CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS DOCUMENT AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF
THE SECURITIES ACT OF 1933, AS AMENDED. ASTERISKS DENOTE THESE OMISSIONS.
LICENSE AGREEMENT between
ObjectSpace, Inc. and Tivoli Systems Inc. for
ObjectSpace Voyager
Agreement Number: OEM9700287
This Agreement dated October 28, 1997 ("Effective Date") is between ObjectSpace
Inc. ("ObjectSpace") with an address for purposes of this Agreement at 14881
Quorum Drive, Suite 400, Dallas, Texas 75240, and Tivoli Systems Inc.
("Tivoli"), with an address for purposes of this Agreement at 9442 Capital of
Texas Highway, Austin, Texas 78759. Tivoli is a wholly owned subsidiary of
International Business Machines Corporation ("IBM"). Under this Agreement,
ObjectSpace grants Tivoli a limited license to its computer software program
known as ObjectSpace Voyager which enables Tivoli to build Java applications for
system, network and application management using the ObjectSpace Voyager APIs,
tools and run-time environment.
By signing below, the parties agree to the terms of this Agreement. The complete
Agreement between the parties regarding this transaction consists of this
License Agreement and the following Attachments:
1. "Description of Licensed Work;"
2. "Testing, Maintenance and Support;" and
3. "Certificate of Originality."
Confidential Disclosure Agreement ("CDA"), No. OTH9700233, dated August 12,
1997, and the "Tivoli End User License Agreement", No. ETM9700288, are related
agreements between the parties.
This Agreement replaces all prior oral or written communications between the
parties relating to the subject matter. Once signed, any reproduction of this
Agreement made by reliable means (for example, photocopy or facsimile) is
considered an original, unless prohibited by local law.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
TIVOLI SYSTEMS INC. OBJECTSPACE, INC.
By: /s/ HOWARD J. NICHOLAS By: /s/ KENNETH J. OVERTON
-------------------------------- --------------------------------
Authorized Signature Authorized Signature
Name: Howard J. Nicholas Name: Kenneth J. Overton
------------------------------ ------------------------------
Title: Manager, Contract Services Title: VP, Enterprise Solutions
----------------------------- -----------------------------
Date: October 28, 1997 Date: October 28, 1997
------------------------------ ----------------------------
1
1.0 DEFINITIONS
Capitalized terms in the Agreement have the following meanings.
1.1 Code is computer programming code, including both Object Code and Source
Code.
a. OBJECT CODE is Code substantially in binary form, and includes
header files of the type necessary for use or interoperation
with other computer programs. It is directly executable by a
computer after processing or linking, but without compilation
or assembly. Object Code is all Code other than Source Code.
b. SOURCE CODE is Code in a form which when printed out or
displayed is readable and understandable by a programmer of
ordinary skills. It includes related source code level system
documentation, comments and procedural code. Source Code does
not include Object Code.
1.2 DELIVERABLE is any item that ObjectSpace provides under this Agreement.
1.3 DERIVATIVE WORK is a work that is based on an underlying work and that
would be a copyright infringement if prepared without the authorization
of the copyright owners of the underlying work. Derivative Works are
subject to the ownership rights and licenses of a party or of others in
the underlying work.
1.4 DISTRIBUTORS are those authorized or licensed by Tivoli or IBM, or any
of their Subsidiaries or Distributors, to license or distribute
Products.
1.5 ENHANCEMENTS are changes or additions, other than Error Corrections, to
the Licensed Work.
a. BASIC ENHANCEMENTS are all Enhancements, other than Major
Enhancements, including those that support new releases of
operating systems and devices.
b. MAJOR ENHANCEMENTS provide substantial additional value and
are offered to customers for an additional charge.
1.6 ERROR CORRECTIONS are revisions that correct errors and deficiencies
(collectively referred to as "errors") in the Licensed Works.
1.7 EXTERNALS are (1) any pictorial, graphic, and audiovisual works (such
as icons, screens, sounds, and characters) generated by execution of
Code, and (2) any programming interfaces, languages or protocols
implemented in Code to enable interaction with other computer programs
or the end user. Externals do not include the Code that implements
them.
1.8 LICENSED WORK is (1) ObjectSpace Voyager Code, in both Object Code and
Source Code format, including any other material described in or that
conforms to the description in the Attachment entitled "Description of
Licensed Work," or that is delivered to Tivoli as the Licensed Work,
including (but not limited to) Code, associated documentation, and
Externals, and (2) Error Corrections and Enhancements.
