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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.7
SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (the "Agreement") is
between SIEBEL SYSTEMS, INC., with its principal place of business at 4005
Bohannon Drive, Menlo Park, CA 94025 ("Siebel"), and MONTGOMERY SECURITIES, with
its principal place of business at 600 Montgomery Street, San Francisco, CA
94111 ("Customer").
The terms of this Agreement shall apply to each Program License
granted and to all services provided by Siebel under this Agreement. When
completed by the parties, the Order Form(s) shall evidence the Program Licenses
(as defined in Section 2.1 below) to be provided to Customer hereunder. The
terms and conditions set forth in this Agreement and in any Order Form issued
pursuant hereto shall control in the event that there are different or
additional terms set forth in any other purchase order form submitted by
Customer or acceptance or confirmation form issued by Siebel. The terms and
conditions of any Order Form shall control over any conflicting terms and
conditions contained in the Agreement.
1. DEFINITIONS.
1.1. "ANCILLARY PROGRAM(S)" shall mean the third party software
specified in one or more Order Forms issued pursuant to this
Agreement and which are delivered with or embedded in the Programs
and are necessary for the operation of the Programs.
1.2. "COMMENCEMENT DATE" of each Program License shall mean the date on
which Customer and Siebel enter into an Order Form pursuant to
which Customer purchases Program Licenses for such Program(s).
1.3. "DESIGNATED SYSTEM(S) shall mean the computer hardware and
operating system(s) designated on the Order Form(s).
1.4. "DOCUMENTATION" means Siebel's published guides, manuals and
on-line help for use of the Licensed Software. As of the Effective
Date, such guides and manuals for Siebel Sales Enterprise version
2.x are listed in EXHIBIT C.
1.5. "LIMITED PRODUCTION PROGRAM" shall mean a Program which is not
generally licensed for commercial use by Siebel or which is not
listed in Siebel's generally available marketing literature or
which is designated as a Limited Production Program by Siebel.
1.6. "PROGRAM" OR "PROGRAMS" shall mean the User Programs and the
Server Programs, all as described in one or more Order Forms
issued pursuant to this Agreement; the media upon which such
software is delivered to Customer; Documentation; and Updates.
1.7. "ORDERED PROGRAM(S)" shall mean the User Programs and the Server
Programs, all as described in one or more Order Forms issued
pursuant to this Agreement.
1.8. "SERVER PROGRAM(S)" shall mean those Programs specified in one or
more Order Forms issued pursuant to this Agreement and which
reside and operate on the Designated System.
1.9. "SERVER SYSTEM(S)" shall mean the server hardware and operating
system(s) of Customer and/or its Affiliates designated on the
Order Form(s).
1.10. "SOFTWARE MAINTENANCE AND SUPPORT SERVICES" shall mean Program
support provided under Siebel's policies in effect on the date
Software Maintenance and Support Services is ordered, subject to
the payment by Customer of the applicable fees for such support. A
copy of Siebel's current policy for Software Maintenance and
Support Services is attached as EXHIBIT B. Siebel reserves the
right to alter such policies from time to time using reasonable
discretion.
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1.11. "UPDATE" shall mean a subsequent release of the Program which is
generally made available for Program Licenses receiving Software
Maintenance and Support Services, at no additional charge other
than media and handling charges. Updates shall not include any
release, option or future product which Siebel licenses separately
or only offers for an additional fee, or any upgrade in features,
functionality or performance of the Programs which Siebel licenses
separately or only offers for an additional fee.
1.12. "USER" or "USERS" shall mean a named individual or individuals
authorized by Customer to use specified Programs, regardless of
whether the individual is actively using the Programs at any given
time. The maximum number of Users that may use the User Programs
or access the Server Programs consistent with the terms of Program
Licenses granted herein is specified in the Order Form(s). "Users"
may include the employees of Customer and the employees of
independent contractors and consultants of Customer provided such
person's access to and use of the Programs is made subject to
non-disclosure agreement which contains provisions which are
consistent with the provisions of Section 9.1.
1.13. "USER PROGRAMS" shall mean those Programs specified in one or more
Order Forms issued pursuant to this Agreement and which reside and
operate on User Systems.
1.14. "USER SYSTEM" shall mean the computer hardware and operating
systems operated by Users in the course of their employment with
Customer, including notebook and portable computers.
