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Exhibit 10.16 - OEM Agreement
Topic(R) OEM Agreement
between
VERITY, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
and
Opis Corporation
"LICENSEE"
Address:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
1. DEFINITIONS. Certain of the defined terms used in this Agreement are as
follows:
1.1. "SOFTWARE" shall mean the computer software, in object code form
only, which Verity owns or has the right to license to Licensee under this
Agreement, including the Development Software and the Run-Time Software, for use
in connection with the Application. The specific Verity products incorporating
the Software to be licensed to Licensee are listed in Exhibit A.
1.2. "RUN-TIME SOFTWARE" shall mean the portion of the Software which must
be incorporated in the Application to execute the search, retrieval and other
functionality of the Software.
1.3. "DEVELOPMENT SOFTWARE" shall mean the tools and other portions of the
Software (including, without limitation, LIBVDL(#).LIB and LIBVDL(#).a code)
which are used to incorporate the Run-Time Software in the Application and
enable the Run-Time Software to provide search, retrieval and other
functionality within the Application.
1.4. "DOCUMENTATION" shall mean the documentation, instructions and user's
guides, including updates thereto, relating to the Software, whether in printed
or electronic format, provided by Verity to Licensee for the purposes of this
Agreement.
1.5. "APPLICATION" shall mean one and/or all of the three software
application programs, including content or data owned or licensed by Licensee
from third parties, which is developed by Licensee with the use of the
Development Software and which executes the Run-Time Software for the purposes
described in Exhibit C. Each of such three Applications shall embed only one of
the three types of Run-Time Software licensed hereunder (TDK Basic Engine, TDK
Advanced Engine, or Topic Enterprise Server, as further described in Exhibit A).
The Application shall not provide direct or exposed access to the development
tools or capabilities of the Development Software. The Application shall access,
modify, and/or manipulate only those Collections which it creates.
1.6. "COLLECTIONS" shall mean the data structures created by Software and
required for the Run-Time Software to operate.
1.7. "PLATFORM" shall mean a binary compatible combination of hardware and
operating system software supported by Verity that will run the Software and the
associated Application. The supported Platforms upon which Licensee may operate
the Software and the Application are set forth in Exhibit C.
1.8. "TERRITORY" shall mean worldwide.
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2. LICENSE GRANT.
2.1. Appointment of Licensee. Verity hereby appoints Licensee as a
Topic(R) OEM and, subject to the terms and conditions of this Agreement, grants
to Licensee certain rights to the Software during the term of the Agreement, as
set forth below. The parties acknowledge that the Software may contain software
licensed by Verity from third parties (the "Verity Licensors"). Accordingly, as
a condition of this Agreement, Licensee will be required to execute the Third
Party Licensor Addenda, if any, noted on Exhibit A.
2.2. The Development Software.
2.2.1. Development of Application. Verity grants Licensee a
nonexclusive and nontransferable right to use the Development Software on the
Platforms at Licensee's locations solely in the Territory and solely for
internal development of the Application and related internal demonstration and
training of its personnel. In connection with such use, Licensee shall have the
right to make a reasonable number of copies of the Development Software for
normal backup and archival purposes only.
2.2.2. Verity Data Access Standards. To enable Verity to develop and
market applications that access and enhance Collections created by the
Application, Licensee will develop the Application in conformance with the
Verity Data Access Standards set forth in Exhibit D. If the development of a
software gateway is necessary to enable such access by Verity applications, then
Licensee will develop and maintain such a gateway in accordance with the time
schedule and specifications set forth in Exhibit D, and Licensee hereby grants
to Verity a perpetual and exclusive, worldwide license to use the executable
implementation of any such gateway.
2.3. Application Distribution. Verity grants to Licensee a nonexclusive
and nontransferable right to use, market, reproduce and distribute the Run-Time
Software solely as an embedded component of the Application and only in the
Territory. Licensee's right to distribute the Application is limited to those
persons who sublicense the Application for their own business or personal use
("End Users") and those persons who only have the right to redistribute to End
Users the Application in the same form as provided by Licensee without any right
of reproduction or any right to use the Application except as an End User
("Resellers"). To help assure quality, the Application may only be licensed for
use on the Platforms. Licensee acknowledges that Licensee has no right to use,
or sublicense others to use, the Software of any dial-up, remote access,
interactive or other on-line service unless specifically authorized in an
amendment to this Agreement executed by Verity. The foregoing sentence is not
intended to restrict Licensee's End Users from accessing the Collections via
remote network.
2.4. Documentation. Verity grants Licensee a nonexclusive and
nontransferable right and license to use and reproduce the Documentation solely
to distribute the End User portions of the Documentation in the Territory with
the Application and for use internally by Licensee's personnel in the Territory
in connection with the support of the Application.
2.5. Sublicense Right.
(a) Reproduction. Licensee may sublicense its right to reproduce the
Application and the Documentation only to subcontractors in the Territory who
agree in writing to be bound by the terms of this Agreement, including, but not
limited to, Section 9 ("Confidentiality"). Licensee and its subcontractors will
ensure that each copy of the media containing the Software is manufactured under
a quality assurance program designed to ensure that there is no virus or other
embedded device or code in the Software (e.g., back door, time bomb, Trojan
Horse or worm) that is intended to obstruct or prevent use of the Software.
(b) Sublicense Agreements. Any distribution of the Application shall
be accomplished under a license agreement ("Sublicense Agreement") between the
Licensee and the person to whom the distribution is made. Each Sublicense
Agreement pertaining to a distribution to a Reseller (including Resellers
through multiple tiers of distribution) shall be signed by the Reseller and
shall contain terms and conditions at least as protective of Verity's
proprietary rights as the applicable provisions of Section 2.3 (other than the
right to reproduce), 7, 8.1, 9, 10 (disclaimer only), 13, 15.4, 15.6 and 15.7.
Any Sublicense Agreement pertaining to a distribution to an End User may be
through a shrink-wrap substantially in the form attached Exhibit E, so long as
the End User is required to
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take an affirmative act of consent to the terms of such shrink-wrap by opening
the Application package or clicking a button to initiate installation only after
an opportunity to view the applicable terms and conditions. Licensee will
promptly notify Verity of any violation of a Sublicense Agreement of which it
becomes aware, and will take commercially reasonable efforts to enforce each
Sublicense Agreement with at least the same degree of diligence used in
enforcing similar agreements governing end users of Licensee's own products.
Such Sublicense Agreements shall also state that Verity is a third party
beneficiary of such agreements with respect to provisions relating to use of the
Application, and that such provisions are also enforceable by Verity.
2.6. Sample Applications. Licensee agrees to deliver to Verity ten (10)
copies of the Application upon the first commercial shipment of the Application.
Licensee grants to Verity a worldwide, nonexclusive, nontransferable,
royalty-free and fully-paid right and license solely to use such copies
internally and to demonstrate such copies to existing and potential customers
for marketing purposes.
3. TERM. This Agreement shall remain in effect for an initial term of two (2)
years from the Effective Date, unless terminated earlier in accordance with
Section 14. The Agreement will renew automatically for successive one (1) year
terms unless written notice of termination is received by either party at least
sixty (60) days prior to the end of the then-current initial term or renewal
term.
4. LICENSE AND OTHER FEES. Fees (including sublicense fees) for the Software and
for all related support, training and other services offered by Verity are set
forth in Exhibit A. Licensee will pay all applicable shipping charges and sales,
use, excise and similar taxes (except for taxes based upon Verity's net income).
All amounts required to be paid to Verity hereunder shall be paid within thirty
(30) days from the date of Verity's applicable invoice.
5. SOFTWARE SUPPORT AND TRAINING.
5.1. Internal Software Support. During the term of this Agreement,
Licensee shall obtain Software support, as further described in Exhibit B, from
Verity for the purpose of Licensee's provision of support to its End Users and
Resellers. All items delivered by Verity in providing such support, including
Error Corrections and Software Updates, shall be deemed to become a part of the
applicable Software and shall be subject to all terms and conditions of this
Agreement.
5.2. Second-Line Software Support. Licensee is responsible for providing
front-line support to its End Users and Resellers with respect to Software
installation, on-going technical support, training and consultations relating to
the Application. Any direct request to Verity for support services by the
Licensee's End Users or Resellers will be referred to Licensee.
5.3. Training. Licensee is required to send, at a minimum, one (1)
technical employee to Verity's technical training program within ninety (90)
days of the Effective Date of this Agreement, or, if no training class is
available during such ninety (90) day period, as soon as such class becomes
available. At all times during the term of this Agreement, Licensee shall
maintain employment of at least one (1) employee who has received such training.
Licensee shall be responsible for travel and other out-of-pocket expenses of its
employees.
6. ORDERING AND DELIVERY OF SOFTWARE. All orders for Software or other products
or services issued by Licensee shall be deemed subject to this Agreement and
shall specify the quantity ordered, the discounted price, Platform, and the
shipping address thereof. Licensee understands and agrees that any additional
terms and conditions of the Licensee's order shall be void and of no effect. No
orders shall be binding until the earlier of Verity's written confirmation or
shipment. Upon receipt of Licensee's initial purchase order, Verity shall
deliver to Licensee (i) the number of copies of Verity products comprising the
Software described on Exhibit A, (ii) one (1) golden master copy of the Run-Time
Software on magnetic media and (iii) one (1) copy of the Documentation in both
printed and electronic form. Verity shall deliver to Licensee one (1)copy of any
Error Corrections or Software Updates to the Software on magnetic media and one
(1) copy of each of the applicable Documentation in both printed and electronic
form, if any, promptly upon distribution by Verity of such Error Corrections and
Updates to other Verity OEMs. All shipments shall be FOB shipping point. All
orders delivered shall be deemed accepted by Licensee upon delivery.
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7. RECORDS AND REPORTS. Licensee shall keep complete and accurate records
relating to its use and marketing of the Application in accordance with standard
business practices in the computer industry and generally accepted accounting
principles. Within thirty (30) days after each calendar quarter, Licensee shall
provide Verity with a written sales report in the form supplied by Verity. Such
reports shall, at a minimum, contain information detailing each Application
distributed for the applicable reporting quarter, including (i) the number of
copies sold during the reporting period and the location of distributions
(county or state), broken down by month and on a cumulative basis; (ii) an
accounting of the sublicense fees associated with such copies; and (iii)
second-line support fees due to Verity associated with such copies. In addition,
upon Verity's request not more than once per quarter, Licensee shall provide
non-binding monthly sales reports to Verity within fifteen (15) days after the
end of the applicable month. To assure compliance with the payment and reporting
requirements of this Agreement, Verity or its independent auditors may inspect,
at Verity's expense and on Licensee's premises, Licensee's applicable records
from time to time, but no more frequently than once per year. In the event any
inspection of Licensee's records indicates an underpayment of an amount equal to
or greater than five percent (5%) of any amounts due hereunder, Licensee shall
promptly reimburse Verity for all reasonable expenses associated with such
inspection along with the deficient amounts.
8. TITLE, USE OF TRADE NAMES AND TRADEMARKS.
8.1. Proprietary Rights. Title and ownership of all proprietary rights in
the Software, including any copyright, patent, trade secret, trademark or other
intellectual property rights, are and will at all times remain the property of
Verity and the Verity Licensors. Licensee agrees not to remove or obliterate any
copyright, trademark or proprietary rights notices of Verity or the Verity
Licensors from the Software or Documentation and shall reproduce all such
notices on all authorized copies of the Software or Documentation. Licensee
shall not modify, translate, disassemble, decompile, reverse engineer or cause
or allow discovery of the source code of the Software in any way. In addition,
Licensee shall include a copyright notice in the start-up or "About" screen of
the Application indicating that portions of the Application include technology
used under license from Verity, Inc.
8.2. Trademarks. Verity hereby grants to License a non-exclusive, limited
license to use the applicable Trademarks solely as permitted in this Agreement.
Licensee agrees to cooperate with Verity in facilitating Verity's monitoring and
control of the nature and quality of such products and services, and to supply
Verity with specimens of use of the Trademarks upon request. Licensee
understands and agrees that the use of any Trademark in connection with this
Agreement shall not create any right, title or interest, in or to the use of the
Trademark and that all such use and goodwill associated with the Trademark will
inure the benefit of Verity. Licensee agrees not to register or attempt to
register any Trademarks.
8.3. Branding; Cooperative Efforts. Licensee agrees to the following
additional co-marketing obligations:
(a) Licensee will make good faith efforts to provide all reasonable
marketing treatment and opportunities to Verity as it provides to other
substantially similar vendors and product partners of Licensee;
(b) Licensee will, during the term of the Agreement, set up and use
Verity search technology as the default search, if any, used from Licensee's
home page. Licensee will also feature the Verity logo on the Licensee home page.
In addition, on any page where a text search may be invoked, Licensee will
prominently denote that it uses Verity technology and search engine for all text
searching.
(c) Licensee will provide a hot link from Licensee's home page for
the Application to the Verity home page;
(d) Licensee and Verity agree to issue a joint and mutually agreed
upon press release announcing the project involving the Application ("Project")
and Verity's participation and value not more than 30 days from the execution of
this Agreement. Licensee will prominently feature Verity in all press
announcements regarding the joint Verity and Opis Project and have Verity's
brand identity and logo included in announcement materials and programs
associated with the introduction of the Application to the trade press and
potential customers of Licensee; and
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(e) Licensee will cooperate with and support Verity in its press
release materials, and provide reasonable efforts in support of an event, if
any, sponsored by Verity to highlight its inclusion as a key technology within
the Application.
9. CONFIDENTIALITY. Each party shall hold in confidence all materials or
information disclosed to it in confidence hereunder ("Confidential Information")
which are marked as confidential or proprietary, or if disclosed verbally,
reduced to writing and marked confidential within thirty (30) days after the
date of disclosure. Confidential Information shall also include any new product
information or the results of any bench ▇▇▇▇ or similar tests on the Software,
which may adversely affect Verity, conducted by Licensee or divulged by Licensee
to Verity. Each party agrees to take precautions to prevent any authorized
disclosure or use of Confidential Information consistent with precautions used
to protect such party's own confidential information, but in no event less than
reasonable care. The obligations of the parties hereunder shall not apply to any
materials or information that is or becomes a part of the public domain through
no act or omission of the receiving party or which is independently developed by
the receiving party.
10. WARRANTY. Verity warrants to Licensee that for a period of ninety (90) days
from the date of delivery of the Software to Licensee that the Software used by
Licensee shall substantially perform in accordance with Verity's applicable
Documentation. Licensee's sole and exclusive remedy shall be for Verity to
modify or correct the Software or, if Verity is unable to provide a reasonable
work-around for the error, Verity will accept the return of the defective
Software in Licensee's possession and Verity will refund the license fees paid
by Licensee for such Software. This warranty shall not apply to any Software
which has been modified by Licensee or by any party other than Verity, or which
has been improperly installed or used in any manner other than as authorized
under this Agreement, EXCEPT AS SET FORTH IN THIS SECTION, VERITY AND VERITY
LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Software
is warranted only to Licensee, and Licensee shall not extend any warranties for
or on behalf of Verity or Verity Licensors to End Users, Resellers, or any other
third parties.
11. INFRINGEMENT AND INDEMNIFICATION.
11.1. By Verity. Verity agrees to indemnify and hold Licensee harmless
from all liability (cost and expenses), settlements agreed to by Verity and all
costs and direct damages awarded to a third party to the extent they arise out
of a claim that the software as delivered to Licensee infringes a U.S.
copyright, U.S. patent, or trade secret under U.S. law of a third party. Such
obligation is subject to the following conditions (i) Licensee shall notify
Verity in writing within thirty (30) days of the date Licensee first becomes
aware of a claim; (ii) Verity has sole control of the settlement, compromise,
negotiation and defense of any such action; and (iii) Licensee gives Verity all
reasonably available information, assistance and authority, at Verity's
reasonable expense, to enable Verity to do so. Verity may, at its option, obtain
the right to continued use of the Software, substitute other equivalent
software, or modify the Software so its is no longer infringing, or, if none of
the foregoing remedies are available, terminate Licensee's right to the
allegedly infringing Software and refund to Licensee the amount which Licensee
has paid for such Software, depreciated on a straight-line basis over a
five-year period. The foregoing indemnity shall not apply to any infringement
claim arising from Software which has been modified by parties other than Verity
or use of the Software in conjunction with other software or hardware where use
with such other software or hardware gives rise to an infringement claim. THE
FOREGOING STATES LICENSEE'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS OF
INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS OF ANY KIND, AND VERITY EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTY OF NONINFRINGEMENT.
11.2. By Licensee. Licensee agrees to indemnify and hold Verity harmless
from all liability (costs and expenses), settlements agreed to by Licensees and
all costs and direct damages awarded to a third party to the extent they arise
out of a claim that the portions of the Application other than the Software
("Licensee Product") infringes a U.S. copyright, U.S. patent or trade secret
under U.S. law of a third party. Such obligation is subject to the following
conditions (i) Verity shall notify Licensee in writing within thirty (30) days
of the date Verity first becomes aware of a claim; (ii) Licensee has sole
control of the settlement, compromise, negotiation and defense of any such
action; and (iii) Verity gives Licensee all reasonably available information,
assistance and authority, at Licensee's reasonable expense, to enable Licensee
to do so. Notwithstanding the foregoing, Licensee shall have no liability for
nor shall Licensee indemnify Verity against any infringement claim based solely
on the Software or any
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infringement claim that could have been avoided by use of software other than
the Software. THE FOREGOING STATES THE ENTIRE AND EXCLUSIVE OBLIGATION OF
LICENSEE TO VERITY RELATING TO ANY ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS,
TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS.
12. LICENSEE INDEMNIFICATION. Licensee shall defend, indemnify and hold harmless
Verity and Verity Licensors from and against any claims by a Reseller, End User,
or other party arising out of (i) the operation or use of the Application, (ii)
Licensee's or a Reseller's failure to obtain a valid Sublicense Agreement or
(iii) except as permitted by this Agreement, Licensee's making representations
or warranties regarding the Software to End Users, Resellers or other third
parties.
13. LIMITATION OF LIABILITY. VERITY'S AND VERITY LICENSORS' AGGREGATE LIABILITY
UNDER ANY CLAIMS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY
LICENSEE TO VERITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE
INITIAL EVENT RESULTING IN SUCH CLAIMS. VERITY AND VERITY LICENSORS WILL NOT BE
LIABLE FOR LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, REGARDLESS OF THE FORM OF ACTION, EVEN IF VERITY IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
14. TERMINATION. This Agreement may be terminated earlier by either party on
sixty (60) written days notice to the other party if the other party fails to
materially perform any obligation hereunder and such failure is not cured within
such sixty (60) day period; provided, however, that either party may terminate
this Agreement immediately upon delivery of notice in connection with any breach
by the other of Section 2 or Sections 8.1 or 82. Upon termination or expiration,
Licensee's licenses hereunder shall terminate, all open orders shall
automatically terminate, and Verity shall have no obligation to fill such
orders. In such event, Licensee shall immediately cease using, marketing,
reproducing and distributing the Software and shall return all copies thereof to
Verity (except for Applications which are finished goods already in the
distribution channel and not in Licensee's possession or direct control), along
with a certification signed by an officer of Licensee that no copies have been
retained by Licensee for any purpose whatsoever. However, if the Agreement
terminates or expires for any reason other than Verity's termination of Licensee
in accordance with this Section, Licensee shall have the right to distribute all
copies of the Software paid for hereunder which are then in its inventory on the
effective date of termination (which amount shall not exceed Licensee's average
monthly inventory of the Application for the twelve months preceding the
termination date); and Licensee shall have the right to continue to use the
Software internally at no additional charge upon execution of Verity's
then-current applicable end user agreement to support End User customers who
have valid Sublicense Agreements in effect on the effective date of termination.
The obligations of each party under Sections 4, 7, 8.1, 9, 10, 11, 12, 13, 14
and 15 shall survive termination or expiration of this Agreement.
15. MISCELLANEOUS.
15.1. No Assignment. Neither party may transfer or assign this Agreement
or any rights or obligations hereunder without the prior written consent of the
other party.
15.2. Notices. Any notice required under this Agreement shall be given in
writing and shall be deemed effective upon delivery to the party to whom
addressed by (i) express courier upon written verification of actual receipt or
(ii) facsimile upon confirmation of receipt generated by the sending device. All
notices shall be sent to the applicable address on the cover page hereof or to
such other address as the parties may designate in writing, with a copy to the
president and to the legal department of such party.
15.3. Governing Law. This Agreement shall be governed and interpreted by
the laws of the State of California. The parties agree that the United Nations
Convention on Contracts for the International Sales of Goods in specifically
excluded from application to this Agreement. In any legal action relating to
this Agreement, Licensee agrees to the exercise of jurisdiction over Licensee by
a state or federal court in Santa ▇▇▇▇▇ County, California. In the event an
action is brought to enforce any provision or declare a breach of this
Agreement, the prevailing party shall be entitled to recover, in addition to any
other amounts awarded, reasonable legal and other related costs and expenses,
including attorney's fees, incurred thereby.
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15.4. Injunctive Relief. It is expressly agreed that a material breach of
this Agreement will cause irreparable harm to Verity and that a remedy at law
would be inadequate. Therefore, in addition to any and all remedies available at
law, Verity and/or Verity Licensors shall be entitled to injunctive relief
against Licensee in the event of any threatened or actual violation of any or
all provisions in this Agreement.
15.5. Independent Contractor. Licensee is an independent contractor, and
nothing in this Agreement shall be deemed to create a joint venture,
partnership, or agency relationship between the parties. Neither party has the
right or authority to assume or create any obligation or reasonability on behalf
of the other.
15.6. Export. Licensee agrees that it will not export or reexport the
Software or the Application without the appropriate United States Government or
any other government licenses. Verity acknowledges that as of the execution of
this Agreement, to its knowledge, the Topic Tools Developer's Kit and Topic
Enterprise Server products licensed hereunder as Software are not under special
restrictions with respect to the foregoing in addition to those restrictions
imposed on similar software and technical information.
15.7. Government End Users. The Software (a) was developed at private
expense, is existing computer software and no part of it was developed with
government funds, (b) is a trade secrete of Verity for all purposes of the
Freedom of Information Act, (c) is commercial computer software submitted with
only those rights provided in Verity's then-current standard end-user license
agreement, (d) in all respects is proprietary data belonging solely to Verity,
(e) is unpublished and all rights are reserved under the copyright laws of the
United States. For units of the Department of Defense (DoD) this Software is
licensed only with those rights specified in Verity's then-current standard End
User license agreement, and use, duplication or disclosure of the Software is
subject to the restrictions set forth in such end-user license agreement.
15.8. Force Majeure. Neither party shall be liable hereunder by reason of
any failure or delay in the performance of its obligations hereunder (except for
the payment of money on account of strikes, riots, insurrection, fires, floods,
storms, earthquakes, acts of God, war, governmental action, labor conditions, or
any other cause which is beyond the reasonable control of such party.
15.9. Entire Agreement. If any portion of this Agreement is determined to
be or becomes unenforceable or illegal, such portion shall be deemed eliminated
and the remainder of this Agreement shall remain in effect in accordance with
its terms as modified by such deletion. No waiver of any breach of this
Agreement shall be effective unless in writing, nor shall any breach constitute
a waiver of any subsequent breach of any provision of this Agreement. This
Agreement (including all Exhibits) contains the entire agreement and
understanding between the parties with respect to the subject matter hereof, and
supersedes all prior agreements, negotiations, proposals and communications
between the parties. Moreover, this Agreement shall replace and supersede any
Verity end user license agreement included with the package of any Software used
by Licensee.
The foregoing is agreed to effective as of the last execution date below:
VERITY, INC. LICENSEE
By: By: Opis - /s/ Sallene ▇. ▇▇▇▇▇▇
--------------------------------- --------------------------------
Name: Name: Sallene ▇. ▇▇▇▇▇▇
------------------------------- ------------------------------
Title: Title: President
------------------------------ -----------------------------
Date: Date: 5/28/96
------------------------------- ------------------------------
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VERITY CORPORATION
OEM Agreement (Standard OEM)
--------------------------------------------------------------------------------
EXHIBIT A
FEES FOR STANDARD OEM
1. LICENSED SOFTWARE. Topic Tools Developer's Kit (Basic Engine (with
versions utilizing stemmers and thesaurii in French, German and Spanish
languages) and Advanced Engine as defined below), Topic Enterprise Server
2. LIMITED INTERNAL USE LICENSES. The following are licensed hereunder for
internal development:
Product Quantity Platforms Discounted Price
------- -------- --------- ----------------
Topic Tools Developer's Kit 1 Windows 3.x, NT, and 95 $ 495.00
(Basic Engine*)
Topic Tools Developer's Kit 1 Windows 3.x, NT, and 95 $ 495.00
(Advanced Engine*)
Topic Enterprise Server 1 Windows 3.x., NT, and 95 $ 495.00
-------------------------------------------------------------------------------------------------
Total Up-front, one-time, nonrefundable, nonrecoupable license fees
("License Fee"): $1,485.00
Total first year maintenance fees for such Software ("Initial
Maintenance Fee"): $2,990.00
-------------------------------------------------------------------------------------------------
Total Upfront, nonrefundable fees due upon execution of the Agreement: $4,475.00
* The Topic TDK Basic Engine includes boolean, phrase, sentence, paragraph,
many, accrue, wild care, basic zone searching, thesaurus (English only),
stemming (English only), and ODBC gateway, and is limited to ASCII documents
only and limited to 12 Collections only. For purposes of this Agreement, Topic
TDK Basic Engine may also include versions utilizing stemmers and thesaurii in
French, German and Spanish languages (each, a "Localized TDK Basic Engine").
** The Topic TDK Advanced Engine includes in addition proximity, density,
Topics, client profiling, international stemming (for those countries supported
by Verity), and international thesaurus (for those countries supported by
Verity), and is limited to 128 Collections. If and when commercially available,
the Topic TDK Advanced Engine may in the future include advanced zone searching
incorporating HTML and SGML attributes, clustering and summarization.
3. SUBLICENSE FEE: The sublicense fee ("Sublicense Fee") will be calculated as
follows:
(i) three percent (3%) of the Net Sales for any and all Applications
incorporating any Run-Time Software of the TDK Basic Engine (non-localized),
with a minimum Sublicense Fee owed to Verity of Ten Dollars ($10) per copy of
such Application distributed or used for internal business or other productive
purposes, or four percent (4%) of the Net Sales for any and all Applications
incorporating any Run-Time Software of the Localized TDK Basic Engine, with a
minimum Sublicense Fee owed to Verity of Thirteen Dollars ($13) per copy of such
Application distributed or used for internal business or other productive
purposes;
(ii) ten percent (10%) of the Net Sales for any and all Applications
incorporating any Run-Time Software of the TDK Advanced Engine, with a minimum
Sublicense Fee owed to Verity of Twenty-Five Dollars ($25) per copy of such
Application distributed or used for internal business or other productive
purposes; and
(iii) ten percent (10%) of the Net Sales for any and all Applications
incorporating any Run-Time Software of the Topic Enterprise Server, with a
minimum Sublicense Fee owed to Verity of Five Hundred Dollars ($500) per copy of
such Application distributed or used for internal business or other productive
purposes.
Page A-1
9
"Net Sales" shall mean gross sales less any applicable taxes, shipping charges
and returns. Upon execution of this Agreement, Licensee shall pay to Verity a
non-refundable Sublicensee Fee prepayment ("Prepaid Sublicense Fees") of
$55,525.00, payable as follows: $15,000 upon execution of the Agreement, $15,000
on or prior to July 15, 1996, and $30,000 on or prior to August 15, 1996.
The Prepaid Sublicense Fees shall be credited against copies of the Run-Time
Software distributed by Licensee. Upon exhaustion of the Prepaid Sublicense
Fees, Licensee shall pay all Sublicense Fees or other sublicense related fees
within fifteen (15) days of the last day of each calendar quarter during which
Licensee distributed the Run-Time Software, accompanied by the sales report
described in Section 6.2 of the Agreement.
Licensee shall have the right to use internally, free of charge, up to 25 copies
of the Run-Time Software of the TDK Basic Engine, 25 copies of the Run-Time
Software of the TDK Advanced Engine, and 1 copy of the Run-Time Software of the
Topic Enterprise Server solely as necessary to support of End Users.
2. EVALUATION COPIES: Notwithstanding Paragraph 4 above, Verity grants Licensee
the right to provide evaluation copies of the Application ("Evaluation Copies")
to End Users. Each Evaluation Copy shall be limited to an evaluation period of
sixty (60) days from receipt by the End User, after which such Evaluation Copy
shall be automatically disabled by means of a timebomb expiration mechanism. The
End User shall be authorized to use the Software solely for evaluating its
applicability to its requirements and shall not be for any commercial or private
benefit use. Licensee shall only provide Evaluation Copies only to End Users who
have executed a written evaluation agreement substantially similar to Verity's
Standard Evaluation Agreement, a copy of which will be provided to Licensee upon
written request. Licensee shall include the following information with each
order for an Evaluation Copy: (i) Software name; (ii) End User's platform; (iii)
the make/model, operating system/version of End User's computer; and (iv) the
media type of the Evaluation Copy. The license fee for each Evaluation Copy of
the Software shall be Licensee's price charged, if any, for such Evaluation Copy
less the following discount:
EVALUATION COPY DISCOUNT: 90%
3. DEVELOPMENT SOFTWARE REFERRAL COMMISSIONS. Licensee is eligible to receive a
commission in the amount specified below based on the net amount paid to Verity
for any Development Software license orders from End Users referred to Verity.
The referral qualifies for a commission payment upon completion of all of the
following: (i) Development Software is installed on the same CPU as the
Licensee's Application; (ii) Verity receives an executed end user license
agreement from the End User; (iii) payment is received by Verity from the End
User; (iv) Licensee completes a Verity Commission Request Form and such form is
approved by Verity prior to delivery of the Software; (v) the Licensee's
marketing efforts preceded the license grant; (vi) End User is a new customer to
Verity and is generating new license revenue to Verity and (vii) Licensee is
current on all amounts owed to Verity. The commissions to be paid to Licensee
shall be in the following amount:
DEVELOPMENT SOFTWARE LICENSE COMMISSION: 10%
4. INTERNAL SUPPORT: The annual fee for internal support for each copy of the
Software used by Licensee shall be based on Verity's then-current list price for
the Software used internally multiplied by the following rate:
INTERNAL SUPPORT FEE RATE: 18%
Except that the rate for each Topic Tools Developer's Kit (including basic
and advanced engines) and each Topic Enterprise Server shall be $1,495.00 per
year per platform. Therefore, the first year's maintenance fee for the Software
licensed herein shall be $2,990.00.
Such fee shall be invoiced by Verity annually, at the beginning of the initial
term and each renewal term of the Agreement.
5. SECOND-LINE SUPPORT: Licensee shall pay Verity an annual fee for second-line
support in the amount of ten percent (10%) of Sublicense Fees accrued for all
new customers and all customers renewing annual
Page A-2
10
maintenance during the applicable quarter, to be submitted with the quarterly
sales report as described in Section 6.2 of the Agreement.
6. TRAINING. The fees for Verity's standard basic 4-day TDK training classes,
for one (1) Licensee employee, on indexing and retrieving, and TDK gateways and
customization, are included in the Run-time Licensee Fee. All additional
training shall be available at Verity's then-current training rates.
FAILURE OF LICENSEE TO TAKE AN INITIAL TRAINING COURSE WITHIN NINETY (90)
DAYS OF THE EFFECTIVE DATE MAY BE GROUNDS FOR TERMINATION OF THIS AGREEMENT
7. DOCUMENTATION. Verity shall provide one (1) printed and one (1) electronic
copy of the applicable user documentation with each copy of Development
Software. Additional copies are available to Licensee at $65.00 each.
8. PRICE LIST. Verity reserves the right to withdraw or change the availability
of the Software from its then-current product availability and price list at any
time.
11. ON-SITE INTEGRATION SERVICES. 4 days of basic on-site integration services
by Verity are included in the License Fee.
Page A-3
11
VERITY CORPORATION
OEM Agreement
--------------------------------------------------------------------------------
EXHIBIT B
SOFTWARE SUPPORT TERMS AND CONDITIONS
For all Licensees who purchase Maintenance Services, Verity provides support in
the form of Error Corrections, Software Updates, and Hotline Telephone Support.
For Software which is supported, Maintenance Services are provided only for the
current release and the most recent previous release of the Software.
The initial effective date of Maintenance Services is the date Software is
shipped from Verity's facility.
DESCRIPTION OF SERVICES PROVIDED DURING A MAINTENANCE PERIOD
A) Error Corrections. Verity shall exercise commercially reasonable
efforts to correct any error reported by the Licensee in the current unmodified
release of the Software in accordance with the priority level reasonably
assigned to such error by Verity. If a reported error has caused the Software to
be inoperable, or the Licensee's notice to Verity states that the reported error
is substantial and material with respect to the Licensee's use of the product,
Verity shall, as expeditiously as possible, use its reasonable commercial
efforts to correct such error or to provide a software patch or bypass around
such error. The Licensee acknowledges that all reported errors may not be
corrected.
B) Software Updates. Verity provides, at no additional cost, one (1) copy
of all published revisions to the printed documentation and one (1) copy of, or
authorization to copy, new releases of the products, which are not designated by
Verity as new products for which it charges a separate fee.
C) Telephone Hotline Support. Verity provides telephone assistance to all
Licensees who have purchased Maintenance Services. Verity Support personnel are
available to answer questions related to Verity's supported products and how
they perform with compatible hardware systems. Assistance in the development of
custom applications for Verity's products is not included in standard hotline
support. If Licensees wish to acquire such support, it is available through
Verity's Consulting group at the then-current consulting rates.
PRIORITY LEVELS OF ERRORS
In the performance of Maintenance Services, Verity applies priority ratings to
problems reported by Licensees.
A) Priority I Errors.
Description: Program errors that prevent some function or process
from substantially meeting the functional specification and which
seriously affect the overall performance of the function or process
and no work-around is known.
Verity Response: Verity shall promptly initiate the following
procedures: (1) assign senior Verity engineers to correct the error;
(2) notify senior Verity Management that such errors have been
reported and that steps are being taken to correct the error; (3)
provide Licensee with periodic reports on the status of corrections;
(4) commence work to provide Licensee with a work-around until final
solution is available; (5) provide final solution to Licensee as
soon as it is available.
B) Priority II Errors.
Description: Program errors that prevent some function or
process from meeting functional specification, but has a
reasonable work-around.
Page B-1
12
Verity Response: Verity shall provide a work-around to the Licensee
and shall exercise commercially reasonable efforts to include the
fix for the error in the next software maintenance release.
C) Priority III Errors.
Description: Program errors that prevent some portion of a
function from meeting functional specification but do not
seriously affect the overall performance of the function.
Verity Response: Verity may include the fix for the error in the
next major release of the Software.
Page B-2
13
VERITY CORPORATION
OEM Agreement
--------------------------------------------------------------------------------
EXHIBIT C
OEM APPLICATION PACKAGE DESCRIPTION
Names of Application programs which Licensee will be sublicensing under the
Agreement & short description:
1A) (embedding TDK Basic Engine): SupportExpress
-- helpdesk and customer support application
1B) (embedding TDK Basic Engine): Helplink
-- end user trouble ticketing system
2) (embedding TDK Advanced Engine): Express Link Advanced Server
-- add-on to SupportExpress to enhance support functions in SupportExpress
3) (embedding Topic Enterprise Server): Express Link Enterprise Server
-- add-on to SupportExpress to add enterprise functionality to
SupportExpress
Modules: speedsearch; bridge
Platforms: Windows 3.x, 95, NT and Netware
Page C-1
14
VERITY, Inc. CONFIDENTIAL
OEM Agreement
--------------------------------------------------------------------------------
EXHIBIT D
VERITY DATA ACCESS STANDARDS
1. QUERY LANGUAGE OPERATORS AND SYNTAX
Query capability enhancements may be created by Verity which rely upon queries
containing Verity Query Language operators and syntax not normally used by the
Application or for functionality not licensed by Licensee.
The Application will not trap, require modification, or otherwise restrict
access to the full Verity Query Language, including all operators and syntax
formats. The Verity Query Language is described in the Verity Developer Kit API
Reference Guide, Appendix A: Verity Query Language.
2. TDK GATEWAYS
If Licensee implements a TDK Gateway for use in the Application, Licensee will
provide Verity with an executable form of the TDK Gateway prior to the first
Application release which uses the TDK Gateway and updates thereto for prior to
each subsequent commercial release of the TDK Gateway. Licensee grants Verity,
at no fee and free of royalties, the unrestricted, perpetual right to modify,
incorporate, reproduce and redistribute the TDK Gateway within Verity software.
TDK Gateway usage is described in the Verity Developer Kit Configuration Options
Guide, Chapters 5-8.
As used in this Agreement, TDK Gateway means code generated by the Licensee
which is used to read in documents or data which is received from sources in a
format not supported natively by the Verity engine. If such documents or data is
delivered from a DBMS, a feed, or other source that is not natively understood
by the Verity engine, a gateway must be written to index that data. In some
cases, the gateway is also required to retrieve the document for viewing.
3. CALLBACKS
A TDK Gateway includes functions which meet the specification for VGW Callbacks
required by a Table of Stream Gateway, as well as any Application functions
invoked by the VGW Callback functions.
The VGW Callbacks for a Table Gateway are:
VgwSessionNewCBFnc
VgwSessionFreeCBFnc
VgwTableNewCBFnc
VgwTableFreeCBFnc
VgwTableGetInfoCBFnc
VgwTableGetInfoFreeCBFnc
VgwTableReadCBFnc
VgwTableReadFreeCBFnc
VgwTableExistCBFnc
VgwTableUpdateCBFnc
VgwTableDeleteCBFnc
The VGW Callbacks for a Stream Gateway are:
VgwSessionNewCBFnc
VgwSessionFreeCBFnc
VgwStreamNewCBFnc
VgwStreamFreeCBFnc
VgwStreamReadCBFnc
Page D-1
15
FIRST ADDENDUM TO TOPIC(R) OEM AGREEMENT
between Verity, Inc. ("Verity") and SalesLogix Corporation ("Licensee")
This First Addendum ("First Addendum") amends and supplements the OEM Agreement
dated May 29, 1996 between Verity and SalesLogix Corporation, assignee of Opis
Corporation ("OEM Agreement"). Verity and Licensee agree that this First
Addendum is attached and made a part of the OEM Agreement and unless otherwise
defined, capitalized terms in the First Addendum shall have the same meaning as
in the OEM Agreement.
A. Section 3 of the OEM Agreement labeled "Term" shall be deleted and replaced
in its entirety with the following:
This Agreement shall remain in effect until May 29, 2000, unless
terminated earlier in accordance with Section 14. The Agreement will renew
automatically for successive one (1) year terms unless written notice of
termination is received by either party at least one hundred and eighty
(180) days prior to the end of the then-current initial term or renewal
term.
B. Section 2 of Exhibit A of the OEM Agreement labeled "Limited Internal Use
Licenses" is amended to include the following:
Product Development Software
------- --------------------
Fee
---
One (1) copy of Verity Linguistic CD (Advanced Search) on NT Platform US$0.00
One (1) copy of Verity Key View Viewing SDK on NT Platform US$4,995
Advanced Search. The functionality of Advanced Search includes
clustering, summarization and query by example.
Upon the execution of this Addendum, Licensee shall pay to Verity the
amount of US$4995 for the Verity products stated above.
C. Section 3 of Exhibit A of the OEM Agreement labeled "Sublicense Fee" shall be
deleted in its entirety and replaced with the following:
Prepaid Sublicense Fees. Upon the execution of this Addendum, Licensee
shall pay to Verity a nonrefundable Sublicense Fee prepayment of $65,000
("Prepaid Sublicense Fees") against which Sublicense Fees (defined below)
subsequently incurred, due and owing to Verity shall apply until such prepaid
sublicense fee amount is exhausted. Upon termination or expiration of this
Agreement for any reason, all unrecouped Prepaid Sublicense Fees paid to Verity
shall be nonrefundable and nonrecoupable.
Sublicense Fees. The Sublicense Fee for distribution of the
Applications which is used internally by Licensee or any Reseller or
distributed to End Users shall be as follows:
Application Sublicense Fee
----------- --------------
SalesLogix (Basic Search) US$6.00 per User
SupportLogix (Basic Search) 3% of Net Revenues
Subject to a US$10.00 per
User minimum
Options to SupportLogix*
------------------------
Bundled with Web Self Help additional 1% of Net Revenues
Application Subject to a US$3.00 per
User Minimum
Bundled with Advanced Search additional 1% of Net Revenues
Subject to a US$3.00 per
User Minimum
Bundled with KeyView Viewing additional 2% of Net Revenues
Subject to a US$6.00 per
User Minimum
16
Web Self Help (as an additional and
separate module)
With Basic Search only* 3% of such module Net Revenues
With Advanced Search* 4% of such module Net Revenues
With KeyView Viewing* additional 2% to the Basic Search
or Advanced Search as Applicable
* The above stated Sublicense Fees shall apply only in the event the Run-Time
Software is included in such application.
"User" means an individual authorized by the licensee of the Application
to use or access the functionality of the Application, regardless of whether the
individual is actually using or accessing the Application at any given time.
"Net Revenues" means gross revenues accrued and/or paid to Licensee, less
applicable taxes, shipping and handling charges related to distribution or
licensing of the Application.
D. That portion of Exhibit A of the OEM Agreement labeled "Evaluation Copies"
shall be deleted and replaced in its entirety with the following:
"Notwithstanding Paragraph 2 above, Verity grants Licensee the right to provide
evaluation copies of the Application incorporating the Run-Time Software
("Evaluation Copies") to End Users. Each Evaluation Copy shall be limited to an
evaluation period of sixty (60) days from receipt by the End User, after which
such Evaluation Copy shall be automatically disabled by means of a time bomb
expiration mechanism. The End User shall be authorized to use the Evaluation
Copy solely for evaluating its applicability to its requirements and shall not
be for any commercial or private benefit use. Licensee may provide Evaluation
Copies only to End Users who have agreed to a written evaluation agreement
(either a signed agreement or in shrinkwrap form where an affirmative act of
consent is required) substantially similar to Verity's standard evaluation
agreement, a copy of which will be provided to Licensee upon request.
E. Section 4 of Exhibit A of the OEM Agreement labeled "Internal Support" shall
be amended to include the following:
The annual fee for internal support for each copy of the Software used by
Licensee shall be $1,495.00 per annum. Upon execution of this Addendum, Licensee
shall pay to Verity the amount of US$1,495 as first year internal support fee
for the Verity products stated in Paragraph B of this Addendum, above.
F. Exhibit A of the OEM Agreement is amended to include the following paragraph
regarding Consulting Services.
CONSULTING. The fees for any consulting services provided by Verity to
Licensee shall be paid in addition to any consideration paid pursuant to this
Agreement. During the initial term of the Agreement, all consulting shall be
done at the rate not to exceed Two Thousand Dollars (US$2,000.00) per day plus
travel and living expenses.
G. Exhibit C of the Agreement is hereby deleted and replaced in its entirety
with the following:
EXHIBIT C
OEM APPLICATION
Description of Application(s):
The Application shall consist solely of: (i) Licensee's software application
program developed for and/or by Licensee and in existence as of the Effective
Date, currently known as "SALESLOGIX", together with substantially similar
versions of such Application as enhanced to include upgrades, updates, bug fixes
and other error corrections made from time to time; (ii) Licensee's software
application program developed for and/or by Licensee and in existence as of the
Effective Date, currently known as "SUPPORTLOGIX", together with substantially
similar versions of such Application as enhanced to include upgrades, updates,
bug fixes and other error corrections made from time
17
to time; and (iii) Licensee's software application program developed for and/or
by Licensee and in existence as of the Effective Date, currently known as "WEB
SELF HELP", together with substantially similar versions of such Application as
enhanced to include upgrades, updates, bug fixes and other error corrections
made from time to time.
SALESLOGIX APPLICATION shall be limited to the Basic Search functionality.
Search is designed for files external to the SalesLogix database and blobs and
the memo field in the SalesLogix database. In the event of changes to the stated
search limitation, the parties shall negotiate a royalty structure in good
faith.
SUPPORTLOGIX APPLICATION shall include Advanced Search, KeyView viewing and
External Web Self Help functionality.
G. ENTIRE AGREEMENT. The OEM Agreement together with the Exhibits, and this
First Addendum replaces and supersedes all other agreements, written or oral
with respect to its subject matter. Except as expressly amended and supplemented
hereby, the OEM Agreement remains in full force and effect. In the event of any
conflict between the terms of this First Addendum and the terms of the OEM
Agreement, the terms of this First Addendum shall prevail.
The foregoing is agreed to be effective as of the last execution date below
("Addendum Effective Date").
VERITY, INC. SALESLOGIX CORPORATION
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------ ---------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------- --------------------------------
Title Vice President Administration & Title Vice President - Finance
Controller -------------------------------
--------------------------
Date: August 28, 1998 Date: August 28, 1998
---------------------------- --------------------------------