COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
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This Agreement is made effective 30 June 1997 between Sybase, Inc. ("Sybase")
with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and NetObjects,
Inc. ("Partner") with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
1. LICENSE GRANT. Subject to the terms and conditions below, Sybase grants to
Partner a nonexclusive and nontransferable license to market and distribute
copies of unmodified object code versions of those Sybase and/or Powersoft
software products identified in the attached initialed Schedules along with
accompanying documentation ("Programs") to Partner's customers ("End-Users") who
will use the Programs only for their own internal business purposes in the
applicable Territory described in each Schedule A, provided that the Programs
are distributed for use with computer application programs developed by Partner
for commercial distribution to more than one third party and containing
significant added functionality over the Programs ("Application Software").
Partner shall license to each End-User the same number of copies of the Programs
and the same number of Seats/Named Users for such Programs as Partner licenses
to such End-User for its Application Software. In addition to being able to
distribute "full use" copies of the Programs, "full use" Seats and "full use"
Named Users, Partner may also distribute, with respect to certain Programs
identified in Sybase's then-current price list, Application Deployment Copies,
Application Deployment Seats and Application Deployment Named Users (which are
restricted licenses defined in the Sybase license agreement accompanying each
copy of the Program ("Sybase Shrinkwrap")). Partner may also sell to End-Users
certain Sybase services as described in the Schedule(s). Notwithstanding the
above, if the Territory includes any of the Prohibited Countries set forth in
Sybase's then current "Prohibited Country List" (a current copy of which has
been provided to Partner), Partner may not market or distribute Programs for use
in such Prohibited Countries. Partner shall not use or allow its End Users to
use the Programs for timesharing, rental or service bureau purposes or on behalf
of any third party (but the foregoing restrictions shall not be construed to
prevent Partner from distributing the Application Software together with the
Programs over the internet). In connection with the distribution rights granted
above, Partner may appoint distributors to distribute the Programs to End-Users
within the Territory. The appointment of distributors shall be by contracts
which require that the distributor market the Programs only in accordance with
the terms of this Agreement and on a basis which protects the proprietary
interests of Sybase in and to the Programs to the same extent that Partner's
proprietary interests in its own products are protected (but in any event no
less than a reasonable extent). Partner may order under this Agreement (a)
copies of the Programs for its own internal production purposes and/or
developing and supporting the Application Software ("Internal Use Copies"), (b)
copies of the Programs which may only be used for developing and supporting the
Application Software ("Development Copies"), (c) copies of the Programs which
may be distributed to End-Users for evaluation purposes and for up to the number
of days designated in the applicable Schedule A, ("Evaluation Copies") which
Partner agrees to ensure become disabled after such period of time, and (d) up
to that number of copies of the Programs shown on Schedule A for purposes of
Partner providing demonstrations and training for the Application Software
("Demonstration Copies"). Partner is authorized to incorporate into the
documentation for the Application Software portions of the documentation for the
Program to the extent such portions are necessary to document usage of the
Program in conjunction with the Application Software.
2. FEES AND PAYMENT TERMS. For the first year of this Agreement, Partner
shall be responsible for paying to Sybase a non-refundable program fee shown in
Schedule A ("Initial Fee"). The Initial Fee is due upon execution of this
Agreement by Partner. For each additional year, a non-refundable annual program
renewal fee ("Annual Renewal Fee") as set forth in such Schedule is due and
payable upon each anniversary of the date of this Agreement. Fees as set forth
in the attached Schedule(s) shall be due to Sybase for each copy of the Programs
and each service ordered by Partner; such fees shall be based on Sybase's
then-current price list for the country in which the Programs are to be used or
the services are to be delivered ("Price List"). The license fee for
Development Copies is the same as the fee for Internal Use Copies unless Sybase
designates otherwise in its Price List. The license fee for Demonstration
Copies, if any, is set forth in the Schedule(s). Notwithstanding the above,
there is no charge for authorized Evaluation Copies distributed to End-Users.
License fees, if any, for Internal Use Copies, Development Copies, Demonstration
Copies, and copies of the Programs which Sybase ships to Partner for
distribution to End-Users shall be due and payable to Sybase with Partner's
order for the Programs or, upon Sybase credit approval of Partner, 60 days after
the date of Sybase's invoice for the Programs. Any past-due invoice may subject
Partner to credit hold at the sole discretion of Sybase. All fees under this
Agreement are stated in United States dollars.
3. OWNERSHIP. Programs are owned by Sybase or its licensors and are protected
by copyright law, trade secret laws and international conventions. All rights
in and to patents, copyrights, trademarks and trade secrets in the Programs are
and shall remain with Sybase and its licensors. No title to or ownership of the
Programs is transferred to Partner or End-User. Partner shall not translate,
localize or modify any portion of the Programs without the prior written consent
of Sybase.
4. ORDERING AND DELIVERY. Internal Use Copies, Development Copies,
Demonstration Copies, Evaluation Copies and copies of the Programs for
distribution directly or indirectly to End-Users shall be ordered from Sybase
and delivered by Sybase to Partner (or in the case of Evaluation Copies and
copies for distribution to End-Users, Sybase shall deliver the copies directly
to the End-Users if so instructed by Partner). Partner will use the "Exhibit A"
form adopted by Sybase from time to time (or a Purchase Order containing the
same information) to order Programs from Sybase. All shipments are FOB origin,
and Partner is responsible for all shipping charges. Except for taxes on
Sybase's income, Partner shall be responsible for any sales, use, excise or any
other form of taxes resulting from this Agreement.
