OEM Agreement

CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN FILED WITH THE COMMISSION





OEM AGREEMENT





This OEM Agreement (this "Agreement") is entered into as of July 14, 1999

(the "Effective Date") by and between Tioga Systems, Inc., a Delaware

corporation ("Tioga"), and At Home Corporation d/b/a Excite@Home, a Delaware

corporation ("OEM").





WHEREAS, Tioga has developed a class of enterprise software management solutions, known, collectively, as the "Tioga Self-Healing(TM) System;"





WHEREAS, OEM provides internet services to its customers;



WHEREAS, Tioga desires to license to OEM the Tioga Agent and the Tioga Healing Console as set forth below;



WHEREAS, OEM desires to license from Tioga the Tioga Agent and Tioga Healing Console to market and sublicense the Tioga Agent directly to end-users in conjunction with OEM's internet services and for internal use in OEM's internet services business;



NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:



SECTION 1. DEFINITIONS

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1.1. "Copy" means an exact copy of the software of the Tioga Agent in object code form only, together with an exact copy of the Documentation and the Materials.



1.2. "Confidential Information" means information about either party's business or activities that is proprietary and confidential, which shall include all business, finan cial, technical and other information of a party marked or designed by such party as "confidential" or "proprietary;" or information which, by the nature of the circumstances surrounding the disclosure, ought in good faith be treated as confidential, incl uding, without limitation, the specific terms, pricing and fees set forth in this Agreement.



1.3. "Documentation" means any user manuals and any other support documentation, as provided by Tioga in electronic file format to be bundled with the Tioga Agent.



1.4. "End-User" means any third party who is entitled to use the Tioga Agent in conjunction with services obtained directly from OEM solely for its own personal or internal use at its principal place of business.



1.5. "First Level S upport" means all direct interaction with End-Users regarding (i) the use and operation of OEM's internet service offerings including the Product, (ii) the intake and classification of all End-User inquiries regarding suspected errors in OEM's internet se rvice offerings including the Product and (iii) the delivery to End-Users of error corrections, work-arounds, new releases and upgrades that OEM is authorized to provide to End-Users pursuant to this Agreement.



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1.6. "Intellectual Property Rights" means patent rights (including patent applications and disclosures), copyrights (including co pyright applications), trade secrets, moral rights, know-how and any other similar rights or intangible assets recognized under any laws or international conventions, and in any country or jurisdiction in the world, as intellectual creations to which righ ts of ownership accrue.



1.7. "Product" means the Tioga Healing Console, the Tioga Agent, and the OEM Factory as described in Schedule A, including any new releases, bug fixes,

---------- patches, work-arounds or maintenance upgrades that Tioga provides to OEM, together with the Documentation.



1.8. "Second Level" support means the resolution of suspected errors reported by End-Users that do not require access to the Product source code to resolve and the resolution of End-User questions regarding the use and operation of OEM's internet service offerings including the Products, including, without limitation, (i) having qualified, trained OEM technical employees review all reported errors to determine if such error is the result of software or hardware other than the Products, (ii) if OEM determines that there is an error in a Product, having such employees submit a detailed description of the error to Tioga sufficient for Tioga to reproduce the error, or if OEM is not able to replicate the error, OEM will provide any additional information required by Tioga including, if possible, remote access to the End-User's computer system and (iii) making its technical staff available to Tioga for problem identification and resol ution.



1.9. "Third Level Support" means the resolution by Tioga of errors in Product source code or documentation for OEM in accordance with Tioga's maintenance and support procedures that are generally applicable to Tioga's customers that are unde r Product maintenance and support plans, including providing to OEM any bug fixes, patches, work-arounds or maintenance upgrades of the Product made generally available by Tioga to its customers that are under maintenance and support plans.



1.10. "Tioga Agent" means the software described as Tioga Agent on Schedule A hereto.



1.11. "Tioga Healing Console" means the software described as the Tioga Healing Console on Schedule A hereto.



1.12. "OEM Cable Distribution Affiliates " means cable companies who provide internet services to OEM's End-Users and who distribute and support the software licensed by OEM to OEM's End-Users pursuant to agreements with OEM. All OEM Cable Distribution Affiliates must be subject to an agreement with respect to the Products at least as restrictive as the terms and conditions contained herein.



