AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
EXHIBIT 10.21
DISTRIBUTORSHIP AGREEMENT
THIS DISTRIBUTORSHIP AGREEMENT (this "Agreement") is made this 6th day of
January, 1997 (the "Effective Date"), by and between Centura Software
Corporation, a California corporation, having its principal office at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Distributor"), and InfoSpinner, Inc., a
Delaware corporation, having its principal office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. ("INFO").
ARTICLE 1. GRANT OF DISTRIBUTORSHIP.
1.01 LICENSE GRANT. Subject to the terms and conditions of this
Agreement, INFO grants and Distributor accepts during the Term of this Agreement
an nonexclusive, nontransferable right to reproduce, market and license use of
the INFO products listed on Exhibit A (the "Products") but only to Customers (as
defined below) located in the territory set forth on the signature page hereto
(the "Territory"). For the avoidance of doubt, "Products" as used herein shall
not include any Kanji or other non-English language or localized version of any
INFO product. Distributor may appoint subdistributors provided that any such
subdistributor shall be bound by an enforceable writing for INFO's benefit to
all the limitations, disclaimers and restrictions of this Agreement. Except as
provided in Section 3.01, Distributor is not entitled to receive any source code
or source documentation with respect to the Products. "Customer" means any third
party which is granted a license by Distributor or a subdistributor to use (and
not to redistribute) internally on a single designated hardware and software
system any Product(s). A Customer's location shall be where the Product(s) are
installed.
1.02 OWNERSHIP.
Notwithstanding anything else, as between the parties, INFO retains (i) all
title to, and, except as expressly and unambiguously licensed herein, all rights
in and to the Products, all copies and derivative works therefore (by whomever
produced) and all related documentation and materials, (ii) all of their service
marks, trademarks, tradenames or any other designations (and notwithstanding
anything else herein, Distributor may not use any name, ▇▇▇▇ or designation used
by INFO, except for use in advertising or marketing the Products in accordance
with the terms and conditions contained herein) and (iii) all copyrights, patent
rights trade secret rights and other proprietary rights in the Products.
1.03 DISTRIBUTOR USE OF PRODUCTS. Distributor may use the Products solely
to fulfill its marketing, support, and maintenance responsibilities under this
Agreement.
1.04 STANDARD LICENSE AGREEMENT. Distributor shall license the Products
pursuant to Distributor's standard terms and conditions, which will be, and
shall whenever revised, be approved in writing by INFO, which approval shall not
be unreasonably withheld. Distributor shall assure that its standard License
Agreement with subdistributors and its standard End-User License Agreement with
Customers (the "License Agreements") conform to all requirements of this
Agreement. Specifically, but without limitation, the License Agreements shall
incorporate in substance the provisions herein regarding confidentiality,
limited warranty, limitation of liability/damages, and all restrictions upon
disclosure, reproduction, or duplication of the Products. In addition, if the
Product is distributed to Customers via the Internet or by other electronic
means, the Customer shall be required to affirmatively acknowledge acceptance of
the license by "clicking" on an acceptance button or other similar means.
Distributor shall not modify the substantive content of its License Agreements,
as approved by INFO without the further prior written approval of INFO.
Distributor and its subdistributors authorized hereunder may execute License
Agreements written in other than the English language. In the event of any
discrepancy between the non-English
1
and the English versions, the latter shall control. Distributor shall represent
to INFO that such non-English version is an accurate translation of the English
version, and Distributor shall be responsible for compliance of its
distributors, affiliates, agents and customers with the terms and conditions
herein regarding confidentiality, limited warranty, limitation of liability,
damages, and all restrictions upon disclosure, reproduction, or duplication of
the Products.
1.05 PRODUCT ENHANCEMENTS.
(a) During the Term of this Agreement, INFO shall provide Distributor
with modifications, upgrades, or improvements to the Products, or any part
thereof, that INFO may from time to time make available that: (i) is
identified as a new release of a Product, (ii) contains a modification,
upgrade or improvement to the Product, (iii) is not a separately priced
software component (and does not include any software that INFO distributes
as a separate product) and (iv) is made commercially generally available by
INFO (a "Product Enhancement"). Each such Product Enhancement will be deemed
a "Product" for purposes of this Agreement, including royalty calculations.
