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Exhibit
10.3
MASTER SOFTWARE LICENSE
AGREEMENT
This Master Software License and
Services Agreement (the “ Agreement ”) is made
and entered into by and between Ariba, Inc., as identified in the
applicable Order Form or SOW (“ Ariba ”), and
SOFTBANK Corp., as identified in the applicable Order Form or SOW
(“ Customer ”).
This Agreement sets forth terms and
conditions under which Customer may use certain Ariba Products. The
Order Form submitted by Customer pursuant to Section 14.13 below
shall be governed by this Agreement, in addition to the terms and
conditions of the Order Form.
1. DEFINITIONS
1.1 “ Ariba
Products ” means the Ariba software program(s) in object
code format as identified in an applicable Order Form and related
Documentation. Ariba Products are broken into the following
categories of individual licensable products:
1.1.1 A “ Core
” means the core application functionality upon which all
subsequent functionality is based, which Ariba generally makes
available for separate licensing to all customers.
1.1.2 A “ Module
” means an extension of an underlying Core, with separate,
unique application functionality different from the overlying Core,
which Ariba generally makes available for separate licensing to all
customers.
1.1.3 An “
Integration Pack ” means integration functionality
associated with a particular Core, configurable for use with a
specific third party application, which Ariba generally makes
available for separate licensing to all customers.
1.1.4 A “ Product
Line ” means a Core and any subset Modules and/or
Integration Packs, which Ariba generally makes available for
separate licensing to all customers
1.1.5 A “ Product
Pack ” means a collection of one or more Modules,
Integration Packs and Cores which Ariba generally makes available
for separate licensing to all customers.
1.2 “
Documentation ” means the authorized guides and
manuals that are delivered or made available by Ariba to its
customers (including Customer) for use with the Ariba
Products.
1.3 “ Fees
” means the fees stated in an Order Form or SOW.
1.4 “ Intellectual
Property Right ” means any patent, patent application,
copyright, moral right, trade name, trademark, service mark, trade
secret, and any applications or right to apply for registration
therefor, internet domain names, logos, designs, slogans, and
general intangibles of like nature, computer software programs or
applications, tangible or intangible proprietary information,
know-how, proprietary processes, formulae, algorithms, or any other
intellectual property right, whether registered or unregistered,
and whether first created before or after the Agreement Effective
Date.
1.5 “ License
Term ” means the period of time under which the license
for an applicable Ariba Product shall be effective, as set forth in
the applicable Order Form and commencing upon the applicable Order
Form Effective Date.
1.6 “ Order Form
” means a separate document, governed by this Agreement, by
which Customer orders Ariba Products.
1.7 “ Order Form
Effective Date ” means the date identified on an
applicable Order Form upon which such Order Form becomes
effective.
2. LICENSE
2.1 Subject to the terms and
conditions of this Agreement and any applicable Order Form, and in
consideration of Customer’s payment of all applicable Fees,
Ariba grants to Customer a non-sublicensable (except as otherwise
set forth in this Agreement, an Order Form, or an SOW),
nonexclusive, nontransferable right to internally use the Ariba
Products designated in an applicable Order Form solely for
Customer’s business operations as referenced in this
Agreement, an Order Form, or a SOW during the License Term. No
Customer affiliate and/or subsidiary may use the applicable Ariba
Products unless otherwise set forth in an applicable Order
Form.
2.2 Except for a single
back-up copy for disaster recovery purposes and a single copy for
load balancing, Customer may possess only one (1) copy of any Ariba
Products licensed and paid for by Customer under this Agreement. As
between the parties, Ariba retains all right, title, and interest
to all Intellectual Property Rights in all Ariba Products and Ariba
Confidential Information, and any copies thereof. Customer shall
only be entitled to use the specific Ariba Products (e.g. Core,
Module, or other product) specified and licensed under the
applicable Order Form, regardless of whether additional Ariba
Products are delivered to Customer (on CD or otherwise). Nothing in
this Agreement grants Customer any right, title, license or
interest in or relating to the source code of the Ariba Products.
Any third party software embedded, included or otherwise provided
by Ariba for use with the Ariba Products may only be used in
conjunction with such Ariba Products ordered under an applicable
Order Form. The Ariba Products are designed for use with the
equipment and accessories specified in the Documentation. Ariba
assumes no responsibility under this Agreement for obtaining or
providing such equipment. Customer is also responsible for ensuring
a proper environment and proper utilities for the computer system
with which the Ariba Products will be used.
