EXHIBIT 10.18
GEMSTONE SYSTEMS, INC. DOMESTIC SOFTWARE LICENSE AGREEMENT
This Agreement is made by and between GemsStone Systems, Inc. ("GEMSTONE"), an
Oregon corporation, and the Licensee, each being identified and having a place
of business as given on the face of this Agreement.
1. DEFINITIONS
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As used herein, the terms set forth below shall have the following respective
meanings:
1.1 "GEMSTONE" shall mean GemStone Systems, Inc., and shall not mean any
subsidiary, affiliate, or other person or entity associated with GemStone
Systems, Inc.
1.2 "Licensee" shall mean the entity identified on the face page of this
Agreement, and shall not mean any subsidiary, affiliate, or other person or
entity associated the Licensee, including, without limitation, any governmental
authority.
1.3 "Software Products" shall mean the products identified in the Product
Description on the face page of this Agreement in the form delivered, for which
the terms of payment set out in Section 8.0 PAYMENT below have been met, and all
updates of the same provided to Licensee under the terms of this Agreement.
1.4 "Documentation" shall mean manuals identified in the Product Description on
the face page of this Agreement.
1.5 "Server Computer System" shall mean a computer system that executes control
processes within a GemStone environment and contains one or more extents of a
single Logical GemStone Database. Server Computer Systems may be at the same
site or at geographically distributed sites from other Server Computer Systems
or Client Computer Systems.
1.6 "Client Computer System" shall mean a computer system that can execute
Software Products that access a single Logical GemStone Database. Client
Computer Systems may be at the same site or at geographically distributed sites
from Server Computer Systems or other Client Computer Systems.
1.7 "Logical GemStone Database" shall mean a domain of information controlled
by a common schema and common control processes within a GemStone environment.
A Logical GemStone Data can span multiple Server Computer Systems.
1.8 "Named Developer" shall mean an individual who is authorized by Licensee to
develop and/or run applications using Software Products that access a single
Logical GemStone Database.
1.9 "Named User" shall mean an individual who is authorized by Licensee to run
applications using Software Products that access a single Logical GemStone
Database; a Named Developer, or an unattended hardware device that could supply
information to or obtain information from the Logical GemStone Database.
1.10 "Concurrent User" shall mean an individual who is connected to a
Licensee's single Logical GemStone Database; an individual connected to the
Logical GemStone Database through a multiplexed front end, such as a transaction
processing monitor, or an unattended hardware device that is connected to the
Logical GemStone Database.
2. LICENSE GRANT
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2.1 GEMSTONE hereby grants to Licensee, and Licensee hereby accepts from
GEMSTONE, a non-exclusive license, without right to sublicense, to use the
Software Products and Documentation; provided, however, that such use of the
Software Products shall be limited to use by Licensee accessing a single Logical
GemStone Database on Server Computer Systems or on Client Computer Systems
connected to Server Computer Systems. Access to or use of a form or release of
Software Products other than as delivered is not granted by this license.
GEMSTONE reserves all rights not expressly granted by this Agreement.
2.2 Licensee's use of Software Products is limited to use by the number of
Named Developers, Named Users, or Concurrent Users so indicated on the Product
Description page of this Agreement plus any subsequent Named Developers, Named
Users, or Concurrent Users indicated in any authorized amendment to this
Agreement. Users indicated in any authorized amendment to this Agreement.
Licensee shall have in place with its Named Developers, Named Users, Concurrent
Users, employees, agents and others appropriate agreements to satisfy Licensee's
obligations under this Agreement, including, but not limited to obligations
undertaken in Section 7.
2.3 Software Products may be removed from one Server Computer System and
transferred to another Server Computer System or from one Client Computer System
and transferred to another Client Computer System after notification to
GEMSTONE. An associated transfer fee will be assessed. Use of Software
Products may be transferred from one Named Developer to another Named Developer,
or from one Named User to another Named User, or from one Concurrent User to
another Concurrent User without charge.
3. OWNERSHIP
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3.1 Title to and ownership of Software Products, including all copies thereof,
and all rights therein including trade secrets, patents and copyrights, shall
remain with GEMSTONE. No title or ownership of Software Products or any part
thereof, is transferred to Licensee.
4. PROPRIETARY NOTICES
------------------------
4.1 Licensee shall not remove or alter GEMSTONE's ownership, trademark,
copyright, or other proprietary notice on Software Products or Documentation.
4.2 Where applicable, the Software Products and Documentation shall be marked
with appropriate Restricted Rights legends under the Federal Acquisition
Regulations (FAR) or other similar regulations. The Software Products are
provided only with restricted rights as set out in this Agreement.