(b) INFO shall in good faith (but with no further obligation) consider
any functionality changes or modifications to the Products specifically
requested by Distributor to facilitate integration with Distributor products
and/or exploitation of the Products in the Territory. Any such modifications
which INFO commits to undertake shall be the subject of a separate agreement
between the parties and shall not be deemed "Product Enhancements" for
purposes of this Agreement.
1.06 DELIVERY OF PRODUCT AND DOCUMENTATION.
INFO will provide Distributor with two production masters of each Product
and any Product Enhancement, and will provide two copies of the documentation
for each Product and any Product Enhancement. Distributor is responsible for
duplicating Products, any Product Enhancements and all documentation for
distribution to Customers.
ARTICLE 2. TERM AND RENEWAL.
2.01 TERM. This Agreement shall commence on the above date and shall
continue for three (3) years unless earlier terminated pursuant to Section
11.01.
2.02 RENEWAL. This Agreement shall automatically renew for an unlimited
number of successive one-year periods, unless terminated as provided in Section
11.01 or either party notifies the other party thirty (30) days prior to renewal
that it wishes to negotiate a change to this Agreement. In case of
renegotiation, renewal will not be effective unless the negotiated changes are
mutually agreed to in writing by the parties.
ARTICLE 3. ESCROW & SUPPORT.
3.01 ESCROW. Within 60 days after the Effective Date, INFO and
Distributor shall enter into a Software Source Code Escrow Agreement with a
reputable third party escrow agent that is reasonably acceptable to the parties
(the "Escrow Agreement"), which Escrow Agreement shall provide for the release
of the source code of the Products to Distributor in the event that INFO becomes
insolvent, whether voluntary or involuntary, or if any process or judicial
proceeding is instituted against INFO by attachment or levy or execution, in
insolvency or bankruptcy, or in receivership (and such process or proceeding is
not resolved within 120 days thereafter), or if any general assignment is made
or attempted to be made for the benefit of creditors by such party.
2
AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
3.02 BACKLINE SUPPORT AND MAINTENANCE FEE. Distributor shall be
responsible for all Customer support for the Products. During the term of this
Agreement, INFO shall provide 20 hours of backline support (I.E., support that
requires access and manipulation of the Product source code) per month directly
to Distributor's designated INFO product support manager in exchange for an
annual backline support fee of $XXXXX. INFO's sole obligation with respect to
any Product or documentation errors will be to use all diligent efforts to
correct, at its expense, any reproducible error about which it receives written
notice within a reasonable period of time after discovery. INFO's support
obligations contained in this Section 3.03 are contingent upon proper use of the
Product(s) and shall not apply if a Product (i) is modified by Distributor or by
any other party without INFO's prior written approval; (ii) is otherwise
tampered with; or (iii) if it is used on or with a version of a hardware or
software product which INFO does not support at the time of such use.
ARTICLE 4. MARKETING AND ADVERTISING.
4.01 DISTRIBUTOR MARKETING EFFORTS AND SALES TARGETS.
(a) Distributor shall, during the Term of this Agreement, use its best
efforts to market, advertise, distribute and otherwise promote the
distribution, licensing and use of Products in the Territory on a continuing
basis.
(b) Distributor will provide nonbinding forecasts of monthly sales for
the upcoming six (6) months on a rolling basis, prior to the start of the
month. Such forecasts and updates shall include such information with
respect to future sales of the Products as INFO shall reasonably request.
4.02 DISTRIBUTOR STAFF COMMITMENT. Unless INFO agrees otherwise in
writing, all Distributor Customer support activities regarding the Product(s)
shall be performed by Distributor's employees. Distributor shall commit a
sufficient number of trained and qualified personnel to market and promote the
Product(s) and agrees to maintain at least an adequate number of trained staff
personnel.
