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CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN INFORMATION
CONTAINED IN THIS EXHIBIT. CONFIDENTIAL PORTIONS HAVE BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.15
NOVELL/COMPANY CONFIDENTIAL
STANDARD INBOUND LICENSE AGREEMENT
(PRODUCT SOURCE CODE)
1. PREAMBLE. This Standard Inbound License Agreement ("Agreement") is
agreed to by Talarian Corporation, a California Corporation with
principal offices at 333 Distel Circle, Los Altos, CA 94022-1404
("Company") and Novell, Inc., a Delaware corporation with principal
offices at 122 East 1700 South, Provo, Utah 84606 ("Novell").
2. PURPOSE. Novell develops and markets computer software products. Company
develops and markets computer software products that will interoperate
with NetWare and other Novell products as specified elsewhere in this
Agreement. This Agreement sets forth the terms and conditions under
which Company will license the Licensed Work defined below to Novell.
3. DEFINITIONS. The following terms shall have the definitions stated
below:
a. Basic SDK - shall mean all versions (including all localized
and/or enabled versions) of the SSSDK (in Binary Code and Source
Code form), all corresponding patches, service packs, developer
kits, updates, and upgrades thereto, all corresponding subsets
and supersets, and all corresponding Development Environment
materials that are not Generally Available, with the exception
that the Basic SDK shall not include use of the following APIs:
(1) [ ** ];
(2) Full [ ** ] services (i.e. the Basic SDK will include
partial [ ** ] services);
(3) [ ** ]; and
(4) other [ ** ] features which Company may provide in the
future.
b. Binary Code - shall mean computer programming code that loads and
executes without further processing by a software compiler or
linker or that results when Source Code is processed by a
software compiler.
c. Code - shall mean Binary Code and Source Code.
d. Derivative Work - shall mean a work that is based on one or more
preexisting works (such as a revision, enhancement, modification,
translation, abridgement, condensation, expansion, or any other
form in which such preexisting work may be recast, transformed,
or adapted) and that, if prepared without authorization of the
copyright owner of such preexisting work, would constitute
copyright infringement under US law.
e. Development Environment - shall mean any Code, Documentation,
media or development tool (including compilers, workbenches,
tools, and higher-level or proprietary languages) that are used
or required by a party for the development, maintenance or
implementation of any deliverable. In addition to the foregoing,
Development Environment also includes information necessary for
the deliverable's recipient to acquire any relevant hardware or
software that is created and marketed by third party vendors.
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
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f. Documentation - shall mean user manuals and other written
materials in all formats and media that relate to particular Code
including machine-readable text or graphic files subject to
display or print-out.
g. Effective Date - shall mean the later of the dates on which this
Agreement is executed by a duly authorized representative of
Company or Novell.
h. Error - shall mean a: 1) a program function that is described in
user Documentation or the Agreement but is omitted from the Code,
or a program function or user interface that does not operate or
that gives incorrect results when measured against its design
specifications; and/or 2) a failure of the Documentation to
describe accurately a program function required by this
Agreement, to meet other requirements of this Agreement, or to
enable reasonably competent users to correctly operate the
associated Code.
i. General Availability and Generally Available - shall mean, with
respect to a particular item, that the item is available to
members of the general public.
j. Licensed Trademarks - shall mean all word marks, their associated
design marks, and all other trademarks and trade dress used by
Company to identify and/or market the Licensed Works.
k. Licensed Works - shall mean SmartSockets Event Systems and the
Basic SDK. "Licensed Works" shall also include MQexpress if
licensed as set forth in Section 13.b.
l. MQexpress - shall mean all versions (including all localized
and/or enabled versions) of the following works (in Binary Code
and Source Code form), all corresponding patches, service packs,
developer kits, updates, and upgrades thereto, all corresponding
subsets and supersets, and all corresponding Development
Environment materials that are not Generally Available:
MQexpress is a message queuing solution designed to
integrate seamlessly with publish-subscribe middleware,
allowing developers to combine the reliability and
transactional integrity of message queuing capabilities
with the high-volume, high performance capabilities of
publish-subscribe. MQexpress includes a development API
and class libraries which will be referred to as "MQSDK"
for this Agreement, and an independent "MQserver" process
which is required to support MQexpress operation at
runtime. MQexpress is more completely described in Exhibit
D.
m. Novell Directory Enabling Code - shall mean the Code for all
additions and modifications made by Novell to the Licensed Works
Source Code for the purpose of enabling Licensed Works to use any
directory service such as LDAP or Novell Directory Services
(NDS).
n. Novell Enhanced Code - shall mean the Source Code and Binary Code
of Novell's modifications to the Licensed Works that Novell
intends to make
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Generally Available and that is provided to Company pursuant to
Section 11 and Section 12. Novell Enhanced Code shall not include
any Code owned or licensed by RSA Security Incorporated.
o. Novell FCS Date - shall mean the first date that Novell makes the
RT Server Generally Available to commercial customers.
p. Novell SDK FCS Date - shall mean the first date that Novell makes
Basic SDK Generally Available to commercial customers.
q. Novell Products - shall mean all versions of all products
distributed by Novell including but not limited to corresponding
software development kits, updates, upgrades, and service packs,
whether the foregoing are created, marketed, distributed, and/or
sold by Novell or third parties, provided that the products add
significant value add beyond the capabilities contained in the
Licensed Works.
r. Product Distribution Questionnaire - shall mean a questionnaire
in the form supplied in Exhibit C hereto by which Company
represents to Novell its rights with respect to materials
provided to Novell hereunder.
s. SmartSockets Event Systems - shall mean all versions (including
all localized and/or enabled versions) of the following works (in
Binary Code and Source Code form), all corresponding patches,
service packs, developer kits, updates, and upgrades thereto, all
corresponding subsets and supersets, and all corresponding
Development Environment materials that are not Generally
Available:
SmartSockets Event Systems is a publish-subscribe
middleware solution that provides application programming
interfaces (APIs) and class libraries (the SSSDK) to
enable the development of real-time, highly distributed
applications. SmartSockets also includes an independent
"RTserver" process which is required to support
SmartSockets operation at runtime. The SmartSockets Event
System is more completely described in Exhibit D.
t. Source Code - shall mean the human-readable form of computer
programming code and related system Documentation, including all
comments and any procedural language.
u. SSSDK - shall mean the SmartSockets Event Systems development API
and the class libraries that enable the development of real-time,
highly distributed applications as more fully described in
Exhibit D.
v. Talarian Products - shall mean all versions of all products
distributed by Company including but not limited to corresponding
software development kits, updates, upgrades, and service packs,
whether the foregoing are created, marketed, distributed, and/or
sold by Company or third parties, provided that the products add
significant value add beyond the capabilities contained in the
Novell Enhanced Code. In the event of acquisition of Company,
Talarian Products may
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include the acquiring company's products, subject to Novell's
consent which shall not be unreasonably withheld.
w. Year 2000 Compliancy or Year 2000 Compliant - shall mean that (i)
a product accurately process, address, store, and calculate date
data from, into, and beyond the years 1999, 2000 and 2001,
including leap year calculations, and (ii) all of the product's
date-related functionality and data fields identify century and
millennium, and (iii) the product is able accurately to perform
calculations that involve a four-digit year field.
4. PROJECT MANAGERS. Each party shall designate a Project Manager that
shall be responsible for all necessary coordination with the other party
under the Agreement.
5. LICENSE GRANTS TO NOVELL.
a. SmartSockets Event Systems/MQexpress License Grant. Company
grants to Novell a perpetual, irrevocable, non-exclusive,
worldwide, fully paid-up right to use, reproduce, distribute in
Binary Code form (by sale, lease, rental, or otherwise), modify,
display, perform the Licensed Works, and to directly or
indirectly sublicense the foregoing rights, provided that
Novell's use of SmartSockets Event Systems and MQexpress (if
licensed) is in connection with Novell Products. This license
shall be under all of Company's inventions, discoveries, patents,
copyrights, trade secrets, inventors certificates, utility models
(and similar forms of legal protection of any country) and other
proprietary rights, including those of third parties under which
Company has the right to grant licenses, necessary to exercise
the rights granted under this Agreement, regardless of when such
proprietary rights were first conceived, reduced to practice,
created, or perfected.
b. Restrictions. Novell's license rights in Section 5.a are
expressly subject to the following restrictions:
(i) Novell shall only embed components of the Licensed Works
in connection with Novell Products to the extent that
Novell has a good faith reason for embedding such
components.
