HomeMy WebLinkAboutPeregrine Systems Inc; 2003-03-24;II “7
TOTAL INFORMATION MANAGEMENT
.. . ENROLLING A LICENSEE OF RECORD
The Licensor will provide a potential Licensee of Record with a copy of the Escrow Agreement
and a Licensee Registration Agreement (“LRA”) customized with the Licensor’s Escrow account
number, the agreement’s date of execution and the Licensor’s company name and state of
incorporation. [The copy of the Escrow Agreement should omit Exhibit €3 (I.‘Licensees’’) and
, Exhibit D (Fee Schedule”) as these forms are confidential between the Licensor and Recall.]
Additionally, on this LM the Licensor wilI speciQ the Events of Default under which the
Licensee can file for a release of the escrow materials and list the products and their associated
Deposit Account numbers that this particular Licensee has licensed. It may be prudent for the
company to establish a “standard” set of Events of Default that can only be altered with the
approval of Counsel.
To accept the terms of the escrow agreement and enroll as a Licensee of Record, the Licensor’s
customer should execute the LRA, keep a copy for their records along with the agreement and
return the original to the Licensor.
Next, the Licensor should make a copy of the LRA for their records and forward the original on
to the Escrow Agent along with instructions to add this Licensee into your escrow account. It is
helpll if the Licensor also creates an Exhibit B listing all their customers registered into the
escrow and sends that along with any new acceptances. This will allow the Escrow Agent to
compare the Licensor’s list with the official escrow list to discover and correct any discrepancies
between the two. This generdIy happens when paperwork is not submitted properly, or if a
Licensee terminates its agreement with the Licensor and the Escrow Agent is not infimed.
Upon receipt of the LRA, the Escrow Agent will send an acknowledgement letter to the
Licensee, with a copy to the Licensor, confirming their registration into the escrow and listing
the Deposit Accounts to which they have rights. In conjunction with this, the Escrow Agent will
then invoice the Licensor for the appropriate registration fee.
It is encouraged that each Licensor develop a procedure so that this process is automatic upon the
execution of a new License Agreement calling for escrow protection. The number of Licensees
Who can participate in any single Deposit Account Escrow is virtually unlimited. Additionally,
as new products are placed into escrow, the Licensor may designate which of its current
Licensees should have rights to these new products by informing the Escrow Agent in writing.
Please return all completed Licensee Registration Agreements to the address listed below,
Attention: Escrow Officer. Thank you for your business.
USA - SAN JOSE OFFICE
2709 BERING DRIVE TEL (4081 453-2753
SAN JOSE, CA 95131 FAX (406) 441-6826
A DlVlSlON OF BRAMBLES USA. INC.
NORTH AMERICA * EUROPE * AUSTRALASlA - ASIA
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SOFTWARE ESCROW AGREEMENT
BRAMBLES NSD, INC.
This Soffware Escrow Agreement (“Agreement”) is executed as of this 1st day of
April, 1997 by and between Peregrine Systems, Inc., a Delaware corporation (“Peregrine”),
and Brambles NSD, hc., a Delaware Corporation (“NSD”), as escrow agent.
RECITALS
A. Peregrine desires to establish a software escrow account; and
B. NSD desires to provide the software escrow account to Peregrine.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein, and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. DEPOSfT OF DOCUMENI’ATfON
Peregrine agrees to deposit with NSD a complete copy of its Source Code and
related support materials for each of Peregrine’s licensed products within thirty (30) days after
execution of this Agreement. The initial deposit of Documentation, induding all revisions and
additions thereto, deposited with NSD by Peregrine pursuant to this Agreement shall be
referred to herein as the ”Documentation”. Each individual family of productsset forth in Exhibit
A, shall be placed in a separate container. Each deposit of Documentation shall be
accompanied by a packing list prepared in duplicate describing the Documentation. A unique
deposit account number has been assigned to the individual family of produds identified in
Exhibl A. For purposes of this Agreement ‘Source Code” shall mean a copy of the applicable
source code for the computer programs listed under Exhibit A, including all updates delivered to
the escrow agent from time to time pursuant to this Agreement.
2. REVISlONS AND MAINTENANCE
(a) Peregrine agrees to deposit with NSD copies of all revisions of and additions
to the Documentation within thirty (30) days after said revisions and additions are made
available to Licensee. For purposes of this Agreement a ‘Licensee’ shall be aefined as an end-
user of Peregrine’s software products who has signed Peregrine’s Software License.Agreement
and has been designated as a beneficiary of the Documentation.
