master software license agreement
MASTER SOFTWARE LICENSE AGREEMENT
This Master Software License Agreement (“Agreement”) by and between Sony Pictures Entertainment Inc.,
having an office at 10202 West Washington Boulevard, Culver City, California 90232-3195 (“Licensee”) and
SailPoint Technologies, Inc., (“Licensor”), having an office at 11305 Four Points Drive, Bldg. 2, Suite 100,
Austin, TX 78726 , is made and entered into as of _____________, 2013 (“Effective Date”).
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged
and in consideration of the mutual promises set forth herein, Licensee and Licensor hereby agree as follows:
“Affiliate” shall mean any company that directly or indirectly controls, is controlled by, or is under
common control with Licensee or its successor.
“Divested Entity” shall mean any Affiliate, department or division of Licensee that loses its status as
such whether as a result of an asset sale, stock sale, merger, spin-off or other disposition (of either
Licensee or Affiliate) to a third party.
"Documentation" shall mean all technical or end user documentation (whether written or in electronic
form) for and delivered with the applicable Software, including, without limitation, any and all flowcharts,
program procedures and descriptions, descriptions of the functional, operational and design
characteristic of the Software, system and database documentation, procedures for maintenance and
modification, testing data and similar written material relating to the design, structure and
implementation of the Software, as well as help files and user documentation to allow individual users
to use the Software.
“Identity Cube” means a unique collection of identity data for an individual user that will be managed by
the Software known as SailPoint IdentityIQ for the purposes of certifying user access, enforcing access
policy, monitoring user activity, or modeling user risk. Such identity data may be physically or logically
maintained in a single repository or in separate physical or logical repositories. Such individual user
shall count as one (1) Identity Cube. Although Identity Cubes for individual user accounts that have
been deactivated may remain in the Customer identity management system, those inactive Identity
Cubes will not be included in the number of Identity Cube licenses in use by Licensee.
"Schedules" shall mean any exhibits, attachments, purchase orders or schedules attached to,
incorporated in, or referencing this Agreement by which Licensee orders Software licenses and/or
Services from Licensor pursuant to this Agreement and applicable Schedule. A form of Schedule is
attached hereto as Exhibit A for reference.
“Services” means the maintenance services (“Maintenance Services”) and any professional services
(“Professional Services”), including but not limited to training, and implementation, but not including
"Software" shall mean the computer software programs, as listed in Schedules executed hereunder, in
object code format, including Updates as hereinafter defined, provided to Licensee by Licensor
pursuant to this Agreement and the Documentation.
“Updates” shall mean all revisions, new versions and releases, upgrades, enhancements, bug fixes,
error corrections, updates, improvements, modifications and additional functionality enhancements to
the Software other than those reasonably designated as new products for which Licensor charges
separately which are produced and made generally available by Licensor, at its sole option, at no
charge to all of its customers under Maintenance with Licensor.
Page 1 of 27
THE LICENSED SOFTWARE
Grant of License. Licensor hereby grants to Licensee and its Affiliates a worldwide, perpetual ,fully
paid-up (upon Licensor receipt of payment from Licensee for such Software), royalty-free, irrevocable
except as otherwise set forth herein, non-exclusive, non-transferable (except as otherwise set forth
herein) license to (a) use the Software, in machine readable format, designated in the applicable
Schedule and (b) use the Documentation solely for use with the Software.
This Agreement supersedes any so-called "shrink-wrap" or other form of license agreement which may
be packaged with the Software or incorporated into the media on which the Software is shipped or with
the media which may be acquired online or any so-called “click-through” license terms.
Licensee’s use of the Software is solely limited to the number of Identity Cubes set forth on the
applicable Schedule. Use of such Software greater than the number of Identity Cubes paid for is
prohibited and any such use will be subject to applicable Schedule and, if any, pre-negotiated additional
license fees, and Maintenance fees.
The Software and Documentation may be copied in whole or in part, in printed or machinereadable form, for use by Licensee for non-production purposes. Non-production purposes shall
include, but not be limited to, disaster recovery, archival storage, staging, development, testing,
quality assurance and training. Copies of Software which are deployed but not activated or not
being actively used shall not count against any limit on Identity Cubes in a Schedule.
Use of the Software in test or development environments, for transition of users to new
systems/servers/equipment, or for disaster recovery or business resumption purposes, including
periodic tests relating thereto, shall not count toward any limit on Identity Cubes.
Should Licensor’s Software licenses be restricted to certain identified Licensee sites, Licensee
may, with reasonable notice to Licensor, substitute different sites for one or more of such sites,
at no additional cost.
Licenses which are granted hereunder shall, without limiting Licensee’s other obligations, include (i) the
right of Licensee to use the Software on behalf of Affiliates or Divested Entities (ii) the right of Affiliates
or Divested Entities to use the Software in accordance with the applicable terms and conditions hereof,
and (iii) the right of Licensee’s and its Affiliates’ subcontractors, agents and consultants to use the
Software in furtherance of providing services to Licensee and its Affiliates, subject to Licensee causing
such party to maintain the confidentiality of the Software in a manner consistent with Article 11, and (iv)
incidental usage by clients of Licensee, provided such usage is considered part of the business of
Licensor agrees that any Divested Entity (or the successor to such Divested Entity’s business,
as applicable) shall have a right to use the Software for a period of (six (6) months after
becoming a Divested Entity at no additional fee provided there is no increase in the total number
of Identity Cubes and provided the Divested Entity agrees in writing to the terms and conditions
of this Agreement. Additionally, within three (3) months of an entity becoming a Divested Entity,
Licensor shall offer such Divested Entity the opportunity to continue use of the Software beyond
such six (6) month period on terms no less favorable than those contained in this Agreement at
no additional license cost during the license term of the applicable Software provided there is no
increase in the total number of Identity Cubes or Software licensed.
If Licensee, directly or indirectly, acquires a company or a department, division or a line of
business of another company (“Acquired Company”) that has assigned to Licensee its licenses
for Software in accordance with the terms of a separate agreement between Licensee and the
Acquired Company, Licensee, at its sole option, may elect to have such Software become
subject to the terms and conditions of this Agreement without incurring additional fees
Page 2 of 27
associated with such transfer of license(s). Licensee may make such election by providing
notice to Licensor. The Acquired Company’s agreement with Licensor for the transferred
license(s) shall terminate immediately upon Licensee’s exercise of its election and the terms
and conditions of this Agreement shall be the controlling document; provided that any license
fees due during the remaining term of the Acquired Company’s separate agreement shall be
made at the pricing set forth in such Acquired Company’s separate agreement.
This Agreement confers no ownership rights to Licensee and is not a sale of any rights in the Software,
the Documentation, or the media on which either is recorded or printed Licensor shall have and retain
title to the Software provided hereunder and does not convey any proprietary rights or other interest
therein to Licensee, express or implied, other than the rights and licenses granted hereunder. All
Software and Documentation furnished by Licensor, and all copies thereof made by Licensee and all
compilations, derivative products, programmatic extensions, patches, revisions, and updates made by
either party, and any, patent rights, copyrights, trade secrets, trademarks, trade names, service marks,
designs or design marks or proprietary inventions, designs and information included within any of the
items described above are and shall remain the property of Licensor or Licensor's licensors, as
applicable. Licensee agrees not to claim or assert title to or ownership of the Software or the
Documentation. Application Program Interfaces (“API”). During the term of this Agreement, Licensor
will allow Licensee to use Licensor standard product API interfaces for purposes of building modules
that interface Licensee products or other third party products with the Software (“Interfacing Modules”).
The parties agree that (i) Licensee shall retain all ownership and title to any Interfacing Modules it
develops (excluding Licensor’s standard API’s); and (ii) Licensor shall not be required to warrant any
Interfacing Modules made by Licensee or be responsible for providing Maintenance Services for such
Interfacing Modules. .
Licensee may relocate its license(s) to any hardware platform, operating system or database supported
by Licensor as specified in the Documentation at no additional cost. In the event Licensee changes or
upgrades the operating system under which Licensee operates the Software or modifies the hardware
on which the Software operates, Licensor shall use commercially reasonable efforts to maintain
interoperability with the specified operating systems, databases, application servers, Java platform, and
browsers as they may be updated from time to time .
In the event that the Software and/or Documentation is damaged, Licensor will provide Licensee with
replacement copies of the Software and/or Documentation for the actual cost of reproduction of the
same on new media, which Licensor shall do promptly following request by Licensee.
Licensor agrees that Affiliates of Licensee may execute Schedules in accordance with the provisions of
this Agreement. In such event, the applicable Affiliates of Licensee executing any Schedule shall, for
purposes of such Schedule, be considered the “Licensee” as that term is used in this Agreement and
this Agreement, insofar as it relates to any such Schedule, shall be deemed to be a two-party
agreement between Licensor on the one hand and the Affiliate on the other hand.