(ii) Any distribution of RTserver and/or MQserver (other than
error corrections, fixes, updates or materials of a
similar nature) must include a technical dependency on a
Novell Product such that the standalone distribution would
not run without the presence of the Novell Product,
excepting provisional operation when the Novell Product is
inoperable.
(iii) The Source Code for the embedded components of the
SmartSockets Event Systems and MQexpress shall only be
sublicensed in connection with a sublicense of the Novell
Product Source Code in which SmartSockets Event Systems or
MQexpress components are embedded and under terms at least
as protective as those terms applicable to the
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Novell Product Source Code. Upon Company's request, Novell
shall identify any Source Code sublicensees of the
embedded components of the SmartSockets Event Systems and
MQexpress, provided that doing so does not violate a
contractual obligation owed by Novell to a third party.
The license rights granted in this Section 5 are subject
to and conditioned upon the restriction that no component
of the SmartSockets Event Systems and MQexpress Source
Code is provided or licensed directly or indirectly to the
companies listed in Exhibit E. Company may amend the
companies listed in Exhibit E, subject to Novell's
reasonable objection. SmartSockets Event Systems and
MQexpress in Source Code form constitute Confidential
Information of Company.
c. SDK License Grant. In addition to the licenses granted in Section
5.a, Company grants to Novell a perpetual, irrevocable,
non-exclusive, worldwide, royalty-free right to use, reproduce,
distribute in Binary Code form (by sale, lease, rental, or
otherwise), modify, display, and perform the Basic SDK, and to
directly or indirectly sublicense the foregoing rights. This
license shall be under all of Company's inventions, discoveries,
patents, copyrights, trade secrets, inventor's certificates,
utility models (and similar forms of legal protection of any
country) and other proprietary rights, including those of third
parties under which Company has the right to grant licenses,
necessary to exercise the rights granted under this Agreement,
regardless of when such proprietary rights were first conceived,
reduced to practice, created, or perfected.
d. Restrictions. Novell's license rights in Section 5.c are
expressly subject to the following restriction: Novell shall not
sublicense the Basic SDK Source Code to third parties (except to
the extent authorized in Section 5.a) without Company's prior
written consent.
e. API. Novell shall not [ ** ] or those [ ** ] in the [ ** ] that
are not part of the [ ** ]. If mutually agreeable, Novell and
Company will establish a [ ** ] of [ ** ] by third parties to
these [ ** ].
f. Licensed Marks. Company grants Novell worldwide, non-exclusive,
non-transferable, royalty free, fully paid-up license to use the
Licensed Trademarks in connection with the distribution and
marketing of Licensed Works, and to directly or indirectly
sublicense the foregoing rights. Company will at all times use
commercially reasonable efforts to preserve the value and
validity of the Licensed Trademarks; furthermore, in the event an
unauthorized third party uses the Licensed Trademarks in a
confusingly similar manner, Company shall have an obligation to
take action to prevent such use. Company shall notify Novell of
all claims that the Licensed Trademarks conflict with the rights
of third parties. Company hereby expressly represents that the
existing Licensed Trademarks are valid and are the exclusive
property of Company. If Novell has a substantial business concern
that Novell will not be able to freely market and distribute the
Licensed Works due to a conflict with a third party over use of
the Licensed Marks, Novell shall notify Company and Company may
provide an alternative,
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
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clean mark. If Company does not provide the alternative marks
within ten (10) business days of receiving written notice from
Novell, Novell shall be free to market and distribute the
Licensed Works under a mark(s) of Novell's choice.
g. Ownership. Unless specifically stated otherwise, this Agreement
shall not change the ownership of any materials developed or
provided under this Agreement.
h. Copyright Notice. Novell shall reproduce copyright notices
included in the Basic SDK, regardless of whether the Basic SDK is
distributed as a Novell product or a Company product.
6. PRODUCT REQUIREMENTS AND DELIVERY. The Product Requirements for the
Licensed Works are the requirements set forth in this Section and in
Exhibit A to this Agreement. Company shall deliver to Novell Licensed
Works that conform to the Product Requirements. Such deliveries shall be
in accordance with the schedules set forth in Exhibit A; to any extent
that Exhibit A does not contain delivery dates for any particular
deliverable, Company shall provide the deliverable to Novell upon the
completion of its development. The initial delivery of MQexpress shall
be within five (5) business days of receipt of the payment specified in
Section 13.b.
a. Product Distribution Questionnaire. Novell requires certain
information about products prior to distribution. Company shall
concurrently with the delivery of any and all Licensed Works
pursuant to this Agreement deliver, or at such other times as
Novell may reasonably request, a document providing certain
information required by Novell. Company shall provide this
information in the form of the then current Product Distribution
Questionnaire attached in Exhibit C. After initial delivery of a
Licensed Work, Company may provide the required information in
the form of the then current Supplemental Product Distribution
Questionnaire also attached in Exhibit C.
b. Globalization. To any extent that Company agrees (as may be
specified in Exhibit A or any amendment to this Agreement) to
develop additional localized or enabled versions of the Licensed
Works, such versions shall comply with Novell's then current
enablement and localization standards.
c. Harmful Code. Company agrees to implement reasonable procedures
adequate to prevent any Code provided to Novell hereunder from
being contaminated with Harmful Code. If Company learns or
suspects that any Code provided to Novell under this Agreement
contains any Harmful Code, Company will immediately notify Novell
and use best efforts to remove the Harmful Code. The remedies
provided by this section are in addition to any other remedies
Novell may have. For purposes of this Section, "Harmful Code"
shall mean any Code constructed with the ability to damage,
interfere with, or adversely affect computer programs, data
files, or hardware without the consent or intent of the computer
user. This definition includes, but is not limited to,
self-replacing and self-propagating programming instructions
commonly called "viruses," "trojan horses" and "worms."
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d. Year 2000. The Licensed Works shall be Year 2000 Compliant.
7. PACKAGING AND END USER LICENSING. Novell will determine the packaging
for the Licensed Work at its sole discretion. Company will
electronically embed the following in the master copy of the Basic SDK
provided to Novell: (i) Company's end user license agreement ("EULA"),
with Company as the licensor, and (ii) the end user Documentation.
Except as agreed to expressly agreed to herein, Novell will have no
obligation to insert or include any brochure or other materials with the
Licensed Work. Company acknowledges that Novell may distribute a
modified version of the Basic SDK, including without limitation removing
the RTServer.
In addition, Company agrees that Novell may, at its option, distribute
the Basic SDK (including modifications) as a Novell product pursuant to
a EULA, with Novell as the licensor, using "Novellized" screens and a
Novell product name.
8. DEVELOPMENT. Company agrees to join the DeveloperNet program; Novell
will provide technical support of any Company development efforts
hereunder through DeveloperNet Labs and if mutually agreed upon through
Novell engineering personnel, in either case such support being subject
to the terms and conditions of a separate DeveloperNet Labs Agreement.
9. MARKETING OBLIGATIONS. The parties agree to perform the following
marketing activities:
a. Company may, at its option, participate in the then current
partner program at the Solution Partner Partnership level,
provided that Company pays all associated fees. Company
acknowledges that there is an annual fee required if it chooses
to participate at this level.
b. For a period of six months from the Novell SDK FCS Date (or
longer as mutually agreed) and subject to Novell's approval as to
form and content, Novell will include a one page marketing insert
in the Novell Developer Solution Pack that is distributed at
trade shows, conferences and other events. Company will be
responsible for printed material production costs and delivery to
Novell.
c. Novell and Company will cooperate to issue a joint press release
to communicate the relationship between the parties. The press
release will be issued at a date determined by Novell, but no
later than 45 days from the Effective Date. Company will be
responsible for drafting the press release and working with
Novell PR on editing and approval cycles. Novell and Company will
cooperate on future press releases announcing product releases,
success stories, and other newsworthy events as mutually agreed
by both parties. Novell will support Company's press relations
efforts through supporting quotes for Company's press
announcements and, when appropriate, provide a spokesperson
and/or participation in Company's press events.