1.15. "ORDER FORM" shall mean the document (substantially in the form of
Exhibit A) by which Customer orders Program Licenses and which is
executed by the parties. Each Order Form shall reference the
Effective Date of this Agreement and shall, upon signature by both
parties, be deemed to have been incorporated into to this
Agreement
2. PROGRAM LICENSE.
2.1. RIGHTS GRANTED.
A. Subject to the terms and conditions of this Agreement and
effective as of the applicable Commencement Date of each
Program License, Siebel grants to Customer a worldwide,
nontransferable, nonexclusive license to use the Programs
which the Customer obtains under this Agreement, including a
worldwide, nontransferable, nonexclusive sublicense to use
the Ancillary Programs, as follows:
i. To use the Server Programs solely for Customer's own
internal data processing operations on the Designated
Systems or on a backup system if the Designated Systems
are inoperative, up to any applicable maximum number of
designated Users set forth in the Order Form(s); to use
the User Programs solely for Customer's own internal
data processing operations for, and by up to, the
number of designated Users indicated in the Order
Form(s); provided, however, that Customer may not
relicense the Programs or use the Programs for
third-party training, commercial time-sharing, rental
or service bureau use;
ii. To use the Documentation provided with the Programs in
support of Customer's authorized use of the Programs;
and to make limited copies of portions of the on-line
help Documentation for internal use
iii. To reproduce, exactly as provided by Siebel, and
distribute the Server Programs, the Ancillary Programs
and up to that number of copies of the User Programs
specified in the Order Form(s) to Customer for use by
Customer, provided that (a) each User Program may be
copied to up to one additional user system for each
designated User; (b) Programs may be copied for
archival or backup purposes; (c) all titles,
trademarks, and copyright and restricted rights
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notices shall be reproduced in such copies; and (d) all
archival and backup copies of the Programs shall be
subject to the terms of this Agreement; and
iv. To use the Programs in conjunction with other software
products.
Except as set forth herein, no other copies shall be made
without Siebel's prior written consent. For purposes of this
Agreement, "Program License" shall constitute each license
granted to Customer pursuant hereto to use a Server Program
on a single Server System and each license granted to
Customer for a User to use a User Program as specified in one
or more Order Forms.
B. Customer recognizes and agrees that the source code of the
Programs contains valuable confidential information belonging
to Siebel and its suppliers, and Customer therefore agrees
not to cause or permit the reverse engineering, disassembly
or decompilation of the Programs.
C. Siebel and its suppliers shall retain all title, copyright
and other proprietary rights in and to the Programs. Customer
does not acquire any rights, express or implied, in the
Programs, other than those specified in this Agreement. In
the event that Customer makes suggestions to Siebel regarding
new features, functionality or performance that Siebel adopts
for the Programs, such new features, functionality or
performance shall become the sole and exclusive property of
Siebel, free from any restriction imposed upon Siebel by the
provisions of Section 9.1 unless otherwise agreed to in
writing by the parties prior to a Customer suggestion being
given to Siebel.
D. To use a User Program or a Server Program, Customer may need
to use an Ancillary Program. The Ancillary Program may be
used only in combination with Programs for the purpose of
installing or operating Programs as described on the Order
Form or Documentation, and for no other purpose. Customer
shall have no right to use Ancillary Programs in connection
or combination with any other software programs.
E. As an accommodation to Customer, Siebel may supply Customer
with pre- production releases of Programs (which may be
labeled "Alpha" or "Beta"). Customer acknowledges that these
products may not be suitable for general use and are provided
explicitly subject to the provisions of Section 6.2.D.
F. Programs acquired with United States Federal Government funds
or intended for use within or for any United States federal
agency are provided with "Restricted Rights" as defined in
DFARS 252.227-7013(c)(1)(ii) or FAR 52.227-19.
2.2. ACCEPTANCE OF PROGRAM.
A. The first time a Program License for each Program is issued
to Customer pursuant to this Agreement, Customer shall have a
thirty (30)-day "Acceptance Period," beginning on the
applicable Commencement Date, to evaluate such Program.
During the Acceptance Period, Customer may terminate the
Program License by giving written notice to Siebel in
accordance with Section 5.2 and returning the Program in
accordance with Section 5.5. Unless such termination-notice
is given, the license will be deemed accepted by Customer at
the end of the Acceptance Period. To the extent that Customer
is granted the right to make additional copies of such
Program hereunder, all such copies, made by Customer or
Siebel, shall be deemed accepted.
B. In the event that Customer elects to terminate the Program
Licenses for Programs ordered by Customer in the initial
Order Form pursuant to Section 2.2.A of this Agreement,
Customer's sole and exclusive remedy shall be to terminate
this Agreement and to obtain a refund (except as otherwise
provided in the Order Form) of any Program License fees paid
under this Agreement as of such date.
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C. In the event that Customer elects to terminate a Program
License for other Program(s) ordered by Customer in any
subsequent Order Form pursuant to Section 2.2.A of this
Agreement, Customer's sole and exclusive remedy shall be to
obtain a refund (except as otherwise provided in the Order
Form) of the corresponding Program License fees for such
rejected Program(s).
2.3. TRANSFER AND ASSIGNMENT.
A. Customer may, upon written notice to Siebel and payment of
any then-applicable transfer fee, transfer a Program within
its organization from the Designated System to another
computer system; provided, however, that if Customer
transfers the Program to a hardware and/or software platform
which is not supported by Siebel at the time of such
transfer, Siebel shall continue to provide Updates to
Customer which operate on the Designated System and Siebel
shall have no further obligation to fix errors which occur
when the Program is run on the unsupported platform.
Notwithstanding the foregoing, Customer shall remain
obligated to pay for Software Maintenance and Support
Services ordered by Customer prior to such transfer.
B. Neither this Agreement nor any rights granted hereunder, nor
the use of any of the Programs, may be sold, leased,
assigned, or otherwise transferred, in whole or in part, by
Customer, and any such attempted assignment shall be void and
of no effect; provided, however, that Customer may assign
this Agreement in connection with a merger, acquisition or
sale of all or substantially all of its assets unless the
surviving entity is a direct competitor of Siebel.
