Form Of Isv Software Distribution Agreement

ISV SOFTWARE DISTRIBUTION AGREEMENT


This ISV Software Distribution Agreement ("Agreement") is made and entered into the ____ day of the ___________ month of the year ______ ("Effective Date") between SilverStream Software, Inc. ("SilverStream") with offices at 2 Federal Street, Billerica, MA, 01821, USA, and _______________________________ ("ISV") with offices at


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This Agreement provides for ISV to develop, reproduce and distribute an Application incorporating specified Embedded Runtime Software identified on a schedule ("Schedule") attached to this Agreement as Schedule 1 or subsequently executed by both parties referencing this Agreement. The parties may, but shall be under no obligation to, execute multiple Schedules for distribution of more than one Application or Embedded Runtime Software.


The parties agree as follows:


1. DEFINITIONS


1.1 "APPLICATION" means each value-added application software program and/or computer hardware product specified in a Schedule 1 that (i) is developed by ISV for commercial distribution; (ii) contains significant added functionality than the Embedded Runtime Software; and (iii) incorporates the Embedded Runtime Software.


1.2 "DEMONSTRATION COPY" means a copy of the Embedded Runtime Software incorporated into an Application and used by ISV or a Distributor pursuant to Section 2.2 solely for purposes of providing supervised demonstrations of the Application to prospective customers.


1.3 "DEVELOPMENT SOFTWARE" means the Software used internally by ISV on the Machine(s) and at the site(s) specified by ISV to develop, test and provide technical support for the Application, and from which copies of Embedded Runtime Software are made.


1.4 "DISTRIBUTOR" means a third party duly authorized by ISV to distribute an Application pursuant to written agreement that complies with the requirements of this Agreement. 1.5 "DOCUMENTATION" means SilverStream technical manuals relating to the end use of the Software. 1.6 "EMBEDDED RUNTIME SOFTWARE" means a restricted version of the Software such that it is incorporated into the Application identified in a Schedule and that it may only be distributed and licensed to an End User for the purposes of an End User running the Application. The Embedded Runtime Software shall not include beta, pre-release or other restricted release products.


1.7 "END USER" means a third party licensed to use an Application for its own use and not for redistribution. 1.8 "EVALUATION COPY" means a copy of the Embedded Runtime Software incorporated into an Application and distributed by ISV pursuant to Section 2.3 solely for evaluation purposes for a limited period of time. 1.9 "MACHINE" means a specified hardware platform running a single copy of the operating system software in a supported Operating Environment.


1.10 "MASTER DISK" means the disk(s) delivered by SilverStream to ISV containing Development Software from which ISV can make Demonstration Copies, Evaluation Copies and Embedded Runtime Software copies. 1.11 "OPERATING ENVIRONMENT" means the hardware platform and operating system combinations that correspond to specific versions of the Software generally available from SilverStream.


1.12 "PROCESSOR" means each central processing unit (CPU) designated for use on a specific Machine.


1.13 "SOFTWARE" means all or any portion of the object code software products commercially available as of the Effective Date on the supported Operating Environments and specified in the Schedule(s) together with all related Documentation and Updates thereof supplied by SilverStream. All references in this Agreement to "Software" shall include Development Software, Demonstration Copies, Evaluation Copies and Embedded Runtime Software (unless the context otherwise indicates) and, if more than one Schedule is executed by the parties, shall refer collectively to the SilverStream software products listed in all Schedules.


1.14 "SUBLICENSE AGREEMENT" means an end user license agreement between ISV and its End Users that complies with Section 6.2 of this Agreement. 1.15 "TERM" means the period set forth in Section 3.1 of this Agreement.


1.16 "TERRITORY" means that territory set forth in the Schedule, subject to the exclusions and limitations set forth in this Agreement. 1.17 "UPDATES" means Maintenance Releases and New Versions of the Software made generally available by SilverStream to customers who have paid for such Updates, but does not include new products available for an additional fee. "MAINTENANCE RELEASES" means patches, work-arounds and error corrections to the Software and "NEW VERSIONS" means a new major release of the Software containing new features and functions as well as error corrections. 1.18 "UPGRADE" means any change in the usage of the Software (for example, any increase in the number of Processors originally licensed that would result in additional fees hereunder).


2. GRANT OF LICENSES


2.1 MASTER DISKS. During the Term and subject to the terms, conditions and fees set forth in this Agreement, SilverStream grants ISV the following non-exclusive, non-transferable (except as specifically set forth herein) licenses in the Territory:


(a) make copies of the Development Software, and Demonstration Copies and Evaluation Copies, from the Master Disk solely in connection with ISV's development, marketing and support of the Application in accordance with the terms of this Agreement;


(b) use Development Software on the Machine(s) solely in connection with ISV's development, marketing and support of the Application in accordance with the terms of this Agreement;


(c) to use Development Software on back-up equipment at the same site as the originally designated Machine(s) in the event, and for as long as, such Machine(s) are inoperative and to make a reasonable number of copies of the Development Software solely for inactive back-up and archival purposes; and


(d) to incorporate portions of Documentation in ISV's Application documentation provided ISV properly incorporates and conspicuously references SilverStream's copyrights, logos, trademarks, service marks and trade names. 2.2 DEMONSTRATION COPIES. SilverStream grants ISV the right to copy from the Development Software a reasonable number of Demonstration Copies; and to use, or permit use of, such Demonstration Copies at ISV and Distributor facilities in the Territory solely for purposes of providing supervised demonstrations of the Application to potential End Users. Demonstration Copies may not be transferred, distributed or sublicensed to third parties (other than authorized Distributors) or used for development or production purposes.


