Software License Agreement - VI/Visualize Inc. and Accrue Software Inc.
SOFTWARE LICENSE AGREEMENT
This License Agreement ("Agreement") made as of July 1, 2000 ("Effective
Date"), between VI/Visualize, Inc. ("Visualize"), a Nevada corporation, having
as its principal place of business at 1819 E. Morten Suite 210, Phoenix,
Arizona 85020 and Accrue Software, Inc. ("Accrue"), a Delaware corporation,
having its principal place of business at 48634 Milmont Drive, Fremont, CA
A. Visualize has developed and owns certain computer software known as
VantagePoint(TM) (defined below as the "Product").
B. Accrue wishes to include certain aspects of the Product in executable
form in a web analysis product Accrue has developed (defined below as the
C. Visualize wishes to license the product to Accrue and Accrue wishes to
license the Product from Visualize on the terms and conditions set forth
TERMS AND CONDITIONS
1.1 "Product" is defined as any component of VantagePoint(TM), as described
in Exhibit A that is supplied to Accrue under the terms of this
Agreement, including all Documentation, Product Releases and Maintenance
1.2 "Documentation" is defined as the "VantagePoint(TM) Reference Manual" in
electronic or printed form and the "VantagePoint(TM) Class Library
1.3 "Product Release" is defined as a major enhancement or restructuring of
the Product. A Product Release is identified by an integer version
number, for example, VantagePoint(TM), Version 4.0.
1.4 "Maintenance Release" is defined as an update to an existing release,
which adds minor features or corrects documented bugs. A Maintenance
Release is identified by a decimal integer appended to the Product
Release number, for example, Version 4.1.
1.5 "Application" is defined as the software programs including enhancements
and future version thereof into which Accrue wishes to integrate the
Product, as more fully described in Exhibit C.
2. LICENSE OF PRODUCT
2.1 LICENSE: Visualize hereby grants to Accrue a perpetual, non-exclusive,
worldwide license (i) to copy and incorporate all or part of Product, in object
code (class files) in Application and (ii) to market, distribute, license and
sublicense, without restriction, Application which incorporates the Product and
any modifications, enhancements, and/or alterations thereto. If and when the
source code to the Product is released to Accrue under Section 4.9 below,
Visualize hereby grants Accrue a perpetual, non-exclusive worldwide,
royalty-free license to use the source code to support and maintain the
Product as well as make modifications and enhancements thereto (including
enhancements that maintain competitiveness of the Product with then
market standards) in support of Accrue's rights to market, distribute,
and license Application which incorporates the Product. Accrue may not,
without Visualize's written consent, distribute the product as a
stand-alone product or otherwise use the Product in a manner inconsistent
with this license agreement, except that Accrue may distribute
Maintenance Releases and Product Releases on a stand-alone basis to its
end users of the Application.
2.2 CONSIDERATION: For the rights and license granted herein, Accrue will
pay Visualize as provided in Exhibit B attached hereto. [*] payments to
Visualize will be made [*], with the first payment due on or before
October 31, 2000.
2.3 PROPRIETARY RIGHTS: Accrue agrees that the Product is and shall remain
the sole property of and proprietary to Visualize. Nothing in this
Agreement shall alter these rights and no title to or ownership of the
Product is transferred to Accrue. Each part may use the trademarks or
name of the other in promotional and advertising material related to
distribution of the Product provided such use is consistent with the
standards of other party and is approved by such party before use of the
material. Any such material not disapproved within five working days
will be deemed approved.
2.4 DELIVERY OF PRODUCT: Upon execution of this Agreement, Visualize shall
deliver to Accrue the Product, (by CD-ROM, magnetic diskettes, or
electronically for installation on Accrue's computers) and such other
diskettes, CD-ROMs, manuals, examples, and other information as may
relate to or comprise the Product, including without limitation the
items described on Exhibit A hereto. The Product will be shipped to
Accrue at the address set forth on the signature page or such other
address specified by Accrue in writing. Visualize may package and ship
the product in any commercially reasonable manner. Thereafter,
Visualize will deliver to Accrue, without charge (by CD-ROM, magnetic
diskettes, or electronically for installation on Accrue's computers)
any Product Releases and Maintenance Releases and one master copy of
any changes to the related Documentation promptly when available.
