Software License Agreement

SOFTWARE LICENSE AGREEMENT







This License Agreement ("Agreement") made as of July 1, 1997 ("Effective Date"), between VI/Visualize, I nc. ("Visualize"), a Nevada corporation, having as its principal place of business at 1819 E. Morten, Suite 210, Phoenix, Arizona 85020 and Accrue Software, Inc. ("Accrue"), a Delaware corporation, having its principal place of business at 1275 Orleans Dr ive, Sunnyvale, CA 94089.





A. Visualize has developed and owns certain computer software known as Visualize DataVista SDK (defined below as the "Product").



B. Accrue wishes to include certain aspects of the Product in executable form in web analysis products Accrue is developing (defined below as the "Application").



C. Visualize wishes to license the Product to Accrue and Accrue wishes to license the Product from Visualize on the terms and conditions set forth herein.



TERMS AND CONDITIONS



1. DEFINITIONS



1.1 "Product" is defined as any component of the Visualize DataVista SDK ("DataVista"), as described in Exhibit A that is supplied to Accrue under the terms of this Agreement, including all Documentation, Product Releases and Maintenance Rel eases.



1.2 "Documentation" is defined as the "Visualize DataVista SDK Reference Manual" in electronic or printed form and the "DataVista HTML Class Library Reference."



1.3 "Product Release" is defined as a major enhancement or restructuring of the Product. A Product Release is identified by an integer version number, for example, Visualize DataVista SDK, Version 2.0.



1.4 "Maintenance Release" is defined as an update to an existing release which adds minor features or corrects documented bugs. A Maintenance Release is identified by a decimal integer appended to the Product Release number, for example, Visualize DataVista SDK, Version 2.1.



1.5 "Application" is defined as the software programs including enhancements and future versions thereof into which Accrue wishes to integrate the Product, as more fully described in Exhibit C.









2. LICENSE OF PRODUCT



2.1 LICENSE: Visualize hereby grants to Accrue a perpetual, non-exclusive (except as set forth below), worldwide license (i) to copy and incorporate all or part of Product, in object code (.class files) in Application(s), (ii) to market, distribute, license and sublicense, without restriction, Application(s) which incorporate t he Product and any modifications, enhancements, and/or alterations thereto, (iii) to develop Applications incorporating the Product and to modify and enhance the Product for such development, (iv) to grant trial licenses of Applications incorporating the P roduct, and (v) to grant sublicenses to the above licenses. If and when the source code to the Product is released to Accrue under Section 4.9 below, Visualize hereby grants Accrue a perpetual, non-exclusive (except as set forth below), worldwide, royalty - free license to use the source code to support and maintain the Product as well as make modifications and enhancements thereto (including enhancements that maintain competitiveness of the Product with then market standards) in support of Accrue's rights t o market, distribute, and license Applications which incorporate the Product. Accrue may not, without Visualize's written consent, distribute the Product as a stand-alone product or otherwise use the Product in a manner inconsistent with this license agree m ent, except that Accrue may distribute Maintenance Releases and Product Releases on a stand-alone basis to its end users of the Application. Visualize will not directly or indirectly license the Product or any similar or successor product to Andromedia, I nc. or NetGenesis, Inc. or any parent or subsidiary of the foregoing for use in a product that competes with Application(s) for one year from the Effective Date of this Agreement.



2.2 CONSIDERATION: For the rights and license granted herein, Accrue will pay Visualize as provided in Exhibit B attached hereto. [*] payments to Visualize will be made [*], with the first payment due on October 31, 1998.



2.3 PROPRIETARY RIGHTS: Accrue agrees that the Product is and shall remain the so le property of and proprietary to Visualize. Nothing in this Agreement shall alter these rights and no title to or ownership of the Product is transferred to Accrue. Each party may use the trademarks or name of the other in promotional and advertising mat e rial related to distribution of the Product provided such use is consistent with the standards of the other party and is approved by such party before use of the material. Any such material not disapproved within five working days will be deemed approved.



2.4 DELIVERY OF PRODUCT: Upon the execution of this Agreement, Visualize shall deliver to Accrue the Product, (by CD-ROM, magnetic diskettes, or electronically for installation on Accrue's computers) and such other diskettes, CD-ROMs, manual s, examples, and other information as may relate to or comprise the Product, including without limitation the items described on Exhibit A hereto. The Product will be shipped to Accrue at the address set forth on the signature page or such other address s pecified by Accrue in writing. Visualize may package and ship the product in any commercially reasonable manner. Thereafter, Visualize will deliver to Accrue, without charge (by CD-ROM, magnetic diskettes, or electronically for



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installation on Accrue's computers) any Product Releases and Maintenance Releases and one master copy of any changes to the related Documentation promptly when available.