1.13. "OEM Factory" means the software described as the OEM Factory on schedule A hereto.



1.14. "OEM Independent Contractors" means the third pa rty consultants working under OEM's direct guidance and subject to a confidentiality agreement at least as restrictive as those set forth in this Agreement; provided however, that no consultant may be the employee of or a Tioga competitor.





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1.15. "Licensed Applications" means internet connectivity and client applications that OEM is providing to the End User as part of OEM's internet service offering bundle.



1.16 "Tioga Marks" means the mark TIOGA, the mark SELF-HEALING, the Tioga Logo (shown below), and the composite mark including the mark TIOGA and the Tioga Logo.









1.17 "Tioga Competitor" means any of Motive Systems or Aveo or any successor entity thereto, and any entity added by written notice as set forth in this Section 1.15 from Tioga to OEM during the term of this Agreement. For the purposes of Section 1.13, Tioga may add additional competitor s during the term of the Agreement upon written notice to OEM. For the purposes of Section 8.9, Tioga may add additional competitors during the term of the Agreement upon ninety (90) days written notice to OEM.



SECTION 2. LICENSE GRANT

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2.1. License Grant. Subject to the limitations set forth in Section 2.3

------------- hereof and to the other terms and conditions of this Agreement, Tioga hereby grants to OEM, during the term of this Agreemen t, a royalty bearing, non- exclusive, non-transferable, worldwide license to copy and sublicense the Tioga Agent as part of a bundled service offering only with OEM's internet service offerings, and only to End-Users who have previously agreed in writing, or have otherwise agreed via a binding shrinkwrap or clickwrap license, to be bound by a license agreement (i) in substantially the form attached as Exhibit A hereto or (ii) including terms that are at least as restrictive as the terms set forth on Exhibi t A (an "End-User License Agreement"). Except as required by applicable

-------------------------- law, the End-User License Agreement shall not be transferable or sublicensable by the End-User.



2.2 Product Use Grant. Subject to the limitations set forth in Section

----------------- 2.3 hereof and the other terms and conditions of this Agreement, Tioga grants to OEM, during the term of this Agreement, a non-exclusive, non-transferable license in the United States



(i) to make, use and display Copies of the Products for the sole purpose

of carrying out marketing, advertising and promotional activities

directed to End-Users,



(ii) to make Copies and to use internally such Copies of the Products for

the sole purpose of supporting and maintaining the Products;



(iii) to make Copies and to use internally such Copies of the Tioga Agent

and the Tioga Healing Console to diagnose and repair End-User

systems which have a Tioga Agent that has been properly sublicensed

pursuant to the terms of this agreement, and



(iv) to make Copies and to use internally such Copies of the OEM Factory

to configure properly sublicensed copies of the Tioga Agent, as

permitted by this Agreement; and



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(v) to sublicense OEM's rights under subsections (i), (ii) and (iii) to

OEM's Cable Distribution Affiliates.



2.3 Limitations.

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2.3.1 Copying Limitations. OEM may only make Copies of the Products

------------------- at its own facilities and may not permit any third party to make Copies of the Product without Tioga's prior written approval; provided, however, that OEM may have Copies made by OEM Cable Distribution Affiliates for distribution to OEM's End-Users only. OEM shall reproduce, and shall ensure that all OEM Cable Distribution Affiliates reproduce, on all Copies of the Product, the unaltered copyright and proprietary information notices that are affixed to the original co p y of the Product delivered to OEM by Tioga, or any subsequent version or update thereof provided by Tioga to OEM. OEM shall make and have made only the minimum number of Copies of the Product as is necessary for OEM to fill its orders from End-Users plus no more than ten (10) additional Copies in order to carry out its support and maintenance and promotional, advertising and marketing activities, as permitted in Section 2.2 hereof.



