Exhibit 10.1


 


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COMMISSION PURSUANT TO RULE 24b 2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 


FIRST
AMENDED AND RESTATED SOFTWARE DISTRIBUTION LICENSE AGREEMENT


 


THIS FIRST AMENDED AND RESTATED SOFTWARE
DISTRIBUTION LICENSE AGREEMENT (this “Agreement”) is made as of the 1st day of January, 2005 (the “Effective
Date”), by and between Microsoft Corporation with its principal place of
business at One Microsoft Way, Redmond, Washington 98052 (“PlaceWare”)
and EZENIA! INC. a Delaware
corporation, with its principal place of business at 154 Middlesex Turnpike,
Burlington, MA 01803 (“Company”).


 


BACKGROUND


 


A.                                    PlaceWare
(then acting as PlaceWare, Inc.) and Company entered into a Software
Distribution License Agreement on March 26, 2003 (“Prior Agreement”) and
such Prior Agreement (as extended) will expire on December 31, 2004.  PlaceWare and Company now wish to amend,
restate and extend the term of the Prior Agreement, as set forth in this
Agreement.


 


B.                                    PlaceWare
has developed proprietary software that enables web conferencing products to
function;


 


C.                                    Company
desires to integrate PlaceWare’s proprietary software with Company’s
proprietary software in order to create Company’s LaunchPad and InfoWorkSpace
products;


 


D.                                    PlaceWare
desires to permit Company to integrate PlaceWare’s proprietary software into
LaunchPad and InfoWorkSpace and to market and distribute such materials as so
integrated to End Users (defined below) and to permit internal use by Company’s
employees.


 


E.                                     Company
recognizes the proprietary software licensed by Placeware under this agreement
in Placeware’s sole discretion may not be made available for integration with
Company’s products following termination of this agreement.  Company agrees to use commercially reasonable
efforts to integrate successor software offering made available for licensing
by Placeware into Company’s then shipping products.


 


NOW,
THEREFORE, the parties agree as follows:


 










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OF 1934, AS AMENDED


 





















 


AGREEMENT


 


1.                                      DEFINITIONS.  As used in this Agreement:


 


1.1                               “Commercial” means, with respect
to distribution of the Licensed Software, the market segment of End Users who
are not considered to be in the Government User market segments.


 


1.2                               “Client Site Audio” means PlaceWare’s
proprietary software which enables audio conference calls [***].


 


1.3                               “Conference Center” means
PlaceWare’s proprietary software which enables web conferencing and real time
collaboration via the web among End Users.


 


1.4                               “Quarter” means a calendar
quarter.


 


1.5                               “Distributor” means a third party
appointed by Company in accordance with the terms of this Agreement and
pursuant to a Distributor Agreement to distribute (directly or through one or
more tiers of subdistributors) the Licensed Software, solely as integrated into
InfoWorkSpace and LaunchPad, to End Users.


 


1.6                               “Distributor Agreement” means a
written agreement between Company and a Distributor (or between a Distributor
and its subdistributor) covering the distribution of the Licensed Software,
solely as integrated into InfoWorkSpace and LaunchPad, to End Users,


 


1.7                               “End User” means (i) a
Government User; or (ii) a Commercial person, company, or other legal
entity; in each case licensed to use the Licensed Software pursuant to an End
User License Agreement as contemplated under this Agreement, solely as
integrated into InfoWorkSpace and LaunchPad, for its own internal purposes and
not for distribution to, or use on behalf of, others.


 


1.8                               “End User License Agreement or EULA” means
the license agreement for InfoWorkSpace or LaunchPad, between Company and each
End User.


 


1.9                               “Executable Code” means the fully
compiled version of a software program that can be executed by a computer and
used by an end user without further compilation.


 


1.10                        “Government User” means, with
respect to distribution of the Licensed Software, the market segment of any
unit, agency, department, political subdivision, authority or instrumentality
of a local, state or federal government in the U.S. or a foreign country or
territory.  This definition applies to
contractors conducting work for the internal use of the foregoing entities.


 


1.11                        “Fully Qualified Domain Name”
means, the full name of a system, consisting of its local hostname and its
domain name, including a top-level domain, which is sufficient to determine a
unique Internet address for any host on the Internet.


 










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PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
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1.12                        “InfoWorkSpace” means Company’s
proprietary software known as “InfoWorkSpace,” into which the Licensed Software
is integrated, [***]that provides real time collaboration during on line
meetings[***]and such other functionalities as InfoWorkSpace may incorporate
from time to time.


 


1.13                        “Intellectual Property Rights”
means any and all now known or hereafter existing (a) rights associated
with works of authorship throughout the world, including exclusive exploitation
rights, copyrights, moral rights, and mask works; (b) trademark and trade
name rights; (c) trade secret rights; (d) patents, designs,
algorithms, and other industrial property rights; (e) other intellectual
property and proprietary rights of every kind and nature throughout the
universe, whether arising by operation of law, by contract or license, or
otherwise; and (f) all registrations, applications, renewals, extensions,
combinations, divisions, or reissues of the foregoing.


 


1.14                        “LaunchPad” means Company’s
proprietary software product known as “LaunchPad”, into which the Licensed
Software is integrated,which has instant messaging capabilities, the ability to
determine when a user is online or offline, one-on-one and one to many audio
and video and chat functionality, the ability to keep a “buddy list” for each
user, a white board for exchange of graphics, and the ability to store user
data [***]


 


1.15                        “License Key” means an encrypted
character string that is provided by PlaceWare to Company to initialize or
otherwise enable use of the Licensed Software.


 


1.16                        “Licensed Software” means the
Executable Code version of PlaceWare’s proprietary software program or programs
described in Exhibit A.


 


1.17                        “PlaceServer” means PlaceWare’s
proprietary application server software, as described in Exhibit A, that provides an
environment for the deployment of highly interactive multi-user and real time
collaborative applications.


 


1.18                        “PlaceWare Marks” means the
trademarks, service marks and trade names of PlaceWare listed in Exhibit B (as such list may be updated
from time to time by PlaceWare upon notice to Company).


 


1.19                        “Source Code” means the
human-readable version of a software program that can be compiled into
Executable Code.


 


1.20                        “Term” means the period defined in
Section 12.1.


 


1.21                        “User Documentation” means any
user documentation furnished to Company by PlaceWare for distribution along
with the Licensed Software to End Users.


 


1.22                        “Web Conferencing Competitors”
means those entities that provide web-conferencing software and services that are
competitive with those provided by PlaceWare,


 










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COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


which are set forth in Exhibit H, which may be amended from
time to time in writing upon mutual agreement by the parties.


