CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAD BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS
AMENDED.
EXHIBIT 10.09
Date: 10/06/99 AUTHORIA, INC.
Agreement No: 06099901 Software License Agreement (Outsourcer)
THIS AGREEMENT is by and between AUTHORIA, INC., a Delaware corporation with
offices at 00 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000 ("Authoria") and the following
Licensee:
Licensee Name: TriNet VCO
Address: 000 Xxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000
Principal Contact: Xxxxxx Xxxxxxx
This Agreement consists of the following terms and conditions and one or more
Software and/or Services Schedule(s) (collectively referred to as the
"Schedule(s)") to this Agreement which are adopted from time to time with
reference to this Agreement.
Each Software Schedule identifies the software products and related
documentation licensed from Authoria under this Agreement (the "Software"), and
sets forth the Scope of Use, Term of License, Designated Location(s), License
Fees, Payment Terms, and Specifications for such Software. Each Services
Schedule identifies the consulting services to be provided by Authoria under
this Agreement (the "Services"), and sets forth the Services Fees and Payment
Terms for such Services. Each Schedule will refer to this Agreement by Contract
Number and will become effective as an integral part of this Agreement upon its
execution by both Licensee and Authoria.
1. Software License Grant. Subject to the terms of this Agreement, Authoria
----------------------
grants to Licensee a nonexclusive license ("License") to use the Software
identified in any Software Schedule attached to this Agreement at the
Designated Location(s) during the Term. Licensee may transfer the Software to
other locations owned or controlled by Licensee by providing prompt written
notice to Authoria specifying the change in the Designated Location(s). The
License shall extend to affiliates of Licensee to the extent provided in the
Software Schedule, so long (and only so long) as Licensee owns or controls,
directly or indirectly, stock or other interest in the affiliate representing
more than fifty percent (50%) of the aggregate stock or other interest
entitled to vote on decisions reserved to a vote by owners of such stock or
other interest. Licensee's use of the Software shall be limited to Licensee's
internal business purposes only, and, unless otherwise provided in the
Software Schedule, Licensee may not use the Software to process accounts or
records or to generate output data for the direct benefit of, or for purposes
of rendering services to, any other business entities or organizations. In no
event may Licensee allow timesharing, rental or use of the Software in
service bureau.
2. Certain Restrictions. Licensee understands that the Software is a proprietary
--------------------
product of Authoria that contains trade secrets and is protected by copyright
law. Authoria shall have sole and exclusive ownership of all right, title,
and interest in and to the Software and documentation, all copies thereof,
and all modifications and enhancements thereto (including ownership of all
copyrights and other intellectual property rights pertaining thereto),
subject only to the right and license expressly granted to Licensee herein.
This Agreement does not provide Licensee with title or ownership of the
Software, but only a right of limited use. Licensee may not use, copy,
modify, or distribute the Software (electronically or otherwise), or any
copy, adaptation, transcription, or merged portion thereof, except as
expressly authorized by Authoria, an applicable Software Schedule, or a
separate written agreement signed by Authoria. Licensee shall ensure that the
Software is not modified, translated, examined, tested, subjected to
simulated input, reverse engineered or decompiled or disassembled by
attempted recreation of source code in any manner, for any reason including
but not limited determining the mechanism, algorithms, processes or
characteristics of the Software, provided Licensee may examine or test the
Software only for authorized maintenance and error correction. Licensee shall
further ensure that no person with access to the Software otherwise attempts
to obtain or derive the object or source code of the Software or create any
derivative works based on the Software or any software product or other work
based on the mechanism, algorithms, processes or characteristics of the
Software. Licensee agrees to keep the source code, object code, generic code
and content of the Software confidential and not to disclose such codes to
any other person or entity or to allow any other person or entity to copy or
view such codes. Licensee agrees that it will not cause or permit the use of
the Software and related documentation, or the ideas or concepts contained
therein, as the basis of the development of any computer software products.
For purposes of this Agreement, it will be presumed that any works developed
or created by Licensee which involve the development of computer software
performing substantially similar functions to the licensed Software, and are
reduced to practice within three (3) years following the date of termination
or expiration of the License granted hereunder, are the result of the breach
of this Section and/or Section 3, Confidentiality, unless Licensee is able to
establish otherwise by clear and convincing evidence. Notwithstanding
anything to the contrary contained herein, this presumption will not apply in
the event that Licensee independently develops products performing similar
functions to the Software, so long as Licensee can show by clear and
convincing documentary evidence, that (i) such products are developed for the
benefit of individual clients of Licensee as part of an overall business
solution, and are not generally marketed for commercial resale, (ii) neither
the Software, nor the ideas or concepts contained therein, are used as the
basis for development of such products, and (iii) no employee(s) of Licensee
having access to the Software are involved, directly, or indirectly, in the
development or design of such products. Licensee authorizes Authoria upon
three (3) days' prior written notice to enter Licensee's premises in order to
inspect the Software during regular business hours to verify compliance with
the terms of this Agreement, provided that Licensee agrees not to conceal or
destroy any software, materials or information after receiving such notice,
through the completion of such inspection.