4.03 USE OF INFO TRADEMARKS AND/OR TRADE NAMES. Distributor shall, at its
option and without separate charge, use INFO's service marks, trademarks and/or
trade names identified in Exhibit C hereto (to which INFO may add or delete from
time to time upon 60 days prior written notice to Distributor) in any
advertising, marketing, technical, or other materials produced or distributed by
Distributor pursuant to this Agreement. In using such service marks, trademarks
and/or trade names, Distributor shall clearly indicate INFO's ownership rights
to such service marks, trademarks and/or trade names. Distributor shall not
acquire any rights in or to such service marks, trademarks or trade names by
virtue of use, and shall immediately cease use upon termination of this
Agreement. Distributor shall promptly notify INFO of any third party use of the
same or similar service marks, trademarks or trade names which may infringe upon
INFO proprietary rights; and shall cooperate with INFO in prosecution of any
such infringement(s). Distributor will not contest the use by or authorized by
INFO of any trademark or application or registration therefor, whether during or
after the term of this Agreement. In connection with its use of INFO's service
marks, trademarks and/or trade names, Distributor will comply with INFO's
quality control standards then in effect. Upon notice from INFO that Distributor
has materially failed to comply with such standards, Distributor shall use its
best efforts to cure such non-compliance. In the event that Distributor does not
cure such noncompliance within a reasonable period of time (not to exceed 30
days) after first receipt of notice from INFO, INFO shall have the right to
suspend Distributor's use of the applicable service ▇▇▇▇, trademark and/or trade
name until non-compliance has been cured to INFO's reasonable satisfaction.
3
ARTICLE 5. INSTALLATION, PRODUCT SUPPORT, TECHNICAL SERVICES.
Distributor shall be solely responsible for, and shall use its best efforts
to ensure, proper installation of the Product(s). Distributor shall be the sole
Customer contact regarding, and shall be responsible for, promptly providing
Customers with installation, technical services (i.e., maintenance), correction
of errors, current Product documentation (including appropriate translations
prepared at its expense), Product related training, and Product Enhancements
(including documentation appropriately translated at its expense). Distributor
may request INFO assistance if Distributor is reasonably unable to meet Customer
requests relating to the Product(s) as long as the Product(s) are installed on
hardware and software environments which INFO supports, and upon terms that are
mutually agreed upon by the parties.
ARTICLE 6. FEES/ROYALTIES; TAXES.
6.01 RECOMMENDED LICENSE AND MAINTENANCE FEES.
(a) All royalties and maintenance fees due INFO hereunder shall be based
upon the then current U.S. Dollar Product License and Maintenance Fees
Schedule attached as Exhibit A (the "Fees Schedule"). INFO will advise
Distributor in writing of changes in the Fees Schedule at least thirty (30)
days prior to the effective date of such changes.
(b) Distributor shall have the right to determine the pricing of the
Products in the Territory (which may differ from the prices suggested on the
Fees Schedule), however, License Fee Royalties to be paid to INFO by
Distributor shall be based on the U.S. Dollar prices set forth in the Fees
Schedule.
6.02 PAYMENT OF ROYALTIES.
(a) Distributor shall pay to INFO the non-refundable (except as set
forth on Exhibit B) Advance Payment (the "Advance") in the amount and
according to the payment schedule set forth in Exhibit B. In addition,
Distributor will pay INFO royalties on each (i) copy of a Product
distributed and (ii) Product maintenance agreement in effect in accordance
with Exhibit B.
(b) Distributor shall report within forty-five days after the end of
each calendar quarter all Royalties due to INFO for Product licenses or
maintenance agreements for which Distributor directly or indirectly receives
payment pursuant to such Product license or maintenance agreement. Along
with such report, Distributor will pay the Royalties due to INFO, with an
offset for advance Royalty payments in accordance with the schedule set
forth in Exhibit B, if any are outstanding at such time.
6.03 DELINQUENT PAYMENT. If any payment provided in Section 6.02 shall
remain unpaid following the time prescribed therefor, Distributor shall pay
INFO, in addition to the payment then owing, interest thereon at 18% per annum,
or at the maximum interest rate allowed by law, if such rate is lower, for the
period such payment is delinquent.
6.04 TAXES AND DUTIES. In addition to all license and maintenance fees
due hereunder, Distributor shall pay all taxes, duties, import, customs and
export fees (including, but not limited to any withholding taxes imposed by any
government entity), and any other charges or assessments established by any
governmental agency, except taxes imposed on INFO based on its net income.
ARTICLE 7. CONFIDENTIALITY.
