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 10.11
[Logo Goes Here]
BRIO SOFTWARE LICENSE AGREEMENT
This Software License Agreement, ("Agreement") is made effective as of September
29, 1999 (the "Effective Date"), by and between Brio Technology Inc., a Delaware
corporation with its principal place of business at 0000 X. Xxxxxxxx Xxxx, Xxxx
Xxxx, XX 00000 ("Brio"), and TriNet VCO a California corporation with an office
at 000 Xxxxxx Xxxxxx Xxx Xxxxxxx, XX 00000
("Licensee").
1. DEFINITIONS
1.1. Licensed Program Materials shall mean the Licensed Programs in machine
--------------------------
readable object code only, and associated User Documentation, provided to
Licensee by Brio and specified in Exhibit A. The Licensed Program Materials
shall also be deemed to include any Updates of Licensed Program Materials made
generally available by Brio to its licensees, provided Licensee has made payment
for Support and Maintenance under the terms of any Exhibit B (Support and
Maintenance) attached hereto.
1.2. Designated Locations shall mean the particular location(s), if applicable,
--------------------
set forth in Exhibit A where Licensed Program Materials are permitted to be used
pursuant to the license grant defined in Exhibit A.
2. LICENSE GRANTS
License Grant. Licensee shall be granted the license grants set forth in
-------------
Exhibit A. The foregoing license grants shall be subject to the terms and
conditions of this Agreement. Brio reserves all rights in the Licensed Program
Materials, which are not expressly granted herein.
3. ADDITIONAL LICENSE CONDITIONS
3.1 Reverse Engineering. Licensee shall not decompile, reverse engineer or
-------------------
otherwise attempt to derive or modify the source code of the Licensed Programs
Materials unless expressly licensed to do so by Brio in writing. Licensee shall
not merge the Licensed Program Materials with another program.
3.2 Proprietary Notices. Licensee agrees to reproduce and include any
-------------------
copyright or other proprietary rights notices of Brio on all copies, in whole or
in part, in any form, including partial copies, of the Licensed Program
Materials made hereunder. Licensee further agrees to permit Brio to enter any
of Licensee's premises during regular business hours, upon five (5) days written
notice, to inspect the Licensed Program Materials, and Licensee's use thereof,
in any reasonable manner.
3.3 No Licensee Modification or Translation. Licensee shall not modify,
---------------------------------------
translate or create derivative works of the Licensed Program Materials.
3.4 Sublicensing, Rental, Lease or Resale. Licensee shall not sublicense,
-------------------------------------
rent, lease, resell for profit, or distribute, the Licensed Program Materials or
derivative works thereof.
3.5 Export. Licensee shall not export or re-export, directly or indirectly,
------
the Licensed Program Materials or any part thereof in a manner prohibited by the
United States Export Administration Act or the regulations thereunder.
3.6 Brio Modifications. Brio reserves the right to modify the Licensed Program
------------------
Materials in order to reflect changes in support requirements or to improve
then-existing Licensed Program Materials.
4. RECORDS AND AUDITS
Licensee shall maintain complete and accurate records of the number of copies of
Licensed Programs Materials it has made, and the location of such copies, and
the Designated Computer upon which the Licensed Program Materials have been
loaded. Brio shall, at any time during the term of this Agreement, be entitled
to audit such records, upon seven (7) prior days written notice to Licensee, in
order to confirm the accuracy of Licensee's records and Licensee's conformance
with the terms and conditions of this Agreement; provided, that no more than one
(1) such audit may be conducted in any one hundred and eighty (180) day period.
Any such audit shall be performed at Brio's expense during Licensee's normal
business hours. If an audit reveals that Licensee has underpaid fees and/or
charges to Brio in excess of five percent (5%), then Licensee will pay Brio's
reasonable costs of conducting the audit, in addition to the underpaid amounts,
plus interest as provided in Section 6.1 below.
5. TITLE
Ownership of all right, title and interest in and to the originals and any
copies, in whole or in part, of the Licensed Program Materials, including
translations, compilations, partial copies, modifications and updated works, and
ownership of all patents, trade secrets, copyrights and other intellectual
property rights pertaining thereto, shall be and shall remain the sole property
of Brio. Licensee acknowledges that the license granted pursuant to this
Agreement does not provide Licensee with title or ownership of the Licensed
Program Materials. Licensee shall keep the Licensed Program Materials free and
clear of all claims, liens and encumbrances.