1.9 MORAL RIGHTS are personal rights associated with authorship of a work
under applicable law. They include the rights to approve modifications
and to require authorship identification.
2
1.10 PRODUCT is a current and/or future product, including a new version or
release of such product, whether or not branded by Tivoli or IBM, which
contains some or all of the Licensed Work or a Derivative Work of a
Licensed Work. A Product must add significant function or value to the
Licensed Work contained in the Product by integrating, embedding,
bundling or incorporating it into or with one or more of Tivoli's
network or systems management products or suite of products (including
IBM if such Tivoli products are transferred to it) such that the
primary reason for developing the Product is other than to license the
Licensed Works by themselves to third parties.
1.11 SUBSIDIARY is an entity during the time that more than 50% of its
voting stock is owned or controlled, directly or indirectly, by another
entity. If there is no voting stock, a Subsidiary is an entity during
the time that more than 50% of its decision-making power is controlled,
directly or indirectly, by another entity.
1.12 TOOLS include devices, compilers, programming, documentation, media and
other items required for the development, maintenance or implementation
of a Deliverable that are not commercially available.
2.0 RESPONSIBILITIES OF OBJECTSPACE
2.1 ObjectSpace will provide the following Deliverables to Tivoli as soon
as commercially practical but no later than 30 days from the Effective
Date:
a one complete set of the Licensed Work described in the
Attachment entitled "Description of Licensed Work".
b. Tools. There are currently no Tools for the Licensed Work. If
Tools are later required, ObjectSpace will provide Tivoli with
a written list that includes a description of the Tool, and
promptly deliver such Tools (including updates to such Tools)
to Tivoli.
c. any updates to the following list. This list identifies any
commercially available devices, compilers, programming,
documentation, media and other items required for the
development, maintenance or implementation of a Deliverable:
----------------------------------------------------------------------------------------------
PART NUMBER/ VERSION/
DESCRIPTION MODEL NUMBER RELEASE MANUFACTURER
----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
1
-----------------------------------------------------------------------------------------------
2
-----------------------------------------------------------------------------------------------
3
-----------------------------------------------------------------------------------------------
4
-----------------------------------------------------------------------------------------------
5
-----------------------------------------------------------------------------------------------
6
-----------------------------------------------------------------------------------------------
ObjectSpace's delivery obligations for Tools does not apply to
the items listed in this chart.
c. a completed certificate of originality with the Licensed Work,
and with each Enhancement to the Licensed Work, in the form
specified in the Attachment entitled
3
CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS DOCUMENT AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF
THE SECURITIES ACT OF 1933, AS AMENDED. ASTERISKS DENOTE THESE OMISSIONS.
"Certificate of Originality". Tivoli may suspend payments to
ObjectSpace for the Licensed Work if ObjectSpace does not
provide a properly completed certificate. Payment will resume
after Tivoli receives and accepts the certificate.
2.2 ObjectSpace will provide support for the Licensed Work as follows:
a. For the first full year following the Effective Date,
ObjectSpace will provide to Tivoli, at no charge, testing,
maintenance and support for the Licensed Work as described in
this Agreement, including the Attachment entitled, "Testing,
Maintenance and Support," as well as Basic and Major
Enhancements, and Error Corrections for the Licensed Work
beginning when Tivoli accepts the Licensed Work.
b. For the second full year following the Effective Date, Tivoli
may, at its option, elect to continue to purchase such
testing, maintenance, support, Enhancements (both Basic and
Major), and Error Corrections from ObjectSpace for an annual
fee of *.
c. Thereafter, Tivoli may, at its option, elect to continue to
purchase such testing, maintenance, support, Enhancements
(both Basic and Major), and Error Corrections from ObjectSpace
for the annual fee defined in this paragraph for so long as
Tivoli may require such support. ObjectSpace may charge Tivoli
an annual fee for such support not to exceed 105% of the fee
for the prior twelve month period.
d. ObjectSpace agrees to submit an invoice to Tivoli for such
support on an annual basis, and at least 30 days prior to the
beginning of each 12 month period. If Tivoli does not wish to
receive such support, Tivoli will so notify ObjectSpace.
e. If Tivoli cancels such support, Tivoli may reinstate it at a
later time by paying the support charges then in effect and an
additional fee. The additional fee will be equal to the
current annual support charges multiplied by the number of
annual periods for which support was interrupted. For purposes
of calculating the additional fee, portions of periods will
count as full periods.