5. USE RESTRICTIONS
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5.1 Licensee shall not modify, adapt, translate, reverse engineer, decompile,
or disassemble Software Products. Licensee agrees not to develop derivative
works which are intended to be functionally equivalent substitutes for the
Software Products or any part thereof. Licensee shall not modify, adapt,
translate, or create derivative works based on the Documentation without prior
written permission from GEMSTONE.
6. COPY RESTRICTIONS
----------------------
6.1 Licensee shall not copy Software Products or Documentation except as
required for use of the Software Products as provided in this Agreement, and for
archival storage to assure against loss. Licensee must reproduce and include
the
GEMSTONE copyright notice and other proprietary notices on each archival copy.
7. CONFIDENTIALITY
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7.1 Licensee understands and acknowledges that GEMSTONE has proprietary trade
secrets and confidential information in Software Products, and therefore will
hold the Software Products in confidence.
7.2 Notwithstanding anything in this Agreement, Licensee shall have no
obligation to hold any information in confidence to the extent that Licenses can
show by documentary evidence that such information: (a) is already known to
Licensee at the time it is obtained by Licensee from GEMSTONE, free from any
obligation to hold such information in confidence; (b) is or becomes publicly
known through no wrongful act of Licensee; (c)is rightfully received from a
third party without restriction and without breach of any obligation to
GEMSTONE or its suppliers; or (d) is independently developed by Licensee without
use of any confidential information of GEMSTONE or its suppliers.
7.3 Information regarding performance of the Software Products received from
GEMSTONE or developed by Licensee shall be maintained by Licensee as GEMSTONE
confidential information and Licensee shall not disclose such information to any
outside entity, including, but not limited to, industry analysts, trade press,
GEMSTONE's competitors, or other business entities without GEMSTONE's prior
written consent.
7.4 Licensee's obligations under this Section 7 shall survive termination of
this Agreement.
8. PAYMENT
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8.1 Full payment is due within 30 days from the date of mailing an invoice for
the Software Products or Documentation to Licensee. All amounts are payable in
U.S. Dollars by check or money order payable to GemStone Systems, Inc. All
Taxes, if any, are to be paid by Licensee, except for taxes on the income or
revenue of GEMSTONE.
9. TERM AND TERMINATION
-------------------------
9.1 The term of this Agreement shall commence on the effective date of this
Agreement and shall continue until terminated pursuant to this Section 9.
9.2 Either party may, by written notice, terminate this Agreement if the other
party fails to remedy any default under this Agreement within thirty (30) days
of receipt of written notice specifying such default.
9.3 Upon termination of this Agreement for any reason, all licenses granted
hereunder shall terminate, Licensee shall immediately cease use of and shall
return to GEMSTONE all copies of the Software Products and Documentation.
10. SHIPMENT
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10.1 GEMSTONE shall ship Software Products or Documentation ordered by Licensee
as soon as practical after acceptance of Licensee's order. All shipments of
Software Products and Documentation shall be F.O.B. Beaverton, OR, and the risk
of loss shall pass to Licensee upon delivery to the carrier. When an order is
not accompanied by shipping instructions, GEMSTONE shall select the carrier. In
no case shall GEMSTONE assume any liability in connection with the shipment nor
shall the carrier be construed as an agent for GEMSTONE. GEMSTONE shall not be
liable for any damages or penalties for delivery delays due to causes beyond its
reasonable control. All shipping, handling, and insurance charges, if any are to
be paid by Licensee.
10.2 Each order paced by Licensee for Software Products or Documentation shall
be deemed to incorporate all of the terms and conditions of this Agreement. Any
terms and conditions of such order which are in addition to or inconsistent with
the terms of this Agreement shall be deemed stricken from such order.
11. SUPPORT
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11.1 GEMSTONE will deliver to Licensee any updates to the Software Products and
Documentation released for general availability during the 90 days following the
effective date of this Agreement, provided full payment of all license fees due
under this Agreement has been received by GEMSTONE. GEMSTONE will, for the 90
days following the effective date of this Agreement, as is reasonable, assist
Licensee by receiving telephone calls from Licensee at telephone number (503)
▇▇▇-▇▇▇▇ (or such other telephone number as may be established for this purpose
from time to time by GEMSTONE) and communicating data to Licensee via electronic
mail to answer a reasonable number of questions about Software Products and
Documentation. GEMSTONE shall not be obligated to assist Licensee other than as
specified herein. After the initial 90 day period, continued updates and support
will be the subject of a separate Software Maintenance Agreement.
