Software Development License & Distribution Agreement

EXHIBIT 10.13


SOFTWARE DEVELOPMENT LICENSE
AND DISTRIBUTION AGREEMENT


This Software License and Distribution Agreement (the "Agreement") is entered as of June 3, 1996 (hereinafter "Effective Date') by and between First Floor Software, Inc., a California corpora tion, with its principal place of business at 444 Castro Street, Mountain View, California 94041 (hereinafter "First Floor"), and Aurum Software, Inc. a California corporation, with its principal place of business at 3385 Scott Boulevard, Santa Clara, CA 95054 (hereafter "Aurum").


WHEREAS, First Floor markets a product called Smart Bookmarks (defined below) that allows a single user to monitor, organize, and cache for off-line viewing information on the Internet. First Floor also markets a product called InfoServer (defined below) which allows one touch publishing of custom Smart Bookmark catalogs.


WHEREAS, subject to the terms and conditions contained herein, First Floor desires to grant and Aurum desires to acquire certain exclusive license and distribution rights to the Smart Bookmark and InfoServer products in order for Aurum to resell these products to its Sales Force Automation customers wishing to implement Internet/Web-based Marketing Encyclopedia Systems.


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


1. DEFINITIONS.
-----------


a. "Documentation" shall mean the manuals developed by or for First Floor that are distributed with the products and that describe the installation, operation and use of the Products.


b. "First Floor Trademarks" shall mean the First Floor trade name, logo, and other First Floor trademarks as listed in Attachment C or added by First Floor from time to time in its sole discretion.


c. "InfoServer" shall mean First Floor's custom Smart Bookmark catalog publishing server software product in object code form, including associated Documentation. First Floor reserved the right to change, modify or discontinue InfoServer at any time.


d. "Licensed Products" shall mean an exact object code copy of the Products in machine readable form together within exact copy of the end-user documentation included in the definition of such Products.


e. "Products" shall mean First Floor's Smart Bookmarks or InfoServer product.


f. "Proprietary Rights" shall mean patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights throughout the world.


g. "Smart Bookmarks" shall mean First Floor's single use Smart Bookmarks client software product developed specifically for use with Internet/Web-based Marketing Encyclopedia Systems, in object code form, including associated Documentation. First Floor reserved the right to change, modify or discontinue Smart Bookmarks at any time.


h. "Updates" shall mean current version updates, corrections, revisions, new versions, modifications, and additions to the Products that First Floor makes commercially available to all of its end users and distributors of Internet/Web-based Marketing Encyclopedia Systems.


2. License Grant.
-------------


2.1 License. Subject to all the terms of this Agreement, First Floor
------- grants to Aurum a non-transferable license:


a. to license Licensed Products only as provided herein and only directly to end-user customers. However, Aurum may use subdistributors provided that any such subdistributor may not make copies or use other subdistributors and shall be bound by an enforceable writing to all the limitations and restrictions of this Agreement.


b. to use the Products only for the purpose of testing or demonstrating to prospective end-users in accordance with documentation provided by First Floor.


c. to exchange Internal Licenses. (200) copies of Smart Bookmarks will be exchanged for (20) SalesTrack clients and (1) SalesTrack server to be installed by First Floor.


2.2 License Restrictions. During the term of Exclusivity each party
-------------------- is prohibited from announcing or deploying solutions with competitors such that:


(i) Aurum is prohibited from distributing Web-based client-side technology that (A) manages URLs or any file type or (B) monitors files for changed and updated information or (C) caches files on a local hard drive for off-line viewing.


(ii) First Floor is prohibited from distributing the Products to any competitors ("Competitors") set forth in Attachment A.


2.3 Proprietary Rights. Notwithstanding anything else, First Floor
------------------ and its licensors retain (i) all title to, and, except as expressly licensed herein, all rights to the Products, all copies and derivative works thereof (by whomever produced) and all related documentation and materials, (ii) all of their service marks, trademarks, trade names or any other designations (and notwithstanding anything else herein, Aurum may not use nay trade name or trademark of First Floor described in Attachment C, and (iii) all copyrights, patent rights, trade secret rights and other proprietary rights in the Products. Aurum will have no right to receive any source code with respect to any Products, except as follows:


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a. First Floor agrees to keep, and maintain current, a copy of the source code and relevant materials (hereinafter referred to as "Escrow Materials") for the Products in escrow with a mutually agreeable escrow agent (the "Escrow Agent"). A copy of the Escrow Materials for each correction, improvement, enhancement, update and new release of the Products will also be delivered to the Escrow Agent to be held in escrow; provided, however, that First Floor need not update the Escrow Materials more frequently than either twice per year or upon each new major release of the Program. First Floor to the Escrow Agent. First Floor shall further instruct the Escrow Agent to confirm the type of Escrow Materials then held, should Aurum so request in writing; provided, however, the Aurum may make such request no more than once in any six (6) month period.