6. PAYMENTS
6.1 License Fees. The fees for the license, maintenance, and other services
------------
granted under this Agreement are set forth in Exhibit A. All fees and charges
will be invoiced by Brio to Licensee and must be paid in full within thirty (30)
days after the date of invoice or as otherwise specified on Exhibit A to this
agreement. All payments are due in United States dollars. Brio reserves the
right to apply a service charge to any unpaid balance at the rate of 1.5% per
month (but in no event more than the maximum rate allowed by law) for any fee or
charge not paid within thirty (30) days after the date of invoice. If Licensee
fails to pay any invoice when due, Brio will have the right to institute
collection procedures to recover same, and Licensee will be responsible for all
reasonable costs of collection incurred by Brio, including without limitation
litigation costs, reasonable attorneys' fees and court costs. Brio also reserves
the right to discontinue or suspend any services, with written notice thereof to
Licensee, including the termination of this Agreement for Licensee's failure to
make timely payment of applicable fees or charges, without penalty to Brio.
MAIL TO: Brio Technology, Inc.
Dept. CH 10866
Xxxxxxxxx, XX 00000-0000
6.2 Taxes. Licensee shall pay or reimburse Brio for all taxes, duties and
-----
assessments imposed on Licensee or Brio in connection with the license or use of
Licensed Program Materials under this Agreement or any services provided
hereunder, including without limitation all sales, use, excise and other taxes
and duties, excluding only taxes based upon Brio's net income. Licensee shall
hold Brio harmless from all claims and liability arising from Licensee's failure
to report or pay any such taxes, duties and assessments.
7. DELIVERY AND ACCEPTANCE
7.1 Delivery. Brio shall deliver the copies of Licensed Program Materials
--------
specified in Exhibit A to Licensee within fifteen (15) business from the
Effective Date of this Agreement. Shipment shall be F.O.B. Brio's facilities.
7.2 Acceptance. (1) In the event that the Licensed Program Materials were
----------
evaluated by Licensee prior to the Effective Date under an evaluation or trial
license agreement between Brio and Licensee, for purposes of this Agreement, the
Licensed Program Materials shall be deemed accepted by Licensee upon the later
of the Effective Date or delivery to Licensee, (2) In the event that the
Licensed Program Materials were not evaluated by Licensee prior to the Effective
Date under an evaluation or trial license agreement between Brio and Licensee,
the following terms shall apply: Following delivery of the Licensed Program
Materials, Licensee shall have a period of ten (10) business days to undertake
inspection and testing of the Licensed Program Materials to determine
conformance with applicable User Documentation. Licensees failure to notify Brio
in writing of any defects within the ten (10) business day inspection period, in
the Licensed Program Materials shall be deemed acceptance thereof.
8. BRIO PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION.
Licensee agrees not to provide or otherwise make available any Licensed Program
Materials to any competitor of Brio or to any person other than employees,
consultants, contractors or agents of Licensee who are not competitors of Brio
and who have a need to use such Licensed Program Materials. Licensee
acknowledges that the Licensed Program Materials, as well as other information
concerning Brio's business, products, proposed new products, licensees and
related information constitute Brio's confidential and proprietary information
("Confidential Information"). Licensee agrees that Licensee will take
appropriate action by instruction, agreement, or otherwise with Licensee's
employees to satisfy Licensee's obligations under this Agreement with respect to
use, copying, modification, protection and security of Confidential Information.
Licensee shall promptly return all Confidential Information to Brio (i) after
termination of this Agreement, or (ii) upon receipt by the Licensee of written
notice from Brio requesting return of such Confidential Information.
9. LIMITED WARRANTY
9.1 Limited Warranty. Brio warrants that for a period of thirty (30) days from
----------------
receipt of Licensed Program Materials by Licensee, (i) the media on which the
Licensed Program Materials are recorded will be free from defects in materials
and workmanship, and (ii) the Licensed Programs Materials will perform
substantially in accordance with their then-current User Documentation, provided
that such Licensed Program Materials are property used by Licensee. Brio makes
no warranty as to the Licensed Program Materials after said thirty (30) day
period. Brio does not warrant that the Licensed Program Materials will meet
Licensee's requirements or will operate in combination with other software which
may be selected for use by Licensee, or that the operation of the Licensed
Program Materials will be uninterrupted or error-free. Brio's sole and exclusive
liability and Licensee's sole and exclusive remedy under this Limited Warranty
shall be, at Brio's election, either (i) replacement of the disk if defective,
or (ii) Brio's reasonable effort to make the Licensed Program materials perform
substantially in accordance with the accompanying User Documentation, if the
Licensed Program Materials initially delivered are defective. The above remedies
are available only if Brio is promptly notified in writing within the thirty
(30) day warranty period. This limited warranty is VOID if failure of the
Licensed Programs is due to accident, abuse or misapplication. Any replacement
Licensed Program will be warranted for the remainder of the original warranty
period, or for thirty (30) days, whichever is longer.