12. WARRANTY; LIMITATION OF LIABILITY
--------------------------------------
12.1 GEMSTONE warrants that Software Products will perform substantially in
accordance with the Documentation for a period of ninety (90) days after the
date the Software Products have been shipped to Licensee (hereinafter "Warranty
Period").
12.2 During the Warranty Period, GEMSTONE shall attempt, without charge, to
diagnose, verify and correct errors or defects in the Software Products that are
identified in writing by notice to GEMSTONE, and any corrections for errors or
defects may, at GEMSTONE's election, be installed directly and/or incorporated
in subsequent updates to be delivered to Licensee from GEMSTONE.
12.3 Any modifications or other alterations of a Software Product by Licensee
without the approval of GEMSTONE shall, without limiting GEMSTONE's other
remedies, void GEMSTONE's warranty and software maintenance obligations unless
and until the Software Product is returned to its unaltered state.
12.4 GEMSTONE shall have no responsibility for delivering to Licensee any
subsequent versions of the Software products or Documentation that it may
develop in the future.
12.5 GEMSTONE's liability to the Licensee for all damages, costs, claims, or
demands incurred or suffered by or awarded against GEMSTONE arising directly or
indirectly out of the performance or any breach of this license shall in no
event exceed the total amount paid to GEMSTONE under this License.
12.6 THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED
OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS MAY BE OTHERWISE PROVIDED IN THIS
AGREEMENT, GEMSTONE SHALL NOT BE RESPONSIBLE TO LICENSEE OR TO ANY THIRD PARTY
FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER IN CONTRACT OR TORT, DUE TO ANY FORESEEN OR UNFORESEEN CAUSE FROM
LICENSEE'S OR ANY THIRD PARTY'S USE OR THE PERFORMANCE OF THE SOFTWARE PRODUCTS
UNDER THIS AGREEMENT.
13. INDEMNITY BY GEMSTONE
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13.1 GEMSTONE agrees to indemnify Licensee, as limited by this paragraph, with
respect to any suit, claim or proceeding brought against Licensee alleging that
Licensee's use of the Software Products constitutes an infringement of any valid
United States patent or copyright. GEMSTONE agrees to defend Licensee against
any such claims and to pay litigation costs, reasonable attorney's fees, and
damages awarded by a court of competent jurisdiction: if, and only if, Licensee
promptly gives notice to GEMSTONE of any such suit, claim or proceeding and
cooperates with GEMSTONE in the defense or settlement of such suit, claim or
proceeding; and provided that GEMSTONE shall have sole control thereof.
13.2 If a claim or allegation is made, or in either party's judgment is likely
to arise, Licensee agrees that GEMSTONE may, at GEMSTONE's option:
(i) procure for Licensee the right to continue using the portion of the
Software Product enjoined from use;
(ii) replace or modify the Software Product so that Licensee's use is not
subject to any such injunction; or
(iii) accept return of the Software Product to GEMSTONE, and in the event of
such return, GEMSTONE shall refund the license fee paid for the Software
Product.
GEMSTONE shall have no further liability or obligations arising from patents of
copyrights under this Agreement.
13.3 This indemnity of section 13 shall not apply to claims arising from any
Software Product that has been modified or altered other than by GEMSTONE.
14. INDEMNITY BY LICENSEE
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14.1 Because GEMSTONE has no knowledge of, or control over, the applications of
the Software Products made by Licensee, and is therefore unable to assess any
risks of personal injury or damage arising from the applications made by
Licensee, Licensee assumes all risks, and agrees to indemnify GEMSTONE, and hold
GEMSTONE harmless, with respect to any suit, claim or proceeding brought against
GEMSTONE alleging that use by, or under authority of, Licensee, of the Software
Products caused personal injury or property damage.
15. GENERAL
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15.1 This agreement may be amended only by a written instrument stating an
intention to modify this Agreement and signed by a duly authorized
representative of the party to be bound.
15.2 Failure by either party at any time to require performance by the other
party or to claim a breach of any term or condition of this Agreement shall not
be construed as affecting any subsequent breach or the right to require
performance with respect thereto or to claim a breach with respect thereto.
15.3 This Agreement may not be assigned by either party without the prior
written permission of the other party, which permission shall not be
unreasonably withheld.
15.4 If any provision in this Agreement may be held to be invalid or
unenforceable in any jurisdiction in which this Agreement is being performed,
the meaning of such provision shall be construed so as to render it enforceable
to the extent feasible. If no feasible interpretation would save such provision,
it shall be severed from this Agreement and the remainder shall remain in full
force and effect. However, in the event such provision is considered an
essential element of this Agreement, the parties shall promptly negotiate
alternative, reasonable equivalent, enforceable terms.
