{"id":42622,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/oem-object-code-license-agreement-rsa-data-security-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"oem-object-code-license-agreement-rsa-data-security-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/oem-object-code-license-agreement-rsa-data-security-inc-and.html","title":{"rendered":"OEM Object Code License Agreement &#8211; RSA Data Security Inc. and Tumbleweek Software Inc."},"content":{"rendered":"<pre>           Confidential treatment has been requested with respect to certain\n     information contained in this document.  Confidential portions have been\n     omitted from the public filing and have been filed separately with the\n     Securities and Exchange Commission.\n\n\n                              RSA DATA SECURITY, INC.\n                           100 MARINE PARKWAY, SUITE 500\n                               REDWOOD CITY, CA 94065\n\n                         OEM OBJECT CODE LICENSE AGREEMENT\n\n\n       This OEM OBJECT CODE LICENSE AGREEMENT (\"Agreement\"), effective as of \nthe later date of execution (\"Effective Date\"), is entered into by and \nbetween RSA Data Security, Inc., a Delaware corporation (\"RSA\"), having a \nprincipal address at 100 Marine Parkway, Suite 500, Redwood City, California \n94065, and the entity named below (\"OEM\"), having a principal address as set \nforth below.\n\nOEM:\n\nTumbleweed Software, a California corporation\n-----------------------------------------------------------------------\n(Name and jurisdiction of incorporation)\n\n2010 Broadway, Redwood City, CA 94063\n-----------------------------------------------------------------------\n(Address)\n\nNotices to Contact:  Bill Bradford,\n                     ---------------------------------------------------\n                     Vice President Strategic Relationships\n                     ---------------------------------------------------\n                     (650) 569-3687\n                     ---------------------------------------------------\n                     (Name, Title and Telephone)\n\nRSA SOFTWARE:\n\nBSAFE-Registered Trademark- 3.0, consisting of the following algorithms: RSA, \nDES, DESX., 3DES, RC2, RC4, RC5, MD, MD2, MD5, SHA, DSA, Diffie-Hellman; \nTIPEM-Registered Trademark- 2.0, consisting of the following algorithms: RSA, \nDES, 3DES, RC2, RC5, MD5, SHA, JSAFE-Registered Trademark- 1.0, consisting of \nthe following algorithms: RSA, DES, 3DES, RC2, RC4, RC5, MD5, SHA, \nDiffie-Hellman.  (The RSA Software provided by RSA on the Windows 95\/NT \nplatform.)\n\nOEM may obtain copies of the RSA Software on other platforms as may be \ngenerally available at RSA's then current published price list, each \nadditional platform version of which will be covered RSA Software under this \nAgreement.\n\n           Confidential treatment has been requested with respect to certain\n     information contained in this document.  Confidential portions have been\n     omitted from the public filing and have been filed separately with the\n     Securities and Exchange Commission.\n\n\n\n\nDELIVERY OF RSA SOFTWARE TO OEM:\n\nOne (1) copy of each of the Object Code and the User Manual for the RSA \nSoftware identified above:\n\n       [X]    has been received by OEM, or\n\n       [ ]    will be delivered by RSA as soon as practicable, but not later\n              than ten (10) business days after the date of execution of this\n              Agreement.\n\nBUNDLED PRODUCT:\n\nOEM's software products currently known as 1) \"Posta Server\" (\"Server Bundled \nProduct\") which holds and forwards Posta-generated documents to Posta \nRecipient Client, 2) \"Posta Desktop Client,\" which encrypts and signs \ndocuments being sent to Server Bundled Product, 3) \"Posta Recipient Client,\" \nwhich decrypts documents and validates signatures.  The Posta Desktop Client \nand the Posta Recipient Client are referred to collectively as the \"Client \nBundled Products.\"\n\nFIELD OF USE:\n\nSolely for privacy and authentication of communications between the Server \nBundled Product and the Client Bundled Products within a closed system, \nJSAFE-Registered Trademark- v.1.0 shall perform decryption and authentication \nfunctions only.\n\nINITIAL MAINTENANCE AND SUPPORT:\n\n       [X]    Yes           [  ]    No\n\n\n1.     DEFINITIONS\n       -----------\n\n       The following terms when used in this Agreement shall have the \nfollowing meanings:\n\n       1.1    \"Bundled Product(s)\" means one or more of the products or \nproduct groups described above which has been or will be developed by OEM and \nwhich incorporates in the OEM Product in any manner any portio of the RSA \nSoftware.  A Bundled Product must represent a significant functional and \nvalue enhancement to the RSA Software such that the primary reason for an End \nUser Customer to license such Bundled Product is other than the right to \nreceive a license to the functionality of the RSA Software included in the \nBundled Product.\n\n       1.2    \"Distributor\" means a dealer or distributor in the business of \nreselling Bundled Products to End User Customers, directly or through one or \nmore Distributors, by virtue of \n\n\n                                       2\n\n\nauthority of OEM.  Bundled Products resold by a Distributor shall bear OEM's \ntrademarks and service marks and shall not be privately labeled by such \nDistributor or other parties.  A Distributor shall have no right to modify \nany part of the Bundled Products.  Notwithstanding the foregoing, OEM may \nauthorize a Distributor to co-brand or private label the Bundled Products for \nredistribution to End User Customers by such Distributor; provided that OEM \nindicates in it licensing reports delivered pursuant to Section 3.7 the \nidentity of any Distributor so authorized and the name of the co-branded or \nprivate-labeled Bundled Products.  It is understood and agreed that a \nDistributor authorized to co-brand or private label a Bundled Product may not \notherwise modify the Bundled Product or incorporate it into another product \nfor redistribution.\n\n       1.3    \"End User Customer\" mans a person or entity licensing RSA \nSoftware as part of a Bundled Product from OEM, OEM Sublicensee, Corporate \nSublicensee or a Distributor solely for personal or internet use and whose \nprimary purpose in licensing the Bundled Product is other than to license, \nassign or otherwise transfer such Bundled Product to any other person or \nentity.\n\n       1.4    \"Field of Use\" means a use, method of incorporation or product \npurpose limitation with respect to the RSA Software for a Bundled Product \nspecified above for such Bundled Product.\n\n       1.5    \"RSA Software\" means RSA's proprietary software identified \nabove (and including only those algorithms listed therewith), as further \ndescribed in the User Manual(s) associated therewith.\n\n       1.6    \"OEM Product\" means any product developed by OEM into which the \nRSA Software is to be incorporated to create a Bundled Product.\n\n       1.7    \"Object Code\" means the RSA Software in machine-readable, \ncompiled object code or in the case RSA Software includes JSAFE, in Java byte \ncode form.\n\n       1.8    \"Source Code\" means the mnemonic, high level statement versions \nof the RSA Software written in the source language used by programmers.\n\n       1.9    \"Territory\" means worldwide, subject to Section 10.7.\n\n       1.10   \"User Manual\" means the most current version of the user manual \nand\/or reference manual customarily supplied by RSA to OEMs who license the \nObject Code.\n\n2.     LICENSES.\n       --------\n\n       2.1    LICENSE GRANT.  During the term of this Agreement and within \nthe Field of Use limitation (if any), RSA hereby grants OEM a non-exclusive, \nnon-transferable license to:\n\n\n                                       3\n\n\n              2.1.1  (i) incorporate the Object Code into an OEM Product to \ncreate a Bundled Product; and (ii) reproduce, have reproduced, and license or \notherwise distribute the Object Code as incorporated in a Bundled Product in \nthe Territory.\n\n              2.1.2  sublicense its rights granted in Section 2.1.1 with \nrespect to the RSA Object Code as part of the Bundled Products to OEM's \nlicensees in the Territory (each, an \"OEM Sublicensee\") for the use only in \ntheir own products in which substantial functionality or value is added to \nthe Bundled Products so that such products are not a substitute for the RSA \nSoftware (collectively, \"Sublicensee Products\").