2.5 TAXES: Accrue is responsible for all applicable sales, use, personal
property, excise or other similar taxes or export and import taxes,
duties, and charges, however designated (except only for tax based on
the net income of Visualize or franchise tax arising from Visualize's
activities) and such taxes shall be paid directly by Accrue or
reimbursed by Accrue to Visualize, as necessary, without reducing the
amount otherwise due to Visualize hereunder.
3. SUPPORT AND MAINTENANCE
3.1 SUPPORT: Visualize will provide Accrue, free of charge, with phone and
email technical support for Product Release 4.0 and beyond [*] for the
term of the contract. Such support will be available only during the
hours of 8 a.m. to 5 p.m. Arizona Time. Accrue will provide technical
support to its end users, and Visualize will interface only with one
primary and back-up Accrue appointed technical support representative on
any technical support related issues.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
3.2 TRAINING: Visualize will provide Accrue, [*], with 16 consulting hours, all
or part of which may be used in an on site training visit by a Visualize
developer to Accrue, with travel at Accrue's expense.
3.3 MAINTENANCE: Visualize will provide, [*] promptly when available, Product
Releases and Maintenance Releases to Accrue during the term of this
Agreement. Maintenance Releases will be provided to fix bugs, whether or
not reported by Accrue, and to provide minor enhancements to the Product.
If Accrue reports a documented, reproducible bug in Product that
significantly impairs the intended functionality of the Application, then
Visualize will use its best efforts to provide a specific correction within
7 business days. Visualize shall notify Accrue of its plans to release any
Product Release or Maintenance Release as soon as practicable prior to the
scheduled release date, and in no event less than twenty (20) days prior to
4.1 CONFIDENTIALITY: Each party will keep confidential any confidential
information relating to (i) the Product or to the other party's business,
finances, marketing and technology to which it obtains access and (ii) the
terms and conditions of this Agreement, and each party agrees that it will
take reasonable precautions to protect such confidential information of the
other party, or any part thereof to the same extent it protects its own
similar confidential information from any use, disclosure or copying.
Confidential information of a party shall not include information which (i)
is or becomes publicly known through no fault of the other part, (ii) is
disclosed to the other party by a third party who had lawfully obtained
such information and without a breach of such third party's confidentiality
obligations (iii) is developed independently by the other party, or (iv)
the party has given written permission to the other party to not keep
confidential. A party wishing to use or disclose information based on any
of the foregoing exceptions will have the burden of proving the
applicability of such exception by objective or verifiable evidence and
will in no event use such information prior to 30 days after notice of such
intention to the other party hereto.
4.2 INJUNCTIVE RELIEF: In the event of a breach of any of the provisions of
Section 4.1, the parties agree that there would be no adequate remedy at
law, and accordingly the parties agree that the non-breaching party, in
addition to any other available legal or equitable remedies, is entitled to
see injunctive relief against such breach without any requirement to post
bond as a condition of such relief.
4.3 COPYRIGHT PROTECTION: Accrue shall include with all copies of Product any
copyright and trademark notices included in the object code version of the
Product (to the extent such inclusion is technically feasible and
reasonable, given the parties' intended use of Product), and shall comply
with Visualize's reasonable written instructions regarding protection
thereof under applicable copyright laws.
4.4 REVERSE COMPILING: Accrue shall not attempt to create or permit others to
attempt to create, by reverse compiling or disassembling or otherwise, any
part of the source program for the Product from the object code or from
other information made available to Accrue. Accrue authorizes Visualize to
incorporate means for such reverse compilation or disassembly in the
4.5 COPIES: Accrue may make machine-readable copies of each Product and copies
of the Documentation and other documents as necessary for the use
authorized in this Agreement.