2.4. VERIFICATION. At Siebel's written request, not more frequently
than annually, Customer shall furnish Siebel with a document
signed by an authorized representative of Customer (a) verifying
that the Programs are being used pursuant to the provisions of
this Agreement, including any User and other limitations, and that
Customer is not in breach of any other license restrictions; (b)
providing a list of Users by name; and (c) listing the locations,
types and serial numbers of the Designated Systems on which the
Server Programs are run.
Siebel may, at its expense, and upon thirty (30) days' prior
written notice to Customer, audit Customer's use of the Programs.
Any such audit shall be conducted during regular business hours at
Customer's facilities and shall not unreasonably interfere with
Customer's business activities. If an audit reveals that Customer
has underpaid fees to Siebel as a result of unauthorized use or
copying of the Programs, Customer shall pay to Siebel such
underpaid fees based on the Program License fees incurred by
Customer for such Programs plus interest thereon at the prevailing
U.S. dollar prime rate from the initial date of the unauthorized
use. If the amount of the underpayment exceeds 5% of the license
fees paid, then Customer shall also pay Siebel's reasonable costs
of conducting the audit. Audits shall be conducted no more than
once annually.
3. SOURCE CODE ESCROW.
Siebel has placed, or will place within thirty (30) days of the
Commencement Date, documented and working order copies of the User
Programs and Server Programs under the control of an escrow agent
pursuant to the terms of an escrow agreement which provides for the
release of the source code for such Programs to Customer in the event one
or more of the following conditions exists and is uncorrected for a
period of thirty (30) days: entry of an order as to Siebel under Title 11
of the United States Code, the making by Siebel of a general assignment
for the benefit of creditors, the appointment of a general receiver or
trustee in bankruptcy of Siebel's business or property, or action by
Siebel under any state insolvency or similar law for the purpose of
Siebel's bankruptcy, reorganization or liquidation.
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4. TECHNICAL SERVICES.
4.1. SOFTWARE MAINTENANCE AND SUPPORT SERVICES FOR PROGRAMS OTHER THAN
LIMITED PRODUCTION PROGRAMS. Software Maintenance and Support
Services shall be provided under Siebel's Software Maintenance and
Support Services policies in effect on the date the Software
Maintenance and Support Services is ordered, subject to the
payment by Customer of the applicable fees. Customer hereby agrees
to purchase Software Maintenance and Support Services for the
three (3)-year period, commencing on the Commencement Date, for
each Program which is licensed pursuant to this Agreement.
Reinstatement of lapsed Software Maintenance and Support Services
is subject to Siebel's Software Maintenance and Support Services
reinstatement fees in effect on the date Software Maintenance and
Support Services is re-ordered.
4.2. SOFTWARE MAINTENANCE AND SUPPORT SERVICES FOR LIMITED PRODUCTION
PROGRAMS. Customer may obtain Software Maintenance and Support
Services for Limited Production Programs on a time and materials
basis at Siebel's then-current rates for such services.
4.3. TRAINING. Training will only be provided by Siebel as agreed to by
the parties in accordance with Siebel's training and fee schedule
in effect at the time such training is ordered.
4.4. OTHER SUPPORT SERVICES. Other support services will only be
provided by Siebel as agreed to from time to time by the parties,
at Siebel's then-standard billing rate (currently $1,500 per
person per day), plus actual travel and other out-of-pocket
expenses.
4.5. INCIDENTAL EXPENSES. For any on-site services requested by
Customer, Customer shall reimburse Siebel for reasonable travel
and other out-of-pocket expenses.
5. TERM AND TERMINATION.
5.1. TERM. Each Program License granted under this Agreement shall
commence on the applicable Commencement Date and shall remain in
effect perpetually unless such Program License or this Agreement
is terminated as provided in Section 5.2 or 5.3 or in accordance
with the provisions of Section 2.2.
5.2. TERMINATION BY CUSTOMER. Customer may terminate any Program
License at any time by providing written notice to Siebel;
provided, however, that termination hereunder shall not relieve
Customer of its obligations specified in Section 5.4.
5.3. TERMINATION BY SIEBEL. Siebel may terminate this Agreement or any
Program License upon written notice if Customer breaches this
Agreement and fails to correct the breach within thirty (30) days
following written notice from Siebel specifying the breach.
5.4. EFFECT OF TERMINATION. Subject to the provisions of Section 2.2,
termination of this Agreement or any Program License shall not
limit either party from pursuing other remedies available to it,
including injunctive relief, nor shall such termination relieve
Customer of its obligation to pay all fees that have accrued or
are otherwise owed by Customer under any Order Form. The parties'
rights and obligations under Sections 2.1.B, 2.1.C and 2.2 and
Sections 5, 6.1, 7, 8 and 9 shall survive termination of this
Agreement.
