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HomeMy WebLinkAboutRecall Total Information Management; 2003-03-24;TOTAL INFORMATION MANAGEMENT ” ~ ~ . -~ ~ - ENROLLING A LICENSEE OF RECORD The Licensor will provide a potential Licensee of Record with a copy of the Escrow Agrement and a Licensee Registration Agreement (‘em’) 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 B (:Licensees”) and Exhibit D (Fee Schedule”) as these forms are confidential between the Licensor and Recall.] Additionally, on this LRA the Licensor will specify 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 helpful 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 discrepancie~ between the two. This generally happens when paperwork is not submitted properly, or if a Licensee terminates its agreement with the Licensor and the Escrow Agent is not informed. Upon receipt of the LRA, the Escrow Agent will send an acknowledgement letter to the Licensee, with a copy to the Licensor, co-g 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 appro~ate 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 2109 BERING DRIVE TEL 14081 453-2753 SAN JOSE, CA 95131 FAX 14081 441-6826 A DlYlSlON DT BRAMSLfS USA. INC. NORTH AMERICA. EUROPE. AUSTRALASIA. ASIA ... .. Escrow # 121 7-7 SOFTWARE ESCROW AGREEMENT BRAMBLES NSD, INC. This Software 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, Inc., a Delaware Corporation ("NSD'), as escrow agent. RECITALS A. Peregrine desires to establish a software escrow account: and E. NSD desires to provide the software escrow account to Peregrine. NOW, THEREFORE, in consideration of the promises and mutual covenants contained acknowledged, the parties agree as follows: herein, and for other good and valuable consideration, receipt of which is hereby 1. DEPOSIT OF WCUMENTATlON 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. including 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 products-set 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 productsj identified in Exhibit 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. REVISIONS 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'defined 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. 1 (b) Upon receipt of a new revision, NSD agrees to return to Peregrine all such ~. Documentationfrompreviou~s~re~i~~~.~~s..~~ .~ .. ~ ~~ (c) NSD shall acknowledge receipt of all revisions of and additions to the Docurnentation by sending written acknowledgment thereof to Peregrine and the applicable Registered Licensee(s) under Exhibit B herein. 3. STORAGE AND SECURITY (a) NSD shall act as custodian of the Documentation until the escrow is terminated pursuant to Section 10 of this Agreement. NSD shall establish, under.its control. a secure receptacle for the purpose of storing the Documentation. .. (b). The Documentation shall remain the exclusive properly 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. (d) NSD shall not permit any person access lo the Documentation except as may be necessary for NSDs authorized representatives to perform under this Agreement. (e) Access to the Documentation shall not be granted without compliance with all security and identification procedures instituted by NSD. (9 NSD shall have no obligation or responsibility to verify or determine that the Documentation does, in fact, 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) NSD’s 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 shall comply with all such orders, judgments, or decrees so entered or issued by the court provided (i) NSD shall not release the Documentation without first supplying written notice to Peregrine thereby giving Peregrine the opportunty 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. 2 4. REGISTRATION .OF LICENSEES - .. reregnne~ol~d~~ignat~d~~~~~~a- i3-fTkmfhftw such Licensee(s) execute a Licensee Registration Agreement, in the form attached as Exhibit C herein. The Licensee Registration Agreement wili specify the release 'terms under which the ~ will also specify the product names and deposit account number(s) which that particular Licensee may submit a claim for the Documentation. This Licensee Registration Agreement 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 producff, listed by Item number, if applicable. 5. RELEASE OF DOCUMENTATION License Agreement (section.entitled 'Source Code") with Licensee, any registered Licensee (a) Upon the occurrence of any the event@) defined in Peregrine's Soflware may notii 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 he (5) business days of its receipt of the Notice informing Peregrine of the filing of an event. Unless Peregrine days following NSDs written notification to Peregrine that NSD has receivd Licensee's Notice, shall have provided Contrary Instructions, as defined below, to NSD within thirty (30) business 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 Until such Licensee has first paid to NSD the cost and expenses of reproduction 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. affidavit executed by an official ,of Peregrine stating that the event(s) specified in the Licensee's (b) "Contrary Instructions" for the purposes of this Agreement means a notarized Notice have not occurred or have been cured. (c) Upon timely receipt of such Contrary Instructions, NSD shall not release a copy of the Documentation then in escrow, but shall continue to store the Documentation until otherwise dimcted by the Licensee and Peregrine jointly, or until resolution of the dispute pursuant to Section 6 of this Agreement. (d) NSD shall be entided to receive payment from Licensee for costs. few. and expenses due it, prior to any release of a copy of the Documentation. 