3. Confidentiality. Any proprietary information, including the Software,
---------------
which is identified as confidential and which is provided by one party to the
other shall be considered "Confidential Information" under this Agreement.
Each party shall take such measures to protect Confidential Information of
the other party as it takes to protect its own similar proprietary and
confidential information. This restriction shall not apply to any
Confidential Information which is already known by the receiving party, is or
becomes publicly available through no fault of the receiving party, or is
required to be disclosed by government or judicial order. The terms of this
Agreement shall be considered Confidential Information, and shall not be
disclosed by either party without the prior written consent of the other. All
Confidential Information provided to a party under this Agreement shall be
returned to the disclosing party or destroyed promptly upon termination of
this Agreement.
4. Authoria Services. Subject to the terms of this Agreement, Authoria will
-----------------
provide Licensee with such Services as are described in any Services Schedule
attached to this Agreement. Authoria may also make maintenance services
available to Licensee under a separate maintenance agreement. In the event
that Licensee requests consulting services that are beyond the scope of this
Agreement and the maintenance agreement, Authoria may provide such services
at is standard rates then in effect or recommend appropriate outside
consultants. Any and all enhancements, modifications and corrections to the
Software provided as part of any Authoria service will be considered part of
the "Software" for purposes of this Agreement.
5. Licensee Responsibilities. Licensee is responsible for the following
-------------------------
actions:
(a) Determining whether the Software will achieve the results Licensee
desires;
(b) Procuring, installing, and operating computers and operating systems to
run the Software in accordance with the Specifications;
(c) Providing a proper environment and proper utilities for the computers on
which the Software operate, including an uninterrupted power supply;
(d) Selecting and training personnel that can operate computers and are
familiar with the accounts and records that serve as input and output
for the Software; and
(e) Establishing adequate operational back-up provisions to protect against
data loss and/or a defect or malfunction that renders the Software or
the computer systems on which they run nonoperational.
Authoria reserves the right to charge additional service fees if an operator
seeks assistance with respect to such basic information or any other matters not
directly relating to the operation of the Software. Authoria does not hold
itself out as a professional expert and adviser regarding Licensee's computer or
information needs. Authoria is not responsible for obsolescence of the Software
that may result from changes in Licensee's requirements.
6. Publicity. Licensee agrees to make reasonable efforts to serve as a
---------
reference account upon prior request by Licensor, to participate in case
studies and other promotional activity, and to allow its name to be used in
press releases, sales materials and user literature.
7. Data. Licensee acknowledges that data conversion is subject to the
----
likelihood of human and machine errors, omissions, delays, and losses,
including inadvertent loss of data or damage to media, that may give rise to
loss or damage. Authoria shall not be liable for any such errors, omissions,
delays, or losses, unless caused by its willful misconduct. Licensee is
responsible for adopting reasonable measures to ensure the accuracy and
integrity of the data and knowledge content, including backing up data, and
adopting procedures to ensure the accuracy of input data; examining and
confirming results prior to use; and adopting procedures to identify and
correct errors and omissions, replace lost or damaged media, and reconstruct
data. Licensee is also responsible for complying with all local, state, and
federal laws pertaining to its benefit programs and the use and disclosure of
any data.
8. Fees/Payment. Licensee agrees to pay the fees specified in the attached
------------
Schedule(s) in accordance with the terms specified therein, plus any
reasonable travel and living expenses incurred in connection with the
provision of Software or Services under this Agreement. The fees specified in
the Schedule(s) are exclusive of, and Licensee agrees to pay any sales, use
or other tax related to this transaction, however designated (except taxes
based on net income). Unless otherwise specified in a Schedule, invoices are
payable upon receipt. Authoria reserves the right to charge a late fee of up
to 1.5% per month (or, if less, the maximum rate allowable by law) on any
balance remaining unpaid for more than thirty (30) days.
9. Limited Warranty.
----------------
(a) Authoria warrants that the Software shall not develop any faults due to
the manipulation of data by the Software with dates prior to, through
and including January 1, 2000. Notwithstanding the foregoing, Authoria
makes no warranty whatsoever with respect to the Software's use or
display of date related data, which may be read from third party
systems.
(b) Authoria warrants that, prior to delivery of any media containing
Software, it will take reasonable steps to test such media to ensure
that the Software is free of programming devices (e.g., viruses, key
locks, backdoors, etc.) that are designed to disrupt the use of the
Software or any system with which the Software operates, or destroy or
damage data or make data inaccessible or delayed, except for file and
purge routines necessary to the routine functioning of the Software.