If, at any time during the term of a Schedule Licensor retires, re-names, replaces, or substitutes
Software (or designates such Software as an "end of life" product) ("Retired Product") for which
Licensee has active and current Maintenance/Support, and Licensor makes a new software product
("Successor Product") commercially available that includes substantially similar functionality and
features as the Retired Product, Licensor will provide the Successor Product to Licensee for no
additional charge. If the Successor Product offers enhanced features and functionality not contained in
the Software, then Licensee shall be entitled to purchase such generally available enhanced features
and functionality at a mutually agreed fee.
Licensee will not, nor allow any third party to reverse engineer, decompile or attempt to discover any
source code or underlying ideas or algorithms of any Software. Except as mutually agreed to in writing
as an exception under this Agreement, Licensee will not, nor allow any third party to modify, lease,
Page 3 of 27
lend, use for timesharing or service bureau purposes or, without limiting Licensee’s rights herein,
otherwise use or allow others to use Software for the benefit of any third party.
TREATMENT IN BANKRUPTCY : All rights and licenses granted pursuant to any section of this
Agreement are, and will otherwise be, for purposes of Section 365(n) of the U.S. Bankruptcy Code
and/or any similar or comparable section of the U.S. Bankruptcy Code (as such sections may be
modified, amended, replaced, or renumbered from time to time), executory licenses of rights to
“intellectual property,” as defined under Section 101 (35A) of the U.S. Bankruptcy Code (as such
sections may be modified, amended, replaced, or renumbered from time to time). The parties will
retain and may fully exercise all of their respective rights and elections under the U.S. Bankruptcy
Code. Accordingly, the Licensee of such rights shall retain and may fully exercise all of its rights and
elections under the U.S. Bankruptcy Code. Upon the commencement of bankruptcy proceedings by or
against either party under the U.S. Bankruptcy Code, the other party shall be entitled to retain all of its
license rights and use rights granted under this Agreement.
The rights and privileges granted herein shall extend to Licensee and its present and future Affiliates.
Promptly upon execution of this Agreement, Licensor shall deliver the Software and the Documentation
to Licensee by electronic means. Licensor shall fulfill all orders by delivering Software and
Documentation via electronic download, subject to the receipt of all required documentation. Licensee’s
order shall be considered delivered on the date that Licensor emails instructions for downloading the
Software and Documentation to Licensee. Thereafter, Licensee shall be responsible for and bear all
expenses (including taxes) related to making the permitted number of copies and distributing such
copies as permitted in this Agreement.
If mutually agreed in a Schedule hereunder, upon delivery of the Software , Licensee shall conduct
acceptance testing procedures on the Software for a mutually agreed time period and based on the
acceptance criteria set forth in the Schedule. If the Software passes all such tests in conformance with
the stated acceptance criteria, Licensee shall give Licensor written notice of Licensee’s acceptance of
the Software, unless mutually agreed otherwise in the Schedule.
In accordance with the terms of the Schedule, if the Software fails to pass any of such Licensee’s
testing procedures or fails to function properly or in conformity with the Documentation, Licensee shall
notify Licensor and Licensor shall correct such defect within five (5) days of receipt of such notice and
cause the Software to successfully pass all such tests and functions to Licensee’s acceptance criteria
as set forth in Section 3.2 above. If the Software does not conform to Licensee’s satisfaction, Licensee
may, upon mutual agreement, (i) immediately terminate this Agreement without any further obligation or
liability of any kind and Licensor shall immediately reimburse Licensee for all amounts paid by Licensee
under this Agreement for such Software; or (ii) upon mutual agreement, require Licensor to continue to
attempt to correct the deficiencies until the Software successfully passes all tests and functions to
Licensee’s satisfaction, reserving the right to terminate this Agreement at any time in accordance with
clause (i) above.
DOCUMENTATION AND PROFESSIONAL SERVICES
Upon delivery of Software, Licensor shall deliver to Licensee at least one (1) electronic of all generally
available Documentation for such Software sufficient to enable Licensee personnel to use and to fully
understand the functionality, use and operation of such Software. Licensor agrees that Licensee may
copy the Documentation in order to satisfy its own reasonable internal requirements, provided Licensee
reproduces any copyright, trade secret, trademark or other proprietary notice and that Licensee will not
remove or alter any copyright or proprietary notice that is contained on the original Documentation
provided by Licensor.
Page 4 of 27
If Professional Services such as training or implementation are required and/or included with the
Software license, the charge, duration, nature and other particulars applicable to such Services shall be
specified on the applicable Schedule.
The following terms and conditions shall apply to professional services ("Professional Services")
supplied by Licensor to Licensee. Licensee may purchase Professional Services from Licensor to be
performed on a time and material basis.
a. Scope of Professional Services. Professional Services will be documented in a Schedule. The Software
provided under this Agreement is not custom software but is standard commercial software and the
scope of Professional Services provided hereunder shall consist solely of (i) program planning, (ii)
Software deployment assistance, (iii) interface adapter efforts, and/or (iv) formal or non-formal software
training. Professional Services provided to Licensee by Licensor shall not constitute works for hire.
b. Term of Professional Services. Professional Services will begin and terminate on the dates or times
defined in a SOW which has been mutually agreed to by Licensee and Licensor in writing, unless
earlier terminated in accordance with this Agreement.
c. Fees and Expenses. Fees for Professional Services are defined in a Schedule or an order. Invoices
may be published on a monthly basis for Professional Services actually performed or in accordance to
the payment schedule mutually agreed to and documented in the Schedule or order. Professional
Services fees exclude reasonable expenses for travel, food and lodging, directly related to the
performance of Professional Services. Any/all actual and reasonable expenses shall be in accordance
with Appendix 1, Travel and Expense Policy, as attached.
d. Termination or delay of Professional Services. Professional Services may be terminated by Licensee by
giving ten (10) days prior written notice to Licensor; termination shall be effective ten (10) days after
Licensor’s receipt of such notice. If Licensee terminates Professional Services before the end of the
Term of Professional Services engagement, Licensee shall pay Licensor for Professional Services
completed prior to the effective termination date and reasonable and actual subcontractor costs
incurred by Licensor as a result of such termination.
Independent Contractors. Licensor is an independent contractor and is solely responsible for all taxes,
withholdings, and other similar statutory obligations including, but not limited to Worker's Compensation
Insurance. Nothing herein shall form or be construed to form a joint venture or partnership.
g. Performance Standards. Licensor's performance of Professional Services under this Agreement will be
conducted with standards of practice common in the industry for such services. Licensor will comply
with all applicable laws and Licensee privacy, customer information, network and safety rules,
guidelines and policies, in the course of performing Professional Services.
h. Consent to Subcontract. Licensee hereby consents for Licensor to subcontract Professional Services
to persons or companies qualified and certified by Licensor to provide services on Licensor’s behalf.
The initial term of Standard and Maintenance Services shall be twelve (12) months from the Effective
Date. And shall be provided by Licensor at no charge to Licensee during such period, and thereafter in
consideration of Licensee's payment of the applicable Maintenance Fee during the Maintenance Term
(as specified on the applicable Schedule), Licensor agrees to provide Licensee with all services
specified in this Article 6 as part of its Maintenance Services for Software licensed hereunder. Licensor
Page 5 of 27
agrees to make available all of the Maintenance Services indicated herein for the Software for a
minimum period of five (5) years from the date of license of said Software. If Licensor fails to provide
such Maintenance Services, without limiting its other remedies, Licensee shall be entitled to a pro-rata
refund of all prepaid unperformed Maintenance Fees made in respect of such Software.
Support and Maintenance Services entitles Licensee to the following:
(a) Telephone or electronic support in order to help Licensee locate and correct problems with the
(b) Bug fixes and code corrections to correct Software malfunctions in order to bring such Software
into substantial conformity with the operating specifications.
(c) All extensions, enhancements and other changes that Licensor, at its sole discretion, makes or
adds to the Software and which Licensor furnishes, without charge, to all other licensees of the
Software who are enrolled in Software Support and Maintenance.
(d) Replacement of the Software at no charge if the media becomes destroyed or damaged so that
the Software becomes unusable.
(e) Up to three (3) dedicated contacts designated by Licensee in writing that will have access to
Licensor shall provide Licensee with all Updates. At Licensee’s option, Licensee may choose not to
implement any such Update(s) and continue to use the prior version(s) of the Software (“Version
Freeze”). Should Licensee Version Freeze, Licensor shall maintain support for the last two (2) major
releases of the Software used by Licensee and will provide support for each major release of the
Software for a minimum of three (3)) years. A major release is signified by a full version number
increase such as 4.0 to 5.0. Any such Version Freeze shall not relieve Licensor of any of its warranty,
Maintenance or other obligations under this Agreement.
Response and Resolution Goals
“Problem” means a defect in Software as defined in Licensor’s standard Software specification which
significantly degrades such Software.
“Fix” means the repair or replacement of Software component to remedy Problem.
“Workaround” means a change in the procedures followed or data supplied by Licensee to avoid a
Problem without substantially impairing Licensee’s use of the Software.
“Respond” means acknowledgement of Problem received containing assigned support engineer name,
date and time assigned, and severity assignment
1. The production system is creating
a significant impact to the Licensee’s
business function preventing that
function from being executed.
