CONFIDENTIAL TREATMENT REQUEST
[ * ] INDICATES INFORMATION THAT HAS
BEEN OMITTED PURSUANT TO A
CONFIDENTIAL TREATMENT REQUEST AND
THIS INFORMATION HAS BEEN FILED UNDER
SEPARATE COVER WITH THE COMMISSION
SOFTWARE
LICENSE AGREEMENT
This Software License Agreement ("AGREEMENT") is entered into this
27th
day of September, 2005 (the "EFFECTIVE
DATE") by and between Innerwall, Inc.,
("INNERWALL") a Delaware corporation with
principal offices at 4945 North 30th
Street, Colorado Springs, CO 80919 and
Catcher, Inc., a Delaware corporation
with principal offices at 39526 Charlestown
Pike, Hamilton, VA 20158
("CATCHER"). Catcher and Innerwall are
sometimes collectively referred to herein
as the "parties."
RECITALS:
WHEREAS, Catcher desires to purchase licenses to Innerwall's
ENCLAVE(TM)
software product, and Innerwall desires to
sell such licenses to Catcher in
accordance with the terms of this
Agreement; and
WHEREAS, Innerwall desires to grant to Catcher, and Catcher desires
to
receive from Innerwall, a non-exclusive
license to bundle and distribute the
ENCLAVE(TM) software product, in object
code or executable (machine readable)
format only, with Catcher's Catcher Device
in accordance with the terms of this
Agreement;
NOW, THEREFORE, based upon the foregoing premises and the
mutual
covenants set forth herein and for other
good and valuable consideration, the
receipt and sufficiency of which is hereby
acknowledged, intending to be legally
bound, the parties hereby agree as
follows:
1.
DEFINITIONS. The following terms, when used with initial capital
letters
will have the meaning set forth below
unless the clearly context requires
otherwise:
(a)
"AGENT MODULE" means the module incorporated in the
Enclave software that drives the Catcher
Device acting as an agent.
(b)
"APPLICABLE PATENT RIGHTS" means the claims in
Innerwall's U.S. patents now issued or
issued during the term of this Agreement
relating to Enclave, including without
limitation, U. S. Pat. No. 6,889,168, and
U. S. Patent Applications Ser. No.'s
10/758,852, 10/687,320 and 11/100,714.
(c)
"BUNDLED CATCHER DEVICE" means the Catcher Device loaded
with an embedded Agent Module.
(d)
"CATCHER MARKS" means Catcher's trademarks and
proprietary names used to market the
Catcher Device.
* Portions of this exhibit have been
omitted and filed separately pursuant to an
application for confidential treatment
filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as
amended.
<PAGE>
(e)
"CATCHER SOFTWARE" means Catcher's proprietary software
included in the Catcher Device.
(f)
"CATCHER DISTRIBUTOR PARTNERS" means resellers,
distributors, value-added resellers,
systems integrators and OEM licensees or
other entities, each of which purchase
Bundled Catcher Devices from Catcher for
resale to End Users.
(g)
"CATCHER THIRD PARTY SOFTWARE" means software that
Catcher installs on the Catcher Device
licensed from a third party.
(h)
"CATCHER DEVICE" means Catcher's CATCHER(TM) portable
command and control hardware component
together with all Catcher Software and
Catcher Third Party Software other than the
Agent Module.
(i)
"CONSOLE MODULE" means the Innerwall module used with
the Enclave software that resides in a
server or other computer that manages the
Realm Controller Modules as well as the
Agent Module that reside in the Bundled
Catcher Device.
(j)
"DOCUMENTATION" means textual materials, including
without limitation, operating instructions,
related technical information, and
user documentation relating to a party's
software.
(k)
"ENCLAVE" means the ENCLAVE(TM) computer programming
code in object or executable
(machine-readable) code form comprised of the
following software modules: (1) two or more
Agent Modules, (2) one or more Realm
Controller Modules, and (3) one or more
Console Modules, together with the
hardware upon which the Realm Controller
Module is installed, together with
Documentation.
(l)
"END USER" means an entity that has acquired a license
to use Enclave with one or more Bundled
Catcher Devices for its own internal
business purposes under an End User
Agreement.
(m)
"END USER AGREEMENT" means the agreement between
Innerwall and an End User concerning the
End User's use of Enclave together with
one or more Bundled Catcher Devices, such
Agreement to be entered into at the
time the End User activates the Agent
Module.
(n)
"FIRST LINE SUPPORT" means the support that Catcher may
provide End Users, as set forth herein.
(o)
"INNERWALL MARKS" means the trademarks and proprietary
product names of Innerwall used to market
the ENCLAVE(TM) software product.
(p)
"MARKS" means collectively, the Innerwall Marks and the
Catcher Marks.
(q)
"NETWORK SECURITY PRODUCTS" means software products that
are used in the analysis, management,
monitoring, response, and restoration of
business computer networks.
* Portions of this exhibit have been
omitted and filed separately pursuant to an
application for confidential treatment
filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as
amended.
2
<PAGE>
Software products that are not competitive
with Enclave, under the current
release or any future release, are not
included in the definition of Network
Security Products.
