FIRST AMENDED AND RESTATED SOFTWARE DISTRIBUTION LICENSE AGREEMENT

 

AGREEMENT

 

1.                                       DEFINITIONS.   As used in this Agreement:

 

1.1                                “Commercial” means, with respect to distribution of the Licensed Software, the market segment of End Users who are not considered to be in the Government User market segments.

 

1.2                                “ Client Site Audio” means PlaceWare’s proprietary software which enables audio conference calls [***].

 

1.3                                “Conference Center” means PlaceWare’s proprietary software which enables web conferencing and real time collaboration via the web among End Users.

 

1.4                                “Quarter” means a calendar quarter.

 

1.5                                “Distributor” means a third party appointed by Company in accordance with the terms of this Agreement and pursuant to a Distributor Agreement to distribute (directly or through one or more tiers of subdistributors) the Licensed Software, solely as integrated into InfoWorkSpace and LaunchPad, to End Users.

 

1.6                                “Distributor Agreement” means a written agreement between Company and a Distributor (or between a Distributor and its subdistributor) covering the distribution of the Licensed Software, solely as integrated into InfoWorkSpace and LaunchPad, to End Users,

 

1.7                                “End User” means (i) a Government User; or (ii) a Commercial person, company, or other legal entity; in each case licensed to use the Licensed Software pursuant to an End User License Agreement as contemplated under this Agreement, solely as integrated into InfoWorkSpace and LaunchPad, for its own internal purposes and not for distribution to, or use on behalf of, others.

 

1.8                                “End User License Agreement or EULA” means the license agreement for InfoWorkSpace or LaunchPad, between Company and each End User.

 

1.9                                “Executable Code” means the fully compiled version of a software program that can be executed by a computer and used by an end user without further compilation.

 

1.10                         “Government User” means, with respect to distribution of the Licensed Software, the market segment of any unit, agency, department, political subdivision, authority or instrumentality of a local, state or federal government in the U.S. or a foreign country or territory.  This definition applies to contractors conducting work for the internal use of the foregoing entities.

 

1.11                         “Fully Qualified Domain Name” means, the full name of a system, consisting of its local hostname and its domain name, including a top-level domain, which is sufficient to determine a unique Internet address for any host on the Internet.

 

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

 

 

1.12                         “InfoWorkSpace” means Company’s proprietary software known as “InfoWorkSpace,” into which the Licensed Software is integrated, [***]that provides real time collaboration during on line meetings[***]and such other functionalities as InfoWorkSpace may incorporate from time to time.

 

1.13                         “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship throughout the world, including exclusive exploitation rights, copyrights, moral rights, and mask works; (b) trademark and trade name rights; (c) trade secret rights; (d) patents, designs, algorithms, and other industrial property rights; (e) other intellectual property and proprietary rights of every kind and nature throughout the universe, whether arising by operation of law, by contract or license, or otherwise; and (f) all registrations, applications, renewals, extensions, combinations, divisions, or reissues of the foregoing.

 

1.14                         “LaunchPad” means Company’s proprietary software product known as “LaunchPad”, into which the Licensed Software is integrated,which has instant messaging capabilities, the ability to determine when a user is online or offline, one-on-one and one to many audio and video and chat functionality, the ability to keep a “buddy list” for each user, a white board for exchange of graphics, and the ability to store user data [***]

 

1.15                         “License Key” means an encrypted character string that is provided by PlaceWare to Company to initialize or otherwise enable use of the Licensed Software.

 

1.16                         “Licensed Software” means the Executable Code version of PlaceWare’s proprietary software program or programs described in Exhibit A .

 

1.17                         “PlaceServer” means PlaceWare’s proprietary application server software, as described in Exhibit A, that provides an environment for the deployment of highly interactive multi-user and real time collaborative applications.

 

1.18                         “PlaceWare Marks” means the trademarks, service marks and trade names of PlaceWare listed in Exhibit B (as such list may be updated from time to time by PlaceWare upon notice to Company).

 

1.19                         “Source Code” means the human-readable version of a software program that can be compiled into Executable Code.