5. LICENSE ACCOMPANYING PROGRAMS. If Partner uses the Programs, Partner
agrees to be bound by the terms and conditions of the Sybase Shrinkwrap.
Notwithstanding the above, Development Copies and Demonstration Copies shall
only be used for the purposes outlined in Section 1 above and shall be returned
to Sybase upon expiration or termination of this Agreement. Partner shall
ensure that the End-User's use of the Programs is either subject to the terms
and conditions of (a) the Sybase Shrinkwrap or (b) an executed license agreement
or shrinkwrap agreement between Partner and End-User which is substantially
similar to, and no less restrictive in protecting Sybase's interests than, the
Sybase Shrinkwrap. If Evaluation Copies are being licensed, the Sybase
Shrinkwrap or license agreement between Partner and End-User (as applicable)
shall be modified by Partner to provide that the Programs may only be used for
the designated evaluation period (which is not to exceed 90 days in length)
after which the license shall terminate and the Programs will become disabled.
If a conflict arises between this Agreement and any such license agreement, the
terms of this Agreement shall prevail. Partner shall undertake reasonable
efforts to enforce the terms of any license agreement between Partner and an
End-User as it relates to the Programs.
6. REPORTS. Partner shall keep or cause to be kept full and accurate accounts
and records of all transactions made by it and by its authorized distributors
under this Agreement (including Evaluation Copies) in form such that all amounts
owing hereunder to Sybase may be readily and accurately determined. Partner
shall undertake to assure that its distributors are (a) accurately reporting to
Partner all sales to End-Users and (b) otherwise complying with this Agreement.
Partner shall allow Sybase to examine its records to determine compliance with
this Agreement, and not more than annually provided a previous audit did not
show non-compliance with this Agreement. Any examination shall be at the
expense of Sybase, shall occur during regular business hours at Partner's
offices and shall not interfere unreasonably with Partner's regular activities.
Sybase shall give Partner 30 days or more prior written notice of the date of
each such examination and the name of the accountant who will be conducting the
examination. All information obtained from conducting the examinations shall be
maintained as Confidential Information. Partner agrees to pay Sybase any
amounts owing as a result of Partner's non-compliance with the payment
provisions of this Agreement within 60 days of the date of the examination
report which details such non-compliance. In the event such amounts owed by
Partner to Sybase exceeds 10% of total royalties due, Partner shall pay the
costs of such examination.
7. SUPPORT & MAINTENANCE. Partner shall be solely responsible for providing
End-User technical support and service of warranty claims for Partner's
Application Software, including the Programs, provided that Partner may also
sell Sybase technical support services for the Programs only, on the terms
described in the attached Schedules. Partner may distribute to End-Users to
whom it has licensed Application Deployment Copies of a Program updates to such
Program which are made generally available by Sybase so long as Partner has paid
Sybase all applicable Application Deployment Maintenance Fees.
8. INDEPENDENT CONTRACTORS. Partner and Sybase are independent contractors
and are not agents or representatives of each other. Partner does not have the
right to bind Sybase and shall not misstate or misrepresent its relationship to
Sybase.
9. ADVERTISING; TRADEMARKS. Sybase may identify Partner as a Commercial
Application Partner in Sybase advertising and marketing materials given
Partner's prior approval. Partner shall not make any representations concerning
the Programs which are inconsistent with Sybase's marketing materials and
advertising. Partner may utilize applicable Sybase trademarks and logos only in
accordance with Sybase's then-current published guidelines, and trademarks shall
remain the exclusive property of Sybase or its licensors. Partner shall
suitably feature, except when Partner's business interests may be adversely
affected, the Programs and related trademarks and Sybase's ownership of the
Program in any advertising, marketing literature, product documentation, and
packaging of the Application Software. Partner shall give recognition in the
Application Software of Sybase's proprietary rights in the Programs, and shall
do so in the same manner, places and times, and no less conspicuously, than the
recognition of the proprietary rights of any other software (excluding the
Application Software), but in any event Partner shall include such recognition
in the "Help About" dialogue box or equivalent.
10. TERM AND RIGHTS UPON TERMINATION. This Agreement will become effective as
of the date first shown above and shall continue in force for a period of 3
years, subject to (a) Partner's payment of all fees owing hereunder, or (b)
termination under Section 11 below. Thereafter, this Agreement shall
automatically renew for additional one-year terms subject to payment of Sybase's
then-current Annual Renewal Fee and provided that Partner is not then in default
of this Agreement, unless written notice of termination is given by either party
at least 30 days prior to the expiration of the term then in effect. No
expiration or termination of this Agreement shall impair or affect (i) Internal
Use Copies, which shall continue so long as Partner is not in breach of the
Sybase Shrinkwrap or (ii) copies of Programs distributed by Partner to End-Users
in accordance with this Agreement prior to the effective date of the expiration
or termination of this Agreement. All Demonstration Copies shall be returned to
Sybase. Termination or expiration shall not release either party from its
liability to pay any fees accruing prior to the date of the termination or
expiration. Sections 3, 5, 10, 11, 12, 13, 14 and 18 of this Agreement shall
survive any expiration or termination of this Agreement.