2.5 TAXES: Accrue is responsible for all applicable sales, use, person al property, excise or other similar taxes or export and import taxes, duties, and charges, however designated (except only for tax based on the net income of Visualize or franchise tax arising from Visualize's activities) and such taxes shall be paid dir ectly by Accrue or reimbursed by Accrue to Visualize, as necessary, without reducing the amount otherwise due to Visualize hereunder.



3. SUPPORT AND MAINTENANCE



3.1 SUPPORT: Visualize will provide Accrue, free of charge, with phon e and email technical support [*] for the term of the contract. Such support will be available only during the hours of 8 a.m. to 5 p.m. Pacific Standard Time. Accrue will provide technical support to its end users, and Visualize will interface only with one primary and back-up Accrue appointed technical support representative on any technical support related issues.



3.2 TRAINING: Visualize will provide Accrue, [*] with 24 consulting hours, all or part of which may be used in an on site training visit by a Visualize developer to Accrue, travel at Visualize's expense.



3.3 MAINTENANCE: Visualize will provide, [*] promptly when available, Product Releases and Maintenance Releases to Accrue during the term of this Agreement. Maintenance Releases will be provided to fix bugs, whether or not reported by Accrue, and to provide minor enhancements to the Product. If Accrue reports a documented, reproducible bug in Product that significantly impairs the intended functionality of the Application, then V i sualize will use its best efforts to provide a specific correction within 7 business days. Visualize shall notify Accrue of its plans to release any Product Release or Maintenance Release as soon as practicable prior to the scheduled release date, and in no event less than twenty (20) days prior to such release.



4. COVENANTS



4.1 CONFIDENTIALITY: Each party will keep confidential any confidential information relating to (i) the Product or to the other party's business, finances, m arketing and technology to which it obtains access and (ii) the terms and conditions of this Agreement, and each party agrees that it will take reasonable precautions to protect such confidential information of the other party, or any part thereof to the s ame extent it protects its own similar confidential information from any use, disclosure or copying, except to the extent technical information relating to the Product is used, or copied by Accrue for the purpose of (i) developing Application(s) incorpora t ing the Product pursuant to this Agreement (ii) obtaining any necessary governmental approvals, or (iii) otherwise performing its rights or obligations as contemplated by this Agreement. Confidential information of a party shall not include information wh ich (i) is or becomes publicly known through no fault of the other party, (ii) is disclosed to the other party by a third party who had lawfully obtained such information and without a breach of such third



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party's confidentiality obligations, (iii) is developed independently by the other party, or (iv) the party has given written permission to the other party to not keep confidential. A party wishing to use or disclose information based on any of the foregoing exceptions will have the burden of proving the applicability of such exception by objective or verifiable evidence and will in no event use such i nformation prior to 30 days after notice of such intention to the other party hereto.



4.2 INJUNCTIVE RELIEF: In the event of a breach of any of the provisions of Section 4.1, the parties agree that there would be no adequate remedy at law, an d accordingly the parties agree that the non-breaching party, in addition to any other available legal or equitable remedies, is entitled to seek injunctive relief against such breach without any requirement to post bond as a condition of such relief.



4.3 COPYRIGHT PROTECTION: Accrue shall include with all copies of Product any copyright notices included in the object code version of the Product (to the extent such inclusion is technically feasible and reasonable, given the parties' inten ded use of Product), and shall comply with Visualize's reasonable written instructions regarding protection thereof under applicable copyright laws.



4.4 REVERSE COMPILING: Accrue shall not attempt to create or permit others to attempt to crea te, by reverse compiling or disassembling or otherwise, any part of the source program for the Product from the object code or from other information made available to the Accrue. Accrue authorizes Visualize to incorporate means for frustrating such rever se compilation or disassembly in the Product.



4.5 COPIES: Accrue may make machine readable copies of each Product and copies of the Documentation and other documents as necessary for the use authorized in this Agreement. All copies, whether i n machine readable, printed, or other form, are part of the Product and Accrue must include on all such material Visualize's notice of its proprietary rights in the form set forth in the Product as delivered to Accrue.



