Exhibit 10.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
ELEVENTH AMENDMENT TO PROGRESS SOFTWARE APPLICATION PARTNER AGREEMENT
This ELEVENTH AMENDMENT to the Progress Software Corporation Application Partner
Agreement is effective as of June 1, 2005 between Progress Software Corporation,
a Massachusetts corporation with its principal place of business at 14 Oak Park,
Bedford, Massachusetts 01730 ("PSC") and RSA Security Inc., a Delaware
corporation with its principal place of business at 174 Middlesex Turnpike,
Bedford, Massachusetts 01730 ("AP").
PSC and AP entered into a Progress Software Application Partner Agreement
effective as of December 5, 1994, as amended by an Addendum and the First
through Eleventh Amendments (as so amended, the "Agreement").
PSC and AP agree as follows:
1 Prior Amendments. The parties acknowledge and agree that all prior
amendments to the Agreement have been terminated and rendered null and
void, other than Sections 1-10 of the Second Amendment between the parties
effective November 29, 1995 and Sections 1-5 (but not including the final
paragraph of Section 2B, which paragraph shall be null and void) of the
Third Amendment between the parties effective November 15, 1996.
2 Definitions.
a. "Application Module" means any AP application software module
described in Exhibit A to this Eleventh Amendment that incorporates
or is bundled with any portion of a Selected PSC Product.
b. "Customers" means Existing Customers and New Customers.
c. "Existing Customer" means a third-party end user that (1) has
licensed an Application Module from AP; and (2) has a current, valid
agreement with AP under which AP is obligated to provide support
services for the Application Module.
d. "New Customer" means a third-party end user that first licenses an
Application Module from AP within AP's most recently completed
fiscal quarter.
e. "Selected PSC Product" means the PSC product(s) listed in Exhibit A
to this Eleventh Amendment.
3 Annual Fees. AP shall pay PSC a fee per year for each Customer (the
"Annual Fee") of $[**], in accordance with the schedules below. The Annual
Fee is inclusive of all license fees and royalties and all fees for PSC's
support services, product enhancements and upgrades under this Agreement.
PSC shall keep the reports described Sections 3a and c below confidential.
a. Existing Customers. AP shall pay the aggregate Annual Fees, in
advance for the upcoming 12-month period, for the Existing Customers
that AP has as of May 1 of each year, beginning on May 1, 2005, as
follows:
25% of the aggregate Annual Fees on the fifteenth business day of
July
25% of the aggregate Annual Fees on the fifteenth business day of
October
25% of the aggregate Annual Fees on the fifteenth business day of
January
25% of the aggregate Annual Fees on the fifteenth business day of
April
On the first business day of June of each year during the term
hereof, AP shall provide to PSC a report that includes each Existing
Customer name, maintenance dates (start date and end date) and total
Annual Fees for Existing Customers. AP shall send the reports to the
address set forth in Section 3c below.
b. New Customers. AP shall pay the Annual Fee for each New Customer pro
rata as follows:
For New Customers that become New Customers during the period May 1
- September 30: 100% of the Annual Fee
For New Customers that become New Customers during the period
October 1 - December 31: 75% of the Annual Fee
For New Customers that become New Customers during the period
January 1 - March 31: 50% of the Annual Fee
For New Customers that become New Customers during the period April
1 - April 30: 25% of the Annual Fee
c. Payment and Reporting for New Customers. On the fifteenth business
day of January, April, July and October commencing on May 1, 2005,
AP shall provide to PSC a report that includes each New Customer
name and total Annual Fees for each New Customer for AP's
immediately preceding fiscal quarter. AP shall include with its
report payment of the Annual Fees listed in such report, as set
forth in Section 3b above. AP shall send the reports to:
Customer Service, Progress Software Corporation, 14 Oak Park,
Bedford, MA 01730; Fax# 781-275-4593, or such other individual
as may be designated by PSC with a copy to: Director of
Business Operations, Progress Software Corporation, 14 Oak
Park, Bedford, MA 01730; Fax # 781-275-4593.
