ISV Software License Agreement

ISV SOFTWARE LICENSE AGREEMENT



THIS ISV SOFTWARE LICENSE AGREEMENT is entered into this 27th day of April, 1999 (the "Effective Date") by and between BEA WEBXPRESS, INC., a Delaware corporation with principal offices at 550 California, 10th Floor, San Francisco, California 94104 ("WebXpress") and CALICO COMMERCE, INC., a Delaware corporation with principal offices at 333 W. San Carlos Street, Suite 300 , San Jose, California 95110 ("Licensee").





WHEREAS, WebXpress desires to grant to Licensee, and Licensee desires to receive from WebXpress, a worldwide, non-exclusive license to integrate WebXpress's proprietary software in object code format into In tegrated Products (as hereinafter defined), and to distribute such WebXpress software as integrated into Integrated Products, all in accordance with the terms of this Agreement.



NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, the parties agree as follows:





1. DEFINITIONS.



For purposes of this Agreement the following terms shall have the meanings set forth below.



1.1 "AFFILIATE" means an entity controlling, controlled by, or under common control with Licensee. For purposes of this definition, "control" or any correlative form thereof, means the ownership of more than fifty percent of the voting stock of such entity, or if such entity is not a corporation, the ability to control the day-to-day operations and business of such entity.



1.2 "DISTRIBUTOR" means an Affiliate, or third party distributor or reseller, appointed by Licensee under the terms of this Agreement, who acquires Integrated Products from Licensee solely for the purpose of distributing such Integrated Products to End-Users, and not for such party's internal business purposes. Any Distributor who seeks to make use of any Integrated Product f or its own internal business purposes must do so under the terms of an End-User License Agreement.



1.3 "DISTRIBUTION AGREEMENT" means a written agreement between Licensee and a Distributor, signed by both parties, covering the distribution by such Di stributor of any Integrated Product to End-Users, which agreement is consistent with, and no less protective of WebXpress's proprietary and intellectual property rights, than the terms of this Agreement.



1.4 "END-USER" means a person or entity who acquires Integrated Products from Licensee or a Distributor for such person or entity's internal business purposes, and not for sale, resale, lease or any other form of distribution to third parties.





[***] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.







1.5 "END-USER LICENSE AGREEMENT" means a written agreement between either Licensee or a Distributor, and an End-User, whi ch agreement is either signed by both parties or is in "shrinkwrap" or "clickwrap" form, covering the licensing of an Integrated Product to such End-User. Such agreement must be consistent with, and no less protective of WebXpress's proprietary and intell ectual property rights in the WebXpress Software, than the terms of this Agreement. Without limitation, an End-User License Agreement must contain terms consistent with the applicable provisions of Section 2 of this Agreement.



1.6 "INTEGRATED PRODUCT " means an application software product created by Licensee through the integration of WebXpress Software with application software programs proprietary to Licensee ("Licensee Applications"). All Integrated Products are subject to the restrictions on deve lopment, use and distribution set forth in Section 2 of this Agreement. The Integrated Products covered by this Agreement are described in greater detail in Schedule B, attached hereto and made a part hereof.



1.7 "WEBXPRESS SOFTWARE" means the machin e-readable, compiled, object code form of WebXpress's proprietary software and associated documentation. The specific WebXpress Software covered by this Agreement is set forth on Schedule A, attached hereto and made a part hereof. Provided that Licensee i s not in material breach of this Agreement and is current in its payment of annual support fees, the WebXpress Software covered by this Agreement shall also include the object code form of any subsequent releases or successor products of the WebXpress Soft ware set forth on Schedule A, and any modifications (including bug fixes, error corrections, enhancements and updates) to which Licensee may be entitled pursuant to the terms Schedule E.