2.3 ObjectSpace will:
a. participate in progress reviews, as requested by Tivoli, to
demonstrate ObjectSpace's performance of ObjectSpace's
obligations;
b. implement or continue suitable processes designed to help
prevent contamination by harmful code. ObjectSpace will
provide Tivoli notice if ObjectSpace suspects contamination;
c. have agreements with ObjectSpace's personnel and third parties
to perform obligations and to grant or assign rights to Tivoli
as required by this Agreement. On request, ObjectSpace will
provide Tivoli with evidence of these agreements;
d. maintain records to verify authorship of the Licensed Work for
4 years after the termination or expiration of this Agreement.
On request, ObjectSpace will deliver or otherwise make
available this information in a form specified by Tivoli;
e. not assign or transfer this Agreement or ObjectSpace's rights
under it, or delegate or subcontract ObjectSpace's
obligations, without Tivoli's prior written consent.
Notwithstanding the foregoing, ObjectSpace may assign or
otherwise transfer this
4
Agreement, or delegate its duties and obligations under
this Agreement, to a Subsidiary of ObjectSpace, without the
consent of Tivoli, but ObjectSpace will promptly notify
Tivoli of any such transfer, assignment or delegation. Any
other attempt to do so is void. In addition, ObjectSpace
specifically agrees that, prior to any planned sale by
ObjectSpace of the Licensed Work or sale by ObjectSpace of
its assets, which include the Licensed Work, including any
merger or other business combination, it will offer the
Licensed Work to Tivoli under the same terms and
conditions, including pricing, as ObjectSpace agreed on
with such prospective purchaser, on a first right of
refusal basis. If Tivoli elects not to exercise such right,
it will not unreasonably withhold its consent to an
ObjectSpace request under this section;
f. not provide any information to the media, or issue any press
releases or other publicity, regarding this Agreement or the
parties' relationship under it, without Tivoli's prior written
consent, except as otherwise set forth in Section 4.1 of this
Agreement; and
g. not disclose to a third party the terms of this Agreement or
the fact that Tivoli has licensed the Licensed Work, without
Tivoli's prior written consent, except as otherwise set forth
in Section 4.1 of this Agreement. ObjectSpace may, however,
make such disclosures (i) to its accountants, lawyers or other
professional advisors provided that any such advisor is under
a confidentiality obligation and (ii) as required by law
provided ObjectSpace obtains any confidentiality treatment for
it which is available.
2.4 If ObjectSpace fails to deliver the Licensed Work, Tivoli may either
reduce any amounts due hereunder by an amount equal to the value not
received, or have ObjectSpace reimburse Tivoli for the value not
received, up to the total license fee set forth under Section 6 below.
ObjectSpace also acknowledges that if it does not deliver the Licensed
Work, Tivoli will suffer irreparable harm and will be entitled to all
equitable remedies, including specific performance for the delivery of
such Licensed Work.
If ObjectSpace fails to deliver maintenance, support, Enhancements
(both Basic and Major), and Error Corrections for a Licensed Work,
Tivoli may either reduce any amounts due hereunder by an amount equal
to the value not received, or have ObjectSpace reimburse Tivoli for the
value not received, up to a total of the annual fee paid by Tivoli for
the year in which such failure occurred.
3.0 TIVOLI OBLIGATIONS
3.1 Tivoli will provide ObjectSpace with the following Tivoli software
programs, in the quantities specified, under the terms and conditions
of its standard Tivoli End User License Agreement, a copy of which is
attached to this Agreement. In consideration of the rights and licenses
granted by ObjectSpace under this Agreement, Tivoli agrees to waive the
one-time charge for such programs, and the first year's fee for
maintenance and support for the such programs as described in the
Tivoli End User License Agreement. After the first year, such
maintenance and support will be available at Tivoli standard pricing.
5
CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS DOCUMENT AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF
THE SECURITIES ACT OF 1933, AS AMENDED. ASTERISKS DENOTE THESE OMISSIONS.
PROGRAM NAME QUANTITY
SERVERS CLIENTS
TME [*] Enterprise Console [*] [*]
TME [*] Netview [*] [*]
TME [*] Framework [*] [*]
TME [*] Software Distribution [*] [*]
TME [*] Inventory [*] [*]
TME [*] User Administration [*] [*]
TME [*] Distributed Monitoring [*] [*]
TME [*] Remote Control [*] [*]
_______ [*] [*]
4.0 MUTUAL OBLIGATIONS
4.1 The parties agree to issue a mutually-acceptable press release
regarding their relationship under this Agreement as soon as
commercially practicable following the Effective Date.