5.5. HANDLING OF PROGRAMS UPON TERMINATION. If a Program License
granted under this Agreement terminates, Customer shall (a) cease
using the applicable Programs, and (b) certify to Siebel within
thirty (30) days after termination that Customer has destroyed, or
has returned to Siebel, the Programs and all copies thereof. This
requirement applies to copies in all forms, partial and complete,
in all types of media and computer memory, and whether or not
modified or merged into other materials. Before returning Programs
to Siebel, Customer shall acquire a Return Material Authorization
("RMA") number from Siebel.
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6. INDEMNITY, WARRANTIES, REMEDIES.
6.1. INFRINGEMENT INDEMNITY. Siebel will defend and indemnify Customer
against any and all costs, liabilities, damages and expenses
incurred by Customer related to or arising out of a claim that the
Programs infringe a trade secret, trademark, copyright, or patent
recognized in the United States, provided that: (a) Customer
notifies Siebel in writing within thirty (30) days of the
Customer's written or other documented notice of a potential
claim; (b) Siebel has sole control of the defense of such claim
and all related settlement negotiations; and (c) Customer provides
Siebel, at Siebel's reasonable expense, with the assistance,
information and authority necessary to perform Siebel's
obligations under this Section. Notwithstanding the foregoing,
Siebel shall have no liability for any claim of infringement based
on (i) use of a superseded or altered release of Programs if the
infringement would have been avoided by the use of a current
unaltered release of the Programs, which Siebe l provided to
Customer, or (ii) use of the Programs in combination with any
other software, hardware or data to the extent that the absence of
such combination the Programs would not have been infringing.
In the event the Programs are held or are believed by Siebel to
infringe, Siebel shall have the option, at its expense, to (a)
modify the Programs to be noninfringing; (b) obtain for Customer a
license to continue using the Programs; or (c) terminate the
Program License for the infringing Programs and refund the license
fees paid for those Programs, such amount to be reduced by twenty
percent (20%) for each year of the Customer's use thereof since
the Commencement Date of the applicable Program License. This
Section 6.1 states Siebel's entire liability and Customer's
exclusive remedy for infringement.
6.2. LIMITED WARRANTIES AND DISCLAIMERS.
A. LIMITED PROGRAM WARRANTY. Siebel warrants for a period of one
(1) year from the date on which an Ordered Program is first
delivered to Customer hereunder, that each unmodified Ordered
Program for which Customer has a Program License will perform
in all material respects the functions described in the
Documentation when operated on a platform which is supported
by Siebel.
B. LIMITED MEDIA WARRANTY. Siebel warrants that the tapes,
diskettes or other media upon which Programs are delivered by
Siebel to Customer to be free of defects in materials and
workmanship under normal use for ninety (90) days from the
Commencement Date.
C. LIMITED SERVICES WARRANTY. Siebel warrants that any services
contracted to be performed by Siebel pursuant to this
Agreement, including Maintenance and Support Services, shall
be performed in a manner consistent with generally accepted
industry standards. This warranty shall be valid for ninety
(90) days from performance of service.
D. DISCLAIMERS. Siebel does not warrant that the Programs will
meet Customer's requirements, that the Programs will operate
in the combinations which Customer may select for use, that
the operation of the Programs will be uninterrupted or
error-free, or that all Program errors will be corrected.
Limited Production Programs, pre-production releases of
Programs, and computer-based training products are
distributed "AS IS". THE WARRANTIES ABOVE ARE EXCLUSIVE AND
IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED
OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
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CONFIDENTIAL TREATMENT REQUESTED
6.3. EXCLUSIVE REMEDIES. Customer must report in writing any breach of
the warranties contained in Section 6.2 to Siebel during the
relevant warranty period, and Customer's exclusive remedy and
Siebel's entire liability for such breach shall be:
A. FOR PROGRAMS. To use its commercially reasonable efforts to
correct or provide a workaround for reproducible Program
errors that cause breach of this warranty, or if Siebel is
unable to make the Program operate as warranted, Customer
shall be entitled to recover the fees paid to Siebel for the
Program License, such amount to be reduced by [***]
for each year of Customer's use thereof since the
Commencement Date of the applicable Program.
B. FOR MEDIA. The replacement of defective media, provided that
Customer shall acquire an RMA number from Siebel before
returning defective media to Siebel.
C. FOR SERVICES. The reperformance of the services, or if Siebel
is unable to perform the services as warranted, Customer
shall be entitled to recover the fees paid to Siebel for the
unsatisfactory services.
6.4. GENERAL INDEMNITY. Siebel will indemnify, hold harmless, and at
Customer's request defend, Customer from and against any loss,
cost, liability or expense (including court costs and the
reasonable fees of attorneys and other professionals) arising out
of or resulting from the performance by Siebel of its obligations
under this Agreement, to the extent caused by any negligent or
willful act or omission of Siebel's employees or agents that
contributes to the following: (i) any bodily injury, sickness,
disease or death; (ii) any injury or destruction to tangible
property resulting therefrom; or (iii) any violation of any
statute, ordinance or regulation.
7. LIMITATION OF LIABILITY GENERALLY.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES
FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER
THAT NOTHING IN THIS SECTION OR THIS AGREEMENT SHALL LIMIT EITHER PARTY'S
LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR
WILFULL CONDUCT.