2.3 Customer shall comply
with the license terms and use restrictions stated in the Order
Form. Customer agrees to maintain the copyright, trademark, logos,
and other notices that appear on the Ariba Products on all
associated media, screens, and copies thereof. Customer shall not,
and shall not allow any third party to: (i) reverse engineer,
decompile, translate, disassemble or attempt to discover any source
code or underlying ideas or algorithms of any Ariba Products
(except to the extent such restriction is prohibited by applicable
local law in order to obtain interoperability), (ii) except as
otherwise set forth in this Agreement, an Order Form, or a SOW,
transfer, sell, lease, lend, disclose, or use for timesharing or
service bureau purposes any Ariba Products, (iii) except as
otherwise set forth in this Agreement, an Order Form, or an SOW,
use, provide, or allow others to use Ariba Products for the benefit
of any third party, (iv) use Ariba Products, or allow the transfer,
transmission, export, or re-export of any Ariba Products, or
portion thereof, in violation of any export control laws or
regulations administered by the U.S. Commerce Department’s
Bureau of Export Administration, the U.S. Department of
Treasury’s Office of Foreign Assets Control, or any other
applicable government agency, or (v) except as otherwise set forth
in this Agreement, an Order Form, or a SOW, reset or disable the
Ariba Products.
3. INTENTIONALLY LEFT
BLANK.
4. FEES AND PAYMENT
TERMS
4.1. Customer agrees to pay
to Ariba the Fees in the amounts and at the times set forth in the
applicable Order Form. Except as otherwise provided in this
Agreement, the Order Form, or a SOW, all Fees shall be
nonrefundable. Except as otherwise provided in the applicable Order
Form, all Fees shall be due on the Order Form Effective Date and
payable by Customer in U.S. dollars net thirty (30) days from the
date of invoice.
4.2. All Fees payable under
this Agreement are exclusive of tax. Customer shall pay any taxes,
including sales, use, personal property, value-added, excise,
customs fees, import duties or stamp duties or other taxes and
duties imposed by governmental agencies of whatever kind and
imposed with respect to all transactions under this Agreement,
including penalties and interest but specifically excluding any
income or equivalent taxes payable by Ariba. Such taxes added to
the invoice, as prescribed by applicable law, will be paid by
Customer “net thirty (30) days” from the date of
invoice or other notification. Upon reasonable request of Ariba to
assist Ariba in obtaining tax credits or
deductions, Customer shall provide to
Ariba original or certified copies of all tax payments or other
evidence of payment of taxes by Customer with respect to
transactions or payments under this Agreement. Customer shall take
all reasonable actions requested by Ariba that will assist Ariba in
reducing its tax liability with respect to transactions under this
Agreement, which actions include, but are not limited to, applying
on its own or on Ariba’s behalf for reduced withholding
rates, concessionary tax rates or other favorable tax
treatment.
5. DELIVERY
5.1 Ariba Products. Ariba
shall deliver the Ariba Products, the Documentation, and any other
deliverables under this Agreement, an Order Form, or a SOW
electronically. All deliveries will be deemed to occur at the
Customer’s Ship To Address per the Order Form unless written
notification is provided by the Customer of a different download
location. Unless otherwise specified in an applicable Order Form,
all subsequent increases or modifications to Customer’s order
hereunder shall be deemed to be delivered under the same terms as
the original license. Customer’s right to use each additional
authorized copy of the Ariba Products, as permitted under this
Agreement, shall be deemed to arise at the location where the
original was first installed.
6. TERMINATION
6.1 A party (“
Terminating Party ”) may, by written notice of default
to the other party (“ Terminated Party ”), (i)
terminate this Agreement, in whole or in part, including any Order
Forms or SOWs (a) if the Terminated Party materially breaches this
Agreement, and the Terminated Party does not cure such material
breach within thirty (30) calendar days after receipt of written
notice of such breach; or (b) immediately following the failure to
resolve the suspension of business, insolvency, institution of
bankruptcy, liquidation proceedings by or against the Terminated
Party, appointment of a trustee or receiver for the Terminated
Party’s property or business, or any assignment,
reorganization or arrangement by the Terminated Party for the
benefit of its creditors; or (c) immediately upon a material breach
of Section 2 (License) by the Terminated Party, or (ii) terminate
any individual Order Form or SOW if the Terminated Party fails to
perform any provision of such Order Form or SOW and does not cure
the breach within thirty (30) calendar days after receipt of
written notice thereof.
6.2 Upon expiration or
termination of this Agreement, all of Customer’s licenses to
use the Ariba Products, and all other rights, services and licenses
granted by Ariba to Customer as set forth in this Agreement, shall
cease immediately (except for those rights, licenses and
obligations that are expressly stated to survive termination of
this Agreement).
6.3 If an Order Form or SOW
(but not the Agreement) terminates or if the License Term of an
applicable Ariba Product set forth in an Order From expires, all of
Customer’s licenses to use the applicable Ariba Products, and
all other rights, services and licenses granted by Ariba to
Customer as set forth in such Order Form or SOW, as applicable,
shall cease immediately (except for those rights, licenses and
obligations that are expressly stated to survive termination of
such Order Form). Termination of any single Order Form or SOW shall
not result in the termination of this Agreement; however,
termination of all Order Forms and SOWs shall result in the
termination of this Agreement.
Within ten (10) days from the
date of any
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