1
EXHIBIT 10.14 -
VAR AGREEMENT
BORLAND No-Nonsense VAR Agreement
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This Agreement is between Borland International, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("us"), and
SalesLogix Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("you")
1. We appoint you an authorized Value Added Reseller (VAR) of the Software in
the Territory.
"We," "our," and "us" mean Borland International, Inc. "Software" means
only our computer program(s) listed in the Schedule and any related
documentation ("Documentation"); we may change or discontinue any or all
Software products or versions at any time without notice or liability.
"Schedule" means any schedule that you and we sign that specifically refer
to this Agreement. The "Territory" means the territory set forth in
Schedule; you agree not to advertise, solicit orders, or establish or
maintain a branch, sales office, or distribution depot for the Software,
outside the Territory. Your appointment is non-exclusive; you understand
that we may appoint or license other distributors. Master VARs, VARs,
OEMs, dealers or end-users in the Territory directly without notice or
liability to you.
2. You will vigorously market the Software at your expense.
You will maintain at all times adequate sales, marketing, technical and
service staff (in-house or under contract) to demonstrate the Software,
provide training and support, attend sales event, and otherwise promote
the Software to end users.
3. You may demonstrate the Software at your premises or on a customer's
computer.
You may install and run the Software for demonstration use on your own
computer(s) or those of prospective customers. You must remove
demonstration copies of the Software from a customer's computer not more
than 120 days after installation, unless we otherwise agree in writing. We
will charge you the applicable License Fees for demonstration copies of
the Software or Documentation that you do not remove from a customer's
site or your own when required. We reserve the right to require that
demonstration Software have an access key, and/or that you enter into a
sublicense agreement with customers evaluating particular Software.
4. You may develop your own applications that work with the Software.
For each platform on which you will be distributing your application, you
must purchase at least one license for the Software at a 50% discount from
the then current list price. You may use the Software on that particular
Platform in order to develop, test, verify and support your own
application software to work with that Software. You may combine Software
with your own application software for your own development use, but you
may not modify any Software and you must maintain all Software in
complete, unedited form.
5. You may sublicense end-users to use the Software only with your own
software application.
You may market and sublicense the Software only to end-users in the
Territory who would use it for internal data processing. You may only
sublicense the Software on the platform specified in the Schedule. You may
not, however, sublicense Software for use on any Platform unless you have
already purchased a license to use that Software on that particular
Platform. You may only sublicense the Software if it is embedded in or
bundled with your own software application product, or otherwise for use
with your application product, but not as a standalone product. You will
sublicense the Software under terms substantially similar to those set
forth in the No Nonsense License Statement and Limited Warranty, attached.
Certain software products may require that you secure an access code from
us for each customer's computer for which the Software is sublicensed.
6. You will make records and reports of your Software Installations and
sublicenses.
You will keep, and give us not less than 30 days after the end of each
calendar quarter, a complete and accurate report. For software products on
Intel platform(s), such report will list (i) the number of "license seats"
(defined in Schedule 1) deployed during such quarter, (ii) the number of
license seats for which customer support was purchased during such
quarter; (iii) the number of license seats for which customer support was
renewed during
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BORLAND No-Nonsense VAR Agreement
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such quarter, and (iv) a statement detailing the License Fees and Support
Fees payable to Borland. Such License Fees and Support Fees are payable in
conjunction with each report 30 days after the end of each calendar
quarter.
7. You will pay us the License Fees listed in the Schedule.
You will pay us the applicable License Fee for each license we give you to
use the Software on your own computers, and for each sublicense you grant
for the Software to be used on another's computer. The "License Fee" is
the applicable amount set forth in the Schedule. All deliveries are FOB
our warehouse. You are responsible for paying all taxes, duties, shipping
and other such fees on the Software, except taxes on our net income. You
will pay on time: All sums are due within thirty (30) days after the date
of our invoice. Late payments will be subject to interest at 1.5% per
month, or the maximum rate allowable by law, if less. We have the right to
cancel orders and change credit or payment terms if you do not pay in full
and on time and/or if your financial position changes. We can also cancel
this Agreement and/or repossess the Software from your premises for
nonpayment and/or late payment. We or our representative have the right
(at our cost and on a confidential basis to inspect your records relating
to our Software during regular business hours to verify the accuracy of
your reports and License Fee payments. Such inspection will be conducted
no more frequently than annually and with a prior 10-day written notice.