(c) Authoria warrants that for a period of ninety (90) days following
delivery, the Software will function substantially in accordance with
the Specifications. Authoria does not warrant that the Software will be
error free in all circumstances. As Licensee's exclusive remedy for any
breach of this warranty, Authoria will, at its expense, replace or
repair any Software that fails to meet this limited warranty. In the
event that Authoria is unable to repair or replace the Software during
the warranty period, Licensee may terminate its License and return the
defective Software, and Authoria will provide Licensee with a refund of
the License Fees paid for the Software in question. However, Authoria is
not responsible for any defect or error not reported during the warranty
period or any defect or error in Software that Licensee has modified,
misused, or damaged.
2
Authoria Confidential
Authoria/TriNet License Agreement 100599
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AUTHORIA MAKES NO
WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF
THIS AGREEMENT OR ANY OTHER COMMUNICATION. AUTHORIA SPECIFICALLY
DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
10. Limitation of Liability. THE CUMULATIVE LIABILITY OF AUTHORIA TO LICENSEE
-----------------------
FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN
CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL
LICENSE FEES PAID TO AUTHORIA FOR THE RELEVANT SOFTWARE WITHIN THE PRIOR
YEAR. THIS LIMITATION SHALL NOT APPLY TO THE INDEMNIFICATION PROVIDED IN
PARAGRAPH 11. IN NO EVENT WILL AUTHORIA OR ITS SUPPLIERS BE LIABLE TO
LICENSEE FOR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT,
EVEN IF AUTHORIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR
ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATION OF LIABILITY AND
EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR
EFFECTIVENESS OF OTHER REMEDIES.
11. Indemnification. If a third party claims that the Software infringes any
----------------
U.S. patent, copyright, or trade secret, Authoria will (as long as Licensee
is not in default under this Agreement or any other agreement with Authoria)
defend Licensee against such claim at Authoria's expense and pay all damages
that a court finally awards, provided that Licensee promptly notifies
Authoria in writing of the claim, allows Authoria to control, and cooperates
with Authoria in, the defense or settlement of such action. If such a claim
is made or appears possible, Authoria may, at its option, secure for
Licensee the right to continue to use the Software, modify or replace the
Software so they are noninfringing, or, if neither of the foregoing options
is available in Authoria's judgment, require Licensee to return the Software
for a credit equal to the portion of previously paid License fees allocable
to the remaining term of the License. (If the License is perpetual, the
License Fee will be amortized over a five-year useful life.) However,
Authoria has no obligation for any claim based on a modified version of the
Software or their combination, operation, or use with any product, data, or
apparatus not provided by Authoria. THIS PARAGRAPH STATES AUTHORIA'S ENTIRE
OBLIGATION TO LICENSEE WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
12. Default/Termination. Should Licensee fail to pay any fees or charges due
-------------------
hereunder or fail to carry out any other obligation under this Agreement or
any other agreement with Authoria, Authoria may, at its option, in addition
to other available remedies, terminate the Software License granted under
this Agreement and/or disable the Software, provided that it first gives
Licensee fifteen (15) days' prior notice in order to permit Licensee to cure
its default. Upon expiration or termination of any License, Licensee will
promptly return or certify the destruction of all copies of the Software and
all other materials pertaining to the Software, which are in Licensee's
possession.
13. U.S. Government Restricted Rights. If the Software is acquired under the
---------------------------------
terms of a proposal or agreement with the United States Government or any
contractor therefor, the Software is subject to the following: the Software
is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the
U.S. Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause at
DFARS 252.227-7013, FAR 52.227-17 Alternate III (g)(3), or subparagraphs
(c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48
CFR 52.227-19, as applicable, and their successor provisions.
Contractor/Manufacturer is Authoria, Inc. 00 Xxxxxx Xxxxxx, Xxxxxxx, XX
00000.
14. General.
-------
(a) This Agreement, including any Schedule(s) attached hereto which have
been signed by both parties, is the complete and exclusive statement of
the agreement between the parties and supersedes all proposals or prior
agreements, oral or written, and all other communications between the
parties relating to the subject matter hereof. Any waiver or
modification of the provisions of this Agreement will be effective only
if in writing and signed by the party against whom it is to be
enforced. In the event of a conflict with the provisions of any other
document, the provisions of this Agreement will control.
(b) Persons and entities who have licensed software to Authoria for
inclusion in the Software are third party beneficiaries to this
Agreement as it applies to their respective software products included
in the Software.
(c) Except for actions for nonpayment or breach of Authoria's proprietary
rights in the Software, a delay or failure by either party to exercise
any right or bring any action, within one (1) year of the event giving
rise to such right or such cause of action, shall waive any and all
rights relating to that action.
