Exhibit 10.61
[GUPTA LOGO]
OEM SOFTWARE LICENSE AGREEMENT
(SIGNATURE PAGES)
PREAMBLE: The following are the Signature Pages of an agreement ("Agreement")
which consists of (i) the General Terms and Conditions and (ii) these Signature
Pages. The documents are referenced together by the contract number and are to
be taken together and not separately. THIS AGREEMENT SHALL BE EFFECTIVE AS OF
THE "EFFECTIVE DATE" SPECIFIED BELOW ONLY WHEN THESE SIGNATURE PAGES ARE
EXECUTED BY BOTH PARTIES AND ALL PAGES OF BOTH THE GENERAL TERMS AND CONDITIONS
AND THESE SIGNATURE PAGES ARE INITIALED WHERE INDICATED BY BOTH PARTIES.
IN CASE OF CONFLICT BETWEEN THE TERMS AND CONDITIONS SPECIFIED IN THE SIGNATURE
PAGES BELOW AND THE GENERAL TERMS AND CONDITIONS, THE TERMS AND CONDITIONS OF
THESE SIGNATURE PAGES SHALL CONTROL.
NOTATIONAL CONVENTION: Provisions of the General Terms and Conditions shall be
referred to as "Section X.Y(z) GTC". Provisions of these Signature Pages shall
be referred to as "Item A.B(c) SP"
1. UPS
"UPS" shall mean United Parcel Service General Services Co., a Delaware
corporation with its principal place of business located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇.▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, together with its parent company and direct and
indirect subsidiaries of such parent company, (collectively "UPS").
2. EFFECTIVE DATE OF AGREEMENT: September 29,1994
3. TERMINATION DATE: December 31, 1999, subject to the following agreements and
understandings:
(b) UPS may, at its option, notify GUPTA of its desire to acquire the rights to
use, sublicense and distribute additional Program Copies (over and above those
used, distributed and/or sublicensed by UPS during the term of this Agreement)
for a maximum two-year period (ending December 31, 2001) beyond the expiration
date of the Agreement subject to the payments specified in Item 5(c) SP below;
(c) UPS shall have the option to extend the maintenance, support, update and
upgrade provisions of this Agreement through December 31, 2004 subject to the
payments specified in Item 6(e) SP below.
4. PROGRAMS [LIST]: SQLBase Multitasking Engine For Windows
Report Windows (Component of GUPTA Quest)
Quest Query Activity (Component of GUPTA Quest)
SQLBase Server (all versions, subject to 8(b) below)
UPS_____ GUPTA_____
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5. LICENSE FEE PAYMENTS:
(a) As provided in Section 4.1 GTC and solely in consideration for the rights
granted in Section 3.1 GTC, UPS shall pay to GUPTA upon execution of this
Agreement the nonrefundable, noncontingent sum of $2,050,000 (Two million fifty
thousand U.S. dollars), such payment to be made by UPS to GUPTA on or before
September 29, 1994. Such payment shall be considered payment in full for UPS's
use, sublicensing and/or distribution of the Programs as provided in the
Agreement through December 31, 1997.
(b) GUPTA shall give UPS written notice at least ninety (90), but not more than
one hundred and twenty (120), days prior to December 1, 1995, of UPS's ability
to extend the Agreement as provided herein. Provided that UPS notifies GUPTA on
or before December 1, 1995 of its intent to extend the Agreement for an
additional one (1) year period (through December 31, 1998), then UPS shall make
an additional payment of $1,400,000 (one million four hundred thousand U.S.
dollars) to GUPTA in two installments:
(i) $700,000 on or before January 15, 1996; and
(ii) $700,000 on or before January 15, 1997
Such payment shall be considered payment in full for UPS's use, sublicensing
and/or distribution of the Programs as provided in the Agreement, for the period
January 1, 1998 through December 31,1998.
(c) Provided that UPS notifies GUPTA no later than ninety (90) days prior to the
expiration date of this Agreement (December 31, 1997 or December 31, 1998 as
applicable) of its intent to acquire the rights to use, sublicense and
distribute additional Copies of the Programs, then UPS may acquire such Copies
in minimum increments of 10,000 Copies at $20 per copy, payment to be made by
UPS to GUPTA in advance.
6. MAINTENANCE FEE:
(a) In consideration for the support and maintenance services, upgrade and
update rights for the period ending December 31, 1995, UPS shall pay the sum of
$125,000 to GUPTA on or before September 29, 1994.
(b) In consideration for the support and maintenance services, upgrade and
update rights for the period beginning January 1, 1996 and ending December
31,1996, UPS shall pay the sum of $150,000 to GUPTA on or before September 29,
1994.
(c) In consideration for the support and maintenance services, upgrade and
update rights for the period beginning January 1, 1997 and ending December 31,
1997, UPS shall pay the sum of $175,000 to GUPTA on or before September 29,
1994.
(d) In the event that UPS exercises its option to extend the Agreement through
December 31 1998 (as provided in Item 5(b) SP above) and in consideration for
the support and maintenance services, upgrade and update rights for the period
beginning January 1,1998 and ending December 31, 1998, UPS shall pay the sum of
$200,000 to GUPTA in two installments, as follows:
(i) $100,000 on or before January 15, 1996; and
(ii) $100,000 on or before January 15, 1997
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(e) MAINTENANCE CONTINUATION: Provided that this Agreement has not been renewed
or extended, UPS shall have the right to extend its support, maintenance update
and upgrade rights subsequent to the expiration of this Agreement on a yearly
basis through December 31, 2004. Commencing with calendar year 1997 and for each
year that UPS extends this Agreement or its support, maintenance update and
upgrade rights, GUPTA shall give UPS written notice at least ninety (90), but
not more than one hundred and twenty (120), days prior to December 31 st of each
applicable year, of UPS's ability to extend its support, maintenance update and
upgrade rights as provided herein. In order to exercise this right, for each
applicable year, UPS shall notify GUPTA in writing at least sixty (60) days
prior to the beginning of such year. In consideration for such support,
maintenance, update and upgrade rights in the event that such option is elected
UPS shall pay GUPTA in advance and no later than January 1 of the applicable
year as follows:
(i) If the first year of such continuation is calendar year 1998 the fee shall
be $200,000;
(ii) If the first year of such continuation is calendar year 1999, then the fee
shall be $220,000;
(iii) For years subsequent to the first continuation year, the fee shall be the
lesser of (i) the previous year's fee raised by ten percent (10%) or (ii) 6% of
the cumulative fees paid by (or due to be paid by) UPS to GUPTA for Program
Licenses as of September 30 (Items 5(a), 5(b) and 5(c) SP above) of the
immediate prior year; provided, however, that the fee shall not be less than the
fee for the immediately preceding calendar year.
7. UPS PRODUCT: For purposes of this Agreement, the "UPS Product" shall mean the
UPS MaxiShip(R) and a related family of shipping, manifesting, tracking, and
receiving applications, and their respective successors as installed for use by
a UPS customer. It is understood by UPS and GUPTA that applications outside this
family are not covered by this Agreement.
8. OTHER TERMS:
(a) INTERNAL USE LICENSE: Internal use by UPS and its authorized contractors and
consultants of the Programs is covered by the license fees paid by UPS at no
additional charge provided that such use is related to the development and
support of the UPS Product. During the term of this Agreement, and provided that
all license fees have been paid, UPS shall have the right to copy and use
internally the Programs as reasonably necessary to support the current and
future development efforts of Products; training of UPS personnel in the UPS
Products; UPS Help Desk copies for first and second level support of the UPS
Products; and external sales and internal demonstrations of the UPS Products.
All such use shall respect GUPTA's and GUPTA's licensors intellectual and other
proprietary rights in and to the Programs as provided in this Agreement.
Internal use by UPS of the Programs or other GUPTA products for other purposes
is subject to a separate agreement between UPS and GUPTA.
(b) SQLBASE SERVER PROGRAM USAGE: UPS agrees and acknowledges that the License
Fees paid by UPS hereunder are based on the forecast by UPS that no more than
20% of its overall user base for the UPS Product(s) shall use or access the
SQLBase Server Programs. UPS agrees to measure such usage and to report to GUPTA
on or before September 30, 1996 the exact percentage such user base accessing
the SQLBase Server Programs as of June 30, 1996. If such percentage exceeds the
20% forecast UPS agrees to negotiate in good faith with GUPTA no later than
December 31, 1996 the additional compensation, if any, for such excess
percentage.
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(c) MODIFICATION TO THE QUEST QUERY ACTIVITY PROGRAM: Independent from UPS and
GUPTA other rights and obligations under this Agreement, GUPTA agrees to
undertake a minor modification of the Quest Query Activity Program to ease UPS's
integration of such Program into the UPS Product. Such modification shall
involve providing a C++ wrapper to such Quest Query Activity Program and provide
the following functionality:
(i) C++ class tied to Microsoft Foundation Class using the query engine
dynamic link library. This class will be able to drive the GUPTA Report
engine class; and
(ii) C++ class tied to Microsoft Foundation Class to provide query design
and table window preview. This class will integrate into the UPS Product
as an MDI child window. It would also allow the file save dialogue to be
overridden and allow query access to be restricted to specific tables and
columns.
GUPTA shall use all commercially reasonable efforts to provide such modification
to UPS before December 31, 1994. In consideration for GUPTA's separate agreement
to undertake such work, UPS agrees to pay GUPTA $100,000 net thirty (30) days
from delivery to UPS of such modification; provided, however, that if GUPTA
fails to deliver such modification to UPS on or before January 5, 1995, UPS
shall not be obligated to acquire the modification in which case GUPTA shall be
relieved of any obligation to provide such modification to UPS. Such
modification shall remain GUPTA's sole and exclusive property and shall have the
same licensing rights in the modification as it does to the Programs, (i.e.,
licensed by GUPTA to UPS for use, sublicensing and distribution in conjunction
with its rights to the Programs under this Agreement)
(d) TECHNICAL COOPERATION: GUPTA shall use all commercially reasonable efforts
to incorporate UPS Product test scripts as part of GUPTA's quality assurance
efforts for the Programs.
IN WITNESS WHEREOF, the parties hereby confirm that this Agreement is effective
at the date set forth above and that all terms and conditions have been agreed
to:
UPS: GUPTA:
By: /s/ ▇▇▇▇▇▇ ▇. Avrelio By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -----------------------------
Name: ▇▇▇▇▇▇ ▇. Avrelio Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: I.S. Administrations Manager Title: Senior Vice President & CFO
Date: 9/23/94 Date: 9/21/94
UPS_____ GUPTA_____
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EXHIBIT A
TRADEMARK USE POLICY
GUPTA CORPORATION
GUIDELINES FOR DISTRIBUTORS, OEMS, RESELLERS, BUSINESS PARTNERS
AND OTHER LICENSEES REGARDING USE OF GUPTA'S TRADEMARKS,
SERVICE MARKS, TRADE NAMES AND LOGOS IN YOUR PRODUCT
AND MARKETING MATERIALS
EFFECTIVE JANUARY 1, 1994
Gupta claims trademark and service ▇▇▇▇ rights in the stylized "GUPTA" and
"GUPTA POWERED" logos and all of its product names. Gupta also claims copyrights
in each of its products, manuals and associated packaging.