7.01 CONFIDENTIALITY OF PRODUCT(S). Unless expressly provided otherwise
herein, the Product(s), together with all Product Enhancements, materials and
knowledge related thereto and any other items identified by INFO as
"confidential", are provided to Distributor and any Customer, and their
respective employees, agents and representatives, in confidence and shall not be
duplicated or disclosed by any of them in any form for the use or benefit of any
other person or entity. Neither Distributor nor any Customer shall reproduce,
transcribe, imitate, reverse engineer, or decompile the Products. Provided that
the recipient has executed a confidentiality agreement that restricts his right
to use or disclose the Product
4
or other confidential information that is at least as restrictive as
Distributor's obligation under this Section 7.01, Distributor or any Customer
may disclose relevant aspects of the Product(s) to each other and to their
respective employees, agents or representatives to the extent that such
disclosure is reasonably necessary to Distributor's use of the Product(s)
pursuant to this Agreement, or to Customer's use pursuant to the applicable
License Agreement, provided that Distributor shall take all reasonable steps to
ensure that the Product(s) are not disclosed or duplicated in contravention of
this Agreement including, but not limited to, execution of written
confidentiality agreements by appropriate persons.
7.02 CONFIDENTIALITY OF AGREEMENT. Distributor and INFO shall not
disclose the terms and conditions of this Agreement to anyone other than: (i)
its employees who reasonably acquire such knowledge in the ordinary course and
scope of their employment; (ii) its agents or representatives whose assigned
duties reasonably require that such disclosure be made, or to the extent that
such disclosure is reasonably necessary for use of the Products; (iii)
Customers, to the extent reasonably necessary to license the Product(s) or to
comply with the provisions hereof; and (iv) third parties in connection with a
potential financial transaction or similar arrangement.
7.03 DUTY TO ASSIST. In the event of any violation or suspected violation
of any provision of this Article 8, Distributor shall immediately notify INFO
and shall, at its expense, assist INFO in the enforcement of such provision
against any employee, agent or representative of Distributor or Customer.
7.04 DISCLOSURE REQUIRED BY LAW. Nothing in this Article 8 shall in any
way restrict disclosure by either party pursuant to any law, the order of any
court or governmental agency, or the rules or regulations of any governmental
agency having jurisdiction governing the installation location. However,
Distributor shall immediately notify INFO in writing of any attempt of
attachment, levy, or execution upon or against the Product(s) and provide INFO
with all reasonable assistance and cooperation to limit or suppress such
disclosure.
7.05 SURVIVAL. Provisions of this Article 8 shall survive termination of
this Agreement in accordance with Article 12.
ARTICLE 8. LIMITED WARRANTIES.
8.01 EXPRESS WARRANTIES. INFO warrants that it has the right to enter
into this Agreement and to grant Distributor the right to license or use the
Product(s) in accordance with this Agreement.
8.02 DISCLAIMER OF WARRANTIES. DISTRIBUTOR HEREBY EXPRESSLY AGREES AND
ACKNOWLEDGES THAT THE FOREGOING WARRANTIES CONTAINED IN SECTION 8.01 ARE IN LIEU
OF ANY AND ALL OTHER WARRANTIES. INFO DISCLAIMS ANY AND ALL OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE REGARDING DISTRIBUTOR'S OR CUSTOMER'S
APPLICATION OR USE OF THE PRODUCTS, AND NONINFRINGEMENT.
8.03 LIMITATION OF LIABILITY/DAMAGES. Distributor agrees that
notwithstanding anything else in this agreement, INFO will not be liable with
respect to any subject matter of this Agreement under any contract, negligence,
strict liability or other legal or equitable theory (i) for any damages arising
out of use of Product, except those arising from patent or copyright
infringement as provided in Article 10, and including, but not limited to,
breach of any warranty, (ii) for any amount in excess of the lesser of actual
direct damages to Distributor or the total amount of payments paid by
Distributor to INFO pursuant to Section 6.02 during the twelve (12) months
preceding the events or occurrences giving rise to the damage, (iii) for the
cost of procurement of substitute goods, services or technology; and (iv) in any
event, for any damages incurred by Distributor, Customer, or by any other
person, organization or entity as a result of Distributor's, or its Customer's,
misuse of the Product(s), even if INFO had been advised of the possibility
5
of such damages. INFO shall not be liable for any consequential, special, or
incidental damages, lost proceeds, or for any claim or demand against
Distributor by any other person, organization, or entity, except for patent or
copyright infringement as provided in Article 10.
8.04 TIME LIMITATION. Any legal proceeding based upon or arising out of
this Agreement must be instituted within one (1) year from the date of
occurrence of the events upon which such legal proceeding is based.
ARTICLE 9. PATENT OR COPYRIGHT INFRINGEMENT.
