International Software License Agreement
This International Software License Agreement (the "Agreement") is made by
and between MicroStrategy International II Limited, a Bermuda corporation ("MSTR
International II") and Xxxxxxxx.xxx International Limited, a Bermuda corporation
("SDC International"). The effective date of this Agreement shall be the date
last signed below (the "Effective Date").
WITNESSETH
WHEREAS, MicroStrategy Incorporated and certain of its subsidiaries desire
to realign their worldwide corporate structure in accordance with their separate
lines of business, the "Xxxxxxxx.xxx Business" and the "MicroStrategy Business";
and
WHEREAS, the entities now enter into various agreements and make certain
mutual promises as described in the "Agreement and Plan of Reorganization" by
and among MicroStrategy Incorporated, MicroStrategy International Limited,
MicroStrategy International II Limited, Xxxxxxxx.xxx Incorporated, and
Xxxxxxxx.xxx International Limited dated October 17, 2000 to effectuate this
realignment and reorganization; and
WHEREAS, MSTR International II owns the international rights to certain
software known as the MicroStrategy platform (as further defined below) and
other technology related to a personalized information network; and
WHEREAS, SDC International desires to acquire rights in the MicroStrategy
platform.
NOW, THEREFORE, in consideration of the premises set forth above and the
covenants set forth below, and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Definitions
As used in this Agreement, capitalized terms will have the meanings set forth
below.
1.1 "Affiliate" means a company that provides Services to its customers via
an affiliation with SDC International and that has signed an affiliation
agreement with SDC International.
1.2 "MicroStrategy Platform" means all existing and future MicroStrategy
products that are made generally available by MSTR International II including,
without limitation, the portions of MicroStrategy E-Business platforms known as
MicroStrategy 6.0 and MicroStrategy 7.0 (or any derivative works thereof),
MicroStrategy Intelligence Server, MicroStrategy Web Server, MicroStrategy
Broadcast Server, MicroStrategy Architect, MicroStrategy Administrator,
MicroStrategy Agent, MicroStrategy Web, MicroStrategy InfoCenter, MicroStrategy
Transactor, MicroStrategy Broadcaster, MicroStrategy Telecaster, the
MicroStrategy Software Development
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Kit (SDK) and the MicroStrategy eCRM 6 application owned by MSTR
International II. The MSTR International II Products shall include, at no
charge to SDC International, all upgrades and bug fixes as are made generally
available through MicroStrategy technical support.
1.3 "Intellectual Property (IP) Rights" means all patents, copyrights,
trade names, trademarks, trade secrets, or any other intellectual property
rights, whether registered or unregistered essential to undertake the activities
licensed hereunder.
1.4 "Services" means syndicated information services covering a broad range
of content distributed to users through a network of affiliates, as well as
offering targeted advertising and e-commerce offers to consumers through a
network of affiliates or through a specific affiliate and offering reporting on
subscriber information. Services may also mean the provision of customized
services to a specific affiliate using any combination of syndicated data and/or
data provided by the affiliate and the information is sent by SDC International
directly to consumers on behalf of the affiliate. Services specifically exclude
the ability of SDC International to host applications (e.g., eCRM applications
and business intelligence applications) that analyze customer data that is
unrelated to Subscription Data and that would essentially compete with
MicroStrategy's products and offerings. Subscription Data is any information
about a subscriber that is collected as a part of delivering the Services.
1.5 "Software" means those certain software modules that make up the
MicroStrategy Platform, and any related technical documentation.
1.6 "Subsidiary" means a corporation or other legal entity: (i) the
majority of whose shares or other securities entitled to vote for election of
directors (or other managing authority) is now or hereafter controlled by such
company either directly or indirectly; or (ii) which does not have outstanding
publicly traded shares or securities but the majority of whose ownership
interest representing the right to manage such corporation or other legal entity
is now or hereafter owned and controlled by such company either directly or
indirectly; but any such corporation or the other legal entity shall be deemed
to be a Subsidiary of such company only as long as such control or ownership and
control exists.