\n\n              2.1.3  sublicense its rights granted in Section 1.1 to \ndistribute the RSA Object Code as part of the Client Bundled Products to \nOEM's End User Customers of the Bundled Products in the Territory who are \neither (i) Posta Service Providers (as defined below), or (ii) corporate End \nUser Customers operating a service for internal business purposes using the \nBundled Products (collectively, \"Corporate Sublicensees\") and who in each \ncase may make minor changes to the user interfaces in the Bundled Products \nbut no substantial changes in functionality (collectively, \"Corporate \nSublicensee Products\"), provided that only the client components of such \nCorporate Sublicensee Products are licensed or otherwise distributed and only \nfor use in obtaining the Posta Service or supporting the Corporate \nSublicensee's's service for internal business purposes, and not as commercial \nproducts.\n\n              2.1.4  (i) use the User Manual to support End User Customers; \n(ii) modify and incorporate portions of the User Manual in Bundled Product \ndocumentation; and (iii) reproduce, have reproduced and distribute in the \nTerritory such portions of the User Manual as incorporated in Bundled Product \ndocumentation.\n\n       2.2    LIMITATIONS ON LICENSES.  The licenses granted in Section 2.1 \nare further limited as follows:\n\n              2.2.1  LIMITATION ON DISTRIBUTEES.  The RSA Software shall bel \nlicensed or otherwise distributed only to (i) Distributors, (ii) End User \nCustomers, (iii) OEM Sublicensees, and (iv) Corporate Sublicensees.\n\n              2.2.2  NO EXPOSURE OF RSA SOFTWARE.  The RSA Software may only \nbe accessed by the functionality of the Bundled Product in which it is \nincluded and a Bundled Product shall not make the RSA Object Code directly \naccessible to End User Customers or to products other than the Bundled \nProduct or otherwise expose a cryptographic API.\n\n              2.2.3  NO STANDALONE PRODUCT.  OEM may not in any way sell, \nlease, rent, license, sublicense or otherwise distribute the RSA Software or \nany part thereof or the right to use the RSA Software or any part thereof to \nany person or entity except as part of a Bundled Product.\n\n\n                                       4\n\n\n              2.2.4  PROHIBITED ACTIVITIES; NO SOURCE CODE.  OEM shall not \nmodify, translate, reverse engineer, decompile, or disassemble the RSA \nSoftware or any part thereof or otherwise attempt to derive Source Code \ntherefrom, and shall not authorize any third party to do any of the \nforegoing.  Nothing in this Agreement grants OEM any rights, license or \ninterest with respect to Source Code.\n\n              2.2.5  RSA ROOT KEYS.  OEM may include the RSA\/VeriSign, Inc. \nroot keys (the \"RSA Root Keys\") in any Bundled Product in which a hierarchy \nroot key is utilized or incorporated, provided that any such incorporation \nmust make the RSA Root Keys functional within the Bundled Products and as \naccessible as any other hierarchy root key within the Bundled Product.\n\n              2.2.6  CONDITION OF SUBLICENSE GRANT.  All sublicenses \npermitted under Sections 2.1.2 and 2.1.3 shall be subject to all of the \nfollowing conditions:  (i) all such sublicenses will be granted in a signed \nwriting containing at a minimum substantially all of the restrictions set \nforth in Exhibit \"A\" attached hereto, and RSA shall be an express third party \nbeneficiary of the such sublicense agreements; (ii) OEM shall use its best \nefforts to enforce the provisions of such sublicense as they relate to RSA \nand the RSA Software; (iii) the Sublicensee Products shall include \nsubstantial added function and value on top of the Bundled Products; (iv) the \nOEM Sublicensees and Corporate Sublicensees to whom such rights are \nsublicensed pursuant to Sections 2.1.2 and 2.1.3 shall have no further right \nto sublicense such rights; (v) any rights of any OEM Sublicenses or Corporate \nSublicensee sublicensed by OEM shall survive only so long as both this \nAgreement and the sublicense between OEM and such OEM Sublicensee or \nCorporate Sublicensee remain in effect; and (vi) OEM shall identify all OEM \nSublicensees and Corporate Sublicensees in its licensing reports delivered \npursuant to Section 3.7.\n\n       2.3    TITLE.  Except for the limited licenses expressly granted in \nSection 2.1 and as further limited by Section 2.2, RSA does not by this \nAgreement grant to OEM any right, title or ownership interest in and to the \nRSA Software or in any related patents, trademarks, copyrights or proprietary \nor trade secret rights.  RSA receives no right, title or ownership interest \nin the OEM product by way of this Agreement.\n\n3.     LICENSE FEES; DELIVERY.\n       ----------------------\n\n       3.1    LICENSE FEES.  In consideration of RSA's grant to OEM of the \nlimited license rights hereunder, OEM shall pay to RSA license fees in the \namounts set forth below (the \"License Fees\"):\n\n\n                                       5\n\n\n              3.1.1  ANNUAL LICENSE FEE.  OEM shall pay RSA an annual License \nFee during the term of this Agreement in the amount of \n[                 *                 ], for unlimited distribution of Client \nBundled Products and Server Bundled Product.  Such amount shall be due and \npayable for the first year upon execution of this Agreement, and for each \nsubsequent year on the anniversary of the Effective Date of this Agreement.\n\n              3.1.2  PERCENTAGE OF PRODUCT REVENUE LICENSE FEE.  In addition \nto the License Fees set forth above, OEM shall pay to RSA as License Fees an \namount equal to [    *    ] of all Product Revenue.\n\n              3.1.3  PERCENTAGE OF SERVICE REVENUE LICENSE FEE.  The parties \nacknowledge and agree that OEM's licensees of the Bundled Products may use \nthe Bundled Products, Sublicensee Products or Corporation Sublicensee \nProducts to provide an electronic document distribution service to third \nparties (the \"Posta Service\").  Under OEM's current business model, such \nlicensees (\"Posta Service Providers') will pay OEM a percentage of the \ntransaction and\/or subscription revenue from the Posta Service and may pay \nOEM an initial license fee for the right to offer the Posta Service.  Based \nupon the foregoing, and in addition to the License Fees set forth above, OEM \nshall pay to RSA as License Fees an amount equal to [          *           ] \nof all Service Revenue.  \"Service Revenue\" means the gross amount of all \ncash, in-kind or other consideration receivable by OEM from Posta Service \nProviders at any time in connection with their providing the Posta Service, \nwhether as a percentage of transaction and\/or subscription revenue, as an \ninitial license fee, or otherwise.\n\n              3.1.4  CHANGE IN BUSINESS MODEL.  The License Fees set forth in \nSection 3.1.3 are based upon OEM's business model described above.  In the \nevent OEM changes its business model, OEM agrees to negotiate in good faith \nfor alternative License Fees that result in substantially the same payments \nto RSA for substantially the same value to OEM as those provided for in \nSection 3.1.3.\n\n              3.1.5  [              *                ]\n\n       3.2    TAXES.  All taxes, duties, fees and other governmental charges \nof any kind (including sales and use taxes, but excluding taxes based on the \ngross revenues or net income of RSA) which are imposed by or under the \nauthority of any government or any political subdivision thereof on the \nLicense Fees or any aspect of this Agreement shall be borne by OEM and shall \nnot be considered a part of, a deduction from, or an offset against License \nFees.\n\n---------------------\n\n       *      Confidential treatment has been requested with respect to \ncertain information contained in this document.  Confidential portions have \nbeen ommited from the public filing and have been filed separately with the \nSecurities and Exchange Commission.\n\n\n                                       6\n\n\n       3.3    PREPAYMENT OF LICENSE FEES.  OEM shall prepay License Fees in \nthe amount  [                     *               ] upon execution of this \nAgreement.  In no event shall such prepayment be refundable.  All of such \nprepaid amounts may be offset against License Fees accrued under Section \n3.1.2 at a rate of [                  *                 ] of License Fees \naccrued under Sections 3.1.2 and 3.1.3 until the prepayments are exhausted.  \nOEM shall show the application of prepaid License Fees in the licensing \nreports provided to RSA pursuant to Section 3.7.\n\n       3.4    USE OF PRODUCT REVENUE.  \"Product Revenue\" means the gross \namount of all cash, in-kind or other consideration receivable by OEM at any \ntime in consideration of the licensing or other distribution of the Bundled \nProducts, whether as a sale, license, use, transaction, or service fee based \non or involving the Bundled Product, but excluding any amounts receivable by \nOEM for standard maintenance and support fees which are not intended to avoid \nany payment of royalties under this Agreement, sales and use taxes, shipping, \ninsurance and duties, and reduced by all discounts or refunds granted in the \nordinary course of business, and excluding Service Revenue.  