9.2 Warranty of Title. Each party warrants that it has all necessary right,
-----------------
power and authority to enter into this Agreement.
9.3. Warranty of Year 2000 compliancy. Brio warrants that the Licensed Program
---- --------------------------------
Materials will be "year 2000 compliant" in that when used in accordance with its
associated User Documentation they will correctly process, provide and/or
receive date data within and between the twentieth and twenty-first centuries,
provided that all hardware, software and firmware used (including but not
limited to Databases and API's) in association with the Licensed Program
Materials exchange accurate date data. "Year 2000 compliant" includes, but is
not limited to, date and century recognition before and after 1/1/2000,
calculations to accommodate same century, and multi-century formulas end date
values, and date data interface values that reflect the century. Leap year
calculations are accommodated.
9.4. Disclaimer. EXCEPT FOR THE LIMTED WARRANTY SET FORTH HEREIN, BRIO MAKES
----------
NO PROMISES, REPRESENATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE, WITH RESPECT TO ANY LICENSED PROGRAM MATERIALS, INCLUDING THEIR
CONDITION, THEIR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE
EXISTENCE OF ANY LATENT OR PATENT DEFECTS, AND BRIO SPECIFICALLY EXCLUDES ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT.
10. SUPPORT MAINTENANCE AND TRAINING
10.1 Support. Licensee shall have the right, upon payment of the support fees
-------
set forth in any Exhibit A attached hereto, to the support services outlined in
Exhibit B hereto. The names of specified Licensee contact persons shall be added
to such Exhibit B. Such contact persons shall attend the classes specified in
such Exhibit A, and after attending such training may obtain support from Brio
as set forth in such Exhibit B.
10.2 Maintenance. Upon payment of maintenance fees as set forth in any Exhibit
-----------
A attached hereto, Licensee shall have the right to receive maintenance from
Brio as set forth in such Exhibit B.
10.3 Training. Brio shall provide any training set forth in Exhibit A attached
--------
hereto.
11. INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION
Indemnity. Brio will defend, at its expense, any action brought against
---------
Licensee based upon a claim that the Licensed Program Materials used within the
scope of any license granted hereunder directly infringe a U.S. patent or
copyright. Brio further agrees to pay all damages and costs finally awarded
against Licensee attributable to such claim; provided that Brio shall have sole
control of any such action or settlement negotiations, and provided that
Licensee notifies Brio promptly in writing of such claim and gives Brio all
authority, information and assistance, at Brio's expense, reasonably necessary
to settle or defend such claim. Brio shall not be liable for any costs or
expenses incurred without its prior written authorization. If the Licensed
Program Materials become, or in the opinion of Brio may become, the subject of a
claim of infringement of any United States patent or copyright, Brio may, at its
option: (1) procure for Licensee the right to use the Licensed Program
Materials free of any liability; (ii) replace or modify the Licensed Program
Materials to make them non-infringing; or (iii) remove the Licensed Program
Materials, or part thereof, and refund the aggregate payments paid therefor by
Licensee, less an amount equal to 20% of the purchase price of the license for
such Licensed Program Materials for each year of use. Brio assumes no liability
hereunder for: (i) any method or process in which the Licensed Program Materials
may be used; or (ii) any compliance with Licensee's specifications. Brio shall
have no obligation to defend Licensee or to pay costs, damages or attorney's
fees for any claim based upon: (A) use of other than a current unaltered release
of the Licensed Program Materials; or (B) the combination, operation or use of
any Licensed Program Materials furnished hereunder with non-Brio programs or
data if such infringement would have been avoided but for the combination,
operation or use of the Licensed Program Materials with such programs or data.