1.7 "Territory" shall mean the world, except for the United States.
2. License Grants
2.1 Object Code License. Subject to the terms and conditions of this
Agreement, MSTR International II hereby grants to SDC International a
nonexclusive, nontransferable, royalty-free license, without right of sublicense
except as set forth in Section 2.2 below, to make, use, and provide access to
the Software (in machine-executable object code form only) only for use within
SDC International's normal business operations to support and operate the
Services and for SDC International's internal business intelligence needs
outside of the United States.
2.2 License Restrictions. SDC International shall not authorize others to
reverse compile, reverse engineer or otherwise disassemble the Software or
derivative works of the Software. SDC International agrees to take no actions
inconsistent with or exceeding the scope of the license grant set forth in
Sections 2.1 and 2.2. Specifically, SDC International shall not permit any third
party access to the Source Code of the Software. Except for the rights expressly
granted in this Agreement, all rights to the Software and any Intellectual
Property Rights therein
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are reserved by MSTR International II. When SDC International makes the
Software available to a third party as part of the Services, SDC International
must do so solely through a written sublicense agreement, either in a written
form or a "click-wrap" form ("User License Agreement"), which shall be in the
form provided by MicroStrategy or in a form prepared by SDC International so
long as such User License Agreement includes, at a minimum, contractual
provisions at least as restrictive as the following, which:
(a) Disclaim MicroStrategy's liability for damages, whether
direct or indirect, incidental or consequential, arising from the use of the
Software.
(b) Require end users to use a commercially reasonable degree
of care to protect the Confidential Information of MicroStrategy and
prohibit Users from, directly or indirectly, (1) using any Confidential
Information of MicroStrategy to create any computer software program or user
documentation which is substantially similar to any Software, or (2) using or
disclosing Confidential Information of MicroStrategy.
(c) The User License Agreement shall not cause MicroStrategy to
be liable for any taxes or duties, however designated or levied (including
but not limited to sales, use and personal property).
(d) Notwithstanding any provisions to the contrary contained in
this Agreement and for the avoidance of doubt, SDC International shall have
the right to use and/or sublicense the Software solely for the purpose of
licensing or offering the Services as defined in the International Software
Licensing agreement to a third party that relicenses the Services for example
an OEM relationship.
MicroStrategy reserves the right to amend the minimum required contractual
provisions set forth in this Section upon ninety (90) days' advance written
notice, provided such amended provisions shall apply only to User License
Agreements executed by SDC International subsequent to the expiration of the
ninety (90)-day notice period.
2.3 Assignment and Transfer. SDC International may not assign this
Agreement or transfer Software to an Affiliate without prior written consent
of MicroStrategy.
2.4 Audit.
(a) Certification. At MicroStrategy's written request, not
more frequently than once per year, SDC International shall furnish
MicroStrategy with a signed certification verifying that the Software is
being used pursuant to the provisions of this Agreement.
(b) Audit. MicroStrategy may, at its expense, audit SDC
International's use of the Products. Any such audit shall be conducted
during regular business hours at SDC International's facilities and shall not
unreasonably interfere with SDC International's business activities.
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3. Ownership.
3.1 Ownership. As between SDC International and MSTR International II, SDC
International acknowledges that MSTR International II owns all right, title and
interest in the MicroStrategy Platform.
3.2 Proprietary Rights Notices. SDC International shall not alter, obscure
or remove any copyright notices or any other proprietary rights notices
incorporated in the Software delivered to SDC International.
4. Confidentiality
The parties agree to treat all confidential information exchanged by
the parties as confidential as set forth in the International Mutual
Non-Disclosure Agreement in effect between the parties and incorporated in
this Agreement by reference.
