1
EXHIBIT 10.19
POWERHOUSE VALUE-ADDED RESELLER AGREEMENT
--------------------------------------------------------------------------------
By and Between:
COGNOS CORPORATION
A DELAWARE CORPORATION LOCATED AT
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------
CONTRACTUAL CONTACT PERSON/TELEPHONE NUMBER
(HEREIN REFERRED TO AS "COGNOS")
-AND-
▇▇▇▇▇-▇▇▇▇▇▇▇ & ASSOCIATES, INC.
A FLORIDA CORPORATION LOCATED AT
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------
CONTRACTUAL CONTACT PERSON/TELEPHONE
(HEREIN REFERRED TO AS " VAR")
2
1.0 DEFINITIONS
For the purpose of this Agreement, the following are defined terms:
1.1 The term "Software" shall mean the information processing
program(s), in object code or binary form only, and Related
Documentation (as hereinafter defined) developed and/or marketed by
COGNOS under the trade names set out in Schedule A for use on the
computer makes and models set out in Schedule A.
1.2 The term "Shrink-Wrapped Software" is included within the meaning
of the term Software and shall mean Software commonly distributed in a
sealed package which references the user to a COGNOS License Agreement
enclosed therein.
1.3 The term "Demonstration Software" is included within the meaning of
the term Software and shall mean a version of the Software which is
intended to be used for demonstration or evaluation purposes only and
which may contain coded instructions which inactivate or erase the
program within a specified time period or which is marked or otherwise
identified as being meant for demonstration or evaluation purposes.
1.4 The term "Related Documentation" is included within the meaning of
the term Software and shall mean the user manuals and any other
documentation which accompanies the Software on delivery.
1.5 The term "Sublicense" shall mean the written license set forth in
Schedule B, pursuant to which end users shall be licensed to use the
Software, or, with respect to Shrink-Wrapped Software, the written
license agreement that is embedded with the Shrink-Wrapped Software and
pursuant to which end users shall be licensed to use the Software. The
corresponding verb "sublicense" shall mean the act of granting an end
user the right to use the Software by means of binding the end user to
a "Sublicense".
1.6 The term "Sublicensee" shall mean an end user of. the Software who
has signed a Sublicense or who, in respect of shrink-wrapped Software,
has become a licensee of the Software by opening the sealed Software
container.
1.7 The term "Territory" shall mean the geographical area and
territories set out in Schedule A. This Agreement may be extended to
other geographical areas only by amendment in writing signed by both
parties.
1.8 The term "CPU" shall mean central processing unit.
1.9 The term "Subdistributor" shall mean an entity to which VAR has
granted, pursuant to Section 3. 1, a subset of the rights granted
herein by COGNOS to VAR.
Page 2 of 21
3
1.10 The term "Effective Date" shall mean the date last written below.
1.11 The term "Agreement" shall mean this PowerHouse Value-Added
Reseller Agreement entered into as of the Effective Date including all
Schedules attached hereto.
2.0 ACKNOWLEDGMENT OF COGNOS OWNERSHIP RIGHTS
2.1 VAR acknowledges that the Software and its Related Documentation
contain confidential and proprietary information and trade secrets
belonging to COGNOS and its licensors, that title and ownership rights
to the Software shall remain exclusively with COGNOS and its licensors,
and that VAR's rights to the Software are strictly limited to those
specifically granted in this Agreement.
2.2 Except as expressly permitted herein, VAR shall not make any copies
of the Software without the express written consent of COGNOS.
2.3 VAR shall not reverse compile the Software. VAR shall not remove or
alter any designations and marks on the Software. VAR shall not make
the Software available on a service bureau basis or in a time-sharing
environment without the express prior written consent of COGNOS.