THIS SECTION 11.1 SETS FORTH THE SOLE AND EXCLUSIVE LIABILITY OF BRIO FOR
INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
12. UNITED STATES RESTRICTED RIGHTS AND EXPORT LAWS AND REGULATIONS
If Licensee is an agency, department or entity of the United States Government
("Government"), then use, reproduction, release, modification or disclosure of
the Licensed Program Materials, or any part thereof, including technical data,
is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212
for civilian agencies and Defense Federal
Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies. The
Licensed Program Materials are a commercial product, which was developed at
private expense. The use of the Licensed Program Materials by any Government
agency, department or other agency of the Government is further restricted as
set forth in this Agreement. Any obligation of Licensor to provide Products
under this Agreement shall be subject in all respects to all United States laws
and regulations governing the license and delivery of technology and products
abroad by persons subject to the jurisdiction of the United States. Licensee
shall not export, directly or indirectly, any Products or related information
without first obtaining all required licenses and approvals from the appropriate
government agencies.
13. LIMITATION OF LIABILITY
Other than its liability under 11 above, Licensee agrees that Brio's liability
hereunder for damages arising from use, performance or nonperformance of the
Licensed Program Materials, including but not limited to liability for patent
and copyright infringement, shall be as set forth above in Sections 9 and 11,
and shall in no event exceed the amount paid by Licensee pursuant to this
Agreement. Licensee further agrees that BRIO WILL NOT BE LIABLE FOR ANY LOST
PROFITS, FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY
CLAIM OR DEMAND AGAINST LICENSEE BY ANY OTHER PARTY. IN NO EVENT WILL BRIO BE
LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES
ARISING OUT OF THIS AGREEMENT, EVEN IF BRIO HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, AND UNDER ANY CAUSE OF ACTION, INCLUDING NEGLIGENCE. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY. No action may be brought or arbitration demanded by Licensee for
any dispute arising out of or in connection with this Agreement at any time more
than twelve (12) months after the facts occurred giving rise to the cause of
action or dispute. Licensee is responsible for the selection of software
products to satisfy its requirements, and for the data and other results
obtained from operation of the Licensed Program Materials. Brio will have no
liability to Licensee or third parties in connection with such data and other
results.
14. TERM AND TERMINATION
14.1 Term. The term of this Agreement and the license granted hereunder shall
----
commence on the date set forth at the beginning of this Agreement and shall
continue until terminated in accordance with this Section 14.
14.2 Termination. Either party may, at its option, terminate this Agreement upon
-----------
written notice to the other party if the other party materially fails to comply
with any of the terms and conditions of this Agreement and if such default has
not been cured within thirty (30) days after written notice to the defaulting
party.
14.3 Surviving Terms. Sections 3, 4, 5, 8, 9.2, 9.3, 11, 12, 13, 14.3 and 15,
---------------
and all payment obligations incurred prior to termination of this Agreement,
shall survive termination of this Agreement. Within thirty (30) days after
termination of this Agreement, Licensee shall return to Brio, at Licensee's
expense, and shall make no further use of, any property, materials or other
items of Brio, and shall certify in writing to Brio, that the originals and all
copies, in whole or in part, in any form, of the Licensed Program Materials have
been destroyed or returned to Brio.
15. GENERAL PROVISIONS
15.1 Assignment. All the terms and provisions of this Agreement shall be
----------
binding upon and inure to the benefit of the parties to this Agreement and to
their respective heirs, successors, assigns and legal representatives. Licensee
may not assign this Agreement in whole or in part, except with Brio's written
consent, which shall not be unreasonably withheld. Any assignment by Licensee
shall not result in an increase in the scope of the license granted pursuant to
this Agreement. Brio shall be entitled to assign this Agreement to a successor
to all or substantially all of its relevant assets without restriction.
15.2 Entire Agreement. This Agreement represents the entire agreement between
----------------
the parties, and supersedes all prior agreements and understandings with respect
to the matters covered by this Agreement. Licensee agrees that it has not
entered into this Agreement based on any representations other than those
contained herein. This Agreement may only be amended by a written agreement
signed by both parties.
15.3 Delays. Brio is not responsible for failure to fulfill its obligations
------
under this Agreement due to causes beyond its control.