8. Our warranty and liability for the Software are limited.
The Software is provided "AS IS." We do not warrant that the Software is
error-free, or that any errors will be corrected. We warrant the physical
media and physical Documentation for each Software product we provide to
you (but not any media or Documentation distributed by you) to be free of
physical defects in materials and workmanship for a period of 30 days
after it is first delivered to you. If we receive notification within the
warranty period of such physical defects in materials or workmanship, and
we determine that such notification is correct, we will replace the
defective media or Documentation. THE FOREGOING WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES TO YOU OR ANY THIRD PARTY, EXPRESS OR IMPLIED, RELATED TO
THE SOFTWARE OR ANY SERVICES WE MAY PROVIDE, INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR ARISING BY STATUTE, LAW OR TRADE DEALING OR USAGE. We are not
liable to you or any third party for incidental, special or consequential
damages for any reason (including loss of data or other business or
property damage), even if foreseeable, and our liability in all events
will not exceed the applicable License Fee that you have paid. You will
require each sublicensee to accept similar warranty and liability limits.
You may not make any warranty or other representation to sublicensees or
others on our behalf. We are not liable for defects in your own
application software, or for your own activities in marketing and
sublicensing the Software. You agree to implement backup and recovery
procedures adequate to prevent loss due to malfunctions.
9. You will purchase training and support services from us.
You will purchase training, technical, Hotline and update support from us,
under the terms of our standard support programs, for yourself and for
your customers that order support from you. You are solely responsible for
installing, maintaining and supporting the Software for sublicensees and
other customers unless otherwise agreed in the Schedule. We have no
obligation to provide support services except under the terms of standard
support programs purchased directly from us, or to deal with any third
party directly. Our support programs are subject to change from time to
time without notice from us.
10. You will respect our copyright in the Software.
You will not copy the Software except as required to demonstrate and
sublicense the Software and develop your applications under the specific
terms of this Agreement, and to make adequate archival copies. You will
put our proprietary and copyright notices on all copies. You may not copy
the Documentation except as specified in the schedule.
11. You will respect our trade secrets and other proprietary rights in the
Software.
You agree that we have and will keep title, copyright, trademarks and all
other proprietary rights in the Software, the Documentation, and all
portions and copies in any form. All distribution of the Software is by
license only, not sale. You will keep the Software in a safe place. You
will use best efforts to ensure that your employees and others with access
to the Software comply with this Agreement. You have no right to use,
examine, re-create, sublicense, or transfer the Software source code,
which is our trade secret. You agree not to alter the Software, or make
any attempt to unlock or by-pass any access-prevention device in the
Software. You may use our trademarks only as necessary to market the
Software.
12. You may not transfer or sublicense the Software except as specifically
allowed under this Agreement.
You may not in any event export to any country under U.S. Commerce
Department restriction, or rent or electronically transmit the Software.
Any attempted assignment, delegation, sublicense or transfer by you of the
Software, this Agreement, or your rights to anyone is
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BORLAND No-Nonsense VAR Agreement
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void and terminates this Agreement automatically, unless we have
explicitly given permission in this Agreement or otherwise in writing.
13. This Agreement remains in effect for two years from the Effective Date
below, unless terminated earlier.
After the initial term, this Agreement will renew for successive one-year
periods, unless terminated. We may terminate this Agreement immediately if
you breach it and fail to cure such breach within 30 days after written
notice of breach, or if you enter bankruptcy, insolvency, liquidation or
similar proceedings. Either you or we may terminate this agreement,
without liability and with or without cause, with six (6) months' written
notice, provided that no such termination shall become effective until
after the expiration of the initial two-year term. On termination, you
will return the Software and all copies in your possession, custody and
control to us, give us a final accounting, and pay all outstanding License
Fees and other amounts due. You will also make no further use of the
Software or our trademarks, grant no more sublicenses, and return all
copies of the Software in your possession to us on termination. All
proprietary rights automatically revert to us. Sections 7-8 and 10-14 of
this Agreement will remain in effect. Software sublicenses properly
granted and paid for prior to termination will also remain in effect
according to their terms.