11. DEFAULT. Either party may immediately terminate this Agreement or any
license granted hereunder by written notice to the other if such other party
breaches any term or condition of this Agreement, including but not limited to
failure to pay
when due any fee hereunder, and does not remedy such breach within 30 days of
written notice thereof from the non-breaching party. Each party will reimburse
the other party for all reasonable costs incurred by the other party (including
attorneys' fees) in collecting past due amounts hereunder. Any breach which by
its nature cannot be remedied shall entitle the non-breaching party to terminate
this Agreement immediately upon written notice to the other party. This remedy
shall not be an exclusive remedy and shall be in addition to any other remedies
which the non-breaching party may have under this Agreement or otherwise.
12. CONFIDENTIAL INFORMATION. Each party will not disclose or use any business
and/or technical information of the other designated orally or in writing as
"Confidential" or "Proprietary" (together, "Confidential Information") without
the prior written consent of the other party. Such restrictions do not extend
to any item of information which (a) is now or later becomes available in the
public domain without the fault of the receiving party; (b) is disclosed or made
available to the receiving party by a third party without restrictions and
without breach of any relationship of confidentiality; (c) is independently
developed by the receiving party without access to the disclosing party's
Confidential Information, (d) is known to the recipient at the time of
disclosure, or (e) is produced in compliance with applicable law or court order,
provided that the disclosing party is given reasonable notice of such law or
order and an opportunity to attempt to preclude or limit such production. Upon
termination or expiration of this Agreement, each party shall immediately return
all copies of Confidential Information received from the other party. Partner
shall not release the results of any benchmark of the Programs to any third
party without the prior written approval of Sybase for each such release.
13. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY. Except as expressly
provided in the Sybase Shrinkwrap, NO EXPRESS OR IMPLIED WARRANTY OR CONDITION
IS MADE WITH RESPECT TO THE PROGRAMS OR SERVICES SUPPLIED BY SYBASE OR ITS
SUBSIDIARIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The aggregate liability to
Sybase and its subsidiaries, if any, for any losses or damages arising out of or
in connection with this Agreement, whether the claim is in contract, tort or
otherwise, shall not exceed the amount paid by Partner to Sybase under this
Agreement for the affected Programs or services. UNDER NO CIRCUMSTANCES SHALL
SYBASE, ITS SUBSIDIARIES OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT,
EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED
TO, LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA OR LOSS RESULTING
FROM BUSINESS DISRUPTION, EVEN IF SYBASE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
EXCEPT IF PARTNER IS FOUND TO HAVE (i) MADE UNAUTHORIZED COPIES OF THE
PROGRAM(S) OR (ii) DISTRIBUTED THE PROGRAM(S) TO THIRD PARTIES IN VIOLATION OF
THIS AGREEMENT, PARTNER SHALL NOT BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY,
INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LEGAL
FEES, EVEN IF PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. INDEMNIFICATION. Partner indemnifies and holds harmless Sybase, its
affiliates, directors, employees and agents from all third party claims,
including court costs and reasonable fees of attorneys and expert witnesses,
arising in connection with (a) a breach by Partner of its agreement with an
End-User or distributor (unless such breach was caused by Sybase's breach of
this Agreement or the Sybase Shrinkwrap), or (b) use of the Application Software
if liability is not caused in whole or in part by the Programs as provided by
Sybase. Sybase indemnifies and holds harmless Partner, its affiliates,
directors, employees and agents from all third party claims, including court
costs and reasonable fees of attorneys and expert witnesses, arising in
connection with (i) a breach by Sybase of the Sybase Shrinkwrap or (ii) use of
the Programs as provided by Sybase if liability is not caused in whole or in
part by the Application Software.
15. EXPORT RESTRICTION. Partner shall not transfer, directly or indirectly,
any restricted Programs or technical data received from Sybase or its
subsidiaries, or the direct product of such data, to any destination subject to
export restrictions under U.S. law, unless prior written authorization is
obtained from the appropriate U.S. agency.
16. ASSIGNMENT. This Agreement may not be assigned (by operation of law or
otherwise) or otherwise transferred in whole or in part by Partner unless
Partner has received prior written permission from Sybase, such permission not
to be unreasonably denied by Sybase. Notwithstanding the immediately preceding
sentence, Partner may assign or otherwise transfer this Agreement to the
surviving entity as a result of a merger, acquisition or reorganization of all
or substantially all of the Partner's assets or stock provided that (a) such
entity is not a direct competitor of Sybase, (b) such entity agrees that it will
be bound by the terms and conditions of this Agreement and (c) in the event of
any assignment to a surviving entity, such entity's rights to use the Program
shall be limited to use of the Program in connection with the business acquired
from Partner. To the extent Partner is permitted to assign this Agreement, all
provisions of this Agreement shall be binding upon Partner's successors or
assigns.
17. NOTICES. All notices under this Agreement shall be in writing and either
delivered personally, sent by first class mail, express carrier or by confirmed
facsimile transmission to the address of the party set forth above (and if to
Sybase, to the attention of the General Counsel). All notices shall be deemed
given on the business day actually received.
18. OTHER. This Agreement, the initialed Schedules, and any documents
explicitly referred to therein, constitute the entire agreement between the
parties, supersede any and all previous agreements authorizing Partner to
distribute the Programs to third parties and no representation, condition,
understanding or agreement of any kind, oral or written, shall be binding upon
the parties unless incorporated herein. This Agreement may not be modified or
amended, nor will the rights of either party be deemed waived, except by an
agreement in writing signed by authorized representatives of Partner and Sybase.
