TANTAU SOFTWARE INC.
SOFTWARE LICENSE AND SERVICES AGREEMENT
This Master Software License and Services Agreement (the "AGREEMENT") is
executed as of the 30th day of June, 2000 (the "EFFECTIVE DATE") by and between
Tantau Software, Inc. with its principal place of business at 108 Wild S. Basin
Road, Suite 110, Austin, Texas 78746 ("TANTAU") and Accrue Software, Inc. with
its principal place of business at 48634 Milmont Drive, Fremont, CA.("CLIENT").
1. DEFINITIONS
1.1 "INFOCHARGER PRODUCT" means Tantau's InfoCharger product acquired by Client
from Tantau pursuant to the Asset Purchase Agreement, and all improvements,
enhancements and successors thereto.
1.2 LICENSED PRODUCT(s) "Licensed Product(s)" means the version of the Tantau
software program set forth on the applicable Order Form attached hereto as
part of Exhibit A in object code format, together with user guides and
manuals ("DOCUMENTATION") provided to Client by Tantau, including Updates
of such software programs and Documentation that may be provided by Tantau
to Client from time to time during the term hereof pursuant to Section 5.1
below.
1.3 "TECHNICAL SUPPORT" means services provided by Tantau in support and/or
maintenance of Client's use of the Licensed Product(s) as further described
in Section 5 and Exhibit B below.
1.4 "UPDATES" means error corrections, bug fixes, patches and work arounds to
the Licensed Product(s).
1.5 "Asset Purchase Agreement" means the Asset Purchase Agreement between
Tantau and Client executed concurrently herewith.
2. GRANT OF LICENSE
Subject to the terms of this Agreement, Tantau grants to Client a
worldwide, royalty-free, nonexclusive license (the "LICENSE") to use,
modify, sell, distribute and sublicense the LICENSED PRODUCTS in
conjunction with the InfoCharger Product. Except as expressly set forth
herein, Client has no right to receive, use or examine any source code or
design documentation relating to the Licensed Product(s). Sublicenses by
the Client will contain substantially equivalent restrictions and
confidentiality as contained in Sections 4 and 11.1 of this agreement.
Tantau acknowledges and agrees that the term of sublicenses granted by the
Client may be perpetual.
At Tantau's written request, but no more than once annually, Client shall
furnish Tantau with a signed report (a) verifying that the Licensed
Product(s) are being used pursuant to the provisions of this Agreement.
Tantau shall furthermore have the right, but no more than once annually, to
appoint an independent outside auditor to inspect Client's facilities to
verify information contained in such report and to verify compliance with
the terms and conditions of this Agreement and the Order Form.
This license is granted for an initial period of two (2) years from the
closing date of the Asset Purchase Agreement.
3. OWNERSHIP
As between the parties, Tantau retains all title to and ownership of and
all proprietary rights with respect to the Licensed Product(s) and all
copies, portions and modifications (by whomever made) thereof. The License
does not constitute a sale of the Licensed Product(s) or any portion or
copy thereof.
4. RESTRICTIONS
Client must reproduce and include the copyright notice and any other
notices that appear on the original Program on any copies and any media
therefor. Client shall not (and shall not authorize any third party) to (a)
decompile, disassemble, or otherwise reverse engineer or attempt to
reconstruct or discover any source code or underlying ideas or algorithms
or file formats or programming or interoperability interfaces of the
Licensed Product(s) or of any files contained in the Licensed Product(s) by
any means whatsoever, (b) remove any product identification, copyright or
other notices, or (c) disseminate performance information or analysis
(including, without limitation, benchmarks) relating to the Licensed
Product(s), except as reasonably necessary in connection with the marketing
and sale of the Licensed Product in conjunction with the InfoCharger
Product.
In addition, Client is restricted from selling, distributing and using the
Licensed Product(s), herein, other than in conjunction with the InfoCharger
Product. The parties acknowledge that the InfoCharger Product may be sold
in conjunction with other products or services offered by Client or its
distributors, resellers and agents. Client may not sell or distribute the
Licensed Product(s) as a separate unit. Client may not create any
derivative works from the Licensed Product(s) other than in connection with
the integration of the Licensed Product(s) with the InfoCharger Product.
5. TECHNICAL SUPPORT (MAINTENANCE)
5.1 TECHNICAL SUPPORT. Following the expiration of the warranty period set
forth in Section 9 below, Tantau shall provide the technical support set
forth in Exhibit B for a period of 2 years from the closing date of the
Asset Purchase Agreement. Clients that are under contract with TANTAU
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Software for Technical Support (Maintenance) will receive product
enhancements as made generally available as well as the error corrections
and bug fixes.