14. The following terms also apply.
This is the full and final agreement between you and us on this subject,
and supersedes any earlier promises, representations or agreements. This
Agreement may only be changed if you and our authorized representative do
so in writing. No inconsistent, additional, or preprinted terms on your
purchase order or other business form will apply. You are an independent
contractor, not our agent, partner, franchisee, joint venturer or
employee. Waivers not given in writing may be revoked at any time without
liability. Invalid provisions do not affect the enforceability of the
others. We are entitled to injunctive relief for violations of our
copyrights, trade secrets or other proprietary rights. Use, duplication,
or disclosure by the U.S. Government of the Software and Documentation
shall be subject to the restricted rights applicable to commercial
computer software (under DFARS 252.227-7013 or FAR 52.227-19, as
applicable). We reserve all rights not granted specifically in this
Agreement. All notices shall be in writing and in English and may be sent
by cable, telecopy, or air mail, return receipt requested, sent to the
attention of the Legal Department at the addresses first set forth above,
and shall be deemed received as follows: cable and telecopy, 24 hours
after transmission; and registered airmail, 10 days after delivery to the
postal authorities by the party serving notice. This Agreement will be
construed, interpreted and governed by the substantive laws of the State
of California. Any legal action arising out of or related to this
Agreement shall be brought only in a state or federal court of competent
jurisdiction located in the Counties of Santa ▇▇▇▇ or Santa Clara,
California.
Borland International, Inc.
Signed: /s/ ▇.▇. Brand
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Name: ▇. ▇. Brand
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Title: V. P. Sales
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Effective Date: 9/10/96
SalesLogix Corporation
Signed: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: President/CEO
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BORLAND No-Nonsense VAR Agreement
Schedule No. 1
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This Schedule is part of the InterBase VAR Agreement ("Agreement") entered into
on ________________ between Borland International, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("us"), and SalesLogix Corporation ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
______________________________________________________________________ ("you").
1. "Software," and "License Fees"
a. The Software products that you are permitted to use, duplicate and
deploy under Section 4 of the Agreement are the products listed in the
Attachment for which you have paid the applicable License Fee. You must
pay the applicable License Fee for any Software you use.
b. We will furnish to you a master copy of the Software identified in the
paragraph above, in machine-executable form, and one set of end user
documentation, from which copies may be made.
c. Other products and/or versions may be added to this Agreement only if
you and our authorized representative agree to do so in a written
schedule.
d. The License Fees you must pay us for each license you purchase from us
and for each copy of the Software you sublicense to others are set forth
in an Attachment to this Schedule.
e. A "license seat" is defined as the single user version of the product
or the number of clients in the server version of the product. In the
event a single user license seat is subsequently upgraded to a
client/server license seat and the customer of such license seat has paid
the current Customer Annual Support Fee, then no additional License Fees
or Support Fees are payable. If such customer has not paid the current
Customer Annual Support Fee, then you will pay us a Customer Annual
Support Fee for such license seat.
2. Territory.
The "Territory" is worldwide, except the country of Japan, subject to U.S.
Export Control laws.
3. Support Services.
a. You must purchase Update and Hotline Support from us for each Software
license you purchase for your own use. The annual fee for Update Support
will be 12% of the License Fee paid by you for each Software product so
licensed. The annual fee for Hotline Support is our then-current published
price for such Hotline Support.
b. You will offer first-line, Update, Hotline and related technical
support to your customers. You will complete our technical Training
classes and maintain continuing qualification and performance consistent
with our requirements for technical support. You will provide all customer
support to your customers.
c. You will pay us the Customer Annual Support Fee for each license seat
for which a customer purchases the above Support services.
d. You may distribute and install Updates and Maintenance releases to the
Software for each such license seat. Support begins on the first day of
the calendar quarter in which such Support is purchased.
4. Marketing Materials.
You will include the InterBase trademark on the outside of your packages
which contain the Software. In your marketing, advertising and packaging
materials for your application, you will identify the Software as created
by us and in a manner which reflects positively upon the Software and upon
us. You may order marketing materials from us; there may be a standard
charge for certain materials or quantities.