For the purposes \nof determining Product Revenue, the amount of in-kind or other non-cash \nconsideration receivable by OEM shall be deemed to have a dollar value equal \nto the standard price (as listed in OEM's published price schedule on the \ndate of the grant of the license or the sale in question) for such Bundled \nProduct, less all cash paid.  For purposes of this Section 3.4 and Section \n3.1.3, in-kind or non-cash consideration does not include the standard \nmarketing consideration that OEM requires in its standard license agreement \nfor the Bundled Products under OEM's standard pricing.\n\n       3.5    TERMS OF PAYMENT.  License Fees payable under Section 3.1.2 \nshall accrue with respect to Bundled Products licensed or otherwise \ndistributed by OEM, OEM Sublicensees, Corporate Sublicensees or Distributors, \nas applicable, upon the date of invoice of the Bundled Product, Sublicensee \nProduct or Corporate Sublicensee Product, as applicable, to an End User \nCustomer or Distributor.  License Fees payable under Section 3.1.3 shall \naccrue upon the date the applicable Service Revenue is due and payable from \nPosta Service Providers to OEM.  Such License Fees shall be paid by OEM to \nthe attention of the Software Licensing Department at RSA's address set forth \nabove on or before the thirtieth (30th) day after the close of the calendar \nquarter during which the License Fees accrued.  A late payment penalty on any \nLicense Fees not paid when due shall be assessed at the rate of one percent \n(1%) per thirty (30) days, beginning on the day after the delayed License \nFees were due.\n\n       3.6    U.S. CURRENCY.  All payments hereunder shall be made in lawful \nUnited States currency and shall in no case be refundable.  If OEM receives \npayment in foreign currencies, the amount of its License Fees to RSA shall be \ncalculated using the closing exchange rate published \n\n---------------------\n       *      Confidential treatment has been requested with respect to \ncertain information contained in this document.  Confidential portions have \nbeen ommited from the public filing and have been filed separately with the \nSecurities and Exchange Commission.\n\n\n                                       7\n\n\nin THE WALL STREET JOURNAL, Western Edition, on the last business day such \njournal is published in the calendar quarter immediately preceding the date \nof payment.\n\n       3.7    LICENSING REPORT.  A report in reasonably detailed form setting \nforth the calculation of License Fees due from OEM and signed by a reasonable \nofficer of OEM shall be delivered to RSA on or before the thirtieth (30th) \nday after the close of each calendar quarter during the term of this \nAgreement, regardless of whether License Fee payments are required to be made \npursuant to Section 3.5.  The report shall include, at a minimum, the \nfollowing information with respect to the relevant quarter:  (I) the total \nProduct Revenue invoiced to OEM Sublicensees, Corporate Sublicensees, \nDistributors and End User Customers; (iii) the total Service Revenue due and \npayable from Posta Service Providers' and (iii) total License Fees accrued.\n\n       3.8    AUDIT RIGHTS.  RSA shall have the right, at its sole cost and \nexpense, to have an independent certified public accountant conduct during \nnormal business hours and not more frequently than annually, an audit of the \nappropriate records of OEM to verify the amount of Product Revenue and \nService Revenue and OEM's calculation of License Fees.  If the License Fees \naccrued are different than those reported, OEM will be invoiced or credited \nfor the difference, as applicable.  Any additional License Fees, along with \nthe late payment penalty assessed in accordance with Section 3.5, shall be \npayable within thirty (30) days of such invoice.  If the deficiency in \nLicense Fees paid by OEM is greater than ten percent (10%) of the License \nFees reported by OEM for any quarter, OEM will pay the reasonable expenses \nassociated with such audit, in addition to the deficiency.\n\n       3.9    EVALUATION COPIES.  [INTENTIONALLY OMITTED.]\n              -----------------\n\n4.     LIMITED WARRANTY.\n       ----------------\n\n       4.1    LIMITED WARRANTY.  During the initial ninety (90)-day term of \nthis Agreement, RSA warrants that the RSA Software will operate in material \nconformance to RSA's published specifications for the RSA Software.  RSA does \nnot warrant that the RSA Software or any portion thereof is error-free.  \nOEM's exclusive remedy, and RSA's entire liability in tort, contract or \notherwise, shall be correction of any warranted nonconformity as provided in \nSection 4.2. This limited warranty and any obligations of RSA hereunder shall \nnot apply to any nonconformities caused by, and shall terminate immediately \nif OEM makes, any unauthorized modification to the RSA Software.\n\n       4.2    ERROR CORRECTION.  In the event OEM discovers an error in the \nRSA Software which causes the RSA Software not to operate in material \nconformance to RSA's published specifications therefor, OEM shall submit to \nRSA a written report describing such error in sufficient detail to permit RSA \nto reproduce such error.  Upon receipt of any such written report, RSA will \nuse its reasonable business judgment to classify a reported error as either:  \n(i) a \"Level 1 Severity\" error, meanding an error that causes the RSA \nSoftware to fail to operate in a material \n\n\n                                       8\n\n\nmanner or to produce materially incorrect results and for which there is no \nworkaround or only a difficult woraround; or (ii) a \"Level 2 Severity\" error, \nmeaning an error that produces a situation in which the RSA Software is \nusable but does not function in the most convenient or expeditious manner, \nand the use or value of the RSA Software suffers no material impact. RSA will \nacknowledge receipt of a conforming error report within two (2) business days \nand (A) will use its continuing best efforts to provide a correction for any \nLevel 1 Severity error to OEM as early as practicable; and (B) will use its \nreasonable efforts to include a correction for any Level 2 Severity error in \nthe next release of the RSA Software.\n\n       4.3    DISCLAIMER.  EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED \nIN THIS SECTION 4, THE RSA SOFTWARE IS PROVIDED \"AS IS\" WITHOUT ANY WARRANTY \nWHATSOEVER.   RSA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS \nTO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF \nMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF \nTHIRD PARTY RIGHTS. RSA DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY \nPERSON OTHER THAN OEM WITH RESPECT TO THE RSA SOFTWARE.  OEM SHALL NOT, AND \nSHALL TAKE ALL MEASURES NECESSARY TO INSURE THAT ITS AGENTS AND EMPLOYEES DO \nNOT, MAKE OR PASS THROUGH ANY SUCH WARRANTY ON BEHALF OF RSA TO ANY \nDISTRIBUTOR, END USER CUSTOMER OR OTHER THIRD PARTY.\n\n5.     ADDITIONAL OBLIGATIONS OF OEM.\n       -----------------------------\n\n       5.1    USE OF RSA \"LICENSE SEAL\".  OEM agrees to insert and maintain \nwithin Bundled Products and marketing materials therefor the RSA \"Licensee \nSeal\" from the \"Logo Usage Guide,\" which shall be delivered to OEM within ten \n(10) days of execution of this Agreement and is Incorporated herein by \nreference, as follows:\n\n              5.1.1  IN BUNDLED PRODUCTS.  OEM shall ensure display of the \nLicensee Seal within any Bundled Product such that users thereof are exposed \nto the Licensee Seal during normal operation of such Bundled Product.  In a \nsoftware Bundled Product, the Licensee Seal shall be featured in such Bundled \nProduct's startup splash screen (if any) and within security-related dialog \nwindows visible in the normal operation of the product (i.e., password dialog \nwindow).  In a hardware Bundled Product, the Licensee Seal shall be visible \non the panel of such Bundled Product most normally viewed by the user.\n\n              5.1.2  IN MARKETING MATERIALS.  OEM agrees to provide the \nLicensee Seal within related marketing materials that reference any security \nfeatures of the Bundled Products, including but not limited to printed and \nelectronic data sheets, direct mail, user documentation, product packaging \nand advertisements for the Bundled Product.\n\n\n                                       9\n\n\n       5.2    BUNDLED PRODUCT MARKETING.  OEM is authorized to represent to \nDistributors and End User Customers only such facts about the RSA Software as \nRSA states in its published product descriptions, advertising and promotional \nmaterials or as may be stated in other non-confidential written material \nfurnished by RSA.\n\n       5.3    CUSTOMER SUPPORT.  OEM shall, at its expense, provide all \nsupport for the Bundled Products to Distributors and End User Customers.\n\n       5.4    LICENSE AGREEMENTS.  OEM shall cause to be delivered to each \nDistributor and End User Customer a license agreement which shall contain, at \na minimum, substantially all of the limitations of rights and the protections \nfor RSA which are contained in Sections 2.2, 5.5, 7, 10.7 and 10.8 of this \nAgreement.  