Purchase orders shall be binding as to the products and services ordered, and
the site for delivery of Programs or performance of services as set forth on the
face side of or a special attachment to the purchase order. Other terms and
preprinted terms on or attached to any purchase order shall be void. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of California without regard to its conflict of laws rules or the
United Nations Convention on the International Sale of Goods. If any provision
of this Agreement is held to be unenforceable, the parties shall substitute for
the affected provision an enforceable provision which approximates the intent
and economic effect of the provision. The parties have requested that this
Agreement and all documents contemplated hereby be drawn up in English.
ACCEPTED AND AGREED ON BEHALF OF:
NetObjects, Inc. ("Partner") Sybase, Inc. ("Sybase")
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Authorized Signature) (Authorized Signature)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Printed Name) (Printed Name)
Vice President, General
EVP Business Development 6/30/97 Counsel and Secretary 6/30/97
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(Title) (Date) (Title) (Date)
SCHEDULE A - SILVER LEVEL
TO THE COMMERCIAL APPLICATION PARTNER AGREEMENT
DEVELOPMENT TOOL PARTNER FEES AND GUIDELINES
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TERRITORY United States and Canada; however, Partner may sell
application-specific deployment seats worldwide.
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INITIAL FEE $[***]
ANNUAL RENEWAL FEE $[***]
ONLY ONE INITIAL AND ANNUAL FEE REQUIRED PER AGREEMENT.
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EVALUATION COPIES Entitled to 90-Day Evaluation Copies.
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DISCOUNT FOR SOFTWARE Sybase will check block and initial if authorized to
PROGRAMS sell:
/ / DEVELOPMENT TOOLS
/ / DESIGN TOOLS
/ / WORKPLACE DATABASES
Discounts for the above software Programs are specified
in the then-current Development Tools Partner Products
Price List.
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DISCOUNT FOR SALE OF [***] discount off then-current Price List on technical
END-USER TECHNICAL support offerings that Sybase makes generally available
SUPPORT OR UPGRADE to its customers.
SUBSCRIPTIONS
[***] discount off then-current Price List on upgrade
subscriptions.
PARTNER SHALL NOT SELL RENEWALS OF EITHER UPGRADE
SUBSCRIPTIONS OR TECHNICAL SUPPORT.
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COMMISSION INCENTIVES When a Partner refers Sybase to a potential sale and
has significantly influenced the customer decision to
purchase the software Programs, Partner may be eligible
to receive a commission. All commissions shall be in
accordance with Sybase then-current policy which Sybase
may change at its sole discretion from time to time.
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DISCOUNT FOR PARTNER [***] discount off then-current Price List on any
TECHNICAL SUPPORT commercially available end-user technical support
offering.
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DISCOUNT FOR PARTNER [***] discount off then-current Price List on any
TRAINING Sybase standard training rates for Partner employees or
agents trained at Sybase or Powersoft public training
centers.
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ACCEPTED AND AGREED: (MT) 6/30/97 MG 6/30/97
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(PARTNER INITIALS) (Date) (SYBASE INITIALS) (Date)
DEVELOPMENT TOOLS PRODUCTS LIST AND ALL DISCOUNTS ARE SUBJECT TO CHANGE
UPON 30 DAYS PRIOR WRITTEN NOTICE.
*** Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
SQL ANYWHERE -TM- MASTER DISK ADDENDUM (PAGE 1 OF 3)
TO THE COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Master Disk Addendum ("Addendum") for SQL Anywhere database server software
("SQL Anywhere") is made 30 June 1997 between Sybase, Inc. ("Sybase") and
NetObjects, Inc. ("Partner"). This Addendum supplements and amends the terms of
the Commercial Application Partner Agreement dated 30 June 1997 ("Agreement")
between the parties hereto. In the event of a conflict between the Agreement
and this Addendum, the terms and conditions of this Addendum shall prevail.
This Addendum shall expire or terminate with the Agreement. Capitalized terms
not otherwise defined in this Addendum shall have the meanings set forth in the
Agreement. For purposes of this Addendum, "Application Software" means
Partner's software known as "Fusion Multi-User Software" or such successor name.
SQL ANYWHERE MASTER DISK PROGRAM AND GUIDELINES
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LICENSE FEE Upon Partner's signing of this Addendum, Partner shall pay
PREPAYMENT Sybase the Prepay Amount designated below. The Prepay Amount is
non-refundable and irrevocable, and may only be used as
specified in this Addendum.
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REPORTING & Partner shall, within 30 days after each calendar-quarter end,
LICENSE FEE provide Sybase (i) a written report showing the cumulative
PAYMENTS number of SA Servers or 10-Seat-Bundles and SA Server Updates or
10-Seat-Bundle Updates (including Evaluation Copies and
Demonstration Copies) distributed by Partner during such
preceding calendar quarter along with the name of the
Application Software with which such SA Servers or 10-Seat-
Bundles and SA Server Updates or 10-Seat-Bundle Updates were
distributed and (ii) payment (once the Prepay Amount is
depleted) for any SA Server or 10-Seat-Bundle fees and SA Server
or 10-Seat-Bundle Update fees due.
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ACCESS AND (1) An "SA Server" is a copy of SQL Anywhere bundled with
AD SEATS Partner's Application Software and licensed for use with not
more than ten (10) AD Seats (without the purchase of additional
licenses).
(2) A "10-Seat-Bundle" is a license which permits an additional
ten (10) AD Seats to access an existing licensed SA Server.