Notwithstanding the foregoing, Siebel's lost revenue caused by a breach
by Customer of the scope of the license granted under Section 2 or its
obligations regarding Siebel's intellectual property rights under
Sections 2 and 9.1 shall constitute a direct damage. Siebel's liability
for damages hereunder shall in no event exceed the amount of fees paid by
Customer under this Agreement, and if such damages result from Customer's
use of the Program or services, such liability shall be limited to fees
paid for the relevant Program or services giving rise to the liability,
such amount to be reduced [***] for each year of use thereof since the
Commencement Date of the applicable Program License or the date of
performance of the applicable services.
The provisions of this Agreement allocate the risks between Siebel and
Customer. Siebel's pricing reflects this allocation of risk and the
limitation of liability specified herein.
8. PAYMENT PROVISIONS.
8.1. LICENSE FEES. License fees shall be payable as set forth in the
Order Forms attached hereto. Concurrently with the execution of
this Agreement, Customer agrees to place a binding initial order
for Programs of not less than [***] in Program License Fees
using the Order Form attached hereto as EXHIBIT A.
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8.2. SOFTWARE MAINTENANCE AND SUPPORT SERVICES. Fees for Software
Maintenance and Support Services shall be payable annually, in
advance, with the first payment due thirty (30) days from the
applicable Commencement Date and the payment every year thereafter
due in advance provided Customer has received Siebel's invoice not
less than thirty (30) days prior to the applicable payment date.
In the event Customer acquires additional Program Licenses
pursuant to this Agreement, maintenance fees will be payable on
the same terms except, however, that the first installment shall
be pro-rated for the balance of the annual period referenced above
such that all subsequent fees for maintenance, Updates and support
shall be payable on the same anniversary date for all Program
Licenses granted pursuant to this Agreement.
8.3. OTHER FEES. All other applicable fees, if any, shall be payable
thirty (30) days from the receipt of Siebel's invoice.
8.4. LATE PAYMENTS. Any amounts payable by Customer hereunder which
remain unpaid more than ten (10) days after the due date shall be
subject to a late charge equal to one and one-half percent (1.5%)
per month from the due date until such amount is paid.
8.5. MEDIA AND SHIPPING CHARGES. Customer agrees to pay applicable
media and shipping charges.
8.6. TAXES. The fees listed in this Agreement do not include taxes; if
Siebel is required to pay sales, use, property, value-added or
other taxes based on the Program Licenses granted or services
provided in this Agreement or on Customer's use of Programs or
services, then such taxes shall be billed to and paid by Customer.
This Section shall not apply to taxes based on Siebel's income.
9. GENERAL TERMS.
9.1. NONDISCLOSURE. By virtue of this Agreement, the parties may have
access to information that is confidential to one another
("Confidential Information"). Siebel's Confidential Information
shall include the Programs, formulas, methods, know how,
processes, designs, new products, developmental work, marketing
requirements, business and marketing plans, customer names,
prospective customer names, the terms and pricing under this
Agreement, any data relating to any research project, work in
process, engineering, manufacturing, marketing, servicing,
financing or personnel matter relating to Siebel, its present or
future products, sales, suppliers, clients, customers, employees,
investors or business partners (including any confidential
information of such suppliers, clients, customers, employees,
investors or business partners) and all information clearly
identified in writing at the time of disclosure as confidential,
but shall not include the source code for the Programs, which shal
l be handled in accordance with the applicable provisions of the
source code escrow agreement. Customer's Confidential Information
shall include its formulas, methods, know how, processes, designs,
new products, developmental work, marketing requirements, business
and marketing plans, customer names, prospective customer names,
proprietary software programs, the terms and pricing under this
Agreement, any data relating to any research project, work in
process, engineering, manufacturing, marketing, servicing,
financing or personnel matter relating to Customer, its present or
future products, sales, suppliers, clients, customers, employees,
investors or business partners (including any confidential
information of such suppliers, clients, customers, employees,
investors or business partners) and all information clearly
identified in writing at the time of disclosure as confidential.
A party's Confidential Information shall not include information
that (a) is or becomes a part of the public domain through no act
or omission of the other party; (b) was in the other party's
lawful possession prior to the disclosure and had not been
obtained by the other party either directly or indirectly from the
disclosing party; (c) is lawfully disclosed to the other party by
a third party without restriction on disclosure; or (d) is
independently developed by the other party. Customer shall not
disclose the results of any performance tests of the Programs to
any third party without Siebel's prior written approval.
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The parties agree to hold each other's Confidential Information in
confidence during the term of this Agreement and for a period of
five years after termination of this Agreement. The parties agree,
unless required by law, not to make each other's Confidential
Information available in any form to any third party or to use
each other's Confidential Information for any purpose other than
in the performance of this Agreement. Each party agrees to take
all reasonable steps to ensure that Confidential Information is
not disclosed or distributed by its employees or agents in
violation of the terms of this Agreement.
9.2. GOVERNING LAW. This Agreement and all matters arising out of or
relating to this Agreement, shall be governed by the laws of the
State of California, excluding its conflict of law provisions. The
parties agree that the United Nations Convention on Contracts for
the International Sale of Goods is specifically excluded from the
application to this Agreement.