3.0 LICENSE GRANT
3.1 COGNOS hereby grants to VAR, and VAR hereby accepts, subject to the
terms and conditions contained in this Agreement, a non-exclusive,
nontransferable license to manufacture, copy, market, demonstrate and
sublicense the Software to Sublicensees for use on CPUs located in the
Territory. Upon advance approval by COGNOS, VAR may grant to
Subdistributors in the Territory the right to market, demonstrate, and
sublicense the Software to Sublicensees for use on CPU's located in the
Territory, provided such Subdistributors first execute written
agreements with VAR containing terms and conditions substantially the
same as those contained herein including, without limitation, those for
the protection of COGNOS.
3.2 VAR's rights hereunder are always contingent upon VAR entering into
and maintaining in good standing a separate internal license and
support agreement (or alternatively a lease agreement) for the
Software. Any breach of such license and support (or lease) agreement,
including a failure to make any payment thereunder, shall entitle
COGNOS to unilaterally revoke any rights granted under this Agreement
without prior notice to VAR.
3.3 VAR's rights hereunder are further contingent upon VAR adding value
to the Software by providing to the Sublicensee products and/or
services as set out in Schedule C.
Page 3 of 21
4
3.4 VAR's right to sublicense the Software to an end user is further
contingent upon VAR's prior submission to COGNOS of two (2) original
and complete Sublicenses executed by VAR and the end user, or, with
respect to Shrink-Wrapped Software, ensuring that the Sublicense is
included in the sealed Software container delivered to the end user.
VAR will provide notice to COGNOS of any change to a Sublicense, and
such change must be approved by COGNOS in writing prior to execution by
VAR and the end user.
3.5 VAR's rights hereunder are further contingent on VAR having at all
times at least two (2) employees trained by COGNOS in the use and
installation of the Software.
4.0 VAR'S OBLIGATIONS
4.1 VAR agrees to pay to COGNOS the fees and charges set out in Article
6.0.
4.2 VAR agrees to not make, without the prior written consent of
COGNOS, any claim about COGNOS or the Software other than presenting
current information that has been either published by COGNOS or
developed jointly under this Agreement.
4.3 VAR agrees that on all matters relating to the use of COGNOS's
tradename, logo and trademarks, including, without limitation, all
advertising and marketing materials, VAR shall obtain prior written
approval of COGNOS in order to assure proper use.
4.4 VAR agrees to provide to COGNOS, concurrently with the Effective
Date and also within thirty (30) days of COGNOS's request therefor, a
business plan respecting the future marketing and sublicensing efforts
contemplated by VAR.
4.5 VAR agrees to provide support services as described in Schedule D
for all copies of the Software provided by VAR to Sublicensees.
4.6 VAR's right to leave Demonstration Software on a prospective
Sublicensees's CPU is contingent upon VAR obtaining from the
prospective Sublicensee prior to installation a duly executed
Sublicense for a thirty (30) day trial. Demonstration Software may not
be left on a Sublicensee's CPU for a period in excess of thirty (30)
days without the written consent of COGNOS.
4.7 VAR agrees to use its best efforts to market, demonstrate, and
sublicense the Software to end users in the Territory.
4.8 Within two (2) weeks of COGNOS's request, VAR agrees to provide
COGNOS with a written report detailing all Sublicensees by company
name, address, and contact name, trade name of Software licensed, and
CPU make, model, and serial number (only CPU model if Shrink-Wrapped
Software), and also setting forth all sublicense fees paid or due
hereunder.
Page 4 of 21
5
4.9 VAR agrees to enforce the Sublicense terms and conditions and, if
VAR in COGNOS's sole opinion fails to do so, then, at COGNOS's option
and effective immediately without the need for any further action, VAR
will be deemed to have assigned to COGNOS all rights under such
Sublicense as are required for COGNOS to enforce such terms and
conditions in its own name.
4.10 VAR agrees to provide COGNOS with a complete listing of VAR's
current installed end user base, which listing shall be attached hereto
as Schedule F.