 


2.                                      Licenses.


 


2.1                               Licensed Software and User Documentation.  Subject to the terms and conditions of this
Agreement, including the pricing terms set forth in Exhibit E, as modified from time to time pursuant hereto,
PlaceWare grants to Company, during the Term, a non-exclusive,
non-transferable, revocable (in accordance with Section 12.3),
royalty-bearing, worldwide license under all of PlaceWare’s Intellectual
Property Rights  to:


 


(a)                                  integrate
the Licensed Software into LaunchPad and/or InfoWorkSpace, including making
such reproductions of and modifications to the Licensed Software as reasonably
necessary to effect such integration; and


 


(b)                                  reproduce
the Licensed Software, for purposes of supporting, and integrating the Licensed
Software into LaunchPad and InfoWorkSpace as permitted under this Section 2;  and


 


(c)                                  distribute
(subject to Section 2.2(b)), directly or through single or multiple tiers
of Distributors, the Licensed Software (including copies made pursuant to Section 2.1(b) above),
solely as integrated into LaunchPad and/or InfoWorkSpace, to End Users pursuant
to an End User License Agreement, and to permit and license such End Users to
execute and use the Licensed Software as so integrated; and


 


(d)                                  reproduce
and modify the User Documentation in order to incorporate the User
Documentation (or portions thereof) into Company’s user documentation for
LaunchPad or InfoWorkSpace, and distribute the User Documentation (or portions
thereof) as so incorporated to End Users; and


 


(e)                                  execute,
perform and display the Licensed Software, solely as integrated into
InfoWorkSpace and/or LaunchPad, solely for the purposes of conducting
demonstrations for potential End Users, provided that Company may use no more
than twenty five (25) copies of the Licensed Software (whether integrated into
InfoWorkSpace or LaunchPad) for demonstration purposes, of which twenty-four
(24) copies may support no more than ten (10) concurrent users and one
copy may support up to one hundred (100) concurrent users; and


 


(f)                                    reproduce,
execute, perform and display the Licensed Software to support End Users as set
forth in Section 5; and


 


(g)                                 execute,
perform and display the Licensed Software, solely as integrated into
InfoWorkSpace and/or LaunchPad, for Company’s internal business and development
purposes, provided that, all users are employees or contractors of Company and
no more than an aggregate of five hundred (500) concurrent users may use
LaunchPad and InfoWorkSpace combined (e.g., Company may have three hundred
(300) concurrent users using LaunchPad and


 










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two hundred (200) concurrent users using
InfoWorkSpace, or 499 concurrent users using LaunchPad and 1 user using
InfoWorkSpace).


 


2.2                               License Restrictions.


 


(a)                                  General. 
Company acknowledges that the Licensed Software and its
structure, organization, and Source Code constitute valuable trade secrets of
PlaceWare and its suppliers. 
Accordingly, except as expressly allowed under Section 2.1 (if at
all), Company agrees not to (a) modify, adapt, alter, translate, or create
derivative works from the Licensed Software; (b) integrate the Licensed
Software into other software; (c) distribute, sublicense, lease, rent,
loan, or otherwise transfer the Licensed Software to any third party; (d) make
the Licensed Software available to any third party as part of any time-sharing,
ASP, service bureau or similar arrangement (notwithstanding this restriction
Company may use the PlaceServer component of the Licensed Software as part of
such an arrangement); or (e) reverse engineer, decompile, disassemble, or
otherwise attempt to derive the Source Code for the Licensed Software.  Company must reproduce, and
must not remove, alter, or obscure in any way all proprietary rights notices
(including copyright notices) of PlaceWare or its suppliers on or within the
Licensed Software and the User Documentation (or portions thereof) and on all
copies thereof.


 


(b)                                  Distribution.  Company acknowledges and agrees that as long
as the Licensed Software is integrated into InfoWorksSpace an/or
LaunchPad:  (i) during the Term
Company is authorized to provide the Licensed Software in Executable Code as
incorporated into InfoWorkSpace and LaunchPad to End Users pursuant to End User
License Agreements, as set forth in Section 2.5; and (ii) in no event
will Company provide, after the Effective Date, 
perpetual or irrevocable licenses to use InfoWorkSpace and/or LaunchPad
to any End Users, provided that
any perpetual or irrevocable licenses granted to End Users to use InfoWorkSpace
and/or LaunchPad prior to the Effective Date, in accordance with the terms of
the Prior Agreement, shall survive as provided therein.


 


If Company breaches any of its obligations
under this Section 2.2(b), PlaceWare may terminate this Agreement pursuant
to Section 12.2(a).


 


(c)                                  Company
may not use the Licensed Software to provide[***] to its customers,
distributors, resellers or any other third party, notwithstanding any
provisions to the contrary in this Agreement or in the Developer’s Kit License
Agreement between the parties dated March 26, 2001.


 


2.3                               Trademarks.  Subject to the terms and conditions of this
Agreement, PlaceWare grants to Company a non-exclusive, non-transferable),
revocable, royalty-free license (without the right to grant sublicenses) to use
the PlaceWare Marks solely as incorporated into software components provided to
Company by PlaceWare and solely in connection with distributing


 










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SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED


 





















 


LaunchPad and InfoWorkSpace.  Company will obtain prior written approval
from PlaceWare, not to be unreasonably withheld or delayed, each time it
incorporates any PlaceWare Marks into a version or release of LaunchPad or
InfoWorkSpace (e.g., an approval from PlaceWare of the use of the PlaceWare
Marks in LaunchPad version 2.1 will apply to all copies of LaunchPad version
2.1, but will not apply to LaunchPad version 2.2).  PlaceWare grants no rights in the PlaceWare
Marks hereunder other than those expressly granted in this Section 2.3.  Company acknowledges PlaceWare’s exclusive
ownership of the PlaceWare Marks. 
Company agrees not to take any action inconsistent with such ownership
and to cooperate, at PlaceWare’s reasonable request and at PlaceWare’s expense,
in any action (including the conduct of legal proceedings) which PlaceWare
deems necessary or desirable to establish or preserve PlaceWare’s exclusive
rights in and to the PlaceWare Marks. 
Company will not adopt, use, or attempt to register any trademarks or
trade names that are confusingly similar to the PlaceWare Marks or in such a
way as to create combination marks with the PlaceWare Marks.  Company will provide PlaceWare with samples
of all products and materials that contain the PlaceWare Marks prior to their
public use, distribution, or display for PlaceWare’s quality assurance purposes
and will obtain PlaceWare’s written approval before such use, distribution, or
display, which approval will not be unreasonably withheld or delayed, and in
all cases, a decision will be communicated to Company within thirty (30) days
after Company’s request.  At PlaceWare’s
request and option, Company will either discontinue or make commercially
reasonable efforts to modify any permitted use of the PlaceWare Marks.