(r)
"ORDER" means a document substantially in the form of
the attached EXHIBIT A for use by Catcher
to order Support Services as well as
orders for Enclave submitted to Innerwall
from End Users. Each Support Services
Order must reference and be solely governed
by this Agreement.
(s)
"PROPRIETARY DATA" means any proprietary "know-how"
which a disclosing party discloses to a
recipient relating to the development or
use of the disclosing party's design,
structure, configuration, programming, and
protocol of the disclosing party's
software. "Know-how" may include computer
program designs, algorithms, subroutines,
system specifications, programming
logic, manufacturing techniques, and
program architecture.
(t)
"REALM CONTROLLER MODULE" means the module incorporated
in the Enclave software that coordinates
the Agent Modules in the Catcher Device
and communicates with the Console
Module.
(u)
"SUPPORT SERVICES" means Innerwall's technical support
for the Agent Module as Catcher may order
under Innerwall's Support Services
Agreement as set forth in Exhibit B.
(v)
"TERM" means the Initial Term (as defined in Section 7)
and any Renewal Term (as defined in Section
7).
(w)
"UTILIZATION REPORT" means Catcher's quarterly report
identifying End Users, if any, to which
Catcher sells Bundled Catcher Devices,
the names of Catcher Distributor Partners
to which Catcher has sold the Bundled
Catcher Device, the and the fees due
hereunder for any of the foregoing from the
previous quarter. Catcher will require its
Catcher Distributor Partners to
submit to Innerwall the name of End Users
to which they sell Bundled Catcher
Devices if such Catcher Distributor
Partners are permitted to do so.
2. LICENSE
GRANTS.
Each of the license grants below are subject to this Agreement,
including the payment of all associated
fees and the following limitations: (i)
Catcher may not copy Enclave, except as
explicitly authorized below or for
archival or disaster recovery purposes, and
if Catcher does copy Enclave for
these purposes, Catcher must preserve any
patent markings and other proprietary
rights notices in Enclave and place the
notices on any and all copies Catcher
has made or makes; (ii) Catcher will not
reverse engineer, decompile,
disassemble, or otherwise attempt to
determine Enclave's source code; (iii)
Catcher may modify Enclave in accordance
with the Documentation solely to allow
for interoperability between Enclave and
the Catcher Device; and (iv) the
licenses Catcher receives below are granted
solely to the extent of the
* Portions of this exhibit have been
omitted and filed separately pursuant to an
application for confidential treatment
filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as
amended.
3
<PAGE>
Applicable Patent Rights and only to the
extent Catcher must have a license
under Innerwall's other intellectual
property rights to avoid infringement of
the same and to have the benefit of the
rights granted to it under this
Agreement. Catcher may not create or
attempt to create any derivative works from
Enclave. Except for the licenses granted
under this Agreement, ownership rights
and, all intellectual property rights in
and to Enclave remains the sole and
exclusive property of Innerwall. Innerwall
retains all rights not expressly
granted to Catcher in this Agreement.
Catcher's agreements with Catcher
Distributor Partners may not be
inconsistent with or less protective of,
Innerwall's proprietary and intellectual
property rights in Enclave than the
protections and restrictions set forth in
this Agreement.
(a)
DEVELOPMENT USE LICENSE. Innerwall grants Catcher a
non-exclusive, non-transferable license to
use Enclave to (i) design, develop
and test the Bundled Catcher Device, and
(ii) provide training for resellers and
End User concerning use of Enclave in
respect of the Catcher Devices
(collectively, a "DEVELOPMENT USE
LICENSE").
(b)
EMBEDDED SHIPPING USE LICENSE. Innerwall grants Catcher
a non-exclusive, non-transferable license
to (i) integrate and embed the Agent
Module of Enclave in the Catcher Device;
(ii) to reproduce the Agent Module of
Enclave as it will be integrated into the
Catcher Device; and (iii) to sell,
transfer, distribute and sublicense the
Agent Module of Enclave embedded in one
or more Catcher Devices to intermediaries
for resale to End Users or sale
directly to End Users (collectively, an
"EMBEDDED SHIPPING USE LICENSE").
(c)
EVALUATION USE. Catcher may grant intermediaries that
may resell the Bundled Catcher Device and
End Users the right to evaluate the
Bundled Catcher Device without any
additional license or the payment of any
fees, including without limitation, Support
Services fees, it being understood
that if an End User activates the Agent
Module, Catcher will owe Innerwall the
fees required by this Agreement. Catcher
will condition all such evaluations on
compliance on the evaluator's agreement
that it will not reverse engineer,
decompile, disassemble, or otherwise
attempt to determine the source code of the
Agent Module.
(d)
RESTRICTIONS.
(i)
Catcher may not reproduce Enclave in an amount
exceeding the number of units to be sold to
intermediaries for resale to End
Users or to End Users actually receiving
one or more Bundled Catcher Devices.
(ii)
Catcher may not integrate or bundle the Agent
Module with any products or services other
than the Catcher Device without first
obtaining Innerwall's prior written
consent.