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d. Novell and Company will provide links to the partner section of
their respective web sites.
e. Company will be provided the opportunity to participate in
selected marketing opportunities and programs as described in the
then current Novell Partner Opportunity Planner and the then
current Solution Partner Program Guide.
10. END USER SUPPORT. During the term of the Agreement, Novell and Company
shall provide support for the Licensed Works according to the terms and
conditions of Exhibit B hereto. In addition, Novell may at it's
discretion, perform certain Level 2 Support efforts, which shall in no
way relieve Company of performing Level 2 support as set forth in
Exhibit B hereto. In order to assist Novell, Company shall provide
Novell, at no charge, up to 5 days of technical training for each
release of the Licensed Works sufficient to ensure Novell support
personnel's ability to perform discretionary Level 2 Support for the
Licensed Works.
11. NOVELL ENHANCED CODE. Company acknowledges that Code from RSA Security
Incorporated (the "RSA Code") is required to use the Novell Enhanced
Code, as developed by Novell, and that Novell is granting no rights
under this Agreement to Company with respect to the RSA Code. Company is
solely responsible for securing a license from RSA Security
Incorporated, or a licensee of RSA Security Incorporated, if Company
chooses at its discretion to use the RSA Code relative to the rights and
licenses conveyed by this Agreement. Provided that Company secures the
appropriate rights from RSA Security Incorporated, or an authorized
licensee, Novell will deliver the RSA Code to Company. However, Company
is not obligated to use the RSA Code and may choose an alternative
solution.
Novell grants to Company a perpetual, irrevocable, non-exclusive,
worldwide, royalty-free right to use, reproduce, distribute in Binary
Code form (by sale, lease, rental, or otherwise), modify, display, and
perform the Novell Enhanced Code and to directly or indirectly
sublicense the foregoing rights, provided that Company's use and
distribution of the Novell Enhanced Code is in connection with Talarian
Products. Novell Enhanced Code Source Code shall only be sublicensed in
connection with a sublicense of the Talarian Product Source Code with
which the Novell Enhanced Code is included and under terms at least as
protective as those terms applicable to the Talarian Product Source
Code. Upon Novell's request, Company shall identify any Source Code
sublicensees of the Novell Enhanced Code, provided that doing so does
not violate a contractual obligation owed by Company to a third party.
Company shall use the Directory Enabling Code solely for the purposes of
avoiding a divergent code base and enabling directory integration. The
license rights granted in this Paragraph are subject to and conditioned
upon the restriction that no portion of the Novell Directory Enabling
Source Code is provided or licensed directly or indirectly to the
companies listed in Exhibit E. Novell may amend the companies listed in
Exhibit E, subject to Company's reasonable objection. Novell Enhanced
Code in Source Code form constitutes Confidential Information of Novell.
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Company will use commercially reasonable efforts to incorporate the
Novell Enhanced Code into its SmartSockets Event Systems products and
MQexpress (if licensed) products. Company will notify Novell prior to
making changes to the Novell Enhanced Code and the parties will make
reasonable efforts to agree upon such changes.
12. MAINTENANCE. During the term of the Agreement, each party shall promptly
deliver to the other party all updates, upgrades, patches, maintenance
modifications and error corrections to the Licensed Works and Novell
Enhanced Code, respectively.
13. CONSIDERATION. Unless otherwise stated in this Agreement, each party
shall bear its respective costs in performing hereunder. Each party
shall designate an accounting address; any payment made by a party
hereunder shall be sent to the other party at its designated accounting
address. Sections 13.a and 13.b set forth the entirety of Novell's
obligations to make payments in exchange for the licenses granted to
Novell under this Agreement.
a. Novell License Fee Payments. Novell shall owe Company a
one-time, fully-paid-up license fee to be paid as follows.
[ ** ] DUE UPON THE EFFECTIVE DATE
[ ** ] DUE SEPTEMBER 30, 1999
[ ** ] DUE UPON THE NOVELL FCS DATE, IF SUCH EVENT OCCURS.
b. Optional MQexpress License Fee. In the event that Novell desires,
at its sole option, (but no later than nine months from the
Effective Date) to license MQexpress under the terms of this
Agreement, Novell shall pay Company a one-time, fully-paid-up
license fee to be paid as specified below, at which time
MQexpress will be considered one of the "Licensed Works" and all
rights and obligations under this Agreement with respect to
MQexpress shall become effective.
[ ** ] DUE UPON DELIVER OF MQEXPRESS
[ ** ] DUE UPON NOVELL'S BETA RELEASE OF THE NETWARE PORT
OF MQEXPRESS
[ ** ] DUE UPON THE DATE THAT NOVELL MAKES THE NETWARE
PORT OF MQEXPRESS GENERALLY AVAILABLE TO COMMERCIAL
CUSTOMERS ("MQEXPRESS FCS DATE"), IF SUCH EVENT
OCCURS.
c. Maintenance Fees. In consideration of Company's obligations
pursuant to Sections 10 and 12, Novell shall pay Company the
annual payment of [ ** ] due upon the Novell SDK FCS Date and
each anniversary of the Novell SDK FCS Date for each ongoing year
of the Agreement.
In the event that Novell licenses MQexpress as set forth in
Section 13.b., then Novell shall pay an additional [ ** ], due
upon the MQexpress FCS Date and pro rated on a monthly basis
based on the Novell SDK FCS Date.
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
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Thereafter, the annual payment due upon the Novell SDK FCS Date
shall be increased to [ ** ].
If the Agreement is terminated other than pursuant to the
termination rights set forth in Section 14.a or for termination
by Company for breach by Novell, Company shall refund the
foregoing fee to Novell pro rated on a monthly basis.
d. Invoices. Company shall invoice Novell for all fees owed (except
for those fees due upon the Effective Date), which shall be
payable net 30 days from invoice.
e. Tax Consequences. All license fees are exclusive of all
applicable taxes. The party making payment ("Payer") shall be
responsible for all sales, use, excise, value added and/or
equivalent taxes arising out of the payment and shall either
include such taxes with the payment or shall provide the other
party, in advance, with a valid exemption certificate or other
documentation to successfully claim exemption from the tax. Payer
shall not be responsible for: (a) taxes based upon the other
party's net income, capital, or gross receipts, or (b) any
withholding taxes imposed if such withholding tax is allowed as a
credit against U.S. income taxes of Payee such as a withholding
tax on a royalty payment where such withholding is required by
law. In the event Payer is required to withhold taxes, Payer
agrees to furnish to the other party all required receipts and
documentation substantiating such payment. If Payer is required
by law to remit any tax or duty on behalf, or for the account, of
Payee, the Payee agrees to reimburse Payer within thirty (30)
days after Payer notifies Payee in writing of such remittance.
14. TERM AND TERMINATION. This Agreement shall remain in force for a period
of two (2) years from the Effective Date, unless otherwise terminated as
provided in this Section 14. After the initial term of two (2) years,
this Agreement shall automatically renew for consecutive one (1) year
periods unless either party provides at least 90 days prior written
notice. Termination of this Agreement shall not affect any licenses
granted to Novell or Company prior to termination, and such licenses
shall not be subject to revocation or injunction during the term of this
Agreement or thereafter.
a. Termination Without Cause. Novell may terminate this Agreement
without cause upon not less than ninety (90) days' written notice
to Company. Provided that Company has fully complied with the
terms of this Agreement, Novell's obligations to make any
payments owed pursuant to Section 13.a and 13.b shall survive
termination.
b. Termination for Cause. Either party may terminate this Agreement
for the substantial breach by the other party of a material term.