(3) An application deployment seat ("AD Seat")" is a license for
a copy of a Program or a Seat (as applicable) which can only be
used for the purpose of (1) an End-User running non-custom
Application Software (excluding any third party application
programs marketed by Partner) and (2) extracting data on a read
only basis from the Application Software for use with other
applications; such extraction may either be through tools within
the Application Software or through third party tools. As used
in the prior sentence, the phrase "running non-custom
Application Software" means that the End User cannot use the
Programs to create or alter columns, tables, schemas or
databases unless (a) such columns, tables, schemas and databases
are created or altered by and within the context of the
Application Software (i.e., the Application Software must
generate the commands without the End-User itself using the
Program's command verbs) and only include data first captured in
the specific Application Software in which the new columns or
tables are created or altered (i.e., not transferred into such
Application Software from other Application Software or
applications), and (b) the commands to insert, delete or modify
data in the new or altered columns, tables, schemas or databases
must be included within existing "begin transaction" and "commit
transaction" statements in the original version of the
Application Software. Moreover, an AD Seat may not be used to
run copies of Programs which have been modified through a full-
use license to include modifications not permitted above.
Notwithstanding the above, the End User may use standard
database administration command verbs used for backup, recovery,
space/index management and consistency checking in the course of
systems administration. Additionally, for the purpose of this
Addendum only, use of SQL Anywhere on a server or a standalone
device such as a laptop shall also be counted as an AD Seat.
(4) A "Seat" means a specific identifiable unique accessor of
information such as a terminal, PC, single user workstation or
real time device licensed to access SQL Anywhere without regard
to when the access occurs; use of software or hardware which
reduces the number of accessors (sometimes called "multiplexing"
or "pooling") does not reduce the number of Seats, but rather
the number of Seats is equal to the number of distinct inputs to
the multiplexing software or hardware.
(5) Partner may exercise all rights granted under the Agreement
and this Addendum with regard to SA Servers and 10-Seat-Bundles
on a worldwide basis only in conjunction with their Application
Software.
(6) Partner may use SA Servers and 10-Seat-Bundles for internal
use only in conjunction with their Application Software. In
addition, Partner may use SA Servers and 10-Seat-Bundles as
Demonstration Copies and need not return said Demonstartion
Copies to Sybase.
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----------------THIS ADDENDUM IS CONTINUED ON THE NEXT PAGE----------------
SQL ANYWHERE -TM- MASTER DISK ADDENDUM (PAGE 2 OF 3)
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AD SEAT Except if this Addendum or this Agreement is terminated due to
SURVIVAL Partner's default, should Partner have SA Servers or 10-Seat-
Bundles that remain of those prepaid for herein, then upon
expiration or termination of this Addendum Partner may continue
to distribute said remaining SA Servers or 10-Seat-Bundles (in
inventory as of the date of said expiration or termination) in
accordance with the terms and conditions of this Addendum and
the Agreement. It is expressly understood and agreed by Partner
that any price protection or price related to maintenance,
updates or support shall expire upon said expiration or
termination.
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RESTRICTION Partner shall comply with the authentication routines
("Routine(s)") delivered within SQL Anywhere that allows SQL
Anywhere to work only with Partner's Application Software and
with other software all as described above in the section
"Access and AD Seats". Partner shall ensure that the
Routine(s) operates effectively. Partner shall not take any
action which may reduce the effectiveness of the Routine(s).
All aspects of the Routine(s) including its mechanism and the
manner in which it is applied to the Application Software is
Confidential Information under section 12 of the Agreement.
Partner shall verify the effectiveness of the Routine prior to
releasing the Application Software. Such verification will
include tests to ensure that SQL Anywhere operates with the
Application Software and with other software only as described
above in the section "Access and AD Seats". If the Routine(s)
is ineffective, Partner shall (a) promptly notify Sybase in
writing and (b) refrain from distributing the Application
Software until the Routine(s) is corrected provided that Sybase
promptly corrects and delivers to Partner revised Routine(s) to
include in the Application Software and Partner cooperates with
Sybase in determining the cause of the ineffectiveness of the
Routine(s). Partner shall be released from its obligation under
(b) above if Sybase fails to deliver corrected Routine(s) within
five (5) business days of Sybase's receipt of written notice
pursuant to (a) above.
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DISTRIBUTORS Notwithstanding anything contained in this Addendum or the
Agreement to the contrary, Partner may appoint its distributors
to reproduce, license and sublicense the SA Servers and 10-Seat-
Bundles on behalf of Partner only as part of Partner's
Application Software worldwide. Partner represents and warrants
that it shall ensure that each such distributor arrangement be
pursuant to the following requirements:
(i) be in the form of a written agreement between Partner and
distributor that complies with the terms and conditions of this
Agreement, and
(ii) that Partner shall enforce the terms and conditions of
such agreements with said distributors, and
(iii) that Partner and distributor exercising such rights shall
be jointly and severally liable to Sybase under this Agreement,
and
(iv) any such agreement with each distributor must specifically
identify Sybase as an intended third party beneficiary.
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MASTER DISK Partner and its distributors are authorized to distribute SA
Servers and AD Seats (as defined below) and Partner, but not its
distributors, is authorized to make Evaluation Copies and
Demonstration Copies of the Programs and copies of the Programs
to be licensed as SA Servers and AD Seats from Master Disks
("Master Disks") that Sybase will make available to Partner.
Partner may make as many Evaluation Copies and Demonstration
Copies as it reasonably requires. Partner shall ensure that all
Sybase copyright and other proprietary notices which are
included in the Master Disks are included on any copies made
from the Master Disks. Partner acknowledges that Master Disks
may contain devices which count or limit the number of copies
which can be made and Partner will not tamper with such devices.