4.6 ACCESS: Accrue may disclose and make the Product accessible to its employees, contractors and agents only to the extent needed to exercise the licenses granted hereunder.



4.7 GENERAL PAYMENT TERMS: Past due amounts will accrue interest at a rate of one percen t (1%) per month. The prevailing party in any legal action brought by one party against the other and arising out of this Agreement shall be entitled to reimbursement of all costs and reasonable attorney's fees incurred by such party.



4.8 SO FTWARE AUDIT RIGHTS: Visualize shall have the right, using an independent auditor or agent and not more than once each calendar year during the term of this Agreement, upon thirty (30) days prior written notice to Accrue, to enter Accrue's premises during normal business hours to inspect Accrue's records to verify compliance by Accrue with the terms of this Agreement. Accrue agrees to cooperate with Visualize in any such inspection. All costs of such audit shall be borne by Visualize provided that if any s uch audit reveals an











underpayment of 5% or more during the audited period, the costs of such audit shall be borne by Accrue, and Accrue shall promptly pay the amount of the underpayment plus accrued interest.



4.9 PRODUCT SOURCE CODE: Vis ualize shall, at its sole cost and expense, establish a software escrow account with an escrow agent satisfactory to Accrue on or before the Effective Date and shall deposit a copy of the source code and object code for the Product and existing Documentat i on, manuals, logic diagrams, flow charts, operating instructions other materials describing the programming, design and use of the Product. After the Effective Date, Visualize shall deposit into the escrow account all source code and object code for Maint e nance Releases and Product Releases and then-existing documentation upon delivery of such releases to Accrue. The parties and the escrow agent shall execute the Escrow Agreement attached hereto as Exhibit D on or before the Effective Date. Should Visualiz e become insolvent, declare bankruptcy or be declared bankrupt by a competent tribunal, make an assignment for the benefit of creditors, cease to conduct business in the normal course, or cease support of the Product for more than 60 days, Accrue shall be e ntitled to obtain from the escrow account a complete copy of the escrow materials, including the Product source code, from such escrow account, which Accrue shall have the right to use as set forth in the source code license in Section 2.1 above. In the e vent Visualize resumes rendering requested Support and Maintenance, the source code will be returned to the escrow account and be subject to the terms and conditions of this section governing access to such source code.



5. WARRANTIES AND INDEMNIFICATION



5.1 EXPRESS WARRANTY: Visualize represents and warrants to Accrue that it has all necessary corporate power and authority to enter into this Agreement, to consummate the transactions contemplated hereby, and to license the Product t o Accrue, and that such license does not conflict with or infringe any rights of any third party (including, without limitation, any copyrights, patent rights or trade secrets), or any agreement to which Visualize is bound or the Product is subject.



5.2 LIMITED WARRANTY: Visualize hereby warrants to Accrue that the Product will conform to its published specifications in all material respects. This warranty is limited and shall not apply if failure of the Product to conform to published speci f ications results from (i) improper use of the Product; or (ii) operation of the Product outside the environmental conditions specified on the User Documentation; or (iii) modifications to the Product not made by Visualize. This warranty does not apply to any release of the Product that is designated "beta test software" or "pre-release software" by Visualize.



5.3 EXCLUSION OF IMPLIED WARRANTIES: ANY AND ALL OTHER WARRANTIES AS TO THE PRODUCT AND USER DOCUMENTATION, INCLUDING IMPLIED WARRANTIE S OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, ARE SPECIFICALLY EXCLUDED, WAIVED, AND NEGATED.



5.4 LIMITATION OF LIABILITY: NEITHER VISUALIZE NOR ITS OFFICERS, EMPLOYEES, OR DIRECTORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO,











LOSS OF ANTICIPATED PROFITS OR BENEFITS, LOSS R ESULTING FROM THE USE OF THE PRODUCT OR ARISING OUT OF ANY BREACH OF ANY WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, VISUALIZE SHALL HAVE NO LIABILITY FOR ANY CLAIM OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO VISUALIZE'S NEGLIGENCE, A RISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, OR IN CONNECTION WITH ANY USE OR OTHER EMPLOYMENT OF ANY PRODUCT LICENSED TO THE CUSTOMER HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, OR OTHERWISE, WHICH MAY BE ASSERTED BY THE CUSTOMER. EXCEPT FOR IN RESPECT OF THIRD-PARTY CLAIMS PURSUANT TO SECTION 5.6 HEREIN, VISUALIZE'S AGGREGATE LIABILITY TO THE CUSTOMER FOR ALL LOSS AND DAMAGE WHETHER IN NEGLIGENCE, CONTRACT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE OPERATION OR FAILURE TO OPERATE OF THE PRODUCT, SHALL IN ANY EVENT BE LIMITED TO AMOUNTS PAID TO VISUALIZE BY ACCRUE UNDER THIS AGREEMENT.