15.5 The rights and obligations of the parties and all interpretations and
performance of this Agreement shall be governed in all respects by the laws of
the State of Oregon.
15.6 Notices shall be transmitted in writing by certified U.S. Mail, postage
prepaid, return receipt requested, addressed to the parties at an address
specified on the face page of this Agreement or to such other address as is
provided by notice.
15.7 Any notice given pursuant to Paragraph 15.6 shall be effective four (4)
days after the day it is mailed or upon receipt as evidenced by the U.S. Postal
Service return receipt card, whichever is earlier.
15.8 Section heading are inserted for convenience only and shall not be used in
any way to construe the terms of this Agreement.
The terms and conditions appearing on the face page and in the Software License
Agreement set forth the entire agreement between the parties. By executing this
Agreement, I acknowledge that I have read and understand all these terms and
conditions, and that I have the authority to enter into this Agreement on behalf
of the Licensee. This Agreement shall be effective as of the last date given
below.
LICENSEE:
/s/ ▇. ▇. ▇▇▇▇▇▇ 3/28/96
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Authorized Signature/Date
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name
V.P. Sales & Marketing
-------------------------------------
Title
GEMSTONE:
_____________________________________
Authorized Signature/Date
_____________________________________
Print Name
_____________________________________
Title
SOFTWARE MAINTENANCE AGREEMENT
DEFINITIONS: As used herein, the terms set forth below shall have the following
respective meanings: "Designated Contact Person" shall mean the Primary Contact
or Alternate contact identified on the face page of this Agreement, either of
which may be changed upon written notice from licensee, who shall be responsible
for Service Request on behalf of all users at Licensee's site. "Software Update"
shall mean any change to Software Products or documentation, by GEMSTONE, for
the purpose or providing enhancements, improving performance, or improving
functionality; and that is formally released by GEMSTONE for external use.
"Service Request" shall mean communication from a Designated contact person to
GEMSTONE via telephone call, facsimile transmission, electronic mail for the
purpose of obtaining answers to questions about Software Products or
Documentation, or submitting problem reports about Software Products or
Documentation.
UPDATES: GEMSTONE will promptly deliver to Licensee any Software Update issued
during the term of this Agreement, whereupon such Software Update shall be
regarded as the Software Product which it supersedes and shall there upon be
subject to all of the terms and conditions of this Software License Agreement
relating to such Software Product. Upon issue of any Software Update, it shall
become the currently supported version. Support for the version of the Software
Product it superseded will continue, but support for all previous versions will
be discontinued.
SUPPORT: GEMSTONE will, as is reasonable, assist Licensee by receiving Service
Request from Licensee during normal GEMSTONE Business hours (9:00 a.m. - 6:00
p.m. Pacific time excluding weekends and holidays), and at phone numbers and
addresses to be made known to Licensee on the effective date of this Agreement.
In the case that Service Requests are questions posed by Licensee, GEMSTONE's
response shall be made within a reasonable time and shall include the answers,
if known. In the case that Service Requests are problem reports submitted by
Licensee, Licensee shall submit sufficient documentation of each problem
referenced therein to enable GEMSTONE to reproduce and verify same. GEMSTONE's
response to each problem shall be made within a reasonable time after it
verifies same, and may include (I) instructions for fixing or avoiding the
problem if known or readily ascertainable, or (II) a Software Update which is
free of such problem. GEMSTONE shall not be obligated to assist Licensee beyond
the assistance specified herein. Additional services such as complete
installation, onsite support, support outside of normal business hours, or
consulting are available at GEMSTONE's standard time and expense rates.
TERM: The term of this Agreement shall commence on the effective date of this
Agreement and shall end one (1) year thereafter unless earlier terminated as
provided herein below. GEMSTONE shall have the right to terminate this Agreement
upon written notice to Licensee if Licensee is in Breach of any terms or
conditions of this Agreement, does not pay for renewal within 30 days after the
beginning of any renewal term, has any act of dissolution or bankruptcy made or
filed by or against it, makes any assignment of its assets for the benefit of
creditors, or has any substantial attachment or execution of judgment made
against it.
RENEWAL: This agreement will be automatically renewed for an additional term at
the end of the current term unless (I) Licensee requests cancellation at least
30 days prior to the end of the current term, (II) GEMSTONE submits a different
Agreement to Licensee at least 30 days prior to the end of the current term,
(III) GEMSTONE has terminated this Agreement as specified above. The effective
date of the renewal Agreement shall be on the anniversary of the effective date
of this Agreement. Should Licensee decide to terminate this Agreement, renewal
at a later date may be purchased for the then current maintenance agreement
price plus a renewal fee equal to a one year's maintenance agreement price.