2.3.2. No Delegation. Except as expressly provided herein, OEM may

------------- not use sub-distributors, agents, OEMs or otherwise sublicense its rights or delegate any of its obligations hereunder in any manner; provided, however, that (a) OEM may have Copies made and distributed by OEM Cable Distribution Affiliates to OEM's End-Users only, (b) OEM may have OEM Cable Distribution Affiliates provide First Level Support to OEM's End-Users only. and (c) OEM may use OEM Independent Contractors solely to exercise OEM's rights under Section 2.2 (i) -(iv).



2.3.3. Tioga Agent. The Tioga Agent may only be configured,

----------- sublicensed and used to protect, diagnose, and repair Licensed Applications. The Tioga Agent may only be (i) sublicensed as part of an OEM inte rnet service offering bundle, (ii) sublicensed and used to protect Licensed Applications by returning the application to a previous working state, and (iii) used for application repair by the End-User or OEM. The Tioga Healing Console may only be used to d iagnose and repair End-User systems which have a Tioga Agent that has been properly sublicensed per the terms of this agreement. Neither the OEM Factory nor the Tioga Healing Console may be sublicensed by OEM, except as expressly provided herein, and eac h may only be copied for use by OEM at their principal place of business. The OEM Factory may only be used to configure properly sublicensed copies of the Tioga Agent prior to providing use of such Tioga Agent to end users as allowed by this agreement. Un der no circumstances may the Tioga Agent be used to protect or repair any applications other than those permitted herein by Section 2.3.3.(ii).



2.4 Retention of Ownership. Except as expressly licensed to OEM herein,

---------------------- Tioga and its licensors retain all right and title to (i) all Intellectual Property related to the Product and all Copies thereof (by whomever produced) and (ii) all Intellectual Property of Tioga. OEM shall take any actions reasonably requested by Tioga , including the execution, registration and recordation of instruments, that may be necessary or appropriate to assign these rights to Tioga or its licensor or perfect these rights in Tioga's or its licensor's name, provided that Tioga agrees to reimburse O EM's reasonable out- of-pocket expenses incurred in taking such actions. Except as set forth in Section 2.5 ("Source Escrow") below, OEM will have no right to receive or license any source code with respect to any Product. Tioga and its licensors reserv e all rights and licenses to the Products not expressly granted to OEM hereunder. OEM shall acquire no right, title or interest in any



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Intellectual Property related to the Products or any Copies thereof (by whomever produced) other than the license rights as described by Section 2 of this Agreement. All usage of such Intellectual Property shall inure to Tioga's benefit. OE M shall not at any time do any act which would impair such Intellectual Property. OEM agrees to take no action inconsistent with Tioga's ownership of and interest in such Intellectual Property, or assist any third party in doing the same.



2.5 Source Code Escrow.

- ------------------



2.5.1 The parties agree that Tioga will deposit a copy of all source code to the Products, and subsequently developed error corrections and updates provided to OEM by Tioga pursuant to this Agree ment (the "Source Code"), any development tools owned or controlled by Tioga and internal technical documentation as is required for the compilation and implementation of the Source Code (collectively, the "Deposit") in confidential escrow with a mutually agreed upon third party escrow company, within thirty (30) days of the execution of this Agreement. Such escrow will be subject to the procedures, terms and conditions set forth in an escrow agreement between Tioga, OEM and the third party escrow company in a form mutually agreed upon by the parties. The parties agree to share the fees and other costs of the third party escrow company equally.



2.5.2 Release Conditions. Tioga agrees that OEM has the right to

---------------- -- obtain the Deposit from escrow immediately upon the occurrence of any of the following events: (i) Tioga's material breach of its support and maintenance obligations which remains uncured forty-five (45) days after OEM's written notice to Tioga specify i ng such material breach; (ii) Tioga's decision to abandon that portion of its business relating to the Products; (iii) Tioga's failure to continue to do business; (iv) Tioga becoming the subject of a voluntary proceeding relating to insolvency, receiversh i p, liquidation, or composition for the benefit of creditors; (v) Tioga becomes the subject of an involuntary petition in bankruptcy, or any involuntary proceeding relating to the insolvency, receivership, liquidation, or composition for the benefit of cre ditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.



2.5.3 In the event of a release of the Deposit, OEM shall be entitled to use the Deposit only to the extent set forth in the license granted under Section 2.5.3 below.