9.3. JURISDICTION. Any legal action or proceeding relating to this
Agreement shall be instituted in a state court in Santa Clara or
San Mateo County, California, or in a federal court in the
Northern District of California. Siebel and Customer agree to
submit to the jurisdiction of, and agree that venue is proper in,
these courts in any such legal action or proceeding.
9.4. NOTICES. All notices, including notices of address change,
required to be sent hereunder shall be in writing and shall be
deemed to have been given upon the date sent by confirmed
facsimile or three (3) days following the date such notice was
mailed by first class mail, to the addresses first set forth
above.
To expedite order processing, Customer agrees that Siebel may
treat documents faxed by Customer to Siebel as original documents;
nevertheless, either party may require the other to exchange
original signed documents.
9.5. SEVERABILITY. In the event any provision of this Agreement is held
to be invalid or unenforceable, the remaining provisions of this
Agreement will remain in full force.
9.6. WAIVER. 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. Except for actions for nonpayment or
breach of Siebel's proprietary rights in the Programs, no action,
regardless of form, arising out of this Agreement may be brought
by either party more than one year after the cause of action has
accrued.
9.7. EXPORT ADMINISTRATION. Customer agrees to comply fully with all
relevant export laws and regulations of the United States ("Export
Laws") to assure that neither the Programs nor any direct product
thereof are (i) exported, directly or indirectly, in violation of
Export Laws; or (ii) are intended to be used for any purposes
prohibited by the Export Laws, including, without limitation,
nuclear, chemical, or biological weapons proliferation.
9.8. RELATIONSHIP BETWEEN THE PARTIES. Siebel is an independent
contractor; nothing in this Agreement shall be construed to create
a partnership, joint venture or agency relationship between the
parties.
9.9. SUCCESSORS. This Agreement shall inure to the benefit of the
successors and assigns of Siebel and, subject to the restrictions
on transfer or assignment herein set forth in Section 2.3, shall
be binding upon the Customer and Customer's successors and
assigns.
9.10. PUBLICITY. Upon Customer's prior written approval, Customer and
Siebel agree to issue a joint press release regarding the
licensing to Customer of the Programs, and for a mutually
determined executive of Customer to publicly endorse the Siebel's
product and the Customer's relationship with Siebel. Upon
Customer's prior written approval, Customer agrees to allow Siebel
to publicize its licensing of the Programs to Customer in its
marketing and advertising material, and authorizes to reproduce
its company logo in connection therewith.
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10
9.11. ENTIRE AGREEMENT. This Agreement, together with the exhibits,
appendices and attachments hereto, constitutes the complete
agreement between the parties and supersedes all prior or
contemporaneous agreements or representations, written or oral,
concerning the subject matter of this Agreement and such exhibits,
appendices and attachments. This Agreement may not be modified or
amended except in a writing signed by a duly authorized
representative of each party. No other act, document, usage or
custom shall be deemed to amend or modify this Agreement.
The Effective Date of this Agreement shall be March 29, 1996.
EXECUTED BY MONTGOMERY SECURITIES EXECUTED BY SIEBEL SYSTEMS, INC.
LWC INVESTMENTS, A GENERAL PARTNER
Signature: Signature:
----------------------------- ------------------------
Name: Name:
---------------------------------- -----------------------------
Title: Title:
--------------------------------- ----------------------------
Date: Date:
---------------------------------- -----------------------------
Signature:
-----------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
----------------------------------
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11
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A
ORDER FORM
Customer Name: Montgomery Securities
----------------------------------------------------
Effective Date of Software License and Services Agreement: March 29, 1996
----------------------
Number of Server Systems:
------------------
Maximum Number of Named Users: [***] except as otherwise provided below with
--------------------------------------------------
respect to certain User Programs
- --------------------------------
DESIGNATED SYSTEM:
Server Hardware NT
Server Location(s) 600 Montgomery Street, San Francisco
Data Base Management System Sybase v11
USER PROGRAMS:
=============================================================================================================================
USER PROGRAMS LICENSED: Number PROGRAM NUMBER VERSION PRICE PER NAMED USER
of Users
- -----------------------------------------------------------------------------------------------------------------------------
Siebel Sales Enterprise [***] 10 M01-SE-02000 2.1 [***]
- -----------------------------------------------------------------------------------------------------------------------------
Marketing Encyclopedia [***] 10 M01-ME01-02000 2.1 [***]
- -----------------------------------------------------------------------------------------------------------------------------
Correspondence System [***] 10 M01-CR01-02000 2.1 [***]
- -----------------------------------------------------------------------------------------------------------------------------
Revenue Forecasting System [***] 10 M01-RV01-02000 2.1 [***]
- -----------------------------------------------------------------------------------------------------------------------------
Reportwriter with Standard Reports [***] 10 M01-RW01-02000 2.1 [***]
- -----------------------------------------------------------------------------------------------------------------------------
Executive Information Systems [***] 10 M01-EI01-02000 2.1 [***]
- -----------------------------------------------------------------------------------------------------------------------------
Tele Business Extensions [***] 10 M01-TE01-02000 2.1 [***]