(d) All notices or other communications required to be given hereunder
shall be in writing and delivered either personally or by U.S. mail,
certified, return receipt requested, postage prepaid, and addressed as
provided in this Agreement or as otherwise requested by the receiving
party. Notices delivered personally shall be effective upon delivery
and notices delivered by mail shall be effective upon their receipt by
the party to whom they are addressed.
(e) This Agreement and the associated License may not be assigned by
Licensee without Authoria's written consent, which shall not be
unreasonably withheld. Licensee agrees that it shall not be considered
unreasonable for Authoria to withhold Authoria's consent to an
assignment to a party that is, or is likely to become, in Authoria's
reasonable opinion, a competitor of Authoria.
(f) Licensee will be responsible for compliance with all legal requirements
related to its use of the Software, including those related to the
disclosure of data, and to any exports of Software made by Licensee.
(g) This Agreement shall be considered an agreement made in Massachusetts
and shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts.
3
Executed by the parties hereto as an instrument under seal effective as of the
date first written above.
AUTHORIA, INC. TRINET VCO
/s/ XXX XXXXXXXXXXX 10/29/99 /s/ XXXXXXX X. XXXXXX 10/21/99
----------------------------- --------------------------------
Signature Date Signature Date
Xxx Xxxxxxxxxxx President & CEO Xxxxxxx X. Xxxxxx CFO
------------------------------------ ---------------------------------
Name Title Name Title
4
Authoria Confidential
Authoria/TriNet License Agreement 100599
Software Schedule (Outsourcer)
to
Authoria Software License Agreement #: 06099901
Licensee Name: Tri-Net VCO
Designated Location: 000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Licensed Software: Authoria HR Software including:
Health and Welfare, HRIS Bridge
Term of License: Five years, beginning on October 22, 1999 (the "Effective
Date"). Following expiration of the five year Term, the
License will automatically renew from year to year unless
either party provides the other with written notice of
its intention not to renew at least ninety (90) days
prior to the expiration of the initial term or any
renewal thereof.
Scope of Use: Unlimited workstations for use for the benefit of [ * ]
covered individuals.** The Authoria Software may be used
by the Licensee for generating output data for the direct
benefit of, or for purposes of rendering services to, any
other business entities or organizations (a "Third Party
Licensee Organization"), subject to the payment of the
License Fee below with respect to all covered lives of
individuals in each such Third Party Licensee
Organization, and subject to the other terms and
conditions of the Agreement. Notwithstanding the
foregoing, Licensee may not install the Software on any
workstation, server or other computer other than a
computer at the Designated Location operated by an
employee or contractor directly responsible to Licensee
and not to any Third Party Licensee Organization.
License Fees: The License Fee for the Licensed Software shall be
[ * ]. Such License Fee shall be payable as described
below, in "Payment Terms". Additional License Fees, based
on the addition of covered individuals as described
below, shall be payable as described below. *
*The Software License Fee is based on the number of
covered individuals. If the number of covered individuals
increases beyond the [ * ] provided in this Software
Schedule above, Licensee will be responsible for payment
of an additional license fee, in accordance with the
following schedule: (The fees in the schedule are valid
for 60 months from execution of the Agreement) Licensee
will pay Authoria such fee within thirty (30) days
following the increase in covered lives.
Lives Additional License Fee
----- ----------------------
20,001 - 49,999 [ * ]
50,000 - 74,999 [ * ]
75,000 - 99,999 [ * ]
100,000 - 124,999 [ * ]
125,000 > [ * ] per life per year in [ * ] life increments
Optional Products: Licensee has the option to purchase additional modules at
[ * ] off of the list price stated below if purchased by
12/31/99 and at [ * ] off of the list price if purchased
by 3/31/00.
Module List Price
---------------------------------------------------------------------------------------
Defined Contributions [ * ]
Compensation [ * ]
Employment [ * ]
Time Off [ * ]
Employee Relations [ * ]
Employee Services [ * ]
Payroll [ * ]
Transaction Bridge [ * ]
[ * ] Confidential Treatment Requested
Authoria Confidential
Authoria/TriNet License Agreement 100599
Payment Terms: An initial deposit of 75% of the initial License Fee is
payable upon execution of this Schedule. The remaining 25%
balance will be payable net 30 days from shipment of the
Software.
Approved: Accepted:
Authoria, Inc. TriNet VCO
Authoria Licensee
By: /s/ XXX XXXXXXXXXXX 10/29/99 By: /s/ XXXXXXX X. XXXXXX 10/21/99
-------------------------------- -------------------------------
Authorized Representative Date Authorized Representative Date
Authoria Confidential
Authoria/TriNet License Agreement 100599
