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Exhibit 10.4
Contract No ____________
RESELLER AGREEMENT
This Reseller Agreement ("Agreement") is made and entered into as of this 8th
day of November 1999, between BroadVision, Inc. ("BroadVision") and
Company Corio, Inc.
("Reseller")
Address 700 Bay Road, Suite 210
Redwood City, CA 94063
This Reseller Agreement is attached to and incorporated by reference into that
certain Master Agreement dated the date hereof between Reseller and BroadVision
(the "Master Agreement"). Terms defined in the Master Agreement and used herein
shall have the respective meanings ascribed to them in the Master Agreement. In
consideration of the mutual covenants and conditions contained in this Agreement
and in the Master Agreement, the parties agree as stated herein. The following
attachments, required when applicable, are also part of this Agreement:
A. Scope of License
B. Current Licensing Practices
C. Required Provisions of Sublicenses
D. Support Escalation Procedure
E. Master Preferred Escrow Agreement
1. LICENSE.
A. DEVELOPER LICENSE. BroadVision hereby grants to Reseller a
nonexclusive and nontransferable license ("Developer 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 the software products set forth
in Attachment A, including all versions, including current,
previous, and subsequent versions, of all software products,
together with operating instructions, user manuals, training
material, and other documentation as BroadVision supplies to
Reseller. Reseller's sole permitted uses of a Developer License
shall be to develop and demonstrate the application software
products and/or systems listed in Attachment A ("the
Application") that it intends to license to end-user customers
("End-Users"). Reseller's use of Developer Licenses shall be in
a manner consistent with Attachment B. Developer Licenses may
not be used to operate production versions of the Application,
or any other Reseller or End-User programs on a production
basis.
B. END-USER LICENSE. BroadVision also grants to Reseller a
nonexclusive and nontransferable license to sublicense and
distribute the Software to its End-Users, on a nonexclusive and
nontransferable basis ("End-User License"), on Reseller's
servers in a hosted environment for use solely in conjunction
with the Application, in the geographic areas specified in
Attachment A ("Territory"). Reseller shall require each
End-User, before it may use or install the Application, to
execute a written license agreement containing, at a minimum,
the required provisions specified in Attachment C. Reseller
shall indemnify BroadVision for all damages caused by Reseller's
failure to include required terms in its sublicense agreements
with its End-Users. Reseller may also obtain End-User Licenses
for its own use, in the event that it itself intends to operate
production versions of the Software; such End-User Licenses
shall be governed by the terms and conditions of this Agreement,
as if Reseller had sublicensed to an End-User.
C. PROHIBITED USES. Reseller may not (a) rent, lease, or loan the
Software other than allowed for in this Agreement; (b)
electronically transmit the Software over a network except as
necessary for Reseller'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; (f) sublicense or permit the Software to be sublicensed
to any governmental entity without BroadVision's prior written
consent; or (g) use the Software in any way not expressly
provided for in this Agreement. There are no implied licenses.
Reseller agrees not to exceed the scope of the licenses granted
herein. Reseller acknowledges and agrees that BroadVision may,
at any time without notice, incorporate license management
software into the Software to prevent Reseller or End Users from
exceeding the scope of their respective licenses.
2. PAYMENT, PRICES. Except as set forth in the Master Agreement:
A. For Developer Licenses, consulting, training, and documentation,
invoices shall be issued upon delivery of the products or
services, unless agreed to the contrary, and shall be due and
payable in United States currency upon receipt by Reseller.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
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Payment shall be overdue thirty (30) days after the delivery
date specified on the invoice.
B. Within thirty (30) days of delivery of each copy of the Software
from BroadVision to Reseller or the End-User, or from Reseller
to the End-User if Reseller has reproduction rights as set forth
in Section 2.D below, Reseller shall pay BroadVision the
applicable license or sublicense fee as set forth in the Master
Agreement and as reported in Section 3 herein. Reseller is free
to determine unilaterally its own sublicense fees to its
End-Users. RESELLER'S OBLIGATION TO PAY SUBLICENSE FEES TO
BROADVISION IS NOT CONTINGENT UPON RESELLER'S COLLECTION FROM
ITS END-USERS.
C. Technical support fees are due annually in advance of the
anniversary date of each Developer License and End-User License,
including the first year, since BroadVision's technical support
fees are not bundled together with license fees. The annual
price for technical support for Developer Licenses shall be
BroadVision's then-current price for such services. Reseller
may, at its option, make all technical support fees payable a
common anniversary date, in which case only a prorated portion
of the technical support fee shall be due immediately upon
delivery of the license or sublicense.
D. Software will be shipped FOB BroadVision's facility in Redwood
City, California, U.S.A., by commercial surface transportation.
Transportation charges in excess of such rates will be billed to
Reseller. Except to the extent prohibited by law or contract,
BroadVision will permit Reseller to obtain its initial copy of
the Software by FTP transfer over the Internet in accordance
with instructions provided by BroadVision. Reseller will
download the initial copy of the Software promptly after
execution of this Agreement and will thereafter download any
separately priced version of Software promptly after the
issuance of its purchase order to BroadVision for such version.
Reseller will promptly notify BroadVision if it makes any copies
of the Software as downloaded if such copy would require the
payment of additional fees to BroadVision. Software shall be
deemed accepted upon delivery. Reseller may produce its own
copies of the Software for delivery to End-Users from a master
copy provided by BroadVision so long as it notifies BroadVision
in writing of any copies that it makes for such purpose and pays
any applicable fees.
E. 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.
Reseller 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. 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.
3. REPORTING.
Except as set forth in the Master Agreement, each month Reseller, within
fifteen (15) days following the end of such month, shall provide
BroadVision a report including the following:
i. a list of each End-User License delivered and each
End-User agreement executed, specifying the name and
location of the sublicensee;
ii. a detailed account of all fees due to BroadVision under
this Agreement.
4. SOFTWARE MAINTENANCE.
A. BroadVision agrees to provide Reseller with software maintenance
subject to the provisions and conditions listed below. Reseller
shall be solely responsible for installing and supporting its
Customers; BroadVision will refer back to Reseller any questions
BroadVision receives from Customers.
i. 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
that BroadVision provides to its maintenance customers
generally where such improvements or modifications are
not priced as separate new products or options
("Standard Release"). A copy of BroadVision's support
escalation
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procedure, including targeted response times, is set
forth in Attachment D hereto.
ii. BroadVision shall provide software maintenance for any
Standard Release only until one year after shipment of
the subsequent Standard Release.
iii. Reseller shall designate one Support Contact Person for
each Customer, who shall be responsible for
communicating support issues to BroadVision; provided,
that in no event may the total number of such Support
Contact Persons exceed eight (8) unless otherwise agreed
by BroadVision. Reseller agrees to provide BroadVision
with timely written notification containing all details
of software problems necessary for BroadVision to
diagnose such problems. Reseller agrees to cooperate
fully in providing BroadVision with Reseller's source
code, in machine-readable form, and other materials
necessary to reproduce a reported software problem.