If any alleged infringement of patent or copyright is asserted against
Distributor based upon its use or license of the Product(s), INFO will indemnify
Distributor in investigation of such claims, in preparation and defense against
such claims, or in settlement thereof, provided that INFO shall have received
from Distributor notice of said claim within fifteen (15) days of the assertion
thereof; and further provided that INFO shall have the exclusive right, if it so
chooses, to control and direct the investigation, defense, or settlement of such
claims; and further provided that INFO shall receive the complete cooperation
and assistance of Distributor. In the event an infringement is determined or, if
required by settlement, INFO may substitute for the Product and documentation
substantially equivalent programs and documentation, or, alternatively, INFO may
procure for Distributor the right to continue distributing the Product. If the
claim is based on the fact that Distributor or any third party has modified the
Product without INFO authorization, Distributor shall reimburse INFO for any and
all costs associated with its investigation and defense of said claim(s). The
foregoing obligation of INFO does not apply with respect to the Products or
portions or components thereof (i) made in whole or in part in accordance to
Distributor's specifications, (ii) which are modified after shipment by any
party other INFO, if the alleged infringement relates to such modification,
(iii) combined with other non-INFO products, processes or materials where the
alleged infringement relates to such combination, (iv) where Distributor
continues allegedly infringing activity after being notified thereof or after
being informed of modifications that would have avoided the alleged
infringement, or (v) where Distributor's use of the Products is incident to an
infringement not resulting primarily from the Product.
ARTICLE 10. RECORDS, REPORTS AND AUDITS.
10.01 REQUIRED RECORDS. Distributor shall prepare and maintain, at its
expense, complete and accurate books and records documenting its reproduction
and licensing of Product(s) and rendering of support and maintenance pursuant to
this Agreement; and its receipt of all fees in or relating thereto. Distributor
shall maintain such books and records for a minimum of three (3) years from the
later of the date of the last time of license granted hereunder or provision of
services, respectively.
10.02 REPORTS TO INFO. Distributor shall, at its expense, provide INFO a
quarterly written report of Distributor's marketing, licensing and support
activities pursuant to this Agreement. Such reports shall include, all fees due
INFO and confirm Distributor's receipt of fees from Customers upon which fees
are calculated; all taxes paid by Distributor applicable to the Product(s);
License Agreement terminations; a summary of Product support activities and
Product operational problems. Reports are due within a reasonable time after the
quarter end to which such report relates. In addition, Distributor shall
promptly provide INFO with such other reports and in such manner as INFO may
reasonably request from time to time. AUDIT. During the Term of this Agreement
and for one (1) year thereafter, INFO shall have the right, at its expense and
upon reasonable written notice to Distributor to have the relevant records of
Distributor reviewed by INFO's outside certified public accountant to verify
Distributor's performance hereunder. Provided, however, that such examination
shall take place at a place and time mutually convenient to Distributor and INFO
and no more than once per calendar year.
6
ARTICLE 11. TERMINATION AND REMEDIES.
11.01 TERMINATION. This Agreement may be terminated:
(a) upon 10 days notice, if Distributor fails to make any payments
required by this Agreement when due;
(b) in the event either party fails materially to fulfill its
obligations hereunder, the other party shall notify the non-complying party
in writing of the breach and the reasons therefor. If the non-complying
party fails to remedy the breach within thirty (30) days from the date of
receipt of such notice, or, in the event such breach cannot be remedied
within thirty (30) days, the breaching party has not undertaken substantial
efforts to cure the breach (and in any event, cured such breach within 60
days of first notice thereof), the other party may immediately terminate
this Agreement by giving written notice of termination to the non-complying
party; notwithstanding the foregoing, however, INFO may terminate this
Agreement immediately upon notice if Distributor violates any provision of
Article 8; or if either party becomes insolvent, whether voluntary or
involuntary, or if any process or judicial proceeding is instituted against
such party by attachment or levy or execution, in insolvency or bankruptcy,
or in receivership, or if any general assignment is made or attempted to be
made for the benefit of creditors by such party, this Agreement may be
terminated by the other party immediately upon written notice.
11.02 EFFECT OF TERMINATION. Neither the right to terminate nor the actual
termination of this Agreement as provided in this Article 12 shall limit the
non-breaching party from pursuing whatever relief it deems appropriate for such
breach in accordance with the provisions of this Agreement. Termination of this
Agreement for any reason shall not relieve Distributor of its obligation to make
full payment to INFO for any amounts due hereunder, as well as payment of taxes
then due or which shall become due hereunder subsequent to termination hereof,
pertaining to any License Agreement which is outstanding after termination.