Aurum, First Floor and Escrow Agent shall enter into an agreement setting out the terms of this Section 2.3, and further providing that immediately upon notification by Aurum of the occurrence of an event described in Paragraph (b) below and requesting delivery of the Escrow Materials, the Escrow agent shall immediately give notice thereof to First Floor. If First Floor does not challenge the request within fifteen (15) days of receipt of such notice, the Escrow Agent may proceed; otherwise, the matter shall be referred to a court of competent jurisdiction.


b. First Floor's agreement with the Escrow Agent shall provide that a copy of the Escrow Materials for the Products will be delivered to Aurum by the Escrow Agent in the event the (i) First Floor (or its successors or assigns) ceases doing business as a going concern, or (ii) an involuntary bankruptcy petition is not discharged within 120 days after the First Floor receives notice of the filing of the petition and First Floor discontinues supporting the software for any reason or (iii) First Floor discontinues or is in material breach of its support obligations for the Software and does not provide appropriate support ninety (90) days after receiving a request from Aurum to do so.


c. Upon delivery of the Escrow Materials to Aurum, Aurum shall have nontransferable, nonexclusive license to use the Escrow Materials to support and maintain the Products for existing Sublicensees for no other purpose. First Floor shall retain all ownership right, title and interest in and to the Escrow Materials, including all patents, copyrights, trademarks, trade secrets and other intellectual property rights inherent therein. Aurum shall maintain the Escrow Materials in the strictest confidence and disclose them to employees only as necessary to exercise its rights granted herein. The object code derived from the source code is subject to the same restric tions as apply to the Products distributed under this Agreement.


2.4 End User Restrictions. Without the express consent of First
--------------------- Floor, Aurum shall not (i) delete or fail to reproduce any copyright or other proprietary notices appearing in the Products, (ii) disassemble, decompile or otherwise reverse engineer the Products or otherwise attempt to learn the source code, structure , algorithms underlying the Products, (iii) rent or otherwise provide temporary access to the Products (except for purposes of product demonstrations or similar promotional activities). If Aurum provides long-term leasing of the Products the terms and condi tions for re-selling the Products in the Agreement shall apply. All Aurum distribution licenses or end-user licenses pertaining to the Products shall prohibit others from doing any of the foregoing, in


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similar, but no less restrictive terms. Aurum will make no warranty, guarantee or representation, whether written or oral, on First Floor's behalf.


2.5 End User Licenses. Aurum and its subdistributors shall
----------------- distribute the Products only pursuant to an end user license agreement in form and content substantially similar to the form attached to this Agreement as Attachment B. Any material changes to the form shall be subject to First Floor's prior approval, which shall not be unreasonably withheld or delayed. Furthermore, if a Licensed Product is to be provided to a government agency or to anyone that may acquire it pursuant to a government contract or with government funds, Aurum will ensure, in the case of the U.S. government, that the attached End-User Software License Agreement (as modified by the Govern ment License Attachment thereto) is incorporated into any relevant proposals and contracts and that the provisions of the Government License Attachment are effectively implemented. In the case of any other government, Aurum will ensure that the Licensed Products and First Floor's rights are protected to the maximum extent possible.


3. MARKETING.
---------


3.1 Joint Marketing.
---------------


a. To promote effective marketing of the Products, the parties will undertake certain joint marketing activities. All joint marketing activities shall be subject to the mutual agreement of the parties, but should include: joint advertising, joint mailings, marketing, press tours, and development of collateral materials to promote to Product. Furthermore, both Aurum and First Floor agree to:


(i) Press/Media Activities. A press tour and media blitz for
---------------------- Aurum's Internet/Web-based Marketing Encyclopedia System strategy will feature First Floor as the key agent and off-line viewing technology component.


(ii) Industry Shows and Seminars. For the term of Exclusivity,
--------------------------- First Floor will be highlighted by Aurum in a similar fashion to that of the upcoming DCI show on June 13, 1996 where First Floor will be prominently mentioned in Mary Coleman's keynote presentation entitled "Internet Enabled Sales & Marketing" and where Aurum will have a 40 ft. by 30 ft. booth with a stage presentation, including special focus on the Internet and a demo substation labeled the "Intra Intelligence" center which will feature First Floor's Smart Bookmarks product.


(iii) Sales Presence. Aurum will train the entire direct sales
-------------- force on the new Internet/Web-based Marketing Encyclopedia System with Smart Bookmarks.


(iv) Partner/System Integrator Visibility. Aurum will
------------------------------------ introduce Smart Bookmarks as an integral a part of an Internet/Web-based Marketing Encyclopedia System Solution to the SFA system integrators, including CTP, KPMG, E&Y, and Delotte & Touche.


(v) Joint Lead Sharing.
------------------


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(vi) Mutual links on Web Sites.
--------------------------


(vii) Aurum will make reasonable efforts to use "Bulletins" and
--------------------------------------------------------- "Monitor Me'" Buttons on Aurum's web site. - -----------------------------------------


The level of participation marketing efforts accorded to First Floor in this Section 3.1(a) shall be a least equivalent to the level of participation afforded to Aurum's similar licensors who are afforded any of the foregoing privileges.


b. In addition, Aurum agrees that it shall issue with First Floor a joint press release in a form agreed upon by the parties immediately upon execution of this Agreement. Aurum agrees that it shall prominently refer to and credit First Floor in each subsequent release of the Products developed by First Floor.


3.2 Branding of the Product.
-----------------------


a. First Floor hereby grants Aurum a license to use the First Floor trademarks, service marks and trade names (including, but not limited to the name and logo of First Floor) identified on Attachment C hereto (the "Trademarks") solely for the purpose of promoting the sales of the Products; First Floor may add to, delete from or modify the Trademarks from time to time. Aurum agrees that all advertising and promotional material prominently contain First Floor's name and logo, and shall otherwise comply with First Floor's marketing guidelines in effect from time to time. Aurum shall not at any time do or permit any act to be done which may in any way impair the rights of First Floor In the trademarks and trade names involved herein. Aurum will discontinue all use of the Trademarks immediately upon the termination or expiration of this Agreement, or upon First Floor's specific direction.


b. First Floor may from t ...