Subject to Reseller's security requirements, Reseller
agrees to provide BroadVision reasonable direct or
remote access and test time on Reseller's BroadVision
system, for the purpose of diagnosing reported software
problems. If BroadVision provides on-site services at
Reseller's request in connection with software
maintenance, Reseller shall reimburse BroadVision for
all travel and other reasonable out-of-pocket expenses
incurred with respect to such services.
iv. Software maintenance will also include any patch
releases ("Patch Releases") that BroadVision makes
available to its maintenance customers generally. Patch
Releases are intended to address material deviations
between the Software and its published specifications
until a Standard Release can be made available. Reseller
may install Patch Releases at its option.
v. 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 Reseller or third
parties. If BroadVision expends its time on a
noncompliance found to be the result of any of the
preceding or due to the operation of the Application,
Reseller shall pay BroadVision for such time at
BroadVision's then-current hourly consulting rate.
B. BroadVision will give Reseller at least sixty days advance
notice of the expiration of the applicable annual maintenance
period and the annual maintenance fees for the ensuing annual
maintenance period. Such prices will be determined in accordance
with the Master Agreement and this Agreement. Reseller may renew
maintenance for all (but not less than all) copies of the
Software licensed to it by giving BroadVision written notice of
such renewal on or before the beginning of the applicable
maintenance renewal period. In the event of termination for
Reseller's breach or Reseller's convenience, all maintenance
fees shall be immediately due and payable without notice; in the
event of termination for any other reason, Reseller shall be
entitled to a refund of maintenance fees already paid, prorated
for the unused portion of such fees. If BroadVision determines
that it is in its best interests to cease providing its
customers generally with maintenance for any or all of the
Software, BroadVision may discontinue its maintenance
obligations to Reseller (and to Reseller's Customers if
BroadVision exercises its rights under Section 12 hereof) with
respect to such Software by giving Reseller at least one year's
prior written notice of such discontinuance.
C. 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.
D. If Reseller initially declines software maintenance and then
subsequently elects to commence maintenance, or if maintenance
for an item of Software is discontinued at Reseller's request
and then subsequently renewed, Reseller shall pay the
maintenance fees that would have been due for the period during
which maintenance was not provided.
5. CONDUCT.
A. Reseller shall employee the highest reasonable professional
standards in selling and supporting the Application, and shall
avoid deceptive, misleading, or unethical practices that may be
detrimental to BroadVision or to the Software. Reseller
personnel shall obtain training from BroadVision, at
BroadVision's then-current standard rates, in the proper use of
the Software, and shall provide, or arrange for BroadVision to
provide, such training to Customers where appropriate. Reseller
and BroadVision shall
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comply with all laws applicable to the subject matter of this
Agreement. Failure to honor the terms of this section shall
constitute a material breach of this Agreement; provided,
however, that prior to BroadVision terminating this Agreement
for any such failure, BroadVision and Reseller will promptly
attempt to resolve any disagreement over such failure in good
faith.
B. Subject to the terms and conditions of this Agreement,
BroadVision hereby grants to Reseller a non-exclusive,
non-transferable, non-sublicenseable license to use the
BroadVision trademarks, trade names, and logos (the "Marks") to
advertise the Software in the Territory. Reseller acknowledges
BroadVision's ownership and exclusive rights in the Marks.
Reseller's use of the Marks shall inure to the benefit of
BroadVision. Reseller shall not attempt to register the Marks or
adopt, use or attempt to register any confusingly similar marks.
BroadVision may immediately terminate this trademark license if
Reseller's use of the Marks does not conform to BroadVision's
then-current standards and usage policy. Reseller shall state at
the first instance of each use of a Mark that the Mark is
BroadVision's trademark and include the symbols TM or (R) as
appropriate. Reseller shall not use any trademark, word, symbol,
letter or design in combination with the Marks in any manner
which would create a combination mark.
C. Unless otherwise requested by BroadVision, Reseller shall ensure
that the phrase "Personalized by BroadVision One-To-One" shall
appear on the logon screen, splash screen, or other first view
of the Application seen by consumers or other end-users when
they enter the Application and will use all commercially
reasonable efforts to obtain the consent of Customers to the
foregoing in connection with their respective uses of the
Application. The above phrase shall be a hypertext link to a URL
specified by BroadVision. Reseller's use of the phrase shall be
in accordance with BroadVision's guidelines for use of the mark.
6. TITLE TO SOFTWARE.
Reseller 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.
Reseller acknowledges that the Software is the property of BroadVision
or its licensors.
Subject to BroadVision's ownership of any materials or technology
provided to Reseller, including without limitation the Software, the
results of all development efforts made solely by Reseller, including
all intellectual property rights in any software interface coding or
programs created solely by Reseller during the term of this Agreement to
enable the Software to operate within Reseller's hosted environment
("Developments"), shall be owned by Reseller, unless otherwise agreed or
unless such Developments are supported on an ongoing basis by
BroadVision, in which case BroadVision will have or retain all ownership
rights, including intellectual property rights in the Developments. To
the extent that BroadVision would otherwise have a claim of ownership in
Developments, BroadVision hereby assigns all rights in and to such
Developments to Reseller.
7. WARRANTY.
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 as
provided to Reseller concurrently with the delivery of the Software.
BroadVision further warrants that the Software is and shall be "Year
2000 Compliant". For purposes of this Section 7, the term "Year 2000
Compliant" means that, through January 31, 2001 (a) no value for a
current date will cause any interruption in operation; (b) date-based
functionality will behave consistently for dates prior to, during, and
after year 2000; (c) in all interfaces and data storage, the century in
any date must be specified either explicitly or by unambiguous
algorithms or inferencing rules; and (d) year 2000 must be recognized as
a leap year. BroadVision further warrants, so long as Reseller is
purchasing maintenance services pursuant to Section 4 hereof, that its
maintenance services will be performed in a professional and workmanlike
manner. Reseller will notify BroadVision during or within thirty (30)
days after the expiration of the applicable warranty period set forth
above of any nonconformity. Where a material nonconformity exists within
the warranty period, and proper notice has been given to BroadVision,
BroadVision will use due diligence to correct the nonconformity and
provide Reseller with one copy of any such corrected version of the
Software, or, if BroadVision is unable to correct such nonconformance
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
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Release or maintenance services delivered pursuant to Section 4 herein.
THESE WARRANTIES ARE 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.
8. LIMITATION OF LIABILITY.
Except for a party's liability under Section 9 hereof and for breaches
of Section 13 of the Master Agreement and Section 10 hereof, each
party's liability to the other 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, EACH PARTY AGREES THAT IN NO EVENT SHALL THE OTHER PARTY
BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING
LOST PROFITS OR LOSS OF USE, HOWEVER ARISING INCLUDING NEGLIGENCE;
PROVIDED, HOWEVER, THAT LOST REVENUE OR LOST PROFITS ARISING FROM A
PARTY'S UNAUTHORIZED USE, DISCLOSURE OR DISTRIBUTION OF THE OTHER
PARTY'S CONFIDENTIAL INFORMATION (INCLUDING WITHOUT LIMITATION THE
SOFTWARE) SHALL BE DEEMED A DIRECT DAMAGE.
9. INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
A. BroadVision will defend any action against Reseller claiming
that the Software constitutes infringement or misappropriation
of any patent, copyright, trademark, trade secret or
intellectual property right. BroadVision shall indemnify
Reseller for any reasonable expense incurred by Reseller in
connection with the foregoing. BroadVision's obligations under
this section are conditioned upon BroadVision having sole
control of any such action, and upon Reseller 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
Reseller 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 Reseller, 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 Reseller; or (c) the use of the licensed Software in
combination with software or hardware not provided under this
Agreement or with the Application. The foregoing states
BroadVision's sole and exclusive liability for patent,
copyright, or other proprietary rights infringement or for
breach of any express or implied warranty of title, ownership or
non-infringement.
B. Reseller will defend any action against BroadVision (a) claiming
that any software provided by Reseller to Customers (other than
the Software) infringes or misappropriates any patent,
copyright, trademark, trade secret or intellectual property
right; or (b) resulting from Reseller's acts, omissions, or
misrepresentations. Reseller shall indemnify BroadVision for any
reasonable expense incurred by BroadVision in connection with
the foregoing. Reseller's obligations under this section are
conditioned upon Reseller having sole control of any such
action, and upon BroadVision notifying Reseller immediately in
writing of the claim and giving authority, information, and
assistance necessary to settle or defend such claim.
10. CONFIDENTIALITY OF SOFTWARE AND DOCUMENTS.
A. Except to the extent permitted in the Master Agreement, Reseller
shall not reproduce, duplicate, copy, sell, or otherwise
disseminate the Software, including operating instructions, user
manuals, and training materials, in any medium except as
authorized herein.
B. Reseller acknowledges that the Software is BroadVision's
extremely valuable trade secret. With respect to any copies of
the Software retained by Reseller for its internal use, Reseller
shall not disclose the Software to any third parties
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(other than onsite contractors who are subject to confidentiality
and use restrictions similar to those contained in this
Agreement) nor use the Software for any purpose other than as
expressly stated in this Agreement. With respect to copies of the
Software that Reseller procures or makes for redistribution, such
copies may only be redistributed so long as the recipient
satisfies the requirements of this Agreement and, without
limiting the foregoing, is subject to the use and disclosure
restrictions of Attachment C.
C. Reseller 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.
11. AUDIT RIGHTS.
No more than once annually, BroadVision may audit Reseller'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 Reseller's offices and shall not interfere
unreasonably with Reseller's business activities. If an audit reveals
that Reseller has underpaid its total fees by more than five percent
(5%), then Reseller shall pay BroadVision's reasonable costs of
conducting the audit, in addition to the underpaid amount.
12. TERM/TERMINATION.
A. This Agreement shall be for an initial term of forty-eight
months unless the Agreement is terminated previously as provided
herein.
B. BroadVision may terminate this Agreement upon 30 days prior
written notice and an opportunity for Reseller to cure within
such 30 days: (a) any material breach of this Agreement by
Reseller; or (b) failure by Reseller to pay license fees for
Software under the payment terms specified in this Agreement or
as stated on BroadVision's invoice for such Software. Reseller
may terminate this Agreement upon 30 days written notice and an
opportunity for BroadVision to cure any material breach of this
Agreement by BroadVision with such 30 days.
C. Upon termination of this Agreement for any reason, the following
shall occur:
i. Reseller's rights under this Agreement shall
automatically cease, provided that all sublicenses shall
continue according to their terms. Reseller may continue
using the release of the Software then in its possession
solely for the purpose of continuing technical support
for sublicenses granted prior to termination.
ii. Reseller shall return to BroadVision or destroy the
Software and other marketing materials, software, and
data, except as required for the operation of Section
12.C.i above.
iii. BroadVision shall, within sixty (60) days after the
effective date of termination of this Agreement have the
option to assume the responsibility of providing
maintenance and support for the Software to any or all
of Reseller's customers pursuant to BroadVision's
standard terms and conditions for the performance of
such services, provided such customer requests such
assumption and BroadVision consents. Reseller shall
provide BroadVision with copies of all maintenance
agreements in force with End-Users. Reseller shall pay
to BroadVision a prorated portion of the maintenance
fees paid by such customers and retained by Reseller for
the remaining terms of such agreements. Notwithstanding
the foregoing, so long as Reseller is paying BroadVision
Revenue Fees and annual maintenance fees for other
copies of Software licensed to Reseller (including
Software subsequently sublicensed to Customers),
BroadVision will continue to provide maintenance
services to Reseller pursuant to Section 4 hereof
following termination or expiration of this Agreement
unless BroadVision terminates this Agreement (a) because
Reseller has not made payments under the Master
Agreement or this Agreement when due, or (b) for
Reseller's use, reproduction, disclosure or distribution
of any of the Software in a manner not authorized by
this Agreement or the Master Agreement.
iv. Reseller's obligations under Sections 2 (to the extent
that any amounts are owed to BroadVision as of the
termination date), and Sections 4, 6, 7, 8, 9, 10, 12,
and 13 will survive the termination of this Agreement.
All other rights and obligations of the parties will
cease upon termination of this Agreement.
13. GENERAL.
A. 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
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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.
B. 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.
C. 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 Santa Clara County,
California, and Reseller 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.
Reseller 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 seek
preliminary and permanent injunctive relief and other equitable
relief for any breach of BroadVision's intellectual property
rights in the Software.
D. 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.
E. EXPORT. Reseller acknowledges that the laws and regulations of
the United States restrict the export of the Software. Reseller
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.
F. NOTICE. Any notice, consent, or other communication hereunder
shall be in writing, and shall be given personally, by confirmed
fax or express delivery to either party at their respective
addresses:
(i) to BroadVision at:
BroadVision, Inc.
585 Broadway
Redwood City, CA 94063, USA
Attn: Chief Financial Officer
(ii) to Reseller at:
Corio, Inc.
700 Bay Road, Suite 210
Redwood City, CA 94063
Attn: Roger Lee
or such other address as may be designated by written notice of
either party. Notices shall be deemed given when delivered or
transmitted, or seven days after deposit in the mail.
G. INDEPENDENT CONTRACTORS. The parties' relationship shall be
solely that of independent contractor and nothing contained in
this Agreement shall be construed to make either party an agent,
partner, joint venturer, or representative of the other for any
purpose.
H. FORCE MAJEURE. If the performance of this Agreement, or any
obligation hereunder, except the making of payments, is
prevented, restricted, or interfered with by reason of any act
or condition beyond the reasonable control of the affected
party, the party so affected will be excused from performance to
the extent of such prevention, restriction, or interference.
I. ENTIRE AGREEMENT. All products and services delivered by
BroadVision to Reseller are subject to the terms of this
Agreement, unless specifically addressed in a separate
agreement.
14. ESCROW. If Reseller so elects within ninety (90) days after the
execution of this Agreement, Reseller may become a party to the
agreement pursuant to which BroadVision has deposited the source code to
the Software. Such escrow agreement is attached hereto as Attachment E.
Reseller shall bear the costs of opening and maintaining such escrow
account.
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AGREED TO BY: BROADVISION, INC.
/s/ Signature Illegible
Signature
Randall Bolten
--------------
Printed Name
CFO
---
Title
RESELLER: CORIO, INC.
