Talarian Software License And Distribution Agreement

TALARIAN SOFTWARE LICENSE AND DISTRIBUTION AGREEMENT


This Agreement, dated ("Effective Date"), is made between Talarian ("Talarian"), a California corporation doing business at 333 Distel Circle, Los Altos, California 94022-1404, and ________ ("Licensee"), a corporation doing business at .


RECITALS


A. Talarian is in the business of developing and marketing proprietary software products which assist in the development of communications and data management software.


B. Licensee is in the business of developing and marketing _______________ .


C. Licensee desires to acquire, and Talarian desires to grant Licensee, a right and license to use Talarian software to develop Licensee's software application, to embed the runtime version of Talarian software in such software applications, and to offer, distribute and sublicense such software applications to Licensee's customers.


Talarian and Licensee agree as follows:


1. DEFINITIONS.


"SmartSockets Development System" means Talarian's proprietary SmartSockets computer software programs and tools, in object code form only, which enable a user to develop an application using SmartSockets. The SmartSockets Development System is more fully described in Exhibit A. The SmartSockets Development System includes any and all modifications, revisions and enhancements to the SmartSockets Development System provided to Licensee under this Agreement and under any SmartSockets maintenance contracts entered into by Licensee with Talarian.


"SmartSockets Runtime" means those portions of the SmartSockets Development System, in object code form only, which may be incorporated into and distributed as part of a Bundled Product under the terms of this Agreement.


"SmartSockets Documentation" means the SmartSockets Documentation, whether provided in printed form or on machine-readable media, which is generally provided by Talarian to its licensees in conjunction with and in support of the SmartSockets Development System or SmartSockets Runtime, all as described in Exhibit A. The SmartSockets Documentation includes all modifications, revisions and enhancements to the SmartSockets Documentation provided to Licensee under this Agreement and under any SmartSockets maintenance contracts entered into by Licensee with Talarian.


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"Talarian Products" means SmartSockets Development System, SmartSockets Runtime, and SmartSockets Documentation.


"Licensee Product" means the computer software and/or hardware and related documentation specified in Exhibit B, which is one or more stand alone software products marketed by Licensee and created by Licensee without use of the SmartSockets Development System, or obtained by Licensee from sources other than Talarian, which may be combined with SmartSockets Runtime to constitute a complete deliverable and executable Bundled Product.


"Bundled Product" means the combination of a Licensee Product and SmartSockets Runtime, created by modifying a Licensee Product using the SmartSockets Development System. The Licensee Product must be linked with SmartSockets Runtime to produce a single executable product. The Licensee Products will represent a significant functional and value enhancement to the Talarian Products, such that the primary reason for an end user to license the Bundled Products is other than the right to receive a license to use the Talarian Products included in the Bundled Products. Without limiting the generality of the foregoing, the Bundled Products may not be products that compete with the Talarian Products, or any portion thereof.


"End User" means a direct or indirect customer of Licensee who is authorized by an end user license agreement as specified in Section 3.1 to use a Talarian Product for the End User's internal business purposes.


"Sublicensees" means a direct or indirect customer of Licensee who is authorized by a Sublicensee agreement as specified in Section 3.2 to distribute a Talarian Product as part of the Bundled Products for distribution to End Users or other Sublicensees.


"Territory" means ________.


"Intellectual Property Rights" means patent rights, copyright rights (including, but not limited to, rights in audiovisual works and moral rights), trade secret rights, and any other intellectual property rights recognized by the law of each applicable jurisdiction.


"Marks" means Talarian's trademarks, trade names, service marks, and/or service names specified in Exhibit A.


2. LICENSES.


2.1 Grant of License.


(a) Licenses. Subject to all the terms and conditions of this Agreement, Talarian hereby grants to Licensee, and Licensee hereby accepts a non-exclusive, nontransferable license:


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(i) to use a number of SmartSockets Development Systems set forth in Exhibit A on the platform also set forth in Exhibit A and in conjunction with Licensee Products, to develop, modify, reproduce, generate and test Bundled Products;


(ii) to market, distribute (directly or through Sublicensees) and sublicense SmartSockets Runtime, as part of the Bundled Product, to End Users solely for their own internal business purposes in the Territory during the term of this Agreement.


2.2 Reproduction. Subject to the terms of this Agreement, Talarian grants Licensee a non-exclusive, non-transferable license during the term of this Agreement to reproduce Talarian Products for distribution in accordance with Section 2.1.


2.3 No Reverse Engineering. Licensee will not disassemble, decompile, or reverse engineer any Talarian Products.


2.4 No Copying. Licensee will not copy or otherwise reproduce any Talarian Products, in whole or in part, except for making reasonable numbers of back-up copies or as expressly authorized by this Agreement.


2.5 No Unauthorized Derivative Works. Licensee will not modify the Talarian Product in any manner, except as it may be expressly directed by Talarian in writing.