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES EXCHANGE COMMISSION.
All copies, whether in machine readable, printed, or other form, are part
of the Product and Accrue must include on all such material Visualize's
notice of its proprietary rights in the form set forth in the Product as
delivered to Accrue.
4.6 ACCESS: Accrue may disclose and make the Product accessible to its
employees, contractors and agents only to the extent needed to exercise the
licenses granted hereunder.
4.7 GENERAL PAYMENT TERMS: Past due amounts will accrue interest at a rate of
one percent (1%) per month. The prevailing party in any legal action
brought by one party against the other and arising out of this Agreement
shall be entitled to reimbursement of all costs and reasonable attorney's
fees incurred by such party.
4.8 SOFTWARE AUDIT RIGHTS: Visualize shall have the right, not more than twice
each calendar year during the term of this Agreement, upon thirty (30) days
prior written notice to Accrue, to enter Accrue's premises during normal
business hours to inspect Accrue's records to verify compliance by Accrue
with the terms of this Agreement. Accrue agrees to cooperate with Visualize
in any such inspection. All costs of such audit shall be borne by Visualize
provided that if any audit reveals an underpayment of 5% or more during the
audited period, the cost of such audit shall be borne by Accrue, and Accrue
shall promptly pay the amount of the underpayment plus accrued interest.
4.9 PRODUCT SOURCE CODE: Visualize shall, at its sole cost and expense,
establish a software escrow account with an escrow agent satisfactory to
Accrue within sixty (60) days of the Effective Date and shall deposit a
copy of the source code and object code for the Product and existing
Documentation, manuals, logic diagrams, flow charts, operating
instructions, other materials describing the programming, design and use
of the product. After the Effective Date, Visualize shall deposit into
the escrow account all source code and object code for Maintenance
Releases and Product Releases and then-existing documentation upon
delivery of such releases to Accrue. Should Visualize become insolvent,
declare bankruptcy or be declared bankrupt by a competent tribunal, make
an assignment for the benefit of creditors, cease to conduct business in
the normal course, or cease support of the Product for more than 60 days,
Accrue shall be entitled to obtain from the escrow account a complete
copy of the escrow materials, including the Product source code, from
such escrow account, which Accrue shall have the right to use as set
forth in the source code license in Section 2.1 above. In the event
Visualize resumes rendering requested Support and Maintenance, the
source code will be returned to the escrow account and be subject to
the terms and conditions of this section governing access to such
5. WARRANTIES AND INDEMNIFICATION
5.1 EXPRESS WARRANTY: Visualize represents and warrants to Accrue that it has
all necessary corporate power and authority to enter into this Agreement,
to consummate the transactions contemplated hereby, and to license the
Product to Accrue, and that such license does not conflict with or infringe
any rights of any third party (including, without limitation, any
copyrights, patent rights or trade secrets), or any agreement to which
Visualize is bound or the Product is subject.
5.2 LIMITED WARRANTY: Visualize hereby warrants to Accrue that the Product will
conform to its published specifications in all material respects. This
warranty is limited and shall not apply if failure of the Product to
conform to published specifications results from (i) improper use of the
Product; or (ii) operation of the Product outside the environmental
specified on the User Documentation; or (iii) modifications to the Product
not made by Visualize. This warranty does not apply to any release of the
Product that is designated "beta test software" or "pre-release software"
5.3 EXCLUSION OF IMPLIED WARRANTIES: ANY AND ALL OTHER WARRANTIES AS TO THE
PRODUCT AND USER DOCUMENTATION, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE
SPECIFICALLY EXCLUDED, WAIVED, AND NEGATED.