Licensor will Respond
within 2 business
Upon confirmation of receipt, Licensor support personnel begin
continuous work on the Problem, and a Licensee resource
must be available at any time to assist with problem
determination. Licensor Support will provide reasonable effort
for Workaround or Fix within 24 hours, once the Problem is
reproducible or once we have identified the Software defect.
Licensor may incorporate Fix in future release of software.
For any Open Web Application Security Project (OWASP)
critical vulnerabilities, Licensor shall make best efforts to
provide a fix within 24 hours.
2. The production system or
application is moderately affected.
There is no workaround currently
available or the workaround is
cumbersome to use.
Licensor will Respond
within 4 business
Licensor Support will provide reasonable effort for Workaround
or Fix within 7 business days, once the Problem is
reproducible. Licensor may incorporate fix in future release of
3. The production system or
application issue is not critical: no
data has been lost, and the system
Licensor will Respond
within 8 business
Licensor Support will provide reasonable effort for Workaround
or Fix within 10 business days, once the Problem is
reproducible. Licensor may incorporate Fix in future release of
Page 6 of 27
has not failed. The issue has been
identified and does not hinder normal
operation, or the situation may be
temporarily circumvented using an
4. Non-critical issues, general
questions, enhancement requests,
or the functionality does not match
Licensor will Respond
within 24 business
Resolution of Problem may appear in future release of
6.4 Licensor Support offers several ways to resolve any technical difficulties. In addition to online help in
the Software, which can be accessed by clicking the “Help” tab when logged into the Software,
function-specific help information can also be accessed throughout the Software using the ‘?’ option.
The online support center (www.sailpoint.com/support) is available 24x7 for self-service technical
Downloading software updates and patches
Logging tickets and viewing status of previously submitted tickets
Viewing updates to supported platforms and hardware
Accessing product documentation, technical articles, and FAQs
The support email address is [email protected] The support phone number is 512-346-2000 or 1888-472-4578
Licensor shall produce and make available to Licensee any and all modifications to the Software to
enable the Software to operate in conjunction with any new releases of the applicable equipment's
operating system in accordance with Section 2.7.
Licensor shall provide revised and/or updated Documentation (in the same amount and media as
originally provided) to correspond to any changes (including Updates) made to the Software, within a
reasonable time after such Software changes.
Licensee may elect to expand the hours of maintenance coverage, arrange for additional on-site
Services, or add or enhance other Maintenance Services from Licensor upon mutually acceptable
terms and conditions.
During the initial Maintenance Term and any renewal thereof, at least thirty (30) days prior to the
expiration of each Maintenance Term, Licensor shall notify Licensee in writing of such expiration
including the cost of the renewal, and Licensee shall have the option to continue the Maintenance
Services for such Software for any additional Maintenance Term selected by Licensee. Licensee shall
notify Licensor in writing if it opts to continue Maintenance Services for any such continuation.
Notwithstanding anything herein to the contrary, Maintenance Terms shall continue for ninety (90) days
after receipt of Licensor's notice referred to above, and thereafter, if Licensee exercises the option to
continue the Maintenance Services as provided hereunder.
Licensee may terminate Maintenance Services for any Software licensed hereunder, at any time in
whole or in part effective as of the next anniversary, upon thirty (30) days' prior written notice to
Licensor. Upon such termination, Licensor shall refund to Licensee all prepaid unperformed
Maintenance Fees pertaining to the period following such termination, and Licensee has the option to
Page 7 of 27
continue using the Software through such termination date without paying any additional costs.
Licensee’s termination of maintenance Services shall not constitute a termination of the License
granted hereunder. Licensor’s remedy for Licensee’s failure to pay Maintenance Fees shall be
termination of Maintenance Services.
The initial term of Standard Support and Maintenance Services shall be twelve (12) months from the
Effective Date of the applicable Schedule. Support and Maintenance Services are offered on an
annual subscription basis thereafter at the rates specified below. Support and Maintenance Services
fees may increase in subsequent years but will increase no more per annum than 3% or the CPI rate,
whichever is the lesser of the two.
Standard Support & Maintenance
Business Hours Coverage
(Monday-Friday, 8am-6pm CT excluding U.S. Holidays)
Premium Support & Maintenance
Severity 1 coverage 24 hours per day, 7 days a week
All other issues Business Hours Coverage
16% per year of the total price of all Software licensed
hereunder or the fee listed below, whichever is greater:
$20,000 if one IdentityIQ Module is purchased
$30,000 if two IdentityIQ Modules are purchased
$35,000 if three or more IdentityIQ Modules are purchased
25% per year of the total price of all Software licensed hereunder or the fee
listed below, whichever is greater:
$25,000 if one IdentityIQ Module is purchased
$37,000 if two IdentityIQ Modules are purchased
$44,000 if three or more IdentityIQ Modules are purchased
6.13.1 Licensor agrees to any additional maintenance terms and conditions as specified in the relevant
The same level of Support and Maintenance Services shall apply to all licensed Software at the
installation site and Licensee shall keep all licensed Software it has acquired at an installation site
under current contracted Support and Maintenance Services in order to receive the maintenance
Standard and Premium Support and Maintenance Services include three (3) Licensee designated
support contacts. These support contacts must utilize support in one geographic time zone and must
be seeking support for a common instance of the Software. Two (2) additional support contacts may be
purchased for a fee of Thirty Thousand US Dollars ($30,000 USD) per year. Additional support contacts
must be purchased if: i) support contacts are required in more than one geographic time zone or ii)
additional production instances of the Software are deployed for an affiliate, business unit, division or
other group as allowed under the license.
INVOICING; PAYMENT; TAXES
Licensor may invoice Licensee for the License Fee set forth on the Schedule for the Software upon
delivery of the Software, or if mutually agreed in a Schedule, on or after the date of acceptance by
Licensee of the Software involved, in accordance with Section 3.2 hereof. Invoices must be sent to the
corporate name and address as specified in the applicable purchase order obtained from Licensee.
Invoices will not be processed unless the purchase order number is referenced on the invoice and
Licensee has received a fully executed Agreement and applicable Schedule(s). Standard or printed
terms contained in any purchase order or sales confirmation are deemed rejected and mere
commencement of work or payment against such forms shall not be deemed acceptance of the terms.
Each invoice properly rendered in accordance with this Agreement, and not in bona fide dispute shall
be payable within thirty (30) days from date of invoice, unless otherwise specified herein or in a
Schedule. If any reimbursable expenses of Licensor are previously approved in writing by Licensee,
they shall be separately stated on the invoice submitted by Licensor. A copy of Licensee’s Travel and
Page 8 of 27
Expense Policy is attached hereto as Appendix 1. All fees are in U.S currency. Licensee obligations to
pay all accrued charges shall survive the expiration or termination of this Agreement.
Licensee may purchase from time to time the right to use, as provided in this Agreement, additional
Licensed Units at the applicable Licensee Fees for Additional Licensed Units set forth on the Schedule
(the “Additional License Fee”), and Maintenance Services thereon for a Maintenance Fee equal to the
Additional License Fee times the ratio of the Maintenance Fee to the License Fee for the original
Licensed Units, prorated for the remaining then-current Maintenance Term.
Maintenance Fees may be invoiced prior to the commencing of any Maintenance renewal period annually
(unless otherwise agreed) in advance, as specified in Article 6 above and on the applicable Schedule.
Maintenance renewal fees may be invoiced to Licensee at any time after Licensor’s receipt of
Licensee's notice of renewal and shall be payable within thirty (30) days following the later of (i) receipt
of such invoice by Licensee or (ii) the effective date of the renewal. Once renewed, the maintenance
renewal fee shall be deemed to mean "Maintenance Fee" for all purposes hereunder.
Licensee shall not be liable for interest or other late charges on late payments, nor shall Licensor use
any methods of electronic repossession for any reason.
The fees required to be paid hereunder do not include any amount for taxes, duties or import/export
fees. Licensee agrees to provide Licensor with a tax exemption certificate or to pay all taxes properly
levied against or upon the Software and any Services or their use hereunder, exclusive however of
personal property taxes, franchise taxes, corporate excise or corporate privilege, property or license
taxes, taxes based on Licensor's net income or the gross revenues of Licensor or other taxes levied on
Licensor, which are not required by law to be collected from Licensee, which taxes shall be paid by
Licensor. Licensor’s invoice shall separately state all applicable taxes, based on any allocation of the
fees specified in the purchase order.
Licensor warrants to Licensee that: (i) Licensor has all rights necessary to provide the Software,
Documentation and other materials to Licensee and to perform the Services as specified in this
Agreement and warrants that such Software, Documentation and Services are free of all liens, claims,
encumbrances and other restrictions; (ii) Licensor will not violate any agreements with any third party
as a result of performing its obligations under this Agreement, (iii) the Software, Documentation, and
Services furnished by Licensor and Licensee's use of the same hereunder do not violate or infringe any
patent, trademark, copyright, trade secret, or other proprietary right of any third party or the laws or
regulations of any governmental or judicial authority; (iv) Licensee shall be entitled to use and enjoy the
benefit of the Software, Documentation and Services, subject to and in accordance with this
Agreement; (v) there are neither pending nor threatened, nor to the best of Licensor’s knowledge
contemplated, any suits proceedings or actions or claims which would materially affect or limit the rights
granted to Licensee under this Agreement; and (vi) Licensee's use and possession of the Software,
Documentation, and Services hereunder shall not be adversely affected, interrupted or disturbed by
Licensor or any entity asserting a claim under or through Licensor. Remedy for breach of this warranty
by Licensor shall be in accordance with Section 10.2.