5. Warranty
5.1 Limited Exclusivity. MSTR International II warrants that for a period
of three years from the execution of this Agreement it will not both grant a
software license and provide MSTR International II consulting services pursuant
to which MSTR International II builds an application for a customer that would
allow the non-MSTR International II controlled entity to compete directly with
Xxxxxxxx.xxx as a provider of syndicated information services to a network of
affiliates. MSTR International II further warrants that for a period of three
years from the execution of this Agreement, it will not create a syndicated
information service for distribution through a network of affiliates that
competes directly with the Services.
5.2 Rights Ownership. MSTR International II warrants that it owns, free and
clear of all liens or encumbrances, or has valid licenses in the Software and
that it has full legal right to grant to SDC International the licenses
contained herein.
5.3 Disclaimer of Warranties. MSTR International II offers no warranties
other than those specifically set in this Section and to the extent permitted by
law specifically disclaim all others, including merchantability and fitness for
a particular purpose.
5.4 No Additional Warranties. SDC International shall make no warranties on
behalf of MSTR International II and agrees to indemnify and hold MSTR
International II harmless from any claims based on warranties given in violation
of this Agreement.
6. INDEMNIFICATION
6.1 Indemnification of SDC International. MSTR International II shall
defend and indemnify SDC International, against and hold SDC International
harmless from any and all claims that the MicroStrategy Platform infringes a
United States patent or copyright of a third party provided that SDC
International: (i) promptly notifies MSTR International II in writing of any
such claim; (ii) allows MSTR International II to have sole control of the
defense and all related settlement negotiations; and (iii) provides MSTR
International II with the information, authority and assistance necessary to
perform MSTR International II's obligations under this Section. In the event the
MicroStrategy Platform is held or believed to infringe, MSTR International II
may, at
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its sole option: (i) obtain for SDC International a license to continue
using the MicroStrategy Platform product, (ii) replace or modify the
MicroStrategy Platform product so that it becomes noninfringing while retaining
substantially similar functionality; or (iii) if neither (i) nor (ii) can be
reasonably effected by MSTR International II, credit to SDC International the
prices paid for the MicroStrategy Platform product during the twelve (12) months
prior to the credit, provided that such MicroStrategy Platform product are
returned to MSTR International II in an undamaged condition and all licenses to
such MicroStrategy Platform product are terminated.
6.2 Excluded Claims. Notwithstanding Section 6.1 above, MSTR International
II shall not be liable to SDC International for any claim arising from or based
upon the combination, operation or use of any MicroStrategy Platform product
with equipment, data or programming not supplied by MSTR International II
(including the SDC International software and services) or for other than an
intended purpose as set forth in the User Documentation, or arising from any
alteration or modification of the MicroStrategy Platform product, if the claim
would not have arisen without such alteration or modification.
6.3 Indemnification of MSTR International II. SDC International shall
defend and indemnify MSTR International II (including paying all reasonable
attorneys' fees and costs of litigation) against and hold MSTR International II
harmless from any and all claims by any other party resulting from SDC
International's negligent or tortious acts, omissions or misrepresentations
relating to the marketing, sublicensing, distribution, demonstration, evaluation
or use of the MicroStrategy Platform products, regardless of the form of action
provided that MSTR International II: (i) promptly notifies SDC International in
writing of any such claim; (ii) allows SDC International to have sole control of
the defense and all related settlement negotiations; and (iii) provides SDC
International with the information, authority and assistance necessary to
perform SDC International's obligations under this Section.
7. Limitation of Liability
EXCEPT FOR BREACHES OF SECTIONS 2 AND 4 HEREOF, IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL
DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST SAVINGS, LOSS OF
COMPUTER TIME, DESTRUCTION OR DAMAGE OF RECORDS, WHETHER SUCH CLAIM IS IN
CONTRACT OR IN TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
The provisions of this Agreement allocate the risks between MSTR
International II and SDC International. MSTR International II's pricing
reflects this allocation of risk and the limitation of liability specified in
this Agreement.