5.0 COGNOS' OBLIGATIONS
5.1 COGNOS agrees to supply VAR with copies of the Software ordered by
VAR for distribution to Sublicensees promptly upon receipt of a
Sublicense as set forth in Section 3.4 of this Agreement. VAR may order
copies of the Software from COGNOS by providing COGNOS with a purchase
order which: (a) references this Agreement; (b) specifies the Software
to be licensed, (c) designates the make, model, serial number, and
location of the CPU to be licensed (only location and machine type if
Shrink-Wrapped Software); (d) states the ship-to address; and, (e)
indicates the then-current COGNOS local list price less any applicable
discount set forth in Schedule D. Alternatively, COGNOS will deliver to
VAR one (1) set of master diskettes for the current versions of each of
the items of Software listed in Schedule A. VAR should use the Master
Diskettes to copy and manufacture the Software for distribution to
sublicensees.
5.2 COGNOS agrees to supply VAR in a timely and efficient manner all
promotional material and Related Documentation ordered by VAR.
5.3 COGNOS shall provide VAR with Software support services under the
COGNOS Priority Support Program.
5.4 COGNOS agrees to make available, at its then current time and rate
schedule therefore, training for VAR's sales and support staff in the
marketing, sale, operation and use of the Software. Any additional
services requested by VAR shall be made available to VAR by COGNOS at
COGNOS's then current rates.
6.0 LICENSE FEES AND CHARGES
6.1 VAR shall pay COGNOS a fee equal to the then-current COGNOS local
list price (Single Copy local list price for Shrink-Wrapped Software)
for each copy of the Software sublicensed by VAR in the country in the
Territory where the licensed CPU is located less the discount set forth
in Schedule D.
6.2 VAR shall pay to COGNOS annually in arrears a fee for support
services as provided in Schedule D.
Page 5 of 21
6
6.3 All fees are stated and payable in United States Dollars. The
exchange rate that COGNOS shall apply in order to translate the
Sublicense fee from the local list price currency into the currency of
payment stipulated herein shall be the closing exchange rate published
by the First National Bank of Boston on the date of receipt by COGNOS
of the Sublicense. All sales and other taxes relating to a Sublicense,
including those levied by federal, state, municipal or other
governmental authority, shall be paid by VAR.
6.4 All monies payable under this Agreement are due upon receipt of
invoice. VAR agrees to pay interest on accounts overdue by more than
thirty (30) days at a rate of one and one half percent (1.5%) per month
or the maximum legal interest rate whichever is less.
6.5 COGNOS reserves the right to change the terms of payment herein
when VAR's previous payment record shows that VAR is consistently in
arrears by sixty (60) days or more. VAR will be advised in writing of
any change in the payment terms.
6.6 COGNOS reserves the right to establish new list prices from time to
time. COGNOS will honor outstanding written quotations of VAR for sixty
(60) days after the effective date of the price change provided those
written quotations are delivered to COGNOS within twenty (20) days of
the notification.
6.7 In the event VAR introduces COGNOS to a software license
opportunity, VAR shall be entitled to a finders fee equal to 10% of the
total license fee received by COGNOS, provided that: (a) COGNOS was not
previously aware of the opportunity; (b) VAR has submitted to COGNOS a
completed Cooperative Marketing Form (Schedule E); and, (c) COGNOS
completes a license with the end user through VAR's continuing
assistance and COGNOS is paid the appropriate license fee by the end
user.
7.0 CONFIDENTIAL INFORMATION
7.1 In order for VAR and COGNOS to effectively carry out their
respective obligations hereunder, each party may from time to time
disclose to the other party confidential information. Confidential
information shall be clearly designated in writing as confidential, or
if verbally disclosed, identified as being confidential, and within ten
(10) days of such disclosure, a written memorandum shall be sent to the
receiving party confirming that the information is confidential.
Confidential information does not include:
(a) information generally available to or known to the public;
(b) information previously known;
(c) information independently developed outside the scope of this
Agreement; or
(d) information lawfully disclosed by a third party.