4.2 The parties agree to perform certain joint marketing activities
regarding Products when such marketing is to the mutual benefit of both
parties, as determined by each party in its sole discretion.
4.3 Tivoli agrees to allow ObjectSpace to write a case study covering the
benefits Tivoli received through the use of the Licensed Work as an
infrastructure for the development of Products. Tivoli will allow
ObjectSpace to interview up to five members of its development and
marketing staff in connection with this case study. Subject to Tivoli's
final approval and provided no confidential information of Tivoli is
included, this case study is for unrestricted publication by
ObjectSpace. Tivoli has full rights to review and approve all contents
of the case study. ObjectSpace will cooperate with Tivoli in making any
changes needed to achieve a case study acceptable to Tivoli, and Tivoli
will cooperate with ObjectSpace to facilitate its internal review and
approval processes.
5.0 LICENSE GRANTS
5.1 ObjectSpace grants Tivoli a nonexclusive, worldwide, perpetual,
irrevocable, paid-up license to prepare Derivative Works of, and only
to internally use, execute, reproduce, display, perform, and
distribute, the Licensed Work in Source Code form, any Tools (in the
event ObjectSpace delivers Tools under Section 2.1.b) and such
Derivative Works, in any medium or distribution technology whatsoever,
whether known or unknown, solely for Products. The rights and licenses
granted by ObjectSpace to Tivoli hereunder also include the right of
Tivoli to authorize or sublicense IBM, and any of Tivoli's and IBM's
Subsidiaries, contractors, and consultants, to exercise any of the
rights granted to Tivoli in this Section 5.1. Any such contractors and
consultants will be under appropriate confidentiality restrictions no
less restrictive than the CDA referenced on the first page of this
Agreement.
5.2 ObjectSpace also grants Tivoli a nonexclusive, worldwide, perpetual,
irrevocable, paid-up right to sublicense and deliver a copy of the
Source Code of the Licensed Work and Derivative Works thereof to third
parties, including but not limited to Distributors, only in association
with the
6
delivery and sublicensing of the Source Code of Products, and only
if the Source Code is subject to the same restrictions as the Source
Code of the Product. This includes the ability to sublicense the
Source Code of a Product to fulfill an escrow obligation if its
customer(s) requires Tivoli or IBM to place Source Code in an escrow
account for maintenance and support purposes. The rights and
licenses granted by ObjectSpace to Tivoli hereunder also include the
right of Tivoli to authorize or sublicense IBM, and any of Tivoli's
and IBM's Subsidiaries, to exercise any of the rights granted to
Tivoli in this Section 5.2.
5.3 ObjectSpace grants Tivoli a nonexclusive, worldwide, perpetual,
irrevocable, paid-up license to reproduce, transfer, distribute
internally and externally, and sublicense the Object Code only of the
Licensed Work and its Derivative Works, and documentation, in any
medium or distribution technology whatsoever, whether known or unknown,
provided that such Object Code is distributed and sublicensed in
conjunction with Products, and not in a stand-alone form. ObjectSpace
grants Tivoli the right to authorize or sublicense others to exercise
any of the rights granted to Tivoli in this Section 5.3.
5.4 ObjectSpace grants Tivoli a nonexclusive, worldwide, perpetual,
irrevocable, paid-up license to prepare Derivative Works of the
Externals, and to use, execute, reproduce, display, perform, transfer,
distribute, and sublicense the Externals and such Derivative Works, in
any medium or distribution technology whatsoever, whether known or
unknown. ObjectSpace grants Tivoli the right to authorize or sublicense
others to exercise any of the rights granted to Tivoli in this Section
5.4.
5.5 The grant of rights and licenses to the Licensed Work and Tools
includes a nonexclusive, worldwide, perpetual, irrevocable, paid-up
license under any patents and patent applications that are owned or
licensable by ObjectSpace now or in the future and are (1) required to
make, have made, use and have used the Licensed Work or its Derivative
Works or (2) required to license or transfer the Licensed Work or its
Derivative Works; provided, however, that-a license to such patents
would have been required to exercise these rights to the Licensed Work
without regard to the Derivative Works. This license applies to the
Licensed Work and its Derivative Works operating alone or in
combination with equipment or Code. The license scope is to make, have
made, use, have used, sell, license or transfer items, and to practice
and have practiced methods, to the extent required to exercise the
rights granted hereunder to the Licensed Work and Tools.