(b) Upon receipt of a new revision, NSD agrees to return to Peregrine all such
- .. Documentationom_~~e~i~us-re-~i~~~.s . - . . . . -..._ __ . . .. . -. "
(c) NSD shall acknowledge receipt of all revisions of and additions to the
Documentation by sending written acknowledgment thereof to Peregrine and the applicable
Registered Licensee(s) under Exhibit E herein.
3. STORAGE AND SECURITY
(a) NSD shall act as custodian of the Docurnentation until the escrow is
terminated pursuant to Section IO of this Agreement. NSD shall establish, underits control, a
secure receptacle for the purpose of storing the Documentation.
(b). The Documentation shall remain the exclusive property of Peregrine.
(c) NSD shall not divulge, disclose, or otherwise make available the
Documentation to any parties other than those persons duly authorized in writing by a
competent officer of Peregrine, except as provided in this Agreement.
(cf) NSD shall not permit any person access to the Documentation except as may
be necessary for NSDs authorized representatives to perform under this Agreement.
(e) Access to the Docurnentation shall not be granted without compliance with all
security and identification procedures instituted by NSD.
(0 NSD shall have no obligation or responsibility to Verify or determine that the
Documentation does, in fad, consist of those items which Peregrine is obligated to deliver
under any agreement,. and NSD shall bear no responsibility whatsoever to determine the
existence, relevance, completeness, currency, or accuracy of the Documentation.
(9) NSDS sole responsibility shall be to accept, store, and deliver the
Documentation in accordance with the terms and conditions of this Agreement.
(h) In the event the Documentation shall be attached, garnished or levied upon
pursuant to an order by a court of competent jurisdiction, or the delivery thereof shall be stayed
or enjoined by an order of said court, or any other order, judgment, or decree shall be made or
entered by the court affecting the Documentation or any part thereof, NSD shafl comply with all
such orders, judgments, or decrees so entered or issued by the court provided (i) NSD shafl not
release the Documentation without first supplying written notice to Peregrine thereby giving
Peregrine the opportuntty to appeal release of the Documentation to the applicable court; and
(ii) such written notice by NSD shall be submitted to Peregrine within forty eight (48) hours after
actual notice of the order or judgement has been received by NSD. Release of the
Documentation in accordance with this Subsection 3(h) shall not constitute a violation or
infringement upon any of Peregrine's trade secret, patent or other intellectual property rights.
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4. REGISTRATION.OF LICENSEES
such Licensee(s) execute a Licensee Registration Agreement, in the form attached as Exhibit C
herein. The Licensee Registration Agreement wili.spectfy the release .terms under which the
Licensee may submit a claim for the Docum,entation. This Licensee Registration Agreement
wilf also specify the product names and deposit account number(s) which that particular
Licensee has rights to under its current License Agreement. This portion of the Licensee
Registration Agreement may be updated from time to time by Peregrine (either adding or
removing Deposit Accounts) by providing NSD with written notice. NSD will acknowledge the
receipt of the Licensee Registration Agreement to the Licensee, with a copy to Peregrine,
recognizing the Licensee's participation in the Deposit Accounts for the specified products,
listed by Item number, if applicable.
5. RELEASE OF DOCUMENTATION
(a) Upon the occurrence of any the event(s) defined in Peregrine's SofMare
License Agreement (section,entitled "Source Code") with Licensee, any registered Licensee
may notify NSD in writing as to such event referencing the Deposit Account(s) affected by said
event (the "Notice"), and shall simultaneously provide a copy of any such Notice to Peregrine.
Such notice must be a notarized affidavit executed by an official of Licensee stating that events
under the Source Code Section of the license agreement have occurred. Upon receipt of such
Notice, NSD will send a confirming copy of said Notice to Peregrine within five (5) business
days of its receipt of the Notice informing Peregrine of the filing of an event. Unless Peregrine
shall have provided Contrary Instructions, as defined below, to NSD within thirty (30) business
days following NSD's written notification to Peregrine that NSD has received Licensee's Notice,
NSD shall deliver a copy of the Documentation then in escrow to such Licensee; provided,
however, that NSD shall be under no obligation to deliver a copy of such Documentation untit
such Licensee has first paid to NSD the cost and expenses of repr0ductio.n and delivery of the
Documentation. Such delivery to Licensee shall terminate all duties and obligations of NSD to
that Licensee and to Peregrine with respect to Licensee and to the copy of the Documentation
delivered to that Licensee.