The support defined in Exhibit B will be provided to Client for a period of
2 years from the date of closing of the Asset Purchase Agreement. Client
will provide all required support and interface to their enduser. Client
will have one (1) interface to TANTAU's Customer Support organization.
5.2 Consulting and Training. Tantau shall provide consulting and training
services as mutually agreed by the parties and pursuant to mutually agreed
upon terms and conditions. All consulting services shall be rendered and
invoiced on a time-and-materials basis at a mutually agreed upon rate.
5.3 Incidental Expenses. Client shall reimburse Tantau for actual, reasonable
travel and out-of-pocket expenses incurred by Tantau in connection with
on-site services requested by Client.
6. PAYMENT PROVISIONS AND REPORTING
License fees are set forth in Exhibit A hereto and are exclusive of
shipping, taxes (including withholding taxes), duties and the like, which
shall be the responsibility of and paid by Client. If not otherwise
specified, applicable License fees are due and payable within thirty (30)
days of the closing date of the Asset Purchase Agreement. Technical Support
fees, if any, shall be payable annually in advance, thirty (30) days from
the renewal date; such fees will be those in effect at the beginning of the
appropriate period of time for which the fees are being paid. Late payments
will bear interest at the rate of 1.5% per month to cover TANTAU's costs of
collection as well as interest, or, if lower, the maximum rate allowed by
law. Clients that are under a maintenance agreement will be automatically
renewed and invoiced 30 days prior to end of maintenance year. This
maintenance automatic renewal will be for two periods of 12 months each.
Cancellation by client of this renewal must be received before the end of
the maintenance period that is under contract.
7. TERMS AND TERMINATION [NEEDS WORK]
7.1 Term. This Agreement shall become effective as of the date of closing of
the Asset Purchase Agreement. This Agreement shall automatically terminate,
and Client shall have no obligation to pay the license fee or any other
fees under this Agreement, in the event that the Asset Purchase Agreement
is terminated prior to the date of closing of the Asset Purchase Agreement.
Client shall have the right to renew this Agreement to obtain the license
rights granted under Section 2 for Tantau's most current version of the
Licensed Products for additional one (1) year periods upon the expiration
of this Agreement or any such renewal term at a license fee that shall be
no more than what Tantau charges any other customer. Tantau's obligation to
provide Technical Support as set forth in Section 5 shall automatically
renew for additional one year periods upon Client's payment of Tantau's
then-current Technical Support fees, unless cancelled by Client by
providing written notice to Tantau prior to the expiration of the
then-current Technical Support period. Either party may terminate this
Agreement in the event that other party does not cure any material breach
of any provision of this Agreement within thirty (30) days (fifteen (15)
days in the event of nonpayment) of receiving written notice of such breach
from the other party; provided, however, that upon any such termination by
Tantau, Tantau may exercise any rights and remedies provided by contract or
at law or equity in order to seek monetary compensation or damages or an
injunction for purposes of seeking to enjoin use of any license under this
Agreement for uses not permitted under this Agreement, provided further,
however, any such termination shall not modify or shorten the term of any
license granted by Tantau to Client under this Agreement.. Tantau may
terminate this Agreement by written notice to Client if Client becomes
insolvent, becomes the subject of any voluntary or involuntary proceeding
under the U.S. Bankruptcy Code or state insolvency proceeding and such
proceeding is not terminated within sixty (60) days of its commencement or
ceases to be actively engaged in business.
7.2 Effect of Termination. Upon the expiration of this Agreement, Client shall
immediately cease further distribution or sale of the Licensed Product(s)
and return or destroy all copies of the Licensed Product(s) and all
portions thereof (whether or not modified or incorporated with or into
other software) and so certify to Tantau; provided, however, that the
termination or expiration of this Agreement shall not affect any
sublicenses to the Licensed Products granted by Client in accordance with
this Agreement prior to such termination or expiration. The parties' rights
and obligations under Sections 6, 7, 8, 9, 10 and 11 shall survive the
termination of this Agreement.