7.2 Each party acknowledges a relationship of trust and confidence with
respect to the confidential information of the other. Each party agrees
that it shall not disclose confidential information of the other to any
third party without the express written consent of the other
Page 6 of 21
7
party, that it shall not make use of any such confidential information
other than for performance of this Agreement, and that it shall use at
least the same degree of care to avoid disclosure of such information
as it uses with respect to its own confidential information.
7.3 VAR acknowledges that its obligations set forth in Section 7.2
above shall apply to the Software, Related Documentation, and all of
the terms of this Agreement.
8.0 WARRANTY
OTHER THAN THE WARRANTY SET FORTH IN SCHEDULE B, COGNOS DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE PROVIDED
UNDER THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, THOSE OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.0 LIMITATION OF LIABILITY
9.1 Neither party shall be liable or deemed to be in default for any
delay or failure to perform its obligations hereunder if such failure
results directly or indirectly from any cause beyond its reasonable
control.
9.2 COGNOS SHALL IN NO EVENT BE LIABLE TO VAR, SUBDISTRIBUTORS, OR
SUBLICENSEES, FOR LOSS OF PROFITS, OR SPECIAL, INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING COSTS OR LEGAL EXPENSES,
IN CONNECTION WITH THE SUPPLY, USE, OR PERFORMANCE OF THE SOFTWARE.
9.3 COGNOS'S TOTAL LIABILITY TO VAR, SUBDISTRIBUTORS, OR SUBLICENSEES
FOR ANY CLAIM FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO
DIRECT DAMAGES AND SHALL NOT EXCEED THE SUM OF TWENTY THOUSAND DOLLARS
(U.S.) ($20,000.00) PER INCIDENT OR ONE HUNDRED THOUSAND DOLLARS (U.S.)
($100,000.00) IN THE AGGREGATE.
10.0 TERM AND TERMINATION
10.1 The term of this Agreement shall commence on the Effective Date
and shall continue in force for two (2) years from such date.
10.2 Thereafter the Agreement may be renewed upon mutual written
agreement of the parties.
Page 7 of 21
8
10.3 Either party ("Terminating Party") may immediately terminate this
Agreement or suspend any rights granted hereunder upon notice to the
other in the event that the other ("Defaulting Party"): (a) breaches
any material term of this Agreement; (b) merges or becomes amalgamated
with another firm, person or corporation with which the Terminating
Party in its sole opinion deems itself to be in competition; (c) sells
or transfers fifty percent (50%) or more of its voting or potential
voting shares; (d) ceases conducting business in the normal course, is
adjudged bankrupt or insolvent, or becomes subject to any proceeding
for the protection of the rights of its creditors; or (e) fails to
perform any obligation under this Agreement within fifteen (15) days
after notice from the Terminating Party.
10.4 On expiration or termination, each party shall promptly remit to
the other all unpaid monies due under this Agreement.
10.5 All obligations set forth in Sections 2.0 and 7.0 shall survive
expiration or termination of this Agreement.
11.0 GENERAL PROVISIONS
11.1 Schedules A, B, C, D and E as amended from time to time are hereby
incorporated into and form part of this Agreement.
11.2 VAR hereby grants COGNOS the right, which COGNOS will exercise
reasonably and at its own expense, to enter VAR's premises during
business hours on forty-eight (48) hours notice for the purpose of
examining VAR's relevant books and records or to have such books and
records examined by its certified public accountant to verify the
locations and hardware into which copies of the Software have been
installed by VAR as well as VAR's fulfillment of its obligations set
forth herein.
11.3 VAR is an independent contractor and the parties are not agents or
legal representatives of each other and have no power of attorney to
represent, act for, bind or commit each other except as described in
this Agreement. Neither execution nor performance of this Agreement
shall be construed to have established any joint venture or partnership
between COGNOS and VAR.
11.4 No delay or failure in exercising any right hereunder and no
partial or single exercise thereof shall be deemed to constitute a
waiver of such right or any other rights hereunder. No consent to a
breach of any express or implied term of this Agreement shall
constitute a consent to any subsequent breach.