 

1.20                         “Term” means the period defined in Section 12.1.

 

1.21                         “User Documentation” means any user documentation furnished to Company by PlaceWare for distribution along with the Licensed Software to End Users.

 

1.22                         “Web Conferencing Competitors” means those entities that provide web-conferencing software and services that are competitive with those provided by PlaceWare,

 

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

 

 

which are set forth in Exhibit H , which may be amended from time to time in writing upon mutual agreement by the parties.

 

2.                                       Licenses .

 

2.1                                Licensed Software and User Documentation.  Subject to the terms and conditions of this Agreement, including the pricing terms set forth in Exhibit E , as modified from time to time pursuant hereto, PlaceWare grants to Company, during the Term, a non-exclusive, non-transferable, revocable (in accordance with Section 12.3), royalty-bearing, worldwide license under all of PlaceWare’s Intellectual Property Rights to:

 

(a)                                   integrate the Licensed Software into LaunchPad and/or InfoWorkSpace, including making such reproductions of and modifications to the Licensed Software as reasonably necessary to effect such integration; and

 

(b)                                   reproduce the Licensed Software, for purposes of supporting, and integrating the Licensed Software into LaunchPad and InfoWorkSpace as permitted under this Section 2;  and

 

(c)                                   distribute (subject to Section 2.2(b)), directly or through single or multiple tiers of Distributors, the Licensed Software (including copies made pursuant to Section 2.1(b) above), solely as integrated into LaunchPad and/or InfoWorkSpace, to End Users pursuant to an End User License Agreement, and to permit and license such End Users to execute and use the Licensed Software as so integrated; and

 

(d)                                   reproduce and modify the User Documentation in order to incorporate the User Documentation (or portions thereof) into Company’s user documentation for LaunchPad or InfoWorkSpace, and distribute the User Documentation (or portions thereof) as so incorporated to End Users; and

 

(e)                                   execute, perform and display the Licensed Software, solely as integrated into InfoWorkSpace and/or LaunchPad, solely for the purposes of conducting demonstrations for potential End Users, provided that Company may use no more than twenty five (25) copies of the Licensed Software (whether integrated into InfoWorkSpace or LaunchPad) for demonstration purposes, of which twenty-four (24) copies may support no more than ten (10) concurrent users and one copy may support up to one hundred (100) concurrent users; and

 

(f)                                     reproduce, execute, perform and display the Licensed Software to support End Users as set forth in Section 5; and

 

(g)                                  execute, perform and display the Licensed Software, solely as integrated into InfoWorkSpace and/or LaunchPad, for Company’s internal business and development purposes, provided that, all users are employees or contractors of Company and no more than an aggregate of five hundred (500) concurrent users may use LaunchPad and InfoWorkSpace combined (e.g., Company may have three hundred (300) concurrent users using LaunchPad and

 

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

 

 

two hundred (200) concurrent users using InfoWorkSpace, or 499 concurrent users using LaunchPad and 1 user using InfoWorkSpace).

 

2.2                                License Restrictions.

 

(a)                                   General.  Company acknowledges that the Licensed Software and its structure, organization, and Source Code constitute valuable trade secrets of PlaceWare and its suppliers.  Accordingly, except as expressly allowed under Section 2.1 (if at all), Company agrees not to (a) modify, adapt, alter, translate, or create derivative works from the Licensed Software; (b) integrate the Licensed Software into other software; (c) distribute, sublicense, lease, rent, loan, or otherwise transfer the Licensed Software to any third party; (d) make the Licensed Software available to any third party as part of any time-sharing, ASP, service bureau or similar arrangement (notwithstanding this restriction Company may use the PlaceServer component of the Licensed Software as part of such an arrangement); or (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Source Code for the Licensed Software.   Company must reproduce, and must not remove, alter, or obscure in any way all proprietary rights notices (including copyright notices) of PlaceWare or its suppliers on or within the Licensed Software and the User Documentation (or portions thereof) and on all copies thereof.