2.5.4 SOURCE CODE LICENSE. TIOGA HEREBY GRANTS OEM A NON-EXCLUSIVE,

------------------- NON-TRANSFERABLE ROYALTY FREE LICENSE TO USE, COPY, AND MODIFY THE SOURCE CODE AND OBJECT CODE FOR THE PRODUCTS FOR THE SOLE PURPOSE OF MAINTAINING AND SUPPORTING THE PRODUCTS IN THE EVENT OF A RELEASE OF THE DE POSIT FROM ESCROW.



SECTION 3. DELIVERY

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3.1. Delivery of Documentation and Materials. From time to time, Tioga

--------------------------------------- shall deliver to OEM Documentation in electronic file format.



3.2. Delivery of the Products. Tioga shall deliver to OEM a golden master

------------------------ electronic copy of the Products, in object code format (the "Golden Master"), on

------------- the Effective Date of this Agreement at the "ship to" address set forth below. The Golden Master may contain software that



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is not licensed to OEM under this Agreement, and OEM acknowledges that it has no right to such software and agrees not to use such unlicensed software for any purpose.



3.3. Replacement Version. If at any time during this Agreement Tioga

------------------- notifies OEM of the development of a replacement version or update of the Products or any part thereof, OEM shall use reasonable commercial efforts to cease use and distribution of the existing version of the Products, or the affected part thereof:



(a) if Tioga provides OEM with thirty (30) days advance notice of such

replacement version or update and such version or update is related

to a possible infringement or warranty issue, as determined in

Tioga's reasonable discretion, then within ten (10) days after Tioga

makes such version or update available to OEM; and



(b) in any other case, as soon as practicable, but in no event later

than eighteen months (18) after Tioga makes the replacement version

or update of the Products available to OEM.



Tioga will provide OEM with reasonable notice of and documentation explaining any such replacement version or update such that OEM can make a replacement with minimal disruption to End Users.



SECTION 4. LICENSE FEES

------------



4.1. License Fees. Subject to the terms and conditions of this Agreement,

------------ OEM shall pay to Tioga license fees of One Million Seven Hundred Thousand Dollars (USD$1,700,000) pursuant to the schedule set forth below for right to copy and sublicense the Tioga Agent product during the initial term of this Agreement, such fees are non-refundable. Pay ments shall be due on the Payment Date shown below.



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Payment Date Amount of License Fee Due

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Effective Date $[***]

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12/31/99 $[***]

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02/28/00 $[***]

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05/31/00 $[***]

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08/31/00 $[***]

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11/30/00 $[***]

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02/28/01 $[***]

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05/31/01 $[***]

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08/31/01 $[***]

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11/30/01 $[***]

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02/28/02 $[***]

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05/31/02 $[***]

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08/31/02 $[***]

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11/30/02 $[***]

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Total: USD$1700,000.00

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[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION





4.2 Taxes. OEM will pay all transportation charges and shall be

----- responsible for all taxes (except Tioga's income or property taxes) duties and other governmental assessments incurred by either party as a result of the consummation of the transactions contemplated by this Agreement. OEM shall be solely responsible for any withholding or other taxes due to any government other than the United States government and shall not withhold any such amounts from payments to Tioga. OEM acknowledges and agrees that it shall b e the obligation of OEM to report income received by OEM hereunder to all appropriate taxing entities.



4.3 Late Payments. Payments not received by Tioga within forty-five days after the due date shall be subject to late payment interest charges at a rate of one and one-half percent (1.5%) per month or the maximum allowed by law, whichever is lower.



SECTION 5. CUSTOMER SUPPORT AND CONSULTING



5.1. First and Second Level Support. OEM shall provide to End-Users all

------------------------------ First Level Support and all Second Level Support with respect to the Tioga Agent, and shall distribute bug fixes, patches, work-arounds and other benefits of the Third Level Support which it receives from Tioga t o OEM's End-Users. OEM will identify for Tioga a primary point of contact for managing all support communications, and an escalation point of contact for escalating any issues related to support or maintenance services.