2. LICENSE GRANT.



2.1 LICENSE TO REPRODUCE AND DISTRIBU TE. Subject to the terms and conditions of this Agreement, WebXpress hereby grants to Licensee, under WebXpress's intellectual property rights in and to the WebXpress Software, a worldwide, non-exclusive, non-transferable license: (i) to integrate the Web X press Software into Integrated Products including, but not limited to, using the WebXpress Software to make the Integrated Products extensible to third party applications and data; (ii) to reproduce the WebXpress Software as so integrated into Integrated P roducts; and (iii) to distribute the WebXpress Software as integrated into Integrated Products solely to End-Users who are subject to an End User Agreement and Distributors as set forth in section 2.2 below. Licensee shall make no use of any copies of the WebXpress Software except as provided in this Section 2.1. Licensee may sublicense the distribution rights granted under this Section 2.1 solely as described in Section 2.2. All rights not specifically granted herein shall be retained by WebXpress.



2 .2 SUBLICENSING. WebXpress grants to Licensee the right to appoint Distributors to distribute the Integrated Products to End-Users. All Distributors appointed by Licensee must execute a Distribution Agreement. Licensee will use reasonable commercial effo rts to ensure that such Distributors comply with the terms of their respective Distribution Agreements and will inform WebXpress promptly of any known violation, infringement or breach which impacts the Integrated Products.





2.3 RESTRICTIONS. Licensee's rights under Section 2.1 are, without limitation on any other restrictions set forth in this Agreement, subject to the following limitations and restrictions:



(i) Each Integrated Product made available for di stribution to End-Users must be developed so that the WebXpress Software and any of its API's are accessible to the End-User only as allowed by use of an appropriate license key issued by WebXpress and only for use related to the Integrated Product;



(ii) Each and every End-User Agreement and each and every Distributor Agreement shall provide that the End-User or Distributor, as the case may be, may not under any circumstances attempt, or knowingly permit or encourage others to attempt to decomp ile, decipher, disassemble, reverse engineer or otherwise decrypt or discover the source code of all or any portion of the Integrated Product, including the WebXpress Software embedded therein;



(iii) Each and every End-User Agreement shall provid e that the End-User may not under any circumstances use the WebXpress Software or any of its API's in any manner except indirectly in connection with the use of the Licensee Application portion of the Integrated Product, and that the End User may not run any third party software applications on the WebXpress Software or any of its API's, without first purchasing a license for such use from WebXpress;



(iv) Licensee may not, under any circumstances, distribute the WebXpress Software or any of its API's as standalone products;



(v) Licensee shall not integrate the WebXpress Software with any products other than the Integrated Products without first obtaining WebXpress's prior written consent.



2.4 LICENSEE CERTIFICATION. Licensee r epresents and warrants to and for the benefit of WebXpress that each Integrated Product contains a significant enhancement of features and/or functionality to the WebXpress Software embedded therein, and that each Integrated Product is substantially diffe rent from any of WebXpress's products and does not compete with any current WebXpress products.



2.5 PROPRIETARY NOTICES. Licensee shall not remove, efface or obscure any copyright notices or other proprietary notices or legends from any WebXpress Sof tware or WebXpress material provided hereunder, and shall reproduce all such notices and legends when incorporating the WebXpress Software into the Integrated Products.



2.6 BRANDING AND QUALITY CONTROL PROVISIONS.



2.6.1 "WEBXPRESS CHARGED" SEAL. Calico shall reproduce the software without removing any copyright notices of other proprietary notices or legends.



2.6.2 QUALITY CONTROL PROVISIONS. The Licensee Application(s) shall make commercially reasonable efforts to ensure that its Integrated Products be of at least the same quality as Licensee's other products of a similar nature, or, if Licensee has no other products of a similar nature, the Licensee's Applications shall be of at least the same quality as the average quality of other products of a similar nature which are generally available to the public.







2.6.3 License agrees to include a referral to the WebXpress website on the Licensee's website.



2.7 OWNERSHIP. The WebXpress Software is licensed, not sold to Licensee. Except as specifically licensed to Licensee hereunder, WebXpress retains all right, title and interest, including all intellectual property rights, in and to the WebXpress Software.