 

(b)                                   Distribution.   Company acknowledges and agrees that as long as the Licensed Software is integrated into InfoWorksSpace an/or LaunchPad:  (i) during the Term Company is authorized to provide the Licensed Software in Executable Code as incorporated into InfoWorkSpace and LaunchPad to End Users pursuant to End User License Agreements, as set forth in Section 2.5; and (ii) in no event will Company provide, after the Effective Date,  perpetual or irrevocable licenses to use InfoWorkSpace and/or LaunchPad to any End Users, provided that any perpetual or irrevocable licenses granted to End Users to use InfoWorkSpace and/or LaunchPad prior to the Effective Date, in accordance with the terms of the Prior Agreement, shall survive as provided therein.

 

If Company breaches any of its obligations under this Section 2.2(b), PlaceWare may terminate this Agreement pursuant to Section 12.2(a).

 

(c)                                   Company may not use the Licensed Software to provide[***] to its customers, distributors, resellers or any other third party, notwithstanding any provisions to the contrary in this Agreement or in the Developer’s Kit License Agreement between the parties dated March 26, 2001.

 

2.3                                Trademarks.  Subject to the terms and conditions of this Agreement, PlaceWare grants to Company a non-exclusive, non-transferable), revocable, royalty-free license (without the right to grant sublicenses) to use the PlaceWare Marks solely as incorporated into software components provided to Company by PlaceWare and solely in connection with distributing

 

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

 

 

LaunchPad and InfoWorkSpace.  Company will obtain prior written approval from PlaceWare, not to be unreasonably withheld or delayed, each time it incorporates any PlaceWare Marks into a version or release of LaunchPad or InfoWorkSpace (e.g., an approval from PlaceWare of the use of the PlaceWare Marks in LaunchPad version 2.1 will apply to all copies of LaunchPad version 2.1, but will not apply to LaunchPad version 2.2).  PlaceWare grants no rights in the PlaceWare Marks hereunder other than those expressly granted in this Section 2.3.  Company acknowledges PlaceWare’s exclusive ownership of the PlaceWare Marks.  Company agrees not to take any action inconsistent with such ownership and to cooperate, at PlaceWare’s reasonable request and at PlaceWare’s expense, in any action (including the conduct of legal proceedings) which PlaceWare deems necessary or desirable to establish or preserve PlaceWare’s exclusive rights in and to the PlaceWare Marks.  Company will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the PlaceWare Marks or in such a way as to create combination marks with the PlaceWare Marks.  Company will provide PlaceWare with samples of all products and materials that contain the PlaceWare Marks prior to their public use, distribution, or display for PlaceWare’s quality assurance purposes and will obtain PlaceWare’s written approval before such use, distribution, or display, which approval will not be unreasonably withheld or delayed, and in all cases, a decision will be communicated to Company within thirty (30) days after Company’s request.  At PlaceWare’s request and option, Company will either discontinue or make commercially reasonable efforts to modify any permitted use of the PlaceWare Marks.

 

2.4                                Ownership of Licensed Software.   The Licensed Software and User Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of PlaceWare and its suppliers. All rights in and to the Licensed Software not expressly granted to Company in this Agreement are reserved by PlaceWare and its suppliers.  Nothing in this Agreement will be deemed to grant, by implication, estoppel, or otherwise, a license under any of PlaceWare’s existing or future patents; PlaceWare agrees that it will not assert any of its rights under such patents against Company or its Distributors based upon the use, integration, distribution, and sublicensing by Company or its Distributors of the Licensed Software as permitted by this Agreement or against End Users based upon their use of the Licensed Software pursuant to and in compliance with an End User License Agreement.

 

2.5                                End User License Agreements.

 

(a)                                   Any use of the Licensed Software by End Users must be subject to a binding End User License Agreement which is consistent with and no less protective of PlaceWare’s Intellectual Property Rights than the terms of this Agreement and either: (a) for any EULA first effective prior to the Effective Date of this Agreement, also incorporates the minimum end user terms set forth in Exhibit D of the Prior Agreement ; or  (b) for any EULA first effective after the Effective Date of this Agreement, also incorporates the minimum end user terms set forth in Exhibit D hereto.  An End User License Agreement may be in the form of a “shrink-wrap” or electronic “click-through” agreement only if the End User is required to take an affirmative act that manifests the End User’s intent and agreement to abide by the terms of the EULA.