2.3 EVALUATION COPIES. SilverStream grants ISV the right to copy from the Development Software and distribute a reasonable number of Evaluation Copies to prospective customers in the Territory pursuant to a Sublicense Agreement solely for purposes of allowing potential customers to evaluate the Application to assess whether or not to acquire a license of such Application. Evaluation Copies may not be provided to any prospective customer for periods longer than ninety (90) days without SilverStream's prior approval. ISV may not use or permit the use of Evaluation Copies for any development or production purposes.


2.4 DISTRIBUTION OF EMBEDDED RUNTIME SOFTWARE. During the Term and subject to the fees, terms and conditions of this Agreement, SilverStream grants ISV the following non-exclusive, non-transferable (except as specifically set forth herein) licenses in the Territory:


(a) to copy and reproduce the Embedded Runtime Software (including portions of the related Documentation) from the Development Software for incorporation within the Application (all such copies shall contain SilverStream proprietary notices and remain subject to this Agreement);


(b) to market and distribute to End Users, directly and indirectly through Distributors, Embedded Runtime Software incorporated into an Application. ISV may only distribute the Embedded Runtime Software pursuant to a Sublicense Agreement for use in conjunction with the specified Application. ISV may not distribute Embedded Runtime Software on a stand-alone basis or with other software other than the Application without SilverStream's prior written approval;


(c) to distribute and authorize, directly and indirectly through Distributors, Upgrades of existing Application and Embedded Runtime Software licenses subject to Section 5.3; and


(d) to manufacture updates to the Application as provided in Section 4.3 below.


2.5 DISTRIBUTION LIMITATIONS.


(a) ISV may distribute its Applications including the Embedded Runtime Software through Distributors provided ISV and such Distributor sign a written distribution agreement that is consistent in substance in all respects with this Agreement. Only Embedded Runtime Software may be provided by ISV to its Distributors and no Development Software may be provided by ISV to any Distributor. Distributors wishing to customize the Application or otherwise requiring Development Software or other Software licenses must acquire such licenses from SilverStream or a SilverStream subsidiary or authorized distributor. ISV shall use all reasonable efforts to enforce its agreements with Distributors and shall inform SilverStream of any known breach thereof.


(b) Neither ISV nor its Distributors or End Users shall be permitted to: (i) copy any Software (except as authorized herein); (ii) translate, modify, adapt, enhance, decompile, disassemble or reverse engineer the Software; (iii) rent or lease the Software; (iv) grant a license at any time that allows more than one End User to use an Application license on a shared basis; or (v) exceed the number of Processors for which the Software is properly licensed nor tamper with the license string provided by SilverStream that controls the number of Processors licensed as purchased by ISV hereunder for ISV's sublicensing as stipulated hereunder. The Software may be used in a multiple-user arrangement or remote access arrangement subject to the limitations set forth in this Agreement.


(c) The following clarifications and limitations apply:
(i) ISV shall not transfer, directly or indirectly, any Software or technical data received from SilverStream or its subsidiaries, or the direct product of such data, to any destination subject to export restrictions under U.S. law, unless prior written authorization is obtained from the appropriate U.S. agency.


(ii) If any Software or Documentation is acquired by or on behalf of the U. S. Government, the U. S. Government agrees that such Software or Documentation is "commercial computer software" or "commercial computer software documentation" and, absent a written agreement to the contrary, the U. S. Government's rights with respect to such Software or Documentation are limited by the terms of this Agreement pursuant to FARss. 12.212(a) and/or DFARSss. 227.7202-1(a), as applicable.


(iii) The Software is owned by SilverStream or its suppliers and is protected by copyright laws of the United States and other applicable copyright law and international treaty provisions.


(iv) Any license granted under this Agreement is for use of the English version of the Software only.


2.6 OTHER LIMITATIONS.


(a) Without SilverStream's prior written consent, ISV may not (i) transfer, assign, sublicense or distribute Development Software to third parties; or (ii) use Development Software for ISV's own internal general production use.


(b) ISV must maintain adequate security over the Master Disk and authorized license codes and shall allow only a limited number of employees to make copies from Master Disk. ISV shall fully account for all copies of the Software. ISV shall not modify or alter any proprietary rights notices contained within the Software. ISV is strictly prohibited from providing access or transferring the Masters Disk or license codes to any third party


3. GENERAL TERMS AND CONDITIONS


3.1 TERM. The Initial Term of this Agreement shall commence on the Effective Date and shall continue for a period of three (3) years thereafter, unless sooner terminated as otherwise provided in this Agreement. After the Initial Term, this Agreement shall automatically renew for 1-year periods subject to at least ninety (90) days advance written notice of termination by either party prior to expiration of the 1-year term then in effect. Notwithstanding the foregoing language of this Section 3.1, ISV may terminate this Agreement without cause as of the end of the first year of this Agreement or at any time thereafter during the Initial Term by providing SilverStream not less than thirty (30) days advance written notice; provided, however, that ISV pays all fees required hereunder and understands that no such termination shall give it a right of refund of any fee owed or paid hereunder. "Term" means the Initial Term and any renewal periods. Upon ISV's execution of any Schedule against this Agreement, it is expected by the parties hereto that ISV shall first deploy its Application set forth in such Schedule within one (1) year of such execution. If ISV does not expect to so deploy within such timeframe, ISV shall advise SilverStream before executing any such applicable Schedule and both parties shall place a statement into such Schedule so indicating within what timeframe ISV expects to first deploy said Application.


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