4 Annual Fee Reduction for IMS. If AP incorporates one or more Selected PSC
Products into its platform currently known as Identity Management
Services, then the Annual Fee shall be as follows:
Through the second anniversary of this Eleventh Amendment: $[**] per year
per Customer
After the second anniversary through the third anniversary of this
Eleventh Amendment: $[**] per year per Customer
After the third anniversary through the fourth anniversary of this
Eleventh Amendment: $[**] per year per Customer
After the fourth anniversary through the fifth anniversary of this
Eleventh Amendment: $[**] per year per Customer
5 Term and Renewal. The Agreement shall expire on May 31, 2010 (the
"Expiration Date"), unless earlier terminated in accordance with Sections
10.2, 10.3 or 10.4 of the Agreement. At its option, AP may renew the
Agreement after the Expiration Date for up to two additional one-year
terms (the "Renewal Period") by delivering a written renewal notice to PSC
at least 30 days before the Expiration Date. Thereafter, at its option, AP
may renew the Agreement after the Expiration Date for additional periods
by delivering a written renewal notice to PSC at least 30 days before the
Expiration Date or the last day of any Renewal Period, whichever is later,
and choosing one of the following two options:
a. Annual Fee. AP may renew the Agreement for one or more subsequent
annual terms by paying an Annual Fee of $[**] per year per Customer
if AP incorporates one or more Selected PSC Products into its
Identity Management Services platform as per Paragraph 4 above, or
by paying an Annual Fee of $[**] per year per Customer if AP has not
incorporated the Selected PSC Products into its Identity Management
Services platform. Such payments shall be made in accordance with
the schedules set forth in Section 3 above. Such renewal shall be
applicable only for third party end users who were Customers as of
the Expiration Date or the last day of any Renewal Period, whichever
is later. No New Customers shall be added to the Agreement during
any such renewal term(s).
b. One-Time Fee. AP may purchase a perpetual license by paying a
one-time fee of $[**] per Customer for each Customer that AP has as
of the Expiration Date or the last day of any Renewal Period,
whichever is later. PSC shall provide maintenance and support
services on an annual basis for such Customers as per Section 6
below for an annual fee of $[**] per Customer. AP may renew
maintenance and support services for such Customers by providing
written notice to PSC at least 30 days before each anniversary of
the Expiration Date.
6 Maintenance. PSC shall provide to AP PSC's generally available basic level
support and maintenance services, as described in PSC's "Progress Software
Policy Guide - Application Partner Edition" current as of the date
maintenance is requested, only for Customers for whom AP has paid the
Annual Fee. Notwithstanding the foregoing, PSC shall support the following
products on the following platforms:
Progress 8.3D
Progress V8.3D is only available as a 32Bit product offering, which is
supported on operating systems that can natively sustain32Bit and 64Bit
binaries.
- Authentication Manager Platforms
- Microsoft Windows (Win-Intel x86 32Bit):
- NT 4.0 Server or Workstation
- 2000 Server
- 2000 Advanced Server
- Server 2003
- Sun Solaris:
- SPARC 8
- SPARC 9
- HP-UX:
- PA-RISC 11.0
- PA-RISC 11i Release 1 (11.11)
- IBM AIX:
- POWER 4.3.3
- POWER 5L v5.1
- POWER 5Lv 5.2
- Linux x86 32Bit:
- Red Hat 7.3
- Red Hat Enterprise Linux 3.0 (AS/ES/WS editions)
- Novell SuSE Enterprise Server 9
- Remote Admin
- Microsoft Windows:
- 98
- NT 4.0
- 2000 Professional
- 2000 Server
- 2000 Advanced Server
- Server 2003
Progress 9.1E
Progress V9.1E is available as a 32Bit or 64Bit product for the
following operating systems: IBM AIX 5L, Sun Solaris SPARC andHP-UX
PA-RISC
Progress V9.1E is available as a 32Bit product for the following x86
based operating systems: Microsoft Windows and Linux x86
- Authentication Manager Platforms
- Microsoft Windows
- 2000 Server
- 2000 Advanced Server
- Server 2003
- Sun Solaris:
- SPARC 8
- SPARC 9
- SPARC 10
- HP UX:
- PA-RISC Release 1 (11.11)
- IBM AIX:
- POWER 5L v5.2
- POWER 5L v5.3
- Linux x86 32Bit:
- Red Hat 7.3
- Red Hat Enterprise Linux 3.0 (AS/ES/WS editions)
- Novell SuSE Enterprise Server 9
- Remote Admin Platforms
- Microsoft Windows:
- 2000 Professional
- 2000 Server
- 2000 Advanced Server
- XP Professional
- Server 2003
Certification of future patches of Microsoft, Sun, HP, IBM, Red Hat
and SuSE operating systems can not be guaranteed if the underlying
operating system or hardware is no longer supported by the vendor.