The terminating party shall first give the other party written
notice of the alleged breach and a reasonable period of at least
thirty (30) days in which to cure the alleged breach. If a cure
is not achieved during the cure period, then the parties shall
submit to mandatory mediation with a mutually agreed upon
mediator, such mediation to be completed within thirty (30) days
and to be held in Salt Lake City, Utah. Termination of the
Agreement shall occur upon the expiration of the cure period
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
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and the subsequent unsuccessful completion of mandatory mediation
as required by this Section. Neither party shall be precluded
from seeking temporary equitable remedies consistent with the
terms of this Agreement.
15. GENERAL TERMS.
a. Assignment. Neither party shall transfer or assign any right or
obligation set forth in this Agreement without the prior written
consent of the other party, which consent shall not be
unreasonably withheld. Such consent shall not be required,
however, for transfer or assignment to an entity acquiring
control of a party hereto.
b. Confidentiality And Information Exchange. It is the intention of
Company and Novell to transfer and/or exchange information,
including confidential information, as may be necessary. The
disclosing party shall be referred to as "Discloser' and the
receiving party as "Recipient."
i. Confidential information may be disclosed in oral, visual,
or written form (including magnetic, optical, or other
media). The Recipient's obligations shall only extend to
Source Code, the terms and conditions of this Agreement,
and to confidential information that is marked as
confidential at the time of disclosure or that is unmarked
(e.g., orally disclosed) but is treated as confidential at
the time of disclosure.
ii. The Recipient shall protect the disclosed confidential
information by using the same degree of care, but no less
than a reasonable degree of care, to prevent the
unauthorized use, dissemination, or publication of the
confidential information as the Recipient uses to protect
its own confidential information of alike nature.
iii. The Recipient's duty to hold confidential information in
confidence expires five (5) years, or in the case of
Source Code fifteen (15) years, after (i) its return or
destruction in the case of confidential information
embodied in received or developed (whichever is later)
Source Code and related descriptions, specifications and
system documentation, or (ii) its receipt or development
(whichever is later) in the case of any other confidential
information. The expiration of the duty of confidentiality
shall not modify other restrictions on the Recipient
including, for example, any restrictions on distribution
of Source Code arising out of a granted copyright license.
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iv. This Agreement imposes no obligation upon Recipient with
respect to information that: (a) was in Recipient's
possession before receipt from the disclosing party
("Discloser"); (b) is or becomes a matter of public
knowledge through no fault of Recipient; (c) is rightfully
received by the Recipient from a third party without a
duty of confidentiality; (d) is disclosed by the Discloser
to a third party without a duty of confidentiality on the
third party; (e) is disclosed under operation of law after
all reasonable means have been afforded to the Discloser
to protect the information; or, (g) is disclosed by the
Recipient with Discloser's prior written approval.
c. Construction. The headings in this Agreement are provided for
reference only and shall not be used as a guide to
interpretation. When used in this Agreement, the singular
includes the plural and the plural includes the singular, and
gender related pronouns include the feminine, masculine and
neuter.
d. Entire Agreement. This Agreement sets forth the entire agreement
and understanding between the parties as to its specific subject
matter and merges all prior discussions between them with regard
to such specific subject matter. Neither of the parties shall be
bound by any conditions, definitions, warranties, understandings,
agreements, or representations, whether written or oral, with
respect to such specific subject matter other than as expressly
provided in the Agreement or as duly set forth on or subsequent
to its effective date, in a written document that is signed by a
duly authorized representative of each party.
e. Export of Technical Data. Each Party agrees to comply with U.S.
export laws and regulations when exporting any materials or any
items licensed or developed under this Agreement or any portion
thereof, or any system containing such materials or items or
portion thereof, or any technical data or other confidential
information, or any direct product of any of the foregoing
(collectively, "Program") from the U.S. or re-exporting a Program
from one foreign country to another. It is the exporting party's
responsibility to comply with the U.S. Government requirements as
they may be amended from time to time. Each party will reasonably
cooperate with the other party in obtaining export licenses or
approvals.
f. Force Majeure. Neither party shall be liable in damages or have
the right to cancel or terminate this Agreement for any delay or
default in performance if such delay or default is caused by
unforeseen conditions or conditions beyond the control of the
delaying or defaulting party, including but not limited to acts
of God, government restrictions, continuing domestic or
international problems such as wars or insurrections, strikes,
fires, floods, work stoppages and embargoes.
g. Freedom Of Action. Unless expressly stated herein and provided
that Recipient does not use the Confidential Information of the
Discloser to do any of the following, this Agreement shall not
prevent either party from (i) entering into any agreement similar
to this Agreement with any corporation or other entity in any
12
<PAGE> 13
industry or any non-profit body such as a university or a
government, (ii) developing, manufacturing and/or selling any
product or service that can compete with the other party's
products or services in the marketplace, or (iii) developing for
its products features that are the same as or similar to features
of products of the other party.
h. Intellectual Property Indemnity by Company.
i. Company shall defend or settle any claim made or suit or
proceeding brought against Novell and its subsidiaries or
affiliates under its control, and their directors,
officers, employees, and agents, against any and all
losses, judgments, awards, and costs (including reasonable
legal fees and expenses) arising out of or related to any
claim that the Licensed Trademarks, Licensed Works
infringe or violate the copyright, trademark, trade name,
trade secret, or patent rights of any third party. Company
will defend at its sole expense all suits or proceedings
arising out of the claims described above, provided that
Novell gives Company prompt notice and control of any
claim of which it learns. No settlement that prevents
Novell from continuing to use Licensed Works will be made
without Novell's prior written consent unless Company
procures for Novell the right to continue using the
Licensed Works or replaces or modifies the Licensed Works
so that it becomes non-infringing. Novell will have the
right to participate in the defense of any claim involving
the use of Licensed Works, provided that Company will not
be responsible for indemnifying Novell for the cost of
Novell's attorney's fees should Novell elect to
participate in such defense.
ii. Notwithstanding the foregoing, Company shall have no
indemnification obligations under this Section to the
extent any infringement claim arises from (a)
modifications to the Licensed Works made by other than
Company or its agents, (b) use or combination of Licensed
Works with equipment, programs or information not provided
by Company (provided that the foregoing limitation with
respect to hardware shall not apply if the Licensed Works
are merely being executed on industry standard hardware
and software in accordance with the manner in which
Company intends its Licensed Works to be operated); or (c)
incorporation of Novell Enhanced Code in the Licensed
Works; provided such claim would not have arisen absent
such modification, use, combination or incorporation.
iii. If the Licensed Works, in whole or in part, are or in
Company's opinion may become, the subject of any claim,
suit or proceeding for infringement of, or it is
judicially determined that the Licensed Works, in whole or
in part, infringe any third party's intellectual property
right, or if the Licensed Work's use is enjoined, then
Company may, at its option and expense, and using
reasonable efforts to act as soon as possible: (1) procure
for Novell the right to continue use of the Licensed
Works; (2) replace or modify the Licensed Works so as not
to infringe
13
<PAGE> 14
such third party's intellectual property right while
conforming, as closely as possible, to the specifications
agreed upon by the parties, (3) if the parties mutually
agree, Novell may undertake to replace or modify the
Licensed Works so as not to infringe such third party's
intellectual property right and such work shall be
reimbursed by Company at a mutually agreeable fee
structure.
i. Intellectual Property Indemnity by Novell.
i. Subject to Company's indemnification obligations set forth
above, Novell shall defend or settle any claim made or
suit or proceeding brought against Company and its
subsidiaries or affiliates under its control, and their
directors, officers, employees, and agents, against any
and all losses, judgments, awards, and costs (including
reasonable legal fees and expenses) arising out of or
related to any claim that the Novell Enhanced Code
infringes or violates the copyright, trademark, trade
name, trade secret, or patent rights of any third party.