Within a reasonable time of termination, which shall not occur prior to
Distributor's completion of its existing maintenance obligations to Customers
(and in no event, later than one year after the date of termination of this
Agreement), Distributor shall, at its expense, return to INFO all copies of the
Product(s) and related materials, and of other materials developed by or
belonging to INFO which are in Distributor's possession or control.
Concurrently, a duly authorized officer of Distributor shall certify in writing
to INFO that all such materials have been returned to INFO.
11.03 REMEDIES.
(a) Distributor acknowledges that, except for damages resulting from
breach of its monetary obligations to INFO hereunder, it would be difficult
for INFO to measure damages arising from Distributor's breach of any
provision of this Agreement; that injury to INFO from such breach would be
incalculable and irremediable; and that money damages would, therefore, be
an inadequate remedy for such breach. Accordingly, INFO shall have, in
addition to any other remedies available, the right to preliminary or
permanent injunctive relief enjoining such breach, or attempted breach, by
Distributor.
(b) Distributor shall indemnify and hold INFO harmless from any and all
claims, losses, liabilities and costs (including reasonable attorneys' fees)
resulting from Distributor's or its subdistributors, resellers, employees,
affiliates or other agents of any kind marketing, licensing, or servicing
the Product(s), including, but not limited to, inadequate installations,
maintenance, or Customer assistance, or breach of Distributor's other
obligations hereunder or under any License Agreement.
ARTICLE 12. GENERAL PROVISIONS.
12.01 RELATIONSHIP OF PARTIES. Neither party shall represent that it is an
agent of or for the other party. Both parties acknowledge that the relationship
of Distributor to INFO hereunder shall be, and at all times shall remain, that
of independent contractor. Except as otherwise provided herein, Distributor
shall
7
have no right or authority to assume, create or enlarge any obligation or
commitment on behalf of INFO and shall not represent itself as having the
authority to bind INFO in any manner whatsoever.
12.02 ASSIGNMENT. Except as otherwise expressly provided herein, neither
party shall assign nor otherwise transfer its rights or obligations under this
Agreement without the prior written consent of the other party. However, (i)
either may assign and delegate this Agreement to a third party in connection
with a merger or sale of substantially all of its assets without the other
party's prior consent and (ii) this Agreement shall be binding on any successor
in interest to all or substantially all of INFO's assets or business or any
purchaser of the ownership rights of any of the Products.
12.03 GOVERNMENT APPROVAL AND REPORTS. Upon execution of this Agreement
and continuing while this Agreement is in effect, Distributor shall make all
required reports to and obtain all requisite approvals from governments in the
countries where Product(s) are licensed. INFO reserves the right to participate
fully in the preparation of such reports or in obtaining such approvals,
including the examination of any and all documents prior to submission to
appropriate authorities. If the laws of any country require registration of this
Agreement, Distributor agrees to register or cause to be registered, at its sole
expense, this Agreement and any such agreements whereby licenses or other rights
are granted by Distributor to any of its Customers.
12.04 FORCE MAJEURE. Except for Distributor payments due to INFO pursuant
to this Agreement, neither party shall be liable for delays in its performance
hereunder due to causes beyond its reasonable control, including, but not
limited to, delays occasioned by acts of God, acts of public enemy, civil war,
insurrection or riots, fires, floods, explosions, earthquakes or other
casualties, or litigation initiated by third parties enjoining, modifying or in
any way restricting the performance under this Agreement by one or both of the
parties.
12.05 NOTICE. All notices or communications given or sent to either party,
except requests for routine technical support services and quarterly reports,
shall be by facsimile with confirming hardcopy by certified mail, postage
prepaid, and addressed as follows:
FOR DISTRIBUTOR: Centura Software Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
FOR INFO: InfoSpinner, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
12.06 PROPRIETARY NOTICES. Distributor agrees not to delete, alter, add to
or fail to reproduce in and on any copy of the Products and media the name of
the Product and any copyright or other proprietary notices appearing in or on
any copy, media or master or package materials provided by INFO or which may be
reasonably required by INFO in the future. In addition, at the request of INFO,
INFO will receive reasonable credit in the initial display within the Product,
and all documentation and packaging for Products distributed hereunder.