5.2. Third Level Support. Tioga will provide Third Level Support directly

------------------- to OEM. Tioga shall have no obligation to provide Third Level Support directly to any End-User. Tioga will also identify for OEM a primary point of contact for managing all suppor t communications, and an escalation point of contact for escalating any issues related to support or maintenance services.



5.3. Technical Consulting. Subject to the payment of the applicable

--------------------- Consulting Fees, Tioga will provide technical consulting services to OEM with respect to (a) limited customization of the Tioga Agent and (b) support of OEM's use, configuration and deployment of the Tioga Agent, as reasonably requested by OEM. OEM may request up to ten person days of such consulting services in connection with the initial deployment of the Tioga Agent, ten person days of such consulting services in connection with the subsequent deployment of the Tioga Agent during September through November 1999 ("Subsequent F all Deployment"), and consulting services as mutually agreed upon in writing by the parties and paid for by OEM during each quarter thereafter. Tioga will provide OEM with up to ten (10) person days of technical consulting services at no charge for each o f (a) the initial deployment and (b) the Subsequent Fall Deployment and up to five (5) additional person days of technical consulting services at no charge during the initial term of this Agreement; provided however that such technical consulting services m ust be used during the applicable period, or such services will be forfeited . For all other technical consulting services, OEM will pay to Tioga a Consulting Fee of [***] (USD$[***]) per person day, plus reimburse Tioga for all reasonable travel and expe nses approved by OEM prior to expenditure.



SECTION 6. EXPENSES

--------



6.1. Each party will be responsible for their own travel and other expenses required to negotiate and execute this Agreement.



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[***] CONFIDENTIAL MATERIAL REDACTED AND FILED SEPARATELY WITH THE COMMISSION

6.2. Except for fees payable to Tioga for consulting as provided in Sec tion 5 or as otherwise expressly set forth herein, (a) OEM and Tioga will not charge each other for personnel time expended in the performance of the Agreement, and (b) each of OEM and Tioga will be responsible for its own expenses in connection with the exercise of its rights or performance of its obligations under this Agreement.



SECTION 8. RECORDS. DURING THE TERM OF THIS AGREEMENT AND FOR ONE (1) YEAR

------- AFTER ITS TERMINATION, OEM AGREES (A) TO RETAIN ALL USUAL AND PROPER RECORDS A ND BOOKS OF ACCOUNT AND ALL USUAL AND PROPER ENTRIES RELATING TO THE PRODUCTS SUFFICIENT TO SUBSTANTIATE OEM'S COMPLIANCE WITH THIS AGREEMENT AND (B) NO MORE THAN ONCE PER YEAR, TO ALLOW TIOGA'S REPRESENTATIVE TO REVIEW, AUDIT AND INSPECT OEM'S DOCUMENTS, FINANCIAL STATEMENTS, OR BUSINESS RECORDS, COMPUTER PROCESSORS, EQUIPMENT AND FACILITIES FOR THE PRECEDING ONE (1) YEAR IN ORDER TO VERIFY OEM'S COMPLIANCE WITH THE TERMS OF THIS AGREEMENT. ANY REVIEW, AUDIT AND/OR INSPECTION SHALL BE CONDUCTED DURING RE G ULAR BUSINESS HOURS AT OEM'S AND/OR OEM'S SUBSIDIARY'S FACILITIES ON REASONABLE PRIOR NOTICE. ANY AUDIT SHALL BE CONDUCTED BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT SELECTED BY TIOGA AND ACCEPTABLE TO OEM (BUT OEM MAY NOT UNREASONABLY WITHHOLD OR DEL A Y SUCH ACCEPTANCE), AND AT TIOGA'S EXPENSE EXCEPT AS SET FORTH IN THE LAST SENTENCE OF THIS SECTION 7 BELOW. IF TIOGA'S REPRESENTATIVE'S REVIEW, AUDIT OR INSPECTION REVEALS ANY MATERIAL BREACH OF THIS AGREEMENT AS REASONABLY ESTABLISHED BY TIOGA, THEN WI THIN THIRTY (30) DAYS AFTER RECEIVING NOTICE THEREOF OEM SHALL REIMBURSE TIOGA FOR ALL REASONABLE COSTS OF THE ...