7 PSDN Licenses. PSC agrees to provide AP, during the term of this Eleventh
Amendment, with five PSDN license at no charge so long as AP agrees to the
terms and conditions of the applicable PSC PSDN End User Product License
Agreement. Additional PSDN licenses shall be available to AP at PSC's list
price and terms and conditions at the time the PSDN licenses are
purchased.
8 AP's End User License Agreement. AP shall enter into license agreements
with its Customers that contain terms and conditions substantially similar
to those contained in the end user license agreement attached as Exhibit B
to this Eleventh Amendment. However, AP acknowledges that Progress
versions 9.0 and above may contain third party technology that requires
additional terms in AP's end user license agreement. PSC shall make such
additional terms available to AP, and AP shall incorporate substantially
similar terms into its end user license agreement for the Application
Modules.
9 No Other Modification of Agreement; Conflict. Except as specifically
modified by this Eleventh Amendment, the terms and conditions of the
Agreement remain in full force and effect. In the event of any conflict
between the terms and conditions of this Eleventh Amendment and the
Agreement, the terms and conditions of this Eleventh Amendment shall
govern.
This Eleventh Amendment has been executed as of the date first set forth above.
RSA Security Inc. Progress Software Corporation
By: /s/ John Parsons By: /s/ Justin P. Wright
---------------- ------------------------------
Name: John Parsons Name: Justin P. Wright
Title: VP Finance Title: V.P. W.W. Field Operations
EXHIBIT A
Selected PSC Products: Current and subsequent versions of the following:
Versions 8 and 9 of 4GL and Progress data base
Release 10 of OpenEdge
DB Version 7 of PeerDirect**
** If chosen for the IMS (Identity Management Systems) project, PSC will provide
support for Version 7 of PeerDirect only when combined with Release 10 of
OpenEdge DB. PSC will not provide support for Version 7 of PeerDirect if
combined with earlier releases of OpenEdge DB.
Application Modules:
RSA Authentication Manager
AP's platform currently known as Identity Management Services
EXHIBIT B
RSA SECURITY END USER LICENSE AGREEMENT
This is a legal agreement between the end user customer ("YOU") and RSA Security
Inc. ("RSA"). This Agreement may be superseded by (a) any written agreement
signed by both you and RSA or (b) any written evaluation license included with
the RSA Software (defined below). This Agreement is a part of the software being
installed, downloaded, copied or otherwise used.
1. DEFINITIONS.
(A) "AUTHORIZED RESELLER" means one or more solution providers, service
providers, value-added resellers or other distributors or resellers who market,
demonstrate and arrange for licensing of RSA Products.
(B) "DOCUMENTATION" means the manuals, handbooks and other written materials
related to the use of the RSA Products, whether in hard copy or soft copy form,
that are provided by RSA and that customarily accompany the RSA Products.
(C) "RSA AUTHENTICATOR" means each hardware card and/or token that you purchase
from RSA and use to authenticate into certain RSA Software.
(D) "RSA PRODUCTS" mean the RSA Software, Documentation and RSA Authenticators
provided to you under this Agreement.
(E) "RSA SOFTWARE" means the software licensed by you under this Agreement,
consisting of a series of instructions or statements in machine-readable, object
code form only, including without limitation firmware incorporated in RSA
Authenticators.