Licensor warrants that the Software will materially conform to the accompanying Documentation for a
period of ninety (90) days from the date of initial delivery. If during the warranty period the Software
does not materially conform to the Documentation, then Licensor, at Licensor’s expense and option,
either repair, replace, or refund the amount paid by Licensee for the nonconforming Software. If
refunded, Licensee’s license for the use of the defective Software shall be terminated and the defective
Software shall be returned to Licensor. Licensor does not warrant that the operation of the Software
will be uninterrupted or error free, or that all software defects can be corrected. This warranty shall not
apply if: (a) the Software is not used in accordance with Licensor’s instructions; (b) the Software defect
has been caused by any of Licensee’s malfunctioning equipment or Licensee provided software; or (c)
Licensee has made modifications to the Software not expressly authorized in writing by Licensor.
Page 9 of 27
Licensor warrants that commencing on the delivery date of the Software, it shall correct and repair any
Error which prevents such Software from performing in accordance with the Documentation, and
Licensor shall provide all such Maintenance Services in accordance with the terms set forth in Article 6.
Licensor warrants to Licensee that Updates to the Software provided to Licensee hereunder, subject to
Section 2.10 above, shall not give rise to any additional costs, and that the installation of such Update
shall not degrade, impair or otherwise adversely affect the performance or operation of the Software
provided hereunder, provided that no functionality or features have been removed from the Software by
Licensor warrants that any Services provided by Licensor hereunder shall be performed in a high
quality, professional manner by a sufficient number of appropriately qualified and skilled personnel. In
performance of the Services, Licensor will use best efforts to minimize any disruption to Licensee's
normal business operations. Licensor also warrants, as to the Services that: (i) such Services shall be
performed solely through its qualified individual employees and/or subcontractors (collectively, the
“Personnel”), (ii) that Licensor shall be solely responsible for all employment matters (including
payment of salary and wages) with respect to the Personnel; and (iii) when on Licensee premises, all
Personnel shall observe the working hours, working rules, and safety and security procedures
established by Licensee. Licensor agrees to re-perform any Professional Services not in compliance
with this warranty brought to its attention within thirty (30) days after those Professional Services are
performed, unless otherwise specified in the applicable Schedule. Licensor shall, at its own expense
and in accordance with applicable law, conduct reference and background checks on all Personnel,
including verification of references and employment history, verification of driver’s license or other
government issued identification and address, verification of social security number and that each
individual is a U.S. citizen or properly documented person legally able to perform the Services,
verification that the individual is not on the Specially Designated Nationals (“SDN”) list maintained by
the Office of Foreign Assets Control of the U.S. Treasury Department, and verification that each
individual has satisfactorily passed a criminal background check.
Licensor represents and warrants that the Software shall not contain any computer code that is
intended to: (i) disrupt, disable, harm, or otherwise impede in any manner, including aesthetic
disruptions or distortions, the operation of the Software, or any other associated software, firmware,
hardware, computer system or network (sometimes referred to as “viruses” or “worms”), (ii) disable the
Software or impair in any way its operation based on the elapsing of a period of time, exceeding an
authorized number of copies, advancement to a particular date or other numeral (sometimes referred to
as “time bombs”, “time locks”, or “drop dead” devices) or (iii) permit unauthorized access to the
Software (sometimes referred to as “traps”, “access codes” or “trap door” devices), or any other similar
harmful, malicious or hidden procedures, routines or mechanisms which could cause such programs to
cease functioning or to damage or corrupt data, storage media, programs, equipment or
communications, or otherwise interfere with Licensee’s operations. Licensor will ensure that no such
viruses, Trojan horses, worms, or time bombs are introduced within Licensee as a result of the
Software. Additionally, Licensor: (i) shall provide timely information about technical vulnerabilities
related to the Software and guidance regarding the Software’s exposure to such technical
vulnerabilities, and (ii) warrants that it will take appropriate measures, including but not limited to testing
the Software, to ensure that the risks associated with such technical vulnerabilities have been
Licensor warrants that Licensor shall have used industry standard best practices to test and protect the
Software against any known viruses and other harmful elements designed to disrupt the orderly
operation of, or impair the integrity of data files resident on, any data processing system and that the
Software shall not contain any such known virus or other element. Licensor agrees to the immediate
replacement of all copies of the affected Software in the possession of Licensee with copies that do not
contain such viruses.
Page 10 of 27
Licensor shall “pass-through” any software warranties received from the manufacturers or licensors of
any third party software that forms a part of the Software and, to the extent granted by such
manufacturers or licensors, Licensee shall be the beneficiary of such manufacturers’ or licensors’
warranties with respect to the Software.
THE WARRANTIES SET FORTH IN THIS AGREEMENT (INCLUDING ANY APPLICABLE SCHEDULE) ARE IN LIEU OF ALL
OTHER WARRANTIES AND ARE THE ONLY WARRANTIES GRANTED BY LICENSOR WITH RESPECT TO THE SOFTWARE,
DOCUMENTATION OR THE SERVICES. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS,
ORAL OR WRITTEN, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
SATISFACTORY QUALITY, REGARDING THIS AGREEMENT OR ANY SOFTWARE LICENSED HEREUNDER. LICENSOR
DOES NOT WARRANT UNINTERUPTED OR ERROR-FREE OPERATION OF THE SOFTWARE.
If Escrow of source code is identified on any Schedule hereto, the terms of Exhibit B shall apply to, and
be incorporated in, Licensor’s current escrow agreement for which Licensee will be a beneficiary (the
“Escrow Agreement”). The Escrow Agreement is “supplementary” to this Agreement within the
meaning of Section 365(n) of the U.S. Bankruptcy Code (11 USC § 365 (n)) and/or any similar or
comparable section of the U.S. Bankruptcy Code (as such sections may be modified, amended,
replaced, or renumbered from time to time). If the Escrow Agreement and/or this Agreement are/is
rejected by Licensor as a debtor in possession or a trustee or by any other person or entity under the
U.S. Bankruptcy Code, then Licensee may elect to retain its right as provided in section 365(n). The
Parties intend that no bankruptcy or bankruptcy proceeding, petition, law or regulation (and no other
proceeding, petition, law or regulation of a similar nature in any state or foreign jurisdiction) will impede,
delay or prevent the release of Escrowed Materials to Licensee in accordance with the provisions of the
Escrow Agreement, and Licensor hereby conveys to Escrow Agent such rights (including intellectual
property rights) as are necessary to allow Escrow Agent to lawfully make such release and perform the
INTELLECTUAL PROPERTY INFRINGEMENT
Licensor hereby agrees to defend and hold harmless Licensee, its affiliates and their respective
directors, officers, employees and agents (“Licensee Indemnitees”) from and against any third party
claim, suit, demand, action or proceeding arising from or relating to any breach by Licensor of its
representations and warranties of this Agreement or alleging a violation of any copyright, patent,
trademark, trade secret or other proprietary right resulting from infringement of the Software or
Services, and Licensor shall indemnify the Licensee Indemnitees against any and all judgments,
liabilities, damages, costs and expenses arising therefrom. Licensor shall defend any such claim, suit,
demand, action or proceeding instituted against the Licensee Indemnitees at Licensor’s sole cost and
expense, and shall pay the amount of any such award, judgment or settlement thereof.
The foregoing obligations shall be abated to the extent a claim arises from (i) software not supplied by
Licensor, (ii) made in whole or in part in accordance to Licensee specifications with no exercise of
independent judgment by Licensor, (iii) Software that is modified by Licensee after delivery without the
prior written consent of Licensor (iv) Software combined with other products, processes or materials
where the alleged infringement relates to such combination which were unauthorized by Licensor,
(v) where Licensee continues use of the infringing Software following Licensor’s supplying a modified,
amended or replacement version of the Software following a reasonable period of time for Licensee to
install such new version, or (vi) where Licensee’s use of such Software is not materially in accordance
with this Agreement.
In the event the Software, Services or Documentation is held by a court, administrative body or
arbitration panel of competent jurisdiction to constitute an infringement or its use is enjoined, Licensor
shall, at its option, either: (i) procure for Licensee the right to continue use of the Software, Services or
Documentation; (ii) provide a modification to the Software, Services or Documentation so that its use
Page 11 of 27
becomes non-infringing; or (iii) replace the Software, Services or Documentation with software, services
or documentation which is substantially similar in functionality and performance. If none of the
foregoing alternatives is reasonably available to Licensor, then, in addition to and not in lieu of any
claim for damages that Licensee may have, Licensor shall take return of the infringing Software and
refund the License Fee paid by Licensee to Licensor for such infringing Software.