/s/ Signature Illegible
Signature
Laurent Pacalin
---------------
Printed Name
VP Business Development 11/8/99
-------------------------------
Title
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Contract No. _____________________
ATTACHMENT A TO
RESELLER AGREEMENT
SCOPE OF LICENSE
The following BroadVision products may be licensed to and sublicensed by
Reseller under the terms and conditions of the Agreement, and are collectively
referred to as the "Software" in the Agreement:
BroadVision One-To-One Development System (aka BroadVision
One-To-One Enterprise)
BroadVision One-To-One Commerce Retail
BroadVision One-To-One Commerce Business
BroadVision One-To-One Deployment System
BroadVision One-To-One Command Center
BroadVision One-To-One Publishing Center
BroadVision One-To-One Instant Publisher
BroadVision One-To-One Design Center
Reseller may use the Software to develop the following programs, collectively
referred to as the "Application" in the Agreement, intended to be licensed to,
or operated on behalf of, End-Users:
Application is an eCommerce solution offering hosted and managed by
Reseller on behalf of its customers. The Reseller's eCommerce solution
is the Software integrated with the hardware, software, and services
that Reseller provides to its Customers on a hosted basis. Application
includes functionality related to multiple eCommerce businesses, malls,
and business to business applications. Reseller may use third parties in
development of the Application, provided they abide with this Agreement.
Reseller may sublicense the Software in the following geographic areas,
collectively referred to as the "Territory" in the Agreement:
North America
Any request by Reseller to expand the Territory is subject to BroadVision's
agreement, which agreement will not be unreasonably withheld. BroadVision will
not condition such expansion on the payment of any expansion fee or to a change
in the Revenue Fee methodology described in the Master Agreement. If BroadVision
consents to any such expansion of the Territory and BroadVision offers a
localized version of all or part of the Software on its local price list,
Reseller will have the right to acquire licenses for such localized versions on
the terms set forth in the price list, subject to the discount structure set
forth in the Master Agreement.
Notwithstanding anything to the contrary herein, Reseller may not sublicense
Software or permit Software to be sublicensed to the following countries,
corporations and their affiliates:
(a) in the countries of Norway, Sweden, or Denmark prior to December 1,
1999;
(b) to the following financial services End-Users, prior to July 1, 2000,
for applications relating to consumer or corporate financial services:
[*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Page 1 of 2
<PAGE> 10
[*]
(c) [*]
Initialed by: BroadVision
Reseller
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Page 2
<PAGE> 11
Contract No. _____________
ATTACHMENT B TO
RESELLER AGREEMENT
BROADVISION LICENSING PRACTICES
BroadVision's current standard licensing practices are as follows for the
products listed below. These practices are in effect as of June 15, 1999.
* ONE-TO-ONE DEVELOPMENT SYSTEM -- licensed on a per-user basis.
In other words, each individual who will use the One-To-One
Development System to develop BroadVision One-To-One
applications must be separately licensed. Customer may reassign
One-To-One Development System licenses within reason, for
example as employees terminate employment or transfer to other
departments. One-To-One Development System products include:
* ENTERPRISE DEVELOPMENT SYSTEM -- the basic BroadVision
development system
* APPLICATION DEVELOPMENT SYSTEM -- includes the
Enterprise Development System and the objects and other
products necessary to develop ONE of the BroadVision
Applications (Retail Commerce, Financial, or Knowledge)
* TWO APPLICATION DEVELOPMENT SYSTEM -- same as the
Application Development System, but for TWO of the
BroadVision Applications
(NOTE: Business Commerce by itself is counted as a Two
Application Development System)
THREE APPLICATION DEVELOPMENT SYSTEM -- same as the
Application Development System, but for THREE of the
BroadVision Applications
* ONE-TO-ONE DEPLOYMENT SYSTEM -- licensing is based on the
maximum number of Profiled Users permitted to be tracked by
BroadVision One-To-One applications. A Profiled User corresponds
to a record in the BroadVision user profile database. The record
maintains information about the user's profile and may refer to
external sources for additional profile information. The number
of Profiled Users represents the number of one-to-one
relationships that Customer wants to maintain with its users. By
licensing a number of profiled users the customer is paying for
the right to keep that many records in the BroadVision user
profile database at any point in time. Examples of Profiled
Users include, but are not limited to customers, partners and
employees.
* ONE-TO-ONE TOOLS -- licensed on a per-user basis, similar to the
One-To-One Development System products. One-To-One Tools
include:
* ONE-TO-ONE COMMAND CENTER, formerly known as the
Dynamic Command Center, or DCC
* ONE-TO-ONE PUBLISHING CENTER, formerly known as
the Content Management Center, or CMC
* ONE-TO-ONE INSTANT PUBLISHER
* ONE-TO-ONE DESIGN CENTER, formerly known as the
Visual Design Center, or VDC
[NOTE: The One-To-One Command Center, the One-To-One Publishing Center,
and the One-To-One Instant Publisher may be sublicensed to third parties
using Customer's application software in accordance with the terms of
this Agreement.]
Page 1 of 1
<PAGE> 12
Contract No ________________________
ATTACHMENT C TO
RESELLER AGREEMENT
REQUIRED PROVISIONS OF SUBLICENSE AGREEMENTS
This Attachment C is incorporated into the Reseller Agreement (the "Agreement")
dated the 8th day of November, 1999 between BroadVision, Inc. ("BroadVision")
and Corio, Inc. ("Reseller"). The terms and conditions contained herein are
subject in all respects to the terms and conditions of that Agreement, except
that in the event of a conflict between the terms of this Attachment C and the
Agreement, the terms of this Attachment C shall govern.
Each agreement sublicensing the Software entered into between Reseller and its
End-Users shall contain provisions that are at least as protective of
BroadVision's interests as the following:
1. End-Users shall be licensed to use the object code of the Software only
in accordance with BroadVision's licensing practices. Unless stated
otherwise in the licensing practices, End-Users shall have the right to
duplicate the Software only for backup or archival purposes and as
necessary to transfer the Software to a backup computer in the event of
computer malfunction.
2. End-Users shall not (i) rent, lease, or loan the Software; (ii)
electronically transmit the Software over a network except as necessary
for End-User's licensed use of the Software; (iii) 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, (iv) modify, disassemble,
decompile, or reverse engineer the Software; (v) sublicense or transfer
possession of any copy of the Software to another party, except as
expressly permitted by BroadVision; or (vi) use the Software in any way
not expressly provided for.
3. Title to the Software shall not pass to the End-User. End-User 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. End-User shall
acknowledge that the Software is the property of BroadVision or its
licensors.
4. End-User may be permitted to grant nontransferable sublicenses to
portions of the Software, where such grants are explicitly permitted by
BroadVision's licensing practices. End-User 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 this Attachment. End-User shall
indemnify BroadVision for all losses, costs, damages, expenses, and
liabilities caused by a sublicensee's failure to honor the terms of such
sublicense, or by End-User's failure to include required terms in its
sublicense agreements with its sublicensees.