2. LICENSE.
(A) License for RSA Software. RSA hereby grants, and you hereby accept, a
perpetual (unless terminated as set forth in Section 6), non-exclusive,
non-transferable license to use the RSA Software in accordance with the
instructions contained in the Documentation. You may make a reasonable number of
copies of (1) the RSA Software for backup, testing, disaster recovery or
archival purposes only and (2) the Documentation for your internal use only, so
long as you also reproduce on such copies any copyright, trademark or other
proprietary markings and notices contained on the RSA Software and Documentation
and do not remove any such marks from the original.
(B) Restrictions on License for RSA Software.
(1) Incorporation of Restrictions in Invoice and Other Documents. Your
purchase order, sales quotation or invoice, or user license certificate for
the RSA Products may contain limitations with respect to the number of users,
servers, asserting and relying parties, functionality options and/or other
restrictions. In such a case, such limitations and restrictions are
incorporated herein by reference.
(2) Special Restrictions Applicable Only to Certain Bundled Products.
Notwithstanding anything to the contrary in this Agreement, if and only if
you are using RSA(R) Certificate Manager (a/k/a RSA Keon(R) Certificate
Authority) software bundled with either RSA(R) Access Manager (a/k/a RSA
ClearTrust(R)) software or RSA(R) Federated Identity Manager software, then
(a) you may use RSA Certificate Manager solely for the purpose of further
enabling inter-component security in the RSA Access Manager environment or
RSA Federated Identity Manager environment, as the case may be, and (b) you
may issue and manage up to 50 certificates between the server components
within the RSA Access Manager environment or RSA Federated Identity Manager
environment, as the case may be, solely to provide authenticated SSL
communications among such components. If you wish to use more than 50
certificates or to use the RSA Certificate Manager software for any other
purpose, then you shall purchase a separate license therefor.
(3) Restrictions on Access, Copying and Sublicensing. You shall not cause or
permit (a) access (except to your employees, agents and consultants with a
"need to know" who are bound in writing by non-disclosure obligations
suitable to protect RSA's interests in the RSA Software but no less
restrictive than your obligations herein), (b) copying (except as set forth
in Section 2(A) above), or (c) sublicensing or other dissemination of the RSA
Software, in whole or in part, to any third party without the prior written
consent of RSA.
(4) Third Party and Other Proprietary Software. If the RSA Software contains
or is bundled with third party software or other proprietary RSA software,
then you may use such third party software or other proprietary RSA software
solely (a) for the purpose such software is included with the RSA Software
and (b) for use with the particular RSA Software that you have licensed from
RSA as set forth in the Documentation. You shall not use any third-party
software embedded in or bundled with the RSA Software as a standalone program
or in any way independently from the RSA Software.
(5) No Modification of RSA Software. You shall not modify, enhance,
translate, supplement, create derivative works from, reverse engineer,
reverse compile or otherwise reduce the RSA Software to human readable form
without RSA's prior written consent.
(C) Restriction on Use of RSA Authenticators. You shall use the RSA
Authenticators only to authenticate to RSA Software. You shall not use any
hardware cards, tokens or other devices not provided by RSA to authenticate to
the RSA Software, unless otherwise authorized by RSA in writing.
3. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS.
(A) Ownership of RSA Products. RSA or its suppliers are the exclusive owners of
the RSA Software and Documentation (including revisions, modifications and
enhancements thereto) and any other specifications, documentation, ideas,
know-how, techniques, processes, inventions or other intellectual property that
RSA or its suppliers may develop, conceive or deliver under this Agreement,
including all patents, copyrights and other intellectual property rights
thereto.
(B) Ownership of Trademarks. By this Agreement, you acquire no rights of any
kind in or to any RSA trademark, service mark, trade name, logo or product
designation and shall not make any use of the same for any reason except as
expressly authorized by this Agreement or otherwise authorized in writing by
RSA. You shall cease to use in any manner such markings or any similar markings
upon the expiration or termination of this Agreement.