5. Other Terms and Conditions.
a. InterBase Software may not be sold on a standalone basis, and must be
embedded in your application.
b. In the event of change of ownership of either party, this Agreement
shall remain in full force and effect.
c. We will provide an electronic copy of InterBase documentation. You may
copy this documentation or portions of this documentation at no additional
charge to be used solely in conjunction with your application. You must
acknowledge Borland's copyright in any Borland documentation that you
reproduce.
d. You agree to participate in our "InterBase at Work" marketing program,
assisting our marketing department. In documenting your InterBase
application and solution. You agree to allow us to distribute such
articles at no charge to us.
e. All terms of the Agreement are incorporated herein and remain in force
except as specifically changed in this Schedule and Attachment.
f. This offer is valid until September 9, 1996.
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BORLAND No-Nonsense VAR Agreement
Schedule No. 1
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Borland International, Inc.
Signed: /s/ ▇.▇. Brand
----------------------------------------
Name: ▇. ▇. Brand
----------------------------------------
Title: V. P. Sales
----------------------------------------
Effective Date: 9/10/96
SalesLogix Corporation
Signed: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: President/CEO
----------------------------------------
6
BORLAND No-Nonsense VAR Agreement
Schedule No. 1
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ATTACHMENT A
SOFTWARE:
Single-user Local InterBase, and
InterBase Client/Server for Windows95 (maximum 10 users), Windows NT, and
NetWare
LICENSE FEES:
Upon execution of this Agreement you will pay us a non-refundable,
non-cancelable Minimum License Payment of $100,000 for the right to copy, use
and deploy the Software with your application.
For the first two years of the term your annual fee for internal Update and
Hotline Support will be deducted from the Minimum License Payment. The internal
Update and Hotline Support is for licenses that you purchased from Borland
directly and the fees for such is defined in Section 4(a) of Schedule 1 of this
Agreement.
As Software license seats are deployed, the License Fees and Customer Annual
Support Fees (optional) set forth below will be deducted from the Minimum
License Payment.
- License Fee per license seat: $*
- Customer Annual Support Fee per seat: $2.00 (at customer's option)
Fees will be deducted from the Minimum License Payment until no balance remains.
Thereafter, you will make additional payments based upon the reports due
quarterly as specified in Section 6 of this Agreement. Payments are due within
30 days from the end of each calendar quarter.
DEVELOPMENT SOFTWARE:
During the initial term of this Agreement, you may order products on Borland's
current U.S. price list directly from Borland for your internal use for
development purposes only at a 50% discount off of the current U.S. list price
of the products, provided that each such order shall be in minimum increments of
$1,000. We will invoice you upon receipt of your purchase order.
CUSTOMER SUPPORT:
Update Support consists of Maintenance releases and Updates, as available, and
Second-line technical support.
Maintenance releases are in-line releases (signified by a change to the number
to right of the decimal in the version number, such as from version 1.0 to
version 1.1).
Updates are new product releases (signified by a change to the number to left of
the decimal in the version number, such as from version 1.0 to version 2.0).
Maintenance releases and Updates where applicable, are intended as replacements
for the prior version of the product and may not be used to increase the total
number of products licensed. You may elect not to install the Maintenance
releases or Updates of a product, but our obligation to provide technical
support for a product will apply only to the current version of the product and
the immediately preceding version.
Second-line support consists of back-up telephone support given to your two
named contacts, after your contacts have expended reasonable efforts to provide
technical assistance to your customers. We will undertake reasonable efforts to
provide technical assistance under this Agreement, but we do not guarantee that
all problems will be solved or that any item will be error free.
We will provide a two day initial InterBase training course at no additional
charge to be performed within 90 days of the effective date of the contract.
Execution Version
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
9-30-96
*Confidential information has been omitted and filed separately with the
Commission.
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BORLAND INTERBASE SUPPORT AGREEMENT
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1. Borland ("we") will offer you the Support Services described below for those
InterBase Products you have licensed from Borland.
(i)UPDATE SUPPORT, consisting of Maintenance Releases, in which we will provide
bug fixes, support for new operating system versions, and new Product features,
all as available; Upgrades, in which we will provide new product releases
(signified by a change to the number to the left of the decimal in the version
number) as available; and Technical materials, such as mailings of our Technical
Bulletins and other useful information; and
(ii)TECHNICAL SUPPORT, in which we will answer technical questions from
designated persons about the installation and use of covered Products.
Note that the Maintenance Releases and Upgrades, where applicable, are intended
as replacements for the prior version of the Product and may not be used to
increase the total number of Products licensed. You may elect not to install the
Maintenance Release or Upgrade of a Product, but Borland's obligation to provide
Technical Support for a Product will apply only to the current version of the
Product and the immediately preceding version. After you have installed an
Upgrade or Maintenance Release of a Product, you may archive (but not transfer)
the prior version.