The indemnified party will notify the Licensor reasonably promptly in writing of any claim of which the
indemnified party becomes aware. The Licensor shall have the right to designate its counsel of choice
to defend such claim and to control the defense of such claim at the sole expense of the Licensor
and/or its insurer(s), so long as such counsel is reasonably acceptable to the indemnified party. The
indemnified party shall have the right to participate in the defense at its own expense. In any event, the
Licensor shall keep the indemnified party informed of, and shall consult with the indemnified party in
connection with, the progress of any investigation, defense or settlement. The Licensor shall not have
any right to, and shall not without the indemnified party’s prior written consent (which consent will be in
the indemnified party’s sole and absolute discretion), settle or compromise any claim if such settlement
or compromise (i) would require any admission or acknowledgment of wrongdoing or culpability by the
indemnified party, (ii) provide for any non-monetary relief to any person or entity to be performed by the
indemnified party, or (iii) would, in any manner, interfere with, enjoin, or otherwise restrict any project
and/or production, or the release or distribution of any motion picture, television program or other
project, of Licensee or its subsidiaries or affiliates.
THE PROVISIONS OF THIS SECTION AND SECTION 8.1 SET FORTH LICENSOR’S SOLE AND EXCLUSIVE
OBLIGATIONS, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY RIGHTS OF ANY KIND.
Licensor agrees not to disclose the identity of Licensee as a customer of Licensor, the existence or
nature of the relationship contemplated hereby or the business application for which Licensee intends
to use the Software without the prior written consent of Licensee, which Licensee may withhold in its
All Confidential Information (as defined below) of Licensee are and shall remain the sole and exclusive
property of Licensee and are to be treated by Licensor as absolutely secret and confidential. Licensor
covenants and warrants that, without limitation as to time, it shall keep in confidence, maintaining
proper security therefor, and shall not (i) use or allow to be used for its own benefit or for any purposes
other than the performance of this Agreement, or (ii) disclose or reveal or allow to be disclosed or
revealed to any person other than Licensee any Confidential Information of Licensee. Without limiting
the foregoing, (i) Licensor shall not negotiate with or offer or agree to sell, lease or otherwise transfer to
any person or entity any Confidential Information of Licensee or any system, data, report, study,
program or other item which incorporates or utilizes such Confidential Information, and (ii) Licensee’s
name, logo, insignia, photographs or any other publicity pertaining to this Agreement, including but not
limited to the existence of this Agreement, shall not be used in any magazine, trade paper, newspaper
or other medium, or otherwise disclosed to any person, without the prior written consent of Licensee.
Licensor shall not disclose the subject matter, existence or terms and conditions of this Agreement or
the granting of the license hereunder, except as may be required by law or government regulations or
pursuant to a court order or in any legal proceeding, or as may be necessary to assert rights under the
Agreement, or as may be authorized in writing by Licensee.
If Licensor breaches, threatens to breach or attempts to breach its obligations under Sections 11.1 or
11.2 herein, Licensee may notwithstanding and not by way of limitation of any other remedies it may
have for anticipatory or actual breach of this Agreement (including, without limitation, for damages),
immediately obtain an order enjoining Licensor from violating this Section (both during and upon final
determination of any litigation).
Page 12 of 27
As used herein, the term “Confidential Information” means any confidential or proprietary information of
Licensee, including but not limited to designs, drawings, plans, formulae, instructions, processes,
programs, systems, theories, specifications, techniques, tapes, disks, disk racks, models, data, flow
charts, documentation, processes, procedures, know-how, new product or technology information,
prototypes, software (whether in object code or source code), manufacturing, development, or
marketing techniques, development or marketing timetables, business strategies and development
plans, supplier information, personnel information, customer information, pricing policies, financial
information and any other information of a similar nature, whether or not reduced to writing or other
tangible form, and any other trade secret or non-public business information.
Licensee acknowledges that Licensor considers the Software, Documentation, and any materials,
disclosed by Licensor to Licensee, either directly or indirectly, in writing, orally or by inspection of
tangible objects including, without limitation, business plans, customer data, customer lists, customer
names, designs, documents, drawings, engineering information, financial analysis, hardware
configuration information, inventions, market information, marketing plans, processes, products,
product plans, research, services, specifications, software, source code, trade secrets or any other
information of a similar nature, whether or not reduced to writing or other tangible form. Licensee
agrees that unless Licensee has obtained Licensor's written consent, it shall keep such confidential
materials confidential and prevent their disclosure to any person other than its Affiliates and its and their
employees, agents, contractors, subcontractors or representatives for purposes specifically related to
Licensee's permitted use of the Software, provided such level of protection is equal to or greater than
that used by Licensee to protect its own confidential information. Licensor agrees that Licensee retains
the right to use any ideas, concepts, know-how or techniques disclosed by Licensor pursuant to this
Information shall not be considered confidential to the extent, but only to the extent, that such
information is: (i) already rightfully known to the receiving party free of any restriction at the time it is
obtained from the other party; (ii) subsequently rightfully learned from an independent third party free of
any restriction and without breach of this Agreement; (iii) is or becomes publicly available through no
wrongful act of either party; or (iv) is independently developed by one party without reference to any
confidential information of the other.
Upon expiration or termination of this Agreement, the receiving party shall return to the disclosing party
all confidential information, including all copies thereof under its possession or control or under the
possession or control of its affiliates or, at disclosing party’s option, destroy or purge its own, and cause
the purging of its affiliates, systems and files of all such Confidential Information of disclosing party.
Receiving party shall deliver to disclosing party a written confirmation that such destruction and purging
has been carried out.
TERM AND TERMINATION: This Agreement shall commence as of the Effective Date and continue
thereafter unless terminated as provided hereunder. Each Schedule shall become binding when duly
executed by both parties and shall continue thereafter unless terminated as permitted hereunder.
Notice of termination of any Schedule shall not be considered notice of termination of this Agreement.
Licensee may terminate this Agreement, any Schedule hereunder or any license hereunder upon thirty
(30) days prior written notice to Licensor.
LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, OR FOR
EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF APPRISED OF THE POSSIBILITY OF SUCH
LOSS OR DAMAGE. This exclusion of liability for special, indirect or consequential loss or damage is
intended to apply to damage or loss of a “commercial” nature such as, but not limited to, loss of profits
Page 13 of 27
or revenue, cost of capital, loss of use of equipment or facilities, or claims of customers due to loss of
service. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S TOTAL
CUMULATIVE LIABILITY PURSUANT TO THIS AGREEMENT EXCEED THE GREATER OF THREE TIMES THE LICENSE
FEES PAID AND/OR PAYABLE BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT OR $1,000,000; provided
however, that the foregoing limitation of liability shall not apply to (i) liability arising from gross negligence or willful misconduct,
or (ii) Licensor’s indemnification obligations hereunder. FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO
RECURRING FEES, THE LIABILITY SHALL NOT EXCEED THE AMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR
SUCH MAINTENANCE SERVICE OR PRODUCT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS
AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY
OBLIGATIONS, (II) DAMAGES ARISING FROM INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY
RIGHTS OR (III) CLAIMS FOR DEATH, BODILY INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE
NEGLIGENCE OF SUCH PARTY OR ITS EMPLOYEES, SUBCONTRACTORS OR AGENTS.
NOTICES: Unless otherwise specified, to be effective, all notices relating to this Agreement shall be in
writing and delivered personally (effective upon receipt) or sent by nationally recognized overnight
delivery service (effective one (1) business day after delivery to such delivery service), or by confirmed
telecopy/facsimile (effective upon receipt) to the addresses of the parties set forth at the beginning of
this Agreement, to the attention of the undersigned; provided, however, that any Licensor notice of
material breach to Licensee shall also be sent to:
Sony Pictures Entertainment Inc.
10202 West Washington Blvd
Culver City, CA 90232
Attention: Procurement Department
with a copy to:
Sony Pictures Entertainment Inc.
10202 West Washington Blvd
Culver City, CA 90232
Attention: General Counsel
Fax no: (310) 244-0510
Unless Licensor indicates otherwise, notices shall be sent to the signatory of the Schedule involved.
Either party may change the address(es) or addressee(s) for notice hereunder upon written notice to
the other in conformity with this section. All notices shall be deemed given and sufficient in all respects.