2.6 No Sale of Services. Licensee will not use the Talarian Products in any manner to provide service bureau, time sharing, or other computer services to third parties.


2.7 Limited Rights. Licensee's rights in the Talarian Products will be limited to those expressly granted in this Agreement.


3. OTHER AGREEMENTS, PRICING, AND MARKETING.


3.1 End User Agreement. Licensee may not distribute any Talarian Products to any End User unless such End User is subject to an end user software license agreement with Licensee that:


(i) protects Talarian's proprietary rights in the Talarian Products to at least the same degree as the terms and conditions of this Agreement;


(ii) requires that such End User not reverse engineer, reverse compile or disassemble the object code for the Talarian Products;


(iii) requires such End User to comply fully with all applicable laws and regulations in any of its dealings with respect to the Talarian Products;


(iv) makes no representations or warranties on behalf of Talarian; and


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(v) does not grant any rights to such End User beyond the scope of this Agreement.


Licensee will promptly provide Talarian with reasonable access to such agreements following Talarian's request.


3.2 Sublicensee Agreement. Licensee may distribute, and may grant sublicenses of, SmartSockets Runtime to Sublicensees as part of the Bundled Products for distribution and sublicensing of SmartSockets Runtime as part of the Bundled Products to End Users, provided that each such Sublicensee executes, or has already executed, a written Sublicensee agreement with Licensee that:


(i) protects Talarian's proprietary rights in the Talarian Products to at least the same degree as the terms and conditions of this Agreement;


(ii) requires that such Sublicensee not reverse engineer, reverse compile or disassemble the object code for the Talarian Products;


(iii) requires such Sublicensee to comply fully with all applicable laws and regulations in any of its dealings with respect to the Talarian Products;


(iv) makes no representations or warranties on behalf of Talarian; and


(v) precludes the use of the Talarian Products in a service bureau, time sharing, or other non-licensed basis;


(vi) does not permit distribution or sublicensing of the Talarian Products beyond the scope of this Agreement; and


(vii) requires such Sublicensee to enter into an end user software license agreement with its End User that is consistent with the terms and conditions of the end user software license agreement specified in Section 3.1.


Licensee will promptly provide Talarian with a copy of each such executed agreement.


3.3 Pricing Freedom. Licensee is, and will remain, entirely free to determine its End User and Sublicensees prices and fees in its own discretion.


4. DEMONSTRATIONS, BENCHMARKS, AND EVALUATIONS. Licensee will be responsible for demonstrations and benchmarks of Talarian Products to, and evaluations by, its prospective customers. Assistance by Talarian in any demonstrations or benchmarks will be at Talarian's discretion and at Talarian's standard rates for its personnel. Licensee may, at no charge, reproduce a reasonable number of copies of Talarian Products for use by Licensee solely for the purpose of conducting demonstrations and benchmarks by Licensee personnel or prospective customers.


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5. DELIVERY. Talarian will deliver to Licensee a master copy of the Talarian Products within days of the Effective Date. ----


6. PAYMENTS.


6.1 License Payments. Licensee will pay Talarian the nonrefundable amounts according to the Fee and Payment schedule specified in Exhibit C for Licensee's use and distribution of the Talarian Products. All shipping or other transportation charges for delivery of the Talarian Products to Licensee, including insurance and special packaging, will also be paid by Licensee.


6.2 Payments for Maintenance, Support, Updates, and Enhancements Licensee will pay Talarian the nonrefundable amounts according to the Fee and Payment schedule specified in Exhibit C for maintenance and support services and updates and enhancements for the Talarian Products from Talarian under Section 8.2.


6.3 Payment Terms. Licensee will make all payments to Talarian as according to the Fee and Payment schedule specified in Exhibit C. Payments made under this Agreement after their due date will incur interest at a rate equal to 1.5% per month or the highest rate permitted by applicable law, whichever is lower.


6.4 Increases. The amounts specified in Exhibit C reflect Talarian's current published prices. As Talarian's published list prices are revised from time to time, the amounts specified in Exhibit C will be deemed amended accordingly upon days prior written notice to Licensee.


6.5 Taxes. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties. Licensee will pay all taxes and duties assessed in connection with this Agreement and its performance by any authority within or outside of the U.S., except for taxes payable on Talarian's net income. Talarian will be promptly reimbursed by Licensee for any and all taxes or duties that Talarian may be required to pay in connection with this Agreement or its performance.


7. REPORTS AND AUDITS.


7.1 Licensee's Records. Licensee will maintain complete records, during and for three (3) years after the termination or expiration of this Agreement, regarding the distribution and sublicensing of the Talarian Products to each End User and Sublicensees.


7.2 Payment Reports. Within thirty (30) days after the close of each quarter ending Ma ...