Software License and Services
Agreement
This Software
License and Services Agreement (“Agreement”) is made
and entered into as of this 31 st day of March, 2000, between BroadVision, Inc.
(“BroadVision”) and Redenvelope
(“Customer”)
Address 201
Spear Street, 3 rd floor
San
Francisco, CA 94105
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:
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A.
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Current Licensing
Practices
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B.
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Required Provisions of
Sublicenses
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C.
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Professional Services Terms &
Conditions
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D.
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Business Terms
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A.
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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.
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B.
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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.
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C.
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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.
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D.
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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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A.
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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.
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B.
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Software will be shipped FOB from
BroadVision’s facility in Redwood City, California, U.SA., by
commercial surface transportation. Transportation charges in excess
of such rates will be billed to Customer. Software shall be deemed
accepted upon delivery.
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C.
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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.
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SLSA
1/98
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BroadVision, Inc.
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Page 1 of 5
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A.
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BroadVision agrees to provide
Customer with software maintenance subject to the following
provisions and conditions:
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i.
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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”).
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ii.
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BroadVision shall provide software
maintenance for any Standard Release until 180 days after
shipment of the subsequent Standard Release.
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iii.
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Customer shall designate three
(3) or, with BroadVision’s prior written approval, more
than three (3) Support Contact Persons, 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 travel
and other reasonable out-of-pocket expenses incurred with respect
to such services.
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iv.
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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.
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v.
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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.
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B.
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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.
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C.
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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.
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D.
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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.
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4.
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Title to Software.
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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.
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5.
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Warranty.
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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 of any nonconformity. Where a
material
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SLSA
1/98
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BroadVision, Inc.
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Page 2 of 5
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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.
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6.
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Limitation of
Liability.
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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 LOST REVENUES ARISING
FROM THE UNAUTHORIZED USE, DISCLOSURE OR DISTRIBUTION OF SOFTWARE
BY CUSTOMER SHALL BE DEEMED DIRECT DAMAGES.
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7.
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Intellectual Property Rights
Indemnity.
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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.
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Confidentiality of Software and
Documents.
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A.
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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 hereto.
Customer may make copies of the Software, in machine readable form,
only as is reasonably necessary for archival and backup
purposes.
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B.
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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.
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C.
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The
provisions of this section shall survive the termination of this
Agreement for a period of five (5) years.
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D.
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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. Nothing in the foregoing is intended to
prohibit Customer from releasing data specific to the performance
of Customer’s site.
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SLSA
1/98
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BroadVision, Inc.
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Page 3 of 5
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9.
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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.
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10.
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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 30 days written notice thereof. Upon termination
of this Agreement for any of the above reasons, all licenses
granted hereundear 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.
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A.
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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
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.
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B.
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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.
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C.
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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
San Mateo 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.
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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.
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D.
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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.
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E.
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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.
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F.
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Notice . Any notice, consent, or other
communication hereunder shall be in wri
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