ASSIGNMENT: Neither party may assign this Agreement, any Schedule and/or any rights and/or
obligations hereunder without the prior written consent of the other party; provided, however, that
Licensee may assign this Agreement, any Schedule and/or any of its rights hereunder upon written
notice to Licensor, but without requiring the consent of Licensor, to any Affiliate, to Licensee's
successor pursuant to a merger, consolidation or sale, or to an entity which acquires all or substantially
all of the business of Licensee relating to this Agreement. For the purposes of this Section 13.5, a
Change of Control, as defined herein, shall be deemed an assignment. “Change of Control” shall
occur: (i) with respect to a party that is a Public Licensee (as defined herein), if as a result of any event
(including but not limited to any stock acquisition, acquisition of securities convertible into or
exchangeable for voting securities, merger, consolidation or reorganization) any one or more persons
or entities who together beneficially own, directly or indirectly, more than 20% of the combined voting
power of the then-outstanding securities of such party immediately prior to such event (the “Public
Licensee Controlling Shareholder(s)”) together fail to own, after such event, more than 20% of the
combined voting power of the then-outstanding securities of such party (or any successor, resulting or
ultimate parent Licensee or entity of such party, as the case may be, as a result of such event); or (ii)
with respect to a party which is not a Public Licensee (as defined herein), if as a result of any event
(including but not limited to any stock acquisition, acquisition of securities convertible into or
exchangeable for voting securities, merger, consolidation or reorganization) any one or more persons
or entities who together beneficially own, directly or indirectly, more than 50% of the combined voting
Page 14 of 27
power of the then-outstanding securities of such party immediately prior to such event (the “NonPublic Licensee Controlling Shareholder(s)”) together fail to own, after such event, more than 50%
of the combined voting power of the then-outstanding securities of such party (or any successor,
resulting or ultimate parent Licensee or entity of such party, as the case may be, as a result of such
event). “Public Licensee” means any Licensee or entity (i) whose securities are registered pursuant
to the Securities Act of 1933, as amended, (ii) whose securities are traded in any national or
international stock exchange or over the counter market or (iii) which is subject to the reporting
requirements of the Securities Exchange Act of 1934, as amended. This Agreement shall be binding
upon and shall inure to the benefit of the parties' respective successors and permitted assigns. Any
assignment in violation of the foregoing shall be null and void, and of no force or effect. In the event of
any assignment of all or any part of this Agreement (including any Schedules) by Licensor, whether by
operation of law or otherwise or acquisition of Licensor by a third party (except in the case of a
corporate restructuring where there is no change of ultimate control), Licensee shall have the right to
obtain from Licensor’s assignee, in perpetuity and pursuant to this Agreement, renewals of any
applicable license and licenses for additional units of Software (including Successor Products) licensed
pursuant to this, and maintenance for such Software, in accordance with this Agreement and the
ARBITRATION OF DISPUTES: All actions or proceedings arising in connection with, touching upon or
relating to this Agreement, the breach thereof and/or the scope of the provisions of this Section 13.6 (a
“Proceeding”) shall be submitted to JAMS (“JAMS”) for binding arbitration under its Comprehensive
Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined
Arbitration Rules and Procedures if the matter in dispute is $250,000 or less (as applicable, the “Rules”)
to be held solely in Los Angeles, California, U.S.A., in the English language in accordance with the
Each arbitration shall be conducted by an arbitral tribunal (the “Arbitral Board”)
consisting of a single arbitrator who shall be mutually agreed upon by the parties. If the parties are
unable to agree on an arbitrator, the arbitrator shall be appointed by JAMS. The arbitrator shall be a
retired judge with at least ten (10) years experience in commercial matters. The Arbitral Board shall
assess the cost, fees and expenses of the arbitration against the losing party, and the prevailing party
in any arbitration or legal proceeding relating to this Agreement shall be entitled to all reasonable
expenses (including, without limitation, reasonable attorney’s fees). Notwithstanding the foregoing, the
Arbitral Board may require that such fees be borne in such other manner as the Arbitral Board
determines is required in order for this arbitration clause to be enforceable under applicable law. The
parties shall be entitled to conduct discovery in accordance with Section 1283.05 of the California Code
of Civil Procedure, provided that (a) the Arbitral Board must authorize all such discovery in advance
based on findings that the material sought is relevant to the issues in dispute and that the nature and
scope of such discovery is reasonable under the circumstances, and (b) discovery shall be limited to
depositions and production of documents unless the Arbitral Board finds that another method of
discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the
There shall be a record of the proceedings at the arbitration hearing and the Arbitral
Board shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitral
Board's decision. If neither party gives written notice requesting an appeal within ten (10) business
days after the issuance of the Statement of Decision, the Arbitral Board's decision shall be final and
binding as to all matters of substance and procedure, and may be enforced by a petition to the Los
Angeles County Superior Court or, in the case of Licensor, such other court having jurisdiction over
Licensor, which may be made ex parte, for confirmation and enforcement of the award. If either party
gives written notice requesting an appeal within ten (10) business days after the issuance of the
Statement of Decision, the award of the Arbitral Board shall be appealed to three (3) neutral arbitrators
(the "Appellate Arbitrators"), each of whom shall have the same qualifications and be selected through
the same procedure as the Arbitral Board. The appealing party shall file its appellate brief within thirty
(30) days after its written notice requesting the appeal and the other party shall file its brief within thirty
(30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitral Board
Page 15 of 27
applying the same standards of review (and all of the same presumptions) as if the Appellate
Arbitrators were a California Court of Appeal reviewing a judgment of the Los Angeles County Superior
Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand
the matter to the Arbitral Board. The decision of the Appellate Arbitrators shall be final and binding as
to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles
County Superior Court or, in the case of Licensor, such other court having jurisdiction over Licensor,
which may be made ex parte, for confirmation and enforcement of the award. The party appealing the
decision of the Arbitral Board shall pay all costs and expenses of the appeal, including the fees of the
Appellate Arbitrators and the reasonable outside attorneys' fees of the opposing party, unless the
decision of the Arbitral Board is reversed, in which event the costs, fees and expenses of the appeal
shall be borne as determined by the Appellate Arbitrators.
Subject to a party's right to appeal pursuant to the above, neither party shall challenge or
resist any enforcement action taken by the party in whose favor the Arbitral Board, or if appealed, the
Appellate Arbitrators, decided. Each party acknowledges that it is giving up the right to a trial by jury or
court. The Arbitral Board shall have the power to enter temporary restraining orders and preliminary
and permanent injunctions. Neither party shall be entitled or permitted to commence or maintain any
action in a court of law with respect to any matter in dispute until such matter shall have been submitted
to arbitration as herein provided and then only for the enforcement of the Arbitral Board’s award;
provided, however, that prior to the appointment of the Arbitral Board or for remedies beyond the
jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of
competent jurisdiction in Los Angeles County, California or, if sought by Licensee, such other court that
may have jurisdiction over Licensor, without thereby waiving its right to arbitration of the dispute or
controversy under this section. All arbitration proceedings (including proceedings before the Appellate
Arbitrators) shall be closed to the public and confidential and all records relating thereto shall be
permanently sealed, except as necessary to obtain court confirmation of the arbitration award.
Notwithstanding anything to the contrary herein, Licensor hereby irrevocably waives any right or
remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to
enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other
exploitation of any motion picture, production or project related to Licensee, its parents, subsidiaries
and Affiliates, or the use, publication or dissemination of any advertising in connection with such motion
picture, production or project. The provisions of this Section 13.6 shall supersede any inconsistent
provisions of any prior agreement between the parties.
GOVERNING LAW: The substantive laws (as distinguished from the choice of law rules) of the State of
California shall govern the validity and interpretation of this Agreement and the performance by the
parties of their respective duties and obligations hereunder without regard to any conflict of laws
principles that would result in the application of another jurisdiction’s laws. The parties expressly waive
and disclaim the applicability of the Uniform Computer Information Transactions Act (UCITA) and the
United Nations Convention on the International Sale of Goods to the fullest extent permitted by law.
MODIFICATION, AMENDMENT, SUPPLEMENT AND WAIVER: The provisions hereof constitute the
entire agreement of the parties as to the matters covered and supersede any prior understanding not
specifically incorporated herein. No changes hereto or waiver of any of the terms hereof shall be made
except in writing signed by the parties hereto. The terms and conditions contained on any order form or
other standard, pre-printed form issued by the Licensor shall be of no force and effect, even if such
order is accepted by Licensee. In no event shall Licensee’s, acknowledgment, confirmation or
acceptance of such order, either in writing or by acceptance of delivery of the software or by use of the
software, constitute or imply Licensee’s acceptance of any terms or conditions contained on a
Licensor’s form. No waiver by either Licensee or Licensor or any failure by the other to keep or perform
any covenant or condition of this Agreement shall be deemed to be a waiver of any preceding or
succeeding breach of the same, or any other covenant or condition, of this Agreement.
PRECEDENCE: In the event of any inconsistency between any attachment/exhibit/schedule and the
terms set forth herein, the terms herein shall prevail.
Page 16 of 27
13.10 SEVERABILITY: In the event any one or more of the provisions of this Agreement shall for any reason
be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be
unimpaired, and the invalid, illegal or unenforceable provisions shall be replaced by a provision, which,
being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid,
illegal or unenforceable provision.
13.11 CUMULATIVE REMEDIES: Except as expressly provided to the contrary herein, all remedies set forth
in this Agreement are cumulative, and not exclusive of any other remedies of a party at law or in equity,
statutory or otherwise.
13.12 HEADINGS: Headings are for reference and shall not affect the meaning of any of the provisions of
13.13 SURVIVAL. The provisions of Articles 2, 7, 8, 10, 11, 12 and 13 of this Agreement shall survive any
completion, rescission, expiration or termination of this Agreement.