- -----------------------------------------------------------------------------------------------------------------------------
Field Sales Synchronization [***] 10 M01-FS01-02000 2.1 [***]
- -----------------------------------------------------------------------------------------------------------------------------
Business Object Configurator [***] 10 M01-BO01-02000 2.1 [***]
=============================================================================================================================
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12
CONFIDENTIAL TREATMENT REQUESTED
SERVER PROGRAMS:
=====================================================================================================================
SERVER PROGRAMS LICENSED: PROGRAM NUMBER VERSION PRICE PER NAMED USER
- ---------------------------------------------------------------------------------------------------------------------
Marketing Administration Manager 10 M01-MM01-02000 2.1 [***]
Sales Administration Manager 10 M01-SA01-02000 2.1 [***]
Data Replication Manager 10 M01-DR01-02000 2.1 [***]
Enterprise Integration Manager 10 M01-EM01-02000 2.1 [***]
=====================================================================================================================
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13
CONFIDENTIAL TREATMENT REQUESTED
ANCILLARY PROGRAMS:
================================================================================
PRODUCT VERSION
- --------------------------------------------------------------------------------
Watcom SQL Database Runtime v4.0
- --------------------------------------------------------------------------------
MS Access Runtime v2.0
- --------------------------------------------------------------------------------
Adobe Acrobat Exchange LE v2.x
- --------------------------------------------------------------------------------
Adobe Type Manager v3.01
- --------------------------------------------------------------------------------
MS ODBC Drivers v3.x
================================================================================
- --------------------------------------------------------------------------------
TOTAL PROGRAM LICENSE FEES FOR USER, SERVER AND ANCILLARY PROGRAM [***]
LICENSES FOR [***] USERS DUE AND PAYABLE AS FOLLOWS:
[***] ON OR BEFORE EXECUTION OF THIS AGREEMENT(1)
[***] NET 30 DAYS FROM THE EXECUTION OF THIS AGREEMENT(2)
================================================================================
(1) This payment is nonrefundable.
(2) This payment is nonrefundable unless Customer gives Siebel a written
termination-notice within the thirty (30)-day Acceptance Period in accordance
with the provisions of Section 2.2A.
SOFTWARE MAINTENANCE AND SUPPORT SERVICES: Customer hereby purchases Software
Maintenance and Support Services for that number of Program Licenses for each
supported Program which Customer purchases pursuant to this Agreement, for the
three year period commencing on the applicable Commencement Date. The annual fee
for such Software Maintenance and Support Services shall be 15% of the
cumulative license fees due under this Agreement.
TOTAL ANNUAL MAINTENANCE FEES $ [***]/YEAR
SUBSEQUENT ORDERS. Assuming Customer enters into a binding license agreement for
[***] in Program License Fees by March 31,1996, and pays such amount on or
before April 30, 1996, Siebel will extend to Customer the same quantity discount
of [***] from Siebel's then current List Price for additional Program Licenses
purchased prior to December 31, 1997, pursuant to a new binding, noncancelable
Order Form (substantially in the form of this EXHIBIT A). These discounts apply
only to minimum purchases of the same configuration of Programs purchased herein
in blocks of not less than [***] Users. In addition, Customer may purchase
Program Licenses for the Database Extension Manager Server Program at the same
[***] quantity discount from Siebel's then current List Price if such Program
Licenses are purchased prior to December 31, 1996 and in a minimum block of
[***] Users.
ORDER ACCEPTED AND ACKNOWLEDGED:
MONTGOMERY SECURITIES SIEBEL SYSTEMS, INC.
LWC INVESTMENTS, A GENERAL PARTNER
Signature: Signature:
---------------------------- --------------------------
Name: Name:
--------------------------------- -------------------------------
Title: Title:
-------------------------------- ------------------------------
Date: Date:
--------------------------------- -------------------------------
Signature:
----------------------------
Name:
---------------------------------
Title:
--------------------------------
Page 13 of 17
14
Date:
---------------------------------
Page 14 of 17
15
EXHIBIT B
SOFTWARE MAINTENANCE AND SUPPORT SERVICES SCHEDULE
At any given time, Siebel shall provide support for (a) the then-current version
of the Programs enumerated in Order Forms executed pursuant to an applicable
Software License and Services Agreement, (b) the immediately preceding version
of such Programs, but only for a period of six (6) months following the release
of the then-current version. In any event, Siebel agrees that it will shall
provide support for every major release of the Programs (e.g., version 2,
version 3) for a period of not less than 12 months following the date of initial
release. Such Programs are referred to in this Schedule as the "Supported
Programs."
1. MAINTENANCE.
1.1 Software Maintenance covers Supported Programs. Siebel will use
reasonable commercial efforts to cure, as described below,
reported and verifiable errors in Supported Programs so that such
Programs operate as specified in the associated Documentation.
Siebel recognizes three error levels:
High severity error: A high severity error is an error which
halts the operation of a Program and for which there is no
work-around. Siebel will begin work on the error within two hours
of notification during normal business hours and will engage
development staff until an acceptable work-around is achieved.
Low severity error: A low severity error may halt operation
of a Program but has a work-around available. Siebel will begin
work on the error within a day of notification and will engage
development staff.