8. PATENT AND COPYRIGHT INFRINGEMENT
Tantau will defend any action brought by a third party against Client to
the extent that such action is based on a claim that the Licensed
Product(s) or any part thereof used within the scope of the License granted
herein, infringe a copyright, trade secret or United States patent. Tantau
will bear the expense of such defense and pay any damages and attorneys
fees awarded by a court of competent jurisdiction to the extent
attributable to such claim, provided that: (a) Client notifies Tantau
promptly in writing of such claim, (b) Tantau has sole control of the
defense and all related settlement negotiations; and (c) Client provides
Tantau with assistance, information and authority required to perform
Tantau's obligations under this Section 8. Tantau shall have no liability
for any claim of infringement based upon (i) use of a superceded or altered
release of Licensed Product(s) (unless the alteration was made or
authorized by Tantau) if the infringement would have been avoided through
the use of a current unaltered release of the Licensed Product(s) which
Tantau provided to Client free of charge, (ii) use of the Licensed
Product(s) combined with other products, processes or materials where the
alleged infringement arises solely from such combination, or (iii) use not
in accordance with this Agreement. If the Licensed Product(s) is or in
Tantau's judgment may become the subject of any claim of intellectual
property infringement, or if a court determines that the Programs infringes
any intellectual property right then Tantau may at its option and expense
either (i) procure for Client the right under such intellectual property
right to use the Program; or (ii) replace the Program with other suitable
software: or (iii) modify the Program to make the software noninfringing;
or, if (i), (ii) and (iii) are commercially impractical, (iv) remove the
Program and refund a pro rata portion of the license fees paid by Client
for such Program, less an amount for use calculated over a five year period
using straight line depreciation. THE FOREGOING CONSTITUTES TANTAU'S SOLE
LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT AND IS IN LIEU OF ANY
WARRANTIES OF NONINFRINGEMENT, WHICH ARE HEREBY DISCLAIMED.
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9. LIMITED WARRANTY AND DISCLAIMER
Subject to the conditions and limitations on liability stated herein,
Tantau warrants for a period of thirty (30) days from the delivery of the
initial copy of each type of Program hereunder that such Program, as so
delivered, will materially conform to the then-current Documentation. In
addition, Tantau warrants the media on which Licensed Product(s) are
contained will be free of defects under normal use for a period of thirty
(30) days following delivery thereof. This warranty covers only problems
reported to Tantau during the warranty period. ANY LIABILITY OF TANTAU WITH
RESPECT TO THE PROGRAM(S) OR THE PERFORMANCE THEREOF OR DEFECTS THEREIN
UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE
LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE
AS A REMEDY OR, IN TANTAU'S OPINION, IMPRACTICAL, TO REFUND OF THE LICENSEE
FEE AND TERMINATION OF THE LICENSE. EXCEPT FOR THE FOREGOING, THE
PROGRAM(S) ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, TANTAU DOES NOT WARRANT,
GUARANTEE, OR MAKE ANY REPRESENTATIONS THAT THE PROGRAM(S) WILL BE FREE
FROM BUGS OR THAT USE OF PROGRAM(S) WILL BE UNINTERRUPTED OR REGARDING THE
USE, OR THE RESULTS OF THE USE, OF THE PROGRAM(S) OR DOCUMENTATION IN TERMS
OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. Client understands that
Tantau is not responsible for and will have no liability for hardware,
software, or other items or any services provided by any persons other than
Tantau.
10. LIMITATION OF REMEDIES AND DAMAGES; FORCE MAJEURE
EXCEPT FOR BODILY INJURY OF A PERSON, TANTAU SHALL NOT BE RESPONSIBLE OR
LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR
INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR
(EXCEPT FOR RETURN OF AMOUNTS PAID TO TANTAU FOR UNDELIVERED OR RETURNED
NONCONFORMING PROGRAM(S)) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES
OR TECHNOLOGY; (ii) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS; OR
(iii) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. CLIENT SHALL NOT BE
RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES
INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS.
11. MISCELLANEOUS
11.1 Confidentiality. Except as expressly permitted in this Agreement, Client
will not use or disclose any Licensed Product(s), idea, algorithm or
information except to the extent Client can document that it is generally
available for use and disclosure by the public without any charge or
license. Client will not disclose any pricing or pricing related
information to any third parties, such as pricing outlined in Exhibit A.
Tantau shall not disclose to any third party any information provided by
Client to Tantau which is marked confidential or proprietary or would
reasonably be understood to be confidential or proprietary. The parties
recognize and agree that there is no adequate remedy at law for breach of
this Section 11.1, that such a breach would irreparably harm Tantau or
Client and that each party is entitled to equitable relief (including,
without limitation, injunctions) with respect to any such breach or
potential breach in addition to any other remedies. The obligations of this
Section 11.1 shall survive the expiration or termination of this Agreement.