13.14 COMPLIANCE WITH LAW; EQUAL OPPORTUNITY.
Licensor will comply with all statutes,
ordinances, and regulations of all federal, state, county and municipal or local governments, and of any
and all the department and bureaus thereof, applicable to the carrying on of its business and
performance of the Services. Additionally,
Licensor shall obtain and maintain all necessary
governmental approvals required for it to provide the Products and perform the Services and shall be
responsible for all fees, taxes and other costs associated with obtaining and maintaining such
governmental approvals. Licensor shall promptly identify and notify Licensee of any changes in law or
Licensor’s company status that may materially impact Licensor’s ability to provide the Products or to
perform the Services or materially impact the pricing for such Services. Licensor shall supply Personal
Information to Licensee only in accordance with, and to the extent permitted by, applicable laws relating
to privacy and data protection in the applicable territories. Personal Information supplied by Licensor to
located at http://www.sonypictures.com/corp/eu_safe_harbor.html. Licensor agrees that pursuant to this
Agreement, there shall be no discrimination based on race, religion, sex, age or national origin and it
shall comply with applicable federal, state and local regulations pertaining to fair employment practices.
Licensee acknowledges and agrees that the Software is subject to the export control laws, rules,
regulations, restrictions and national security controls of the United States and other applicable foreign
agencies (the "Export Controls"), and agrees not to export or re-export, or allow the export or reexport of the Software or any copy, portion or direct product of the foregoing in violation of the Export
Controls. Licensee hereby represents that (i) Licensee is not an entity or person to which shipment of
Software is prohibited by the Export Controls; and (ii) Licensee will not export, re-export or otherwise
transfer the Software to (a) any country subject to a United States trade embargo, (b) a national or
resident of any country subject to a United States trade embargo, (c) any person or entity to which
shipment of Software is prohibited by the Export Controls, or (d) anyone who is engaged in activities
related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear
weapons, missiles or chemical or biological weapons.
13.16 DEPLOYMENT VERIFICATION. Upon reasonable advance notice to Licensee and on a noninterference basis with Licensee’s normal business operations, Licensor has the right to verify the quantity of
Software Licensee has placed into use under this Agreement. Such verification shall not be conducted more
frequently than once per year unless agreed otherwise in an order
13.17 FORCE MAJEURE. Each party will be excused from performance for any period during which, and to
the extent that, it is prevented from performing any obligation or service as a result of causes beyond its
reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes,
lockouts, riots, acts of war, epidemics, communication line failures, and power failures
Page 17 of 27
Prior to the performance of any Professional Services hereunder by Licensor, Licensor shall at its own
expense procure and maintain the following insurance coverage for the benefit and protection of
Licensee and Licensor, which insurance coverage shall be maintained in full force and effect for the
term of the Agreement except where indicated below:
14.1.1 A Commercial General Liability Insurance Policy with a limit of not less than $1 million per
occurrence and $3 million in the aggregate (which includes Umbrella Liability) providing
coverage for bodily injury, personal injury and property damage for the mutual interest of both
Licensee and Licensor, with respect to all operations;
14.1.2 Professional Liability Insurance including but not limited to Technology Errors & Omissions
Liability, Data Privacy and, if applicable, Network Security and the usual and customary errors
and omissions exposures associated with Licensor's business operations and services Licensor
will be performing for Licensee with a $2 million limit for each occurrence and $2 million in the
aggregate. If this policy or policies is/are written on a claims-made form, the insurance will be in
full force and effect throughout the term of the Agreement and three (3) years after the
expiration or the termination of this Agreement; and
14.1.3 An Umbrella or Following Form Excess Liability Insurance policy will be acceptable to achieve
the above required liability limits; and
14.1.4 Workers’ Compensation Insurance with statutory limits to include Employer’s Liability with a
limit of not less than $1 million; and
The policies referenced in the foregoing clause 14.1.1 and 14.1.3 shall name Sony Pictures
Entertainment Inc., et al, its parent(s), subsidiaries, licensees, successors, related and affiliated
companies, and its officers, directors, employees, agents, representatives and assigns (collectively,
including Licensee, the “Affiliated Companies”) as an additional insured by endorsement and shall
contain a Severabilty of Interest Clause. The above referenced in the foregoing clause 14.1.4 shall
provide a Waiver of Subrogation endorsement in favor of the Affiliated Companies. All of the above
referenced liability policies shall be primary insurance in place and stead of any insurance maintained
by Licensee. No insurance of Licensor shall be co-insurance, contributing insurance or primary
insurance with Licensee’s insurance. Licensor shall maintain such insurance in effect during the entire
term of this Agreement. Licensor’s insurance companies shall be licensed to do business in the
state(s) or country(ies) where the services Licensor provides under this Agreement are performed and
will have an A.M. Best Guide Rating of at least A:VII or better; provided also that in the event that
Licensor’s insurer(s) is(are) based outside of the United States, Licensor’s insurance policy coverage
territory must include the United States written on a primary basis and provide Licensee with a right to
bring claims against Licensor’s polices in the United States, as evidenced on the certificate of insurance
or in a confirmation of coverage letter. Any insurance company of Licensor with a rating of less than
A:VII will not be acceptable to Licensee. Licensor is solely responsible for all deductibles and/or self
insured retentions under their policies.
Licensor agrees to deliver to Licensee: (a) upon execution of this Agreement Certificates of Insurance
and endorsements evidencing the insurance coverage herein required, and (b) renewal certificates and
endorsements at least seven (7) days prior to the expiration of Licensor’s insurance policies. Each
such Certificate of Insurance and endorsement shall be signed by an authorized agent of the applicable
insurance company, shall provide that not less than thirty (30) days prior written notice of cancellation is
to be given to Licensee prior to cancellation or non-renewal, and shall state that such insurance policies
are primary and non-contributing to any insurance maintained by Licensee. Upon request from
Licensee, Licensor shall provide a copy of each of the above insurance policies to Licensee. Failure of
Licensor to maintain the Insurances required under this Section 14 or to provide Certificates of
Insurance, endorsements or other proof if such insurances reasonably requested by Licensee shall be
a material breach of this Agreement and, in such event, Licensee shall have the right at its option to
Page 18 of 27
terminate this Agreement without penalty. Licensee shall have the right to designate its own legal
counsel, at its expense, to defend its interests under said insurance coverage at the usual rates for said
insurance companies in the community in which any litigation is brought.
14.4 If the Licensor is using or hiring subcontractors, the subcontractors will carry the same insurance as the
Licensor. It is Licensor’s responsibility to require certificates of insurance from any such subcontractors.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.
SAILPOINT TECHNOLOGIES, INC.
SONY PICTURES ENTERTAINMENT INC.
Page 19 of 27
Schedule Number 1
Schedule Effective Date___________, 2013
This Schedule #1 (the “Schedule”) is issued pursuant to the License Agreement between Sony Pictures Entertainment
Inc. (“Licensee”), and SailPoint Technologies, Inc. (“Licensor”) dated ______, 2013 (the "Agreement"). Capitalized terms
used herein and not otherwise defined herein shall have the meanings assigned to them in the Agreement.
Party Responsible for Installation:
Scheduled Delivery Date: To be
delivered upon the Effective Date
Identity Cubes for
Internal Identity Cubes
External Identity Cubes
Standard Support &
1. Software Listing
Licensee shall receive a perpetual license to use the Software with Identity Cubes up to the quantities stated above.
The IdentityIQ Software shall include the following:
IdentityIQ – Base Governance Platform
IdentityIQ – Lifecycle Manager
IdentityIQ – Provisioning Engine
Service Desk Integration Module – ServiceNow
Provisioning Integration Module – Sun Identity Manager
Unlimited use in development, test, and backup environments to support the production environment
Includes all currently available IdentityIQ Connectors
Page 20 of 27
Definition of Identity Cubes
As defined in the Agreement
. . . .]
Name and Address of Escrow Agent
Jim Ford, CEO
Guard-IT: Software Escrow Services
4407 Bee Caves Road, Suite 611, Austin,
Texas 78746 USA
TEL 512-282-1995 FAX 512-282-1895 URL
The initial term of Maintenance Services shall be twelve (12) months from the Effective Date. Maintenance Services is offered on an
annual subscription basis thereafter at the rates specified in the Agreement. Licensee shall be entitled to purchase Standard Support
and Maintenance for the license purchased hereunder for the following fixed pricing for years 2 and 3:
Year 1 – included at no charge
Year 2 – $47,200
Year 3 – $47,200
Year 4 and beyond –Support and Maintenance may increase in subsequent years but will increase no more per annum than 3% or the
CPI rate, whichever is the lesser of the two.
Identity Cube Organic Growth
Licensor agrees to provide Licensee with a 5% growth of Internal and External Identity Cubes (2,750 additional Identity
Cubes) over the number of Identity Cubes contracted under this Schedule for use with the Software described in this initial
order. Such additional Identity Cubes are provided to Licensee at no additional charge for license and Support and
Optional Software Upgrades. For a period of thirty-six (36) months following the Effective Date of this Agreement,
Licensee in its sole discretion, may elect to purchase from Licensor, additional licenses of the Software licensed under
this Schedule for a 50% discount off the current list price plus the associated Support and Maintenance Service fee after
the initial twelve (12) month period from date of purchase, provided that each such order shall be for a minimum of 500
Identity Cubes. Such discount can be extended by one (1) year if Licensee purchases additional licenses from Licensor
during such 3 year term.