Your agreement with Gupta does not give you any ownership rights in our
trademarks, service marks or copyrights. All trademarks, service marks, trade
names and logos under which Gupta markets or promotes its various products and
services are and shall remain the exclusive property of Gupta Corporation. You
only have the limited licenses granted in your agreement. All goodwill arising
out of your use of our marks pursuant to your agreement inures to Gupta's
benefit. Your limited right to use the Gupta marks immediately ceases upon
termination or expiration of your agreement with Gupta.
As part of your relationship with Gupta, you are required to follow the
guidelines set out below regarding trademarks and copyrights. Gupta intends to
update these Guidelines from time to time. You must immediately use best efforts
to update your advertising materials to conform to the updated Guidelines and in
any event must do so within sixty (60) days of Gupta's release of an update to
the Guidelines.
1. WHAT YOUR UNITED STATES MATERIALS MUST INCLUDE REGARDING GUPTA'S FEDERALLY
REGISTERED MARKS
Gupta is the owner or exclusive authorized user of the federally
registered marks set out below. You may use these marks in your advertising,
subject to the limitations below. You may use any font you wish, you may use
UPPER CASE only (NOTE: CERTAIN LETTERS MUST BE LARGER THAN OTHERS IF YOU USE
UPPER CASE) or you may use UPPER CASE and lower case (NOTE: CERTAIN LETTERS MUST
ALWAYS BE IN UPPER CASE). Set out below is the manner in which you must depict
Gupta's federally registered marks.
UPS_____ GUPTA_____
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IF UPPER CASE IS USED:
QUEST(R)
SQLBASE(R)
SQLGATEWAY(R)
SQLHOST(R)
SQLROUTER(R)
SQLTALK(R)
SQLWINDOWS(R)
IF UPPER CASE AND LOWER CASE IS USED:
Quest(R)
SQLBase(R)
SQLGateway(R)
SQLHost(R)
SQLRouter(R)
SQLTalk(R)
SQLWindows(R)
When referring to these names in printed materials, you must:
(1) Identify the ▇▇▇▇ in either UPPER CASE or UPPER CASE and lower case as
shown above and include the (R) symbol in the manner depicted
above at least once in the first most prominent usage of the
▇▇▇▇.
(2) Include the following statement:
"[insert ▇▇▇▇] is a United States registered trademark of
Gupta Corporation." (NOTE: IN THE CASE OF SQLWINDOWS, THIS
STATEMENT MUST STATE "SQLWINDOWS IS A REGISTERED ▇▇▇▇
EXCLUSIVELY LICENSED TO GUPTA CORPORATION").
(3) You may use any font you wish but the first letter (and some other
letters) in these names must appear capitalized in UPPER CASE to
make it recognizable from the surrounding text.
II. WHAT YOUR UNITED STATES MATERIALS MUST INCLUDE REGARDING GUPTA
UNREGISTERED MARKS
Gupta is the owner or exclusive authorized user of the unregistered marks
set out below. You may use these marks in your advertising, subject to the
limitations below. You may use any font you wish. You may use UPPER CASE or you
may use UPPER CASE and lower case (NOTE: CERTAIN LETTERS MUST ALWAYS BE IN UPPER
CASE). Set out below is the manner in which you must depict Gupta's unregistered
marks.
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IF UPPER CASE IS USED:
EDITWlNDOWS(TM)
FAST FACTS(TM)
GUPTA(TM)
QUICKOBJECTS(TM)
SQLCONSOLE(TM)
TEAMWINDOWS(TM)
IF UPPER CASE AND LOWER CASE ARE USED:
EDITWindows(TM)
Fast Facts(TM)
GUPTA(TM)
QuickObjects(TM)
SQLConsole(TM)
TEAMWindows(TM)
When referring to these names in printed materials, you must:
(1) Identify the ▇▇▇▇ in either UPPER CASE or UPPER CASE and lower case as
shown above and include the (TM) or (SM) symbol (NOTE: DO NOT USE A
CIRCLE) in the manner depicted above at least once in the first most
prominent usage of the ▇▇▇▇.
(2) Include the following statement for all the unregistered marks above:
"[insert ▇▇▇▇] is a trademark of Gupta Corporation." (NOTE: IN
THE CASE OF EDITWINDOWS AND TEAMWINDOWS THIS STATEMENT MUST
STATE "[INSERT ▇▇▇▇] IS A TRADEMARK EXCLUSIVELY LICENSED TO
GUPTA CORPORATION").
(3) You may use any font you wish but the first letter (and some other
letters) in these names must appear capitalized in UPPER CASE to
make it recognizable from the surrounding text.
Gupta may obtain federal registrations of all or some of the currently
unregistered marks. You will be advised of any such registration in an update to
these Guidelines. You then must identify the newly registered ▇▇▇▇ in the manner
described above under II.
III. USE OF GUPTA MARKS IN MATERIALS DISTRIBUTED OUTSIDE THE UNITED STATES
(1) You may not use any ▇▇▇▇▇ ▇▇▇▇ or name in printed advertising or other
materials distributed outside the United States unless you are
permitted to distribute in such jurisdictions pursuant to your
agreement with Gupta.
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(2) If you are permitted to distribute outside the United States, you may
only advertise Gupta products in the jurisdictions noted in your
agreement with Gupta.
(3) Gupta has international registrations for several of its marks and is
in the process of applying for registration for many other marks in
certain foreign jurisdictions.
(4) When referring to a ▇▇▇▇▇ ▇▇▇▇ in printed advertising or other
materials intended solely for distribution outside the United
States, you must:
(a) Include the (R) symbol as applicable in the manner
depicted in I.
(b) Include the (SM) or (TM) symbol as applicable in the
manner depicted in II.
(c) Include the following statement for all marks except for
SQLWindows, EDITWindows, and TEAMWindows:
"[insert ▇▇▇▇] is a [and where applicable 'registered']
trademark of Gupta Corporation."
(d) Include the following statement for SQLWindows,
EDITWindows, and TEAMWindows:
"[insert ▇▇▇▇] is a [and where applicable 'registered']
trademark exclusively licensed to Gupta Corporation."
IV. OUR LOGOS
(1) "GUPTA" Company Logo: Upon request and provided you have been
authorized to use the "GUPTA" logo, We will provide you with
camera-ready art of the latest version of the logo. You must
discontinue use of all previous versions of our logo. The following
design rules will apply to the use of the GUPTA logo:
(a) The GUPTA logo must be accurately shown in standard
proportions and placement and must NEVER be distorted,
superimposed, reversed, outlined or rotated;
(b) The GUPTA logo must not be incorporated into any other symbol
or ▇▇▇▇ or be used as a border on any ad;
(c) If the GUPTA logo is used on store signage, stationery or
business cards, care must be taken to create the overall
impression that the advertising is for Gupta products and/or
services, not that you are Gupta or that the logo belongs to
you.
(2) "GUPTA POWERED" Logo: If you are interested in using this logo and
satisfy the criteria, you must enter into a separate Logo License
Agreement with Gupta.
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V. GENERAL RULES FOR PRINTED MATERIALS
(1) The marks must be used as an adjective to identify Gupta's products
(trademarks) or services (service marks). They should never be used
as a noun or verb; the ▇▇▇▇ must modify a product or service.
For example: You may state You may not state
SQLBase(R) Server SQLBase(R) [by itself]
(2) The marks should never appear in the plural or possessive:
For example: You may state You may not state
SQLBase(R) Server's SQLBase(R)'s
(3) The marks should never be abbreviated or made into an acronym:
For example: You may state You may not state
SQLWindows(R) Software SQLWin Software
(4) The marks or the Gupta company name should never be used as or
incorporated into another company's name (whether a corporate name
or d/b/a) to avoid confusion in the marketplace
For example: You may not state
SQLWindows Solutions, Inc.
XYZ Gupta Ltd.
(5) You may not at any time or in any way indicate ownership of or any
rights in Gupta's marks or logos. For example, you MAY NOT say
"SQLBase Server for NetWare by [name of distributor, OEM, Reseller
Business Partner or other licensee]."
(6) You may not attached, remove or disfigure any Gupta marks on our
software products or advertising literature and may not attach any
additional marks to our software products or advertising materials.
You may not attached the Gupta marks to any other products other
than our products unless you have a specific license agreement to do
so.
(7) You may not alter or remove or obscure any copyright or other
proprietary notices on or in our products or related documentation
or materials.
(8) You may not use any ▇▇▇▇▇ ▇▇▇▇ or logo as part of your business name
and must at all times conduct business only under your own name.
(9) You may not use Gupta's marks and logos in violation of any federal,
state or local law, or any regulation or order of any administrative
agency or governmental authority.
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(10) You may not use Gupta's trademarks, service marks, trade names or
logos in a manner which is misleading in any manner (e.g., price,
product features or specifications).
(11) You may not use Gupta's marks and logos to advertise another
vendors' products -- even if they are compatible with Gupta's
products. Also, they may not be used for general promotion that are
not specifically related to Gupta products.
VI. COMPLIANCE
(1) Gupta reserves the right to require you to submit to Gupta for its
prior approval any and all of your advertising and sales literature
which refer to Gupta or include any of the Gupta marks, trade names
or logos. If Gupta has not notified you of its disapproval of such
materials within five (5) business days or receipt, the materials
shall be deemed approved. You must make all modifications to the
materials deemed necessary by Gupta to protect the goodwill of the
Gupta marks, trade names and logos.
(2) Misuse of our marks, logos and copyrights is a violation of your
agreement with Gupta.
(3) IF THERE ARE ANY QUESTIONS RELATING TO THE MATERIAL CONTAINED WITHIN
THESE GUIDELINES, CONTACT THE LEGAL DEPARTMENT, GUPTA CORPORATION
(▇▇▇) ▇▇▇-▇▇▇▇.
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Exhibit B
GUPTA STAR Support Services to UPS
For purposes of this Agreement, and subject to payment by UPS of the Maintenance
Fees as provided in Item 6 SP above, GUPTA shall provide UPS with the following
services:
1. Two designated senior support contacts available during the Prime Coverage
hours set forth in 3 below, subject to personnel changes upon written
notification by GUPTA to UPS.
2. Two business hour maximum response time to all support calls.
3. Prime coverage hours from 6:00 A.M. to 6:00 P.M. Pacific Time, Monday through
Friday, excluding holidays. Off hours are 3:00 A.M. to 6:00 A.M. Pacific Time
and 6:00 P.M. to 9:00 P.M. Pacific time, Monday through Friday, excluding
holidays, where senior technical support representatives may be contacted for
emergency situations (i.e., Priority 1 problems as defined in Exhibit C) via a
designated telephone or beeper number.
4. Priority escalation (according to the defined Escalation Procedures and Call
Priorities set forth in Exhibit C) and product update service (covered products
only).
5. Monthly conference calls and tracking and bug status reports.
6. Periodic management conferences.
The approach is defined to provide UPS with access to a team of support
professionals knowledgable in the Programs and UPS's use thereof and to expedite
resolution of problems.