(iii) Innerwall
will enter into an End User Agreement
with each End User that activates the Agent
Module. Catcher understands that
such agreement will contain terms and
conditions that are no less restrictive
than those contained in this Agreement.
(e)
OPEN SOURCE LICENSE. One Enclave component interfaces
with an
* Portions of this exhibit have been
omitted and filed separately pursuant to an
application for confidential treatment
filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as
amended.
4
<PAGE>
executable file (the "SNORT EXECUTABLE")
that communicates with the Snort 1.8 -
2.x Host IDS Library software program
("SNORT"). Snort is subject to the GNU
General Public License. The source code for
Innerwall's Snort executable is
available for download at
www.innerwall.com/____________. Innerwall grants
Catcher a non-exclusive, non-transferable
license with respect to Innerwall's
Snort executable that is coextensive with
the other licenses granted by
Innerwall under this Agreement. The GNU
General Public License is available for
download at www.opensource.org.
3. RECIPROCAL
LICENSE TO USE MARKS.
(a)
Catcher may use the Innerwall Marks in connection with
its marketing and distribution of the
Bundled Catcher Device. Catcher's use of
the Innerwall Marks must strictly adhere to
Innerwall's most recent written
guidelines on use of the Innerwall Marks
PROVIDED THAT, a copy of such
guidelines are delivered to Catcher. If
Catcher wishes to deviate from the
written guidelines from Innerwall, Catcher
will submit the proposed use of any
Innerwall Mark to Innerwall for Innerwall's
written approval before the use.
Innerwall will not unreasonably withhold,
delay or condition approval. Catcher's
use of the Innerwall Marks will inure to
the benefit of Innerwall.
(b)
Innerwall may use the Catcher Marks in connection with
its marketing of the Bundled Catcher Device
subject to the parties agreeing on
the terms and conditions of such
distribution. Innerwall's use of the Catcher
Marks will strictly adhere to Catcher's
most recent written guidelines PROVIDED
THAT, a copy of such guidelines is
delivered to Innerwall. If Innerwall wishes
to deviate from the written guidelines from
Catcher, Innerwall will submit the
proposed use of any Catcher Mark to Catcher
for Catcher's written approval
before the use. Catcher will not
unreasonably withhold, delay or condition
approval. Innerwall's use of the Catcher
Marks will inure to the benefit of
Catcher.
4. EXCLUSIVE
BUNDLING.
For a period of 2 year(s) from August 1, 2005, except as noted in
this
Section 4, Catcher will not pre-load the
Catcher Device with any other Network
Security Product other than that embedded
in the operating system software from
Microsoft or any other operating system
software company and will promote
Enclave as the preferred mobility
management Network Security Product for the
Catcher Device. Notwithstanding the
foregoing, any Catcher Distributor Partners
and any End User may utilize a Network
Security Product other than Enclave
without limitation. Except as stated in the
first sentence of this Section 4,
nothing in this Agreement creates any
exclusive arrangement between Catcher and
Innerwall. Either party may distribute
their respective products directly or
indirectly through their respective
distribution channels. It is specifically
understood that Catcher may remove Enclave
from the Catcher device pursuant to a
directive from any government customers and
utilize any competing Network
Security Product.
5. FEES.
(a)
PAYMENT TERMS. Enclave license fees are set out on
SCHEDULE A. The
* Portions of this exhibit have been
omitted and filed separately pursuant to an
application for confidential treatment
filed with the Securities and Exchange
Commission pursuant to Rule 24b-2 under the
Securities Exchange Act of 1934, as
amended.
5
<PAGE>
license and Support Services fees for each
Order are due and payable upon
submission of Utilization Reports or the
activation of Agent Modules, as
applicable. Innerwall may assess interest
charges of one percent (1%) per month
for late payments. Catcher will reimburse
Innerwall for any costs incurred
(including reasonable attorneys' fees) in
the collection of Catcher's past due
accounts if Innerwall is successful in such
efforts. There is no license or
other fee of any nature whatsoever for the
license grants under this Agreement
or the obligations of Innerwall under this
Agreement, except as set forth in
Schedule A and in the Support Services
Agreement between the parties.
(b)
QUARTERLY UTILIZATION REPORT. Except for Bundled
Shipping Use Licenses, Catcher agrees to
provide Innerwall with a Utilization
Report within 30 days after the end of each
calendar quarter. The information
contained in each Utilization Report will
be based upon the activity in the
previous calendar quarter. Each Utilization
Report will also include a
calculation of commissions due to Innerwall
under Section 6.
(c)
AUDIT. Innerwall may, at its sole cost and expense and
at any reasonable time during the term of
this Agreement but no more than once
each fiscal quarter during the Term and
with no less than seven (7) days prior
written notice, request and gain access to
Catcher's premises subject to
Catcher's security procedures, for the
limited purpose of conducting an audit to
determine and verify that Catcher is in
compliance with these terms and
conditions. Catcher will promptly grant the
access and cooperate with Innerwall
in the audit. The audit will be restricted
in scope, manner and duration to that
reasonably necessary to achieve its purpose
and may not disrupt Catcher's
operations. Catcher will promptly contest
(in accordance with Se