 


2.4                               Ownership of Licensed Software.  The Licensed Software and User Documentation,
and all worldwide Intellectual Property Rights therein, are the exclusive
property of PlaceWare and its suppliers. All rights in and to the Licensed
Software not expressly granted to Company in this Agreement are reserved by
PlaceWare and its suppliers.  Nothing in
this Agreement will be deemed to grant, by implication, estoppel, or otherwise,
a license under any of PlaceWare’s existing or future patents; PlaceWare agrees
that it will not assert any of its rights under such patents against Company or
its Distributors based upon the use, integration, distribution, and sublicensing
by Company or its Distributors of the Licensed Software as permitted by this
Agreement or against End Users based upon their use of the Licensed Software
pursuant to and in compliance with an End User License Agreement.


 


2.5                               End User License Agreements.


 


(a)                                  Any
use of the Licensed Software by End Users must be subject to a binding End User
License Agreement which is consistent with and no less protective of PlaceWare’s
Intellectual Property Rights than the terms of this Agreement and either: (a) for
any EULA first effective prior to the Effective Date of this Agreement, also
incorporates the minimum end user terms set forth in Exhibit D
of the Prior Agreement ; or  (b) for
any EULA first effective after the Effective Date of this Agreement, also incorporates
the minimum end user terms set forth in Exhibit D
hereto.  An End User License Agreement may be in the
form of a “shrink-wrap” or electronic “click-through” agreement only if the End
User is required to take an affirmative act that manifests the End User’s
intent and agreement to abide by the terms of the EULA.


 










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SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
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(b)                                  Company
will enforce each EULA with at least the same degree of diligence that Company
uses to enforce similar agreements for its own products or other software
products that it distributes, but in no event shall Company deploy less than
reasonable efforts.  Company will
immediately notify PlaceWare if Company becomes aware of any breach of any EUA
relating to LaunchPad, InfoWorksSpace, or the Licensed Software.  Upon the termination of any EULA, Company
will use reasonable efforts to ensure that End User has deleted and/or returned
all copies of LaunchPad, InfoWorksSpace, or the Licensed Software and User
Documentation in such End User’s possession or control to PlaceWare.


 


(c)                                  Unless
otherwise specifically agreed by Company and PlaceWare with respect to a
particular End User, in a written agreement executed by both parties, the
duration of the term of all End User License Agreements must not exceed one (1) year
and may not be automatically renewable.


 


2.6                               Distributors.


 


(a)                                  PlaceWare
grants Company, solely during the Term, the right to appoint Distributors to
distribute the Licensed Software, solely as integrated into InfoWorkSpace and
LaunchPad, to End Users or to other Distributors; provided that each
Distributor is made subject to a written, mutually executed Distributor
Agreement. Company shall be solely responsible for ensuring that its
Distributors comply with the terms of their respective Distributor Agreements.  Each Distributor Agreement will be consistent
with, and no less protective of PlaceWare’s Intellectual Property Rights than
the terms of this Agreement, and will either: (a) for any Distributor
Agreement executed prior to the Effective Date of this Agreement, also
incorporate the minimum distributor terms set forth in Exhibit D
of the Prior Agreement; or (b) for any Distributor Agreement executed
after the Effective Date of this Agreement, also incorporate the minimum
distributor terms set forth in Exhibit D.


 


Each Distributor Agreement shall provide that
each copy of the Licensed Software (as integrated into InfoWorkSpace or
LaunchPad) and User Documentation distributed to End Users is distributed
pursuant to an End User License Agreement. 
Any Distributor who seeks to make use of the Licensed Software (as
integrated into InfoWorkSpace or LaunchPad) for its own internal business
purposes must do so under the terms of a EULA. 
Company will provide PlaceWare for its approval a copy of the form of
Distributor Agreement prior to executing any Distributor Agreements and will
provide PlaceWare for its approval a copy of any changes to the form of
Distributor Agreement before executing any Distributor Agreements that include
such changes.


 


(b)                                  Company
will enforce each Distributor Agreement with at least the same degree of
diligence that Company uses to enforce similar agreements for its own products
or other software products that it distributes, but in no event shall Company
deploy less than reasonable efforts. 
Company shall inform PlaceWare promptly of any known breach of any  Distributor Agreement.


 










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3.                                      ORDER PROCEDURE.


 


3.1                               Purchase Orders.  Company will submit purchase orders in
writing, or by facsimile transmission or any other manner which is acceptable
to PlaceWare for License Keys in accordance with PlaceWare’s order processing
procedures.  Each order will refer to
this Agreement and specify (i) the number of License Keys Company
requests; (ii) the number of [***] who will be using each copy of the
Licensed Software (as integrated into InfoWorkSpace or LaunchPad) ordered; (iii) the
license fee associated with each License Key ordered, given the number of [***]
and the applicable market segment of the End User (i.e., Government User or
Commercial), provided that if the
Company is distributing the Licensed Software through a Distributor, the
applicable market segment (for purposes of determining the license fees) for
such Distributor shall be based upon the market segment of the End Users to
whom the Distributor intends to distribute the Licensed Software; (iv) the
name of the End User of the Licensed Software, if available, or if Company is
distributing the Licensed Software (as integrated into InfoWorkSpace or
LaunchPad) through a Distributor, the name of the Distributor, but subject to
any applicable privacy laws; (v) host number, port number, End User
License Agreement start date and expiration date; and (vi) ”ship to”
addresses, including e-mail addresses, for the Licensed Software. PlaceWare
will ship License Keys directly to Company. 
Any terms or conditions on such orders that add to, delete, are
different from, or otherwise purport to alter, modify or amend the terms of
this Agreement shall be null and void and have no force or effect unless
explicitly agreed to in writing by both parties hereto; written acceptance of
an order or delivery of License Keys shall not be deemed to be an acceptance of
such new, additional or different terms.


 


3.2                               Pricing.


 


(a)                                  The
pricing terms set forth in Exhibit E
apply to LaunchPad and InfoWorksSpace as defined herein.  If the changes to the functionality of
LaunchPad cause LaunchPad to violate the LaunchPad Limitations, the pricing set
forth in Exhibit E will no longer apply to
the changed product and PlaceWare hereby reserves the right to change the
license and support pricing applicable to the changed product.  Company will notify PlaceWare in writing if
changes to LaunchPad violate the LaunchPad Limitations before Company releases
the changed products to End Users or its Distributors.  Notwithstanding the foregoing, if changes to
the functionality of LaunchPad cause LaunchPad to violate the LaunchPad
Limitations, Company will be in breach of this Agreement and PlaceWare reserves
the right to pursue all of its available remedies at law and in equity.


 


(b)                                  [Intentionally
omitted]


 


(c)                                  Reduced
OEM Pricing.  If at any time during the
Term Placeware reduces its’ generally applicable OEM published list pricing
terms for Licensed Software to non discounted amounts below the discounted
amounts set forth in Exhibit E, then Placeware shall provide notice to
Company of such pricing terms, and immediately upon the effective date of such


 










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reduced
pricing terms, Exhibit E will be amended to incorporate such reduced
pricing terms on a going forward basis.