Novell will defend at its sole expense all suits or
proceedings arising out of the claims described above,
provided that Company gives Novell prompt notice and
control of any claim of which it learns. No settlement
that prevents Company from continuing to use Novell
Enhanced Code will be made without Company's prior written
consent unless Novell procures for Company the right to
continue using the Novell Enhanced Code or replaces or
modifies the Novell Enhanced Code so that it becomes
non-infringing. Company will have the right to participate
in the defense of any claim involving the use of Novell
Enhanced Code, provided that Novell will not be
responsible for indemnifying Company for the cost of
Company's attorney's fees should Company elect to
participate in such defense.
ii. Notwithstanding the foregoing, Novell shall have no
indemnification obligations under this Section to the
extent any infringement claim arises from (a)
modifications to the Novell Enhanced Code made by other
than Novell or its agents, (b) use or combination of
Novell Enhanced Code with equipment, programs or
information not provided by Novell (provided that the
foregoing limitation with respect to hardware shall not
apply if the Novell Enhanced Code are merely being
executed on industry standard hardware and software in
accordance with the manner in which Novell intends its
Novell Enhanced Code to be operated); or (c) incorporation
of Licensed Works in the Novell Enhanced Code; provided
such claim would not have arisen absent such modification,
use, combination or incorporation.
iii. If the Novell Enhanced Code, in whole or in part, are or
in Novell's opinion may become, the subject of any claim,
suit or proceeding for infringement of, or it is
judicially determined that the Novell Enhanced Code, in
whole or in part, infringe any third party's intellectual
property right, or if the Licensed Work's use is enjoined,
then Novell may, at its
14
<PAGE> 15
option and expense, and using reasonable efforts to act as
soon as possible: (1) procure for Company the right to
continue use of the Novell Enhanced Code; (2) replace or
modify the Novell Enhanced Code so as not to infringe such
third party's intellectual property right while
conforming, as closely as possible, to the specifications
agreed upon by the parties, (3) if the parties mutually
agree, Company may undertake to replace or modify the
Novell Enhanced Code so as not to infringe such third
party's intellectual property right and such work shall be
reimbursed by Novell at a mutually agreeable fee
structure.
j. Independent Contractors. Each party is and shall remain an
independent contractor with respect to all performance under this
Agreement. No employee of either party shall be considered an
employee or agent of the other party for any purpose. Nothing in
this Agreement shall be construed to prevent either party from
delegating performance under this Agreement to independent
contractors who have entered into written agreements consistent
with and at least as restrictive as the provisions contained in
this Agreement.
k. Laws. The validity, construction, and performance of this
Agreement will be governed by the substantive laws of the State
of California without regard to any choice of law provisions. The
prevailing party in any action to enforce the terms of this
Agreement entered into hereunder shall be entitled to recover its
costs and expenses, including reasonable attorney's fees,
incurred in connection therewith, in addition to any other relief
to which such party is entitled. Each party shall, at its own
expense, comply with any governmental law, statute, ordinance,
administrative order, rule or regulation relating to its duties,
obligations or performance under this Agreement.
l. Limitation Of Liabilities. THE REMEDIES PROVIDED IN THIS
AGREEMENT ARE THE SOLE AND EXCLUSIVE REMEDIES OF THE PARTIES.
NEITHER PARTY SHALL IN ANY EVENT BE LIABLE FOR INDIRECT, SPECIAL,
RELIANCE, INCIDENTAL, COVER, OR CONSEQUENTIAL LOSS OR DAMAGE OF
ANY KIND ARISING UNDER THIS AGREEMENT, WHETHER IN A CONTRACT,
TORT OR OTHER ACTION FOR OR ARISING OUT OF ALLEGED BREACH OF
WARRANTY, ALLEGED BREACH OF CONTRACT, DELAY, NEGLIGENCE, STRICT
LIABILITY OR OTHERWISE. EXCEPT AS TO THE OBLIGATIONS SET FORTH IN
SECTIONS 15.h, 15.i and 15.b OR IN THE EVENT OF UNAUTHORIZED USE
OF INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY BE
LIABLE UNDER THIS AGREEMENT TO THE OTHER, ITS SUCCESSORS AND
ASSIGNS FOR ANY DAMAGES EXCEEDING TOTAL PAYMENTS PAID OR DUE BY
BOTH PARTIES UNDER THIS AGREEMENT.
m. Notices. Unless otherwise agreed to by the parties, all notices
required under this Agreement shall be deemed effective when
received and made in writing by either (i) registered mail, (ii)
certified mail, return receipt requested, or (iii) overnight
15
<PAGE> 16
mail, or (iv) telephone facsimile transfer with confirmation,
addressed and sent to the receiving party address specified in
Section 1 with the original of the notice being addressed to the
Project Manager and a copy addressed to the receiving party's
General Counsel or legal department.
n. Representations And Warranties.
i. Ownership by Company. As of the Effective Date, Company
represents to Novell that (i) Company has a valid right to
modify, distribute, and sublicense the Licensed Works;
(ii) to the best of its knowledge, the Licensed Works do
not infringe any person's or entity's patent, copyright,
trademark, trade name or trade secret rights; (ii) to the
best of its knowledge, Company has the right to grant to
Novell all rights to Licensed Works granted herein without
violating any rights of any third party; and (iii) to
Company's knowledge there is currently no actual or
threatened suit by any third party based on an alleged
violation of these rights by Company. Company further
agrees to promptly notify Novell of any allegation or
claim that (i) the Licensed Works infringe any
intellectual or proprietary right of a third party, or
(ii) the licenses granted by Company under this Agreement
are not valid.
ii. Ownership by Novell. As of the Effective Date, Novell
represents to Company that (i) Novell has a valid right to
modify, distribute, and sublicense the Novell Enhanced
Code; (ii) to the best of its knowledge, the Novell
Enhanced Code does not infringe any person's or entity's
patent, copyright, trademark, trade name or trade secret
rights; (ii) to the best of its knowledge, Novell has the
right to grant to Company all rights to the Novell
Enhanced Code granted herein without violating any rights
of any third party; and (iii) to Novell's knowledge there
is currently no actual or threatened suit by any third
party based on an alleged violation of these rights by
Novell. Novell further agrees to promptly notify Company
of any allegation or claim that (i) the Novell Enhanced
Code infringes any intellectual or proprietary right of a
third party, or (ii) the licenses granted by Novell under
this Agreement are not valid.
iii. Year 2000. Upon execution of this Agreement, Company will
inform Novell in writing of its year 2000 policies and of
the level of compliance of the Licensed Works with the
Year 2000 warranty below. Company warrants the Licensed
Works are Year 2000 Compliant. If Company breaches this
warranty, in addition to any other remedies available to
Novell and at no additional cost to Novell, Company will
promptly assign senior engineering staff to work full-time
remedying the breach until the Licensed Works comply with
this warranty. This warranty shall survive termination of
this Agreement.
16
<PAGE> 17
iv. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO DELIVERABLES, LICENSED
WORKS, MATERIALS, INVENTIONS, INFORMATION OR ANY OTHER
WORK OR OTHERWISE UNDER THIS AGREEMENT, AND EACH PARTY
HEREBY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A
PARTICULAR PURPOSE.
o. Severability. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal or
unenforceable, the remaining provisions shall remain in full
force and effect and shall be interpreted, to the extent
possible, to achieve the purpose of this Agreement as originally
expressed. The parties further agree to substitute for the
invalid provision a valid provision which most closely
approximates the intent and economic effect of the invalid
provision.
p. Subsidiaries. All rights and licenses granted to Novell in this
Agreement shall apply to Novell's subsidiaries. Company agrees
that it may not seek to enforce any obligation of Novell (or its
subsidiaries) through a legal action brought against a subsidiary
except to the extent that such action seeks injunctive relief
against that particular subsidiary. Each party shall remain fully
liable for the acts and omissions of its subsidiaries relative to
this Agreement.
q. Survival Of Terms. In the event of a termination of this
Agreement, the terms of Section 5 (License Grants to Novell),
Section 11 (Novell Enhanced Code), and Section 15 (General Terms)
shall survive termination and continue in effect in accordance
with their terms. In addition, any provision that expressly
states that it survives termination shall also continue in effect
in accordance with its terms.
r. Volume Obligations. Except as explicitly stated in this
Agreement, neither party shall have an obligation (i) to offer
any product or service to any third party by way of sale, license
or otherwise, or (ii) to use any minimum level of effort in the
promotion, marketing, licensing or sales of any products or
services, including products or services of the other party, or
(iii) to purchase or license any minimum amount of products or
services from the other party.
s. Waiver. No waiver of any provision of this Agreement shall be
effective unless it is set forth in a writing that refers to the
provisions so waived and is executed by an authorized
representative of the party waiving its rights. No failure or
delay by either party in exercising any right, power or remedy
will operate as a waiver of any such right, power or remedy.