2.8 EVIDENCE OF C OMPLIANCE. Upon request of WebXpress, Licensee shall promptly, and in any event within thirty (30) days, provide WebXpress with any and all evidence reasonably necessary to confirm Licensee's compliance with the provisions of Sections 2.1 through 2.6.



3. ROYALTIES AND SUPPORT FEES.



3.1 ROYALTY AND SUPPORT FEES. Licensee shall owe to WebXpress royalties and, if Licensee so elects, support fees as set forth on Schedule C. All royalties and support fees will be paid on a calendar quarterly basis with in 30 days after the end of the quarter based upon Net Revenues. Included with the payment, Licensee will provide WebXpress a report containing the number of customers (including End-Users, ISV's and Distributors) receiving the Integrated Product and the quantity shipped in the previous quarter. The report will include shipments of marketing, demonstration, training and customer evaluation copies for which no royalties will be owed.



3.2 AUDIT. Licensee shall maintain complete and accurate accounting and distribution records, in accordance with generally accepted accounting practices, to support and document royalties payable in connection with this Agreement. Such records shall be retained for a period of three (3) years after the royalties which rel a te to such records have been accrued and paid. Licensee shall, upon written request from WebXpress, provide access to such records to an independent auditor chosen by WebXpress for the purposes of audit. If any such audit discloses a shortfall in payment t o WebXpress of more than five percent (5%) for any quarter, Licensee agrees to pay or reimburse WebXpress for the expenses of such audit. If any such audit discloses a shortfall in payment to WebXpress of more than fifteen (15%) for any quarter, WebXpress may terminate this Agreement.



3.3 TAXES. Licensee shall complete the Resale Certificate attached in Schedule D. Licensee agrees to provide WebXpress with further documentation, as reasonably necessary, supporting such status. Licensee shall be respo nsible for any sales or use or other taxes (other than taxes based on WebXpress's net income) to the extent that any such taxes may arise in connection with this Agreement.



4. WARRANTIES AND SUPPORT



4.1 LIMITED WARRANTY. WebXpress warrants that for a period of ninety (90) days following delivery to Licensee, the WebXpress Software will perform substantially in accordance with the accompanying WebXpress Documentation. WebXpress does not warrant that the WebXpress Software will be error-free or wi l l operate without interruption. Licensee's exclusive remedy for breach of the warranty contained in this Section 4.1 shall be, at WebXpress's discretion, the correction of any such failure to perform, or refund of the license fee paid by Licensee with res pect to such non-conforming WebXpress Software.





4.2 INTELLECTUAL PROPERTY AND VIRUS WARRANTY. WebXpress, to the best of it's knowledge, warrants that the WebXpress Products do not infringe upon the intellectual property rights, including but not limited to the patent, trademark, trade secret, or copyright rights, of Licensee or any third party. WebXpress warrants that it shall take all steps necessary, consistent with the established industry standards in effect at the time, to insure that any pr o ducts (including modifications, corrections, and enhancements) provided through WebXpress shall, when delivered to Licensee, be free of any disabling codes or instruction, or any virus or other contaminant, that may be used to access, modify, delete, dama ge or disable Licensee or End-User's system or data, damage such systems or data, or disrupt Licensee or End-User's business.



4.3 YEAR 2000 COMPLIANCE. WebXpress warrants that the WebXpress Software, when used in accordance with its associated doc umentation, will be Year 2000 Compliant, WebXpress shall have no liability and expressly disclaims any warranties in connection with any third party or Licensee's hardware or systems, any third party or Licensee software, and the operation of any WebXpres s Software with any third party or Licensee's hardware or systems, third party or Licensee software or equipment not supplied by WebXpress. In the event of any breach of the warranty set forth in this Section 4.3, WebXpress shall use best reasonable effort s to bring such non-conforming WebXpress Software into Year 2000 Compliance at an additional cost to Licensee as soon as practicable. In the event WebXpress is unable to do so, WebXpress shall refund to Licensee fees paid to WebXpress in connection with su c h WebXpress Software. The remedies provided in this Section 4.3 shall be the sole and exclusive remedies available to Licensee, and the sole and exclusive obligation of WebXpress, for a breach of the warranty set forth in this Section 4.3. For the purpose of this Section 4.3, "Year 2000 Compliant" means software that has user interfaces, date data fields, processing logic and outputs that correctly recognize, process and otherwise support date data with respect to dates occurring on or after January 1, 200 0, provided that all other hardware, software or firmware used in conjunction the software being evaluated for compliance properly exchanges accurate and properly formatted date data with the software being evaluated for compliance.