 


(d)                                  Activation.  Each copy of the Licensed Software reproduced
and distributed by Company or its Distributors will be inoperable until
activated with a License Key.  License Keys
will be activated when shipped by Company or a Distributor to each applicable
End User.  Company will be entitled to
one License Key for each copy of the Licensed Software (as integrated into
LaunchPad or InfoWorksSpace) that Company distributes (directly or indirectly)
pursuant to this Agreement.  Each copy of
the Licensed Software, whether distributed by Company or any Distributor, may
be distributed only with its own distinct License Key: any single License Key may
be attributed to only one single copy of the Licensed Software and may not be
duplicated or reused; provided that in the event that an End User’s Fully
Qualified Host Domain Name changes, PlaceWare will issue a replacement License
Key to Company for delivery to such End User.


 


3.3                               Acceptance.  License Keys will be deemed accepted upon
delivery to Company and unless defective may not be returned.  PlaceWare’s sole obligation and liability
with respect to defective License Keys is to promptly replace such defective
License Keys with non-defective License Keys.


 


3.4                               Spiked Licenses.  During the Term, Company may order limited
licenses for weekly intervals to allow additional concurrent users to use
copies of the Licensed Software (as integrated into InfoWorkSpace or LaunchPad)
that have previously been licensed to End Users.  Company may order weekly licenses pursuant to
the order procedures in Section 3.1 and the pricing terms set forth in Exhibit E as then applicable.  Such weekly licenses must be ordered in
batches of no less than[***] and must be licensed to End Users for weekly
periods, each of no fewer than [***]. 
Company understands and acknowledges that PlaceWare is making these
licenses available to Company as a special accommodation and therefore Company
agrees not to aggressively market or advertise these limited licenses to End
Users.


 


3.5                               Evaluation
Licenses.  Company may order limited
licenses to allow prospective customers to evaluate the Licensed Software (as
integrated into InfoWorkSpace or LaunchPad) prior to purchasing a license (“Evaluation
Licenses”), for terms of up to[***], solely for the purposes of such customers’
internal testing and evaluation.  Such
Evaluation Licenses:  (i) may be
ordered in batches of not more than[***] per prospective customer, (ii) shall
be free of charge; and (iii) shall not be counted for purposes of
calculating Actual License Fees (as defined in Section 6.1 below).  Company shall provide the Evaluation Licenses
to such prospective customers upon terms and conditions that: (1) are no
less protective of PlaceWare’s Intellectual Property Rights than this Agreement
and the Minimum End User License Agreement Terms set forth in Exhibit D
hereto; and (2) state that the Evaluation Licenses will expire no more
than [***] after such prospective customers’ receipt of the Licensed Software
(as integrated into InfoWorkSpace or LaunchPad), unless such customers purchase
a license to the Licensed


 










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Software prior to the expiration of such
period.  In the event such a prospective
customer wishes to purchase a license to the Licensed Software and become an
End User as defined herein, Company shall place an order for the Licensed
Software as set forth in Section 3.1 hereof.


 


Company acknowledges that its right to order
and offer Evaluation Licenses may not persist for the duration of the Term and is
subject to modification or revocation by Placeware at any time as described in
the following sentence.  Placeware,
acting in its sole discretion, may at any time (i) modify the nature of
the Evaluation Licenses Company may offer to prospective customers on  thirty (30) days written notice; and/or (ii) revoke
Company’s right to offer Evaluation Licenses on forty five (45) days written
notice..


 


4.                                      DELIVERY.  Company acknowledges that it already has possession
of master copies of the Licensed Software and the User Documentation, and that
such copies have been accepted.


 


5.                                      SUPPORT


 


5.1                               Company. [***]


 


5.2                               PlaceWare. [***]


 


6.                                      FEES AND PAYMENT.


 


6.1                               Minimum
Royalty Payment.  During the Initial
Term, Company agrees to pay Placeware a cumulative minimum of [***] U.S.
Dollars ($[***]) (the “First Year Minimum License Fee Payment”), payable as
follows:  During each quarter of the
Initial Term, Company agrees to pay Placeware the prices in respect of Company’s
purchase of the Licensed Software (“Actual License Fees”), as described in Section 2,
on a monthly basis, as such Actual License Fees are calculated in accordance
with Section 6.2.  If, at the end
of:  (i) the first Quarter, Company’s
cumulative Actual License Fees payable during such Quarter are less than
$[***], (ii)  the second Quarter, Company’s cumulative Actual License Fees
payable during the first two Quarters are less than $[***]; and (iii) the
third Quarter, Company’s cumulative Actual License Fees payable during the
first three Quarters are less than $[***], then in each case, Company will, [***].  If at the end of the first year of the Term,
the cumulative Actual License Fees payable during such year are less than the


 










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COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


“First Year Minimum License Fee Payment”, [***]
will be activiated either (a) when the License Keys are distributed to
customers by the Company or a Distributor or (b) at the end of the Initial
Term, which ever comes first.


 


On or about December 27,
2004 Company order $[***] of licenses for its [***] customer.  The $[***] license fee for the [***] licenses
when paid shall be credited toward Company’s first quarter commitment of $[***]
referenced above.  No renewals or
extensions of the above referenced [***] licenses shall be credited towards
Company’s First Year Minimum License Fee Payment for the Initial Term.


 


6.2                               Actual License Fee Calculation.  The Actual License Fee is calculated on [***]
basis as set forth in Exhibit E (which differs depending on the market
segment of the End User  as described in Exhibit E,
provided that if the Company is
distributing the Licensed Software through a Distributor, the applicable market
segment for purposes of determining the Actual License Fee payable in respect
of Licensed Software to be resold by Company to such Distributor shall be based
upon the market segment of the End Users to whom the Distributor intends to
distribute the Licensed Software), and Company shall permit each  End User and its applicable number of [***]
the right to use the Licensed Software as integrated into InfoWorkSpace or
LaunchPad for a period of one (1) year from the date of activation
(pursuant to Section 3.2) of the
applicable License Key.


 


6.3                               Reports.  Within thirty (30) days after the end of each
Quarter, Company will provide PlaceWare with a written report stating (a) the
number of copies of the Licensed Software made and distributed by Company
(including those distributed to a Distributor) during such Quarter (or, in the
case of the first report, the portion of the Quarter), including a statement of
the number of copies of Licensed Software distributed into each market sector
(Commercial or Government User), (b) the identity of the End Users or
Distributors who received such copies (subject to applicable privacy laws); and
(c) the date of shipment of such copies.


 


6.4                               Payments.  Except as otherwise provided in this Section 6 with regard to the Reserve, Company will pay
PlaceWare all amounts due under this Agreement within thirty (30) days after
the date of the invoice therefor.  Any
amount not paid when due will accrue interest at eighteen percent (18%) per
year or the maximum rate permitted by applicable law, whichever is less, from
the due date until paid.  All payments
must be made in U.S. dollars.