11.5 In the event that any provision of this Agreement shall not be
enforceable, the remainder of this Agreement shall remain in full force
and effect.
Page 8 of 21
9
11.6 VAR agrees that it shall not have the right to assign its rights
under this Agreement without the prior written consent of COGNOS.
11.7 All covenants, agreements and conditions of this Agreement shall
be binding upon and enure to the benefit of both parties hereto and
their representatives as allowed herein.
11.8 This Agreement and any matter relating thereto shall be governed,
construed and interpreted in accordance with the laws of the
Commonwealth of Massachusetts.
11.9 This Agreement constitutes the full and entire understanding and
agreement between VAR and COGNOS with respect to the marketing,
demonstration and sublicensing of the Software and supersedes all
negotiations, commitments, purchase order, memoranda and any other
writings with respect thereto. No modifications or amendments to the
terms of this Agreement shall be effective unless in writing and signed
by the duly authorized representatives of VAR and COGNOS.
11.10 Any notices, requests or demands shall be in writing and
delivered or mailed to the other at the address written on the front
page of this Agreement. Each party shall promptly give written notice
of any change in its address or addressee. All notices shall be sent
either by registered or certified mail, postage prepaid, or by
facsimile transmission with answerback. Notices shall be deemed to be
received on the fifth business day after mailing, or by facsimile
transmission with answerback, upon transmission. In the case of a mail
interruption such notices, requests or demands shall be delivered by
prepaid courier delivery or facsimile transmission with answerback.
This Agreement is effective the 18th day of February, 1994.
---------------------------- ---------------------------------
▇▇▇▇▇-▇▇▇▇▇▇▇ & ASSOCIATES, COGNOS CORPORATION
INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ---------------------------------
Signature Signature
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ---------------------------------
Printed Name Printed Name
President V.P. Partner Channels
---------------------------- ---------------------------------
Title Title
Page 9 of 21
10
SCHEDULE A
SOFTWARE AND TERRITORY
SOFTWARE
Tradenames Hardware Platforms
---------- ------------------
PowerHouse Development Hewlett Packard MPE/ix
PowerHouse RunTime
PowerHouse Reporting Only (no Dictionary)
InQuizitive
PowerPlay Administrator IBM PC and Compatibles
PowerPlay Enterprise
Impromptu Administrator
Impromptu Enterprise
TERRITORY
United States
Page 10 of 21
11
SCHEDULE B
SUBLICENSE AGREEMENT
COGNOS CORPORATION, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter referred to as COGNOS) by its acceptance hereof, grants that:
VAR
Name
------------------------------------------------------------------------
Address
------------------------------------------------------------------------
------------------------------------------------------------------------
Telephone Contact
------------------------------------ -----------------------------
(hereinafter referred to as the VAR) has sublicensed to the following:
SUBLICENSEE
Name
------------------------------------------------------------------------
Address
------------------------------------------------------------------------
------------------------------------------------------------------------
Telephone Contact
------------------------------------ -----------------------------
(hereinafter referred to as the SUBLICENSEE) a non-exclusive, non-transferable
limited right to use from the date hereof for:
a thirty (30) day evaluation period
------
a ninety-nine (99) year license period
------
subject to the within TERMS AND CONDITIONS, on the following computers:
CPU #1
-------------- ----------------- ----------------------
Make Model Serial Number
CPU #2
-------------- ----------------- ----------------------
Make Model Serial Number
Media:
-----------------
(for which the VAR value-added product is also licensed) located at the
following sites:
CPU #1
Name
---------------------------------------------------------------------
Address
---------------------------------------------------------------------
---------------------------------------------------------------------
Telephone Contact
------------------------------------- -------------------------
VAR product(s)
-----------------------------------------------------------------
Page 11 of 21
12
CPU #2
Name
---------------------------------------------------------------------
Address
---------------------------------------------------------------------
---------------------------------------------------------------------
Telephone Contact
---------------------------------------- ----------------------
VAR product(s)
-----------------------------------------------------------------
the following COGNOS products:
CPU #1
-------------------------------------------------------------------------
CPU #2
-------------------------------------------------------------------------
(hereinafter referred to as COGNOS SOFTWARE or the SOFTWARE).