4.4 WEBXPRESS WAR RANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4.1, 4.2 AND 4.3, WEBXPRESS HEREBY DISCLAIMS ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE WEBXPRESS SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MER CHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.



4.5 SERVICE AND SUPPORT. Subject to a current annual support contract being in place and payment of any applicable support fees by Licensee, WebXpress agrees to provide support and software upgrades as described in Schedule E.



4.6 END-USER SUPPORT. Licensee shall, at its own expense, be solely responsible for providing technical support (including without limitation warranty service) and training to its Distributors and End-Users for the Integrated Products. Licensee shall ensure that all questions from Distributors or End-Users regarding the use or operation of the Integrated Products are addressed to and answered by Licensee.







5. INDEMNIFICATION.



5.1 WEBXPRESS INDEMNITY. WebXpress shall indemnify, defend and hold Licensee harmless from and against any claim that the WebXpress Software as used within the scope of this Agreement infringes any copyright, trademark, trade secret or patent of any third party, provided that (i) Licensee notifies WebXpress promptly in writing of the claim; (ii) WebXpress has sole control of the defense and all related settlement negotiations; and (iii) Licensee provides WebXpress, at WebXpress's expense, with all ne cessary assistance, information, and authority to perform the above.



5.2 EXCLUSIONS. WebXpress shall have no liability for any claim of infringement based on (i) use of other than the latest commercially available version of the WebXpress Software pr ovided to Licensee, to the extent the infringement would have been avoided by use of such version and Licensee has been given reasonable notice of the need to move to a different version of the WebXpress Software, (ii) modification of the WebXpress Softwa r e by Licensee to the extent the infringement would have been avoided without such modification; or (iii) the combination or use of the WebXpress Software furnished hereunder with materials not furnished by WebXpress to the extent such infringement would h ave been avoided by use of the WebXpress materials alone.



5.3 ALTERNATIVES. In the event the WebXpress Software is held to, or WebXpress believes is likely to be held to, infringe any third party copyright, trademark, trade secret or patent, WebXpres s shall have the right at its sole option and expense to (i) substitute or modify the WebXpress Software so that it is non-infringing, while retaining equivalent features and functionality; or (ii) obtain for Licensee a license to continue using the WebXp r ess Software under commercially reasonable terms; or (iii) if (i) and (ii) are not reasonably practicable, terminate this Agreement as to the infringing WebXpress Software and return to Licensee any license fees paid by Licensee hereunder with respect the reto, amortized over a period of three years, which period the parties agree is represents the useful life of the WebXpress Software. The foregoing section 5.3 does not in any way limit WebXpress's obligations under section 5.1.



5.4 SOLE OBLIGATION. The foregoing sections 5.1 through 5.3 state the sole obligation and exclusive liability of WebXpress, and Licensee's sole recourse and remedy for any infringements or claims of copyright and patent infringement by the WebXpress Software.



5.5 LICENS EE INDEMNITY. Except to the extent the below arise from infringement of such rights by the WebXpress Software, Licensee agrees to indemnify, defend and hold WebXpress harmless from and against any costs, losses, liabilities, claims or expenses (including a ttorneys' fees) arising out of: (i) any claim that any Integrated Product infringes upon the intellectual property or proprietary rights of any third party, (ii) the distribution of any Integrated Product by Licensee or its Distributors; or (iii) the use of any Integrated Product by and End-User, Distributor or third party.



6. TERM AND TERMINATION.







6.1 INITIAL TERM. This Agreement shall become effective on the ...