Inconvenience: An error which exhibits incorrect
functionality but does not halt operation of a Program. Siebel
will use its best efforts to deliver a fix or a work-around in a
subsequent Program Update.
Siebel will provide Customer with a single copy of the fix or
work-around on suitable media. Customer will distribute the fix or
work-around to User Systems or Server Systems as necessary.
2. UPDATES.
2.1 Siebel shall, from time to time, in its sole discretion make
Updates to Supported Programs available to Customer at no
additional charge except for media and handling charges.
3. SUPPORT.
3.1 Customer shall establish and maintain the organization and
processes to provide "First Line Support" for the Supported
Programs directly to Users. First Line Support shall include but
not be limited to (a) a direct response to Users with respect to
inquiries concerning the performance, functionality or operation
of the Supported Programs, (b) a direct response to Users with
respect to problems or performance deficiencies with the Supported
Programs, (c) a diagnosis of problems or performance deficiencies
of the Supported Programs and (d) a resolution of problems or
performance deficiencies of the Supported Programs.
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CONFIDENTIAL TREATMENT REQUESTED
3.2 If after reasonable commercial efforts Customer is unable to
diagnose or resolve problems or performance deficiencies of the
Supported Programs, Customer shall contact Siebel for "Second Line
Support" and Siebel shall provide support for the Supported
Programs in accordance with Siebel's then current policies and
procedures for Second Line Support.
3.3 Siebel shall establish and maintain the organization and processes
to provide Second Line Support for the Supported Programs to
Customer. Second Line Support shall be provided to Customer only
if, after reasonable commercial efforts, Customer is unable to
diagnose and/or resolve problems or performance deficiencies of
the Programs. Second Line Support shall be provided to up to two
designated representatives of Customer. Siebel shall not provide
Second Line Support directly to Users. [Note: Other
representatives of Customer are free to contact appropriate
representatives of Siebel to discuss or obtain assistance on
technical matters not related to Second Line Support]
3.4 Second Line Support shall include but not be limited to (i) a
diagnosis of problems or performance deficiencies of the Supported
Programs and (ii) a resolution of problems or performance
deficiencies of the Supported Programs, in each case via
telephone.
3.5 Second Line Support shall be provided via telephone (800-214-0400)
by Siebel from 8:30 a.m. Pacific Time to 6:00 p.m. Pacific time on
regular U.S. business days, holidays excepted.
4. MAINTENANCE AND SUPPORT FEES.
4.1 Annual Fees: Annual Fees for software maintenance, update and
support services as described herein shall be equal to
[***] of the as stated on the applicable Order Form as
"Total Program License Fees" provided, however, that the fees for
such Software Maintenance and Support Services shall not increase
by more than [***] of the previous year's fees for a comparable
level of service. Such fees shall be payable annually, in advance,
with the first payment due thirty (30) days from applicable
Commencement Date and the payment every year thereafter due in
advance. In the event Customer acquires additional Program
Licenses, maintenance fees for such additional Programs will be
payable on the same terms except, however, that the first
installment shall be pro-rated for the balance of the annual
period referenced above such that all subsequent fees for
maintenance, updates and support shall be payable on the same
anniversary date for all Program Licenses granted to the
Agreement.
4.2 Reinstatement: Siebel may, at its sole option, reinstate lapsed
Software Maintenance and Support Services in accordance with its
then current policies upon payment by Customer of the applicable
reinstatement fee.
5. EXCLUDED SERVICES. The following services are outside the scope of
Siebel's Software Maintenance and Support Services:
5.1 Service for Programs which have been subject to unauthorized
modification by Customer.
5.2 Service which becomes necessary due to:
(i) Failure of computer hardware or equipment or programs not
covered by this schedule; or
(ii) Catastrophe, negligence of Customer or any third party,
operator error, improper use of hardware or software or
attempted maintenance by unauthorized persons.
5.3 Services at the Customer's site.
6. OTHER TERMS. Except as stated in this Schedule, services shall be
subject to the terms and conditions of the applicable Software
License and Services Agreement between Siebel and Customer.
Page 16 of 17
17
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT C
DOCUMENTATION
Description of Documentation:
Siebel's Documentation includes on-line help for all licensed users and three
(3) copies of the Siebel Sales Enterprise Installation Guide and the
Administration Guide per site is provided at [***]. Additional
Documentation is priced as follows:
DOCUMENTATION(2) VERSION PRICE PER COPY(6)
Release Notes(3) v 2.0 $[***]
Installation and Upgrade Guide(3) v 2.0 [***]
Administration Guide(3) v 2.0 [***]
Database Extension Reference Manual(3),(4) v 2.0 [***]
Business Object Configuration Guide(3),(4),(5) v 2.0 [***]
(2) Documentation currently available from Siebel as of the Effective Date.
Siebel reserves the right to add, delete or modify the Documentation and any
related fees at any time.
(3) Non-disclosure provisions consistent with the terms of this Agreement are
required before access or disclosure of any kind is given to Customer employees
or third parties.
(4) Available only to Customers with a Database Extensibility software license.
(5) Available only to Customers with a valid Business Object Configurator
software license.
Page 17 of 17