17
<PAGE> 18
16. SIGNATURES.
IN WITNESS WHEREOF, each party has executed this Agreement by signature of its
authorized representative, and this Agreement shall become effective as of the
Effective Date.
NOVELL, INC. COMPANY
SIGNATURE: /s/ SUSAN ESPY SIGNATURE: /s/ PAUL LARSON
------------------------- -------------------------
NAME: SUSAN ESPY NAME: PAUL LARSON
------------------------- -------------------------
TITLE: V.P. CORP. DEV. TITLE: PRESIDENT & CEO
------------------------- -------------------------
DATE: 9/30/99 DATE: 9/29/99
------------------------- -------------------------
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<PAGE> 19
EXHIBIT A
PRODUCT REQUIREMENTS
A. MILESTONES.
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------
DELIVERY SCHEDULE
--------------------------------------------------------------------------------------
MILESTONE DESCRIPTION MILESTONE DATE
--------------------------------------------------------------------------------------
<S> <C> <C>
ONE Presentation to Novell As soon as possible after Effect Date.
engineers of the RTserver
network scalability plan
that addresses [ ** ]. This
plan must be accepted by
Novell as the next step to
take in [ ** ] of the [ ** ].
--------------------------------------------------------------------------------------
TWO Delivery of shipping Five days after Effective Date.
version 5.2 of Licensed
Works for Linux, Solaris,
and Windows/NT.
--------------------------------------------------------------------------------------
THREE Source code delivery plan Five days after Effective Date.
covering release content as
well as the alpha, beta, and
release schedules for the
next two releases (5.3 and
6.0) of Licensed Works.
--------------------------------------------------------------------------------------
FOUR Development Team training Two weeks after Effective Date.
plan.
--------------------------------------------------------------------------------------
FIVE Support Plan including Three weeks after Effective Date.
support training and support
process.
--------------------------------------------------------------------------------------
SIX Plan and schedule for [ ** ] Three weeks after Effective Date.
from Novell versions of the
Licensed Works.
-------------------------------------------------------------------------------------
SEVEN Development Team training. 30 days after Effective Date.
Delivery of Documentation for
the Basic SDK.
--------------------------------------------------------------------------------------
EIGHT Delivery of Licensed Works 30 days after Effective Date.
Acceptance Test Criteria
(NATC) from Novell to
Company.
--------------------------------------------------------------------------------------
NINE Delivery of the Novell Prior to shipping of NES beta 1
versions of the Licensed (estimated to be Dec. 1999).
Works with RTlm removed.
--------------------------------------------------------------------------------------
TEN Delivery of NATC programs 30 days prior to delivery of shipping
(source, executables, and version 5.3 of Licensed Works to
configuration information) Novell.
to Company.
--------------------------------------------------------------------------------------
</TABLE>
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
<PAGE> 20
<TABLE>
<S> <C> <C>
--------------------------------------------------------------------------------------
ELEVEN Delivery of shipping 30 days after the Licensed Works
version 5.3 of Licensed version 5.3 release date.
Works for Linux, Solaris, and
Windows/NT. This version of
Licensed Works must support a
[ ** ] subscribing clients all
running on average Intel-based
hardware found in typical
Novell customer LANs.
--------------------------------------------------------------------------------------
TWELVE Presentation to Novell As early in the design phase of
engineers of the [ ** ] version 6.0 of Licensed Works as
RTserver network [ ** ]. possible.
This plan must be accepted
by Novell as the next step
to take in [ ** ] of the
[ ** ].
--------------------------------------------------------------------------------------
THIRTEEN Delivery of migration As early in the design phase of
strategy document for version 6.0 of Licensed Works as
migration from release 5.x possible.
to release 6.x releases of
Licensed Works.
--------------------------------------------------------------------------------------
FOURTEEN Delivery of shipping Upon General Availability.
version 6.0 of Licensed
Works for Linux, Solaris,
and Windows/NT.
--------------------------------------------------------------------------------------
</TABLE>
The following applies to all subsequent releases.
<TABLE>
<S> <C> <C>
--------------------------------------------------------------------------------------
ONE Presentation to Novell As early in the design phase as
engineers of the next possible.
release RTserver network
[ ** ]. This plan must be
accepted by Novell as the
next step to take in [ ** ].
--------------------------------------------------------------------------------------
TWO Delivery of migration As early in the design phase as
strategy document for possible.
migration from current
release to next releases of
Licensed Works.
--------------------------------------------------------------------------------------
THREE Delivery of new shipping Upon General Availability.
version of Licensed Works
for Linux, Solaris, and
Windows/NT as well as
Documentation for the Basic
SDK.
--------------------------------------------------------------------------------------
</TABLE>
B. GENERAL REQUIREMENT. The Licensed Works must meet the requirements of,
and provide functionality consistent with the purposes of this
Agreement. Without limiting the generality of the foregoing, each
delivery of the Licensed Works must meet the following requirements:
1. Company will be responsible for the testing and product readiness
of the Licensed Works.
2. The Licensed Works must meet industry standards of quality and
performance, in no event less than the quality and performance of
any Novell Product(s) with which a Licensed Work will be
distributed.
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
2
<PAGE> 21
3. Four (4) hard copies of the complete Licensed Works documentation
set must be delivered to Novell for the NES development team.
4. The documentation for the Licensed Works shall be provided to
Novell in the formats listed below unless other formats are
designated by Novell in writing.
a. Documentation for the licensed Works will be delivered in
HTML format.
b. Printable documentation for the Licensed Works optimized
for printing in a hard copy will be delivered in PDF
format.
5. The Licensed Works shall, at a minimum, have all of the
components, files and functionality at least as great as
contained in all commercially available versions of the Licensed
Works. Furthermore, this functionality cannot be materially
eliminated or reduced without making reasonable efforts to
provide six months prior written notification. Company will make
reasonable efforts to notify Novell as early as possible of
changes to any aspect of the Licensed Works programming
interface, including, but not restricted to, function or method
names, constant names, constant values, function or method return
types, function or method return values, error codes, parameter
types, parameter positions, parameter values, parameter default
values, configuration values, and configuration default values.
6. Company shall submit a Supplementary PDQ that is complete and
current as of the delivery date of each master version of the
Licensed Works.
7. The Licensed Works shall be provided without any proprietary
licensing scheme incorporated into the product.
8. Novell must be provided with a then current document listing all
Licensed Work distribution files, file locations, and
configuration information suitable for Novell to easily integrate
Licensed Work into the NetWare installer.
9. Company will use commercially reasonable efforts to provide the
Licensed Works integrated with all changes, additions,
enhancements, and defect corrections (bug fixes) made by Novell
within one product release cycle of delivery of those changes,
additions, enhancements, and defect corrections to Company.
Furthermore the same will be included in all future versions and
updates of Licensed Works. A relevant level of compatibility
testing will be provided by both Company and Novell's product
groups and Integration Test Labs. Make every reasonable effort to
roll in to base-line. Must work with them to put functionality in
base-line. Escalation process and plan.
10. Each release of Licensed Works must be accompanied by a document
containing a clear list of all code changes since the previous
code drop.
B. TEST & SUPPORT REQUIREMENTS.
1. Company will be responsible for providing Novell with a
documented test plan describing the testing process Company will
use to assure a quality product. This
3
<PAGE> 22
test plan should include, but is not be limited to, an assurance
that Company has used test plans and test cases that exercise all
functionality in their product.