5. Unless otherwise requested by BroadVision, End-User shall ensure that
the phrase "Personalized by BroadVision One-To-One" shall appear
prominently on the logon screen, splash screen, or other first view of
the End-User's application seen by consumers or other end-users when
they enter such application. The above phrase shall be a hypertext link
to a URL specified by BroadVision. End-User's use of the phrase shall be
in accordance with BroadVision's guidelines for use of the mark.
6. BroadVision disclaims all warranties, express or implied, to End-Users.
7. BroadVision shall not be liable for any damages, whether direct,
indirect, incidental, or consequential, arising from the use of the
Software.
8. End-User 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 expressly
permitted pursuant to BroadVision's licensing practices or this
Attachment. End-User 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 its Agreement with Reseller,
and only to the extent that such use is necessary to End-User's
employees or consultants in the course of their employment.
9. At the termination of the End-User License, the End-User shall
discontinue use and shall destroy or return
Page 1 of 2
<PAGE> 13
the Software to BroadVision, including all archival or other copies.
10. BroadVision is a third-party beneficiary of the End-User License
agreement with Reseller.
11. The End-User shall not publish any result of benchmark tests run on the
Software.
12. End-User may assign its license to the Software only to an entity
acquiring substantially all of its assets or merging with it, provided
that such assignee agree in writing to assume all associated
obligations. Otherwise, End-User may not assign its rights in the
Software to any third party, and any attempted assignment in violation
of the foregoing shall be void and of no effect.
13. The End-User shall comply fully with all relevant regulations of the
United States Department of Commerce and with the U.S. Export
Administration to assure that the Software is not exported in violation
of the code and regulations.
Page 2 of 2
<PAGE> 14
Attachment D
To Software License and Services Agreement
BROADVISION SUPPORT POLICY
Case tracking is the procedure of tracking customer-reported problems.
BroadVision support engineers open cases in the order in which they are
received. Cases have different priorities and will be treated accordingly.
Standard support is provided from 9am to 6pm PT in America, and 9am to 6pm GMT
in Europe. (For enhanced support coverage see the section below concerning
After-hours support.) If a case hasn't been opened after 1 day the Support
manager will be notified. After 2 days the Support Director will be notified.
CASE ESCALATION AND 'HOT SITE' STATUS
The support engineer opening a case will set case priority. A customer may
request that a case be escalated at any time by contacting the Support engineer
or the Support Manager.
Unusually important site problems will be considered 'hot sites'. This includes
such issues as serious reliability problems or significant performance problems
on production systems. To escalate a case, the customer may notify their Support
engineer or the Support Manager. A 'hot site' will gain Executive level
attention and all necessary resources to resolve the issue as quickly as
possible.
A hot site will have a dedicated Support engineer until it is resolved. The
customer is expected to provide technical resources, remote access and
reproducible cases as necessary. BroadVision will manage a list of issues to be
resolved in the escalation to be communicated daily by the assigned Support
engineer. Once all the issues are resolved, the escalation to 'hot site' will be
closed.
The response and turnaround times indicated below are BroadVision's most
reasonable estimates of such times. Such times may be impacted by a number of
factors beyond BroadVision's reasonable control, including without limitation
the fact that the source of the problem may exist with a component not provided
by BroadVision. BroadVision will not be deemed to be in breach of its
maintenance obligations to Reseller if it fails to meet such response or
turnaround times due to factors beyond BroadVision's reasonable control.
PRIORITY 1
The highest level is reserved for site-down type failures. Once BroadVision
support is notified that a site is down they will start work to restore the site
as soon as possible. If a site is not restored after 4 hrs of work the Support
engineer will move the site to 'hot site' status. The WPSO engineer who worked
on the site will be contacted and Support Director notified of escalation. After
1 day of escalation VP WPSO and VP Engineering will be notified. The VPs will
identify additional resources to work on the problem. After 2 days of escalation
the CEO will be notified.
PRIORITY 2
Level 2 is for serious problems on a site not causing total failure. BroadVision
Support will start work on the site as soon as they are aware of the problem. If
a workaround has not been developed after 1 day of work by Support then the
Support Director will be notified. After 3 days of work VP WPSO and VP
Engineering will be notified.
PRIORITY 3
The third level is for general issues on a site not causing serious problems. If
a case isn't resolved after 2 days the Support Manager will be notified. After 3
days the Support Director will be notified.
<PAGE> 15
PRIORITY 4
The lowest level is for questions or issues on a site not requiring immediate
action. If a case isn't resolved after 3 days the Support Manager will be
notified. After 5 days the Support Director will be notified.
AFTER-HOURS SUPPORT
An optional support package is available to provide support 7 days a week, 24
hrs a day for assistance with serious problems on live-sites. It will not
support development questions/issues. Customers with this support will be
provided with a single pager number to contact the on-call Support person in the
case of a priority 1 support call. It is preferred that the customer must
provide BroadVision dialup access to the site in order to for support to able to
provide assistance in the recovery process. The Support engineer on call will
have a laptop so that he/she can then dial into the website and help effect
system recovery.
DOCUMENTING KNOWN PROBLEMS
This note is to announce BroadVision's policy of sharing bug lists with
customers. Several customers and the field have requested that we share an
edited version of the bug list with our customers. The intent is to pro-actively
let the customers know about known problems and document workarounds. Support,
engineering and product management will decide which problems to report.
Today we publish some of this information in the Known Problems section of the
Release Notes. The following is our policy of enhancing this information as well
as updating the known bugs every month and making it available through the
support section of the BroadVision web site.
1. Currently we provide the following information in the Known Problems
section of the Release Notes. The Release Notes will be updated upon
every release.
Bug Information: problem ID, brief description, any known workaround
2. Starting with version 4.1 Technical Support will update the Known Bugs
section to include known bugs reported since the last release. This will
be updated once a month. Since the updates will be written by Technical
Support, it will be directed to an engineering audience. At product
release time, Tech Pubs will roll them into the formal Release Notes.
3. We will also make the following patch information available on our Tech
support site:
Patch Number:
Date released: <can also list those in preparation, with a planned release date>
Required previous patches: <patch numbers or 'none'>
Resolved problems: <list of problem numbers>
PRODUCT ENHANCEMENT REQUEST PROCEDURE
TO SUBMIT AN ENHANCEMENT REQUEST
Log in to Broadvision.com\login.html. Select Support, and then click "Submit a
new ticket". Include the text "Enhancement" in the description before submitting
the request, and the product you wish to submit an enhancement request for.
PM will review enhancements on a weekly basis and respond to you, the submitter,
with the status
<PAGE> 16
GETTING ENHANCEMENTS INTO AN UPCOMING PRODUCT RELEASE
At the start of each project Product Manager will go through the enhancement
list with ISG and engineering to determine which should be included in the next
release. If there are specific features that need to be included to satisfy a
project need, please include that information in the ER when submitted, and
email the appropriate Product Manager.
<PAGE> 17
COMPATIBILITY POLICY
This note clarifies BroadVision's policy on compatibility between production
releases. BV will provide a migration path between the objects, templates, and
scripts, components and content that customers have created with a production
release of One-To-One to the next production release of One-To-One. Addressing
these in turn:
1. BroadVision Standard objects - if we change the tag syntax of BV standard
objects we will provide tools and procedures needed to migrate those objects
from one release to the next. This will provide migration path for templates
using BV standard objects.