2. You will pay us the applicable Support Fees as set forth on the current
InterBase Price List.
Support Fees must be prepaid.
3. We may change our available Support Services from time to time.
We will undertake reasonable efforts to provide technical assistance under this
agreement, but we do not guarantee that all problems will be solved or that any
item will be error-free. We will provide you with substantially the same level
of service throughout the term of this Agreement. We may from time to time,
however, discontinue Products or versions, stop supporting Products or versions
within a reasonable time after discontinuance, or otherwise discontinue any
support services. We also provide a 30-day limited warranty that the original
Product physical media and physical documentation you purchased are free from
defects in materials and workmanship. THE FOREGOING WARRANTIES ARE IN LIEU OF
ALL OTHER WARRANTIES OR PROMISES TO YOU OR ANY THIRD PARTY, EXPRESS OR IMPLIED,
RELATED TO THE SOFTWARE OR ANY SERVICES WE MAY PROVIDE, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, OR ARISING BY STATUTE, LAW OR TRADE DEALING OR USAGE. EXCEPT AS
PROVIDED ABOVE, ALL MATERIALS AND SERVICES ARE PROVIDED "AS IS." We are not
liable for incidental, special or consequential damages for any reason
(including loss of data or other business or property damage), even if
foreseeable, and our liability in all events will not exceed the applicable fees
that you have paid us.
4. Adding Products.
You may add newly licensed units of Products to this agreement simply by paying
the applicable support fees for each such unit.
5. This Support Plan will be effective for 1 year.
You and we may extend or terminate this agreement as provided below. At the end
of any one-year term, you may renew this agreement with our consent under the
terms of the Support Plan then in effect by paying the Support Fees in effect at
that time. Either you or we may terminate this agreement for material breach,
including nonpayment, at any time; in the absence of material breach by Borland.
Support Fees are not refundable.
6. The following terms also apply.
This is the full and final agreement between you and us, and supersedes any
promises, representations or agreements relating to the subject of this
agreement. This agreement may only be changed if you and our authorized
representative do so in writing. No inconsistent, additional, or preprinted
terms on your purchase order or other business form will apply. You may not
assign this agreement without our written consent. Any unauthorized assignment
terminates this agreement automatically. The Products, Upgrades, Maintenance
Releases, and Technical Materials are our copyrighted property, and may not be
copied, distributed, or transferred, or otherwise used except as we have
expressly permitted in the relevant license agreement (the terms of which are
incorporated into this agreement by reference) or otherwise in writing.
8
AMENDMENT 1
TO THE NO-NONSENSE VAR AGREEMENT BETWEEN
INPRISE CORPORATION AND SALESLOGIX CORPORATION
Inprise Corporation, formerly known as Borland International, Inc. ("Inprise")
and SalesLogix Corporation ("SalesLogix") are parties to a No-Nonsense VAR
Agreement dated September 10, 1996, as amended (the "Agreement").
The parties agree to further amend the Agreement as follows:
1. TERM: The term of the Agreement shall be extended for a period of one
year, expiring on September 10, 1999.
2. MINIMUM LICENSE PAYMENT: Upon execution of this Amendment, SalesLogix
agrees to pay Inprise a non-refundable, non-cancelable Minimum License
Payment in the amount of $100,000, for the right to copy, use and deploy
the Software described in Schedule 1, Attachment A with your application.
3. FEES:
As Software license seats are deployed, the License Fees and Customer
Annual Support Fees set forth below will be deducted from the Minimum
License payment.
a. License Fee per license seat: $ *
b. Customer Annual Support Fee per seat: $2.00 (at customer's option)
Fees will be deducted from the Minimum License Payment until no balance
remains. Thereafter, SalesLogix will make additional payments based upon
the reports due quarterly as specified in Section 6 of the Agreement. Such
payments are due within 30 days from the end of each calendar quarter.
5. LIMITED TIME OFFER: This Amendment is only valid if executed by both
parties, and if SalesLogix submits its purchase order in the amount of
$100,000 to Inprise on or before September 30, 1998.