2. The Licensed Works are required to be tested and assured to run
in:
IP-only networking environment
Mixed IP/IPX networking environment
3. Prior to acceptance, the NES Development Team will benchmark the
new release of Licensed Works on the latest release of
Windows/NT. The results must be as good or better than the
benchmark results obtained during the technical due diligence
evaluation of Licensed Works. The NES team leader will formally
sign off on the performance of the new release as part of the
acceptance criteria.
4. The Licensed Works must be able to run [ ** ] for at least [ ** ]
when used by [ ** ] client connections running a Novell
supplied test program in a Novell specified client and server
configuration. This stress testing will be performed by Novell at
its SuperLab facility.
C. SCALABILITY REQUIREMENTS. The Licensed Works must meet the requirements
of, and provide functionality consistent with the purposes of this
Agreement. Company will make every effort to provide in each release of
Licensed Works a [ ** ] RTserver "cloud" throughput [ ** ] support the
largest [ ** ] at the time.
D. TEST PROGRAMS. Company shall provide the latest version of the
SmartSockets test programs that run in a test harness for each release
of the Licensed Works. Company authorizes Novell to reproduce and
internally use these test programs and harnesses.
4
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
<PAGE> 23
EXHIBIT B
NOVELL CUSTOMER SERVICES SUPPORT DESCRIPTION
(NTS PROVIDES LEVEL 1 SUPPORT)
a. DEFINITIONS. In addition to terms defined in the Agreement, the following
capitalized terms when used in this Exhibit shall have the following
meanings.
1. Incident means a customer reported problem with the Licensed Works.
2. Severity Level means the classification of Incidents according to the
following definitions:
Severity Level 1 means a condition which makes the performance or continued
performance of any one or more mission critical program functions
impossible.
Severity Level 2 means a condition which makes the performance or continued
performance of any one or more significant program functions difficult and
which cannot be circumvented or avoided on a temporary basis by the user.
Severity Level 3 means a limited problem condition which is not critical and
which may be circumvented or avoided on a temporary basis by the user.
3. Support Levels means the classification of technical support to be
provided pursuant to this Exhibit, according to the following
definitions:
Level 1 Support is the service provided to identify, troubleshoot, and
document problems reported in customer Incidents.
Level 2 Support is the service provided to analyze the problem reported
using in-depth troubleshooting techniques, reproduce the problem, or
determine that the problem cannot be reproduced.
Level 3 Support is the service provided to isolate the problem to a
component level, provide a work-around, or provide an Error correction.
b. OBLIGATIONS.
1. Training. Company shall provide Novell, at no charge, up to 5 days of
technical training for each release of the Licensed Works. Such training
must be at a level sufficient to ensure Novell support personnel's
ability to perform Level 1 Support for the Licensed Works.
Company shall also provide Novell periodic training updates on Licensed
Works as reasonably requested by Novell.
In addition, Novell may at it's discretion, perform certain Level 2
Support efforts, which shall in no way relieve Company of performing
Level 2 support as set forth in Exhibit B hereto. In order to assist
Novell, Company shall provide Novell, at no charge, up to 5 days of
technical training for each release of the Licensed Works sufficient to
ensure Novell support personnel's ability to perform discretionary Level
2 Support for the Licensed Works. Novell shall pay Company's
pre-approved travel expenses for such training.
2. Training Materials. Company will provide masters of the training
materials and all product documentation (collectively "Training
Materials"), and Company hereby grants Novell a royalty-free license to
use, reproduce, modify, and distribute the Training Materials and
Derivative
<PAGE> 24
Works thereof as Novell determines necessary to ensure customer
satisfaction, including distribution of the Training Materials to OEMs,
resellers, CNEs, training centers, and other third parties. In addition,
Company authorizes Novell to videotape or otherwise record the training
sessions, and the foregoing license shall apply to videotapes and other
recordings.
Novell hereby grants Company a royalty-free license to use, reproduce,
modify, and distribute Novell's Derivative Works of the Training
Materials as Company determines necessary to ensure customer
satisfaction, including distribution of such Derivative Works to OEMs,
resellers, CNEs, training centers, and other third parties.
3. Information Updates. Company will provide Novell, at no charge, ongoing
and updated technical information and knowledge bases of known
solutions, if any, regarding the Licensed Works ("Information") through
a medium agreed upon by the parties. Company grants Novell a
royalty-free license to (i) reproduce, use, modify, and distribute
through any medium the Information that Company does make Generally
Available, and (ii) reproduce and internally use the Information that
Company does not make Generally Available.
4. Support Tools. Company will provide Novell with all existing support and
engineering tools that may be helpful to Novell in supporting,
understanding, and trouble shooting the Licensed Works. Company grants
Novell a royalty-free license to reproduce and internally use such tools
to support the Licensed Works.
5. Level 2 Support and Level 3 Support. When a Novell Incident is
escalated, Company shall provide Level 2 Support and Level 3 Support and
shall acknowledge and resolve each Incident within the time frames set
forth herein.
a. Company shall acknowledge receipt of escalated Incident within the
following time frame:
Severity Level 1: 1 hour from receipt of message
Severity Level 2: 4 hours from receipt of message
Severity level 3: 24 hours from receipt of message
b. Company shall resolve the Incident or shall reach an agreement with
Novell on a written plan of action for resolving the Incident within
the following time frame.
Severity Level 1: 48 Hours
Severity Level 2: 5 days
Severity Level 3: 10 days
Company will provide one contact 24 hours a day, seven days a week, to
respond to Severity Level 1 issues. Response times for Severity Level 2
and Severity Level 3 issues will be measured according to Company's
normal business hours.
6. Critical Situation Account Escalations. Company will provide one
management-level contact who will be available 24-hours, 7 days per
week, for critical issue escalations. If Novell
6
<PAGE> 25
determines an Incident presents a critical situation for a customer
according to Novell's then-current support policy, Company will provide
on-site technical support to assist Novell in resolving Incidents that
are not resolved by remote support methods. Novell will not be charged
for on-site support to the extent the Incident involves or arises out of
Errors in the Licensed Works. Novell will be charged for on-site support
to the extent the Incident does not involve or arise out of Errors in
the Licensed Works.
7. Web Based Support Forums. Company shall periodically monitor Novell's
web-based support forums for the Licensed Works and respond to
frequently asked questions and correct inaccurate information
contributed to the forum regarding the Licensed Works.
8. Entitlement. Company will provide Novell, at no charge, entitlement for
one primary and two secondary support connections to Company's support
organization(s) in corresponding regions (if any) for each of the
following Novell support groups for the purpose of coordinating support:
- Worldwide Support at Provo/Orem, Utah San Jose, California, or
Bangalore, India (Novell IDC)
- Americas Support Center at Provo/Orem, Utah
- Europe, Middle East and Africa Support Center at Dusseldorf, Germany
- Asia Pacific Support Center at Sydney, Australia
- Japan Support Center (Novell KK) in Setagya-ku, Tokyo, Japan
Novell will provide Company, at no additional fee, entitlement for four (4)
technical contacts worldwide to access Novell Technical Support for the
purpose of troubleshooting problems dealing with the Licensed Works
interacting with Novell products.
i. Acknowledgment. Company acknowledges that providing support to Novell is
a material obligation under this Agreement and paramount in achieving
customer satisfaction. Company acknowledges Novell's representation that
it has entered into contractual obligations that require Novell to
provide timely support to third parties and that Novell is relying on
Company to fulfill its obligations under this Exhibit in order for
Novell to fulfill it's obligations to third parties. If Company breaches
it obligations to respond to an Incident in accordance with the
specified response and resolution times, Novell may, after Company's
failure to cure within three (3) days, take all measures necessary to
resolve the Incident(s) at Company's expense.
j. Duration of Obligations. Company's obligations under this Exhibit shall
expire upon termination of the Agreement. After termination, company
shall provide technical support to Novell at Company's then-current
support rates.
k. Performance. All of Novell's obligations and duties under this Exhibit
may be performed by Novell, its agents, assignees, or other designated
party. Each license granted to Novell pursuant to this Exhibit shall
also include the right to sublicense any or all such rights to third
parties. In addition, Novell may freely assign,
7
<PAGE> 26
transfer or outsource its rights and obligations under this Exhibit to a
third party(s).
l. Quality. Company agrees to participate in support quality reviews to
evaluate current support metrics and discuss how to improve the support
relationship.