11.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
TEXAS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES AND WITHOUT REGARD TO
THE 1980 UN CONVENTION ON THE INTERNATIONAL SALE OF GOODS. THIS AGREEMENT
SHALL BE DEEMED TO BE EXECUTED IN AUSTIN, TEXAS.
11.3 Arbitration. If Client is not a U.S. corporation or entity, any dispute or
claim arising out of or related to this contract, or the interpretation,
making, performance, breach or termination thereof, shall be finally
settled by binding arbitration in Austin, Texas (or such other location as
is mutually agreed upon in writing by the parties) under the American
Arbitration Association International Arbitration Rules, by one arbitrator
appointed in accordance with said Rules, provided that at the request of
either party, the arbitration shall be conducted by three arbitrators with
each party selecting one arbitrator and the third arbitrator selected in
accordance with the Rules. Judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. The
arbitrator shall apply Texas law to the merits of any dispute or claim,
without reference to rules of conflict of law or the 1980 UN Convention on
the International Sale of Goods. The parties may apply to any court of
competent jurisdiction for a temporary restraining order, preliminary or
permanent injunction, or other interim or conservatory relief, as
necessary, without breach of this arbitration agreement and without any
abridgment of the powers of the arbitrators. At the request of either
party, the arbitrators will enter an appropriate protective order to
maintain the confidentiality of information produced or exchanged in the
course of the arbitration proceedings. The parties agree that, any
provision of applicable law notwithstanding, they will not request, and the
arbitrators shall have no authority to award, punitive or exemplary damages
against any party. The costs of the arbitration, including administrative
and arbitrator's fees, shall be shared equally by the parties. Each party
shall bear the cost of its own attorneys' fees and expert witness fees. The
arbitral proceedings and all pleadings and written evidence shall be in the
English language. Any written evidence originally in another language shall
be submitted in English translation accompanied by the original or true
copy thereof.
11.4 Export of Licensed Product(s). Client will not remove or export from the
United States or re-export from anywhere any part of the Licensed
Product(s) or any direct product thereof except in compliance with and with
all licenses and approvals required under applicable export laws and
regulations.
11.5 Assignment. Neither this Agreement nor any License granted hereunder is
assignable or transferable by Client without the prior written consent of
Tantau; any attempt to do so shall be void; provided, however, that Client
may assign or transfer this Agreement, in whole, in connection with a
merger, acquisition or sale of assets. Tantau may assign this Agreement
without consent from Client in connection with a merger, acquisition or
sale of assets.
11.6 Severability. In the event any provision of this Agreement or portion
thereof is held to be invalid or unenforceable then such provision shall be
deemed stricken or modified to the minimum extent necessary and the
remaining provisions of this Agreement shall remain in full force and
effect.
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11.7 Waiver and Amendment. The waiver by either party of any default or breach
of this Agreement shall not constitute a waiver of any other or subsequent
default or breach.
11.8 Entire Agreement. Both parties agree that this Agreement and the Exhibits
hereto and any duly executed Schedules constitute the complete and
exclusive statement of the mutual understanding of the parties and
supersede and cancel all previous written and oral agreements and
communications relating to the subject matter hereof. Any waivers or
amendments shall be effective only if made in writing by non-preprinted
agreements clearly understood by both parties to be an amendment or waiver
and signed by a duly authorized representative of each party. In the event
of a conflict between the terms of this Agreement and any Schedule the
terms and conditions of this Agreement shall apply.
Tantau Software, Inc. Client:
----------------------------
By: By:
-------------------------------- --------------------------------
Name: Name:
------------------------------ ------------------------------
Title: Title:
----------------------------- -----------------------------
Date: Date:
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[TANTAU LOGO]
EXHIBIT A
ORDER FORM
BILL TO: SHIP TO:
(if different from
billing address)
CUSTOMER NAME: ACCRUE SOFTWARE, INC. CUSTOMER NAME:
ADDRESS: 48634 MILMONT DRIVE ADDRESS:
CITY, STATE & ZIP FREMONT, CA, 94538 CITY, STATE & ZIP
CONTACT NAME: GREG WALKER
PHONE # CUSTOMER REFERENCE:
E-MAIL ADDRESS Greg.Walker@accrue.com
PO #:
WE HEREBY ORDER THE FOLLOWING PRODUCTS ACCORDING TO THE CONTRACTUAL TERMS AND
CONDITIONS OF THE SOFTWARE LICENSE AND SERVICES AGREEMENT.
Software License and Services Agreement - Tantau Software Inc. and Accrue Software Inc.
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