15.4 Governing Law. This Agreement shall in all respects be governed by the laws
-------------
of the State of California without reference to its principles of conflicts of
laws. The parties hereby agree that all disputes arising out of this Agreement
shall be subject to the exclusive jurisdiction of and venue in the federal and
state courts within Santa Xxxxx County, California. Licensee hereby consents to
the personal and exclusive jurisdiction and venue of these courts.
15.5 Arbitration. Any claim, dispute, or controversy arising out of or in
-----------
connection with or relating to this Agreement, including the breach or alleged
breach thereof, will be submitted by the parties to binding arbitration by the
American Arbitration Association in the City of San Jose, California, under the
commercial rules then in effect for that Association, except as provided herein.
The parties will agree on one (1) arbitrator within thirty (30) days of receipt
of the notice of intent to arbitrate. If no arbitrator is appointed within the
time herein provided, or any extension of time which is mutually agreed upon,
the Association will make such appointment within thirty (30) days of such
failure. Such Association-appointed arbitrator will have a minimum of ten (10)
years experience with development software for computers, internet applications,
and knowledge of wide area networks. The awarded rendered by the arbitrator will
include costs of arbitration, reasonable costs for expert and other witnesses,
and reasonable attorney's fees to the prevailing party. Licensee acknowledges
that any breach of its obligations with respect to the proprietary rights of
Brio and its licensors or third party suppliers will cause Licensee irreparable
injury for which there are inadequate remedies at law and, therefore, the
arbitrator may award Brio and its licensors equitable relief in addition to all
other remedies available to them. Judgment on the arbitration award may be
entered in any court having Jurisdiction thereof. Nothing in this Agreement will
be deemed as preventing either party from seeking injunctive relief (or any
other provisional remedy) from any court having jurisdiction over the parties
and the subject matter of this dispute as is necessary to protect either party's
name, proprietary information, trade secret, know-how, or any other intellectual
property rights. Because both parties to this Agreement have had the opportunity
to negotiate individual provisions of this Agreement, the parties agree that any
arbitrator or court shall not construe any ambiguity that may exist in the
Agreement against a party on the basis of that party having drafted the
Agreement.
15.6 Waiver. The waiver of any particular breach or default or any delay in
------
exercising any rights shall not constitute a waiver of any subsequent breach or
default.
15.7 Notices. All notices permitted or required under this Agreement shall be in
-------
writing and shall be delivered in person or mailed by first class, registered or
certified mail, postage prepaid, to the address of the party specified in this
Agreement or such other address as either party may specify in writing. Such
notice shall be deemed to have been given upon receipt.
15.8 Headings. The headings of the several sections of this Agreement are
--------
intended for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
15.9 Force Majeure. Neither party shall be responsible for any failure to
-------------
perform its obligations (other than payment obligations) under this Agreement
due to reasons beyond its reasonable control, including without limitation acts
of God, war, riot, embargoes, acts of civil or military authorities, fire,
floods or accidents.
15.10 Counterparts. This Agreement may be executed in counterparts, each of
------------
which shall be deemed an original and all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement and any Exhibits
hereto as of the date first set forth above.
BRIO TECHNOLOGY, INC. TriNet VCO
("LICENSEE")
/s/ XXXX X. XXXXXX /s/ XXXXXXX X. XXXXXX
------------------ ---------------------
(Signature) (Signature)
Xxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
------------------ ---------------------
(Print Name) (Print Name)
Vice President Chief Financial Officer
------------------ -----------------------
(Title) (Title)
EXHIBIT A
---------
LICENSE GRANTS, LICENSE AND SUPPORT AND MAINTENANCE FEES, AND TRAINING
----------------------------------------------------------------------
1. License Grants.
--------------
Licensee is granted a nonexclusive non-transferable license to install the
number of copies of the Licensed Programs outlined below in this Exhibit.
Licensee shall have a nonexclusive license to use the Licensed Documentation
solely for the Licensee's internal purposes and solely in connection with
Licensee's use of the Licensed Program Materials. Licensee's use of Licensed
Program Materials shall be solely for Licensee's internal business or
administrative purposes.