5.4 LIMITATION OF LIABILITY: NEITHER VISUALIZE NOR ITS OFFICERS, EMPLOYEES, OR
DIRECTORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR
BENEFITS, LOSS RESULTING FROM THE USE OF THE PRODUCT OR ARISING OUT OF ANY
BREACH OF ANY WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
VISUALIZE SHALL HAVE NO LIABILITY FOR ANY CLAIM OF ANY KIND OR NATURE,
INCLUDING BUT NOT LIMITED TO VISUALIZE'S NEGLIGENCE, ARISING OUT OF OR IN
ANY WAY RELATED TO THIS AGREEMENT, OR IN CONNECTION WITH ANY USE OR OTHER
EMPLOYMENT OF ANY PRODUCT LICENSED TO THE CUSTOMER HEREUNDER, WHETHER SUCH
LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, OR
OTHERWISE, WHICH MAY BE ASSERTED BY THE CUSTOMER, EXCEPT FOR IN RESPECT OF
THIRD-PARTY CLAIMS PURSUANT TO SECTION 5.6 HEREIN, VISUALIZE'S AGGREGATE
LIABILITY TO THE CUSTOMER FOR ALL LOSS AND DAMAGE WHETHER IN NEGLIGENCE,
CONTRACT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
OR THE OPERATION OR FAILURE TO OPERATE OF THE PRODUCT, SHALL IN ANY EVENT
BE LIMITED TO AMOUNTS PAID TO VISUALIZE BY ACCRUE UNDER THIS AGREEMENT.
5.5 NOTIFICATION: Accrue shall notify Visualize in writing of any claim or
other legal proceeding involving the product promptly after it becomes
aware of any such claim of proceeding, and will also report all claimed or
suspected failures of the Product to conform to the Documentation promptly
after Accrue becomes aware of any such claimed or suspected failure,
during the term of the Agreement.
5.6 INDEMNIFICATION BY VISUALIZE: Visualize will defend, indemnify, and hold
harmless Accrue against any claim that the Product (including Maintenance
Releases and Product Releases) infringes any claim of copyright or
trademark of any third party, or any claim under any patent or patent
application, or that the foregoing incorporate any misappropriated trade
secrets of a third party, provided that Accrue gives Visualize prompt
written notice thereof, grants Visualize sole control of the defense and
any related settlement negotiations, cooperates with Visualize in the
defense of such claim and does not agree to settle any such claim without
Visualize's written consent. If use of the Product is finally enjoined, or
if Visualize anticipates the possibility of such an injunction, Visualize,
at its option, will either (i) procure for Accrue the right to use the
Product under the same terms and conditions of this Agreement (ii) replace
the Product with a substantially equivalent program the use of which is not
so enjoined, or if neither of the foregoing options is reasonable
available, (iii) terminate Accrue's license and refund the license fee paid
for the Product. Notwithstanding the foregoing, Visualize shall have no
liability to Accrue if the infringement results from (a) use of the Product
in combination with other software or hardware, if the Product alone would
not have been so infringing, (b) modifications to the Product not made by
Visualize if such
infringement would have been avoided by the absence of such modification,
or (c) use of other than the versions of the Product most recently offered
to Accrue within the proceeding six month period if such infringement
would have been avoided by use of such current revisions. THE FOREGOING
STATES THE ENTIRE LIABILITY OF VISUALIZE, AND THE SOLE REMEDY OF ACCRUE,
WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR
CONTRACTUAL RIGHTS OF THIRD PARTIES BY THE PRODUCT(S) OR ANY PARTS OR
5.7 EXCLUSIVE REMEDIES: Except in the case of infringement of a third party
intellectual property right, Accrue's exclusive remedies for any claims
against Visualize arising out of the Agreement shall be limited to the
following, at the option of Visualize: (a) replacement by Visualize of the
Product with software acceptable to Accrue that functions substantially in
accordance with the User Documentation; (b) repair by Visualize of the
Product, by patch or work around, so that it functions substantially in
accordance with the User Documentation or; (c) refund by Visualize of the
money paid by Accrue and received by Visualize in respect to the product.