 

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

 

 

(b)                                   Company will enforce each EULA with at least the same degree of diligence that Company uses to enforce similar agreements for its own products or other software products that it distributes, but in no event shall Company deploy less than reasonable efforts.  Company will immediately notify PlaceWare if Company becomes aware of any breach of any EUA relating to LaunchPad, InfoWorksSpace, or the Licensed Software.  Upon the termination of any EULA, Company will use reasonable efforts to ensure that End User has deleted and/or returned all copies of LaunchPad, InfoWorksSpace, or the Licensed Software and User Documentation in such End User’s possession or control to PlaceWare.

 

(c)                                   Unless otherwise specifically agreed by Company and PlaceWare with respect to a particular End User, in a written agreement executed by both parties, the duration of the term of all End User License Agreements must not exceed one (1) year and may not be automatically renewable.

 

2.6                                Distributors.

 

(a)                                   PlaceWare grants Company, solely during the Term, the right to appoint Distributors to distribute the Licensed Software, solely as integrated into InfoWorkSpace and LaunchPad, to End Users or to other Distributors; provided that each Distributor is made subject to a written, mutually executed Distributor Agreement. Company shall be solely responsible for ensuring that its Distributors comply with the terms of their respective Distributor Agreements.  Each Distributor Agreement will be consistent with, and no less protective of PlaceWare’s Intellectual Property Rights than the terms of this Agreement, and will either: (a) for any Distributor Agreement executed prior to the Effective Date of this Agreement, also incorporate the minimum distributor terms set forth in Exhibit D of the Prior Agreement; or (b) for any Distributor Agreement executed after the Effective Date of this Agreement, also incorporate the minimum distributor terms set forth in Exhibit D .

 

Each Distributor Agreement shall provide that each copy of the Licensed Software (as integrated into InfoWorkSpace or LaunchPad) and User Documentation distributed to End Users is distributed pursuant to an End User License Agreement.  Any Distributor who seeks to make use of the Licensed Software (as integrated into InfoWorkSpace or LaunchPad) for its own internal business purposes must do so under the terms of a EULA.  Company will provide PlaceWare for its approval a copy of the form of Distributor Agreement prior to executing any Distributor Agreements and will provide PlaceWare for its approval a copy of any changes to the form of Distributor Agreement before executing any Distributor Agreements that include such changes.

 

(b)                                   Company will enforce each Distributor Agreement with at least the same degree of diligence that Company uses to enforce similar agreements for its own products or other software products that it distributes, but in no event shall Company deploy less than reasonable efforts.  Company shall inform PlaceWare promptly of any known breach of any  Distributor Agreement.

 

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

 

 

3.                                       ORDER PROCEDURE .

 

3.1                                Purchase Orders .  Company will submit purchase orders in writing, or by facsimile transmission or any other manner which is acceptable to PlaceWare for License Keys in accordance with PlaceWare’s order processing procedures.  Each order will refer to this Agreement and specify (i) the number of License Keys Company requests; (ii) the number of [***] who will be using each copy of the Licensed Software (as integrated into InfoWorkSpace or LaunchPad) ordered; (iii) the license fee associated with each License Key ordered, given the number of [***] and the applicable market segment of the End User (i.e., Government User or Commercial), provided that if the Company is distributing the Licensed Software through a Distributor, the applicable market segment (for purposes of determining the license fees) for such Distributor shall be based upon the market segment of the End Users to whom the Distributor intends to distribute the Licensed Software; (iv) the name of the End User of the Licensed Software, if available, or if Company is distributing the Licensed Software (as integrated into InfoWorkSpace or LaunchPad) through a Distributor, the name of the Distributor, but subject to any applicable privacy laws; (v) host number, port number, End User License Agreement start date and expiration date; and (vi) ”ship to” addresses, including e-mail addresses, for the Licensed Software. PlaceWare will ship License Keys directly to Company.  Any terms or conditions on such orders that add to, delete, are different from, or otherwise purport to alter, modify or amend the terms of this Agreement shall be null and void and have no force or effect unless explicitly agreed to in writing by both parties hereto; written acceptance of an order or delivery of License Keys shall not be deemed to be an acceptance of such new, additional or different terms.