12.07 PUBLICITY. The parties agrees that they will jointly develop and
announce through a press release the relationship established hereunder. The
information contained in the press release (or otherwise approved by a party
hereto) may be disseminated without regard to Section 7.02 above.
12.08 ENTIRE AGREEMENT. This Agreement, including Exhibits and Schedules
attached hereto, constitutes the entire agreement between the parties and
supersedes all previous communications, representations or agreements, either
written or oral, with respect to the subject matter hereof.
8
12.09 AMENDMENTS AND WAIVER. The provisions of this Agreement may be
waived, altered, amended or repealed, in whole or in part, only upon the written
consent of both parties. No waiver of a breach of any covenant shall be
construed as a waiver of any other or subsequent breach of the same or any other
covenant of this Agreement.
12.10 VALIDITY OF AGREEMENT. In the event any provision of this Agreement,
or portion thereof, is held by a court having proper jurisdiction to be for any
reason unenforceable or invalid, the remaining provisions, or portions thereof
shall continue to exist and shall remain in full force and effect.
12.11 APPLICABLE LAW. By adoption of the parties, the State of Texas,
U.S.A. is deemed to be the place of contracting and, by agreement of the
parties, any claim or controversy relating to this Agreement, its
interpretation, performance or validity shall be construed and adjusted in
accordance with the law of said State; (except for actions in equity or
injunctive relief), the sole jurisdiction and venue for actions related to the
subject matter hereof shall be the state and U.S. federal courts having within
their jurisdiction the city of Dallas, Texas. Both parties consent to the
jurisdiction of such courts and agree that process may be served in the manner
provided herein for giving of notices or otherwise as allowed by Texas state or
U.S. federal law.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective
on the date first written above.
INFOSPINNER, INC.
By: ---------------------------------
Name: ---------------------------------
Title: ---------------------------------
Date: ---------------------------------
DISTRIBUTOR:
----------------------------------------
By: ---------------------------------
Name: ---------------------------------
Title: ---------------------------------
Date: ---------------------------------
DISTRIBUTOR'S TERRITORY: Worldwide
9
AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
EXHIBIT A
INFO PRODUCT LICENSE AND MAINTENANCE FEE SCHEDULE
SUGGESTED
PRODUCT SUGGESTED LICENSE FEE MAINTENANCE FEE
-------------------------------- -----------------------
SINGLE CPU LIST MULTI-CPU LIST DISTRIBUTOR'S LIST
PACKAGES PRICE PRICE PRICES
-------------------------------------------------------- --------------- --------------- -----------------------
FORESITE................................................ $ XXX $ XXX
One PageBuilder
One PageDispatcher
One PageServer
Software Development Kit (SDK)
FORESITE ENTERPRISE..................................... $ XXX $ XXX
Two PageBuilders
Two PageDispatchers
Two PageServers
Software Development Kit (SDK)
SUGGESTED
PRODUCT SUGGESTED LICENSE FEE MAINTENANCE FEE
-------------------------------- -----------------------
SINGLE CPU LIST MULTI-CPU LIST DISTRIBUTOR'S LIST
OPTIONAL MODULES PRICE PRICE PRICES
-------------------------------------------------------- --------------- --------------- -----------------------
INTEGRATION MODULE
PageBuilder........................................... $ XXX $ XXX
EXTENSIBILITY MODULES (PRICED PER PAGESERVER)
Client/Server Extension............................... $ XXX $ XXX
3270 Extension........................................ $ XXX $ XXX
SQL Database Extension................................ $ XXX $ XXX
DEPLOYMENT MODULES
PageDispatcher........................................ $ XXX $ XXX
PageServer............................................ $ XXX $ XXX
APPLICATION MODULE
Discussion Forum...................................... $ XXX $ XXX
EXAMPLE:
A customer implements a Web Commerce site that requires one Webmaster and two
end users to administer. The customer anticipates traffic that requires four
PageServers with support for SQL databases and client/server application data
sources and a spare PageDispatcher for availability.