 


6.5                               Irrevocable
Letter of Credit.  The Company agrees
to keep in place its’ current 
irrevocable, unconditional Letter of Credit  by and between Company and[***], entered into
as of May 21, 2004 (“Letter of Credit”), 
in the amount of [***]tdollars (U.S. $[***]), payable to PlaceWare.  If Company is in default of any payment
obligations under this Agreement, then


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


PlaceWare may call on the
Letter of Credit.  Company acknowledges
that PlaceWare is not required to obtain the decision of a judge or any other
independent third party that the Company is actually in default before calling
on the Letter of Credit pursuant to the prior sentence.  The Letter of Credit shall be kept in place
until the expiration of the Agreement.


 


6.6                               Taxes.
Company will be responsible for and will indemnify and hold PlaceWare harmless
from payment of all taxes (other than taxes based on PlaceWare’s income), fees,
duties, and other governmental charges, and any related penalties and interest,
arising from the payment of fees to PlaceWare under this Agreement or the
delivery or license of the Licensed Software to Company, its Distributors and
End Users.  Company will make all
payments of fees to PlaceWare free and clear of, and without reduction for, any
withholding taxes; any such taxes imposed on payments of fees to PlaceWare will
be Company’s sole responsibility.


 


6.7                               Records.  At all times during the Term, and for at
least one (1) year after the termination of this Agreement, Company will
maintain at its principal place of business complete and accurate records with
respect to Company’s activities pursuant to this Agreement, including (a) a
complete list of all copies of the Licensed Software and User Documentation
made or distributed by Company and its Distributors, (b) a complete list,
as compiled by Company in the ordinary course of business, of Distributor or
End User names, addresses, electronic mail addresses and primary contacts,
provided that Company is not required to engage in any extraordinary measures
to update the information on such list; and (c) all data sufficient for
verification of amounts to be paid to PlaceWare under this Agreement.


 


6.8                               Audits.  PlaceWare will have the right, during normal
business hours and upon at least ten (10) days prior written notice, to
have a mutually acceptable, nationally recognized audit firm audit Company’s
relevant records relating to Company’s activities pursuant to this Agreement
solely to verify that Company has paid to PlaceWare the correct amounts owed
under this Agreement and otherwise complied with the terms of this
Agreement.  The audit will be conducted
at PlaceWare’s expense, unless the audit reveals that Company has underpaid the
amounts owed to PlaceWare by five percent (5%) or more in any Quarter, in which
case Company will reimburse PlaceWare for all costs and expenses incurred by
PlaceWare in connection with such audit up to the amount of the
underpayment.  Company will promptly pay
to PlaceWare any amounts shown by any such audit to be owing plus interest as
provided in Section 6.4.  PlaceWare reserves the right to pursue all of
its available remedies at law and in equity. Such audits will be conducted no
more than once in any period of six (6) consecutive months.  Any confidential or proprietary information
of Company disclosed to the independent accounting firm in the course of the
audit will be subject to a confidentiality agreement reasonably acceptable to
Company to be signed by such independent accounting firm, and requiring that such
firm will not disclose to PlaceWare the substance of such confidential or
proprietary information, other than disclosure of amounts owed hereunder.


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


7.                                      COMPANY’S OTHER OBLIGATIONS.


 


7.1                               Branding.  Except as set forth in Section 2.3,
Company will not use the PlaceWare Marks to identify InfoWorkSpace or LaunchPad
or in any materials used to advertise, market, or promote InfoWorkSpace and
LaunchPad without the prior written consent of PlaceWare.


 


7.2                               Compliance with Laws.  Company will maintain high standards of
professionalism and will at all times comply with all applicable laws and
regulation and refrain from any unethical conduct or any other conduct that
tends to damage the reputation of PlaceWare or the Licensed Software in
marketing and distributing the Licensed Software.


 


7.3                               Staffing.  Company will maintain a staff of sales and
technical support personnel sufficient to meet the needs of its End Users and
potential customers.  Company will ensure
that such personnel are properly trained in the use of the Licensed Software,
InfoWorkSpace and LaunchPad.


 


7.4                               Commitment to Licensed Software.
Company agrees that during the Term, it will not market, promote, solicit
orders for, offer for sale or license, or distribute in any manner, directly or
indirectly, any web-conferencing software products of any Web Conferencing
Competitors unless PlaceWare has given its express prior written consent (which
PlaceWare may grant or withhold in its sole discretion).


 


7.5                               Insurance.  Upon PlaceWare’s written request, Company
will provide PlaceWare with a certificate or adequate proof of insurance that
evidences that Company has obtained commercial property, casualty and liability
insurance for the Term in amounts customary for businesses operating in Company’s
industry.  All such liability insurance
policies will designate PlaceWare as an additional insured.


 


8.                                      CONFIDENTIALITY.


 


8.1                               Confidential Information.  The terms of the Non-Disclosure Agreement
between Microsoft and Company dated July 23, 2003 (“NDA”) shall govern any
exchange of Confidential Information (as defined in the NDA) between the
parties pursuant to this Agreement.


 


9.                                      WARRANTIES.


 


9.1                               Warranties by Both Parties.  Each party warrants that it has full power
and authority to enter into and perform this Agreement, and the person signing
this Agreement on such party’s behalf has been duly authorized and empowered to
enter into this Agreement.


 


9.2                               Disclaimer of Warranty.  THE EXPRESS WARRANTIES IN
THIS SECTION 9 ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS,
IMPLIED, OR STATUTORY, REGARDING THE LICENSED SOFTWARE OR THE USER
DOCUMENTATION, AND PLACEWARE HEREBY DISCLAIMS ALL OTHER WARRANTIES INCLUDING
ANY WARRANTIES OF MERCHANTABILITY,


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. 
COMPANY ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE
EXPRESS WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY ANY OF
PLACEWARE’S SUPPLIERS.  TO THE EXTENT
THAT PLACEWARE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY
WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED
UNDER SUCH LAW.


 


9.3                               Warranties Made by Company.  Company will not make or publish any
representations, warranties, or guarantees on behalf of PlaceWare or its
suppliers concerning the Licensed Software. 
Company hereby agrees that it will be solely responsible and liable for
any claims that arise from any representations, warranties, or guarantees made
by Company with respect to InfoWorkSpace and LaunchPad.


 


10.                               INDEMNIFICATION


 


10.1                        Indemnification by Company.


 


(a) Subject
to Section 10.2, Company agrees to
defend, indemnify and hold harmless PlaceWare from and against any suits,
damages, liabilities, costs, and expenses (including reasonable attorneys’
fees, except as limited in Section 10.2)
as a result of any third party (including any End User) claim arising from or
relating to:


 


(i)                                     any
breach by Company of its obligations, duties, or responsibilities under this
Agreement, including, without limitation, a breach of Section 9.3;


 


(ii)                                  any
actions or omissions on the part of Company in reproducing, marketing or
distributing the Licensed Software, InfoWorkSpace or LaunchPad, as applicable;


 


(iii)                               any
claims against PlaceWare made by End Users who receive the Licensed Software
from Company; or


 


(iv)                              any
breach by an End User of the applicable End User License Agreement.


