WHEREVER CONFIDENTIAL INFORMATION IS OMITTED HEREIN (SUCH OMISSIONS ARE DENOTED BY AN ASTERISK), SUCH CONFIDENTIAL INFORMATION HAS BEEN SUBMITTED SEPARATELY TO THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
LICENSED SOFTWARE TERMS AND CONDITIONS
Effective upon the last date signed below (the "Effective Date") provided that in order to become effective this Agreement must be signed by both parties on or before March 15, 2000, Ford Motor Company, a Delaware corporation with principal offices located at The American Road, Dearborn, Michigan 48121, on behalf of itself and Ford Associated Companies as defined below (hereinafter collectively referred to as "Ford") and Instinctive Technology, Inc, a Delaware corporation with principal offices located at 725 Concord Ave., Cambridge, MA 02138 (hereinafter referred to as "Licensor" or "Instinctive") agree as follows with respect to the software described below and on Attachment A hereto ("Software"). A "Ford Associated Company" (or "FAC") is a company, foreign or domestic at least 50% of whose capital, assets or voting stock is owned or controlled by Ford. As of the date of this Agreement, the FACs are listed on ATTACHMENT B. Ford may update Attachment from time to time as additional entities become 50% owned by Ford Motor Company. Notwithstanding the above, the parties agree that Mazda Motor Corporation will be deemed an FAC. An FAC that licenses the Software as authorized by this Agreement or receives services under this Agreement will be bound by the terms and conditions of this Agreement.
1 LICENSE. Licensor grants to Ford, and Ford hereby accepts, a nonexclusive license to use the Software and User Documentation in accordance with the terms and conditions set forth herein, including the license grant restrictions set forth below and in Attachment A. Ford's use of the Software will be limited to the computer system, computer site or, Local and/or Wide Area Network, and to the number of users, and use restrictions described below and on Attachment A. Ford may transfer its use of the Software to a backup or replacement computer system, site or network on a temporary or permanent basis, provided that Ford gives Licensor notice of such transfer and discontinues its use on the original computer system, site or network, and provided all use restrictions described below and in Attachment A are complied with. Ford may also transfer or assign this Agreement, all of the Software licensed hereunder and User Documentation on a permanent basis provided that (a) written notice of the transfer is given to Licensor, (b) Licensor consents to the transfer and such consent will not be unreasonably withheld, and (c) the transferee reads and agrees to accept the terms and conditions of this Agreement.
The "Software" includes "eRoom Software" and "Toolkit." eRoom Software is defined as the eRoom software product, consisting of eRoom server software (the "Server Software"), the eRoom client software (the "Client Software"), any eRoom user authorization strings provided by Instinctive from time to time (the "License Strings"), any updates and upgrades or other related software code provided under Maintenance, and eRoom User Documentation. "eRoom User Documentation" consists of the "Getting Started" and "Administrator Manual" documents provided with the Software as well as the On-line help in the Software.
The "Toolkit" is defined as: eRoom(R) Toolkit Software, any other associated machine-readable object code versions as well as other associated files (including all upgrades, patches and other files provided under Maintenance, if any); sample source code files included within Toolkit and supplied by Instinctive from time to time ("Sample Code"), and the Runtime eRoomAPI.dll file; and together with any associated media, printed materials and online or electronic documentation.
A. eROOM SERVER SOFTWARE. For each Server Software license purchased by Ford, Ford may copy, install and use one (1) copy of the Server Software on one (1) Ford server computer, provided the server computer is either at a Ford location or hosted by a third party service provider for the benefit of Ford.
B. eROOM CLIENT SOFTWARE. The Client Software may be installed on any computer.
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C. USE LIMITATIONs. The Software may not be re-sold, sub-licensed, rented, leased or transferred (except as expressly provided above). Access to the eRoom Software (as a hosted service or in any other fashion, whether for fees or no fees) will not be provided to any persons other than "Ford Users"(as defined below). The Toolkit Software will be used by Ford or FAC employees, or Ford or FAC hired consultants or other temporary non-employees, for as long as such person is providing services directly to Ford or a FAC in support of Ford's or a FAC's business purposes hired. The Software may not be used for any purposes other than those described below.
D. USER ACCESS LICENSES AND FORD USERS. One User Access License (each, a "UAL") is required for each individual person who will access the eRoom Software such that the eRoom Software may be accessed by up to that specified number of persons for whom Ford has acquired a UAL. Under this Agreement, Ford will license UALs for use only by Ford Users. One "Ford User" consists of: (i) one individual Ford or FAC employee, or (ii) one individual Ford or FAC hired consultant or other temporary non-employee, for as long as such person is providing services directly to Ford or a FAC in support of Ford's or a FAC's business purposes, or (iii) one individual person representing a Ford or FAC supplier, vendor, client or other third party that has a business relationship with Ford or a FAC in direct support of Ford's or FAC's business purposes, but only as long as such person is in such a business relationship with Ford or FAC, and provided such person uses the Software only in connection with Ford or FAC business purposes.