Signed: /s/ ▇.▇. ▇▇▇▇▇▇
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Date: 3/28/96
----------------------
Software License Agreement GemStone Systems, Inc.
SOFTWARE MAINTENANCE AGREEMENT
DEFINITIONS: As used herein, the terms set forth below shall have the
following respective meanings: "Designated Contact Person" shall mean the
Primary Contact or Alternate contact identified on the face page of this
Agreement, either of which may be changed upon written notice from licensee, who
shall be responsible for Service Request on behalf of all users at Licensee's
site. "Software Update" shall mean any change to Software Products or
documentation, by GEMSTONE, for the purpose or providing enhancements, improving
performance, or improving functionality; and that is formally released by
GEMSTONE for external use. "Service Request" shall mean communication from a
Designated contact person to GEMSTONE via telephone call, facsimile
transmission, electronic mail for the purpose of obtaining answers to questions
about Software Products or Documentation, or submitting problem reports about
Software Products or Documentation.
UPDATES: GEMSTONE will promptly deliver to Licensee any Software Update issued
during the term of this Agreement, whereupon such Software Update shall be
regarded as the Software Product which it supersedes and shall there upon be
subject to all of the terms and conditions of this Software License Agreement
relating to such Software Product. Upon issue of any Software Update, it shall
become the currently supported version. Support for the version of the Software
Product it superseded will continue, but support for all previous versions will
be discontinued.
SUPPORT: GEMSTONE will, as is reasonable, assist Licensee by receiving Service
Request from Licensee during normal GEMSTONE Business hours (9:00 a.m. - 6:00
p.m. Pacific time excluding weekends and holidays), and at phone numbers and
addresses to be made known to Licensee on the effective date of this Agreement.
In the case that Service Requests are questions posed by Licensee, GEMSTONE's
response shall be made within a reasonable time and shall include the answers,
if known. In the case that Service Requests are problem reports submitted by
Licensee, Licensee shall submit sufficient documentation of each problem
referenced therein to enable GEMSTONE to reproduce and verify same. GEMSTONE's
response to each problem shall be made within a reasonable time after it
verifies same, and may include (I) instructions for fixing or avoiding the
problem if known or readily ascertainable, or (II) a Software Update which is
free of such problem. GEMSTONE shall not be obligated to assist Licensee beyond
the assistance specified herein. Additional services such as complete
installation, onsite support, support outside of normal business hours, or
consulting are available at GEMSTONE's standard time and expense rates.
TERM: The term of this Agreement shall commence on the effective date of
this Agreement and shall end one (1) year thereafter unless earlier terminated
as provided herein below. GEMSTONE shall have the right to terminate this
Agreement upon written notice to Licensee if Licensee is in Breach of any terms
or conditions of this Agreement, does not pay for renewal within 30 days after
the beginning of any renewal term, has any act of dissolution or bankruptcy made
or filed by or against it, makes any assignment of its assets for the benefit of
creditors, or has any substantial attachment or execution of judgment made
against it.
RENEWAL: This agreement will be automatically renewed for an additional term at
the end of the current term unless (I) Licensee requests cancellation at least
30 days prior to the end of the current term, (II) GEMSTONE submits a different
Agreement to Licensee at least 30 days prior to the end of the current term,
(III) GEMSTONE has terminated this Agreement as specified above. The effective
date of the renewal Agreement shall be on the anniversary of the effective date
of this Agreement. Should Licensee decide to terminate this Agreement, renewal
at a later date may be purchased for the then current maintenance agreement
price plus a renewal fee equal to a one year's maintenance agreement price.
Signed: /s/ ▇.▇. ▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇
-----------------
Date: 6/28/96 7/16/96
-------------------
Software License Agreement GemStone Systems, Inc.
GEMSTONE SYSTEMS, INC. VALUE-ADDED REMARKETER AGREEMENT
This Agreement is made by and between GemStone Systems, Inc ("GEMSTONE"), an
Oregon corporation, and the Licensee, each being identified and having a place
of business as given on the face page of this Agreement.
BACKGROUND
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This Agreement is made with reference to the following facts:
Licensee has entered into a GemStone Systems, Inc. Domestic Software
License Agreement ("SLA"), to which this Agreement is attached, relating to
the license of certain Software Products and Documentation identified on
the face page of such agreement;
The parties desire to add to the terms of the SLA in order that GEMSTONE
may grant to Licensee a license to distribute the Software Products and
Documentation upon the terms and conditions of this Agreement;
Now, therefore, the parties hereby agree as follows:
1. DEFINITIONS
----------------
1.1 The definitions established in Section 1 of the SLA shall also apply to
this Agreement.