5.6 Subject to ObjectSpace's ownership of the Licensed Work and Tools,
Tivoli will own any Derivative Works it creates.
5.7 ObjectSpace grants Tivoli a nonexclusive, worldwide, perpetual,
irrevocable, paid-up license to use the names and trademarks
ObjectSpace uses to identify the Licensed Work for Tivoli's marketing
of the Products. ObjectSpace grants Tivoli the right to authorize or
sublicense others to exercise any of the rights granted to Tivoli in
this Section 5.7. If Tivoli's use of ObjectSpace's names and trademarks
is improper and ObjectSpace provides Tivoli notice that ObjectSpace
objects to it, Tivoli will take all reasonable steps necessary to
resolve ObjectSpace's objections. ObjectSpace may reasonably monitor
the quality of products bearing its trademark under this license.
7
CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS DOCUMENT AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF
THE SECURITIES ACT OF 1933, AS AMENDED. ASTERISKS DENOTE THESE OMISSIONS.
5.8 Any goodwill attaching to Tivoli's trademarks, service marks, or trade
names belongs to Tivoli and this Agreement does not grant ObjectSpace
any right to use them. Tivoli may state that ObjectSpace has provided
the Licensed Work. ObjectSpace may state that it has licensed the
Licensed Work to Tivoli.
5.9 Subject to agreement on the license fee to be paid to ObjectSpace,
ObjectSpace agrees that the rights and licenses granted by ObjectSpace
hereunder also include the right of Tivoli and IBM to exercise any of
the rights granted to Tivoli in this Section 5 on products other than
the Product.
ObjectSpace further agrees that any such license fee will be
reasonable, nondiscriminatory, and consistent with the license fee paid
by other similarly situated customers.
6.0 PAYMENT
6.1 For the rights and licenses received, Tivoli will pay ObjectSpace a
total license fee of * in two payments, as follows:
Within 30 days of the Effective Date *
On January 31, 1998 *
6.2 ObjectSpace will submit invoices to Tivoli for the above amounts prior
to the payment date. After Tivoli's receipt of a valid invoice, Tivoli
will pay ObjectSpace the amounts due upon the above dates.
6.3. For support as set forth in Section 2.2, ObjectSpace agrees to submit
an invoice to Tivoli for such support on an annual basis, and at least
30 days prior to the beginning of each 12 month period. After Tivoli's
receipt of a valid invoice, Tivoli will pay ObjectSpace the amounts due
within 30 days. If Tivoli does not wish to receive such support, Tivoli
will so notify ObjectSpace.
6.4 All invoices will include the following information:
a. ObjectSpace's company and remit to address; and
b. Reference to this Agreement by its number and its date.
6.5 All invoices will be addressed to the designated Contract Coordinator
at Tivoli Systems, Inc. and sent (with a copy to the Tivoli Technical
Coordinator) to the following address:
9442 Capital of Texas Highway
Austin, Texas 78759
6.6 Each party will be solely responsible for any taxes it incurs, directly
or indirectly, associated with its performance of this Agreement.
8
6.7 The payments defined in this Section fully compensate ObjectSpace for
its performance under, and for the rights and licenses granted in, this
Agreement.
7.0 TESTING
7.1 ObjectSpace will perform the following tests prior to each delivery of
the Licensed Work:
a. component testing;
b. functional verification testing; and
c. compatibility testing.
Upon Tivoli's request, the details of such testing will be mutually
agreed to by the parties.
7.2 ObjectSpace will provide to Tivoli concurrent with each delivery of the
Licensed Work and Tools all test results, test scenarios, test cases,
and test reports associated with the pre-delivery testing.
7.3 Upon receipt of the Licensed Work by Tivoli, Tivoli may evaluate the
Licensed Work for a period of 30 days and perform such tests as Tivoli
deems appropriate to determine whether:
a. the Licensed Work meets the specifications described in the
Attachment entitled "Description of Licensed Work";
b. the Licensed Work executes repetitively within the system
environment described in the Attachment entitled "Description
of Licensed Work"; and
c. Tivoli can successfully execute to completion all functional
and system test scenarios developed by Tivoli.
Tivoli's testing does not relieve ObjectSpace of its obligations under
this Agreement. Tivoli has no obligation to identify errors.