INPRISE CORPORATION SALESLOGIX CORPORATION
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------ -----------------------------------
Print Name: Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------- ---------------------------
Title: Title: V.P. Finance
--------------------------- --------------------------------
Date: Date: 9/30/98
---------------------------- ---------------------------------
* Confidential information has been omitted and filed separately with the
Commission.
9
AMENDMENT 2
TO THE NO-NONSENSE VAR AGREEMENT BETWEEN
INPRISE CORPORATION AND SALESLOGIX CORPORATION
Inprise Corporation, formerly known as Borland International, Inc. ("Inprise")
and SalesLogix Corporation ("SalesLogix") are parties to a No-Nonsense VAR
Agreement dated September 10, 1996, as amended (the "Agreement").
The parties agree to further amend the Agreement as follows:
1. MINIMUM LICENSE PAYMENT: Upon execution of this Amendment, SalesLogix
agrees to pay Inprise a non-refundable, non-cancelable License Fee and
Update Support Fee prepayment in the amount of $25,000, for the right to
copy, use and deploy the Software described in Schedule 1, Attachment A of
your application.
2. LICENSE FEES:
As Software license seats are deployed, the License Fees and Customer
Annual Support Fees set forth below will be deducted from the prepayment.
a. License Fee per license seat: $ *
b. Customer Annual Support Fee per seat: $2.00 (at customer's option)
Fees will be deducted from the prepayment until no balance remains.
Thereafter, SalesLogix will make additional payments based upon the
reports due quarterly as specified in Section 6 of the Agreement. Such
payments are due within 30 days from the end of each calendar quarter.
3. LIMITED TIME OFFER: This Amendment is only valid if executed by both
parties, and if SalesLogix submits its purchase order in the amount of
$25,000 to Inprise on or before December 31, 1998.
INPRISE CORPORATION SALESLOGIX CORPORATION
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------ -----------------------------------
Print Name: Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------- ---------------------------
Title: Title: V.P. Finance
--------------------------- --------------------------------
Date: Date: 12/31/98
---------------------------- ---------------------------------
* Confidential information has been omitted and filed separately with the
Commission.
10
INPRISE CORPORATION - SINGLE ORDER / LIMITED RIGHT TO COPY SOFTWARE AGREEMENT
1. CUSTOMER AND DATE This Single Order / Limited Right to Copy Software
Agreement ("AGREEMENT") is between Inprise Corporation, a Delaware corporation
with an address of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
("INPRISE") and Saleslogix Corporation, its parent, subsidiaries and affiliates,
a non-profit organization, with an address of ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CUSTOMER"). The "EFFECTIVE DATE" of this Agreement
is DECEMBER 31, 1998.
2. INPRISE SOFTWARE
The Inprise software set forth at the end of this Agreement will be delivered to
Customer at the following address: ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SITE"). Such software and any copies of the software
which Customer is authorized to make pursuant to SUBSECTION 2.3 below
("SOFTWARE") shall be used by Customer solely to fulfill its own systems
operations needs under the terms of the standard end-user license and limited
warranty statement ("LICENSE TERMS") included in the normal packages of the
Software and included as part of this agreement attached hereto as Exhibit A.
Except for the license provided for in this Agreement and the License Terms,
Inprise and/or its suppliers retain any and all right, title and interest in and
to the Software.
2.2. Inprise will ship one (1) copy of the Software F.O.B. Inprise's facility on
a carrier selected by Inprise. All shipping costs will be the responsibility of
Customer.
2.3. Upon payment of the applicable license fees, Inprise grants Customer the
right to copy the Software up to the number of copies set forth at the end of
this Agreement ("LICENSED COPY(IES)"). Customer may order additional Licensed
Copies of the Software by paying to Inprise the applicable Licensed Copy fee as
specified in Subsection 4.1 below. Any obligations under the applicable License
Terms with respect to the physical diskettes and documentation shall not apply
to the Licensed Copies. Each Licensed Copy made by Customer shall include the
Software's copyright notice.
2.4. Customer's use of the Software shall be subject to all of the disclaimers
and exclusions of liability set forth in the License Terms. SPECIFICALLY, THE
SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED "AS IS" WITHOUT
EXPRESS OR IMPLIED WARRANTY OF ANY KIND. INPRISE FURTHER DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. INPRISE
DOES NOT WARRANT THAT THE INPRISE SOFTWARE WILL BE ERROR FREE OR WILL OPERATE
WITHOUT INTERRUPTION. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF
THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS REMAINS WITH CUSTOMER. IN NO
EVENT WILL INPRISE OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF THE USE,
INABILITY TO USE, OR PERFORMANCE OF THE SOFTWARE.