1.2 "Customer" means any end user to whom licensee sublicenses Documentation or
an executable copy of the Software Products.
1.3 "Territory" means the countries and areas identified on Exhibit B.
1.4 "Sublicense Agreement" means a contact between Licensee and a Customer
whereby the Customer is granted the right to use all or a part of the Software
Products and Documentation, and which contains the terms specified in Exhibit A.
Licensee may only sublicense the Software Products and Documentation to
Customers located in, and solely for use in, the Territory and may not
sublicense directly or indirectly to Customers in, or for use in, any other
countries.
2. SUBLICENSE GRANT
---------------------
2.1 Notwithstanding the provisions of Section 2.1 of the SLA, GEMSTONE grants
license a non-exclusive, nontransferable, license to sublicense Customers
located in the Territory to use the Documentation and an executable version of
the Software Products, provided that:
(i) the Software Products and Documentation are part of a software
product to be licensed by Licensee to a Customer;
(ii) the Software Products and Documentation are sublicensed for use only
in the Territory;
(iii) Licensee has its Customer execute a Sublicense Agreement containing a
clear statement of the terms specified in Exhibit A in a manner enforceable
in the Territory; and
(iv) Licensee shall affix on and encode in each copy of a Software Product
sublicensed by Licensee a unique serial number provided by GEMSTONE.
3. TERM
---------
This Agreement shall commence immediately and shall continue for a period of 2
years, unless sooner terminated as provided hereunder.
4. FEES, PAYMENT REPORTS
--------------------------
4.1 Within thirty (30) days after the end of each calendar quarter, Licensee
shall remit payment of the appropriate Sublicense Fees as set forth in Exhibit
C.
(i) The Sublicense Fees set forth in Exhibit C may be changed by GEMSTONE
at any time. If a change to a price, discount, payment or credit term
results in an increase in cost to the Licensee, such change shall become
effective only upon thirty (30) days prior written notice by GEMSTONE.
4.2 Within thirty (30) days after the end of each calendar quarter, Licensee
shall also deliver to GEMSTONE a written Activity Report signed by an officer of
Licensee covering the calendar quarter. The Activity Report shall contain the
following information;
(i) the amount of the royalties or fees payable by Licensee to GEMSTONE
for licenses or sublicense of the Software Products and Documentation
during the preceding calendar quarter;
(ii) the manner in which the amount of the royalties or fees payable to
GEMSTONE was calculated by Licensee;
(iii) a description of the software products licensed by Licensee to
Customers hereunder;
(iv) the date on which the Software Products were shipped to each end
user;
(v) the brands and models of the Server Computer Systems on which the
Software Products were installed; and
(vi) the unique serial number provided by GEMSTONE which was affixed to
and encoded into each Software Product.
4.3 Licensee shall maintain accurate records relating to the copying,
distribution, sublicensing, and servicing of the Software Products and
Documentation so as to establish the payments due to GEMSTONE hereunder, to
identify all Sublicensees, and to otherwise verify Licensee's compliance with
the terms of this Agreement. Such books, records and Sublicense Agreements
shall be available at their place of keeping for inspection or copying by
GEMSTONE or an independent auditor chosen and paid by GEMSTONE during normal
business hours. Licensee shall retain all Sublicense Agreements and records
pertaining to payments due to GEMSTONE for a period of three (3) years after
termination. In the event an audit reveals that Licensee has not paid all of
the Sublicense Fees due hereunder, Licensee shall pay within 10 days the
discrepancy plus interest, calculated at a monthly rate of 1% per month (or, the
maximum rate allowed by law, if less) from the date the Sublicense Fee was due
until it is paid. If the discrepancy exceeds more than 5% of the Sublicense
Fees due for the period under audit, Licensee shall also reimburse the cost of
such inspection, including reasonable auditor's fees.
4.4 All sales, use, personal property, withholding and other taxes relating to
this Agreement shall be paid by Licensee unless Licensee provides GEMSTONE with
valid tax exemption certificates. Licensee shall not be reasonable for taxes
based on GEMSTONE's net income.
4.5 Any Payment or part of a payment that is not paid when due shall bear
interest at the rate of 1.5% per month, or at the highest contract rate allowed
by law, whichever is less, from its due date until paid.
5. LICENSEE OBLIGATIONS
-- --------------------
5.1 Licensee shall evaluate and test the Software Products and Documentation to
determine its suitability for use in the creation of products.