IN WITNESS WHEREOF, the parties hereto have duly executed this Schedule as of the Schedule Effective
SAILPOINT TECHNOLOGIES, INC.
SONY PICTURES ENTERTAINMENT INC.:
Page 21 of 27
Page 22 of 27
Escrow Terms and Conditions
1. Licensor shall deposit, keep, and maintain current, a copy of the source code, object code, and
Documentation for the Software (the “Escrowed Materials”) shall add Licensee as a beneficiary to its
source code escrow agreement with respect to the source code of the Software licensed and paid by
Licensee under the Agreement. Licensee shall be entitled to use the Escrowed Materials as provided in
such escrow agreement in order to maintain its Software licenses.
2. In the event Licensee is receiving source code pursuant to any Schedule or Escrow Agreement, the
Documentation shall include the source code for the related Software, with detailed program code and
documentation relating to the development, maintenance and use of the source code (including
assembly, linkage and other utilities) in a machine readable form and all associated materials ("Source
Code"). In addition, Licensor shall provide such Updates to the Source Code as they become
3. The Escrow Agreement shall supplement this Agreement pursuant to Chapter 11, Section 365(n) of the
U.S. Bankruptcy Code section 365(n) of the U.S. Bankruptcy Code (11 USC § 365(n)) as referenced
therein In the event that Licensor becomes a debtor under the U.S. Bankruptcy Code, it is the intent of
the parties that Licensee shall have all benefits granted to licensees under the provisions of the U.S.
Bankruptcy Code including, without limitation, section 365(n) of the U.S. Bankruptcy Code and/or any
similar or comparable section of the U.S. Bankruptcy Code (as such sections may be modified,
amended, replaced, or renumbered from time to time).”
4. If and only if one or more of the trigger events in the escrow agreement occurs, Licensee shall be
granted a limited, personal, non-assignable, non-transferable, non-sublicensable, royalty-free, license
for the term of this Agreement to internally use the Escrowed Material solely for support and
maintenance of the Software consistent with the license granted in this Agreement.
5. In addition to the license limitations and restrictions set forth elsewhere in this Agreement, with respect
to any Escrowed Materials released to Licensee pursuant to this Exhibit B, (a) Licensee will not place,
or make available, the Escrowed Material on any computer network (including, without limitation, the
Internet, company intranet, or peer-to-peer network) except for Licensee’s protected corporate.
network, and will not remove or export the Escrowed Material from the United States; (b) The Escrowed
Material shall be installed only on computer systems that are password protected, and access to the
Escrowed Material files shall be restricted to necessary personnel; and (c) Licensee shall ensure that
any physical copies of the Escrowed Material are protected under lock and key on their premises and
are not permitted to be transferred to any other location without the express agreement of Licensor.
Page 23 of 27
TRAVEL AND EXPENSE POLICY
PAYMENT FOR EXPENSES
Licensor shall be reimbursed for Licensor’s reasonable, ordinary and necessary out of pocket expenses of a
business character reasonably incurred by Licensor for travel in connection with the performance of Licensor’s
services. All such travel and expenses require Licensee’s prior approval. Expenses shall not be subject to any
mark-up or multiplier.
All invoices for business related travel cost and other expenses shall include an itemized listing supported by
copies of receipts from Licensor’s expense accounts, copies of bills and invoices, and miscellaneous
supporting data. If charged to the Licensee, all travel either to Licensee job site or from Licensee job site to
other locations shall be approved in writing in advance by Licensee. Time for travel will not be reimbursed
except for travel during normal business hours.
A. Licensee’s Travel Department
All travel and hotel arrangements that are chargeable to the Licensee shall be made through Licensee’s
travel department (310/244-8711) to ensure the best rates, or as otherwise authorized by Licensee.
With the exception of Provision I herein, auto mileage will be reimbursed at 44.5 cents per mile, or the
current rate as specified by the Internal Revenue Service. Mileage reimbursement is for round-trip with
origination at Licensee job site, excluding Licensor’s travel to and from home/hotel.
Airfare will be reimbursed based on the most direct route at economy or coach class travel rates.
Upgrading (coach to a higher class) of airline tickets will be reimbursed only when approved by
Licensee, and only when the business schedule requires immediate travel and only higher class
accommodations are available. Downgrading (exchange) of airline tickets for which Licensor receives
financial or personal gain is not permitted. If a trip is postponed, reservations should be canceled
immediately. Copies of passenger receipts shall be provided to Licensee at the time reimbursement is
Travel arrangements should be made in advance of travel as early as possible (preferably three weeks)
to take advantage of advance reservation rates.
Should Licensor choose alternative hotel and travel arrangements, other than those recommended by
Licensee’s Travel Department, Licensee shall reimburse up to the amount(s) which would have been charged
by Licensee’s recommended choices.
Combining Business Travel with Personal Travel
Page 24 of 27
Licensor may combine personal travel with Licensee business only if the personal travel does not
increase costs to the Licensee. Licensor should make arrangements for all personal travel. Licensee
will not manage, or be responsible for, any Licensor personal travel.
Air Travel Insurance
Licensee does not pay for or provide air travel insurance.
Licensee will reimburse hotel room fees at the preferred corporate rate. Licensee may reimburse hotel
room fees at the standard rate based on single room occupancy in cases where a corporate rate is not
Laundry and dry cleaning charges will only be paid if: (1) Licensor is on travel for Licensee for a period
in excess of six (6) consecutive days; or (2) Licensor is temporarily lodged near Licensee’s site for
more than 30 consecutive days.
Licensee will not pay for the rental of premium channel movies, use of health club facilities or other
forms of entertainment.
If required, Licensee will pay for reasonable car rental charges. Such arrangements are to be made
through Licensee’s travel department (310) 244-8711, or as otherwise authorized by Licensee.
Licensor is expected to request the rental of an economy car. Prior to contacting Licensee’s travel
department, prior approval shall be obtained from Licensee’s Procurement Department.
Per diem or meal reimbursement shall be as pre-approved by Licensee prior to the start of the
Services. For Licensor travel on behalf of Licensee, meals will be reimbursed on the actual cost up to a
maximum of $80.00 per day ($100/day for New York and Japan) of travel. In lieu of itemizing meal
expenses and submitting receipts, Licensor may claim the standard meal reimbursement of $15.00 per
diem for the duration of the travel.
For Licensor temporarily lodged near Licensee’s site for more than 40 consecutive working days, in lieu
of a daily meal reimbursement, groceries will be reimbursed at the actual cost to a maximum of $500
per month. In lieu of itemizing grocery expenses and submitted receipts, the Licensor may claim the
standard groceries reimbursement of $250 per month for the duration of their job required stay.
Receipts from Licensor are required for all meals/groceries. In order to be reimbursed, meal/grocery
documentation (itemized if possible), such as, credit card receipts or cash register tape, must be
submitted. Licensee will not reimburse for alcoholic beverages.
Telephone reimbursement shall be as pre-approved by Licensee prior to the start of the Services.
Licensor shall submit documentation regarding all telephone calls charged to Licensee. Documentation
must include the name of the party being called and the purpose of the call. Licensee will pay for one
business call upon arrival and one call prior to departure, but will not pay for additional business calls
Page 25 of 27
unless directly related to the Services. Personal telephone calls are not reimbursable unless Licensor
is on travel for the Licensee for more than three consecutive days, or the Licensor is temporarily lodged
near Licensee’s site for more than three consecutive days. In such cases one call costing no more
than $5.00 is permitted once a day.
Ground transportation shall be as pre-approved by Licensee prior to the start of the Services. Public
transportation should be used whenever possible; however, if necessary, rental car expenses, in
accordance with Section I herein, including gas actually purchased, will be reimbursed for authorized
travel only. Cab fare (on a shared basis whenever possible) is reimbursable. Receipts are required to
document all ground transportation charges.
Licensor shall rent the lowest automobile classification appropriate for the size or purpose of the group
using the vehicle.
Full Size/Standard Equipment
Licensor must fuel rental automobiles prior to turn-in as rental companies normally add a large service
charge to fuel costs.
Tolls and Fees
Transportation-related tolls and fees incurred while on Licensee business are reimbursable at actual
Baggage handling service fees are reimbursable at standard reasonable rates.
Other Business Expenses
Other business expenses shall be as preapproved by Licensee prior to the start of the Services.
Supplies, equipment rental, reprographics and facsimile expenses may be reimbursed when traveling
on Licensee business. Such expenses shall be billed at cost.
Licensee will not provide any reimbursement for personal entertainment expenses, alcoholic
beverages, travel expenses for family members, use of health club facilities, movies in hotels, personal
items, charitable contributions, or for any other type of expense not listed above.
Page 26 of 27
SPE DP & Info Sec Rider
Page 27 of 27