OEM shall use commercially reasonable efforts to enforce the \nterms of such agreements.\n\n       5.5    PROPRIETARY RIGHTS.\n              ------------------\n\n              5.5.1  RSA COPYRIGHT NOTICES.  OEM agrees not to remove or \ndestroy and proprietary, trademark or copyright markings or notices placed \nupon or contained within the RSA Software, User Manuals or any related \nmaterials or documentation.  OEM further agrees to insert and maintain within \nevery Bundled Product and any related materials or documentation a copyright \nnotice in the name of OEM.\n\n              5.5.2  TRADEMARKS.  By reason of this Agreement or the \nperformance hereof, OEM shall acquire no rights of any kind in any RSA \ntrademark, trade name, logo or product designation under which the RSA \nSoftware was or is marketed and OEM shall not make any use of the same for \nany reason except as expressly authorized by this Agreement or otherwise \nauthorized in writing by RSA.  OEM shall cease to use the markings, or any \nsimilar markings, in any manner on the expiration or other termination of \nthis Agreement.\n\n6.     CONFIDENTIALITY.  Each party acknowledges that in its performance of \nits duties hereunder, the other party may communicate to it (or its \ndesignees) certain confidential and proprietary information of such party, \nprovided that such Confidential Information is clearly identified in writing \nat the time of disclosure (the \"Confidential Information\"), all of which is \nconfidential and proprietary to, and a trade secret of the disclosing party.  \nThe receiving party agrees to hold the Confidential Information disclosed to \nit within its own organization and shall not, without the specific written \nconsent of the disclosing party or as expressly authorized herein, utilize in \nany manner, publish, communicate, or disclose any part of the disclosing \nparty's Confidential Information or the RSA Software (in the case of OEM) to \nthird parties.  This Section 6 shall impose no obligations on either party \nwith respect to any Confidential Information which:  (i) is in the public \ndomain at the time disclosed by the disclosing party; (ii) enters the public \ndomain after disclosure other than by a breach of the receiving party's \nobligations hereunder or by a breach of another party's confidentiality \nobligation; (iii) is shown by documentary evidence to have been known by the \nreceiving party prior to its receipt from the \n\n\n                                      10\n\n\ndisclosing party or developed independently without reference to Confidential \nInformation; or (iv) is required to be disclosed by law.  Each party will \ntake such steps as are consistent with its protection of its own confidential \nand proprietary information (but will in no event exercise less then \nreasonable care) to insure that provisions of this Section 6 are not violated \nby its employees, agents or any other person.  The terms of this Agreement \nare deemed Confidential Information and may not be disclosed without the \nprior written consent of the other party, except (i) either party may \ndisclose such terms to the extent required by law; (ii) either party may \ndisclose the existence of this Agreement; (iii) either party may disclose \nsuch terms to the extent necessary in connection with the due diligence \nreview of such party by potential business partners, investors or acquirors, \nto such persons and to their employees, agents, attorneys and auditors, if \nsuch persons are bound by written confidentiality agreements covering \nthird-party information; and (iv) both parties shall have the right to \ndisclose that OEM is an OEM of the RSA Software and that any \npublicity-announced Bundled Product incorporates the RSA Software.\n\n7.     LIMITATION OF LIABILITY.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO \nTHE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY \nDAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT \nLIMITED TO LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS \nINFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH \nDAMAGES, REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF ACTION, RSA'S \nAGGREGATE LIABILITY TO OEM FOR ACTUAL DAMAGES ARISING OUT OF OR RELATED TO \nTHIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY OEM HEREUNDER, \nEXCEPT FOR RSA'S LIABILITY ARISING UNDER SECTIONS 6 AND 8.  DURING THE TERM \nOF THIS AGREEMENT OEM'S AGGREGATE LIABILITY TO RSA FOR ACTUAL DAMAGES ARISING \nOUT OF OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT \nPAYABLE BY OEM TO RSA HEREUNDER, EXCEPT FOR OEM'S LIABILITY RESULTING FROM \nBREACH OF SECTIONS 2 AND 6.\n\n8.     INTELLECTUAL PROPERTY INDEMNITY.\n       -------------------------------\n\n       8.1    DUTY TO DEFEND.  RSA agrees that it shall, at its own expense, \ndefend, or at its option settle, any action instituted against OEM, and pay \nany award or damages assessed against OEM or agreed to be paid by OEM in \nsettlement resulting from such action, insofar as the same is based upon a \nclaim that any RSA Software used in accordance with the terms of this \nAgreement infringes any United States patent, copyright or trade secret or a \nclaim that RSA has no right to license the RSA Software hereunder, provided \nthat OEM gives RSA; (i) prompt notice in writing of such action, (ii) the \nright to control and direct the investigation, preparation, defense and \nsettlement of the action; and (iii) reasonable assistance and information.\n\n       8.2    RSA OPTIONS.  If, as a result of any binding settlement among \nthe parties or a final determination by a court of competent jurisdiction, \nany of the RSA Software is held to infringe and its use is enjoined, or if \nRSA reasonable determines in its sole discretion that the \n\n\n                                      11\n\n\nRSA Software may become subject to an inunction, RSA shall have the option to \nobtain the right to continue use of the RSA Software or replace or modify the \nRSA Software so that it is no longer infringing.  In the event that neither \nof the foregoing options is reasonably available, then RSA may refund the \nLicense Fees paid by OEM hereunder less depreciation for use assuming \nstraight line depreciation over a five (5)-year useful life and terminate the \nAgreement.\n\n       8.3    EXCLUSIONS.  Notwithstanding the foregoing, RSA shall have no \nliability under this Section 8 if the alleged infringement arises from (i) \nthe use of other than current unaltered release of the RSA Software provided \nby RSA or other than in the manner specified in the relevant User Manual, or \n(ii) combination of the RSA Software with other equipment or software not \nprovided by RSA, if such action would have been avoided but for such use or \ncombination.\n\n       8.4    EXCLUSIVE REMEDY.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN \nTHIS AGREEMENT, THE FOREGOING STATES RSA'S ENTIRE LIABILITY AND OEM'S \nEXCLUSIVE REMEDY FOR PROPRIETARY RIGHTS INFRINGEMENT.\n\n9.     TERM AND TERMINATION.\n       --------------------\n\n       9.1    TERM.  This Agreement shall be effective as of the date hereof \nand shall continue in full force and effect unless and until sooner \nterminated pursuant to the terms of this Agreement.\n\n       9.2    TERMINATION FOR DEFAULT.  Either party shall be entitled to \nterminate this Agreement at any time on written notice to the other in the \nevent of a material default (i.e., breach of a provision designated as \n\"material\" herein) by the other party and a failure to cure such default \nwithin a period of thirty (30) days following receipt of written notice \nspecifying that a default has occurred.  For purposes of this section, \n\"material\" provisions include Sections 1, 2, 3, 5.2, 5.4, 5.5, 6, 8, 10.2, \n10.7 and 10.8.\n\n       9.3    INSOLVENCY.  Upon (i) the institution of any proceedings by or \nagainst either party seeking relief, reorganization or arrangement under any \nlaws relating to insolvency, which proceedings are not dismissed within sixty \n(60) days; (ii) the assignment for the benefit of creditors, or the \nappointment of a receiver, liquidator or trustee, of any of either party's \nproperty or assets; or (iii) the liquidation, dissolution or winding up of \neither party's business; then and in any such events this Agreement may \nimmediately be terminated by the other party upon written notice.\n\n       9.4    TERMINATION FOR CONVENIENCE.  The parties acknowledge and agree \nthat OEM may at any time delay, interrupt or cease use of the RSA Software, \nbut this Agreement shall continue in full force, including any obligations to \nmake quarterly reports.  OEM may elect to terminate this Agreement upon ninety\n(90) days written notice and it is expressly understood that such termination \nshall not discharge payment obligations accrued as of the date of such\n\n\n                                      12\n\n\ntermination, even if such obligation is payable after the termination date, \nor entitle OEM to a refund of any amounts previously paid to RSA.