8
<PAGE> 27
EXHIBIT D
PRODUCT DESCRIPTION
MQexpress is described in the following documents:
MQexpress Installation Guide
MQexpress Tutorial
MQexpress User's Guide
SmartSockets Event System is described in the following documents:
SmartSockets Read Me First
SmartSockets Utilities manual
SmartSockets Application Programming Interface
SmartSockets User's Guide
SmartSockets Tutorial
SmartSockets API Quick Reference
SmartSockets C++ Class Library
SmartSockets Java Class Library
SmartSockets Java Tutorial
SmartSockets ActiveX Reference
<PAGE> 28
EXHIBIT E
RESTRICTED COMPANIES
Company's restricted companies as set forth in Section 11:
[ ** ]
Novell Restricted Companies as specified in Section 5:
[ ** ]
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
<PAGE> 29
AMENDMENT NO. 1
TO
STANDARD INBOUND LICENSE AGREEMENT
This Amendment amends and supplements the Standard Inbound License Agreement,
effective September 30, 1999, (the "Agreement") between Novell, Inc. ("Novell")
and Talarian Corporation ("Company"). Capitalized terms not otherwise defined
herein shall have the meaning set forth in the Agreement. The parties hereby
agree as follows:
1. Section 3.q is deleted and replaced with the following:
"Novell Products - shall mean all versions of all products
distributed by Novell including but not limited to corresponding
software development kits, updates, upgrades, and service packs,
whether the foregoing are created, marketed, distributed, and/or
sold by Novell or third parties, provided that the products add
significant value beyond the types of capabilities contained in
the Licensed Works, and extensions of such capabilities. The
parties agree that directory enablement, the Novell Event
Publishers and/or the NetWare port of the Licensed Work will be
deemed substantial value add. Additionally, Novell Products shall
not include products of an acquiror of Novell that were not
distributed or sold by Novell prior to the acquisition."
2. Section 7 is deleted and replaced with the following:
"7. PACKAGING AND END USER LICENSING. Novell will determine the
packaging for the Licensed Work at its sole discretion. Except as
expressly agreed to herein, Novell will have no obligation to
insert or include any brochure or other materials with the
Licensed Work.
a. Basic SDK. Company will electronically embed the following in
the master copy of the Basic SDK provided to Novell: (i)
Company's end user license agreement ("EULA"), with Company as
the licensor, and (ii) the end user Documentation. Novell will
not modify Company's EULA for the Basic SDK or the manner in
which the Company presents the EULA. Novell acknowledges that
Company may embed its EULA in the Basic SDK in such a way that
the end user must click through an acceptance procedure prior to
installing the Basic SDK. Company acknowledges that Novell may
distribute a modified version of the Basic SDK, including without
limitation removing the RTServer, but which will include the
Company's EULA.
In addition, Company agrees that Novell may, at its option,
distribute the Basic SDK (including modifications) as a Novell
product pursuant to a EULA, with Novell as the Licensor, using
"Novellized" screens and a Novell product name, provided that the
terms and conditions of such EULA are first approved in writing
by Company.
b. Licensed Works (other than Basic SDK). Company will provide to
Novell the end user license agreement, with Company as the
licensor, for distribution with the Licensed Works under the
license rights set forth in Section 5.a of the Agreement (the
"Licensed Works EULA"). The Licensed Works EULA must include
terms that are consistent with the intent and purposes of this
Agreement and that allow the end user to utilize the Licensed
Works in connection with Novell Products as contemplated by this
Agreement, provided that in any event the EULA may prohibit
[ ** ] and may direct users to obtain the Basic SDK and Advanced
SDK from Company. Company is solely responsible for and agrees to
perform the following with respect to each version of the
Licensed Works:
(i) Translate the Licensed Works EULA into all
languages necessary for worldwide distribution in
compliance with all applicable country laws and
regulations;
(ii) Format the Licensed Works EULA as specified by
Novell;
**Confidential treatment has been requested with respect to certain
information contained in this document. Confidential portions have been
omitted from the public filing and have been filed separately with the
Securities and Exchange Commission.
<PAGE> 30
(iii) Deliver the translated Licensed Works EULA to
Novell in a timely manner so that Novell can
implement the Licensed Works EULA without adversely
impacting Novell's roadmap and release dates.
Provided that the Licensed Works EULA meets all the requirements
set forth in this Section 7.b, Novell will electronically embed
the Licensed Works EULA in the Licensed Works distributed
pursuant to Section 5.a such that the end user must accept the
EULA through a click-through mechanism before installing the
Licensed Works, and Novell will not modify any of the terms and
conditions of the Licensed Works EULA.
3. The parties agree that Company shall modify the Basic SDK, the SSSDK,
and the SmartSockets Event Systems to include [ ** ] protected access
to the use of the functionality listed below:
(1) [ ** ];
(2) full [ ** ] services (i.e. the Basic SDK will include
partial [ ** ] services);
(3) [ ** ]; and
(4) Other [ ** ] features which Company may provide in the
future.
Company will provide the [ ** ] to Novell for use by Novell as
authorized under the Agreement. Novell shall not disclose or provide the
[ ** ] to any third party except as authorized by and subject to the
restrictions in Sections 5.a and 5.b and the third party shall be able
to use the [ ** ] solely for the purposes of developing, integrating,
maintaining, and supporting Novell Products.
4. In addition to the deliverables described in the Agreement, Company
shall deliver to Novell a runtime version of each version of the
Licensed Works that does not include [ ** ] or [ ** ]. Provided that
Company delivers the foregoing, Novell will ensure that distribution of
the Licensed Works under the license rights set forth in Section 5.a of
the Agreement shall not include such [ ** ] or [ ** ].
5. In the event Novell fails to include the Licensed Works EULA or fails to
remove the [ ** ], as set forth in this Amendment, then Novell agrees to
include the Licensed Works EULA or remove the [ ** ], as applicable, in
the next release of the Licensed Works distributed pursuant to Section
5.a. The parties acknowledge and agree that Novell's failure to include
the Licensed Works EULA or remove the [ ** ] shall not be considered a
breach of this Agreement so long as it is remedied in the next release,
except as set forth below. In the event that Novell fails to include the
Licensed Works EULA as set forth in this Amendment No. 1 and fails to
remove the [ ** ] as set forth in this Amendment in the same release of
the Licensed Works, then such failure to meet both obligations shall
constitute a breach of this Agreement. However, the parties agree that
any breach under this Section shall not be considered an unauthorized
use of intellectual property.
6. The headings in Exhibit E above each column of company names shall be
exchanged with one another, such that the list of company names that the
Agreement restricts Novell from engaging in a business transaction with,
and the list of company names that the Agreement restricts Company from
engaging in a business transaction with, are reversed from their current
representation.
7. Section 3.a is modified by replacing the phrase "use of the following
APIs" with the phrase "use of the following functionality".
8. Effective upon the execution of this Amendment No. 1, Novell hereby
exercises its option to license MQExpress pursuant to Section 13.b of
the Agreement, and Company hereby waiver all corresponding fees set
forth in Section 13.b.
** Confidential treatment has been requested with respect to certain information
contained in this document. Confidential portions have been omitted from the
public filing and have been filed separately with the Securities and Exchange
Commission.
<PAGE> 31
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment as of
the later date executed by an authorized representative of both parties. Except
as amended hereby, the Agreement shall remain in full force and effect.
TALARIAN CORPORATION NOVELL, INC.
By: /s/ Paul A. Larson By: /s/ Mary Susan Espy
----------------------------- ---------------------------------
Name: Paul A. Larson Name: M.S. Espy
----------------------------- ---------------------------------
Title: President and CEO Title: V.P., Business Development
----------------------------- ---------------------------------
Date: 6/26/00 Date: 6/26/00
----------------------------- ---------------------------------