 

3.2                                Pricing .

 

(a)                                   The pricing terms set forth in Exhibit E apply to LaunchPad and InfoWorksSpace as defined herein.  If the changes to the functionality of LaunchPad cause LaunchPad to violate the LaunchPad Limitations, the pricing set forth in Exhibit E will no longer apply to the changed product and PlaceWare hereby reserves the right to change the license and support pricing applicable to the changed product.  Company will notify PlaceWare in writing if changes to LaunchPad violate the LaunchPad Limitations before Company releases the changed products to End Users or its Distributors.  Notwithstanding the foregoing, if changes to the functionality of LaunchPad cause LaunchPad to violate the LaunchPad Limitations, Company will be in breach of this Agreement and PlaceWare reserves the right to pursue all of its available remedies at law and in equity.

 

(b)                                   [Intentionally omitted]

 

(c)                                   Reduced OEM Pricing.  If at any time during the Term Placeware reduces its’ generally applicable OEM published list pricing terms for Licensed Software to non discounted amounts below the discounted amounts set forth in Exhibit E, then Placeware shall provide notice to Company of such pricing terms, and immediately upon the effective date of such

 

[***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED

 

 

reduced pricing terms, Exhibit E will be amended to incorporate such reduced pricing terms on a going forward basis.

 

(d)                                   Activation .  Each copy of the Licensed Software reproduced and distributed by Company or its Distributors will be inoperable until activated with a License Key.  License Keys will be activated when shipped by Company or a Distributor to each applicable End User.  Company will be entitled to one License Key for each copy of the Licensed Software (as integrated into LaunchPad or InfoWorksSpace) that Company distributes (directly or indirectly) pursuant to this Agreement.  Each copy of the Licensed Software, whether distributed by Company or any Distributor, may be distributed only with its own distinct License Key: any single License Key may be attributed to only one single copy of the Licensed Software and may not be duplicated or reused; provided that in the event that an End User’s Fully Qualified Host Domain Name changes, PlaceWare will issue a replacement License Key to Company for delivery to such End User.

 

3.3                                Acceptance .  License Keys will be deemed accepted upon delivery to Company and unless defective may not be returned.  PlaceWare’s sole obligation and liability with respect to defective License Keys is to promptly replace such defective License Keys with non-defective License Keys.

 

3.4                                Spiked Licenses .  During the Term, Company may order limited licenses for weekly intervals to allow additional concurrent users to use copies of the Licensed Software (as integrated into InfoWorkSpace or LaunchPad) that have previously been licensed to End Users.  Company may order weekly licenses pursuant to the order procedures in Section 3.1 and the pricing terms set forth in Exhibit E as then applicable.  Such weekly licenses must be ordered in batches of no less than[***] and must be licensed to End Users for weekly periods, each of no fewer than [***].  Company understands and acknowledges that PlaceWare is making these licenses available to Company as a special accommodation and therefore Company agrees not to aggressively market or advertise these limited licenses to End Users.

 

3.5                                Evaluation Licenses .  Company may order limited licenses to allow prospective customers to evaluate the Licensed Software (as integrated into InfoWorkSpace or LaunchPad) prior to purchasing a license (“Evaluation Licenses”), for terms of up to[***], solely for the purposes of such customers’ internal testing and evaluation.  Such Evaluation Licenses:  (i) may be ordered in batches of not more than[***] per prospective customer, (ii) shall be free of charge; and (iii) shall not be counted for purposes of calculating Actual License Fees (as defined in Section 6.1 below).  Company shall provide the Evaluation Licenses to such prospective customers upon terms and conditions that: (1) are no less protective of PlaceWare’s Intellectual Property Rights than this Agreement and t