2. Products, License Fees, Support and Maintenance Fees.
----------------------------------------------------
PRODUCT QUANTITY UNIT PRICE EXTENDED PRICE 1ST YEAR MAINTENANCE
------- -------- ---------- -------------- --------------------
Brio.Portal* 1 [*] [*] [*]
GRAND TOTAL [*]
*Includes:
[*]
[*]
[*]
[*]
[*]
**Plus applicable sales taxes
[*] Confidential Treatment Requested
EXHIBIT B
----------
SUPPLEMENTAL TERMS AND CONDITIONS FOR SUPPORT AND MAINTENANCE ONLY
In the event Licensee has initialed this Exhibit, then the following terms and
conditions will apply solely for yearly Support and Maintenance services for
Licensed Program Materials and Updates therto. The obligation of Licensee to
make payment to BRIO for Support and Maintenance fees commences upon the
Effective Date of this Agreement. This Agreement for Support and Maintenance
will renew automatically at the end of the first calendar year after the
Effective Date hereof, and sixty (60) days prior to such anniversary, BRIO will
Invoice Licensee for the following years Support and Maintenance fees at the
then prevailing BRIO rates for such Support and Maintenance, not to exceed a 10%
increase over the prior year's Support and Maintenance Fees. Licensee may elect
to terminate this Support and Maintenance Agreement by giving BRIO written
notice of its intent to so terminate, no later than thirty (30) days prior to
the anniversary date. Failure of Licensee to so notify BRIO will constitute
Licensees agreement to make payment to BRIO for a further year of Support and
Maintenance fees as invoiced by BRIO. In the event that BRIO does not receive
further Maintenance Fees for one or more annual maintenance periods, Maintenance
can be reactivated by mutual agreement upon payment by Licensee of all
Maintenance Fees due for the period in which Maintenance was not provided. The
fees for the initial term of Support and Maintenance are outlined in Exhibit A
of this Agreement. This Exhibit does not apply to Support or Maintenance
services for any modifications of the Licensed Program Materials, which my be
quoted to Licensee by Brio.
1. DEFINITIONS
The following defined terms, and other capitalized terms defined herein, shall
govern the interpretation of this Exhibit. Capitalized terms that are used and
not otherwise defined shall have the meaning set forth in the Software License
Agreement.
1.1 Error. Error means a material failure of the Licensed Program Materials to
-----
conform as described in the applicable User Documentation, which failure is
demonstrable in the environment for which the Licensed Program Materials was
designed and causes it to be inoperable, to operate improperly in the
environment for which it was designed, or produces results different from those
described in the applicable User Documentation. Failures resulting from
Licensee's negligence or improper use of the Licensed Program Materials,
modifications or damage to the Licensed Program Materials by Licensee, and
Licensee's use of the Licensed Program Materials on third party hardware or
software not identified and certified to Licensee as compatible by BRIO, are not
considered Errors.
1.2 Error Correction. Error correction means either a modification or addition
----------------
that, when made or added to the Licensed Program Materials, brings the Licensed
Program Materials into material conformity with its User Documentation or a
procedure or routine that, when observed in the regular operation of the
Licensed Program Materials, avoids the practical adverse effect of such
nonconformity.
1.3 Update. Update means an updated revision of the Licensed Program
------
Materials that includes Error Corrections. Provided Licensee has initialed this
Exhibit B, and continue to make yearly maintenance payments, under this
Agreement, Updates are normally provided to Licensee on diskette, CD ROMs, tapes
or made available via the BRIO Homepage. Updates are any Updates of Licensed
Program Material identified by Brio by incrementing the numeral to the left or
right of the decimal point in the version number.
SECTION 2 - SUPPORT AND MAINTENANCE SERVICES
--------------------------------------------
2.1 Error Correction
----------------
Call Priorities
Call priorities are established with the level of urgency or impact on the
customers business. Each priority level has a Response Time, Issue Resolution
and Defect Resolution Objective associated with it as shown below:/1/
Priority Description Response Time Issue Defect
Objective Resolution Resolution
Objective Objective
-----------------------------------------------------------------------------------------------------------------
1 Critical: Application Down, Unable to 1 Hour /8/ Hours To Next Available
use or severely impaired. No work resolve or Patch.
around available. provide work
around.
-----------------------------------------------------------------------------------------------------------------
2 Serious: Important feature not 2 Hours /2/ Days To Future Patch or
available, work around not available. resolve or next Minor
provide work Release.
around.
-----------------------------------------------------------------------------------------------------------------
3 Intermediate: Question, Important 8 Hours /2/ Weeks To Future Patch or
feature not available, but there is a resolve or next Major
reasonable work around, or a less provide work Release.
significant feature is not available around.
with no reasonable work around.