8. Termination
8.1 Termination. The Agreement will terminate at the option of the
non-breaching Party upon thirty (30) days written notice if the other Party
breaches or defaults on any material
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obligation under this Agreement and fails to cure such breach or default during
such 30-day period.
8.2 Obligation Upon Termination. Upon termination of this Agreement, each
Party shall promptly return to the other all Confidential Information of the
other Party then in its possession.
8.3 Survival. Sections 4, 5, 6, 8.3, and 9 shall survive any termination,
expiration or cancellation of this Agreement.
9. General Provisions.
9.1 Dispute Resolution.
(a) If a dispute arises out of or relates to this Agreement, or
the breach, termination or validity thereof, the parties agree to submit the
dispute to a sole mediator selected by the parties or, at any time at the
option of a party, to mediation by the American Arbitration Association
("AAA"). If not thus resolved, it shall be referred to a panel of three
arbitrators selected by the parties within thirty (30) days of the mediation,
or in the absence of such selection, to AAA arbitration which shall be
governed by the United States Arbitration Act. The ruling of any such panel
shall be binding.
(b) Any award made (i) shall be an award affording such remedy
as is deemed equitable, just and within the scope of this Agreement; (ii)
shall be with findings as to issues (including but not limited to patent
validity and/or infringement) or a statement of the reasoning on which the
award rests; (iii) may in appropriate circumstances include injunctive
relief; (iv) shall be made within four (4) months of the appointment of the
arbitrator; and (v) may be entered in any court.
(c) The requirement for mediation and arbitration shall not be
deemed a waiver of any right of termination under this Agreement and the
arbitrator is now empowered to act or make any award other than based solely
on the rights and obligations of the parties prior to any such termination.
(d) The arbitrator shall determine issues of arbitrability but
may not limit, expand or otherwise modify the terms of this Agreement.
(e) This Agreement shall be interpreted in accordance with the
laws of the Commonwealth of Virginia exclusive of its conflict of laws
provisions and the place of mediation and arbitration shall be Fairfax County.
(f) Each party shall bear its own expenses but those related to
the compensation and expenses of the mediator and arbitrator shall be borne
equally.
9.2 Relationship Between Parties. Nothing contained in this Agreement shall
be construed as creating a joint venture, partnership, agency, or employment
relationship between the Parties, and neither Party will have the right to bind
the other or incur any obligation on the
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other's behalf without the other's prior written consent.
9.3 Waiver. The failure of either Party to exercise any right granted
herein or to require any performance of any term of this Agreement or the waiver
by either Party of any breach of this Agreement, shall not prevent a subsequent
exercise or enforcement of the term or be deemed a waiver of any subsequent
breach of the same or any other term of this Agreement.
9.4 Headings. The section headings appearing in this Agreement are inserted
only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any such section nor in any way affect this
Agreement.
9.5 Assignment. Neither party may assign this Agreement without the prior
written consent of the other party. Notwithstanding the foregoing to the
contrary, either party may assign any of its rights or obligations hereunder to
any one or more of its Subsidiaries. Each party acknowledges that it shall
continue to be obligated if and to the extent that a permitted assignee under
this paragraph fails to perform the obligations that such party has assigned.
Any attempted assignment in violation of this paragraph without consent shall be
null and void.
9.6 Entire Agreement. This Agreement and the exhibits attached hereto
constitute the complete, final and exclusive understanding of the Parties
regarding the subject matter hereof and cancels and supersedes any and all prior
negotiations, correspondence, understandings and agreements, whether oral or
written, between the Parties respecting the subject matter thereof.
In Witness whereof, the parties hereto have executed this Agreement as
of the Effective Date.
MicroStrategy International II Limited Xxxxxxxx.xxx International Limited
Signed: /s/Xxxx X. Xxxxx Signed: /s/Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx Name: Xxxx X. Xxxxx
Title: CFO/Director Title: CFO/Director
Dated: 10/17/2000 Dated: 10/17/2000
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