(b) "Contrary Instructions" for the purposes of this Agreement means a notarized
affidavit executed by an official .of Peregrine stating that the event(s) specified in the Licensee's
Notice have not occurred or have been cured.
(c) Upon timely receipt of such Contrary tnstructions, NSD shall not release a
copy of the Documentation then in escrow, but shall continue to store the Docurnentation until
otherwise dirpcted by the Licensee and Peregrine jointly, or until resolution of the dispute
pursuant to Section 6 of this Agreement.
(d) NSD shall be entitled to receive payment from Licensee for costs, fees, and
expenses due it, prior to any release of a copy of the Documentation.
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6. DISPUTE RESOLUTION (Peregrine and Licensee) "_ -
In the event of any .dispute between Peregrine and ticensee regarding the
release of the Documentation under Section 5 herein, such disputes, litigation, or other
proceeding arising from or related to said dispute shall be resolved subject to the exclusive
jurisdiction of the applicable court located in San Diego County, State of California,. The party
prevailing in any adion or proceeding between the parties arising from this Agreement shall be
entitled to recover its reasonable attorneys' fees and expenses in addition to costs of suit and
such other recovery and refief as may be authorized by law. NSD shall comply with the final
ruling rendered by the court but further agrees not intervene in any litigation or proceeding
unless requested in writing by Peregrine.
7. INDEMN IFlCATlON
Peregrine agrees to defend and indemnify NSD and hold NSD harmless from
and against any claim, action, loss, cost, liability, or expense (including reasonable counsel
fees) arising out of or relating to adions taken in good faith by NSD pursuant to this Agreement
(collectively, "Claims"), except to the extent such Claim is based on NSD's gross negligence,
wiltful misconduct, or material breach of its obligations under this Agreement.
8. GOOD FAITH RELIANCE
Provided the instruments presented comply with the requirements of this
Agreement, NSD may rely and act upon any instruction, instrument, or signature reasonably
believed by NSD in good faith to be genuine, and may assume that any person purporting to
give any writing, notice, advice, or instruction in connection with or relating to this Agreement
has been duty authorized to do so.
9. TERMINATION
(a) Peregrine may terminate this Agreement upon sixty days prior written notice
to NSD.
(b) NSD reserves the right to resign as escrow agent upon .sixty days prior
written notice to Peregrine and all Licensees. Upon resignation, NSD shall return all the
Documentation then in NSD's possession to Peregrine provided Peregrine has made payment for fees and costs owed NSD through the date of resignation, on a prorata basis
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(c) In the event that the sixty day notide period in paragraph 1O(b) elapses f
without NSD having received payment of the fees due, NSD shall then have the option to
terminate the Agreement and to destroy all escrowed Docurnentation, provided NSD provides
written notice to Peregrine of such termination and destruction of Documentation within five
days following such destruction of the Documentation.
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10. FEES
- ___ (a} In consideration of performing its functions aS eSCE"@%ii"- compensated by Peregrine as set forth in Exhibit D. The fees set forth in Exhibit D will be billed
periodically by NSD to Peregrine.
(b) The fees set forth in Exhibit D are for NSDs ordinary services as escrow
agent as set forth in this Agreement. In the event NSD is required to perform additional or
extraordinary services which are not set forth this Agreement and are requested by Peregrine in
writing, including intervention in any litigation or proceeding, NSD shall be reimbursed for out-of-
pocket costs incurred, including reasonable attorneys' fees.
1 1. ENTIRE AGREEMEM
This Agreement, including the exhibits hereto, constitutes the entire agreement
between the parties regarding the subject matter hereof, and supersedes all previous
agreements, either oral or written, between the parties.
12. NOTICE
All notices required or permitted by this Agreement shall be sufficiently sewed by
mailing the same by certified or registered mail. return receipt requested, to the Parties at their
respective address as foliows:
(a) BRAMBLES NSD, INC.
2109 Bering Drive
San Jose, CA 95131-2014
Am: Escrow Officer
Phone: (408) 453-2753
Fax: (408) 441-6826
(b) PEREGRINE SYSTEMS,
12670 High Bluff Drive
San Diego, CA 92130
Attn: General Counsel
Phone: (619) 481-5000
Fax: (61 9) 794-6033
13. COUNTERPARTS
INC.
z
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, and all of which taken together shall constitute one and the same
instrument.