5.2 Licensee agrees to train within sixty (60) days of the effective date of
this Agreement and maintain a sufficient number (minimum of one (1) each) of
capable technical and sales personnel to carry out the obligations and
responsibilities of Licensee under this Agreement.
5.3 Licensee shall provide all technical, service, warranty, return, telephone
and other training, service and support to its Customers relating to the
Software Products.
6. SUPPORT
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6.1 Subject to the availability of its personnel, GEMSTONE will provide
reasonable technical assistance to Licensee, upon request, at GEMSTONE's then-
current rates, terms, and conditions.
7. OWNERSHIP AND NOTICES
-- ---------------------
7.1 Licensee shall insure that any copyright notice or other proprietary rights
notice placed in or on or displayed by the Software products or Documentation by
GEMSTONE, whether in machine language or human readable form continue to appear
or exist in all copies of the Software Products and Documentation that Licensee
delivers to its Customers.
8. INDEMNITY BY LICENSEE
-- ---------------------
8.1 Licensee shall indemnify GEMSTONE from all claims, losses, and damages
which may arise from its marketing, installation, or support of the Software
Products and Documentation, including claims based on representations,
warranties, or misrepresentations made by Licensee, inadequate installation,
support or assistance by licensee, or any other act or failure to act on the
part of Licensee. Licenser shall have the right to participate in the defense
of any such claim at its own expense.
9. TERMINATION
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9.1 In addition to the provisions of Section 9 of the SLA, GEMSTONE may
terminate this Agreement prior to its expiration upon the failure of Licensee to
pay any sum due hereunder within fifteen (15) days of the date due.
9.2 Licensee may terminate this Agreement at any time after all payments
accrued hereunder prior to the effective date of termination have been made by
giving ninety (90) days written notice to GEMSTONE.
9.3 In addition to its obligations under Section 9.3 of the SLA, upon
expiration or termination of this Agreement, Licensee agrees to cease
sublicensing the Software Products and Documentation. Notwithstanding the
foregoing, and notwithstanding termination of this Agreement, Licensee shall
retain the right to continue to support authorized Customer copies of Software
products that have been sublicensed hereunder prior to the effective date of
termination, subject to continued payment of applicable royalties to GEMSTONE.
10. GENERAL
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10.1 This Agreement may not be assigned by either party without the prior
written approval of the other party, which approval shall not be unreasonably
withheld.
10.2 Each party is acting as an independent contractor and not as an agent,
partner, or joint venturer with the other party for any purpose. Except as
provided in this Agreement, neither party shall have any right, power, or
authority to act or to create any obligation, express or implied, on behalf of
the other.
10.3 Neither GEMSTONE nor Licensee shall be reasonable for delays or failure of
performance resulting from acts beyond the reasonable control of such party.
Such acts shall include, but not be limited to, acts of god, strikes, walkouts,
riots, acts of war, epidemics, failure of suppliers to perform, governmental
regulations, power failure or failures, earthquakes, or other disasters.
10.4 The parties have read this Agreement and agree to be bound by its terms,
and further agree that this Agreement, together with the SLA of which it is a
part, constitute the complete and exclusive statement of the agreement between
them which supersedes all proposals, oral or written, and all other
communications between them relating to the license and use of the Software
Products and Documentation.
In witness whereof, the parties have caused this Agreement to be executed by
their duly authorized representatives.
LICENSEE:
/s/ ▇.▇. ▇▇▇▇▇▇
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Authorized Signature/Date
▇▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name
V.P. Sales & Marketing
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Title
GEMSTONE:
/s/ ▇▇▇ ▇. ▇▇▇▇
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Authorized Signature/Date
▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Print Name
Sr. V.P. W.W. Operations
------------------------------------------
Title
Addendum to GemStone Systems, Inc. Value Added Reseller Agreement
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This addendum is hereby made part of and incorporated into the GemStone Systems,
Inc. Value Added Reseller ("Agreement") entered into by and between GemStone
Systems, Inc. ("GemStone") and Genomica ("Licensee") on April 8, 1996. In the
event that this Addendum is inconsistent or conflicting with Agreement, the
provisions of the Addendum will prevail.
The parties agree to make the following changes to the Agreement.
Paragraph 2 - SUBLICENSE GRANT
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Delete the following:
(iv) Licensee shall affix on and encode in each copy of a Software Product
sublicensed by Licensee a unique serial number provided by GEMSTONE
Paragraph 4 - FEES, PAYMENT REPORTS
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Section 4.1, (i) shall read as follows:
(i) The Sublicense Fees set forth in Exhibit C may be changed by GEMSTONE
at any time. If a change to a price, discount, payment or credit term
results in an increase in cost to the Licensee, such change shall become
effective only upon ninety (90) days prior written notice by GEMSTONE.
