incorporate any or all of the User Manual in Licensed Product and Licensed Service documentation; (iii) reproduce, have reproduced and distribute in the Territory such portions of the User Manual as incorporated in Licensed Product documentation to Your employees at Your site(s) and for use by such employees solely for the purpose of providing the Licensed Service to End User Customers or supporting the Licensed Service; and (iv) reproduce and have reproduced and distribute in the Territory such portions of the User Manual as incorporated in Licensed Product and Licensed Service documentation to End User Customers.

      2.2 Limitations on Licenses. Notwithstanding the generality of the foregoing: You may not in any way sell, lease, rent, license, sublicense or otherwise distribute the RSA Software, except as part of a Client Licensed Product whose distribution is not prohibited on the attached “License/Product Schedule Exhibit”. Such distribution must be for the sole purpose of providing the Licensed Service. The RSA Software may only be accessed by the functionality of the Licensed Product in which it is included, and a Licensed Product shall not make the RSA Software directly accessible to End User Customers or to products other than the Licensed Product, or otherwise expose an API. Nothing in this Agreement grants You any rights, license or interest with respect to source code of the RSA Software. You shall not modify, translate reverse engineer, decompile or disassemble the RSA Software or any part thereof or otherwise attempt to derive source code or create derivative works therefrom, and shall not authorize any third party to do any of the foregoing.

3. OWNERSHIP/PROPRIETARY RIGHTS

      3.1 RSA Software Title. Except for the limited licenses expressly granted in Section 2.1 and as further limited by Section 2.2, RSA does not by this Agreement grant You any right, title or ownership interest in or to the RSA Software or in any related patents, trademarks, copyrights of proprietary or trade secret rights. Similarly, RSA receives no right, title or ownership interest in any of Your products by way of this Agreement.

      3.2 RSA Copyright Notices. You agree not to remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the RSA Software, User Manuals or any related materials or documentation. You further agree to insert and maintain within every Licensed Product and any related materials or documentation a copyright notice in Your name.

      3.3 Trademarks. Except as provided in Section 6.1, You shall acquire no rights of any kind in or to any RSA trademark, trade name, logo or product designation under which the RSA Software was or is marketed and shall not make any use of the same for any reason except

as expressly authorized by this Agreement or otherwise authorized in writing by RSA. You shall cease to use the markings, or any similar markings, in any manner on the expiration or other termination of this Agreement.

4. LICENSE FEES

      4.1 License Fees. In consideration of RSA’s granting you the license rights in this Agreement, You agree to pay RSA the license fees and ongoing royalties (collectively, “License Fees”) set forth in the “License/Product Schedule Exhibit” attached hereto.

      4.2 Terms of Payment — General. License Fees due RSA hereunder shall be paid to the attention of the Software Licensing Department at RSA’s address set forth above. Payments of all License Fees shall be made in lawful United States currency and shall in no case be refundable. A late payment penalty on any License Fees not paid when due shall be assessed at the rate of one percent (1%) per thirty (30) days, beginning on the thirty-first (31 ^st ) day after the delayed payment was due. All taxes, duties, fees and other governmental charges of any kind (including sales and use taxes, but excluding taxes based on the gross revenues or net income of RSA) which are imposed by or under the authority of any government or any political subdivision thereof on the License Fees or any aspect of this Agreement shall be borne by You and shall not be considered a part of, a deduction from, or an offset against License Fees.

      4.3 Licenses with Ongoing Royalties. In the event You have elected to pay License Fees based on ongoing royalties, as indicated on the attached “License/Product Schedule Exhibit,” You agree to pay the prepaid License Fees and ongoing royalties as described therein and in accordance with the following:

           4.3.1 Prepayments and Ongoing Royalty Payment. All prepaid license fees (“Prepayments”) may be offset against on-going royalties accrued until the Prepayments are exhausted. You shall show the application or Prepayments in the licensing reports provided to RSA pursuant to Section 4.3.2. Ongoing royalties shall be paid on or before the thirtieth (30 ^th ) day after the close of the calendar quarter during which such royalties accrued. Ongoing royalties shall accrue with respect to the Licensed Service upon the date of invoice for the Licensed Service to an End User Customer or the date payment therefor was first payable to You, whichever occurs first. To the extent the License Fees described in the “License/Product Schedule Exhibit” are based on Service Revenue, “Service Revenue” means the gross amount of all cash, in-kind or other consideration receivable by You at any time in consideration of providing the Licensed Service, whether as use, transaction, subscription, or service fees, or any comparable fees based on or involving the use of the Licensed Service. For the purposes of determining Service Revenue, the amount of in-kind or other non-cash consideration receivable by You shall be deemed to have a dollar value equal to the standard price (as listed in Your published price schedule on the date the Licensed Service is provided) for the Licensed Service, less all cash paid.

           4.3.2 Licensing Report and Records. You agree to provide to RSA on or before the thirtieth (30 ^th ) day after the close of each calendar quarter during the term of this Agreement (even if no royalty amounts have accrued or are to be paid in such period) a report in reasonable detail setting forth the calculation of License Fees due hereunder and signed by a

responsible officer. The report shall include, at a minimum, the following information with respect to the relevant quarter: (i) the total Service Revenue accrued; (ii) the relevant royalty rate applied to the Service Revenue; (iii) credit taken against any Prepayments; and (iv) the total License Fees payable. Whether or not You have elected to pay License Fees based on ongoing royalties, You agree to maintain reasonable records relating to the Licensed Products distributed, License Services provided and License Fees accrued and paid for a period of five (5) years following the relevant dates. RSA shall have the right, at its sole cost and expense, to have an independent certified public accountant conduct during normal business hours (but not more than once in any twelve (12) month period) an audit of Your records to verify compliance with the terms of this Agreement. In the event such an audit discloses a discrepancy between the amounts owed and the License Fees actually paid, You will be invoiced or credited for any future amounts owed by You, as applicable. If any deficiency in License Fees paid exceeds five percent (5%) of the License Fees reported by You for any period, You agree to pay the reasonable expenses associated with such audit, in addition to the deficiency.

           4.3.3 Evaluation Copies. You may deliver copies of Client Licensed Products whose distribution is not prohibited in the attached “License/Product Schedule Exhibit” to prospective End User Customers on a trial basis for evaluation purposes only (each, an “Evaluation Copy”). No License Fees shall be reportable or payable with respect to Evaluation Copies unless and until (i) the Licensed Service is activated using the applicable Client Licensed Product; (ii) the End User Customer pays for or is invoiced for the Licensed Service; or (iii) the End User Customer’s use of the Evaluation Copy, for any reason, continues beyond sixty (60) days, whichever occurs first.

      4.4 Maintenance and Support Service. You may elect to receive updates and other support services for the RSA Software licensed hereunder under a separate maintenance and support agreement by executing such an agreement and paying the applicable fee. All Updates provided to You pursuant to such maintenance and support agreement shall constitute licensed RSA Software under this Agreement, and such Updates shall be governed by the terms hereof.

5. LIMITED WARRANTY

      5.1 Limited Warranty. During the initial ninety (90) day term of this Agreement, RSA warrants that the RSA Software will operate in material conformance to RSA’s published specifications for the RSA Software. RSA does not warrant that the RSA Software or any portion thereof is error-free. Your exclusive remedy, and RSA’s entire liability shall be correction of any warranted nonconformity as provided in Section 5.2. This limited warranty and any obligations of RSA hereunder shall not apply to nonconformities caused by any unauthorized modification made to the RSA Software.