-----------------------------------------------------------------------------------------------------------------
4 Minor: Enhancement or minor problem 24 Hours /4/ Weeks To Future scheduled
that doesn't cause a disruption of resolve or release
work. provide work determined by
around. Brio.
-----------------------------------------------------------------------------------------------------------------
If Brio is unable to correct the Error(s) as described above for Priority 1 and
2 Errors, within 8 hours or two (2) business days as applicable, Brio will
provide Licensee with the then existing diagnosis of the problem and outline
Brio's then existing plan and timetable for resolving the Error. Brio will
report its progress in correcting the Error to Licensee in accordance with the
table for resolving the Error. Brio shall work continuously on such Errors
until such Errors are remedied. SECTION 2 ("SERVICES PROVIDED") AND 3
("RESPONSE TIMES") STATE BRIO'S ENTIRE LIABILITY AND LICENSEES SOLE AND
EXCLUSIVE REMEDY CONCERNING BRIO'S OBLIGATION TO CORRECT ANY ERRORS IN THE
LICENSED PRODUCT.
2.2. Licensee Responsibilities. Licensee agrees to notify BRIO in writing or
-------------------------
by phone promptly following the discovery of any Error. Further, upon discovery
of an Error, Licensee agrees, if requested by BRIO, to submit to BRIO a listing
of output and any other data that BRIO may require in order to reproduce the
Error and the operating conditions under which the Error occurred or was
discovered. In addition, Licensee is responsible for procuring, installing, and
________________
/1/ All response times are based on Brio's standard support hours from 5 a.m. to
5 p.m. Pacific Time.
maintaining all equipment, telephone lines, communications interfaces, and other
hardware necessary for BRIO to provide maintenance services to Licensee.
2.3. Telephone Support. BRIO will make a member of its maintenance staff
-----------------
available by telephone to Licensee's designated support coordinator (Licensee's
named employee responsible for liaison with BRIO relating to the Software
Support and Maintenance requested hereunder) to assist Licensee's use of the
Licensed Program Materials. Licensee's System Administrator will be responsible
for daily Support and Maintenance of the Licensed Program Materials per the
applicable Documentation. Additional extended service plans are available from
BRIO at Licensee's request.
2.4 Field Maintenance. Upon request, BRIO will provide field support and
-----------------
maintenance services at any Licensee field site(s) at BRIO's then current hourly
field maintenance rates, together with reimbursement of applicable travel and
related expenditures, at BRIO's cost plus a 10% administrative charge.
2.5 Exclusions from Support and Maintenance Services. Support and Maintenance
------------------------------------------------
services under this Exhibit do not include, system administration training,
operations training, network management setup for the licensed Program
Materials, travel and living expenses for installation and training, file
conversion costs, optional products and services, directories, consulting
services, shipping charges, or the costs of any recommended hardware.
This Exhibit also does not cover support or maintenance services for any failure
or defect in the Licensed Program Materials caused by any of the following:
(a) the improper use, alteration, or damage of the Licensed Program Materials
by Licensee or persons other than BRIO employees;
(b) modifications to the Licensed Program Materials not made or authorized by
BRIO;
(c) software other than the Licensed Program Materials;
(d) application interfacing between the Licensed Program Materials and other
software, that has not be approved or certified by Brio as being compatible
with the Licensed Program Materials.
(e) Use of Licensed Program Materials (l) with hardware, or third party
software that has not been approved and certified by BRIO.
SECTION 3 UPDATES
3.1 During each annual support and maintenance period in which Brio is
providing support and maintenance, Brio shall provide licensee with updates of
the licensed program materials at such time as such updates are made generally
available by Brio to it customer of the licensed program materials.
3.2 Update Support Policy:
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BRIO will support the current Update. The previous version will be supported for
twelve (12) months after the effective date of the current Update. Support will
be for Critical Errors (i.e., Priority 1 bugs) only, on a best-efforts basis and
subject to availability of support staff.
3.3 Travel and per diem expenses. Licensee will pay, within fifteen (15) days
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of invoice, all reasonable travel and per diem expenses of BRIO personnel
related to any on-site support and maintenance of the Licensed Program
Materials. For all expenses incident to the performance of this Exhibit,
Licensee will pay BRIO's costs, plus a 10% administrative charge.
BRIO LICENSEE
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx
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Date: September 29, 1999 Date: September 28, 1999
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