QUANTITY
---------------------------------------
SINGLE
CPU LIST MULTI- CPU
ITEM QUANTITY PRICE LIST PRICE
------------------------------------------------------------------------------- --------------- --------- -----------
ForeSite Enterprise............................................................ 1 $ XXXX $ XXXX
Additional PageBuilders........................................................ 1 $ XXXX $ XXXX
Additional PageServers......................................................... 2 $ XXXX $ XXXX
SLQ Database Extension......................................................... 4 $ XXXX $ XXXX
Client/Server Extension........................................................ 4 $ XXXX $ XXXX
Total $ XXXX $ XXXX
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AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
EXHIBIT B
ROYALTY AND MAINTENANCE FEE AND
ADVANCE RECOVERY SCHEDULE
CUMULATIVE PRODUCT AND
MAINTENANCE LICENSE FEES: PRODUCT ROYALTY RATE MAINTENANCE ROYALTY RATE
------------------------------------------------------------------- ----------------------- ---------------------------
$0 and above....................................................... XX% XX%
CALCULATION:
ADVANCE PAYMENT. The total amount of the Advance Payment shall be One
Million Five Hundred Thousand Dollars ($1,500,000) which shall be paid according
to the following schedule:
DATE: PAYMENT AMOUNT:
---------------------------------------------------------------------------- ----------------
Effective Date.............................................................. $ XXXXX
March 31, 1997.............................................................. $ XXXXX
June 1, 1997................................................................ $ XXXXX
September 1, 1997........................................................... $ XXXXX
December 1, 1997............................................................ $ XXXXX
March 1, 1998............................................................... $ XXXXX
provided, however, Distributor shall have the right to terminate this Agreement
in addition to its termination rights under Section 11.01 if Merger as set forth
in the Agreement and Plan of Reorganization entered into between the parties as
of the Effective Date (the "Reorganization Agreement") is not consummated solely
as a result of:
i) INFO not obtaining the approval of its stockholders required under
Sections 6.1(a) or 6.3(f) of the Reorganization Agreement,
ii) INFO not delivering fully executed agreements and/or certificates
required to be executed and delivered by INFO or its officers, directors,
affiliates or employees under Sections 6.1(c) (Employment Agreements),
6.1(e) (Affiliate Agreements), 6.1(f) (Escrow Agreement), 6.3(c) (Third
Party Consents), the certificate required under Section 6.3(b) of the
Reorganization Agreement, or the legal opinion required under Section 6.3(d)
of the Reorganization Agreement; or
iii) the termination of the current employment relationship between INFO
and ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, or ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇) any claim of infringement of patent, copyright or other intellectual
property right of a third party is asserted in writing or filed (and not
dismissed within 30 days thereafter) in a state or federal court or other
court of competent jurisdiction anywhere in the world against Distributor or
INFO with respect to the Products and which claim, in the reasonable opinion
of Distributor's counsel, has a reasonable legal basis and is based on
determinable facts, or
v) ▇▇▇▇▇ ▇▇▇▇▇▇ has not delivered a fully executed Non-Competition
Agreement as referenced in Section 6.3 (g) of the Reorganization Agreement.
E-2
AN "XXX" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES AND
EXCHANGE COMMISSION
If Distributor exercises its right to terminate this Agreement as set forth
above, INFO shall refund all unused royalty advances to Distributor and
Distributor shall have no obligation to make additional royalty advance payments
to INFO.
ROYALTY. The royalty ("Royalty") with respect to each Product copy
distributed or maintenance agreement with Distributor initiated or renewed is
calculated by multiplying the Royalty Rate by the Suggested License Fee or
Suggested Maintenance Fee for the Product or maintenance agreement as shown on
Exhibit A.
The Advance Payment Balance is $XXXX as of the Effective Date. The Advance
Payment Balance shall be increased by the amount of each additional installment
of the Advance Payment paid to INFO and decreased by the amount of the Advance
Payment Balance credited against Distributor's Royalty payments to INFO.
Distributor's quarterly Royalty payments to INFO shall be reduced by the then
current Advance Payment Balance until such time as the current Advance Payment
Balance equals zero. When the current Advance Payment Balance equals zero, there
shall be no further reduction of any Royalty payments to INFO. Future Advance
Payments owing under this Agreement shall be reduced by any Royalty payments
paid and not credited against an available Advance Payment Balance.
E-3
EXHIBIT C
TRADEMARKS
INFO has applications for trademarks pending with the United States Patent
and Trademark Office ("PTO") on the following, all of which have been
acknowledged as received by the PTO. The PTO has not yet examined the
applications or taken action thereon.
1. PAGEBUILDER
2. PAGESERVER
3. PAGEMONITOR
4. PAGETESTER
5. FORESITE
6. DYNABOT
7. PAGEDISPATCHER
8. PAGEADAPTOR
E-4