\n\n       9.5    EFFECT OF TERMINATION.  Upon the termination of this Agreement, \nOEM shall cease making copies of, using or licensing the RSA Software, User \nManual and Bundled Products, excepting only such copies of Bundled Products \nnecessary to fill orders placed with OEM prior to such expiration or \ntermination.  OEM shall destroy all copies of the RSA Software, User Manual \nand Bundled Products not subject to any then-effective license agreement with \nan End User Customer and all information and documentation provided by RSA to \nOEM, other than such copies of the RSA Object Code, the User Manual and the \nBundled Products as are necessary to enable OEM to perform its continuing \nsupport obligations in accordance with Section 5.3, if any.\n\n       9.6    SURVIVAL OF CERTAIN TERMS.  The following provision shall \nsurvive any expiration or termination:  Sections 2.2, 2.3, 3.8, 4.3, 6, 7, 9 \nand 10.\n\n10.    MISCELLANEOUS PROVISIONS.\n       ------------------------\n\n       10.1   GOVERNING LAW AND JURISDICTION.  This Agreement will be \ngoverned by and construed in accordance with the laws of the State of \nCalifornia, irrespective of its choice of law principles.  All disputes \narising out of this Agreement shall exclusively be brought in the California \nstate courts or the United States District Court for the Northern District of \nCalifornia.  The parties agree that the United Nations Convention on \nContracts for the international Sale of Goods shall not apply to this \nAgreement.\n\n       10.2   BINDING UPON SUCCESSORS AND ASSIGNS.  Except as otherwise \nprovided herein, this Agreement shall be binding upon, and inure to the \nbenefit of, the successors, representatives, administrators and assigns of \nthe parties hereto. Notwithstanding the generality of the foregoing, this \nAgreement shall not be assignable by OEM, by operation of law or otherwise, \nwithout the prior written consent of RSA, which shall not be unreasonably \nwithheld.  If RSA fails to respond to a written request for consent to assign \nOEM's rights with identifies the proposed assignee and which is given in \naccordance with Section 10.6 and directed to RSA's Legal Department within \nfourteen (14) days after is receipt, RSA shall be deemed to have consented to \nsuch request.  Any such purported assignment or delegation without RSA's \nwritten consent shall be void and of no effect.  RSA may withhold its consent \nto the assignment of this Agreement, at its sole discretion, if the Agreement \nprovides for paid-up License Fees. RSA acknowledges that this unamended \nAgreement as of the Effective Date does not provide for paid-up License Fees.\n\n       10.3    SEVERABILITY.  If any provision of this Agreement is found to \nbe invalid or unenforceable, such provision shall be severed from the \nAgreement and the remainder of this Agreement shall be interpreted so as best \nto reasonably effect the intent of the parties hereto.\n\n\n                                      13\n\n\n       10.4   ENTIRE AGREEMENT.  This Agreement any exhibits or attachments \nhereto constitute the entire understanding and agreement of the parties \nhereto with respect to the subject matter hereof and supersede all prior and \ncontemporaneous agreements, representations and understandings between the \nparties regarding the subject matter hereof.\n\n       10.5   AMENDMENT AND WAIVERS.  Any term or provision of this Agreement \nmay be amended, and the observance of any term of this Agreement may be \nwaived, only by a writing signed by the party to the bound.\n\n       10.6   NOTICES.  Any notice, demand, or request with respect to this \nAgreement shall be in writing and shall be effective only if it is delivered \nby hand or mailed, certified or registered mail, postage prepaid, return \nreceipt requested, addressed to the appropriate party at its address set \nforth on page 1.  Notice to RSA shall be addressed to \"RSA Legal Department.\" \n Such communication shall be effective when they are received by the \naddressee; but if sent by certified or registered mail in the manner set \nforth above, they shall be effective not later than ten (10) days after being \ndeposited in the mail. Any party may change its address for such \ncommunications by giving notice to the other party in conformity with this \nSection.\n\n       10.7   EXPORT COMPLIANCE AND FOREIGN RESHIPMENT LIABILITY.  THIS \nAGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS OR OTHER \nRESTRICTIONS ON THE EXPORT FROM THE UNITED STATES  OF AMERICA OF THE RSA \nSOFTWARE OR BUNDLED PRODUCTS OR OF INFORMATION ABOUT THE RSA SOFTWARE OR \nBUNDLED PRODUCTS WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF \nTHE UNITED STATES OF AMERICA.  NOTWITHSTANDING ANYTHING CONTAINED IN THIS \nAGREEMENT TO THE CONTRARY, OEM SHALL NOT EXPORT OR REEXPORT, DIRECTLY OR \nINDIRECTLY, ANY RSA SOFTWARE OR BUNDLED PRODUCTS OR INFORMATION PERTAINING \nTHERETO ANY COUNTRY TO WHICH SUCH EXPORT OR REEXPORT IS RESTRICTED OR \nPROHIBITED, OR AS TO WHICH SUCH GOVERNMENT OR ANY AGENCY THEREOF REQUIRES AN \nEXPORT LICENSE OR OTHER GOVERNMENTAL APPROVAL AT THE TIME OF EXPORT OR \nREEXPORT WITHOUT FIRST OBTAINING SUCH LICENSE OR APPROVAL.\n\n       10.8   FEDERAL GOVERNMENT LICENSE.  OEM and each of OEM's Distributors \nshall in all proposals and agreements with the United States government or \nany contractor of the United States government identify and license the \nBundled Product, including the RSA Software incorporated therein, as follows: \n(i) for acquisition by or on behalf of civilian agencies, as necessary to \nobtain protection as \"commercial computer software\" and related documentation \nin accordance with the terms of OEM's or such Distributor's customary \nlicense, as specified in 48 C.F.R. 12.212 of the Federal Acquisition \nRegulations and its successor regulations; or (ii) for acquisition by or on \nbehalf of units of the Department of Defense, as necessary to obtain \nprotection as \"commercial computer software\" as defined in 48 C.F.R. \n252.227-7014(a)(1) of the Department of Defense Federal Acquisition \nRegulation Supplement (DFARS) and related\n\n\n                                      14\n\n\ndocumentation in accordance with the terms of OEM's or such Distributor's \ncustomary license, as specified in 48 C.F.R. 227.7202-1 of DFARS and its \nsuccessor regulations.\n\n       10.9   REMEDIES NON-EXCLUSIVE.  Except as otherwise expressly \nprovided, any remedy provided for in this Agreement is deemed cumulative \nwith, and not exclusive of, any other remedy provided for in this Agreement \nor otherwise available at law or in equity.  The exercise by a party of any \nremedy shall not preclude the exercise by such party of any other remedy.\n\n       10.10  ATTORNEYS' FEES.  Should suit be brought to enforce or \ninterpret any part of this Agreement, the prevailing party shall be entitled \nto recover, as an element of the costs of suit and not as damages, reasonable \nattorneys' fees to be fixed by the court (including without limitation, \ncosts, expenses and fees on any appeal).\n\n              IN WITNESS WHEREOF, the parties have executed this Agreement as of\nthe date of the last signature below.\n\n\n                                       OEM:\n\n                                       TUMBLEWEED SOFTWARE, INC.\n\n\n                                       By: \/s\/ Joseph C. Consul\n                                           -----------------------------------\n\n                                       Printed Name:  Joseph C. Consul\n                                                     -------------------------\n\n                                       Title: VP Finance, CFO\n                                              --------------------------------\n\n                                       Date:  3\/29\/98\n                                             ---------------------------------\n\n\n                                       RSA DATA SECURITY, INC.\n\n\n                                       By: \/s\/ Albert Sisto\n                                           -----------------------------------\n\n                                       Printed Name: Albert Sisto\n                                                     -------------------------\n\n                                       Title: Chief Operating Officer\n                                              --------------------------------\n\n                                       Date: March 30, 1998\n                                             ---------------------------------\n\n\n                                      15\n\n\n                                  EXHIBIT \"A\"\n                          MANDATORY SUBLICENSE TERMS\n\n\n       All sublicense agreements for the license of the RSA Object Code in \nthe Bundled Products by OEM to OEM Sublicensees and Corporate Sublicensees \nwill substantially include all of the following restrictions:\n\n       I.     