Section 4.2, (v) shall read as follows:
(v) the platform and operating systems of the Server Computer Systems on
which the Software Products were installed; and
Add the following section (vi):
(v) GEMSTONE acknowledges that the information provided by Licensee under
section 4.2 and 4.3 is confidential to Licensee and will treat it as such
provided however, such information is marked confidential with a
appropriate legend or stamp.
Paragraph 6 - SUPPORT
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Add the following sentence:
GemStone anticipates providing such service in accordance with its standard
response and escalation procedures.
Paragraph 8 - INDEMNITY BY LICENSEE
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Add the following sentence to the end of the paragraph:
The foregoing indemnity obligation of Licensee shall not apply with respect
to any claims that the Software Products infringe upon any patent or
copyright, and such claims shall be subject to GEMSTONE's indemnity
obligations under the SLA, except to the extent that such claims relate to
any modification or alteration of a Software Product by a party other than
GEMSTONE or the use of a Software Product with any materials not provided
by GEMSTONE.
Paragraph 9 - TERMINATION
-------------------------
Section 9.1 shall read as follows:
In addition to the provisions of section 9 of the SLA. GEMSTONE may
terminate this Agreement prior to its expiration upon the failure of
Licensee to pay any sum due hereunder within thirty (30) days of the date
due.
IN WITNESS WHEREOF, the undersigned have read and agreed to the terms of this
Agreement.
GEMSTONE SYSTEMS, INC. Genomica
By: /s/ ▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇
-------------------------------- --------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ------------------------------
Title: Sr. V.P. W.W. Operation Title: V.P. Sales & Marketing
----------------------------- -----------------------------
Date: 5/1/96 Date: 4/8/96
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03/27/96; 12:18 PM
EXHIBIT A
Terms Required in Sublicense Agreement
The parties agree that each Sublicense Agreement between licensee and its
Customers for the Software Products and Documentation shall require that the
Customer agree to the following:
Title to the Software Products does not pass to the Customer.
Customer only obtains a non-exclusive license, without right to sublicense, to
use the Software Products in the Territory to access a single Logical GemStone
Database on Server Computer Systems.
Customer shall not transfer or license the use of all or any portion of the
Software Products and Documentation to any third party or entity.
The Software Products constitutes highly valuable property of GEMSTONE and
contains trade secrets and confidential information owned by GEMSTONE. Customer
shall observe complete confidentiality with respect to the Software Products and
documentation, and all performance data and shall not disclose all or any
portion thereof to any third party or entity, except to its employees as
required in the course of their employment.
Customer shall not decompile, disassemble or otherwise reverse engineer the
Software Products.
The obligations set forth above shall survive any expiration of the term of the
Sublicense Agreement.
GEMSTONE has made no representations to the Customer and GEMSTONE warrants only
that the Software Products will perform substantially in accordance with the
documentation for a period of ninety (90) days.
GEMSTONE's liability to Customer for any claim shall be limited to direct
damages and shall not exceed the total amount paid to GEMSTONE for the license
of the Software Products.
EXHIBIT B
Territory
The geographic scope of the licenses conveyed herein by GEMSTONE to VAR for
Genomica's product called Genome topographer shall be World Wide distribution.
EXHIBIT C
Sublicense Fees
1. Licenses Product: Genome Topographer (GT)
-----------------------
Fee: Licensee will remit to GemStone a royalty equal to 14% of gross sales
received in connection with the sale and distribution of concurrent users
for the above product. Amounts subject to the royalty include product
licenses and maintenance fees and as such will allow Licensee to updates its
VAR product and distribute to its Customers.
Number of Users: The above product is sold on a per user bases.
Term of Licensee Product: One year. Subsequent renewals fees will be
remitted at the above percentage on an annual basis. Should customer elect
to cease using GT during the annual term, no fees paid will be refunded to
Licensee.
2. Evaluation Licenses:
GEMSTONE acknowledges the need for Genomica to conduct evaluations of the GT
with its prospects. Therefore, GEMSTONE will grant at Genomica's request a
thirty (30) day temporary keyfile in order to access the GEMSTONE Software at no
charge to accommodate the Genomica evaluation cycle.
EXHIBIT D
Approved Configurations
1. Licensee Product:
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Name of Product(s): Genome Topographer (GT)
Brief Description and function: The Genome Topographer supports computer aided
gene analysis.
2. Approved Configuration
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Platform/Operating systems: Any GemStone supported platform
Language Interfaces: GemStone Smalltalk Interface for Visual Works, GemStone C
Interface