2. BroadVision Standard components - if we change the signature of BV standard
components we will provide tools and procedures needed to migrate scripts from
one release to the next. This will provide migration path for scripts using BV
standard components.
3. BroadVision APIs - we will in general maintain backward compatibility between
BroadVision APIs. In cases, where this is not possible or desirable we will
provide tools and procedures to migrate the APIs. This will provide migration
path for custom dynamic objects that use our APIs.
4. Database - when we make the schema changes we will provide migration tools to
update older schema and content from one production release of One-To-One to the
next.
Please note that we do not guarantee compatibility between Beta and FCS versions
of any given release. However, we will strive to not have major API, tag-syntax
or schema changes between Beta and FCS releases.
If you have any questions or suggestions please send email to
[email protected].
SUPPORT POLICY FOR THIRD-PARTY SOFTWARE PRODUCTS
Broadvision's policy is to certify One-To-One products against the versions of
third-party products that are released and available sufficiently in advance of
Broadvision's release date to allow for complete testing. This often means that
third-party vendors will release new versions of their products prior to the
next release of One-To-One. While Broadvision would prefer that customers use
the software versions with which One-To-One was tested, we also understand that
customers will, for various reasons, want to use these new versions of
third-party products.
Broadvision will support customers who use newer versions of third-party
products as long as the vendor guarantees forward compatibility. One-To-One
products should work on these new versions. By support we mean that we will work
with the customer to resolve compatibility problems with the third-party vendor.
Broadvision will also consider, at our option, developing and releasing minor
fixes for our products in order to resolve problems with new versions of
third-party products.
Broadvision will usually test and certify these newer versions of third-party
products in the next release of One-To-One. This can be a good indicator that
the newer versions will work with the current release of One-To-One. In
exceptional cases Broadvision may determine that the newer version of a
third-party product can not be used with One-To-One because it fails in some way
during the testing cycle. In this case we will continue to certify the older
version.
<PAGE> 18
Contract No ________
ATTACHMENT E TO RESELLER AGREEMENT
MASTER PREFERRED ESCROW AGREEMENT
Master Number _____________________
THIS ESCROW AGREEMENT is effective June ______, 1996 among DATA
SECURITIES INTERNATIONAL, INC. ("DSI"), BROADVISION, INC. ("BroadVision") and
any party signing the Acceptance Form attached to this Agreement ("Licensee").
WHEREAS, BroadVision and Licensee have entered or will enter into a
License Agreement or other agreement pertaining to BroadVision software (the
"License Agreement");
WHEREAS, BroadVision desires to avoid disclosure of its software except
under certain limited circumstances;
WHEREAS, Licensee may need access to the software under certain limited
circumstances;
WHEREAS, BroadVision and Licensee desire to establish an escrow with DSI
to provide for the retention of, administration of and access to specified
BroadVision software; and
WHEREAS, the parties desire this Agreement to be supplementary to the
License Agreement pursuant to 11 United States [Bankruptcy] Code, Section
365(n).
1. DEPOSITS.
1.1 OBLIGATION TO MAKE DEPOSIT. Upon the signing of this Agreement by
the parties, including the signing of the Acceptance Form, BroadVision shall
deliver to DSI the software and other materials ("Deposit Materials") required
to be deposited by the License Agreement or, if the License Agreement does not
identify the materials to be deposited with DSI, then the materials identified
on an Exhibit A. If Exhibit A is applicable, BroadVision and Licensee shall sign
it. DSI shall have no obligation with respect to the preparation, signing or
delivery of Exhibit A.
1.2 IDENTIFICATION OF TANGIBLE MEDIA. Prior to the delivery of the
Deposit Materials to DSI, BroadVision shall conspicuously label for
identification each document, magnetic tape, disk, or other tangible media upon
which the Deposit Materials are written or stored. Additionally, BroadVision
shall complete Exhibit B to this Agreement by listing each such tangible media
by the item label description, the type of media and the quantity. The Exhibit B
must be signed by BroadVision and delivered to DSI with the Deposit Materials.
Unless and until BroadVision makes the initial deposit with DSI, DSI shall have
no obligation with respect to this Agreement, except the obligation to notify
the parties regarding the status of the deposit account as required in Section
2.2 below.
1.3 DEPOSIT INSPECTION. When DSI receives the Deposit Materials and the
Exhibit B, DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on the Exhibit B.
1.4 ACCEPTANCE OF DEPOSIT. At completion of the deposit inspection, if
DSI determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, DSI will date and sign the Exhibit B and
mail a copy thereof to BroadVision and Licensee. If DSI determines that the
labeling does not match the item descriptions or quantity on the Exhibit B, DSI
will (a) note the discrepancies in writing on the Exhibit B; (b) date and sign
the Exhibit B with the exceptions noted; and (c) provide a copy of the Exhibit B
to BroadVision and each Licensee. DSI's acceptance of the deposit occurs upon
the signing of the Exhibit B by DSI. Delivery of the signed Exhibit B to
Licensee is Licensee's notice that the Deposit Materials have been received and
accepted by DSI. Licensee understands and agrees that it will receive the most
recent copy or copies of Exhibit B, which may predate the License Agreement.
1.5 DEPOSIT UPDATES. Unless otherwise provided by the License Agreement,
BroadVision shall update the Deposit Materials within 30 days of each standard
release (as defined in the License Agreement) of the Deposit Materials. Such
updates will be added to the existing deposit. All deposit updates shall be
listed on a new Exhibit B and the new Exhibit B shall be signed by
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<PAGE> 19
BroadVision. Each Exhibit B will be held and maintained separately within the
escrow account. An independent record will be created which will document the
activity for each Exhibit B. The processing of all deposit updates shall be in
accordance with Sections 1.2 through 1.4 above. All references in this Agreement
to the Deposit Materials shall include the initial Deposit Materials and any
updates.
1.6 REMOVAL OF DEPOSIT MATERIALS. The Deposit Materials may be removed
or exchanged only on written instructions signed by BroadVision and Licensee, or
as otherwise provided in this Agreement.
2. CONFIDENTIALITY AND RECORD KEEPING.
2.1 CONFIDENTIALITY. DSI shall maintain the Deposit Materials in a
secure, environmentally safe, locked receptacle which is accessible only to
authorized employees of DSI. DSI shall have the obligation to reasonably protect
the confidentiality of the Deposit Materials. Except as provided in this
Agreement, DSI shall not disclose, transfer, make available, or use the Deposit
Materials. DSI shall not disclose the content of this Agreement to any third
party. If DSI receives a subpoena or other order of a court or other judicial
tribunal pertaining to the disclosure or release of the Deposit Materials, DSI
will immediately notify the parties to this Agreement. It shall be the
responsibility of BroadVision and Licensee to challenge any such order;
provided, however, that DSI does not waive its rights to present its position
with respect to any such order. DSI will not be required to disobey any court or
other judicial tribunal order.