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14. GOVERNING LAW
. . "- ~. ." . - .
This Agreement shall
State of California.
. - . ". . . . . . .. "_
be governed by and construed according to the laws of the .. ..
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15. SEVERABILITY
In the event any of the provisions of this Agreement shall be held by a court of
competent jurisdiction to be contrary to any state or federal law, the remaining pmvisions Of this
Agreement wlf remain in full force and effect.
16. HEADINGS
The section headings in this Agreement do not form a part of it, but are for
convenience only and shall not limit or affect the meaning of the provisions.
PEREGRINE SYSTEMS, INC. BRAMBLES NSD, INC.
6 dbnmbIu d 4
ATTACHMENT 1
For purposes of the Licensee Registration Agreement, an Event of Default shall include the following:
0 Peregrine is liquidated or dissolved and Peregrine’s obligations under the Agreement are not assumed
by a successor or assignee, or
0 Peregrine generally discontinues support for a product and a replacement product which substantially
performs the same function is not available from Peregrine.
Upon the occurrence of an Event of Default, Licensee shall be entitled to request a copy of the source code for
the products identified under the Deposit Accounts listed in the Licensee Registration Agreement by following
the procedure set forth in the Licensee Registration Agreement. Upon the release of source code to Licensee,
Licensee shall be deemed to have a limited, nonexclusive, nontransferable, fully paid license to use the source
code for the remainder of the term of each applicable license as set forth in the Agreement; provided that
Licensee is not then in default of any of its obligations under the Agreement and that Licensee is currently
enrolled in Maintenance for the applicable product. Licensee understands and agrees that any source code
released to Licensee shall not be used by Licensee or its agents for any purpose other than the internal support
and maintenance of the products and will not be used or disclosed to any person for any other purpose
whatsoever. Licensee is strictly prohibited from duplicating, selling, licensing, or in any way marketing source
code. Licensee further understands and agrees that all costs associated with adding Licensee’s name as a
beneficiary to the escrow account and the annual fees to maintain Licensee as a beneficiary shall be paid by
Licensee upon receipt of Peregrine or the third party escrow agents invoice.
EXHIBIT C
1“Licensee Reaistration Aqreement”)
ESCROW # 1217-7
The undersigned (“Licensee”), having entered into a Software License Agreement (the “Agreement”) with
Peregrine Systems, Inc. or a Peregrine Affiliate (“Peregrine”), hereby requests to be named a beneficiary to the
Software Escrow Agreement between Peregrine Systems, Inc. and Brambles NSD, Inc. (dba Recall Total
Information Management) (“Brambles”) dated April 1, 1997 (“Escrow Agreement”). For purposes of this
Licensee Registration Agreement, “Affiliate” shall mean a company/corporation, partnership, joint venture, or
other entity in which Peregrine Systems, Inc. directly or indirectly controls at least fifty percent (50%) of the
profits or voting rights. Licensee acknowledges receipt of a copy of, and agrees to be bound by all applicable
terms of the Escrow Agreement.
Upon the occurrence of an Event of Default as defined in Attachment 1 hereto, Licensee may (i) notify
Brambles and Peregrine in writing as to such event (“Notice”), and (ii) provide Brambles with the list of Deposit
Accounts (referenced below) to which Licensee has rights under the Agreement.
Notices shall be sufficiently served by mailing the same by certified or registered mail, return receipt requested,
to the parties at the following addresses:
Brambles NSD, Inc.
dba Recall Total Information Management
21 09 Bering Drive
San Jose, CA 95131-2014
Attn: Escrow Officer
Phone: (408) 453-2753
Peregrine Systems, Inc.
361 1 Valley Centre Drive
San Diego, CA 92130 Attn: General Counsel
Phone: (858) 481-5000
Licensee agrees to defend and indemnify Brambles and hold Brambles harmless from and against any claim,
action, loss, cost, liability, or expense (including reasonable counsel fees) arising out of or relating to this
Licensee Registration Agreement (collectively “Claims”), except to the extent such Claim is based on the gross
negligence or willful misconduct of Brambles.
Licensee requests to be registered as a beneficiary for the Deposit Accounts designated below:
Deposit Account # Product Name
029 IND
Any notice to Licensee with respect to this Licensee Registration Agreement or the Escrow Agreement may be
sent to the address shown below.
Address: 1635 Faraday Avenue
Carlsbad, Ca. 92008
Attn: Lee Rautenkranz
Title: &&,
Date: MAR 2 4 2003