8.0 REPRESENTATIONS AND WARRANTIES
8.1 ObjectSpace makes the following ongoing representations and warranties:
a. ObjectSpace has full legal rights to grant the rights granted
herein;
b. ObjectSpace is not under, and will not assume, any contractual
obligation that prevents ObjectSpace from performing its
obligations or conflicts with the rights and licenses granted
in this Agreement;
c. there are no liens, encumbrances or claims pending or
threatened against ObjectSpace, or to ObjectSpace's knowledge,
anyone else, that relate to the rights and licenses granted in
this Agreement;
d. except for patents and patent applications of a third party,
the warranty for which is set forth in Section 8.1.e (below),
neither the Licensed Work nor the Tools directly or indirectly
infringe any intellectual property rights of a third party;
e. to ObjectSpace's knowledge, neither the Licensed Work nor the
Tools directly or indirectly infringe any patents or patent
applications of a third party;
f. the Licensed Work and the Tools will perform in accordance
with the requirements set forth in this Agreement, including
the Attachment entitled "Description of Licensed
9
Work", and will conform to ObjectSpace's user
documentation, and any sales and marketing materials
provided by ObjectSpace;
g. the fully commented Source Code that ObjectSpace provides
corresponds to the current release or version of the Licensed
Work provided by ObjectSpace under this Agreement;
h. the Licensed Work supports the Year 2000; it is capable of
correctly processing, providing and receiving date data, as
well as properly exchanging accurate date data with all
products (for example, hardware, software and firmware) with
which the Licensed Work is designed to be used; and
i. neither the Licensed Work nor the Tools are contaminated by
harmful code.
ObjectSpace will immediately provide Tivoli written notice of any
change that may affect its representations and warranties.
8.2 Except as provided above, anything either party provides to the other
related to this Agreement is "AS IS", without warranty of any kind.
9.0 INDEMNIFICATION AND LIABILITY
9.1 BY OBJECTSPACE. ObjectSpace will be responsible for and will indemnify
Tivoli, IBM, and any of their Subsidiaries, from any and all damages,
settlements, costs, expenses and liabilities of any type whatsoever, if
a third party makes a claim against Tivoli, IBM, or any of their
Subsidiaries based on an actual or alleged:
a. failure by ObjectSpace, to the extent not caused by Tivoli, to
perform ObjectSpace's obligations under this Agreement;
b. breach of ObjectSpace's representations and warranties;
c. assertion or claim that a person or entity other than
ObjectSpace has Moral Rights in the Licensed Work;
d. failure by ObjectSpace to comply with government laws and
regulations; or
e. infringement by ObjectSpace, the Licensed Work or Tools of
patents, copyrights, trademarks, trade secrets, and other
intellectual property rights, except to the extent such a
claim is based solely on the combination, operation or use of
the Licensed Work with programs or data not supplied by
ObjectSpace, if such infringement would have been avoided but
for the combination, operation or use of the Licensed Work
with such other programs or data.
Tivoli will:
a. promptly provide ObjectSpace notice of any such claim; and
b. allow ObjectSpace to control, and cooperate with ObjectSpace
in the defense of, the claim and settlement negotiations.
Tivoli may participate in the proceedings at its option and expense.
In addition, if an infringement claim appears likely or is made,
ObjectSpace will:
10
CONFIDENTIAL INFORMATION HAS BEEN OMITTED FROM THIS DOCUMENT AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF
THE SECURITIES ACT OF 1933, AS AMENDED. ASTERISKS DENOTE THESE OMISSIONS.
a. obtain the necessary rights for Tivoli, IBM, and any of their
Subsidiaries and Distributors, and their respective customers
to continue to distribute, license, otherwise transfer and use
the Licensed Work on an uninterrupted basis and exercise all
rights granted in the Licensed Work and Tools; or
b. modify the Licensed Work and Tools at ObjectSpace's expense to
resolve the claim. This modified Licensed Work will comply
with the Attachment entitled "Description of Licensed Work."
If ObjectSpace is not able to do either within a reasonable period of
time, Tivoli may terminate this Agreement for ObjectSpace's breach.
ObjectSpace's total liability for indemnification under this Section
9.1 is limited to *.