2.2 STATUS REPORTS. DSI will issue to BroadVision and each Licensee a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 AUDIT RIGHTS. During the term of this Agreement, BroadVision and
Licensee shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
3. GRANT OF RIGHTS TO DSI.
3.1 TITLE TO MEDIA. BroadVision hereby transfers to DSI the title to the
media upon which the Deposit Materials are written or stored. However, this
transfer does not include the ownership of the proprietary information and
materials contained on the media, such as any copyright, trade secret, patent or
other intellectual property rights.
3.2 RIGHT TO MAKE COPIES. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, nondisclosure and other proprietary notices and titles
contained on the Deposit Materials onto any copies made by DSI. With all Deposit
Materials submitted to DSI, BroadVision shall provide any and all instructions
as may be necessary to duplicate the Deposit Materials, including but not
limited to the hardware and/or software needed.
3.3 RIGHT TO SUBLICENSE UPON RELEASE. BroadVision hereby grants to DSI a
non-exclusive, irrevocable, perpetual, and royalty-free license to sublicense
the Deposit Materials to Licensee upon the release, if any, of the Deposit
Materials in accordance with Section 4.5 below. Except upon such a release, DSI
shall not sublicense or otherwise transfer the Deposit Materials.
4. RELEASE OF DEPOSIT.
4.1 RELEASE CONDITIONS. As used in this Agreement, "Release Conditions"
shall mean the following:
(a) BroadVision's failure to perform maintenance services as
specified in the applicable attachment to the License Agreement, which failure
has not been cured within the applicable cure period specified in the License
Agreement; or
(b) BroadVision's failure to continue to do business in the
ordinary course.
4.2 FILING FOR RELEASE. If Licensee believes in good faith that a
Release Condition has occurred, Licensee may provide to DSI written notice
<PAGE> 20
of the occurrence of the Release Condition and a request for the release of the
Deposit Materials. Upon receipt of such notice, DSI shall provide a copy of the
notice to BroadVision, by a nationally recognized overnight courier.
4.3 CONTRARY INSTRUCTIONS. From the date DSI mails the notice requesting
release of the Deposit Materials, BroadVision shall have ten business days to
deliver to DSI Contrary Instructions. "Contrary Instructions" shall mean the
written representation by BroadVision that a Release Condition has not occurred
or has been cured. Upon receipt of Contrary Instructions, DSI shall send a copy
to Licensee by a nationally recognized overnight courier. Additionally, DSI
shall notify both BroadVision and Licensee that there is a dispute to be
resolved pursuant to Section 7.3. Subject to Section 5.2, DSI will continue to
store the Deposit Materials without release pending (a) joint instructions from
BroadVision and Licensee, (b) resolution pursuant to Section 7.3, or (c) order
of a court.
4.4 RELEASE OF DEPOSIT. If DSI does not receive Contrary Instructions
from the BroadVision, DSI is authorized to release the Deposit Materials to
Licensee or, if more than one beneficiary is registered to the deposit, to
release a copy of the Deposit Materials to the Licensee. However, DSI is
entitled to receive any fees due DSI before making the release. This Agreement
with respect to a particular Licensee will terminate upon the release of the
Deposit Materials held by DSI to such Licensee.
4.5 USE LICENSE FOLLOWING RELEASE. Unless otherwise provided in the
License Agreement, upon release of the Deposit Materials in accordance with this
Section 4, BroadVision hereby grants to Licensee a non-exclusive,
non-transferable, non-sublicenseable license to use the Deposit Materials to
maintain and support the Software (as defined in the License Agreement) in order
for Licensee to continue using the Software in accordance with the terms of the
License Agreement. Licensee may not reproduce, distribute, create derivative
works of, publicly perform, publicly display or digitally perform the Deposit
Materials. Licensee shall not have the right to enhance the Software or add any
new functionality to the Software. Licensee shall continue to pay all royalties
which accrue under the License Agreement based on continued use of the Software
(including without limitation any fees attributable to the number of profiled
users), and Licensee's failure to make such payments when due shall terminate
this license. The Deposit Materials shall be deemed Confidential Information
under the License Agreement, and all confidentiality obligations therein shall
apply to the Deposit Materials in perpetuity.
5. TERM AND TERMINATION.
5.1 TERM OF AGREEMENT. The initial term of this Agreement is for a
period of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) with respect to a Licensee, BroadVision and such
Licensee jointly instruct DSI in writing that the Agreement is terminated; or
(b) the Agreement is terminated by DSI for nonpayment in accordance with Section
5.2. If the Acceptance Form has been signed at a date later than this Agreement,
the initial term of the Acceptance Form will be for one year with subsequent
terms to be adjusted to match the anniversary date of this Agreement. If the
deposit materials are subject to another escrow agreement with DSI, DSI reserves
the right, after the initial one year term, to adjust the anniversary date of
this Agreement to match the then prevailing anniversary date of such other
escrow arrangements.
5.2 TERMINATION FOR NONPAYMENT. In the event of the nonpayment of fees
owed to DSI, DSI shall provide written notice of delinquency to all parties to
this Agreement. Any party to this Agreement shall have the right to make the
payment to DSI to cure the default. If the past due payment is not received in
full by DSI within one month of the date of such notice, then DSI shall have the
right to terminate this Agreement at any time thereafter by sending written
notice of termination to all parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 DISPOSITION OF DEPOSIT MATERIALS UPON TERMINATION. Upon termination
of this Agreement by joint instruction of BroadVision and a Licensee, DSI shall
destroy, return, or otherwise deliver the Deposit Materials in accordance with
such instructions. Upon termination for nonpayment, DSI may, at its sole
discretion, destroy the Deposit Materials or return them to BroadVision. DSI
shall have no obligation to return or destroy the Deposit
Page 3 of 10
<PAGE> 21
Materials if the Deposit Materials are subject to another escrow agreement with
DSI.
5.4 SURVIVAL OF TERMS FOLLOWING TERMINATION. Upon termination of this
Agreement, Sections 3.3, 4.5, 6.2 and 7 of this Agreement shall survive:
6. DSI'S FEES.
6.1 FEE SCHEDULE. Each Licensee shall pay to DSI its standard fees and
expenses applicable to the services provided for Licensee. DSI shall notify
Licensee at least 90 days prior to any increase in fees. For any service not
listed on DSI's standard fee schedule, DSI will provide a quote prior to
rendering the service, if requested.
6.2 PAYMENT TERMS. DSI shall not be required to perform any service
unless the payment for such service and any outstanding balances owed to DSI are
paid in full. All other fees are due upon receipt of invoice. If invoiced fees
are not paid, DSI may terminate this Agreement in accordance with Section 5.2.
Late fees on past due amounts shall accrue at the lesser of the rate of one and
one-half percent per month (18% per annum) from the date of the invoice or the
maximum rate allowable under applicable law.
7. LIABILITY AND DISPUTES.
7.1 RIGHT TO RELY ON INSTRUCTIONS. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI shall
not be responsible for failure to act as a result of causes beyond the
reasonable control of DSI.
7.2 INDEMNIFICATION. DSI shall be responsible to perform its obligations
under this Agreement and to act in a reasonable and prudent manner with regard
to this escrow arrangement. Provided DSI has acted in the manner stated in the
preceding sentence, BroadVision and Licensee each agree to indemnify, defend and
hold harmless DSI from any and all claims, actions, damages, arbitration fees
and expenses, costs, attorney's fees and other liabilities incurred by DSI
relating in any way to this escrow arrangement.