Accepted this day of of 19 by: Accepted this day of 19 by:
---- -------- -- --- ----- --
------------------------------- --------------------------------
SUBLICENSEE Company Name VAR Company Name
------------------------------- --------------------------------
Authorized Signature Authorized Signature
------------------------------- --------------------------------
Printed Name Printed Name
------------------------------- --------------------------------
Title Title
Accepted this day of 19 by:
--- ---------- --
COGNOS CORPORATION
--------------------------------
Regional Manager
Page 12 of 21
13
TERMS & CONDITIONS
1. The VAR warrants that it is a currently authorized distributor of COGNOS
SOFTWARE.
2. The SOFTWARE is licensed for use only on a single standard computer system of
make, model, serial number and location of use as designated. The SUBLICENSEE
shall obtain the written authorization of COGNOS prior to moving the SOFTWARE to
any other replacement computer system. COGNOS shall not unreasonably withhold
authorization provided that the SUBLICENSEE shall have paid any fees applicable
to use of the SOFTWARE on a different computer model.
3. The SUBLICENSEE is prohibited from offering the SOFTWARE in a service bureau
or time-sharing environment unless such use is authorized in writing by COGNOS.
4. The SUBLICENSEE acknowledges and agrees that title and ownership of the
SOFTWARE and patents, trademarks and copyrights related thereto are the
exclusive property of COGNOS and the SUBLICENSEE shall only acquire the right to
use the SOFTWARE in accordance with the within Agreement.
5. The SUBLICENSEE acknowledges that the SOFTWARE is COGNOS proprietary
information and trade secret whether or not any portion thereof is or may be
copyrighted or patented. The SOFTWARE or any derivation thereof may not be
copied onto any medium by the SUBLICENSEE or any other person, firm or
corporation without the written consent of COGNOS save and except for archival
or emergency restart purposes or to replace a defective copy or for program
error verification.
6. The SUBLICENSEE acknowledges that all SOFTWARE and other materials provided
under this Agreement are valuable assets and trade secrets of COGNOS and the
SUBLICENSEE agrees to hold the SOFTWARE and other materials in confidence and to
take all necessary steps to ensure that the SOFTWARE and other materials are
kept confidential.
7. COGNOS warrants that:
(a) the medium on which the program is furnished is warranted to be
free of defects in materials and workmanship under normal use for a period of
thirty (30) days from the date of delivery of the Software;
(b) THE WARRANTY UNDER (A) ABOVE IS IN LIEU OF ALL OTHER WARRANTIES,
EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND
(c) the program contained on the medium is provided without warranty of
any kind and the Sublicensee is responsible for the entire risk with respect to
the quality and performance of the program.
Page 13 of 21
14
Neither COGNOS nor the VAR shall be liable whatsoever for loss of
profits or special, indirect, consequential or exemplary damages, including
costs or legal expenses, in connection with the supply, use or performance of
the SOFTWARE. The total liability of COGNOS and the VAR hereunder in any event
shall not exceed the sublicense fee paid for the SOFTWARE.
8. The SUBLICENSEE will not sublicense, rent or otherwise convey or make
available the COGNOS SOFTWARE outside of its own company. This Agreement may not
be assigned without the written consent of the VAR and COGNOS.
9. The SOFTWARE will be maintained by VAR or jointly by VAR and COGNOS. During a
Support term COGNOS shall (a) ensure that the SOFTWARE continues to operate in
accordance with its related documentation, (b) use its best efforts to correct
problems associated with the SOFTWARE, and (c) issue program and documentation
enhancements to the SOFTWARE which are released in that term. All enhancements
are subject to the restricted use provisions of this Agreement. Support when
purchased must be purchased for all copies of the SOFTWARE licensed to the user
and is provided only for the most current production release of the SOFTWARE.