E. LICENSE STRING. *
. After the Initial Term, Instinctive will provide Ford with sufficient License Strings to enable use by all authorized Ford Users. License Strings cannot be used in any manner which would either permit access to the eRoom Software by more than the number of Ford Users authorized by Instinctive, or allow the Server Software to exist on more than the number of individual server computers that the Ford is authorized by Instinctive to use. Unless expressly agreed otherwise by Instinctive in writing, each License String may be installed only one time, and may not be re-used, transferred or assigned (except as set forth in the Agreement). Ford may be required to delete certain License Strings upon receipt of upgraded or replacement License Strings.
G. TOOLKIT LICENSE TERMS. Ford may install and use as many copies of the Toolkit as reflected on Attachment A to design, develop and test software applications (the "Applications"), and Ford may provide Ford Users with access to Applications, provided that all Applications run only in conjunction with eRoom Software, and provided that Ford acknowledges that such Applications are not warranted by Instinctive in any manner. Ford may copy and modify the Sample Code, and may include such modified Sample Code as part of an Application, provided such Applications will have the Instinctive copyright as appropriate. Instinctive may, from time to time, release new versions of the Toolkit and/or eRoom Software. A given version of the Toolkit will be compatible with the same version of the eRoom Software (i.e., Toolkit 4.0 is compatible with eRoom 4.0). It is a primary design goal of Instinctive to maintain Application Compatibility from release to release. ("Application Compatibility" refers to ability of existing application to continue to function with a new Software release).
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F. ADDITIONAL RESTRICTIONS.
(1) Ford may not reverse engineer, decompile, or disassemble the Software, except and only to the extent such activity is expressly permitted by applicable law notwithstanding this limitation. (2) All copyrights, patent rights and other intellectual property rights in and to the Software are owned by Instinctive or its licensors. Ford may not remove any copyright, trademark or other proprietary notices from the Software or the media. (3) Ford is responsible for compliance with all applicable export or re-export control laws and regulations if it exports the Software as allowed under this Agreement.
2. TERM. The term of this license are set forth on ATTACHMENT A.
3. PERMISSION TO COPY. The Software and related documentation may be copied by Ford in written or machine readable form in whole or in part for use in understanding the Software, for backup or archive purposes and for purposes of installation on authorized workstations, providing all use limitations in the license grant section are complied with. Ford may use the Toolkit as intended by the Toolkit user documentation to create Applications and integrate other software programs that will run with the eRoom Software.. All copies of the Software made by Ford will include any copyright and confidential property notices included by Licensor in the Software.
4. CONFIDENTIALITY. (a) Ford will use reasonable care to prevent disclosing to others trade secrets of Licensor that are identified by written notice and embodied in the Software or related documentation for a period of two years following termination or expiration of this Agreement. "Reasonable care" shall mean that care which Ford normally uses to protect its own software of a similar nature. Ford's obligations under this Paragraph will not apply to portions of the Software and related documentation which were or become part of the public domain, which are previously known to Ford, or which are independently developed by Ford.
(b) Ford will not provide the Software and related documentation to any person, other than Ford Users, without Licensor's prior written consent, except during the period any such person is performing services for Ford pursuant to a contract or purchase order with Ford.
5. INDEMNITY. Licensor warrants that the transfer to Ford and Ford's use of the eRoom Software and eRoom User Documentation (both as originally provided by Licensor) will not infringe any (a) US patent, or (b) copyrights or trade secrets of any other entity. Licensor will defend Ford from any such infringement claim, and will indemnify Ford (a) for expenses of defending against such a claim including attorneys' fees, and (b) for damages made in settlement or awarded against Ford resulting from a claim that the eRoom Software and eRoom User Documentation infringe any of the above mentioned rights, provided that Ford notifies Licensor in a timely fashion of such claim, allows Licensor to direct the defense and settlement of such claim, and provides Licensor with the authority, information and assistance that is reasonably required for the defense and settlement of such claim. In the event a claim of infringement is asserted, Licensor may replace or modify the Software to make it non-infringing, provided that Ford agrees that such replacement or modification achieves the substantive results of the original version of the Software, or Licensor may procure at its expense a license for Ford to use the rights allegedly infringed, or Licensor may terminate the license(s) at issue and: (x) give Ford a refund of the license fee paid for the Software at issue
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. Notwithstanding the above, Licensor will have no liability for use of modified Software to the extent such modification resulted in the claim. The remedies set forth in this Section 5 will be Ford's exclusive remedy for any claims of infringement arising under this Agreement.
