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:
1. Definitions
1.1 “Affiliate” shall mean any company that directly or indirectly controls, is controlled by, or is under common control with Licensee or its successor.
1.2 “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.
1.3 "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.
1.4 “Identity Cube” means a unique collection of identitiesidentity 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 dataThese identities 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.
1.5 "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.
1.6 “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 customization.
1.7 "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.
1.8 “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.
2. THE LICENSED SOFTWARE
2.1 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, nonexclusive, 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.
2.2 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.
2.3 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.
2.3.1 The Software and Documentation may be copied in whole or in part, in printed or machine-readable 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.
2.3.2 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.
2.3.3 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.
2.4 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 Licensee.
2.4.1 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.
2.4.2 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 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.
2.5 Reserved.
2.6 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. Licensor agrees that, unless otherwise specified in the Schedule, Licensee (i) shall have the right to enhance, modify and/or adapt any of the Software and/or materials provided to Licensee hereunder and (ii) may create and use derivative works and may use and combine the Software with other programs and/or materials.
2.7 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 .
2.8 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.
2.9 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.
2.10 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.
2.11 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, 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.
2.12 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.
2.13 The rights and privileges granted herein shall extend to Licensee and its present and future Affiliates.
3. DELIVERY; ACCEPTANCE
3.1 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.
3.2 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.
3.3 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.
4. DOCUMENTATION AND PROFESSIONAL SERVICES