Accrue acknowledges that this Section 5.7 limits its remedies in the event
that Visualize has breached any of its obligations to Accrue. WITHOUT
LIMITING THE FOREGOING, VISUALIZE AND ACCRUE AGREE THAT IF ANY REMEDY
HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL OTHER
LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH HEREIN SHALL REMAIN IN
6. TERM AND TERMINATION
6.1 TERM: The term of this Agreement will be three years from the Effective
6.2 TERMINATION FOR CAUSE: The occurrence of any of the following events shall
constitute a default under the terms of this Agreement, and a cause for
termination of this Agreement:
(a) The failure by Accrue to pay Visualize any amount on or before the
day payment is due, thirty (30) days after receipt of written notice
notifying Accrue of such failure (to allow Accrue to cure such
(b) The failure of a party to cure any breach of any material term of
this Agreement (other than non-payment) within thirty (30) days of
receipt of written notice thereof.
6.3 EFFECT OF TERMINATION: If this Agreement expires or is terminated for any
reason, the license granted hereunder shall terminate, and Accrue's right
to distribute the licensed Product shall end immediately. Within thirty
(30) days following such termination, Accrue shall return or destroy all
copies of Product in Accrue's possession (other than one copy, for support
of existing licenses) and certify in writing that all other copies of
Product have been destroyed or returned. Notwithstanding any conflicting
provision herein, following termination of this Agreement and for so long
thereafter as is necessary for Accrue to satisfy obligations for support
and maintenance services to its end users, Accrue shall have a limited
license to use and modify a copy of the Product solely for such purposes,
provided however that Accrue shall provide mutually acceptable assurances
to Visualize which are appropriate under the circumstances. None of
Accrue's existing sublicenses to end users for Product in Accrue's
Application shall be affected by any termination of this Agreement and
such licenses shall remain in full force and effect until the end of their
then respective terms. After
termination, Accrue shall also have the right to distribute Maintenance
Releases and Product Releases to Accrue's end users, at Visualize's then
standard rates and payment terms.
6.4 NO DAMAGES FOR TERMINATION: Neither Visualize nor Accrue shall be
liable to the other for lost profits or incidental, punitive, or
consequential damages relative to termination of this Agreement in
accordance with Section 6.2, even if advised of the possibility of such
6.5 SURVIVAL: Sections, 2.3, 3.3 (except as modified by Section 6.3), 4.2, 5, 6
and 7, as well as Accrue's obligations to pay Visualize all sums due
hereunder and all provisions regarding limitations of liability and
remedies, shall survive termination or expiration of this Agreement.
7. MISCELLANEOUS PROVISIONS
7.1 NO JOINT VENTURE: This is an Agreement between separate legal entities and
neither is the agent or employee of the other for any purpose whatsoever.
The parties do not intend to create a partnership or joint venture between
themselves. Neither party shall have the right to bind the other to any
Agreement with a third party or to incur any obligation or liability on
behalf of the other party.
7.2 WAIVER: The failure of either party to exercise any of its rights under
this Agreement or to require the performance of any term or provision of
this Agreement, or the waiver by either party of such breach of this
Agreement, shall not prevent a subsequent exercise or enforcement of such
right or be deemed a waiver of any subsequent breach of the same or any
other term or provision of this Agreement. Any waiver of the performance of
any of the terms or conditions of this Agreement shall be effective only if
in writing and signed by the party against which such waiver is to be
7.3 VALIDITY: If any of the terms and provisions of this Agreement are invalid
or unenforceable, such terms or provisions shall not invalidate the rest of
the Agreement which shall remain in full force and effect as if such
invalidated or unenforceable terms or provisions had not been made a part
of this Agreement. In the event this Section 7.3 becomes operative, the
parties agree to attempt to negotiate a settlement that carries out the
economic intent of the term(s) found invalid or unenforceable.
7.4 FORCE MAJEURE: If circumstances beyond the control of the parties shall
temporarily make it impossible for either or both of them to perform their
agreements hereunder, then the principles of force majeure shall apply and
the right and obligations of the parties shall be temporarily suspended
during the force majeure period to the extent that such performance is
reasonably affected thereby. If such circumstances continue for 60 days,
the performing party may terminate the agreement.