9.2 BY TIVOLI. If a claim is made against ObjectSpace by a third party
based upon the distribution of Products provided for under this
Agreement, Tivoli will be responsible for and will indemnify
ObjectSpace from any and all damages, settlements, costs, expenses and
liabilities of any type whatsoever regarding such third party claim,
with the exception of those activities for which ObjectSpace bears
responsibility under Section 9.1 of this Agreement, and provided
ObjectSpace gives Tivoli prompt written notice of any such claim,
together with the full authority for and cooperation with such a
defense and any settlement negotiations.
Tivoli's total liability for indemnification under this Section 9.2 is
limited to *.
9.3 In addition to any remedies specified in this Agreement, either party
may pursue any other remedy it may have in law or in equity. Regardless
of the type of claim, neither party is liable to the other for
indirect, incidental, special, or consequential damages including, but
not limited to, lost profits or revenues, under any part of this
Agreement, even if informed that they may occur. This limitation does
not apply to (a) ObjectSpace's liabilities for indemnity above, or (b)
Tivoli's liabilities for indemnity above. Other than with respect to
Tivoli's liability for indemnity above, Tivoli's total liability is
limited to payments due to ObjectSpace under this Agreement; provided,
however, that Tivoli's total liability with respect to a violation of
the license grant set forth in Sections 5.1 or 5.3 is limited to *.
10.0 TERM AND TERMINATION
10.1 This Agreement begins on the Effective Date and has a term of one year
unless terminated sooner under the terms of this Agreement; provided,
however, that this Agreement will be extended automatically for
additional one year periods upon the anniversary of the Effective Date.
10.2 Either party may terminate this Agreement for the other's material
breach by providing the breaching party with a written notice that
describes the breach. The termination will become effective 45 days
after receipt of the notice unless the breach is cured within that 45
day period. However, if the breach (other than a breach for failure to
deliver the Licensed Work) by its nature, cannot be remedied in 45
days, but can be remedied in a reasonable time thereafter, the
11
breaching party will take reasonable and diligent steps to remedy it,
notify the other party of the action plan, progress towards completion,
and complete such remedial action promptly. In such event, the notice
period will be suspended while the breaching party takes these actions.
10.3 Tivoli may, for its convenience, terminate this Agreement on 30 days'
written notice to ObjectSpace. After the Agreement has been in effect
for 4 years from the Effective Date, ObjectSpace may, for its
convenience, terminate this Agreement on twelve months' written notice
to Tivoli.
10.4 Expiration of this Agreement does not affect any licenses granted in
this Agreement for the Licensed Work or Tools. Termination of this
Agreement does not affect any licenses granted in this Agreement for
the Licensed Work or Tools delivered or due to Tivoli prior to the
effective date of termination.
10.5 Subject to Subsection 10.4, any provisions of this Agreement that by
their nature extend beyond termination or expiration will survive in
accordance with their terms. These include Section 5, "LICENSE GRANTS,"
Section 8.0, "REPRESENTATIONS AND WARRANTIES," Section 9.0,
"INDEMNIFICATION AND LIABILITY," and Section 12, "GENERAL." These terms
will apply to either party's successors and assigns.
11.0 COORDINATORS
11.1 Any notice required or permitted to be made by either party to this
Agreement must be in writing. Notices are effective when received by
the appropriate coordinator as demonstrated by reliable written
confirmation (for example, certified mail receipt or facsimile receipt
confirmation sheet).
11.2 The Contract Coordinators responsible to receive all notices and
administer this Agreement are:
FOR TIVOLI: FOR OBJECTSPACE:
Name: Howard Nicholas Name: Laurel Fitzgerald
Title: Manager, Contract Services Title: VP, Operations
Address: 9442 Capital of Texas Address: 14881 Quorum Dr.,
Hwy. No. Suite 400
Austin, TX 78759 Dallas, TX 75013
Phone: (512) 436-8616 Phone: (972) 726-4100
Fax: (512) 436-8461 Fax: (972) 663-9099
11.3 The Technical Coordinators responsible to accept all Deliverables,
coordinate all exchanges of confidential information, and administer
and coordinate the technical matters associated with this Agreement
are:
FOR TIVOLI: FOR OBJECTSPACE:
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Name: Dave Hart Name: Chris Tarr
Title: Manager Title: Product Manager
Address: 9442 Capital of Texas Address: 14881 Quorum Dr.,
Hwy. No. Suite 400
Austin, TX 78759 Dallas, TX 75013
Phone: (512) 436-8289 Phone: (972) 726-4100
Fax: (512) 794-9929 Fax: (972) 663-9099
Technical Coordinators may propose, accept (by signature or initial),
and implement technical changes to this Agreement that do not change
dollar amounts or materially change Deliverables or the schedules of
this Agreement.