5.5 NOTIFICATION: Accrue shall notify Visualize in writing of any claim or other legal proceeding involving the Product promptly after it becomes aware of any such claim of proceeding, and will also report all claimed or suspected failures of the Product to conform to the Documentation promptly after Accrue becomes aware of any such claimed or suspected failure, during the term of the Agreement.



5.6 INDEMNIFICATION BY VISUALIZE: Visualize will defend, indemnify, and hold harmless Accrue against any claim that the Product (including Maintenance Releases and Product R eleases) infringes any claim of copyright or trademark of any third party, or any claim under any patent or patent application, or that the foregoing incorporate any misappropriated trade secrets of a third party, provided that Accrue gives Visualize prom p t written notice thereof, grants Visualize sole control of the defense and any related settlement negotiations, cooperates with Visualize in the defense of such claim and does not agree to settle any such claim without Visualize's written consent. If use o f the Product is finally enjoined, or if Visualize anticipates the possibility of such an injunction, Visualize, at its option, will either (i) procure for Accrue the right to use the Product under the same terms and conditions of this Agreement, (ii) rep l ace the Product with a substantially equivalent program the use of which is not so enjoined, or if neither of the foregoing options is reasonably available, (iii) terminate Accrue's license and refund the license fee paid for the Product. Notwithstanding t he limitations on liability contained in Section 5.4, in the event that, as a result of a breach by Visualize of the provisions of Section 5.1 or if pursuant to this Section 5.6 Accrue is required to replace copies of the Applications containing the Produ c t which has been distributed to Accrue's end users, or to refund any part of the fees paid by such end users, Visualize shall reimburse Accrue for all such reasonable replacement costs or refunds, as well as all reasonable costs incurred in removing copie s from distribution channels. Notwithstanding the foregoing, Visualize shall have no liability to Accrue if the infringement results from (a) use of the Product in combination with other software or hardware, if the Product alone would not have been so inf ringing, (b) modifications to the Product not made by Visualize if such infringement would have been avoided by the absence of such modification, or (c) use of other than the versions of the Product











most recently offered to Accrue within the preceding six month period if such infringement would have been avoided by use of such current versions. THE FOREGOING STATES THE ENTIRE LIABILITY OF VISUALIZE, AND THE SOLE REMEDY OF ACCRUE, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR CONTRACTU AL RIGHTS OF THIRD PARTIES BY THE PRODUCT(S) OR ANY PARTS OR RELEASES THEREOF.



5.7 EXCLUSIVE REMEDIES: Except in case of infringement of a third party intellectual property right, Accrue's exclusive remedies for any claims against Visualize a rising out of the Agreement shall be limited to the following, at the option of Visualize: (a) replacement by Visualize of the Product with software acceptable to Accrue that functions substantially in accordance with the User Documentation; (b) repair by Visualize of the Product, by patch or work around, so that it functions substantially in accordance with the User Documentation or; (c) refund by Visualize of the money paid by Accrue and received by Visualize in respect to the Product. Accrue acknowledge s that this Section 5.7 limits its remedies in the event that Visualize has breached any of its obligations to Accrue. WITHOUT LIMITING THE FOREGOING, VISUALIZE AND ACCRUE AGREE THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PUR POSE, ALL OTHER LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH HEREIN SHALL REMAIN IN EFFECT.



6. TERM AND TERMINATION



6.1 TERM - TERMINATION FOR CONVENIENCE: The term of this Agreement will be three years from the Effective Date. Notwithstanding the foregoing, Accrue may terminate this Agreement upon 60 days notice to Visualize.



6.2 TERMINATION FOR CAUSE: The occurrence of any of the following events shall constitute a default under the terms of this Agreement, and a cause for termination of this Agreement:



(a) The failure by Accrue to pay Visualize any amount on or before the date payment is due, sixty (60) days after receipt of written notice notifying Accrue of such failure (to allow Accrue to ...