7.5 NOTICES: All notices and other communications herein provided for shall be
sent by postage prepaid, via registered or certified mail or Federal
Express, return receipt requested, or delivered personally to the parties
at their respective addresses as set forth on the first page of this
Agreement or to such other address as either party shall give to the other
party in the manner provided herein for giving notice or by email or
facsimile to the appropriate contact listed in Section 7.11 below. Notice
by mail, email and facsimile shall be considered given on the date
received. Notice delivered personally shall be considered given at the time
it is delivered.
7.6 TRANSFER, ETC.: Neither party may assign, transfer or delegate this
Agreement or any such party's right and obligation hereunder to any third
party hereto except as provide in this subsection, without the consent of
the other party, which consent shall not be unreasonably withheld. Either
party may assign this Agreement in its entirety to a subsidiary or
affiliate so long as such party remains primarily liable for its
obligations hereunder. In addition, either party may assign this Agreement
in its entirety to any party that acquires a majority of such party's stock
or substantially all of such party's assets relating to that portion of
such party's business that is related to the subject of this Agreement. Any
attempted assigned, delegation, or transfer in contravention of this
subsection shall be null and void.
7.7 SUCCESSORS AND PERMITTED ASSIGNS: This Agreement shall inure to the benefit
of and be binding upon each of the parties hereto and their respective
successors and permitted assigns.
7.8 COMPLETE AGREEMENT: This Agreement contains the whole agreement between the
parties concerning the subject matter hereof and there are no collateral or
precedent representations, agreements, or conditions not specifically set
forth herein. Any modification or amendment of any provision of this
Agreement must be in writing, signed by the parties hereto and dated
subsequent to the date thereof.
7.9 LAWS GOVERNING AGREEMENT: The validity of this Agreement and the rights,
obligations, and relations of the parties hereunder shall be construed and
determined under and in accordance with the laws of the State of Arizona.
Any dispute arising hereunder will be decided binding arbitration by a
panel of three arbitrators (one selected by each party, and the third
arbitrator selected by the first two arbitrators) under the rules of the
American Arbitration Association in Phoenix, Arizona.
7.10 NO THIRD PARTY BENEFICIARIES: The provisions of this Agreement are solely
for the benefit of the parties hereto, and not for the benefit of any other
person, persons, or legal entities.
7.11 CONTACTS: The initial principal contacts for notices under this Agreement
shall be as follows:
Administrative/Business Contact: John Grustafson Harrison Paist
Engineering David Krider
PR/Marketing Gary Manton
IN WITNESS WHEREOF, the initial contacts for notices under this Agreement shall
be as follows:
ACCRUE SOFTWARE, INC. VISUALIZE, INC.
By: /s/ GREGORY C. WALKER By: /s/ GARY MANTON
Name: Gregory C. Walker Name: Gary Manton
Title: CFO Title: VP Marketing
"Product" for the purposes of this Agreement is defined as the following:
VantagePoint(TM) 4.2 consisting of the set of software and documentation
components necessary to integrate VantagePoint(TM) 4.2 into Application. These
include the following:
- Runtime.class files for redistribution with Application and the output
of Application created by end-users.
- Javadoc generated HTML.API documentation.
- VantagePoint(TM) 4.2 Manual and Tutorial.
- Use of developer key (which unlocks the functionality of the library)
for the term of the Agreement. The developer key remains the exclusive
property of Visualize, and may not be transferred or disclosed to a
third party without written permission from Visualize, unless such
disclosure is necessary to implement the intent and purpose of this
Except as noted below, Accrue will pay [*] from the sale of Application, subject
to [*]. Accrue will not pay royalties for services provided to end users in
respect of the Application (including maintenance and support services, but
excluding upgrade fees paid by customers for Maintenance Releases and Product
Releases) or trial licenses to an unlimited number of end users. Accrue will pay
[*]. Royalties will in no event [*].
* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
The Application is defined to be Accrue Insight, a web analysis tool enabling
analysis of Web site information and other data integrated into the Insight data