Partner shall maintain Master Disks under lock and key and shall
allow only a specified number of its own employees to make
copies from Master Disks. Partner shall fully account for all
copies of the Programs. Partner shall not modify or alter any
proprietary rights notice contained within the Programs.
Partner is strictly prohibited from providing access or
transferring the Master Disk to any third party without the
prior written approval of Sybase, except as authorized in the
immediately preceding section to this Addendum titled
"Distributors". If Partner elects under Section 5 of the
Agreement to utilize the Sybase Shrinkwrap in connection with
its distribution of the Programs, Partner may reproduce the
Sybase Shrinkwrap for such purposes.
Sybase shall deliver to Partner a Master Disk of SQL Anywhere
containing its database engine, network server, ODBC drivers,
network requestor software and related administration tools.
Sybase shall exercise reasonable efforts to provide Partner with
a trial version of SQL Anywhere suitable for downloading over
the internet in conjunction with downloadable version of the
Application Software. Partner acknowledges that such trial
version of SQL Anywhere may be limited in functionality or may
contain a mechanism to disable it after a certain time period
has elapsed.
-------------------------------------------------------------------------------
----------------This Addendum Is Continued On The Next Page---------------
SQL ANYWHERE -TM- MASTER DISK ADDENDUM (PAGE 3 OF 3)
-------------------------------------------------------------------------------
PARTNER Partner shall perform the following marketing obligations:
MARKETING => Spend at least $100,000 during the twelve (12) months
OBLIGATIONS following the signing of the Agreement on mutually-agreed joint
marketing activities with Sybase. Such activities shall be
agreed to in advance in writing by the Parties respective
authorized representatives. Partner shall notify Sybase in
writing of its representative authorized to approve such
marketing activities.
=> Assist in issuing a mutually agreed upon joint press release
between the parties.
=> The SQL Anywhere logo, as provided by Sybase, shall be
prominently displayed, except when Partner's business interests
may be adversely affected, on the exterior of each package that
contains the Application Software that is used in conjunction
with SQL Anywhere.
=> As appropriate, publicize SQL Anywhere by specifically
promoting it in press releases, press tours, consultant and/or
analyst briefings relating to your Application Software.
=> A senior executive of Partner shall provide Sybase a positive
testimonial regarding SQL Anywhere for use by Sybase in its own
advertising and marketing activities as mutually agreed upon by
the parties.
-------------------------------------------------------------------------------
SYBASE At no charge to Partner and with mutual agreement between the
MARKETING parties, Sybase commits to:
OBLIGATIONS => Spend at least $100,000 during the twelve (12) months
following the signing of the Agreement on mutually-agreed joint
marketing activities with Partner. Such activities shall be
agreed to in advance in writing by the Parties respective
authorized representatives. Sybase's authorized representative
for purposes of such joint marketing activities shall be ▇▇▇▇▇
▇▇▇▇.
=> Assist in issuing a mutually agreed upon joint press release
between the parties.
=> Place Partner's name on Sybase's partner website and
internet website.
=> Provide a web-link to Partner's website from Sybase's
partner website.
=> Provide a half-page Partner ad in one issue of the Sybase
"Connections" newsletter.
=> Availability through 31 December 1997 to Sybase's partner
mailing list via a blind third-party mailing house for Partner's
direct mailing use.
-------------------------------------------------------------------------------
VERSION OF SQL ANYWHERE BEING ACQUIRED: SQL Anywhere AD Seats for
Windows 3.1, Windows'95, Windows NT, DOS, OS/2 and Netware.
-------------------------------------------------------------------------------
PREPAY AMOUNT* PER SA SERVER FEE OR PER PER SA SERVER UPDATE FEE OR
(NON-REFUNDABLE) 10-SEAT-BUNDLE FEE PER 10-SEAT-BUNDLE UPDATE FEE
-------------------------------------------------------------------------------
$[***] $[***] $[***]
-------------------------------------------------------------------------------
* ONLY SA SERVER AND 10-SEAT-BUNDLE FEES CAN BE APPLIED AGAINST THE PREPAY
AMOUNT. THE PREPAY AMOUNT EXCLUDES SA SERVER UPDATE FEES AND
10-SEAT-BUNDLE UPDATE FEES.
UPDATES: Sybase may make certain minor corrections, fixes, etc. ("Maintenance
Releases") to SQL Anywhere that are available to other existing Sybase
customers. Sybase will make such Maintenance Releases available to Partner.
Partner may provide such Maintenance Releases to new users in accordance with
the per AD Seat fee contained in this Addendum and Partner may update existing
users of SQL Anywhere to the Maintenance Releases at no additional charge.
Sybase may make certain major corrections, enhancements, etc. ("Update") to SQL
Anywhere. Partner may provide an Update to NEW users in accordance with the per
SA Server fee or per 10-Seat-Bundle fee, as applicable, contained in this
Addendum, and Partner may provide an Update to EXISTING users of SQL Anywhere
for the per SA Server Update fee or per 10-Seat-Bundle Update fee, as
applicable, indicated above. For each Update, an Update fee is required.
Except as amended above, the Agreement shall remain in full force and effect.