7.3 DISPUTE RESOLUTION. Any dispute relating to or arising from this
Agreement shall be resolved by arbitration under the Commercial Rules of the
American Arbitration Association. Unless otherwise agreed by BroadVision and
Licensee, arbitration will take place in Palo Alto, California, U.S.A. Any court
having jurisdiction over the matter may enter judgment on the award of the
arbitrator(s). Service of a petition to confirm the arbitration award may be
made by nationally recognized overnight courier to the attorney for the party
or, if unrepresented, to the party at the last known business address.
7.4 CONTROLLING LAW. This Agreement is to be governed and construed in
accordance with the laws of the State of California, without regard to its
conflict of law provisions.
7.5 NOTICE OF REQUESTED ORDER. If any party intends to obtain an order
from the arbitrator or any court of competent jurisdiction which may direct DSI
to take, or refrain from taking any action, that party shall:
(a) Give DSI at least two business days' prior notice of the
hearing;
(b) Include in any such order that, as a precondition to DSI's
obligation, DSI be paid in full for any past due fees and be paid for the
reasonable value of the services to be rendered pursuant to such order; and
(c) Ensure that DSI not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if DSI may need to retain the
original in its possession to fulfill any of its other escrow duties.
8. GENERAL PROVISIONS.
8.1 ENTIRE AGREEMENT. This Agreement, which includes the Acceptance Form
and the Exhibits described herein, embodies the entire understanding between all
of the parties with respect to its subject matter and supersedes all previous
communications, representations or understandings,
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<PAGE> 22
either oral or written. No amendment or modification of this Agreement shall be
valid or binding unless signed by all the parties hereto, except Exhibit A need
not be signed by DSI and Exhibit B need not be signed by Licensee.
8.2 NOTICES. All notices, invoices, payments, deposits and other
documents and communications shall be given to the parties at the addresses
specified in the attached Exhibit C and Acceptance Form. It shall be the
responsibility of the parties to notify each other as provided in this Section
in the event of a change of address. The parties shall have the right to rely on
the last known address of the other parties. Unless otherwise provided in this
Agreement, all documents and communications may be delivered by certified mail,
return receipt requested.
8.3 SEVERABILITY. In the event any provision of this Agreement is found
to be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the validity of
this Agreement nor the remaining provisions herein, and the provision in
question shall be deemed to be replaced with a valid and enforceable provision
most closely reflecting the intent and purpose of the original provision.
8.4 SUCCESSORS. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the parties. However, DSI shall
have no obligation in performing this Agreement to recognize any successor or
assign of BroadVision or Licensee unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
BROADVISION, INC. DATA SECURITIES INTERNATIONAL, INC.
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
Page 5 of 10
<PAGE> 23
ACCEPTANCE FORM
Account Number _________________________
__________________ hereby (i) acknowledges that it is a Licensee referred to in
the Master Preferred Escrow Agreement effective June ____, 1996 with Data
Securities International, Inc. as the escrow agent and BroadVision, Inc. as the
Depositor and (ii) agrees to be bound by all provisions of such Agreement.
[Licensee]
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
Notices and communications
should be addressed to: Invoices should be addressed to:
Licensee Name:
----------------------- -----------------------------------
Address:
----------------------------- -----------------------------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
Designated Contact: Contact:
------------------ ---------------------------
Telephone:
--------------------------- -----------------------------------
Facsimile:
--------------------------- -----------------------------------
BroadVision hereby enrolls Licensee to the following account(s):
Account Name Account Number
------------ --------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
BROADVISION, INC. DATA SECURITIES INTERNATIONAL, INC.
By: By:
---------------------------------- --------------------------------
Name: Name:
-------------------------------- ------------------------------
Title: Title:
------------------------------- -----------------------------
Date: Date:
-------------------------------- ------------------------------
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<PAGE> 24
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number ______________________
BroadVision represents to Licensee that Deposit Materials delivered to DSI shall
consist of the following:
BROADVISION, INC. LICENSEE
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
Page 7 of 10
<PAGE> 25
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Account Number:_______________________________
Company Name: BROADVISION, INC.
DEPOSIT TYPE: _________Initial__________ Supplemental
ENVIRONMENT
Host System CPU/OS_____________________ Version_______________
Backup________________ Source System CPU/OS___________________
Version_______________ Compiler________________ Special
Instructions:_____________________________________
DEPOSIT COPYING REQUIREMENT:
Hardware needed:________________________________________________________________
Software needed/Instructions:___________________________________________________
DEPOSIT MATERIALS:
Exhibit B Name________________________________ Version__________________________
Item label description Media Quantity
For BroadVision, I certify that the above For DSI, I certify that the deposit
described Deposit Materials have been inspection has been completed transmitted
to DSI: (any exceptions are noted above):
By By
------------------------------- -------------------------------
Print Name Print Name
----------------------- -----------------------
Date Date of Acceptance
----------------------------- ---------------
ISE EX. B#
------------ -----------
Send materials to: DSI, 9555 Chesapeake Dr. #200, San Diego, CA 92123
Page 8 of 10
<PAGE> 26
EXHIBIT C
DESIGNATED CONTACT
Master Number ___________________________
Notices and communications
should be addressed to: Invoices should be addressed to:
Company Name: BroadVision, Inc. 333 Distel Circle
Address: 333 Distel Circle Los Altos, CA 94022
Los Altos, CA 94022 Contact: Chief Financial Officer
Designated Contact: Controller
Telephone: (415) 943-3600
Facsimile: (415) 943-____
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Deposit Materials and notices Invoice inquiries and fee remittances
to DSI should be addressed to: to DSI should be addressed to:
DSI DSI
Contract Administration Accounts Receivable
Suite 200 Suite 1450
9555 Chesapeake Drive 425 California Street
San Diego, CA 92123 San Francisco, CA 94104
Telephone: (619) 694-1900 (415) 398-7900
Facsimile: (619) 694-1919 (415) 398-7914
Date:
-------------------------------
Page 9 of 10
<PAGE> 27
ADDITIONAL ESCROW ACCOUNT AMENDMENT
TO MASTER PREFERRED ESCROW AGREEMENT
Master Number __________________
New Account Number _________________
BroadVision, Inc. ("BroadVision") has entered into a Master Preferred Escrow
Agreement with Data Securities International, Inc. ("DSI"). Pursuant to that
Agreement, BroadVision may deposit certain Deposit Materials with DSI.
BroadVision desires that new Deposit Materials be held in a separate account and
be maintained separately from the existing account. By execution of this
Amendment, DSI will establish a separate account for the new Deposit Materials.
The new account will be referenced by the following name:____________________.
BroadVision hereby agrees that all terms and conditions of the existing Master
Preferred Escrow Agreement previously entered into by BroadVision and DSI will
govern this account. The termination or expiration of any other account of
BroadVision will not affect this account.
BROADVISION, INC. DATA SECURITIES INTERNATIONAL, INC.
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
Page 10 of 10