4. WARRANTY.
(A) RSA Software Warranty. RSA warrants that the RSA Software will operate in
material conformance to the Documentation for such RSA Software during the first
90 days after your initial receipt of the RSA Software (the "WARRANTY PERIOD").
RSA does not warrant, however, that the RSA Software or any portion thereof is
error-free. If you discover a non-conformity in the RSA Software during the
Warranty Period, then you shall submit to RSA or to the Authorized Reseller from
which you purchased the RSA Products a written report describing the
non-conformity in sufficient detail to permit RSA to reproduce such
non-conformity. If RSA successfully reproduces the reported non-conformity and
confirms that it is a non-conformity, then RSA shall use reasonable efforts, at
its option, to (1) correct the non-conformity, (2) provide a work around or
software patch (a "FIX"), or (3) replace the RSA Software. If RSA determines
that none of these alternatives is reasonably available, then, upon your
request, RSA shall refund any payments that you have made for the affected RSA
Software and accept its return. This warranty applies only to the initial
delivery of the RSA Software. All Fixes provided by RSA constitute RSA Software
hereunder and are governed by the terms hereof. RSA warrants that each Fix will
operate in material conformance to the Documentation for the applicable RSA
Software during the first 30 days after your initial receipt of such Fix or
during the remainder of the initial Warranty Period, whichever is greater. If
you purchased the RSA Products from an Authorized Reseller, then you shall
direct all warranty and support issues to the Authorized Reseller, unless you
have entered into a separate support agreement with RSA.
(B) RSA Authenticator Warranty. RSA warrants that each RSA Authenticator
purchased from RSA or an Authorized Reseller will perform in material
conformance to RSA's specifications in the Documentation for (1) one year from
your date of purchase for smart card RSA Authenticators and USB token RSA
Authenticators, or (2) the purchased life of such RSA Authenticator as set forth
on the invoice submitted to you by RSA or an Authorized Reseller for all other
RSA Authenticators.
(C) Limitations of Warranty. The foregoing warranties do not apply if (1) repair
or replacement is required as a result of causes other than normal use,
including, without limitation, repair, maintenance or modification of the RSA
Products by persons other than RSA-authorized personnel; your accident, fault or
negligence; operator error; your failure to incorporate any Fixes that RSA makes
available to you; use of the RSA Products other than as set forth in the
Documentation; or causes external to the RSA Products such as, but not limited
to, failure of electrical power or fire or water damage; or (2) the RSA Products
are used with software or equipment other than that for which they were designed
as set forth in the Documentation.
(D) WARRANTY DISCLAIMER. OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS
SECTION 4, RSA AND ITS SUPPLIERS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS
TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. YOUR
SOLE REMEDY FOR BREACH OF SUCH EXPRESS LIMITED WARRANTIES IS A CORRECTION, FIX
OR REFUND AS SET FORTH IN THIS SECTION 4. You understand that, if you purchased
this RSA Software from an Authorized Reseller, then such Authorized Reseller is
not RSA's agent and is not authorized to make any representations, conditions,
covenants or warranties, statutory or otherwise, on RSA's behalf nor to vary any
provision of this Agreement. In addition, you acknowledge that, unless otherwise
agreed by such Authorized Reseller in writing or prohibited by law, the
limitations in this Section 4(D) and Section 5 below also apply to and benefit
such Authorized Reseller. This Section 4 gives you specific legal rights. As
some jurisdictions do not allow the exclusion of implied conditions or
warranties, statutory or otherwise, the exclusions in this Section 4(D) may not
apply to you, and you may also have other rights that vary from jurisdiction to
jurisdiction.