3 6. DISPUTE RESOLUTION (Peregrine and Licensee) - In the event of any .dispute between Peregrine and Licensee regarding the release of the Documentation under Section 5 herein, such disputes, liigation. 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 action 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 relief 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. INDEMNIFICATION 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 actions 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, willful misconduct, or material breach of its obligations under this Agreement. 8. GOOD FAITH RELIANCE Provided the instruments presented comply with the tequirements 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 duly 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. Upan 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 pmrata basis (c) In the event that the sixty day notie period in paragraph 1O(b) elapses without NSD having received payment of the fees due, NSD shall then have the option to terminate the Agreement and to destroy all escrowed Documentation, provided NSD provides written notice to Peregrine of such termination and destruction of Documentation within five days following such destruction of the Documentation. 10. FEES " . ". ~ "_ " . __ (a) In consideration of performing its fxtons as escrow agent, NsDrs"ty-------- compensated by Peregrine as set forth in Exhibit 0. 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 NSD's 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 outof- pocket costs incurred, including reasonable attorneys' fees. 11. ENTIRE AGREEMENT 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 mailing the same by certid or registered mail, return receipt requested, to the parties at their All notices required or permitted by this Agreement shall be suffidently sewed by respective address as follows: (a) BRAMBLES NSD, INC. 21 09 Bering Drive San Jose. CA 95131-2014 ATTN: Escrow Officer Phone: (408) 453-2753 Fax: (408) 441 a26 (b) PEREGRINE SYSTEMS, INC. 12670 Huh Bluff Drive San Diego, CA 92130 Attn: General Counsel Phone: (619) 481-5000 Fax: (61 9) 794-6033 13. COUNTERPARTS 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 constituie one and the same instrument. 5 14. GOVERNING LAW ~ __~__~ . . .. . . ... "" This Agreement shall be governed by and construed according to the laws of the State of California. .. .. 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 provisions of this Agreement will 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. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. PEREGRINE SYSTEMS, INC. BRAMBLES NSD, INC. 6 ATTACHMENT 1 For purposes of the Licensee Registration Agreement, an Event of Default shall include the following: Peregrine is liquidated or dissolved and Peregrine's obligations under the Agreement are not assumed by a successor or assignee, or 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 enrolled in Maintenance for the applicable product. Licensee understands and agrees that any source code Licensee is not then in default of any of its obligations under the Agreement and that Licensee is currently 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 f'Licensee Reaistration Aareement") ESCROW # 1217-7 The undersigned ("Licensee"), having entered into a Software License Agreement (the "Agreement") with Peregrine Systems, Inc. or a Peregrine Affliate ("Peregrine"), hereby requests to be named a beneficiary to the Soflware Escrow Agreement between Peregrine Systems, Inc. and Brambles NSD, Inc. (dba Recall Total Licensee Registration Agreement, "Affiliate" shall mean a companylcorporation, partnership, joint venture, or Information Management) ("Brambles") dated April 1, 1997 ("Escrow Agreement"). For purposes of this other entity in which Peregrine Systems, Inc. directly or indirectly controls at least fifly percent (50%) of the terms of the Escrow Agreement. profits or voting rights. Licensee acknowledges receipt of a copy of, and agrees to be bound by all applicable 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: dba Recall Total Information Management Brambles NSD, Inc. 2109 Bering Drive San Jose, CA 95131-2014 Ann: Escrow Offcer Phone: (408) 453-2753 361 1 Valley Centre Drive Peregrine Systems, Inc. Ann: General Counsel San Diego, CA 92130 Phone: (858) 481-5000 action, loss, cost, liability, or expense (including reasonable counsel fees) arising out of or relating to this Licensee agrees to defend and indemnify Brambles and hold Brambles harmless from and against any claim, 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