The OEM Sublicensee or Corporate Sublicensee will receive no \ngreater rights with respect to the Bundled Products than those permitted in \nSections 2.1.1 of the Agreement as limited by Section 2.2 of the Agreement.\n\n       II.    The OEM Sublicensee or Corporate Sublicensee will agree not to \nremove or destroy any proprietary, trademark or copyright markings or \nconfidentiality legends placed upon or contained within the Bundled Products \nor any related materials or documentation.\n\n       III.   If applicable, the OEM Sublicensee or Corporate Sublicensee \nwill agree that any sublicensee of the Bundled Products to the United States \nGovernment or any agency thereof will state that such software and related \ndocumentation are \"commercial computer software\" as that term is defined for \npurposes of the Federal Acquisition Regulations (FARs) or the Department of \nDefense Federal Acquisition Regulations Supplement (DFARS), as applicable, \nthen in effect.\n\n       IV.    The OEM Sublicensee or Corporate Sublicensee will agree not to \nexport or reexport any Bundled Products or any part thereof or information \npertaining thereto to any country for which a U.S. government agency requires \nan export license or other governmental approval without first obtaining such \nlicense or approval.\n\n       V.     The OEM Sublicensee or Corporate Sublicensee will agree that, \nexcept for the limited licenses granted under the license agreement, OEM and \nits licensors will retain full and exclusive right, title and ownership \ninterest in and to the Bundled Products and in any and all related patents, \ntrademarks, copyrights or proprietary or trade secret rights.\n\n       VI.    OEM will have the right to terminate the license for the OEM \nSublicensee's or Corporate Sublicensee's breach of a material term.  The OEM \nSublicensee or Corporate Sublicensee will agree that, upon termination of the \nlicense, the OEM Sublicensee or Corporate Sublicensee will return to OEM all \ncopies of the object code and documentation for the Bundled Products or \ncertify to OEM that the OEM Sublicensee or Corporate Sublicensee has \ndestroyed all such copies, except that the OEM Sublicensee or Corporate \nSublicensee may retain one (1) copy of the object code for the Bundled \nProducts solely for the purpose of supporting the OEM Sublicensee's or \nCorporale Sublicensee's existing licensees.\n\n\n                                      16\n\n\n       VII.   The OEM Sublicensee or Corporate Sublicensee will agree, to the \nextent permitted by applicable law, not to reverse compile, disassemble or \nmodify the Bundled Products.\n\n       VIII.  The OEM Sublicensee or Corporate Sublicensee will agree not to \ndistribute the Bundled Products or any part thereof except pursuant to a \nlicense agreement meeting the requirements in Section 5.4 of the Agreement.\n\n       IX.    The sublicense agreement will state that in no event will OEM \nor its licensors be liable for indirect, incidental, special, consequential \nor exemplary damages arising out of or related to the Bundled Products, \nincluding but not limited to lost profits, business interruption or loss of \nbusiness information, even if such party has been advised of the possibility \nof such damages.\n\n\n\n\n\n\n\n\n\n\n\n\n                                      17\n\n\n                           RSA DATA SECURITY, INC.\n                        100 Marine Parkway, Suite 500\n                           Redwood City, CA 94065\n\n                      MAINTENANCE AND SUPPORT AGREEMENT\n\n\n       THIS MAINTENANCE AND SUPPORT AGREEMENT (\"Support Agreement\"), \neffective as of the later date of execution (\"Effective Date\"), is entered \ninto by and between RSA Data Security, Inc., a Delaware corporation (\"RSA\"), \nhaving a principal address at 100 Marine Parkway, Suite 500, Redwood City, \nCalifornia 94065, and the entity named below (\"OEM\"), having a principal \naddress as set forth below:\n\nOEM:\n\nTumbleweed Software, a California corporation\n-----------------------------------------------------------------------\n(Name and jurisdiction of incorporation)\n\n2010 Broadway, Redwood City, CA 94063\n-----------------------------------------------------------------------\n(Address)\n\nNotices to Contact:  Bill Bradford,\n                     ---------------------------------------------------\n                     Vice President Strategic Relationships\n                     ---------------------------------------------------\n                     (650) 569-3687\n                     ---------------------------------------------------\n                     (Name, Title and Telephone)\n\n\nInitial Annual Maintenance Fee:  [         *           ]\n\n\n10.    DEFINITIONS.  All capitalized terms used and not defined herein shall \nhave the meanings set forth in the OEM Agreement or the following meanings:\n\n       10.1   \"News Release\" means a version of the RSA Software which shall \ngenerally be designated by a new version number which has changed from the \nprior number only to the right of the decimal point (E.G., Version 2.2 to \nVersion 2.3).\n\n---------------------\n\n       *      Confidential treatment has been requested with respect to \ncertain information contained in this document.  Confidential portions have \nbeen ommited from the public filing and have been filed separately with the \nSecurities and Exchange Commission.\n\n\n                                      18\n\n\n       10.2   \"New Version\" means a version of the RSA Software which shall \ngenerally be designated by  a new version number which has changed from the \nprior number to the left of the decimal point (E.G., Version 2.3 to Version \n3.0).\n\n       10.3   \"OEM Agreement\" means that certain OEM Object Code License \nAgreement between RSA and OEM dated March 30).\n\n       10.4   \"RSA Software\" means proprietary software identified as RSA \nSoftware on page 1 of the OEM Agreement.\n\n11.    MAINTENANCE AND SUPPORT SERVICES.\n       --------------------------------\n\n       11.1   GENERAL.  This Support Agreement sets forth the terms under \nwhich RSA will provide maintenance and support to OEM for the RSA Software \nlicensed to OEM for the Bundled Product, as set forth under the unamended OEM \nAgreement. The use of and license to any software provided to OEM hereunder \nshall be governed by the terms of the OEM Agreement.\n\n       11.2   SUPPORT AND MAINTENANCE.  RSA agrees to provide the maintenance \nand support specified in this Support Agreement and OEM agrees to pay RSA's \nthen-current annual support and maintenance fee (\"Maintenance Fee\").\n\n       11.3   MAINTENANCE PROVIDED BY RSA.  For the annual period commencing \non the Effective Date hereof, and for future annual periods for which OEM has \npaid the Maintenance Fee, RSA will provide OEM with the following services:\n\n              11.3.1 TELEPHONE SUPPORT.  RSA will provide telephone support \nto OEM during RSA's normal business hours.  RSA may provide on-site support \nreasonably determined to be necessary by RSA at OEM's location specified on \npage 1 hereof.  RSA shall provide the support specified in this Section 2.3.1 \nto OEM's employees responsible for developing and maintaining the Bundled \nProducts licensed under the OEM Agreement and providing support to End User \nCustomers. No more than two (2) OEM employees may obtain such support from \nRSA at any one time.  On RSA's request, OEM will provide a list with the \nnames of the employees designated to receive support from RSA.  OEM may \nchange the names on the list at any time by providing written notice to RSA.\n\n              11.3.2 ERROR CORRECTION.  In the event OEM discovers an error \nin the RSA Software which causes the RSA Software not to operate in material \nconformance to RSA's published specifications therefor, OEM shall submit to \nRSA a written report describing such error in sufficient detail to permit RSA \nto reproduce such error.  Upon receipt of any such written report, RSA will \nuse its reasonable business judgment to classify a reported error as either:  \n(i) a \"Level 1 Severity\" error, meaning an error that causes the RSA Software \nto fail to operate in a material manner or to produce materially incorrect \nresults and or which there is no workaround \n\n\n                                      19\n\n\nor only a difficult workaround; or (ii) a \"Level 2 Severity\" error, meaning \nan error that produces a situation in which the RSA Software is usable but \ndoes not function in the most convenient or expeditious manner, and the use \nor value of the RSA Software suffers no material impact. RSA will acknowledge \nreceipt of a confirming error report within two (2) business days and (A) \nwill use its continuing best efforts to provide a correction of any Level 1 \nSeverity error to OEM as early as practicable; and (B) will use its \nreasonable efforts to include a correction for any Level 2 Severity error in \nthe next release of the RSA Software.