5. LIMITATION OF LIABILITY.
RSA'S AND ITS SUPPLIERS' LIABILITY IS LIMITED IN ANY EVENT TO ACTUAL DIRECT
DAMAGES TO THE EXTENT CAUSED SOLELY BY THE ACTS OR OMISSIONS OF RSA. RSA'S AND
ITS SUPPLIERS' MAXIMUM LIABILITY IS THE AMOUNT PAID FOR THE SPECIFIC PRODUCT OR
SERVICE THAT DIRECTLY CAUSED SUCH DAMAGE. IN NO EVENT WILL YOU, RSA OR RSA'S
SUPPLIERS BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES,
LOST BUSINESS PROFITS, OR LOSS, DAMAGE OR DESTRUCTION OF DATA, REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF
WARRANTY OR OTHERWISE, EVEN IF YOU, RSA OR RSA'S SUPPLIERS HAVE BEEN ADVISED OF
THE POSSIBILITY OF THE SAME. RSA EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY
ASSOCIATED WITH ANY THIRD PARTY OPEN SOURCE CODE INCLUDED IN THE RSA PRODUCTS.
NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED. Neither
party shall bring any action, whether in contract or tort, including negligence,
arising out of or in connection with this Agreement, more than two years after
the cause of action has accrued.
6. TERMINATION.
(A) Termination. This Agreement terminates upon the earliest of:
(1) 30 days after written notice from one party to the other of the
defaulting party's material breach of this Agreement, which breach is not
cured within such 30-day period;
(2) by RSA immediately upon written notice to you of a material breach of
Section 2; and
(3) immediately upon written notice by either party if the other party (a)
becomes insolvent; (b) files a petition, or has a petition filed against it,
under any laws relating to insolvency, and the related insolvency proceedings
are not dismissed within 60 days after the filing of such petition; (c)
enters into any voluntary arrangement for the benefit of its creditors; (d)
appoints, or has appointed on its behalf, a receiver, liquidator or trustee
of any of such party's property or assets; or (e) ceases to carry on business
in the ordinary course.
(B) Effect of Termination. After any termination of this Agreement or your
license to use any of the RSA Products, promptly upon RSA's request you shall,
at RSA's option, either return to RSA or to an Authorized Reseller, or destroy
and certify in writing to RSA that you have destroyed, the original and all
copies, in whole or in part, in any form, including partial copies, of the
affected RSA Software and Documentation.
(C) Survival. Sections 3, 5, 6(B), 6(C) and 7 survive any termination of this
Agreement.
7. GENERAL.
(A) Export Laws. The RSA Software is subject to (1) United States export control
laws and regulations that may restrict exports, re-exports and disclosures to
foreign persons of cryptographic items, and (2) certain foreign laws that may
restrict the export, re-export, import and/or use of such items. Performance of
this Agreement is expressly made subject to any export laws, regulations, orders
or other restrictions imposed by the United States of America or any other
country or governmental entity on the RSA Software or information relating
thereto. Notwithstanding any other provision of this Agreement to the contrary,
you shall not directly or indirectly import, export or re-export any RSA
Software or information pertaining thereto to any country or foreign person to
which such import, export or re-export is restricted or prohibited unless you
first secure, if applicable, an appropriate export license or other governmental
approval. You unconditionally accept full responsibility for compliance with
these requirements.
(B) Governing Law. This Agreement and all relationships created hereby will in
all respects be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts without regard to its conflict of laws principles.
(C) Entire Agreement; Modification. This Agreement constitutes the entire
understanding between you and RSA with respect to the subject matter hereof, and
RSA makes no representations to you except as expressly set forth herein. Terms
and conditions set forth in any purchase order or other document provided by you
to RSA that differ from, conflict with, or are not included in this Agreement
are not part of any agreement between RSA and you unless specifically accepted
by RSA in writing. This Agreement shall not be deemed or construed to be
modified, amended or waived, in whole or in part, except by written agreement of
the parties hereto. The failure of either party, in any one or more instances,
to enforce any of the terms of this Agreement shall not be construed as a waiver
of future enforcement of that or any other term.
(D) Assignment. You may not assign this Agreement, or any of your rights or
obligations hereunder, without the written consent of RSA, which consent shall
not be unreasonably withheld.
(E) Severability. If any provision of this Agreement is for any reason held
illegal or unenforceable, then such provision shall be deemed separable from the
remaining provisions of this Agreement and shall in no way affect or impair the
validity or enforceability of the remaining provisions of this Agreement.