Any unauthorized modification or use of the SOFTWARE shall render all Support
obligations null and void. In the event the hardware vendor discontinues support
of a feature upon which Support is dependent, COGNOS shall not be required to
continue Support for such feature.
10. The COGNOS SOFTWARE will be maintained as follows:
site # COGNOS Product(s) Sublicensee
(Initials)
Maintained by VAR:
-------- -------------------- ------------
-------- -------------------- ------------
-------- -------------------- ------------
-------- -------------------- ------------
Maintained by COGNOS and
VAR (jointly) -------- -------------------- ------------
-------- -------------------- ------------
-------- -------------------- ------------
-------- -------------------- ------------
Page 14 of 21
15
SCHEDULE C
VALUE ADDED PRODUCTS AND/OR SERVICES
VAR's right to sublicense the Software is contingent upon VAR having licensed to
the end user on the same CPU application software product(s) marketed under the
name of MACS II which have a value at least equivalent to the list price of the
sublicensed Software.
Page 15 of 21
16
SCHEDULE D
FEES, DISCOUNTS, AND SUPPORT
FEES
SUBLICENSE FEES
VAR shall pay COGNOS a fee for each copy of the Software sublicensed by VAR.
Sublicense fees shall be determined by subtracting the then current VAR discount
from the then current local list price for the Software.
On or before February 28, 1994, VAR shall pay COGNOS One Hundred and Twenty-Five
Thousand Dollars ($125,000.00) as a non-refundable prepayment against future
sublicense fees due COGNOS. The actual sublicense fees will be reconciled
against this prepayment. When the actual sublicense fees due to COGNOS exceed
the prepayment amount, then VAR shall remit such additional sublicense fees to
COGNOS in accordance with the provisions of this Agreement.
MANUALS
VAR shall pay COGNOS 85% of the then current local list price for all manuals.
SALES LITERATURE
VAR may purchase COGNOS sales literature at COGNOS's cost.
SUPPORT
VAR has two options for supporting Sublicensees of COGNOS Software.
FIRST LINE SUPPORT - First line support for all Software licensed by VAR will be
priced on an annual basis, in arrears, at 8% of the then-current local list
price of the Software less the VAR's discount set forth following.
If the VAR is responsible for providing first line support to their
Sublicensees, the Sublicensee will call the VAR for telesupport assistance. If
the VAR cannot resolve the problem, the VAR can call COGNOS telesupport for
assistance. The Sublicensee cannot call COGNOS telesupport directly under this
support arrangement.
COGNOS provides the VAR with new product releases and technical newsletters for
distribution to its Sublicensees.
Page 16 of 21
17
Support renewals are invoiced to the VAR and are priced at 8% of the
then-current local list price of the Software less the then-current VAR discount
set forth following.
JOINT SUPPORT - Joint support for all Software licensed by VAR will be priced on
an annual basis at COGNOS's then-current local list price therefor.
With joint support the Sublicensee can call either the VAR or COGNOS for
telesupport. COGNOS provides the VAR with new product releases and technical
newsletters for distribution to their Sublicensees.
Support renewals are invoiced to VAR at COGNOS's then-current local list price
therefor.
Page 17 of 21
18
SCHEDULE D
VAR DISCOUNT
INSTALLED END USER CUSTOMER DISCOUNTS
For the purposes of this Agreement, COGNOS shall make available to VAR a seventy
percent (70%) discount off the then-current local list price for the Software
for all Software license orders from VAR's installed end user base as listed in
Schedule F in accordance with the terms and conditions indicated below.