\n\n              11.3.3 NEW RELEASES AND NEW VERSIONS.  RSA will provide OEM \ninformation relating to New Releases and New Versions of the RSA Software \nduring the term of this Support Agreement.  New Releases and New Versions \nwill be provided by RSA at no additional charge. Nevertheless, license rights \nto any New Versions provided hereunder shall not extend to any new algorithms \ncontained in such New Versions which algorithms are not listed as licensed \nunder the terms of the OEM Agreement.  License rights to such new algorithms \nshall be available at RSA's standard upgrade charges in effect at the time.  \nAny New Releases or New Versions acquired by OEM shall be governed by all of \nthe terms and provisions of the OEM Agreement.\n\n       11.4   LEGEND MAINTENANCE.  If this Support Agreement has lapsed, OEM \nmay obtain a license of New Releases or New Versions of the applicable RSA \nSoftware (consistent with Section 2.3.3 above) or any service which is \nprovided as a part of maintenance and support by becoming current on \nMaintenance Fees as provided in Section 3.1 to te date such New Release or \nNew Version is licensed or such service is provided.\n\n12.    MAINTENANCE AND SUPPORT FEES.\n       ----------------------------\n\n       12.1   MAINTENANCE AND SUPPORT FEES.  In consideration of RSA's \nproviding the maintenance and support services described herein, OEM agrees \nto pay RSA the initial Maintenance Fee set forth on the first page hereof.  \nSuch amount shall be payable for the first year upon the execution of this \nSupport Agreement, and for each subsequent year in advance of the \ncommencement of such year.  The Maintenance Fee may be modified by RSA for \neach renewal term by written notice to OEM at least ninety (90) days prior to \nthe end of the then-current term.  If OEM elects not to renew this Support \nAgreement for successive terms (as provided in Section 6.1 below) OEM may \nre-enroll only upon payment of the annual Maintenance Fee for the coming year \nand for all Maintenance Fees that would have been paid had OEM not ceased \nmaintenance and support.\n\n       12.2   ADDITIONAL CHARGES.  In the event RSA is required to take \nactions to correct a difficulty or defect which is traced to OEM errors, \nmodifications, enhancements, software or hardware, then OEM shall pay to RSA \nits time and materials charges at RSA's rates then in effect, in the event \nRSA's personnel must travel to perform maintenance or on-site support, OEM \nshall reimburse RSA for any reasonable out-of-pocket expenses incurred, \nincluding travel to and from OEM's sites, lodging, meals and shipping, as may \nbe necessary in connection with duties performed under this Section 3.2 by \nRSA.\n\n\n                                      20\n\n\n       12.3   TAXES.  All taxes, duties, fees and other governmental charges \nof any kind (including sales and use taxes, but excluding taxes based on the \ngross revenues or net income of RSA) which are imposed by or under the \nauthority of any government or any political subdivision thereof on the \nMaintenance Fees or any aspect of this Support Agreement shall be borne by \nOEM  and shall not be considered a part of, a deduction from or an offset \nagainst Maintenance Fees.\n\n       12.4   TERMS OF PAYMENT.  Maintenance Fees due RSA hereunder shall be \npaid by OEM to the attention of the Software Licensing Department at RSA's \naddress set forth above upon execution and, in the case of renewal terms, \nprior to each anniversary thereof. A late payment penalty on any Maintenance \nFees not paid when due shall be assessed at the rate of one percent (1%) per \nthirty (30) days.  In no event shall Maintenance Fees paid be refundable.\n\n       12.5   U.S. CURRENCY.  All payments hereunder shall be made in lawful \nUnited States currency.\n\n13.    CONFIDENTIALITY.  The parties agree that all obligations and \nconditions respecting confidentiality, use of the Source Code (if licensed to \nOEM) and publicity in Section 6 of the OEM Agreement shall apply to the \nparties' performance of this Support Agreement.\n\n14.    USE LIMITATIONS; TITLE; INTELLECTUAL PROPERTY INDEMNITY; LIMITATION OF \nLIABILITY.  Any and all RSA Software provided to OEM pursuant to this Support \nAgreement shall constitute RSA Software under the OEM Agreement.  As such, \nthe parties' respective interests and obligations relating to the RSA \nSoftware, including but not limited to license and ownership rights thereto, \nuse limitations (if any), intellectual property indemnity and limitation of \nliability, shall be governed by the terms of the OEM Agreement.\n\n15.    TERM AND TERMINATION\n       --------------------\n\n       15.1   TERM.  This Support Agreement shall commence on the Effective \nDate hereof and shall remain in full force and effect for an initial period \nof one (1) year, unless sooner terminated in accordance with this Support \nAgreement. Upon expiration of the initial period and each successive period, \nthis Support Agreement shall automatically renew for an additional (1) year \nperiod, unless either party has notified the other of its intent to terminate \nas set forth in Section 6.2.3 herein.\n\n       15.2   TERMINATION.\n              -----------\n\n              15.2.1 Either party shall be entitled to terminate this Support \nAgreement at any time on written notice to the other in the event of a \nmaterial default by the other party of this Support Agreement and a failure \nto cure such default within a period of thirty (30) days following receipt of \nwritten notice specifying that a default has occurred.\n\n\n                                      21\n\n\n              15.2.2 This Support Agreement shall automatically terminate in \nthe event that the OEM Agreement is terminated in accordance with its terms.\n\n              15.2.3 This Support Agreement may also be terminated by OEM for \nany or no reason by providing written notice of such intent at least (90) \ndays prior to the end of the then-current term.  RSA may cease to offer \nsupport and maintenance for future maintenance terms by notice delivered to \nOEM ninety (90) days or more before the end of the then-current maintenance \nterm.\n\n              15.2.4 Upon (i) the institution of any proceeding by or against \neither party seeking relief, reorganization or arrangement under any laws \nrelating to insolvency, which proceedings are not dismissed within sixty (60) \ndays; (ii) the assignment for the benefit of creditors, or upon the \nappointment of a receiver, liquidator or trustee, of any of either party's \nproperty or assets; or (iii) the liquidation, dissolution or winding up of \neither party's business, then and in any such events this Support Agreement \nmay immediately be terminated by the other party upon written notice.\n\n       15.3   SURVIVAL OF CERTAIN TERMS.  The following provisions shall \nsurvive any expiration or termination:  Sections 2.4, 5, 6 and 7.\n\n16.    MISCELLANEOUS PROVISIONS.  This Support Agreement is not an amendment \nto the OEM Agreement, but instead is a separate binding agreement which \nincorporates certain terms of the OEM Agreement for the purposes of brevity \nand assured consistency.  This Agreement incorporates by this reference \nSection 10 of the OEM Agreement in its entirety.\n\n       IN WITNESS WHEREOF, the parties have executed this Agreement as of the\ndate of the later signature below.\n\nOEM:\n\nTUMBLEWOOD SOFTWARE, INC.\n\n\nBY:\n    -----------------------------------\n\nPRINTED NAME:\n              -------------------------\n\nTITLE:\n       --------------------------------\n\nDATE:\n      ---------------------------------\n\n\n                                      22\n\n\n\nRSA DATA SECURITY, INC.\n\n\nBY: \/s\/ Albert Sisto\n    -----------------------------------\n\nPRINTED NAME: Albert Sisto\n              -------------------------\n\nTITLE: Chief Operating Officer\n       --------------------------------\n\nDATE: March 30, 1998\n      ---------------------------------\n\n\n\n\n\n\n\n                                      23\n\n\n                                  EXHIBIT \"A\"\n                                      TO\n                     MAINTENANCE AND SUPPORT AGREEMENT\n\n\n\nLicensee:  Tumbleweed Software, Inc.\n         ----------------------------------------------------------------------\n\nMaintenance and Support Agreement Date:   March 30, 1998\n                                        ---------------------------------------\n\n\n       THE MAINTENANCE AND SUPPORT AGREEMENT between RSA Data Security, Inc. \nand the Licensee set forth above dated as of the date set forth above \n(\"Agreement\") is amended as set forth below.\n\n       1.     DEFINITIONS.  Capitalized terms used and not otherwise defined \nin this Exhibit \"A\" shall have the meanings designated for such terms in the \nAgreement.\n\n       2.     AMENDMENTS TO AGREEMENT.  