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6. OWNERSHIP. Ford acknowledges Licensor's representation that Licensor (or Licensor's suppliers) owns the Software and the copyrights covering such Software and Ford will not make any claim contrary to Licensor's ownership of the Software.
7. WARRANTIES. The "Warranty Period" commences on the date of this Agreement and expires ninety (90) days after Software is installed and is running in the Ford Data Center, or September 30, 2000, whichever comes first. Licensor warrants to Ford Motor Company that during the Warranty Period: (i) the eRoom Software conforms substantially with all the eRoom User Documentation and that the eRoom Software is compatible with and will operate on the computer system described on Attachment A hereto, and (ii) the Toolkit conforms substantially as described in the "Toolkit Programmer's Guide" and the Toolkit "On-line Help, and (iii) that the eRoom Software will operate prior to, during, and after the calendar year 2000 A.D., without error relating to date data, specifically including but not limited to any error relating to calculations, sorting, interpretation, processing or acceptance of date data which represents or references different centuries or more than one century. Ford acknowledges and agrees that Licensor does not warrant the Software for Year 2000 Compliance in combination with other third party software, except to the extent that such combination is warranted in Licensor's written specifications. During the Warranty Period and upon Ford's request, Licensor will at no additional charge to Ford: (x) correct promptly each non-conformance of the eRoom Software or Toolkit from the above described specifications ,or (y) replace the non-conforming eRoom Software or Toolkit with conforming eRoom Software or Toolkit, or (z) to the extent the above may not be reasonably obtained, Licensor may at its option, terminate the license only for the eRoom Software at issue or the Toolkit at issue and refund the amount paid by Ford for the particular eRoom Software or Toolkit license at issue. This warranty is void if the failure is due to accident, abuse or use not in conformance with the applicable User Documentation. To the extent the Software at issue is acquired as an upgrade under Instinctive's Maintenance program, then any refund made will be based on the portion of the then current Maintenance fee allocated to such upgrade. The remedy set forth above will be Ford's exclusive remedy, and Licensor's exclusive liability, for breach of the above warranty.
(b) Licensor warrants that any services rendered by Licensor will be performed in a professional manner by qualified personnel.
(c) Licensor's warranties are limited to those set forth in this Agreement and do not include any other express or implied warranties, including implied warranty of merchantability and fitness for a particular purpose.
8. SUPPORT AND MAINTENANCE. Licensor will provide Ford with updates, enhancements, modifications or changes to the Software which are available from Licensor for customers on Maintenance while Ford is purchasing the maintenance and support services specified on Attachment A, all of which will be deemed to be "Software" licensed under the terms hereof. In addition, Licensor will provide the maintenance and support services as specified on Attachment A hereto.
9. YEAR 2000 COMPLIANCE WARRANTY. This section was moved to Section 7.
10. WAIVER OF LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT IN THE CASE OF AN INFRINGEMENT UNDER SECTION 5, IN NO EVENT WILL LICENSOR'S ENTIRE CUMMULATIVE LIABILITY TO ALL PARTIES UNDER ANY PROVISION OF THIS AGREEMENT EXCEED THREE TIMES THE AMOUNT ACTUALLY PAID BY FORD TO LICENSOR UNDER THIS AGREEMENT.
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11. DISCONTINUANCE. The Licensor is in the process of establishing a third party source code escrow arrangement with a nationally (US) recognized software escrow agent (estimated to be completed in Q1 2000) in order to lodge source code for the Software with such agent for the benefit of certain of Licensor's customers. Licensor agrees that when such an arrangement is in place, Ford will have the option of becoming a beneficiary of such arrangement. Instinctive will pay for any escrow fees related to the escrow as long as Ford continues to purchase Maintenance.
12. TERMINATION.
(a) Ford may terminate this Agreement for no cause upon written notice
furnished to Licensor no less than 30 days prior to the date of
termination specified in such notice, provided that Ford will be
required to pay to Instinctive all Maintenance fees outlined in
Attachment A which remain unpaid on the date of termination.
(b) Ford may terminate this Agreement for a material breach by Licensor of
the Maintenance and Services terms and conditions of this Agreement
upon written notice to Instinctive, which is given no less than 30
days prior to an effective date of termination, and which specifies
the nature of such breach and measurable actions required to cure such
breach. If Instinctive cures such breach prior to the effective date
of termination, this Agreement shall not terminate and will continue
in full force and effect. To the extent Instinctive does not cure a
breach, Ford will promptly inform Instinctive of such fact such that
Instinctive will have a further opportunity to cure. Upon a
termination for breac ...
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