11.4 A party will provide written notice to the other when its coordinators
change.
12.0 GENERAL
12.1 INDEPENDENT CONTRACTOR. Each party is an independent contractor.
Neither party is, nor will claim to be, a legal representative,
partner, franchisee, agent or employee of the other except as
specifically stated in the Subsection entitled "Copyright" below.
Neither party will assume or create obligations for the other. Each
party is responsible for the direction and compensation of its
employees.
12.2 FREEDOM OF ACTION. Each party may have similar agreements with others.
Each party may design, develop, manufacture, acquire or market
competitive products and services, and conduct its business in whatever
way it chooses. Tivoli is not obligated to announce or market any
products or services. Tivoli does not guarantee the success of its
marketing efforts. Tivoli will independently establish prices for its
products and services.
12.3 RELIANCE. Neither party relies on any promises, inducements or
representations made by the other or expectations of more business
dealings, except as expressly provided in this Agreement. This
Agreement accurately states the parties' agreement.
12.4 COMPLIANCE WITH APPLICABLE LAWS. Each party will comply with all
applicable laws and regulations at its expense including, to the extent
applicable, Executive Order 11246 on Equal Employment Opportunity, as
amended, the Occupational Safety and Health Act of 1970, as amended,
and the Americans With Disabilities Act of 1990, as amended. This also
includes all applicable government export and import laws and
regulations.
12.5 CONFIDENTIAL INFORMATION. The parties agree that information exchanged
under this Agreement that is considered by either party to be
confidential information will be subject to the terms of the CDA
referenced on the first page of this Agreement and its Supplements. In
addition, ObjectSpace will not provide Tivoli with any information
which may be considered confidential information of any third party
unless provided under the CDA. The obligations set forth in the CDA
with regard to confidential information will not limit or preclude the
exercise of the licenses granted in this Agreement.
12.6 COPYRIGHT. Any publication by Tivoli of the Licensed Works or a
Derivative Work thereof will contain an appropriate copyright notice,
as determined by Tivoli. Tivoli will retain any copyright notices
ObjectSpace has on the Licensed Work.
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ObjectSpace will enforce and maintain its copyright protection in the
Licensed Works. Tivoli is not responsible for enforcing and maintaining
such copyright protection. However, ObjectSpace authorizes Tivoli to
act as ObjectSpace's agent in the copyright registration of the
Licensed Works. At Tivoli's request, ObjectSpace agrees to provide
Tivoli reasonable assistance in registering any Product.
12.7 ORDER OF PRECEDENCE. If there is a conflict among the terms of this
base License Agreement and its Attachments, the terms of this base
License Agreement prevail over those of the Attachments, unless the
parties expressly indicate in the Attachments that particular terms
within the Attachments prevail. Terms in Tivoli's purchase orders and
ObjectSpace's invoices are void.
12.8 HEADINGS. The headings of this Agreement are for reference only. They
will not affect the meaning or interpretation of this Agreement.
12.9 COUNTERPARTS. This Agreement may be signed in one or more counterparts,
each of which will be considered an original, but all of which together
form one and the same instrument.
12.10 AMENDMENT AND WAIVERS. For a change to this Agreement to be valid, both
parties must sign it. No approval, consent or waiver will be
enforceable unless signed by the granting party. Failure to insist on
strict performance or to exercise a right when entitled does not
prevent a party from doing so later for that breach or a future one.
12.11 ACTIONS. Neither party will bring a legal action relating to the
subject matter of this Agreement, against the other more than 2 years
after the cause of action arose, except in the case of indemnification
for infringement, in which case this period runs for 2 years after the
award or settlement was made.
12.12 DISPUTE RESOLUTION. Both parties will act in good faith to resolve
disputes prior to instituting litigation. Each party waives its rights
to a jury trial in any resulting litigation.
12.13 GOVERNING LAW. This Agreement will be governed by the substantive law
of the State of Texas applicable to contracts executed in and performed
entirely within that State, without regard to choice of law principles,
regulations, or statutes of this or any other jurisdiction. The United
Nations Convention on Contracts for the International Sale of Goods
does not apply. ObjectSpace will, upon written notice from Tivoli,
submit to personal jurisdiction in any forum where Tivoli is sued for
claims related to this Agreement.
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