The following provisions of the \nAgreement, referenced by the applicable Section numbers in the Agreement, are \nhereby amended as follows:\n\n              2.1    SECTION 3.1  The third sentence of Section 3.1 is \namended by adding the following at the end thereof: \". . . ; PROVIDED, \nHOWEVER THAT THE MAINTENANCE FEE SHALL NOT BE INCREASED BY ANA MOUNT GREATER \nTHAN TEN PERCENT (10%) PER ANNUM.\"\n\n              2.2    SECTION 6.2.3  The second sentence of Section 6.2.3 of \nthe Agreement is amended by adding the following at the end thereof:  \". . . \n; PROVIDED, HOWEVER, THAT RSA MAY CEASE TO OFFER MAINTENANCE TO OEM WITH \nRESPECT TO THE MOST RECENT RELEASE OF A PARTICULAR RSA SOFTWARE PRODUCT ONLY \nIF IT IS GENERALLY CEASING TO OFFER MAINTENANCE FOR THE SAME PRODUCT TO IT \nOTHER SIMILARLY-SITUATED LICENSEES.\"\n\n       3.     EFFECT OF AMENDMENT.  This Exhibit \"A\" is an amendment to the \nAgreement.  Except as expressly amended above, the Agreement shall remain in \nfull force and effect.\n\n       IN WITNESS WHEREOF, the parties have executed this Exhibit \"A\" as of \nthe date set forth above.\n\nLICENSEE:\n\n\n TUMBLEWEED SOFTWARE, INC.                RSA DATA SECURITY, INC.\n\nBY:  \/s\/ Joseph C. Consul                 BY: \/s\/ Albert Sisto\n    -----------------------------------       ---------------------------------\n\nPRINTED NAME:  Joseph C. Consul           PRINTED NAME: Albert Sisto\n              -------------------------                 -----------------------\n\nTITLE:  VP FInance, CFO                   TITLE: Chief Operating Officer\n       --------------------------------          ------------------------------\n\n\n\n                                      24\n\n\n                                   EXHIBIT I\n\n                       SERVER SOFTWARE SUBLICENSE TERMS\n\n\nAny agreement between UPS and any Server Sublicensee shall contain rights \nconsistent with those enumerated in the Agreement, except that the agreement \nmust also include terms at least as protective of Tumbleweed's interests in \nthe Server Software and Custom Server Software (collectively, the \"Server \nSoftware\") and in the Client Software and Custom Client Software \n(collectively, the \"Client Software\" which, with the Server Software, is \ncollectively referred to herein as the \"Software\") as the following:\n\n       1.     RESTRICTIONS.  The license grant to use the Server Software and \nreproduce and distribute the Client Software is not transferable, assignable \nor sublicenseable.  Server Sublicensee shall not, nor shall it authorize a \nthird party to, decompile, reverse engineer or disassemble the Software \nexcept where such conduct is explicitly permitted under local law.  Server \nSublicensee agrees to pay all required licensing fees and not to exceed the \nscope of the licenses granted under the Agreement.  Server Sublicensee \nacknowledges and agrees that Tumbleweed may, at any time without notice, \nincorporate license management software into the Server Software to prevent \nServer Sublicensee from exceeding the scope of its license.  Neither UPS nor \nTumbleweed has provided any license of its trademarks to Server Sublicensee.\n\n       2.     OTHER RESTRICTIONS.  Server Sublicensee shall retain any End \nUser license agreements included with the Client Software.  Server \nSublicensee shall not remove, modify or obscure any proprietary rights \nnotices in the Software or logos or trademarks displayed in the Software or \nany documents automatically generated by it.  Server Sublicensee shall not \ndistribute, in connection with the Software or in the performance of \nreselling messaging services, any viruses, trojan horses, worms, time bombs, \ncancelbots or other programs containing computer programming defects which \nare intended to damage or detrimentally interfere with a user's system or \ndata.\n\n       3.     OWNERSHIP.  Except as otherwise provided in this Agreement, UPS \nand its suppliers (including, without limitation, Tumbleweed) shall retain \nall rights, title and interest in and to all copyrights, trademarks, trade \nsecrets, patents and all other industrial and intellectual property embodied \nin or appurtenant to the Software.  There are no implied licenses under this \nAgreement, and any rights not expressly granted to Server Sublicensee \nhereunder are reserved by UPS or its suppliers.\n\n       4.     AUDIT RIGHTS.  Server Sublicensee will keep for 3 years proper \nrecords and books of account relating to Server Sublicensee's activities \nregarding the Software.  Once every 12 months, UPS or its designee may \ninspect such records to verify Server Sublicensee's statements.  Any such \ninspection will be conducted on Server Sublicensee's office in a manner that \ndoes not unreasonably interfere with Server Sublicensee's business \nactivities.  Server Sublicensee shall immediately make any overdue payments \ndisclosed by the audit. Such inspection shall be at UPS's expense; PROVIDED, \nHOWEVER, if the audit reveals overdue payments in excess of 5% of the \npayments owed to date, Server Sublicensee shall immediately pay the cost of \nsuch audit, and UPS may conduct another audit during the same 12 month \nperiod.  Server Sublicensee will make available to UPS all relevant records, \nincluding but not limited to all records relating to activities outside of \nthe United States.\n\n       5.     DISCLAIMER OF WARRANTY; NO PASS THROUGH.  UPS shall be \nresponsible for any warranties extended to Server Sublicensee regarding the \nSoftware, except that UPS shall have the right to pass through to Server \nSublicensee the proprietary rights indemnification of Tumbleweed, as set \nforth in Section 14(a) of the Agreement.  TUMBLEWEED AND ITS SUPPLIERS \nDISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, \nTHE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR \nPURPOSE AND NONINFRINGEMENT.  Server Sublicensee shall make no warranties to \nEnd Users on behalf of UPS or its suppliers.\n\n\n                                      25\n\n\n       6.     SERVER SUBLICENSEE'S INDEMNITY.  Server Sublicensee shall \nindemnify UPS and its suppliers against any and all claims, losses, costs and \nexpenses, including reasonable attorneys' fees, which any of them may incur \nas a result of claims in any form by third parties, including End Users, \nbased upon (i) any representations made by Server Sublicensee to such third \nparties which are not supported by the Documentation and\/or any other \ninformation or materials supplied by UPS and\/or its suppliers, or (ii) any \nacts committed by Server Sublicensee's End Users during the course of their \nuse of the Software.\n\n       7.     LIMITATIONS ON LIABILITY.  EXCEPT FOR ANY BREACHES OF SECTIONS \nRELATING TO LICENSE GRANTS OR CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY \nBE LIABLE FOR LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES \nARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHETHER FROM BREACH OF \nCONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), EVEN IF SUCH \nPARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION \nOF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF \nANY LIMITED REMEDY HEREIN.  EXCEPT FOR TUMBLEWEED'S INDEMNIFICATION \nOBLIGATIONS, IN NO EVENT SHALL TUMBLEWEED'S LIABILITY TO SERVER SUBLICENSEE \nEXCEED THE AMOUNTS ACTUALLY RECEIVED BY TUMBLEWEED ATTRIBUTABLE TO SERVER \nSUBLICENSEE.\n\n       8.     GENERALLY.  At its own expense, Server Sublicensee shall comply \nwith all applicable laws, regulations, rules, ordinances and orders regarding \nits activities related to this Agreement.  Without limiting the foregoing:\n\n              (a)    Server Sublicensee shall fully comply with the relevant \nexport administration and control laws and regulations, as same may be \namended from time to time, to ensure that the Software is not exported \n(directly or indirectly) in violation of United States law.\n\n              (b)    Server Sublicensee shall comply with the U.S. Foreign \nCorrupt Practices Act and shall not make any payments to third parties which \nwould cause UPS (or any of its suppliers) or Server Sublicensee to violate \nsuch laws.\n\n       9.     GOVERNMENT END USERS.  The Software is a \"commercial item,\" \nconsisting of \"commercial computer software\" and \"commercial computer \nsoftware documentation,\" and is provided to the U.S. Government only as a \ncommercial end item.\n\n\n\n\n\n                                      26\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8722,9127],"corporate_contracts_industries":[9508,9513],"corporate_contracts_types":[9613,9616],"class_list":["post-42622","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-rsa-security-inc","corporate_contracts_companies-tumbleweed-communications-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42622","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42622"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42622"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42622"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42622"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}