 


(b) Subject
to Section 10.2, Company will defend, indemnify and hold harmless at its
own expense any action against PlaceWare brought by a third party to the extent
that the action is based upon a claim that the LaunchPad or InfoWorkSpace
infringes any copyrights or patents or other intellectual property right or
misappropriates any trade secrets recognized as such under the Uniform Trade
Secret law, and Company will pay those costs and damages finally  awarded
against PlaceWare in any such action that are specifically attributable to such
claim or those costs and damages agreed to in a monetary settlement of such
action.  Notwithstanding the foregoing,
Company will have no obligation under this Section 10.1(b) or
otherwise with respect to any infringement claim based upon any unauthorized
use, reproduction, or distribution of LaunchPad or InfoWorkSpace by any End
Users.  THIS SECTION 10.1(B)


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


STATES COMPANY’S ENTIRE
LIABILITY AND PLACEWARE’S SOLE AND EXCLUSIVE REMEDY FOR THE INFRINGEMENT CLAIMS
AND ACTIONS DESCRIBED HEREIN.


 


10.2                        Procedure.  Any indemnification obligation of Company (“Indemnifying
Party”) to indemnify Placeware (“Indemnified Party”), whether set forth in this
Section 10 or elsewhere in this Agreement is predicated upon the
following: (i) the Indemnifying Party is notified in writing within thirty
(30) calendar days of receipt of any statement or claim against the Indemnified
Party; provided that failure to promptly notify shall not limit the claim for
indemnification hereunder except to the extent that such failure actually
prejudices the Indemnifying Party; (iii) the Indemnifying Party may not
make any admissions to any third party regarding the claim or settle any
indemnified claim except as approved by the Indemnified Party in writing or as
required by applicable law to avoid deemed admissions; and (iv) the
Indemnified Party reasonably cooperates with the Indemnifying Party, at the
Indemnifying Party’s expense, in the defense and/or settlement of such
claim.  The Indemnifying Party will not
settle any such claim without the Indemnified Party’s prior written consent,
which will not be unreasonably withheld or delayed.  The Indemnified Party will have the right, at
its own expense, to participate in the defense and related settlement
negotiations of any indemnifiable claim with counsel of their own selection,
and the Indemnifying Party will consult with the Indemnified Party in
connection with defense and settlement. 
This Section 10 states the entire liability of either party in
respect of any third-party claim. Nothing contained in this provision or
Agreement is, however, intended to require the Indemnifying Party to pay to the
Indemnified Party any amount other than (1) the costs of the Indemnified
Party’s defense, if the Indemnifying Party elects not to defend; and (2) such
amounts actually paid by the Indemnified Party to the third-party claimant, if
the Indemnifying Party fails to pay the third-party claimant directly for any
settlement approved by the parties or any finally awarded judgment in favor of
the third-party claimant.


 


11.                               LIMITATION OF LIABILITY.  EXCEPT FOR A BREACH OF SECTIONS 2.1, 2.2,
2.3, 2.4, 2.5(A), 2.6(B), 7.4 AND 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL
DAMAGES, INCLUDING DAMAGES FOR ANY LOST DATA OR LOST PROFITS, ARISING FROM OR
RELATING TO THIS AGREEMENT.  EXCEPT FOR A
BREACH OF SECTIONS 2.1, 2.2, 2.3, 2.4, 2.5(A), 2.6(B), 7.4  AND 8, EITHER PARTY’S TOTAL CUMULATIVE
LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE LICENSED SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE,
WILL NOT EXCEED THE AMOUNT OF FEES PAID TO PLACEWARE BY COMPANY UNDER THIS
AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT(S) GIVING RISE TO SUCH
LIABILITY.  THE FOREGOING LIMITATIONS AND
RESTRICTIONS DO NOT APPLY  TO THE INDEMNIFICATION
OBLIGATIONS AS PROVIDED IN SECTION 10. 
Company acknowledges that the fees set forth in this Agreement reflect
the allocation of risk set forth in this Agreement and that PlaceWare would not
enter into this Agreement without these limitations on its liability.  Company agrees that PlaceWare’s suppliers
will have no liability of any kind under or as a result of this Agreement.  The foregoing limitations of liability are
independent of any exclusive remedies for breach of warranty set forth in this
Agreement.


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


12.                               TERM AND TERMINATION


 


12.1                        Term.  Unless earlier terminated pursuant to Section 12.2
and subject to the provisions of this Section 12.1, the term of this
Agreement will begin on the Effective Date and will expire after a period of
one (1) year (“Initial Term”), provided
that the parties may agree to extend the term of the agreement for two
additional one (1) year terms (each an “Extension
Term” and together with the Initial Term, the “Term”), subject to the parties reaching
agreement in writing on pricing and minimum license fee payments for the coming
year at least sixty (60) days prior to each anniversary of the Effective
Date.  If the parties fail to reach such
agreement, this Agreement will automatically expire on the first or second
anniversary of the Effective Date, as the case may be.  Neither party will be entitled to any
compensation or damages of any nature as a result of the expiration of this
Agreement or the termination of this Agreement pursuant to this Section 12.


 


12.2                        Termination.


 


(a)                                  Cause.  PlaceWare may terminate this Agreement,
effective immediately upon written notice to Company, if (a) Company
breaches any provision in Section 2.2 and does not cure the breach within
fifteen (15) days after receiving written notice thereof from PlaceWare, (b) Company
fails to pay any portion of the fees when due under this Agreement within ten (10) days
after receiving written notice from PlaceWare that payment is past due, or (c) Company
breaches any other provision of this Agreement and does not cure the breach
within thirty (30) days after receiving written notice thereof from
PlaceWare.  Company may terminate this
Agreement effective immediately upon written notice to PlaceWare, if PlaceWare
breaches any other provision of this Agreement and does not cure the breach
within thirty (30) days after receiving written notice thereof from Company.


 


(b)                                  Force Majeure.  Either party may terminate this Agreement
upon written notice, if a force majeure event (pursuant to Section 13.10)
continues for more than forty-five (45) days with respect to the other party.


 


12.3                        Effects of Termination


 


(a)                                  Payment; Licenses; Licensed Software.  Upon termination or expiration of this
Agreement for any reason, any amounts owed to PlaceWare under this Agreement
before such termination or expiration will be immediately due and payable, all
license rights granted in this Agreement will immediately cease to exist, and
Company will cease all further use, reproduction, and distribution of the
Licensed Software and User Documentation, except that (i) Company may keep
and use one (1) copy of the Licensed Software and User Documentation
solely for use by Company to support existing End Users through the end of the
then-current support term for each End User; and (ii) Company must destroy
or return (at PlaceWare’s option) to PlaceWare all copies of the Licensed
Software and User Documentation that the Company is not entitled to keep
pursuant to this Section 12.3(a) and certify to PlaceWare in writing
signed by an officer of Company that it has fully complied with this
requirement.