NetObjects, Inc. ("Partner") Sybase, Inc. ("Sybase")
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -------------------------------------
(Authorized Signature) (Authorized Signature)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------- -------------------------------------
(Printed Name) (Printed Name)
Vice President, General
EVP Business Development 6/30/97 Counsel and Secretary 6/30/97
-------------------------------- -------------------------------------
(Title) (Date) (Title) (Date)
*** Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
INSTALLMENT PAYMENT AGREEMENT
This Installment Payment Agreement ("IPA") is made as of the date
set forth below by and between Sybase, Inc. ("Licensor") and NetObjects Inc.
("Customer"). Customer promises to pay to the order of Licensor ("Payee"),
at its office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or at
such other place as the holder of this IPA may from time to time designate,
total fees of [***] UNITED STATES DOLLARS (U.S. $[***]). Such fees are owing
in connection with the licensing of software products and services as
specified in the SQL Anywhere Master Disk Addendum dated June 30, 1997, to
the Commercial Application Partner (CAP) Agreement (as amended, the
"AGREEMENT") between Sybase and Partner dated June 30, 1997. Customer has
elected to pay in installments the total amount set forth above rather than
make the payments specified on the SQL Anywhere Master Disk Addendum within
30 days. Sales and use taxes relating to such products and services are not
included in the installments and will be due and payable by Customer within
30 days of the date hereof.
1. The fees shall be due and payable in six consecutive quarterly
installments, each in the amount of $[***], commencing on December 30, 1997,
and on the same day of each quarter thereafter to and including March 30, 1999,
when the remaining unpaid balance of this IPA, together with any interest on
late payments, if any, accrued thereon, shall be immediately due and payable.
If any installment shall not be paid when due, such overdue payment shall bear
interest (calculated on the basis of a 365-day year and actual days elapsed) at
the rate of 10% per annum until paid. Customer may prepay payments under this
IPA at any time, but shall not be entitled to any discount or rebate therefor.
Customer hereby waives grace, demand, presentment for payment, notice of
non-payment, protest and notice of protest, notice of dishonor or default,
notice of intent to accelerate, notice of acceleration and diligence in
collecting and bringing of suit. All obligations of Customer under this IPA
shall survive any termination of the licenses relating to the Licensed Software.
2. Customer represents and warrants to the holder hereof that (a) the Customer
is a corporation duly organized, validly existing and in good standing under
applicable state law; (b) this IPA is a genuine, legal, valid and binding
obligation of Customer, enforceable against Customer in accordance with its
terms, subject to applicable bankruptcy and other similar laws affecting
creditors' rights generally, and the execution, delivery and performance of the
IPA will not violate or create a default under any law (including any applicable
usury law), regulation, judgment, order, instrument, agreement or charter
document binding on Customer or its property; (c) the IPA has been duly
authorized, executed and delivered by Customer; (d) each signatory of this IPA
has the authority to bind Customer to this IPA; (e) the Licensed Software has
been delivered to and accepted by Customer and (f) the financial statements and
other information furnished and to be furnished to Payee are and will be true
and correct and prepared in accordance with generally accepted accounting
principles (GAAP) consistently applied.
3. If any of the following events shall occur (each an "Event of Default"),
then the holder of this IPA may, at its option and without notice to Customer or
any other person, declare the outstanding balance of this IPA, together with
any interest or other sums that Customer may owe to the holder hereof under or
in connection with this IPA, immediately due and payable and exercise any other
remedies available at law or equity:
(i) Customer fails to pay when due all or any portion of any installment or
any other amounts payable hereunder; (ii) any representation or warranty made
by Customer or any endorser, guarantor or surety hereof in any writing furnished
in connection with this IPA or the indebtedness evidenced hereby proves to be
false in any material respect when made; (iii) final judgment for the payment
of money shall be rendered against Customer or any endorser, guarantor or surety
hereof and the same shall remain undischarged for a period of 60 days during
which execution of such judgment shall not be effectively stayed, if the amount
of such judgment is such that it may materially adversely affect Customer's
financial condition or its ability to perform its obligations under this IPA; or
(iv) Customer or any endorser, guarantor or surety shall cease doing business
as a going concern or transfer all or a substantial part of its assets; or
become or be adjudicated insolvent or bankrupt, admit in writing its inability
to pay its debts as they become due, or make an assignment for the benefit of
creditors; or Customer or any endorser, guarantor or surety shall apply for or
consent to the appointment of any receiver, trustee or similar officer for it or
for all or any substantial part of its property; or such receiver, trustee or
similar officer shall be appointed without the consent of Customer; or Customer
or any endorser, guarantor or surety shall institute any bankruptcy, insolvency,
reorganization, moratorium, arrangement, readjustment of debt, dissolution,
liquidation or similar proceeding relating to it under the laws of any
jurisdiction, or any such proceeding is instituted against Customer or any
endorser, guarantor or surety and is not dismissed within 60 days; or any
judgment, writ, warrant or attachment or execution of similar process is issued
or levied against a substantial part of Customer's property and remains
unsatisfied for 30 days.
4. In the event that suit is brought hereon, or an attorney is employed or
costs or expenses are incurred to compel payment of this IPA or any portion of
the indebtedness evidenced hereby or to protect, preserve or enforce the rights
of the holder hereof, Customer promises to pay all such costs, expenses and
attorneys' fees (including but not limited to those incurred on appeal) to the
holder hereof in addition to all other amounts owing hereunder. Notwithstanding
any other provisions of this IPA or any document or instrument executed or
delivered in connection with this IPA, interest, fees and the like shall not
exceed the maximum rate permitted by applicable law. In addition to all other
rights and remedies of Licensor and the Assignee, upon an Event of Default
Licensor shall have the right, to terminate all licenses granted to Customer
under the Software Agreement relating to Licensed Software, except that licenses
granted to customers and users will remain in effect.
*** Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.
5. No delay or omission on the part of the holder hereof in exercising any
right hereunder shall operate as a waiver of such right or of any other right
under this IPA or under any other document or instrument executed or delivered
in connection with this IPA. Each notice or other communication required or
permitted to be given or delivered hereunder shall be in writing and shall be
sent or delivered, if to Customer, at the address indicated beneath Customer's
signature below and, if to the holder hereof, at the address set forth in the
first paragraph hereof, or, if such holder is not the Payee, at the last address
designated by such holder to Customer and shall become effective when delivered,
or if mailed, when deposited in the United States mail with proper postage
prepaid for registered or certified mail, return receipt requested.
6. This IPA has been entered into in connection with a Commercial Application
Partner (CAP) Agreement (as amended, the "AGREEMENT") between Sybase and
Partner. The use of the Licensed Software by Customer is subject to the terms
of the applicable Agreement. In the event that software licensed from Licensor
does not perform as warranted or in the event of any other dispute or default
under an Agreement, Customer shall be entitled to pursue against Licensor all of
Customer's rights and remedies arising under the applicable Agreement. Customer
hereby acknowledges and agrees that Payee has transferred or assigned, or may
transfer or assign, this IPA to such transferee or assignee as Payee in its
discretion may select (each such transferee or assignee, together with any
subsequent transferees or assignees, being collectively referred to as
"ASSIGNEE"). The Customer agrees that upon such transfer or assignment it will
not assert against Assignee any claim or defense which it may have against Payee
or Licensor, and that upon the written instruction of Payee or Assignee that
payments under this IPA are to be made to Assignee, Customer shall promptly
comply with, and (if requested) acknowledge in writing, such instructions. The
Customer agrees that upon such transfer or assignment its obligations to pay
amounts due under this IPA to Assignee are absolute and unconditional, and shall
not be subject to any defenses, setoffs or counterclaims that it may have
against Licensor, regardless of whether or not (a) Licensor has breached any of
its warranties or other covenants under an Agreement, (b) the licenses granted
under the Agreements and/or any maintenance, support or other services provided
thereunder have been revoked or otherwise terminated for any reason whatsoever
or (c) an Agreement has expired or been terminated for any reason whatsoever.
Accordingly, in the event of any breach or default under an Agreement,
Customer's sole remedy shall be against Licensor under that Agreement, and
Customer shall have no right to not make the installment payments required
hereunder. ASSIGNEE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE
SOFTWARE OR SERVICES COVERED BY THE AGREEMENT, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY.
CUSTOMER HEREBY WAIVES ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT OR
ABSOLUTE LIABILITY IN TORT) THAT IT MAY HAVE AGAINST ASSIGNEE FOR ANY LOSS,
DAMAGE (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA OR SPECIAL,
PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSED BY THE SOFTWARE
OR ANY SERVICES COVERED BY THE AGREEMENT, EVEN IF ASSIGNEE HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE, LOSS, EXPENSE OR COST. CUSTOMER ACKNOWLEDGES
THAT ASSIGNEE DID NOT SELECT, MANUFACTURE, DISTRIBUTE OR LICENSE THE SOFTWARE
COVERED BY THE AGREEMENT AND THAT THE CUSTOMER HAS MADE THE SELECTION OF SUCH
SOFTWARE BASED UPON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON
STATEMENTS MADE BY ASSIGNEE OR ITS AGENTS.
7. This IPA shall be governed in all respects by and construed in accordance
with the laws of the State of California. Any action against Customer
concerning this IPA and the indebtedness evidenced hereby may be brought in any
court of competent jurisdiction located in the State of California, and Customer
hereby accepts the nonexclusive jurisdiction of any such court and waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action. This IPA shall constitute the complete and
exclusive agreement of Customer and Payee with respect to the payment of the
amounts owing hereunder and supersedes all prior oral or written understandings.
No term or provision of this IPA may be amended, waived, discharged or
terminated except by a written instrument signed by Customer and the Payee.
IN WITNESS WHEREOF, the undersigned have executed this IPA as of the date set
forth below.
SYBASE, INC. NETOBJECTS INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇ By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------ -------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------- ----------------------------
Title: Treasurer Title: EVP Business Development
-------------------------- ---------------------------
Date: 6/27/97 Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------- --------------------------
NOTICE OF ASSIGNMENT
June 25, 1997
NetObjects Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇. ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Installment Payment Addendum or Installment Payment Agreement ("IPA") of
NetObjects Inc. ("Customer") dated June 30, 1997, payable to the order of
Sybase, Inc. in the original principal amount of $[***]. There are six
quarterly payments of $[***] remaining as of the date hereof with the next
payment being due December 30, 1997.
Customer:
Notice is hereby given that Sybase, Inc. has sold and assigned the rights to
receive the remaining payments due under the IPA, to Newcourt Financial USA Inc.
("Assignee").
Customer is hereby directed, and by signature below agrees, to pay directly to
the Assignee at the address set forth below, all payments required to be paid by
the Customer under the terms of the IPA. Assignee is the holder in due course of
the IPA.
Assignee:
Newcourt Financial USA Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Very truly yours, AGREED
Sybase, Inc. NetObjects Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------- --------------------------------
Title: Treasurer Title: EVP Business Development
------------------------ -----------------------------
*** Portions of this exhibit have been omitted and filed separately with the
Commission pursuant to a request for confidential treatment under Rule 406.