3. MAINTENANCE AND SUPPORT
3.1. Throughout the Term, Inprise will provide maintenance to Customer for the
Software. Maintenance entitles Customer to (a) receive one master copy of
Upgrades which may become commercially available from Inprise during the
Maintenance Term, (b) duplicate and install Upgrades for use at the Sites up to
the number of Licensed Copies/Software for which the applicable maintenance fees
have been paid. "UPGRADE" is a revised version of the Software with the
identical name, on the identical platform and shall include both major and minor
version number releases. "Maintenance term" shall mean for a one year period of
time and may be extended from time to time by the parties.
3.2. Provided Customer has paid the applicable annual support fee, throughout
the Term, Inprise will provide Customer with Developer Assist Technical Support
for the Software. "DEVELOPER ASSIST TECHNICAL SUPPORT" entitles Customer to
contact Inprise's technical support organization regarding TWELVE (12) INCIDENTS
PER YEAR. An "INCIDENT" means a single support question which results from a
reproducible failure or deviation in the Software to perform as specified in the
manuals accompanying the Software and the reasonable effort of Inprise to
resolve it. A
11
single support question is an issue that cannot be broken down into subordinate
issues. Before an Incident is opened for Customer, Customer and an Inprise
technical support representative must agree on what the issue is and the
parameters for a mutually acceptable solution. An Incident may require multiple
phone calls and off-line research
3.3. Inprise reserves the right to discontinue such maintenance and support if
the Software is no longer made generally commercially available by Inprise or
Inprise has stopped supporting or maintaining the Software.
3.4. Election of Maintenance and Support shall be at the discretion of Customer.
In the event Customer elects to decline the annual maintenance and support, such
election shall not impair customer's other rights with respect to continue use
of the Software licensed hereunder.
4. FEES
4.1. In consideration of the license granted in SECTION 2 above, Customer
will pay to Inprise a one-time, nonrefundable "LICENSE FEE" in the amount of
THIRTY THOUSAND DOLLARS ($30,000). For each additional Licensed Copy specified
in SUBSECTION 2.3 above, Customer shall pay to Inprise a one-time, nonrefundable
License Fee equal to 50% of the license fee shown on the then current Inprise
Customer Service Dual Price List.
4.2. In consideration of the maintenance services described in SUBSECTION
3.1 above, Customer will pay to Inprise a one-time, nonrefundable annual
"MAINTENANCE FEE" in the amount of FIVE THOUSAND DOLLARS ($5,000). Election of
maintenance and support services shall not be a requirement of customer's
obtaining or continuing any use of the licenses granted hereunder.
4.3. All up front fees payable within thirty (30) days of the date of
receipt of invoice by Customer. For additional Licensed Copies, the License Fees
and Maintenance Fees shall be paid prior to Customer making such Licensed Copy.
Customer will pay all sales, use, and other taxes or duties (except our income
tax) that may be required as a result of this Agreement.
5. YEAR 2000
Inprise represents and warrants that the then-current version of the
Software shall be Year 2000 Compliant. "YEAR 2000 COMPLIANT" shall mean all
calendar year representations used within the Software which, when operated on
(including, but not limited to, arithmetic, comparison and sorting operations)
before, during and after the actual calendar year 2000 A.D. shall not produce
subsequent operations and/or generated output which yield results in variance
with the normal course of operations of the Software or error conditions which
are the direct result of the use of a calendar year representation. The
foregoing warranty shall not apply (i) to a prior version of the Software if a
more recent version of the Software is Year 2000 Compliant; and (ii) to the
extent the Software is non-Year 2000 Compliant as a result of the combination,
operation or use of the Software with data, hardware or software not provided by
Inprise, if the Software would have been Year 2000 Compliant but for such
combination, operation or use.
IN THE EVENT THE SOFTWARE IS NOT YEAR 2000 COMPLIANT, INPRISE SHALL HAVE THE
OPTION, AT ITS EXPENSE TO: (A) MODIFY THE SOFTWARE TO MAKE IT YEAR 2000
COMPLIANT, OR (B) REFUND TO CUSTOMER THE PRO-RATED FEES, BASED ON A THREE YEAR
LIFE, PAID FOR SUCH SOFTWARE. THE FOREGOING STATES INPRISE'S ENTIRE LIABILITY
AND CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY BREACH OF THE LIMITED WARRANTY FOR THE
OR SOFTWARE SET FORTH IN SUBSECTION 5.1.