      5.2 Error Correction. In the event You discover an error in the RSA Software which causes the RSA Software not to operate in material conformance to RSA’s published specifications therefor, You shall submit to RSA a written report describing such error in sufficient detail to permit RSA to reproduce such error. Upon receipt of any such written report, RSA will use its reasonable business judgment to classify a reported error as either (i) a “Level 1 Severity” error, meaning an error that causes the RSA Software to fail to operate in a material manner or to produce materially incorrect results and for which there is no workaround or only a

difficult workaround; or (ii) a “Level 2 Severity” error, meaning an error that produces a situation in which the RSA Software is usable but does not function in the most convenient or expeditious manner, and the use or value of the RSA Software suffers no material impact. RSA will acknowledge receipt of a conforming error report within two (2) business days and will use its reasonable efforts to (A) provide a correction for any Level 1 Seventy error to You as early as practicable, and (B) include a correction for any Level 2 Severity error in the next release of the RSA Software.

      5.3 DISCLAIMER. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN THIS SECTION 5, THE RSA SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. RSA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, UNLESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU SHALL NOT (AND SHALL TAKE ALL MEASURES NECESSARY TO INSURE THAT YOUR AGENTS AND EMPLOYEES DO NOT) MAKE OR PASS THROUGH ANY WARRANTY ON BEHALF OF RSA TO ANY DISTRIBUTOR, END USER CUSTOMER OR OTHER THIRD PARTY.

6. YOUR ADDITIONAL OBLIGATIONS

      6.1 Use of “RSA Seal”. You agree to insert and maintain within Licensed Products and marketing materials for the Licensed Products and Licensed Service, in the manner described in this Section, the “RSA Secure” seal (the “RSA Seal”) depicted in the “Logo Usage Guide,” which shall be delivered to You within ten (10) days of execution of this Agreement. You shall ensure display of the RSA Seal within any Licensed Product such that users thereof are exposed to the RSA Seal during normal operation of such Licensed Product as follows: In a software Licensed Product, the RSA Seal shall be featured in such Licensed Product’s startup splash screen and within any security-related dialog windows visible in the normal operation of the product (e.g., password dialog window). In a hardware Licensed Product, the RSA Seal shall be visible on the panel of such Licensed Product most normally viewed by the user. You agree to include the RSA Seal within related marketing materials including but not limited to printed and electronic data sheets, direct mail, user documentation, product packaging and advertisements for the Licensed Products and Licensed Service.

      6.2 Representations Regarding RSA Software. You are authorized to represent to Distributors and End User Customers only such facts about the RSA Software as RSA states in its published product descriptions, advertising and promotional materials or as may be stated in other non confidential written material furnished by RSA.

      6.3 Customer Support. You agree that all support, if any, provided to End User Customers of the Licensed Service shall be at Your expense.

      6.4 License Agreements. You agree to use with each Distributor and End User Customer receiving a Client Licensed Product a license agreement which shall contain, at a minimum, substantially all of the limitations of rights and the protections for RSA which are

contained in Sections 2.2, 3.2, 3.3, 8, 12.6 and 12.7 of this Agreement. You agree to use Your reasonable efforts to enforce the terms of such agreements.

7. CONFIDENTIALITY

     The parties agree to treat as confidential the terms of this Agreement and any License Fee or accounting information provided by one party to the other in performance hereof, and the parties agree to use their reasonable efforts to prevent disclosure thereof to any third party except with the prior written consent of the other party, or as required by law. This obligation of confidentiality shall extend for a period of three years following termination or expiration of this Agreement. Notwithstanding the generality of the foregoing, either party may disclose the existence of this Agreement and that You are an OEM of the RSA Software and that any publicly-announced Licensed Service uses the RSA Software.

8. LIMITATION OF LIABILITY

      IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF THE CAUSE OR FORM OF ACTION, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL EXCEED, EXCEPT FOR RSA’S LIABILITY ARISING UNDER SECTION 9 AND YOUR LIABILITY ARISING UNDER SECTIONS 2 AND 9 OF THIS AGREEMENT.

9. INTELLECTUAL PROPERTY INDEMNITY

      9.1 Duty to Defend. RSA agrees that it shall at its own expense, defend, or at its option settle, any action instituted against You, and pay any award or damages assessed against You or agreed by RSA to be paid in settlement resulting from such action, insofar as the same is based upon a claim that any RSA Software used in accordance with the terms of this Agreement infringes any United States copyright,