NEW BUSINESS DISCOUNTS
For the purposes of this Agreement, COGNOS shall make available to VAR for new
business orders the following discounts in accordance with the terms and
conditions indicated below:
Level of Discount Volume Level Commitment Discount
----------------- ----------------------- --------
A $ 0 - $49,999 15%
B $ 50,000 - $99,999 30%
C $100,000 - $174,999 40%
D $175,000 - $249,999 50%
E $250,000 - $499,999 55%
F $500,000 - $749,999 60%
G $750,000 - $999,999 65%
H $1,000,000+ + 70%
DESKTOP DISCOUNTS
For purposes of this Agreement, COGNOS shall make available to VAR for orders of
the Impromptu and PowerPlay items of Software, a twenty-five percent (25%)
discount off the then-current local list price in accordance with the terms and
conditions indicated below.
TERMS AND CONDITIONS APPLICABLE TO DISCOUNTS
1. The above Discounts apply to Software license fees only. Fees for education,
consulting, support, and other services that VAR may purchase from COGNOS are
not subject to the Discounts described herein.
Page 18 of 21
19
2. The term "Year" as used herein shall mean the period commencing upon the
Effective Date and expiring one year thereafter, and each additional
twelve-month period thereafter during the term of the Agreement.
3. During each Year, VAR will select a Level of Discount commensurate with VAR's
Volume Level Commitment for that Year. For the first Year of the term of the
Agreement VAR selects LEVEL D. For Software license orders received by COGNOS
during such first Year, the Discount shall be a flat rate applied equally to
COGNOS's then-current local list price for the Software.
4. Only net Sublicense fees, new Support fees, new internal Software license
fees and new internal Support fees count towards the Volume Level Commitment.
5. At the end of the first Year, in the event VAR has achieved a higher Level of
Discount, COGNOS shall apply the higher Discount to all Software license orders
received in that Year and shall credit VAR the difference between the Discount
taken and the Discount actually achieved. Alternatively, in the event VAR has
not achieved the selected Level of Discount, COGNOS shall invoice VAR the
difference between the Discount taken and the Discount actually achieved.
6. During each subsequent Year of the term of the Agreement, COGNOS shall
invoice VAR the then-current local list price less the Discount commensurate
with the Level of Discount actually achieved in the preceding Year or, if
mutually agreed, at the Level of Discount commensurate with a different Volume
Level Commitment. The procedures listed in paragraph 5 above shall be used if
VAR achieves a higher or lower actual Level of Discount in that Year.
7. Software upgrades for VAR's installed end user customers shall be governed by
the New Business Discounts.
8. VAR's end user customers shall be entitled to a trade-in allowance equivalent
to what the end user customer paid for software if the end user customer
upgrades the software or trades in a CPU license for a higher machine group CPU
license.
9. Additional Copy pricing (as described in the COGNOS Products/Policies) shall
apply only if the additional copy of Software is licensed simultaneously with
the first copy.
Page 19 of 21
20
SCHEDULE E
COOPERATIVE MARKETING FORM
▇▇▇▇▇-▇▇▇▇▇▇▇ & ASSOCIATES, INC.
--------------------------------------------------------------------------------
PROSPECT COMPANY NAME
--------------------------------------------------------------------------------
ADDRESS
--------------------------------------------------------------------------------
ADDRESS
--------------------------------------------------------------------------------
TECHNICAL CONTACT NAME TITLE PHONE
--------------------------------------------------------------------------------
DECISION MAKER TITLE PHONE
OPPORTUNITY SIZE: MODEL CPU CPU SERIAL #(IF APPLICABLE)
---------------------- ------------------------------------------------
TOTAL # OF COPIES
------------------------------------------------
REQUIREMENT FOR THE SOFTWARE:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
----------------------------------------
FORECASTED CLOSE DATE OF THE SOFTWARE
COGNOS ACCOUNT REPRESENTATIVE - ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------- -------- ---------------------------- ---------
THIRD PARTY REPRESENTATIVE DATE COGNOS FIELD SALES REP. DATE
------------------------------ ---------------------------- ----------
THIRD PARTY ADDRESS U.S. MANAGER, DATE
THIRD PARTY OPERATIONS
------------------------------
THIRD PARTY ADDRESS
Page 20 of 21
21
SCHEDULE F
VAR'S CURRENT INSTALLED END USER LIST
Page 21 of 21