5.3. OTHER THAN THE LIMITED WARRANTIES SET FORTH IN SUBSECTION 5.1 AND THE
LICENSE TERMS THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED
"AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND. INPRISE FURTHER
DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. INPRISE DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR
FREE OR WILL OPERATE WITHOUT INTERRUPTION. THE ENTIRE RISK ARISING OUT OF THE
USE
12
OR PERFORMANCE OF THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS REMAINS WITH
CUSTOMER.
6. INFRINGEMENT INDEMNITY
Inprise will defend you against any claims by third parties of infringement of
United States copyrights arising from your use, as permitted herein, of any
Product as furnished by Inprise and pay any damages awarded. Inprise obligations
are contingent upon you notifying Inprise promptly of any notice of any actual
or threatened claim or suit; giving Inprise the exclusive right to control the
defense and settlement of such claim or suit; and giving your full cooperation
for the defense of same. Following notice of a claim or a threatened claim,
Inprise may, in its discretion and at its option, procure for you the right to
continue using any Product or may replace or modify any Product to make it
non-infringing. If Inprise determines that none of these alternatives is
practical, Inprise may refund the license fees paid by you hereunder for the
affected Products (less a charge for depreciation on a three year, straight-line
basis) and accept the return of the affected Products.
Inprise will have no liability for any claim of infringement of any third party
right that is caused by (i) your use of any Product with non-Inprise software,
products or data if such claim would have been avoided by exclusive use of the
Product; (ii) modification of the Product by anyone other than Inprise if such
claim would have been avoided by use of the unmodified Product; or (iii) by use
of other than the most current release of the Product.
6.3. This Section 6 states Inprise's entire liability to you for actual or
claimed infringement of intellectual or proprietary rights.
7. GENERAL
7.1. Either party shall have the right to terminate this Agreement if the
other party materially defaults on any of its obligations hereunder, unless
within thirty (30) days after written notice of such default, either party cures
the default. The software is subject to U.S. Commerce Department export
restrictions.
7.2. Use, duplication, or disclosure of the Licensed Copies by the U.S.
Government is subject to the restricted rights applicable to commercial computer
software (under FAR 52.227-19 and DFARS 252.227-7013).
7.3. Customer may not sublicense, assign or transfer this Agreement except
to an entity that succeeds to all or substantially all of Customer's business or
assets.
7.4. This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
7.5. This Agreement and the applicable License Terms represents the entire
agreement between the parties and supersedes any other communications or
advertising with respect to the Software hereunder. This Agreement may not be
modified except in writing and signed by both parties.
IN WITNESS WHEREOF, Inprise and Customer have caused this Agreement to be
entered into by their duly authorized representatives as of the Effective Date.
CUSTOMER: SalesLogix Corp. INPRISE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By:
--------------------------------- -----------------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Print Name:
-------------------- ----------------------------
Title: V.P. Finance Title:
------------------------------- ---------------------------------
Date: 12-31-98 Date:
-------------------------------- ----------------------------------
13
INPRISE CORPORATION - SINGLE ORDER / LIMITED RIGHT TO COPY SOFTWARE
AGREEMENT (DESCRIPTION)
I. SOFTWARE DESCRIPTION INFORMATION
QUANTITY SKU SOFTWARE DESCRIPTION
--------------------------------------------------------------------------------
1 HDA1340WWFS180 Delphi 4.0 Client Server Suite for Windows NT
HDB1340WW1018P
29 Licensed Copies Delphi 4.0 Client Server Suite for Windows NT
II. MAINTENANCE DESCRIPTION INFORMATION
QUANTITY SKU SOFTWARE DESCRIPTION
--------------------------------------------------------------------------------
30 Maintenance for Delphi 4.0 Client Server Suite
for Windows NT
IV. TOTAL FEES DUE ON THE EFFECTIVE DATE
License Fee $ *
Maintenance Fee $ 5,000
-------
TOTAL $ *
* Confidential information has been omitted and filed separately with the
Commission.