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


Company will remove the Licensed Software and
User Documentation from its LaunchPad and InfoWorksSpace products prepared for
subsequent distribution.


 


(b)                                  End User Agreements.  End User License Agreements granted by
Company in accordance with Section 2.5 of this Agreement (and the licenses
granted therein) will survive the expiration or termination of this Agreement
in accordance with their terms.


 


(c)                                  Survival.  Sections 1, 2.2, 2.4, 6.4 through 6.8, 8,
9.2, 9.3, 10, 11, 12.3 and 13 will survive expiration or termination of this
Agreement for any reason.


 


13.                               GENERAL.


 


13.1                        Export and Import Laws.  Company will comply with all applicable export
and import control laws and regulations in its use of the Licensed Software
and, in particular, Company will not export or re-export the Licensed Software
without all required United States and foreign government licenses.  Company will defend, indemnify, and hold
harmless PlaceWare from and against all fines, penalties, liabilities, damages,
costs, and expenses incurred by PlaceWare as a result of any violation of such
laws or regulations by Company or any of its agents or employees.


 


13.2                        Assignment.  Company may not assign any portion of this
Agreement either by contract or by operation of law.  As used in this Agreement, the term “assign”
includes:  (a) any change of
ownership of beneficial interest in Company where greater than a twenty percent
(20%) interest is transferred (whether in a single or a series of
transactions); (b) a merger of Company with another party, whether or not
Company is the surviving entity; (c) the acquisition of more than twenty
percent (20%) of any class of Company voting stock (or any class of non-voting
security convertible into voting stock) by another party (whether in a single
transaction or a series of transactions); or (d) the sale of more than
fifty percent (50%) of Company’s assets (whether in a single transaction or
series of transactions).  If Company
attempts to assign this Agreement, Placeware has the right to terminate it.


 


13.3                        Notices.  All notices, consents and approvals under
this Agreement must be delivered in writing by courier, by electronic facsimile
(fax), or by certified or registered mail, (postage prepaid and return receipt
requested) to the other party at the address set forth beneath such party’s
signature, and will be effective upon receipt or three (3) business days
after being deposited in the mail as required above, whichever occurs
sooner.  Either party may change its
address by giving notice of the new address to the other party.


 


13.4                        Governing
Law and Venue.  The rights and
obligations of the parties under this agreement will not be governed by the
provisions of the 1980 United Nations Convention on Contracts for the
International Sale of Goods or the United Nations Convention on the Limitation
Period in the International Sale of Goods, as amended; rather, these rights and
obligations under this Agreement will be governed in all respects by the laws
of the State of Washington, and Company consents to exclusive jurisdiction and
venue in the federal courts sitting in King


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


County, Washington, unless no
federal subject matter jurisdiction exists, in which case Company consents to
exclusive jurisdiction and venue in the Superior Court of King County,
Washington.  Company waives all defenses
of lack of personal jurisdiction and forum non-conveniens.  Process may be served on either party in the
manner authorized by applicable law or court rule.  In any action to enforce any right or remedy
under this Agreement or to interpret any provision of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys’ fees,
costs and other expenses.


 


13.5                        Remedies.  Except as provided in Sections 9
and 10, the parties’ rights and remedies under this Agreement are
cumulative.  Company acknowledges that
the Licensed Software contains valuable trade secrets and proprietary
information of PlaceWare.  Any actual or
threatened breach of Section 2 or 8 will constitute immediate,
irreparable harm for which monetary damages would be an inadequate remedy, and
that injunctive relief is an appropriate remedy for such breach.  If Company continues to distribute the
Licensed Software after its right to do so has terminated or expired, PlaceWare
will be entitled to immediate injunctive relief without the requirement of
posting bond, including an order directing that any copies of the Licensed
Software, or any portions thereof, that Company attempts to import into any
country or territory be seized, impounded, and destroyed by customs officials.


 


13.6                        Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any
provision of this Agreement on one occasion will not be deemed a waiver of any
other provision or of such provision on any other occasion.


 


13.7                        Severability.  If any provision of this Agreement is
unenforceable, such provision will be changed and interpreted to accomplish the
objectives of such provision to the greatest extent possible under applicable
law and the remaining provisions will continue in full force and effect.  Without limiting the generality of the foregoing,
Section 11 will remain in effect notwithstanding the unenforceability of
any provision in Section 9.2.


 


13.8                        Construction.  The headings of Sections of this Agreement
are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including”
means, “including but not limited to.”


 


13.9                        Counterparts.  This Agreement may be executed in
counterparts, each of which will be considered an original, but all of which
together will constitute the same instrument.


 


13.10                 Force Majeure.  Any delay in the performance of any duties or
obligations of either party (except the payment of money owed) will not be
considered a breach of this Agreement if such delay is caused by a labor
dispute, shortage of materials, fire, earthquake, flood, or any other event
beyond the control of such party, provided that such party uses reasonable
efforts, under the circumstances, to notify the other party of the
circumstances causing the delay and to resume performance as soon as possible.


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


13.11                 Independent
Contractors.  Company’s relationship
to PlaceWare is that of an independent contractor, and neither party is an
agent or partner of the other.  Neither
party will have, and neither party will represent to any third party that it
has, any authority to act on behalf of the other.


 


13.12                 Entire Agreement.  This Agreement, including the Exhibits
attached hereto which are incorporated herein, constitutes the entire agreement
between the parties regarding the subject hereof and supersedes all prior or
contemporaneous agreements, understandings, and communication, whether written
or oral.  This Agreement may be amended
only by a written document signed by both parties.  The terms on any purchase order or similar
document submitted by Company to PlaceWare will have no effect.


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


IN
WITNESS WHEREOF, the parties have executed this
Agreement as of the Effective Date.


 


 


	
  MICROSOFT CORPORATION 

  	
  EZENIA! INC. (“COMPANY”)

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
  Khoa D.
  Nguyen

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
  President
  and CEO

  	
   

  
	
   

  	
   

  
	
  Address for
  Notice:

  	
   

  
	
   

  	
   

  	
  Address for
  Notice:

  
	
   

  	
   

  	
  154
  Middlesex Turnpike

  
	
  Attn:

  	
   

  	
   

  	
  Burlington,
  MA 01803

  
	
  Fax:

  	
   

  	
   

  	
  United
  States of America

  
	
   

  	
   

  	
  Attn:
  President

  
	
   

  	
   

  	
  Fax: (781)
  505-2563

  
												



 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


EXHIBIT A


 


LICENSED SOFTWARE


 


Licensed
Software:


 


The Licensed Software consists
of the following software products:


 


[***], which comprises the
following components:


 


•                  [***]


•                  [***]


•                  [***]


 


For clarity, the Licensed Software does not
include [***].