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Exhibit C
Escalation Procedures and Call Priorities
It is important for customers to understand the call flow process within the
Technical Services organization and throughout the company. This escalation
process is designed to make sure that support resources are leveraged to best
serve our customers (i.e., calls) with the severest problems given immediate
attention. Below are two charts outlining the escalation procedure followed for
any call placed into a GUPTA Technical Support facility. The way in which a
specific situation is handled depends on the severity of the call logged into
Technical Services. GUPTA's call priority rankings are detailed in the first
chart. GUPTA will use its commercially reasonable efforts to escalate calls
throughout the organization as reflected in the second chart.
Priority Description
---------- --------------------------------------------------------------
Priority 1 Production system is down and unable to continue
Priority 2 Development system is down and unable to continue
Priority 3 Installation problem or serious software problem that not stop
production or does development
Priority 4 Less serious software problem or product usage question or
documentation bug
Priority 1 Priority 2 Priority 3 Priority 4
Steps Call Call Call Call Escalation Path
----------------------- ------------ -------------- ------------- ------------ ---------------
1 . Initial Customer Within 2 Within 2 Within 2 Within 2 Star Manager
Contact hours hours hours hours
2. Diagnosis/Recreation
Determine if bug or
user error - may
involve Engineering
at this point
2a. Frequency of At Least: At Least At least At least Star Manager
customer contact: every other once every
day 5 days
Up and running Daily Every other
day
Not up and Twice Daily
running Daily
2b. Backline TSE Within 5 days Within 10 Star Manager
involved days
Up and running Within 1 day Within 2 days Backline Manager
Not up and running Within 4 Within 1 day
hours
2c Escalate after Star Manager
Up and running Within 1 day Within 3 days Backline Manager
Not up and running Within 1/2 Within 1 day Engineering
day
VP Tech Services.
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[GUPTA LOGO]
OEM SOFTWARE LICENSE AGREEMENT
(GENERAL TERMS AND CONDITIONS)
PREAMBLE: The following are the general terms and conditions of an agreement
("Agreement") which consists of (i) these General Terms and Conditions and (ii)
the Signature Pages. The documents are referenced together by the contract
number and are to be taken together and not separately. THIS AGREEMENT SHALL BE
EFFECTIVE AS OF THE "EFFECTIVE DATE" SPECIFIED ON THE SIGNATURE PAGES ONLY WHEN
THE SIGNATURE PAGES ARE EXECUTED BY BOTH PARTIES AND ALL PAGES OF BOTH THE
GENERAL TERMS AND CONDITIONS AND THESE SIGNATURE PAGES ARE INITIALED WHERE
INDICATED BY BOTH PARTIES.
IN CASE OF CONFLICT BETWEEN THE TERMS AND CONDITIONS SPECIFIED IN THE GENERAL
TERMS AND CONDITIONS BELOW AND THOSE OF THE SIGNATURE PAGES, THE TERMS AND
CONDITIONS OF THE SIGNATURE PAGES SHALL CONTROL.
NOTATIONAL CONVENTION: Provisions of these General Terms and Conditions shall be
referred to as "Section X.Y(z) GTC". Provisions of the Signature Pages shall be
referred to as "Item A.B(c) SP".
1. PURPOSE OF THIS AGREEMENT
This Agreement is between GUPTA Corporation ("GUPTA"), a California corporation,
with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and United Parcel Service
General Services Co., ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇.▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("UPS"). GUPTA
is engaged in the business of designing and developing database management
software and has developed proprietary software programs collectively called
"SQL" and UPS wishes to incorporate one or more of such software programs into
UPS Products as provided herein. GUPTA and UPS desire to establish the terms and
conditions under which GUPTA will provide such software programs for
manufacturing and integration into UPS Product(s) for subsequent sublicensing
and distribution by UPS and its distributors to end users for their own internal
use and to UPS employees and others for development, training, demonstration,
and other internal uses related to the UPS Product(s).
2. CERTAIN DEFINITIONS
2.1 "Distributor" shall mean a UPS affiliate, value added reseller, dealer,
software developer or other third party which is granted certain non-exclusive
rights by UPS in accordance with the terms of this Agreement such as the right
to distribute the Programs.
2.2 "End User" shall mean an individual, business or governmental customer of
UPS (or a Distributor) who acquires a valid license to use the UPS Product (and
the Programs as an embedded component) for personal or internal business
purposes in accordance with the End User License Agreement, and not for transfer
to others.
2.3 "End User License Agreement" shall mean the standard UPS license agreement
accompanying each copy of the UPS Product which specifies the terms and
conditions of the license to use the UPS Product and the Programs as an embedded
component.
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2.4 "Maintenance Release(s)" shall mean any modification of the Programs which
is denoted by GUPTA by changing a number to the right of the second decimal
point in then-current version number, e.g., a change from version 3.1.1 to
3.1.2.
2.5 "Major Version Release(s)" shall mean any modification of the Programs which
is denoted by GUPTA by changing a number to the left of the first decimal point
in then-current version number, e.g., a change from version 3.1.2 to 4.0.
2.6 "Marks" shall mean the trademarks, service marks and logos of GUPTA and /or
its licensors identified in the attached Exhibit A.
2.7 "Minor Version Release(s)" shall mean any modification of the Programs which
is denoted by GUPTA by changing a number to the right of the first decimal point
in then-current version number, e.g., a change from version 3.1.2 to 3.2.
2.8 "UPS Product" shall mean only the UPS software programs or products
specifically described or listed on the Signature Pages, and shall also include
any Derivative Works.
Any UPS Product:
(a) must not provide a general purpose programming interface to the Programs or
links to one;
(b) must not intentionally make GUPTA's SQL/API (as described in GUPTA's SQL/API
documentation which accompanies the SQLBase Programs when delivered in package
form) or the SQL language (as described in GUPTA's SQL Language guide which
accompanies the SQLBase Programs when delivered in package form) directly
accessible to users.
2.9 "Product Update(s)" shall mean all Maintenance Releases and certain other
modifications to the Programs designed to provide bug fixes or minor function
improvements which may be denoted as such by GUPTA from time to time in its
generally published programs and policies, or which may be otherwise provided
generally to GUPTA licensees.
2.10 "Product Upgrade(s)" shall mean all Minor Version Releases and Major
Version Releases, product successors, and certain other modifications to the
Programs which may be denoted as such by GUPTA from time to time in its
generally published programs and policies.
2.11 "Program(s)" shall mean only the proprietary GUPTA software program(s),
including Product Updates and Product Upgrades, and their successors, in object
code form specified on the Signature Pages to this Agreement.
2.13 "Trademark Use Policy" shall mean the written guidelines, as amended by
GUPTA from time-to- time, which contains GUPTA's policies and procedures
describing the proper usage of the Marks. The current version of such policy is
attached as Exhibit A.
2.14 "Derivative Works" shall mean a revision, modification, enhancement,
abridgment, condensation or expansion of a work or any form in which such work
may be recast, transformed, or adapted.
2.15 "UPS" shall mean United Parcel Service General Services Co., a Delaware
corporation with its principal place of business located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇.▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, together with its parent company and direct and
indirect subsidiaries of such parent company, (collectively "UPS").
UPS_____ GUPTA_____
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2.16 "STAR Support" shall be the services provided to UPS under the support
provisions of this Agreement. The specific levels of service are as defined in
Exhibit B.
3. GRANT OF RIGHTS
3.1 Nonexclusive License ▇▇▇▇▇
▇▇▇▇▇ hereby grants UPS, during the term of this Agreement, the following
nontransferable, nonexclusive, rights and licenses which may be exercised during
the term of this Agreement and provided the Program is for use only in
conjunction with and as an embedded component of a UPS Product:
(a) To manufacture and package copies of the Programs.
(b) To distribute (including electronic distribution, e.g., via bulletin board)
and sublicense UPS manufactured copies of the Programs to End Users directly and
through Distributors.
(c) To grant Distributors the right to distribute UPS manufactured copies of the
Programs to End users.
(d) To use, in unaltered form, the Maries solely to promote the UPS Product and
as otherwise agreed in writing by both parties.
3.2 License Restrictions and Requirements
The rights and licenses granted in Section 3.1 GIC are expressly limited and
restricted by the following:
(a) GUPTA's Intellectual property and Proprietary Rights
(1) GUPTA and/or its licensors shall retain all and sole right, title and
interest in and to the programs.
(2) Other than for exercising the rights expressly granted to UPS hereunder, UPS
shall not, nor shall UPS cause a third party (except as required by law with
written notice to GUPTA) to, copy, manufacture, adapt, rent, lease, lend,
trade-in, translate, reverse engineer, disassemble or decompile or otherwise
modify the Programs.
(3) UPS must ensure that the End User License Agreement contains a provision
prohibiting End Users from using a UPS Product or any components thereof for
general purpose application development.
(4) UPS shall not, nor shall UPS cause a third party to, delete GUPTA's
copyright notice as it appears anywhere in the Programs.
(5) UPS agrees to sublicense the Programs to End Users directly and through
Distributors only under an End User License Agreement, which may be
shrinkwrapped (or which may be posted and distributed electronically in the
event that UPS elects to distribute the UPS Products and the Programs in an
electronic format, e.g., via a bulletin board), between UPS and End Users, which
(i) acknowledges GUPTA's (and/or any of GUPTA's licensors') intellectual
property and proprietary rights and title to the Programs, and (ii) which
contains a provision that expressly prohibits the End User from using the
Programs for any purpose other than that permitted by the UPS Product.
UPS_____ GUPTA_____
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(6) UPS agrees to provide reasonable assistance to GUPTA, at GUPTA's sole
expense, in protecting the Marks and GUPTA's copyrights in the Programs. UPS
further agrees that it will, at GUPTA's request, execute any documents
reasonably required by GUPTA in perfecting its intellectual and proprietary
rights in the Marks. UPS agrees to promptly notify GUPTA of any improper or
unlawful use of the Marks or any intellectual property rights of GUPTA in the
Programs which comes to the attention of UPS.
(7) The use of the Marks by UPS and Distributors shall strictly adhere to the
terms and conditions of GUPTA's Trademark Use Policy attached hereto as Exhibit
A, and to reasonable written instructions GUPTA may issue from time to time. UPS
will not in any way identify itself as the owner of, or register or attempt to
register the Marks in UPS's name or any other namet. GUPTA reserves the right to
(i) review, upon request, UPS's use of the Marks in advertising and other
materials, and (ii) revoke UPS's license to use the Marks, at GUPTA's sole
discretion.
(8) UPS acknowledges GUPTA's representation that (i) Quest, SQLBase, SQLGateway,
SQLRouter, SQLHost, and SQLTalk are registered trademarks of GUPTA Corporation,
(ii) SQL/API, SQLNetwork and the GUPTA logo are trademarks of GUPTA Corporation,
and (iii) SQLWindows is a registered trademark and TeamWindows, ReportWindows
and EditWindows are trademarks exclusively used and licensed by GUPTA
Corporation. UPS agrees that all use of the Marks by UPS or its Distributors
will inure to the benefit of GUPTA.
(b) Distributors
(1) UPS shall have no authority to grant any rights to a Distributor other than
those set forth in Section 3.1(c) GTC.
(2) Each agreement between UPS and Distributor shall (i) contain provisions
which are fully consistent with the terms of this Agreement and do not exceed
the distribution rights granted to UPS herein, (ii) include the provisions of
Sections 3, 6, 7, 8, 9, 10 and 11 GTC in substantially similar terms, and (iii)
provide that the Distributor shall be obligated pursuant to terms substantially
similar to UPS's relevant obligations under this Agreement. UPS shall make
commercially reasonable efforts to ensure that each Distributor respects GUPTA's
intellectual property and proprietary rights in and to the Programs (and other
GUPTA proprietary material licensed to UPS by GUPTA hereunder), do not make
unauthorized copies of the Programs, and otherwise comply with the Distributor's
obligations under its agreement with UPS.
(3) UPS agrees that none of its obligations under this Agreement, including, but
not limited to its payment obligations to GUPTA, are conditioned in any way on
any Distributor's performance of its payment or other obligations to UPS.
4. FEES AND PAYMENTS
4. Payments of License Fees
(a) In consideration for the rights granted in Section 3.1 GTC, upon the
execution of this Agreement, UPS shall make the nonrefundable, noncontingent
payment to GUPTA as provided on the Signature Pages.
(b) Additional payments of License Fees may be made by UPS as provided in the
Signature Pages.
UPS_____ GUPTA_____
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4.2 Maintenance Fee
In consideration for the STAR Support, the delivery by GUPTA of Updates and
Upgrades, and Maintenance services provided by GUPTA as specified in Section 5
GTC, upon execution of this Agreement, UPS shall make the nonrefundable,
noncontingent payment to GUPTA as specified on the Signature Pages.
4.4 Reports and Payments
(a) All payments under this Agreement shall be made in U.S. dollars.
(b) Initial Payments shall be made as specified on the Signature Pages.
(c) Payments other than the Initial Payments or other payments for which payment
terms have been agreed to by UPS and GUPTA shall be paid by UPS to GUPTA within
thirty(30) days after receipt of a valid invoice from GUPTA.
4.6 Records and Review
UPS shall keep accurate records reasonably designed to verify compliance with
the licensing and payment terms of this Agreement, along with reasonable detail.
UPS shall upon reasonable advance request from GUPTA not more than once annually
send copies of these records to GUPTA for review.
4.7 Shipping Expenses
All prices specified are FOB UPS's designated destination, and UPS shall (i)
reimburse GUPTA for reasonable and actual shipping and insurance expenses
incurred by GUPTA under this Agreement for the transportation of Programs, and
(ii) bear the risk of loss damage or theft of the physical property while the
Programs are in transit to UPS.
5. SUPPORT AND MAINTENANCE
5. Technical Support
GUPTA shall provide UPS with STAR Support as provided in this Agreement
5.2 Support of UPS's End Users and/or Distributors
UPS shall be responsible for supporting UPS's End Users and/or Distributors.
5.3 Product Updates
Provided that UPS has paid the Maintenance Fee as provided in Section 4.2 GTC,
during the term of this Agreement Product Updates will be provided to UPS as and
when made available by GUPTA to any of its other OEM's or licensees. UPS shall
have the right to sublicense and distribute (on the same basis as provided in
Section 3.1 GTC) such Product Updates to its existing customers for the UPS
Products without payment of additional fees to GUPTA.
UPS_____ GUPTA_____
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5.4 Product Upgrades
Provided that UPS has paid the Maintenance Fee as provided in Section 4.2 GTC,
during the term of this Agreement, Product Upgrades will be provided to UPS as
and when made available by GUPTA to any of its other OEM's or licensees GUPTA
shall use reasonable efforts to provide information to UPS for such Product
Upgrades four(4) to six(6) months in advance of when such Product Upgrades are
commercially available. Such Product Upgrades shall include versions of the
Programs adapted to run on additional operating system platforms if and when
made commercially available by GUPTA. Product Upgrades will be provided to UPS
contemporaneously with when GUPTA first makes such Product Upgrades commercially
available to its other OEM customers. UPS shall have the right to sublicense and
distribute such Product Upgrades to its existing customers for the UPS Products
to the same extent that UPS is permitted to sublicense and distribute Programs
as provided in Section 3.1(a) GTC, subject to the payment of Maintenance Fees
as provided in Section 4.2 above.
5.5 Training and Consulting
Training and Consulting Services may be provided by GUPTA to UPS subject to a
separate Master Consulting Agreement between GUPTA and UPS.
5.6 Translations and Adaptations
GUPTA agrees to provide UPS with access to any foreign language translations of
the Programs or any adaptations of the Programs to function on or against a
different operating system or platform which may become available from GUPTA
during the term of this Agreement under the same nonexclusive license grant
basis as provided to UPS under Section 3.1 GTC with respect to the underlying
Program. Unless otherwise specified expressly in the Signature Pages, GUPTA
shall have no obligation to undertake such translations or adaptations, and UPS
acknowledges that none of its obligations under this Agreement, including, but
not limited to its payment obligations to GUPTA, are conditioned in any way on
GUPTA's provision of such translations or adaptations. GUPTA will maintain any
such translations or adaptations of the Programs once delivered to UPS in the
same manner as it maintains its base version of such Programs.
6. CONFIDENTIALITY
GUPTA and UPS agree that each of them shall, during the term of this Agreement
and for five (5) years thereafter, exercise reasonable care to safeguard the
secrecy and confidentiality of, and proprietary rights to, the confidential
information relating to the UPS Products, the Programs and their documentation
listed in the attached Signature Pages ("Confidential Information") of the other
party which may be disclosed hereunder (including, but not limited to, product
plans, processes, formulas or designs, marketing and/or other business plans,
technical specifications, research, experimental work, customer or financial
data, information concerning its personnel, agents and independent contractors
and Program code relating to the Programs and their documentation listed in the
attached Signature Pages) and shall not, without the prior written consent of
the other party, (i) use such Confidential Information for its own benefit or
the benefit of any third party except for purposes expressly provided for in
this Agreement, or (ii) disclose such Confidential Information to any third
party; provided, however, that this provision shall not be construed to restrict
the disclosure of information which (a) is publicly known at the time of its
disclosure to a party, (b) is lawfully received by a party from a third party
not bound in a confidential relationship to GUPTA or UPS, (c) was already known
by GUPTA or UPS prior to entering into this Agreement or (d) is required by law
to be disclosed.
UPS_____ GUPTA_____
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7. WARRANTIES AND INDEMNIFICATION BY UPS
7. Warranties, Representations and other Obligations
UPS represents, warrants and covenants that as of the Effective Date and
continuing until termination of this Agreement:
(a) UPS will make no representations, nor give any warranties about the Programs
to anyone, inconsistent with those contained in written materials published by
GUPTA which are provided by GUPTA to UPS.
(b) UPS has not relied on any promises or representations not expressly made in
this Agreement. UPS possesses the facilities, personnel and experience necessary
to meet financial and other commitments under this Agreement. UPS further
acknowledge that any promise or representation made by any representative of
GUPTA during or after the term of this Agreement which purports to amend or add
to the terms and conditions of this Agreement has no force or effect unless it
is reduced to a written document which specifically states that it supersedes or
amends this Agreement and is signed by an executive officer of GUPTA.
(c) If UPS becomes aware of any actual or suspected unauthorized use, copying or
disclosure of the Programs, Marks or Confidential Information of GUPTA, UPS will
promptly notify GUPTA and will provide reasonable assistance to GUPTA, at
GUPTA's request and expense, in the investigation and prosecution of such
unauthorized use, copying or disclosure.
(d) UPS has the full right, power and authority to enter into this Agreement and
to carry out its obligations hereunder and there are no impediments known to UPS
which would prevent compliance with all the terms of this Agreement.
7.2 Indemnification by UPS
UPS agrees to indemnify and hold GUPTA harmless from and against any and all
claims, losses, damages or other liability whatsoever associated with:
(a) the use of the Programs by any End User of UPS or its Distributors, except
to the extent that such liability results from GUPTA's breach of Section 8.1
GTC.
(b) a breach of any of UPS's representations, warranties or covenants contained
in Section 7. GTC;
(c) any claims brought by UPS's Distributors with respect to the relationships
between Distributors and UPS.
To qualify for indemnity under this Section, GUPTA must (i) give UPS prompt
written notice of any such claim, and (ii) allow UPS to control and cooperate
with UPS at UPS's expense in the defense of any such claim and in all related
settlement negotiations. In the event that GUPTA wishes to participate in the
defense of any such claim, UPS shall allow GUPTA to participate at its own
expense.
UPS_____ GUPTA_____
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8. WARRANTIES AND INDEMNIFICATION BY GUPTA
8. Representations and Warranties by GUPTA to UPS
GUPTA hereby represents and warrants to and for the benefit of UPS that (i) the
Programs, and the exercise by UPS and it Distributors and End Users of the
license rights granted by GUPTA to UPS under this Agreement, shall not infringe
any patent, copyright, trade secret or any other proprietary right of any third
party (except to the extent that such infringement is caused by the use by UPS,
its Distributors or End Users by software or other material not provided by
GUPTA hereunder), (ii) GUPTA and/or to the best of GUPTA's knowledge its
licensors owns all right, title and interest in and to the Programs, free and
clear of all liens, security interests, charges or encumbrances by third
parties; and (iii) GUPTA has full right, power and authority to enter into this
Agreement and to carry out its obligations hereunder.
(a) GUPTA has not relied on any promises or representations not expressly made
in this Agreement. GUPTA possess the facilities, personnel and experience
necessary to meet financial and other commitments under this Agreement. GUPTA
further acknowledge that any promise or representation made by any
representative of UPS during or after the term of this Agreement which purports
to amend or add to the terms and conditions of this Agreement has no force or
effect unless it is reduced to a written document which specifically states that
it supersedes or amends this Agreement and is signed by an executive officer of
UPS.
(b) GUPTA has the full right, power and authority to enter into this Agreement
and to carry out its obligations hereunder and there are no impediments known to
GUPTA which would prevent compliance with all the terms of this Agreement.
8.2 Limitation of Warranties
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.1 GTC, THE
PROGRAMS ARE OFFERED "AS IS" WITH ALL FAULTS. ALL WARRANTIES, CONDITIONS AND
OTHER TERMS WHICH WOULD OTHERWISE BE IMPLIED OR INCORPORATED INTO THIS AGREEMENT
BY STATUTE, AT COMMON LAW OR OTHERWISE ARE HEREBY EXCLUDED. THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED
BY GUPTA.
8.3 Indemnification by GUPTA
GUPTA shall indemnify and hold UPS harmless from and against any and all direct
damages (including reasonable attorneys' fees) arising out of GUPTA's breach of
any of the warranties contained in Section 8.1 GTC. To qualify for indemnity
under this Section 8.3 GTC, UPS must (i) give GUPTA prompt written notice of any
such claim or liability, and (ii) allow GUPTA to control, and provides
reasonable assistance to GUPTA (at GUPTA's expense, excluding the time spent by
employees or consultants of UPS) in, the defense of any such claim and in all
related settlement negotiations. In the event that UPS wishes to participate in
the defense of any such claim, GUPTA shall allow UPS to participate at its own
expense. GUPTA has no obligations or liability under this Section for any claim
based on the use of the Programs or portions thereof (i) with respect to
software not delivered by GUPTA (ii) in a manner for which it was not designed,
(iii) where modified by or for UPS in a manner to become infringing, or (iv)
which is, in violation of this Agreement or GUPTA's Software License Agreement.
In the event of any claim being made that the use or possession of the Programs
or any portion thereof infringes any third
UPS_____ GUPTA_____
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party's intellectual property rights then GUPTA may, in its sole discretion and
at its own expense: (i) procure the right to continue using the concerned
Program(s) or portions thereof; or (ii) modify or replace all or part of the
concerned Program(s) in order to avoid any infringement while providing
equivalent functionality.
9. LIMITATION OF LIABILITY
9.1 Limitation of Liability
EXCEPT AS SET FORTH IN SECTION 8.3 GTC, EACH PARTY'S LIABILITY TO THE OTHER
ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY UPS TO
GUPTA UNDER THE TERMS OF THIS AGREEMENT.
9.2 Exclusion of Consequential Damages
IN NO EVENT SHALL GUPTA OR UPS BE LIABLE TO THE OTHER FOR ANY LOSS OF REVENUE OR
PROFITS OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE
PROGRAMS, HOWEVER CAUSED, WHETHER FORESEEABLE OR ENFORCEABLE, WHETHER THE
DAMAGES OR RECOVERY BEING SOUGHT ARE BASED UPON CONTRACT, TORT OR OTHERWISE AND
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING
IN THIS SECTION OR THIS AGREEMENT SHALL LIMIT EITHER PARTY'S LIABILITY FOR DEATH
OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE.
9.3 Essential Purpose
The essential purpose of this Section is to limit the potential liability of the
parties arising out of this Agreement.
10. TERMINATION
10. Term of Agreement
This Agreement shall commence on the Effective Date and, unless otherwise
terminated in accordance with Section 10.2 GTC, shall expire on the date
specified on the Signature Pages.
10.2 Termination for Breach
Either party may terminate this Agreement for a breach of a material term or
condition of this Agreement if at the end of a thirty (30) day period after
providing the other party written notice specifying such breach, the breaching
party has not cured such breach. Provided, however, that notwithstanding any
other provision contained in this Agreement, GUPTA reserves the right, in its
sole discretion, to terminate this Agreement immediately (and without providing
UPS a thirty (30) day cure period) upon written notice if any one of the
following events occur:
(a) UPS breaches any of the provisions of Section 6 GTC and such breach is not
capable of being cured within thirty (30) days;
UPS_____ GUPTA_____
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(b) UPS becomes insolvent, involuntary bankrupt or is unable to meet its
obligations when they become due; or
(c) A receiver or other liquidating officer is appointed for substantially all
of the assets or business of UPS or if UPS makes an assignment for the benefit
of creditors, or if the rights or interests of UPS under this Agreement are
otherwise assigned or transferred by operation of law (except as permitted under
Section 11.2 GTC, or such rights or interest become an asset under any
bankruptcy, insolvency or reorganization proceeding.
10.3 Continuing Obligations
The termination of this Agreement for any reason shall not relieve any party of
its obligations to (i) make payments which may have accrued hereunder, but which
remained unpaid as of the date of termination; (ii) observe continuing
obligations of confidentiality under Section 6 GTC, (iii) indemnify against
actions as provided under Sections 7 and 8 GTC, and (iv) provide information
required under this Agreement to be supplied to the other party with or without
demand.
10.4 Results of Termination
All licenses and other rights granted by GUPTA shall become null and void upon
termination of this Agreement, regardless of the reason for termination, except
for: (i) the End User licenses for the Programs previously distributed by UPS or
a Distributor, and (ii) those internal use licenses set forth in Item 9(a) SP
which are currently in use by UPS at the time of termination. Notwithstanding
the foregoing, UPS shall have the right to continue to market and license any
copies of the UPS Products containing Programs then remaining in UPS's inventory
and to continue to provide maintenance and support services to End Users through
the retention and use of a reasonable number of copies of the Programs.
10.5 Source Code
(a) GUPTA agrees to place a copy of the Source Code to the Programs ("Escrow
Material") under seal to be held in escrow by the UPS Legal Department. Upon
thirty (30) days written notice to GUPTA by UPS that one of the conditions below
has occurred, UPS shall have the right to break the seal and to use the Escrow
Material as provided in Section 10.5(d) GTC below:
(i) GUPTA is unable or unwilling to discharge any of its obligations
(including but not limited to maintenance) with respect to the Programs in
accordance with the warranties, representations or other standards set
forth in this Agreement; and/or
(ii) The sale, assignment or other transfer by GUPTA of such of GUPTA's
rights in the Programs as would prevent GUPTA from discharging its
obligations with respect to the performance of the Programs or from
discharging its maintenance obligations under this Agreement; and /or
(iii) GUPTA ceases to market the Programs,
Provided, however, that if during the thirty (30) day period GUPTA is able to
reasonably demonstrate that it is able and willing to satisfy its relevant
obligations (e.g., maintenance), then UPS shall not access the Escrow Material,
based upon such condition.
UPS_____ GUPTA_____
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(b) Within thirty (30) days of execution of this Agreement, GUPTA shall provide
directly to UPS without charge, one (1) copy of the most current version of the
Escrow Material.
(c) GUPTA further agrees that it shall periodically update the Escrow Material
to correspond with the version of the Programs then used by UPS. GUPTA shall
deposit such updated Escrow Material in escrow within thirty (30) days of the
release of such new version of the Programs and shall update such Escrow
Material for as long as UPS has the right to use such Escrow Material as
provided herein.
(d) Upon release to UPS, UPS shall have the right to use the Escrow Material for
the sole purpose maintenance, enhancement, improvement and/or updating of the
Programs in connection with UPS or its sublicensees' use of the Programs as
provided in this Agreement. UPS may contract with another party (or parties) to
maintain, enhance, improve and/or update the Programs provided that UPS requires
such party (or parties) to sign a non-disclosure agreement. Provided however,
that (i) GUPTA shall have no obligation to incorporate or maintain any
modifications or enhancements made by UPS to the Programs; (ii) by virtue of
such use by UPS, UPS agrees and affirms that it gains no additional rights or
licenses in and to the Programs and such remain the sole and exclusive property
of GUPTA and/or GUPTA's licensors.
11. MISCELLANEOUS PROVISIONS
11.1 GUPTA'S Reservation of Rights and Remedies
All rights of GUPTA not specifically granted to UPS by this Agreement are
reserved by GUPTA including the right, during or after the term of this
Agreement, to appoint other distributors or to use any other distribution
channels for any GUPTA products or services. In addition to any specific right
or remedy provided for in this Agreement, GUPTA reserves all other rights and
remedies available under copyright, patent, trademark, trade secret, and other
applicable laws.
11.2 Sale or Assignment
Neither Party may assign, transfer or delegate any of its rights or duties under
this Agreement without the prior written consent of the other party, provided,
however, that (i) UPS may assign this Agreement to any entity with the
definition of "UPS" herein upon prior written notice without such consent and
(ii) GUPTA may assign this Agreement to a parent, subsidiary, or successor
entity upon prior written notice without such consent provided that such parent,
subsidiary or successor entity assumes all obligations of GUPTA hereunder.
11.3 Force Majeure
Neither party shall be liable for any delays in the performance of any of its
obligations hereunder (other than the obligation to pay money ) due to causes
beyond its reasonable control, including but not limited to, fire, strike, war,
riots, acts of any civil or military authority, judicial action, acts of God, or
other casualty or natural calamity for so long as and to the extent that the
effects of such circumstance continue.
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11.4 Entire Agreement
This Agreement, together with the Exhibits attached hereto, sets forth the
entire agreement among the parties hereto with respect to the subject matter
hereof and supersedes any and all prior agreements, understandings, promises,
statements and representations made by either party to the other concerning the
subject matter hereof and the terms applicable hereto. The parties specifically
agree and understand that all agreements, understandings, promises, statements
and representations, whether oral or written, made in the course of negotiations
leading up to this Agreement or otherwise, are of no force or effect whatsoever
whether this Agreement is signed or not as it is the intention and understanding
of the parties that their relationship shall be governed entirely by this
Agreement which, when signed, may not be released, discharged, amended or
modified in any manner except by an instrument in writing specifically amending
this Agreement and signed by UPS and an executive officer of GUPTA.
11.5 Purchase Orders
Any terms of any purchase order, invoice or other pre-printed document issued by
UPS or by GUPTA is for administrative convenience only. In the event that any
term or condition contained in any such purchase order or other such document
conflicts or adds to the terms and conditions of this Agreement, this Agreement
shall prevail.
11.6 Import and Export Provisions
UPS shall, at its own expense, pay all import and export licenses and permits,
pay customs charges and duty fees, and take all other actions required to
accomplish the export and import of the Programs acquired by UPS. In the
performance of their respective obligations under this Agreement, GUPTA and UPS
shall, at all times, strictly comply with all laws, regulations and orders of
the United States of America and other applicable jurisdictions. Without
limiting the generality of this Section, the parties specifically acknowledge
that the Programs and Confidential Information are subject to United States
export controls, including, without limitation, the Export Administration
Regulations, 15 C.F.R. Parts 768-799. UPS agrees, that it will not export or
reexport the Programs, the Confidential Information or any direct product
thereof, directly or indirectly to, or for use in, any country for which such
export is forbidden and/or controlled by the laws of the United States of
America or other applicable jurisdictions.
11.7 Parties Independent
In making and performing this Agreement, the parties act and shall act at all
times as independent contractors and nothing contained in this Agreement shall
be construed or implied to create an agency, partnership or employer and
employee relationship between UPS and GUPTA or between any party hereto and any
officer or employee of the other party. At no time shall any party make
commitments or incur any charges or expenses for or in the name of the other
party.
11.8 Severability
The invalidity or unenforceability of one or more provisions of this Agreement
shall not affect the validity or enforceability of any of the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
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11.9 Governing Law
(a) This Agreement shall be construed and enforced in accordance with the laws
of the state of New York and the federal law of the United States as applicable
in New York.
11.10 Waivers
The failure of either party to insist, in any one or more instances, upon the
performance of any of the terms of this Agreement, shall not be constructed as a
waiver or relinquishment of the future performance of any such term, covenant or
condition, shall not be taken, understood or deemed to operate as an amendment
or modification of this Agreement, and the obligations of the other party with
respect to future performance of such term, covenant or condition shall continue
in full force and effect.
11.11 Headings
The headings of the sections used in this Agreement are included for convenience
only and are not used in construing or interpreting this Agreement.
11.12 Notices
Any notice required to be made or given to either party hereto shall be made by
personal delivery, telegram, telex, FAX, mailgram, certified or registered mail
return receipt requested, postage prepaid or UPS Next Day Air Service, and
addressed to such party at its address set forth on the first page of this
Agreement or to such other address as such party shall designate by written
notice.
11.13 Taxes
UPS shall pay or reimburse GUPTA for all, federal, state, local or other taxes
and assessments of any jurisdiction, including sales or use taxes, property
taxes, withholding taxes as required by international tax treaties, customs or
other import or export taxes, value added taxes, and amounts levied in lieu
thereof based on charges set, services performed or to be performed or payments
made or to be made under this Agreement excluding, however, any taxes based on
GUPTA's income. UPS shall not be entitled to deduct the amount of such
withholding or other taxes, duties, or assessments from payments made to GUPTA
under this Agreement.
11.14 Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together constitute but one
and the same instrument.
15 Use of Name
Vendor shall not use the name or logo of UPS or of any Affiliate, or any
abbreviation or adaptation thereof, in any advertising, trade display, or public
statement, or for any other commercial purposes without the prior written
consent of UPS.
UPS_____ GUPTA_____
Page 13
[GUPTA LOGO]
September 8, 1995
By FAX [ILLEGIBLE]
GUPTA CORPORATION
▇▇. ▇▇▇▇▇▇▇ Arffdan
United Parcel Service General Service Co.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇-▇▇▇▇▇▇
[▇▇▇▇▇▇▇▇▇], ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
Re: Letter Amendment, Modification to OEM Agreement
Dear ▇▇▇▇▇▇▇:
MENLO PARK CA This letter ("Letter Amendment") will confirm that
94826 United Parcel Service General Service Co. ("UPS") and
Gupta Corporation ("Gupta") have agreed, effective
September 8, 1995, that the modification listed below
have been made to the OEM Software Licence Agreement
between UPS and Gupta effective September 29, 1994 (the"
Agreement") All terms as defined in the Agreement shall
have the same meaning in this Letter Amendment unless
specifically modified below.
TELEPHONE:[ILLEGIBLE]
1. PAYMENT: Upon execution of this Letter Amendment UPS
irrevocably agrees that it shall pay to GUPTA the
noncontingent nonrefundable sum of $700,000 (seven
hundred thousand U.S. dollars) on or before September
15, 1996. Such payment shall be considered payment in
full for UPS's use, sublicensing and/or distribution of
the Programs as provided in the Agreement for the period
January 1, 1996 through December 31, 1909.
2. TERM OF AGREEMENT: Item 3 SP is modified by replacing
the date December 31, 1997 with the date, "December 31,
1999". Item 3(a) SP is deleted. Item 3(b) SP is
modified by replacing the paranthatical in the third and
fourth lines with "(ending December 31, 2001)".
3. MODIFICATION TO ITEM 5 SP: Item 5(b) SP is deleted.
Item 5(c) SP is modified by deleting the paranthatical
in the second line.
4. MAINTENANCE FEES:
(a) For calendar year 1996, and in [ILLEGIBLE] of the
payments specified in Item 5(d) SP. UPS agrees to pay
the sum of $200,000 in four quarterly installments of
$50,000 each beginning December 15, 1997. with
additional payments on March 15, 1998, June 15, 1996 and
September 15, 1996 respectively.
UPS___ Gupta _______________
UPS Letter Amendment 2
September 8, 1995
(b) For calendar year [ILLEGIBLE], UPS agrees to pay the sum of $220,000 in four
quarterly installments of $55,000 each beginning December 15, [ILLEGIBLE], with
additional payments on March 15, [ILLEGIBLE], June 16,[ILLEGIBLE] and September
15,[ILLEGIBLE] respectively.
(c) For subsequent years, payments shall be made subject to UPS selection as
provided in item [ILLEGIBLE] SP.
6. OTHER TERMS: Item 8(b) SP is modified by changing the percentage in line 2
and line 5 to "50%".
If the above is consistant with your understanding, [ILLEGIBLE] have an
appropriate official sign, date and initial where indicated a copy of this
letter and FAX it back to my attention at 415-017-4681. Exchange of signatures
by FAX shall be sufficient to bind UPS and Gupta to this Letter Amendment.
Originals will follow for record purposes only.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President and General Counsel
Agreed and Act.
United Parcel Service General Service Co.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Administration Manager
Date: September 12, 1995
[UPS LOGO]
UNITED PARCEL SERVICE
March 6, 1995
Ms. ▇▇▇▇ ▇▇▇▇▇
Gupta Corporation
Carnagie Hall Towers
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇;
As a follow up to our conversation today, UPS will be pleased to accept ten (10)
days of additional consulting services from Gupta Corp. personnel. We understand
that the ten days will be at no charge to UPS except to reasonable expenses as
defined in the United Parcel Service Consultant Travel & Expense Guidelines, and
will be used before August 1, 1995.
The request for use of these services will be relayed to you as soon as we have
the dates when the services are needed.
If the foregoing is understood and agreed please acknowledge by signing one
original copy of this letter where indicated below and return it to me. If you
have any concerns or questions please call me on (▇▇▇) ▇▇▇-▇▇▇▇.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Contracts Manager
AGREED AND ACKNOWLEDGED:
GUPTA CORPORATION
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Signature
Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title Vice President
March 10, 1991
--------------------
Date
cc: ▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
[CENTURA LOGO]
Centura Software Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[ILLEGIBLE]
TEL ▇▇▇.▇▇▇.▇▇▇▇
FAX ▇▇▇.▇▇▇.▇▇▇▇
March 5, 1999
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
United Parcel Service, General Service Company
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Dear ▇▇▇▇▇▇▇:
OEM SOFTWARE LICENSE AGREEMENT DATED SEPTEMBER 29, 1994 AND AMENDED BY LETTER
AGREEMENT DATED SEPTEMBER 8, 1995 ("AGREEMENT").
This letter is simply to confirm and clarify certain terms of our existing
Agreement with United Parcel Service, General Service Company ("UPS").
In prior years, Centura Software Corporation ("Centura") engaged in various
marketing programs wherein customers occasionally received certain Centura
products free of charge. The intent of this letter is to confirm your
understanding that such activities do not create an obligation, either express
or implied, on the part of Centura to deliver any such free merchandise to UPS.
And that it is your understanding that the terms of the Agreement provide UPS
with rights to use product only as specifically set forth in the Agreement and
do not expressly or implicitly provide UPS with rights to receive other products
produced by Centura free of charge.
We very much appreciate our relationship with UPS and look forward to our
continuing involvement and in providing UPS with robust mobile and secure
computing solutions.
Thank you very much for your attention to this matter. If you could please
indicate your acknowledgment and concurrence with the foregoing statements by
signing and returning a copy of this letter to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, it would be
greatly appreciated.
Sincerely, Agreed,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- --------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
VP Finance & Operations Title IS Contracts Manager
Centura Software Corporation Date: 3/31/99
UPS, Inc.
[CENTURA LOGO]
Centura Software Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TEL ▇▇▇.▇▇▇.▇▇▇▇
FAX ▇▇▇.▇▇▇.▇▇▇▇
September 30, 1999
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lead Contracts Administrator
United Parcel Service
Subject: Notice of Intent ("Notice") to extend the OEM Software License
Agreement (Agreement Number 94-OEM-4914-UPS) (the "Agreement")
Dear ▇▇. ▇▇▇▇▇:
This Notice confirms that United Parcel Service ("UPS") has elected to exercise
the option granted by Centura Software Corporation ("Centura") in Sections 3(b)
and 5(c) of the Agreement to extend the term of the Agreement for a two-year
period and purchase an additional 10,000 copies of the Programs (at US$20 per
copy) pursuant to the following terms and conditions:
1. TERM OF AGREEMENT: Upon the Effective Date of this Notice and in
consideration for the payment specified in Section 2 below, the term of
the Agreement is hereby extended through December 31, 2001.
2. PAYMENT: Upon the Effective Date of this Notice and in consideration for
the license granted in Section 3 below, UPS irrevocably agrees to pay
Centura a nonrefundable, noncontingent payment of US$200,000 (two hundred
thousand U.S. dollars) due and payable to Centura on or before December
31, 1999.
3. LICENSE GRANTED: Upon the Effective Date of this Notice and in
consideration for the payment specified in Section 2 above, Centura hereby
grants UPS the right to reproduce 10,000 copies of the SQLBase Program for
UPS's use, sublicense, and distribution in conjunction with and as an
embedded component of the UPS Product, pursuant to the terms and
conditions of the Agreement. UPS's right to use, reproduce, sublicense,
and distribute these 10,000 licenses, and any other set of 10,000 licenses
purchased pursuant to this extension of rights, shall survive the extended
expiration date set forth in Section 1 above, provided the total number of
licenses distributed does not exceed the total quantity purchased pursuant
to the Agreement. Nothing herein shall be construed to reduce or limit
UPS's right to use, sublicense, and distribute an unlimited number of
copies of the SQLBase Programs prior to December 31, 1999 pursuant to the
Agreement ("1999 Unlimited Deployment Right"). Centura acknowledges that
the exercise of UPS's 1999 Unlimited Deployment Right will not impair or
limit the quantity of copies of the SQLBase Programs purchased pursuant to
this Notice (whether rights to such copies are purchased now or later
during the Extended Term).
4. ADDITIONAL LICENSES: The parties acknowledge that the Agreement provides
that UPS may, at any time during the Extended Term of this Agreement,
acquire the right to use, sublicense, and distribute additional copies of
the SQLBase Program in minimum increments of 10,000 copies at $20.00 per
copy. Nothing in this Section 4 is intended to revise or extend any rights
or obligations set forth in the Agreement.
5. SUPPORT NOT EXTENDED: Pursuant to Section 6(e) of the Agreement, Centura
hereby notifies UPS of its ability to extend its support, maintenance,
update, and upgrade rights as provided in the Agreement. UPS has elected
not to extend such rights at this time, and this Notice does not provide
for any such extension, but UPS retains its right to so extend its rights
on or by October 31, 1999 pursuant to the terms and conditions of the
Agreement.
All other terms and conditions of the Agreement remain in effect. In the event
of conflict between the terms and conditions of the Agreement and of this
Notice, the terms and conditions of this Notice will govern. Where applicable,
the defined terms in the Agreement will have the same meaning in this Notice.
This Notice is valid only if executed by UPS on September 30, 1999.
The letter agreements I sent to you earlier today and yesterday are null and
void and replaced by this document.
If you agree to the terms and conditions contained herein, please have an
authorized signatory sign below and fax the signed Notice to me at (650)
569-4681 on September 30th, 1999.
Sincerely yours,
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
General Counsel
CONSENTED AND AGREED TO EFFECTIVE SEPTEMBER 30, 1999 ("EFFECTIVE DATA"):
UNITED PARCEL SERVICES
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Contracts Manager
Date: 9/30/99
2
[CENTURA LOGO]
Centura Software Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel ▇▇▇.▇▇▇.▇▇▇▇ VIA FACSIMILE 201-828-7203 October 31, 1999
Fax ▇▇▇.▇▇▇.▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Lead Contracts Administrator
United Parcel Service
Subject: Notice of Intent ("Notice") to continue limited support
services under the OEM Software License Agreement (Agreement Number
94-OEM-4B14-UPS) (the "Agreement")
Dear ▇▇. ▇▇▇▇▇:
This Notice confirms that United Parcel Service ("UPS") has declined the
option granted by Centura Software Corporation ("Centura") in Section 6(e)
of the Agreement to continue Its existing level of support services as
provided in the Agreement. In lieu of UPS exercising this option, Centura
has agreed to provide to UPS-more limited portion or support services, for
the period January 1, 2000 though December 31, 2000, which will consist of
Centura's Enterprise Support and Centura License Services ("CLS") pursuant
to the following terms and conditions:
1. PAYMENT: Upon the Effective Date of this Notice and in consideration
for Centura's provision of the Enterprise Support and CLS specified
in Section 2 and 3 below, UPS irrevocably agrees to pay Centura a
nonrefundable, noncontingent payment of US$113,500 (one hundred
thirteen thousand five hundred U.S. dollars) due and payable to
Centura in full on or before November 30, 1999.
2. ENTERPRISE SUPPORT: In consideration for US$25,000 of the US$113,500
payment specified In Section 1 above, Centura will provide
Enterprise (Telephone) Support to UPS, for the period January 1,
2000 through December 31, 2000, for a maximum of five (5) designated
UPS support contacts pursuant to Centura's current Enterprise
Support policies and procedures.
3. CLS: In consideration for US$88,500 of the US$113,500 payment
specified in Section 1 above (calculated at 3% of the cumulative
license fees paid by UPS, or due to Centura, under the Agreement),
Centura will provide CLS to UPS, for the Programs currently licensed
pursuant to the Agreement and for the 10,000 copies of the SQLBase
Program purchased under the Notice of Intent dated September 30,
1999, for the period January 1, 2000 through December 31, 2000. Such
CLS will Include bug fixes, updates, Web support, and the right to
purchase upgrades at a discount off of Centura's standard list
price, set pursuant to Centura's then-current standard policies and
procedures, Centura will, in its sole discretion, designate new
releases as "updates" and "upgrades."
All other terms and conditions of the Agreement remain In effect. In the
event of conflict between the terms and conditions of the Agreement and of
this Notice, the terms and conditions of this Notice will govern. Where
applicable, the defined terms In the Agreement will have the same meaning
in this Notice. This Notice is valid only If executed by UPS on or before
November 15, 1999.
If you agree to the terms and conditions contained herein, please have an
authorized signatory sign below and fax the signed Notice to me at (650)
569-4681 as soon as possible.
Sincerely,
/s/ ▇▇▇ ▇▇▇▇
-----------------
▇▇▇ ▇▇▇▇
Contracts Manager
CONSENTED AND AGREED TO EFFECTIVE OCTOBER 31, 1999 ("EFFECTIVE DATE"):
UNITED PARCEL SERVICE:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Lead Contracts Administrator
Date: 12/20/99
[UPS LOGO]
United Parcel Service ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
December 21, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Centura Software Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SUBJECT: Order Authorization 94-5487.03
UPS Agreement No. 94-5487
▇▇. ▇▇▇▇▇▇▇▇▇:
This letter shall serve, in addition to the two letters executed by UPS,
as authorization for Centura Software Corporation to provide United Parcel
Service General Services Co. ("UPS") with the Products and Services listed
below at the specified price pursuant to the above referenced Agreement.
Software Products
DESCRIPTION QTY PRICE LICENSE TYPE
----------- ------ ---------- ------------
SQLBase database 10,000 $ 20.00 ea Runtime
Software Product Maintenance
START END
DESCRIPTION QTY DATE DATE PRICE RESERVED PO#
----------- --- ------ -------- ----------- ------------
Enterprise Telephone Support 1yr 1/1/00 12/31/00 $ 25,000.00
CLS 1yr 1/1/00 12/31/00 $ 88,500.00
TOTAL PRODUCT AND SERVICES PRICE: $313,500.00
The Software identified above shall be delivered (and installed by Vendor)
at no additional cost to the location listed below. Specific delivery
dates shall be determined by UPS and coordinated between Vendor and UPS's
representative noted below.
United Parcel Service
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone:(▇▇▇)▇▇▇-▇▇▇▇
Support services shall automatically terminate at the end of the term
identified above unless UPS authorizes renewal. Notwithstanding the
foregoing, Vendor shall provide UPS with one hundred twenty (120) day
prior written notice of the expiration of each support service term.
If you have any questions, please contact ▇▇▇▇ ▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇.
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Lead Contracts Administrator
[LOGO]
UPS Contract No.: 94-5487.05
AMENDMENT NUMBER TWO
TO THE
OEM SOFTWARE LICENSE AGREEMENT
BETWEEN
CENTURA SOFTWARE CORPORATION ("CENTURA") AND UNITED PARCEL SERVICE ("UPS")
This Amendment Number Two (the "Amendment") to the OEM Software License
Agreement with an Effective Date of September 29, 1994 (the "Agreement"),
as amended on September 8,1995, is between Centura Software Corporation,
(formerly Gupta Corporation), a Delaware Corporation with corporate
offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇ ("Centura)' and United
Parcel Service General Services Co.; a Delaware corporation with its
principal place of business located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, together with its parent company and direct and indirect
subsidiaries of such parent company (collectively,"UPS"). '
WHEREAS, Centura and UPS have previously entered into the Agreement; and
WHEREAS, Centura and UPS desire to further amend the terms and conditions
of the Agreement via this Amendment;
NOW, THEREFORE, Centura and UPS agree, as follows:
1. CONFLICTS, USE OF TERMS: Where applicable, the defined terms
in the Agreement and In the prior amendment shall convey the
same meanings In this Amendment. The terms and
conditions contained In this Amendment and in the prior
amendment are hereby Incorporated into the Agreement by
reference made herein. Notwithstanding the foregoing. In the
event of conflict between the terms and conditions of the
Agreement, the prior amendment, any other written
communications between the parties, and this Amendment, the
terms and conditions of this Amendment shall prevail.
2. TERM OF AGREEMENT: In consideration for, and expressly
contingent upon, Centura's receipt of the license fee
indicated in Section 2 below, Item #1 of the Letter Notice of
September 30,1999 is hereby modified to extend the term of the
Agreement through December 31, 2004.
3. PAYMENT Upon execution of this Amendment, and In consideration
of the license granted in Section 3 below. UPS irrevocably
agrees to remit to Centura a non-refundable, noncontingent
lump sum payment of $900,000 due and payable per the following
installment schedule:
Installment Payment#1 $350,000 due on or before April 15, 2001
Installment Payment#2 $275,000 due on or before June 15, 2001
Installment Payment#3 $275,000 due on or before August 15,
2001
4. LICENCE GRANTED: Upon execution of this Amendment by the
parties, and in consideration for the payment Specified In
Section 2 above, Centura hereby grants UPS the right to
reproduce an unlimited number of copies of the SQLBase Program
for UPS's use, sublicanse and distribution In conjunction
with, and as an embedded component of, the UPS Product,
"Worldship-lnternational", pursuant to the terms and
conditions of the Agreement. UPS's right to use, reproduce,
sublicense, and distribute such licenses shall expire on
December 31, 2004, unless otherwise extended via amendment.
5. SUPPORT NOT EXTENDED: Pursuant to Section 6(e) of the
Agreement, Centura hereby notifies UPS of its ability to
extend its support, maintenance, update, and upgrade rights
(the "Support") via an additional fee as provided for in the
Agreement UPS has elected not to exercise such rights to
purchase continued Support at this time, and this Amendment
does not provide for any such exercise. In the event that UPS
subsequent to the execution of this Amendment, wishes to
purchase continued Support, It shall provide at least sixty
(60) days prior written notice to Centura and Centura shall
provide UPS with a Support quote.
6. REPRESENTATIONS AND WARRANTIES BY GUPTA TO UPS: The first
full paragraph of Section 8.1 of the Agreement is hereby
modified to read as follows:
"Centura hereby represents and warrants to and for the benefit
of UPS that (i) the Programs, and the exercise by UPS and it
Distributors and End Users of the license rights granted by
Centura to UPS under this Agreement, shall not Infringe any
U.S. patent, copyright, trade secret or any other proprietary
right of any third party (except to the extent that such
infringement is caused by the use by UPS, its Distributors or
End Users of software or other material not provided by
Centura hereunder); (ii) Centura and/or to the best of
Centura's knowledge its Centuras owns all right, title and
Interest in and to the Programs, free and dear of all liens
security Interest, charges or ancumbrances by third parties;
and (iii) Centura has full right, power and authority to enter
into this Agreement and to carry out its obligations
hereunder.
7. LIMITATION OF WARRANTIES: Section 8.2 of the Agreement is
hereby modified, as follows: the language In the first
sentence, "EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTION 8.1 GTC," is hereby stricken from this
section.
8. LIMITATION OF LIABILITY: Section 9.1 of the Agreement is
hereby modified, as follows: the language in the first
sentence, "EXCEPT AS SET FORTH IN SECTION 8.3 QTC," is hereby
stricken from this section.
9. INSURANCE PROVISION. The following section is hereby added to
the Agreement as Section 12.
"Centura shall, at its own cost and expenses, obtain and
maintain In full force and effect, with sound and reputable
insurers and with no right of contribution by UPS, during the
term of this Agreement, the following insurance coverages: (a)
Worker's Compensation as required by the law of the state of
hire; (b) Employer's Liability with a minimum limit of
$250,000,00 of liability for each accident, and $1 million for
disease for each employee, including death at any time
resulting therefrom, not caused by accident, and not less than
a $1 million aggregate limit of liability per policy year, (c)
Commercial General Liability Insurance against all
hazards, including coverage for blanket contractual liability
and products and completed operations with a minimum limit of
liability for personal injury, Including death resulting
therefrom, on an occurrence basis of $1 million and $2 million
in the aggregate, and with a minimum limit of liability for
property damage on an occurrence basis of $1 million and $2
million in the aggregate; (d) Automobile Liability insurance
against liability arising from the ownership, maintenance or
use of all owned, non-owned and hired automobiles and trucks
with a minimum limit of liability for bodily injury of $1
million per occurence and $2 million In the aggregate, and
with a minimum limit of liability for property damage of
$500,000.00 per accident and $2 million in the aggregate; and
(e) Errors and Omissions Liability Insurance on a claims-made
basis with a minimum limit of One Million Dollars ($1,000,000)
per claim and $1 million in the aggregate with an insurance
carrier with a Best rating of A or batter. Centura shall renew
and keep Errors and Omissions Liability coverage in force for
a minimum of two (2) years from the time this
Agreement expires. All of Centura's insurance shall be deemed
primary and non- contributory. Centura shall provide UPS with
certificates of Insurant evidencing the coverages required
hereunder within fifteen (15) days after execution of this
Agreement, Each policy required hereunder shall provide that
UPS shall receive thirty (30) days' advance written notice in
the event of a cancellation or material change in such,
policy. In the event that any service under this Agreement is
to be rendered by persons other than Centura's employees,
Centura shall arrange to furnish UPS with evidence of
insurance for such persons subject to the same terms and
conditions as set forth above and applicable to Centura prior
to commencement of service by such person(s). In the event of
failure to furnish such certificates or notice of the
cancellation of any required insurance, UPS may immediately
terminate this Agreement".
10. NO OTHER MODIFICATIONS: Other than as provided in this
Amendment above, the terms and conditions of the Agreement,
as previously amended, remain unchanged and in full force and
effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed on the dates indicated below, and effective as of the
dates specified hereinabove.
UNITED PARCEL SERVICE GENERAL SERVICES CO. CENTURA:
By: [ILLEGIBLE] By: [ILLEGIBLE]
Name: [ILLEGIBLE] Name: [ILLEGIBLE]
Title: [ILLEGIBLE] Title: [ILLEGIBLE]
Date: [ILLEGIBLE] Date: [ILLEGIBLE]
[UPS LOGO]
UNITED PARCEL SERVICE ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 07
March 20, 2001
▇▇▇▇▇ ▇▇▇▇▇▇▇
Centura Software Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
SUBJECT: Order Authorization 94-5487.05
UPS Agreement No. 94-5487
Mr. Pakstys:
This letter shall serve, in addition to Amendment Number two of the
Agreement executed by UPS, as authorization for Centura Software
Corporation to provide United Parcel, Service General Services Co. ("UPS")
with the Products and or Services listed below at the specified price
pursuant to the above referenced Agreement.
Software Products
DESCRIPTION QTY PRICE LICENSE TYPE
----------- --- ----- ------------
SQLBase database Runtime licens 1 $ 900,000.00 Runtime, unlimited, term on receipt of order
"Buyour" Through December 31, 2004.
Software Product Maintenances
START END
DESCRIPTION QTY DATE DATE PRICE RESERVED PO#
----------- --- ----- ---- ----- ------------
TOTAL PRODUCT AND SERVICES PRICE: $900,000.00
The Software identified above shall be delivered (and installed by Vendor)
at no additional cost to the location listed below. Specific delivery
dates shall be determined by UPS and coordinated between Vendor and UPS's
representative noted below.
United Parcel Service
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Support services shall automatically terminate at the end of the term
identified above unless UPS authorizes renewal. Notwithstanding the
foregoing. Vendor shall provide UPS with one hundred twenty (120) day
prior written notice of the expiration of each support service term.
If you have any questions, please contact ▇▇▇▇ ▇▇▇▇▇ at (▇▇▇)▇▇▇-▇▇▇▇
Very truly yours,
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Lead Contracts Administrator
[LOGO]
94-OEM-4914-UPS-03
AMENDMENT NUMBER THREE
TO THE
OEM SOFTWARE LICENSE AGREEMENT
BY AND BETWEEN
GUPTA TECHNOLOGIES, LLC ("GUPTA")
AND
UNITED PARCEL SERVICE GENERAL SERVICES CO.("UPS")
This Amendment Number Three ("Amendment") to the OEM Software License
Agreement with the Effective Date of September 29, 1994, as amended
September 8, 1995 ("Letter Agreement One"), and as amended September 30,
1999 ("Amendment One"), and as Amended December 21, 1999 ("Letter
Agreement Two") and as amended March 23, 2001 ("Amendment Two")
(collectively referred to hereinafter as the "Agreement"), is between
GUPTA TECHNOLOGIES, LLC, a Delaware limited liability company ("GUPTA"),
with corporate offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, and
UNITED PARCEL SERVICE GENERAL SERVICES CO., a Delaware corporation
("UPS"), with its principal place of business at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇.,
▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇.
WHEREAS, GUPTA and UPS have agreed to modify the terms and conditions of
the Agreement via this Amendment;
NOW, THEREFORE, GUPTA and UPS agree, as follows:
1. CONFLICTS, USE OF TERMS: The terms and conditions contained in this
Amendment are hereby incorporated into the Agreement by reference
made herein. Notwithstanding the foregoing, in the event of conflict
between the terms and conditions of the Agreement and this
Amendment, the terms and conditions of this Amendment shall prevail.
2. TERM OF THIS AMENDMENT: The term of this Amendment is from December
31, 2004 ("Effective Date") through December 31, 2006 (the "Term").
3. PAYMENT: Upon execution of this Amendment, and in consideration for
the rights and licenses granted herein, UPS shall make the
nonrefundable, noncontingent payment to GUPTA of US$775,000 (Seven
hundred and seventy-five thousand U.S. dollars) via wire transfer to
the following account on or before March 7, 2005:
GUPTA TECHNOLOGIES, LLC
Account No: 189-▇▇▇▇▇▇▇
Routing: 121-137522
Comerica Bank, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Swift#: MNBDUS33
4. LICENSE GRANT: In consideration for the US $775,000 payment
specified in Item 3 hereinabove, GUPTA hereby grants UPS, during the
Term of this Amendment, the nontransferable, nonexclusive right and
license to use, package, distribute (and to grant to distributors
the right to distribute), and sublicense 80,650 copies (as described
in UPS's letter to GUPTA dated December 30, 2004, attached as
Exhibit A to this Amendment) of GUPTA's SQLBase product version
7.5.1 (hereinafter, the "Program(s)") that UPS had in its possession
as of December 30, 2004, in conjunction with and as an embedded
component of UPS' "Worldship-International" Product (hereinafter,
"Existing Copies"), pursuant to the terms and conditions of the
Agreement. UPS's license to manufacture or copy any copies of the
Program in excess of the Existing Copies is terminated as of
December 30, 2004. UPS's right and license to use, package,
distribute (and to grant to distributors the right to distribute),
and sublicense all Existing Copies shall expire on December 31,
2006, at which time any remaining, undistributed Program(s) and
Existing Copies must be destroyed unless the Agreement has been
extended by a written amendment signed by both parties.
Notwithstanding the foregoing, (i) all End User licenses granted
prior to December 31, 2006 shall survive the expiration or
termination of the Agreement, and such End User licenses
UPS________ GUPTA_________
Page 1 of 4
94-OEM-4914-UPS-03
shall continue until terminated by UPS in accordance with the terms
of the applicable End User License Agreements; and (ii) UPS shall
have the right to continue to provide maintenance and support
services to End Users after December 31, 2006 through the retention
and internal use of a reasonable number of copies of the Program(s),
not to exceed eighteen (18) copies.
5. Limited Option to UPGRADE: Should UPS desire to acquire the rights
to use, package, distribute, and sublicense SQLBase v9.0 or the
then-current shipping version if and when such later versions of
SQLBase become available during the Term of this Amendment, GUPTA
agrees to negotiate such upgrade rights in good faith based upon the
then-current GUPTA Price List. This option endures during the Term
of this Amendment only, until its expiration on December 31, 2006.
6. GLS NOT PURCHASED: UPS has elected not to purchase GUPTA License
Services ("GLS") under this Amendment. Any GLS UPS requires during
the Term shall be purchased separately from GUPTA by UPS.
7. TECHNICAL SUPPORT NOT PURCHASED: UPS has elected not to purchase
GUPTA Technical Support under this Amendment. Any GUPTA Technical
Support services UPS requires during the Term shall be purchased
separately from GUPTA by UPS.
8. DISCLAIMER OF WARRANTIES: UPS ACKNOWLEDGES AND AGREES THAT GUPTA NO
LONGER SUPPORTS SQLBASE version 7.5.1 AND, OTHER THAN THE WARRANTIES
PROVIDED IN SECTION 8.1 GTC OF THE AGREEMENT, GUPTA MAKES NO EXPRESS
WARRANTIES REGARDING THE SQLBASE version 7.5.1 SOFTWARE, AND THAT,
OTHER THAN THE WARRANTIES PROVIDED IN SECTION 8.1 GTC OF THE
AGREEMENT, SQLBASE version 7.5.1 IS BEING PROVIDED "AS IS" WITHOUT
WARRANTY OF ANY KIND. GUPTA DISCLAIMS ALL WARRANTIES, OTHER THAN THE
WARRANTIES PROVIDED IN SECTION 8.1 GTC OF THE AGREEMENT, WITH REGARD
TO THE SQLBASE v 7.5.1 SOFTWARE, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY OR QUALITY.
9. ANNUAL REPORTING REQUIREMENTS: UPS will submit annual reports to
GUPTA regarding distribution of the Existing Copies in the previous
year ("Annual Report(s)") prior to January 15, 2006 and 2007. Each
Annual Report shall state: (i) the number of copies of the Existing
Copies sublicensed, distributed, and/or shipped that year, and (ii)
the number of copies of the Existing Copies then-remaining in UPS's
possession. Should GUPTA discover any errors in the Annual Report,
UPS will provide GUPTA with a corrected Annual Report within fifteen
(15) calendar days after UPS's receipt of written notice from GUPTA
identifying the error.
10. CHANGE OF NAME TO GUPTA TECHNOLOGIES, LLC: UPS hereby acknowledges
that (i) Centura Software Corporation has changed its name and is
now operating under the name of Gupta Technologies, LLC and that
(ii) Gupta Technologies, LLC is the successor in interest to Centura
Software Corporation. At all times the term "Centura Software
Corporation" and "Centura" as found in the Agreement modified by
this Amendment shall be taken to refer to "Gupta Technologies, LLC."
11. RELEASE: GUPTA hereby covenants not to ▇▇▇ and hereby releases and
forever discharges UPS and its officers, directors, employees,
attorneys, successors and assigns, from any and all liabilities,
claims, demands, rights, and causes of action, whether known or
unknown, that arise out of or relate in any way to UPS's
reproduction, distribution or use of the Existing Copies prior to
March 2, 2005.
12. NO OTHER MODIFICATIONS: Other than as expressly provided in this
Amendment above, the terms and conditions of the Agreement remain
unchanged and in full force and effect.
UPS_______ GUPTA________
Page 2 of 4
94-OEM-4914-UPS-03
IN WITNESS WHEREOF, the parties have caused this Amendment Number Three to
be duly executed on the dates indicated below, and effective as of the
dates specified hereinabove:
UNITED PARCEL SERVICE GENERAL GUPTA TECHNOLOGIES, LLC ("GUPTA"):
SERVICES Co. ("UPS"):
By: /s/ [ILLEGIBLE] By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------- ---------------
Name: [ILLEGIBLE] Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Is Procurement Manager Title: President and CEO
Date: 3/2/05 Date: MARCH 7, 2005
GUPTA
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
650.596.3400
UPS_______ GUPTA________
Page 3 of 4
94-OEM-4914-UPS-03
EXHIBIT A
LETTER DATED DECEMBER 30, 2004
FROM ▇▇▇▇▇▇▇ ▇▇▇▇▇ (UPS) TO ▇▇▇▇▇ ▇▇▇▇▇▇▇ (GUPTA)
UPS__________ GUPTA__________
Page 4 of 4
[UPS LOGO]
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
December 30, 2004
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
GUPTA Technologies, LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: GUPTA Agreement No. 94-OEM-4914-UPS
UPS Agreement No. 94-5487
Dear ▇▇. ▇▇▇▇▇▇▇:
I am writing in response to your request for information about levels of
inventory for the UPS Product and GUPTA Programs.
We currently have 80,650 copies of the UPS Product in inventory for
distribution. This is consistent with our historical levels of year-end
inventory. (For example, as of December 2003 we had approximately 76,500
copies in inventory).
With respect to GUPTA Programs, our records reflect that we currently have
18 copies that our developers use to create the UPS Product. If for any
reason your records reflect anything different, please let me know.
You have also asked about shipments of GUPTA Programs to end users. We do
not, however, ship GUPTA "Programs" to end users. Rather, we distribute
"UPS Product" as defined in the contract, and the Product contains the
GUPTA Program. This may not make a difference for purposes of your
question, but I wanted to bring it to your attention and clarify it.
I believe that this addresses your questions. Please note that our license
agreement has a confidentiality provision in it. We consider this
information confidential and subject to those terms. It should not be
distributed or shared with anyone else.
Sincerely,
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
Lead Contracts Administrator
cc: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ - via facsimile (▇▇▇) ▇▇▇-▇▇▇▇