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


EXHIBIT B


 


PlaceWare Marks


 


PlaceWare


MyPlaceWare


Web Conferencing is Here


Real Meetings, No Travel


iVault


Envoy


Great Meetings, No Travel


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


EXHIBIT C


 


[IntentionallyOmitted]


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


EXHIBIT D


 


MINIMUM TERMS FOR END USER LICENSE AGREEMENTS
AND DISTRIBUTOR AGREEMENTS


 


MINIMUM END USER LICENSE AGREEMENT TERMS


 


1.                                      Use
of the Licensed Software and User Documentation is limited to one year’s
duration and to the End User’s internal business purposes (provided that the
End User may use the Licensed Software to communicate with others outside of
the End User’s business organization).


 


2.                                      Title
to and ownership of the Licensed Software and User Documentation remain with
PlaceWare and its suppliers.


 


3.                                      The
End User may not (a) alter or modify the Licensed Software or User
Documentation, (b) reverse engineer, decompile, disassemble, or in any way
attempt to derive the Source Code for the Licensed Software, or (c) transfer
the Licensed Software or User Documentation to any third party or make the
Licensed Software or User Documentation available to any third party as part of
any time-sharing or service bureau arrangement.


 


4.                                      The
End User may make a reasonable number of copies of the Licensed Software or
User Documentation for its use in the ordinary course of business, provided
that the End User reproduces all copyright and other proprietary rights
notices.


 


5.                                      The
End User will not export or re-export the Licensed Software or User
Documentation without the appropriate United States or foreign government
licenses.


 


6.                                      All
express and implied warranties regarding the Licensed Software or User
Documentation by PlaceWare and its suppliers are disclaimed.


 


7.                                      All
consequential, special, and indirect damages are disclaimed on behalf of
PlaceWare and its suppliers.


 


8.                                      For
U.S. Government End Users: The Licensed Software and User Documentation is a “commercial
item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial
computer software” and “commercial computer software documentation” as such
terms are used in 48 C.F.R. 12.212. 
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4, all U.S. Government end users acquire the Licensed Software with
only those rights set forth therein.


 


9.                                      PlaceWare
is expressly named as an intended third party beneficiary of the End User
license agreement, with the right to enforce the terms relating to the Licensed
Software and User Documentation directly against the End User.


 










[***] INDICATES MATERIAL THAT HAS
BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED


 





















 


MINIMUM
DISTRIBUTOR AGREEMENT TERMS


 


1.                                      Title
to and ownership of the Licensed Software and User Documentation remains with
PlaceWare and its suppliers.


 


2.                                      The
Distributor may not use the Licensed Software and User Documentation for its
own internal business purposes.


 


3.                                      The
Distributor may not (a) alter or modify the Licensed Software or User
Documentation, (b) reverse engineer, decompile, disassemble, or in any way
attempt to derive the Source Code for the Licensed Software, or (c) transfer
the Licensed Software or User Documentation to any third party other than in
the normal course of business to End Users or make the Licensed Software or
User Documentation available to any third party as part of any time-sharing or
service bureau arrangement.  The Distributor
may not distribute the Licensed Software or User Documentation in violation of
the provisions of this Agreement.


 


4.                                      The
Distributor will not export or re-export the Licensed Software or User
Documentation without the appropriate United States or foreign government
licenses.


 


5.                                      To
the extent permitted by applicable law, PlaceWare makes no warranties regarding
the Licensed Software or User Documentation to Distributor or End Users. All
express and implied warranties regarding the Licensed Software or User
Documentation by PlaceWare are disclaimed to the fullest extent permitted by
applicable law.


 


6.                                      To
the extent permitted by applicable law, all direct, consequential, special, and
indirect damages are disclaimed on behalf of PlaceWare and its suppliers.


 


7.                                      When
distributing the Licensed Software or User Documentation to a U.S. Government
End User, the Distributor must identify the Licensed Software as a “commercial
item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial
computer software” and “commercial computer software documentation” as such
terms are used in 48 C.F.R. 12.212. 
Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4, all U.S. Government end users acquire the Licensed Software or User
Documentation with only those rights set forth herein.


 


8.                                      Each
copy of the Licensed Software and User Documentation distributed to End Users
must be subject to the End User License Agreement, which shall be (a) executed
prior to the End User receiving and using the Licensed Software (with respect
to any written End User License Agreement that requires written signature to be
effective), or (b) included


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


with each copy
of the Licensed Software distributed to End Users (with respect to any End User
License Agreement that is either a shrink-wrap agreement or a click-through
agreement).


 


9.                                PlaceWare
is expressly named as an intended third party beneficiary of the Distributor
Agreement, with the right to enforce the terms relating to the Licensed
Software or User Documentation directly against the Distributor.


 


10.                         In
the event Distributor appoints any subdistributors, each such subdistributor
must be made subject to a written agreement that is consistent with and no less
protective of PlaceWare’s intellectual property rights and other proprietary
rights than the terms of this Agreement, including, without limitation, the
terms set forth in this Exhibit.


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


EXHIBIT E


 


PRICING


 


	
   

  	
   

  	
   

  	
  OEM

  Std. Price

  	
   

  	
  Government

  User

  	
   

  	
  Commercial

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
  Annual
  License:[***]

  	
   

  	
  $ [***]

  	
   

  	
  $ [***]

  	
   

  	
  $[***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  Annual
  License:[***]

  	
   

  	
  $[***]

  	
   

  	
  $[***]

  	
   

  	
  [***]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7

  	
  Leased
  License per seat per week[***]

  	
   

  	
  $[***]

  	
   

  	
  $[***]

  	
   

  	
  [***]ot

  	
   

  



 










(1) [***].


 


*(2) Each InfoWorksSpace [***] has access to a [***]user license
of [***].  License for [***] included at [***].  The PlaceWare Server’s [***] Users.


 


*(3) For
Licensed Software purchases during the first year of the Term the following
discounts apply:


 


For aggregate
purchases between $[***] and $[***]for the year – [***]% discount off the above
pricing for the remainder of the Term.


 


For aggregate
purchases above $[***] for the year – [***]% discount off the above pricing for
the remainder of the Term.


 


Clarifications:  (a) All amounts set forth above are on a
per-concurrent user basis.  Thus the
total paid per user license is reflected in lines 1,4, and 7 respectively.  (b) No discounts per (3) above
shall be applied retroactively and, accordingly, Company shall not receive any
credits or refunds for licenses fees paid or owed for aggregate purchases less
than $[***].


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


Exhibit G


 


[Intentionally omitted]


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED


 





















 


Exhibit H


 


Web
Conferencing Competitors


 


Centra


Webex


Cisco (previously Latitude)


Genesys


Documentum (previously Erooms)


Intercall (previously Mshow)


Akamai


Groove


Lotus


WebSentric


Raindance


 


IBM


Polycom


 










[***] INDICATES MATERIAL THAT
HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL
SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED