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Exhibit 10.1
AGREEMENT
Agreement made this 1st day of April 1998 by and between SPSS Inc. ("SPSS")
with offices at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 and XXXXXXXX-XXXX,
INC. ("PH") with offices at Xxx Xxxx Xxxxxx, Xxxxx Xxxxxx Xxxxx, XX 00000.
WHEREAS, SPSS has developed certain computer software which it desires to
modify and license to PH for purposes of distribution and marketing, and certain
books it would like PH to market and distribute; and
WHEREAS, PH desires to distribute and market such computer software and
books;
NOW THEREFORE, in consideration of the mutual premises and agreements
contained herein, it is hereby agreed as follows:
1. Definitions
1.1 "Agreement" shall mean this agreement, together with all
exhibits hereto, as each may be amended from time to time in
accordance with the terms hereof.
1.2 "Commercial SPSS Software" shall mean any version of any
software developed by or on behalf of SPSS during the term hereof
which is intended primarily for research and/or analysis in business,
government and academia.
1.3 "Contract Software" shall refer to the following software in
all formats, by all media, on all platforms and for all computer and
operating systems, now known or hereafter developed: (i) the software
developed by SPSS and listed on Exhibit A, (ii) all new SPSS
Educational Versions as defined below; and (iii) all Updates of the
foregoing.
1.4 "Designation" shall be defined as set forth in paragraph
4.3.
1.5 "Deliverables" shall mean the work product of the
development work to be performed by SPSS in connection with any new
SPSS Educational Version or Update which is to be delivered to PH
under the terms of this Agreement.
1.6 "Delivery Date" shall mean the dates that shall be mutually
agreed upon by the parties, by which each of the Contract Software is
to be delivered.
1.7 "Documentation" shall mean the manuals, works and
documentation which explains the operation of and provides support for
the use of the Contract Software and Other SPSS Software, in all
formats and media, now known or hereafter developed, and all revisions
and new editions thereof, as set forth in Exhibit C.
1.8 "Errors" shall be defined as set forth in paragraph
13.1(i).
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1.9 "Net Cash Received" shall mean sales of copies of the
Products invoiced to the customer, exclusive of taxes and shipping
charges, less actual returns and bad debt.
1.10 "Net Price" shall mean the price that PH charges to its
customer.
1.11 "New Products" shall mean new SPSS Educational Versions of
the Other SPSS Software, new Documentation and new Titles,
collectively.
1.12 "Other SPSS Integrated Version" shall mean any new SPSS
Educational Version combined with documentation, CD-ROM electronic
books referenced in exhibit G, and text-specific data relating to a
textbook(s) published by a publisher other than PH, and packaged with
that textbook, and without separate print documentation, Products or
Titles.
1.13 "Other SPSS Software" shall mean any existing SPSS
Commercial Software other than the Contract Software, and all new
Commercial SPSS software.
1.14 "Per Unit Cost" shall have the meaning set forth in
paragraph 9.2.
1.15 "PH/SPSS Integrated Version" shall mean any SPSS Educational
Version combined with text-specific data relating to PH textbook(s)
and documentation, and packaged with the PH textbook(s), and without
separate print documentation, Products or Titles.
1.16 "Products" shall refer to the Contract Software, the
Documentation and the Titles, collectively.
1.17 "Relationship Managers" shall mean the respective persons
appointed by each of the parties pursuant to paragraph 5.1 to serve as
representative of such party for the purpose of this Agreement.
1.18 "Secondary Schools" shall mean schools for students in the
7th through 12th grades the United States, and their equivalents in
other parts of the Territory.
1.19 "SPSS Educational Version" shall mean any version of any
English-language software developed by or on behalf of SPSS during the
term hereof which (i) constitutes an adaptation of English-language
Commercial SPSS Software; (ii) is intended primarily for use in an
undergraduate academic or instructional setting; and (iii) is for sale
to students, secondary schools or 2 or 4 year colleges for academic or
instructional use.
1.20 "SPSS Titles" shall mean all print materials listed on
Exhibit B and all other print materials prepared by SPSS during the
term of this Agreement, in all formats and media, now known or
hereafter developed, and all revisions and new editions thereof, other
than Documentation and SPSS promotional materials.
1.21 "Territory" shall mean the United States, Canada, Australia,
Austria, Germany, Holland, Hong Kong, Indonesia, Japan, Korea,
Malaysia, Singapore, Sweden, Taiwan, Thailand, and Vietnam.
1.22 "Updates" shall mean any revised version or new release of
the Contract Software which alters, modifies, enhances, improves,
corrects errors of or replaces or substitutes for such Contract
Software.
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2. Grant of Rights
2.1 SPSS grants to PH, during the term hereof, (i) the right and
license (exclusive except as stated in paragraph 2.2) to distribute
and fulfill orders for the Products, alone or in conjunction with
other products, through all channels of distribution now or hereafter
existing, for use in Secondary Schools and 2 and 4 year undergraduate
institutions, throughout the Territory; (ii) the non-exclusive right
and license, shared with SPSS, its subsidiaries and its appointed
software distributors, provided such subsidiaries and software
distributors are not substantially in the business of educational
publishing, to market and promote the Products for sale by PH
throughout the Territory; and (iii) subject to terms to be negotiated,
the exclusive option to distribute and fulfill orders for the PH/SPSS
Integrated Versions from Secondary Schools and 2 and 4 year
undergraduate institutions, throughout the Territory.
2.2 Notwithstanding paragraph 2.1(i), SPSS shall retain (i) the
non-exclusive right itself to distribute the Documentation and Titles
directly in any market; (ii) the non-exclusive right to distribute the
Documentation and Titles through local distributors in any portion of
the Territory outside the United States and Canada; (iii) the
non-exclusive right itself or through local distributors to distribute
the Contract Software in the Secondary Schools market worldwide; (iv)
the right to enter into agreements with any other party to produce,
market, sell, and/or distribute Other SPSS Integrated Versions
worldwide; and (v) the right to distribute the Products for internal
(SPSS) use and in connection with SPSS customer support. In addition,
in consideration of paragraph 18.1, Allyn & Bacon shall not have any
distribution rights under this Agreement.
2.3 PH shall have the non-exclusive right, but not the
obligation, to prepare, publish and distribute works about SPSS
software other than and in addition to the Titles ("Additional
Titles"), and SPSS agrees that PH shall have the non-exclusive right
to display SPSS Marks, alone or in conjunction with PH's Marks, on
such Additional Titles and in related advertising and promotional
materials, subject to paragraph 4.
3. New Product Development and Rights.
3.1 The parties agree that, during the term hereof, the
development of New Product shall be made in accordance with the
following procedures:
(a) SPSS shall notify PH in writing about any new
English-language Commercial SPSS Software, at or about
the time that such software is first shipped.
(b) At any time during the term hereof, PH or SPSS may
request in writing that the other party consider the
development of any New Product. If the other party
agrees, the parties will then negotiate in good faith
the terms under which SPSS will develop such New
Product, including, delineation of the deliverables,
any required testing, delivery dates and advances, if
any, to be paid as set forth in paragraph 11.2(a).
(c) Such New Product shall be subject to the terms and
conditions of this Agreement and shall thereafter be
included in the definition of "Products."
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3.2 During the term of this Agreement, in no event shall SPSS
have the right to distribute or fulfill orders for New Products or to
license such rights to others, except as specifically set forth in
paragraph 2.2 or solely to the extent that PH declines to distribute a
new SPSS Educational Software product in accordance with paragraph
11.3(b).
3.3 In the event that SPSS is acquired by or is merged or
consolidated into another corporation and SPSS is not a surviving
corporate entity, this Agreement shall continue in effect in
accordance with its terms following such acquisition, merger or
consolidation only with respect to (i) the Products as defined herein
as of the date immediately prior to the acquisition, merger or
consolidation, (ii) any Updates, and (iii) any New Products which are
based upon such Products.
3.4 SPSS shall not be in breach of this Agreement if SPSS become
a party to an agreement allowing a third party to sell new SPSS
Educational Versions as a result of an existing agreement acquired by
SPSS as a consequence of a merger, consolidation or acquisition of all
or substantially all of the stock or assets of another corporation,
provided that SPSS shall have no right to renew any such agreement
beyond its then current term.
4. Advertising of Product and Use of Trademarks
4.1 SPSS grants to PH, during the term hereof, all rights
necessary for the advertisement, promotion and distribution of the
Products, including, but not limited to, the right to use excerpts
from the Products and the right to use the trade names, trademarks,
trade dress, service marks and such other distinctive marks ("Marks")
of SPSS. SPSS shall have final approval of any use of SPSS Marks, and
any advertisements and promotional materials reflecting SPSS Marks.
SPSS approval shall not be unreasonably withheld or delayed.
4.2 SPSS shall have the right, during the term hereof, to
advertise, publicize and promote the fact that PH is the exclusive
distributor of the Products in the Territory. PH shall have final
approval of any use of any PH Marks and any advertisements and
promotional materials reflecting PH Marks. PH approval shall not be
unreasonably withheld or delayed.
4.3 The parties may agree to jointly develop a distinctive
designation combining the SPSS Marks and the PH Marks (the
"Designation") for display on the Products and in connection with the
advertising and promotion of the Products. Each party shall have the
right to approve the final design of the Designation and the use of
the Designation. Neither party shall make use of the Designation
except in connection with the Products. Each party's right to use the
Designation shall cease upon expiration of the Agreement, subject to
each party's right, as set forth herein, to distribute any inventory
in its possession.
4.4 The parties agree that approval may be assumed for any
advertisement, promotional piece or use of a Xxxx that is
substantially similar to one previously approved. Should a party
disapprove of an advertisement, promotional piece or use of a Xxxx,
such party shall promptly specify for the other party what changes are
to be made to secure approval, consistent with the intent of both
parties in entering this Agreement.
4.5 Nothing in this Agreement creates in PH or SPSS any rights to
the Marks of the other party, except as specifically set forth herein.
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5. Cooperation of Parties
5.1 Upon execution of this Agreement, PH and SPSS shall each
appoint one Relationship Manager and shall promptly notify the other
party in writing of the identity and location of such person and of
any changes if they occur.
5.2 PH and SPSS Relationship Managers shall be responsible for
the following activities:
(a) Representing PH and SPSS, respectively, in matters
relating to the performance of this Agreement,
including the periodic review of marketing plans for
the Products;
(b) Submitting and receiving the Deliverables and other
materials and documents to be delivered under this
Agreement;
(c) Proposing and developing any modifications to the
payment schedule;
(d) Proposing and developing any modifications to the
Products;
(e) Proposing and agreeing on specifications and
scheduling for creation of any New Products;
(f) Arranging any meeting to be held between the parties;
and
(g) Preparing and implementing market research studies if
such studies are deemed by PH and SPSS to be necessary,
provided however that each party may implement at its
own expense market research that is not agreed to by
the other party and the other party shall cooperate
with such research.
5.3 PH shall be entitled, but not obligated, to conduct periodic
on-site reviews, with reasonable notice and during normal business
hours, of SPSS's development of Educational or Integrated Versions of
any software produced by SPSS and the manufacturing of the Products.
PH agrees that it will coordinate the time for such on-site reviews
with SPSS.
6. Preparation of Software Deliverables
6.1 SPSS shall use all customary and commercially reasonable
efforts to develop functional specifications for any new software
Deliverables.
6.2 SPSS shall use all customary and commercially reasonable
efforts to create and deliver these Deliverables to PH's Relationship
Manager (or his or her designee) in accordance with the requirements
of this Agreement. SPSS's responsibilities shall include, without
limitation, designing packaging for the Products and, upon request by
PH, reviewing for accuracy any and all advertising, catalogs or other
promotional materials pertaining to the Products. Notwithstanding
anything set forth herein to the contrary, SPSS shall deliver the
final versions of all new SPSS Educational Versions and Updates by the
final Delivery Dates as agreed upon by the parties pursuant to
paragraphs 3.1(b) or 8.1, as applicable. In the event that SPSS fails
to do so, PH may exercise its rights under paragraphs 19.1 or 19.2, as
applicable.
6.3 PH and SPSS agree that each will act reasonably and in good
faith in connection with the preparation and acceptance of the
Deliverables as outlined in this paragraph 6.
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7. Production of Documentation and Titles
7.1. SPSS shall produce each SPSS Title as set forth in Exhibit B
and all Documentation as set forth on Exhibit C in accordance with the
print specifications set forth in Exhibit D. In the event any of the
Titles or Documentation has to be changed due to circumstances beyond
the control of SPSS, SPSS shall advise PH in writing and, in such
xxxxx, xxxxxx alternative Documentation and Title of equivalent
quality for approval by PH. In the event PH does not approve any
Documentation and Title, PH may exercise its rights pursuant to
paragraph 19.2 and produce the Documentation and Titles itself.
8. Preparation of Revisions of Product
8.1 In the event the parties determine that an Update or a
revision or enhancement of Documentation or a Title ("Revision") is
necessary to keep the Product competitive in the marketplace, the
parties will negotiate in good faith the terms for the specifications,
Deliverables, any testing, Product Advances, if any, as set forth in
paragraph 11.2, and the Delivery Dates. PH and SPSS will act
reasonably and in good faith in connection with the preparation and
approval of these Updates and Revisions. Such Updates and/or Revisions
shall thereafter be subject to the terms and conditions of this
Agreement and shall be included in the definition of "Contract
Software," "Documentation", and/or "Title", as applicable.
9. Ordering, Shipment and Distribution
9.1 PH agrees to submit written orders to SPSS for specified
quantities of the Products from time to time during the term of this
Agreement. Notwithstanding anything set forth herein to the contrary,
PH shall not be obligated to order or purchase any copies of the
Products.
9.2 SPSS shall provide PH with its forecast of the per unit price
to be paid by PH for the Products (the "Per Unit Cost") within seven
(7) working days of receipt of a PH order. Such Per Unit Cost shall be
no more than the per unit paper, printing and binding costs for the
Documentation and the Titles and the per unit cost for duplication of
the Contract Software. Within seven (7) working days of its receipt of
such forecast, PH will notify SPSS that SPSS should commence
fulfillment of the order as set forth herein or that PH is able to
secure the manufacture of the applicable Product at a Per Unit Cost
which is less than SPSS's forecast.
9.3 If PH is able to secure the manufacture of the applicable
Product on the same schedule as SPSS at a lower Per Unit Cost, SPSS
will have 14 working days to notify PH that SPSS will fulfill PH's
order at such lower Per Unit Cost. In such event, the quality of the
Products shall not vary from the Contract Software of the initial
order or the print specifications set forth in Exhibit D, as
applicable. If SPSS does not fulfill PH's order at the lower Per Unit
Cost, PH may exercise its rights pursuant to paragraph 19 and
manufacture the applicable Product itself.
9.4 If SPSS is to fulfill PH's order, SPSS shall do so within 45
working days of receipt of PH's order and shall furnish PH with the
following three sets of shipping documents in advance of shipping: the
original negotiable xxxx of lading, packing list and commercial
invoice per PH's shipping instructions. PH will pay SPSS the per unit
price within 45 working days after acceptance by PH of the delivered
Products.
9.5 Shipments by SPSS shall be F.O.B. destination and SPSS
assumes all risk of loss or damage to the Products until delivered to
PH. SPSS agrees to ship the Products in accordance with PH's
instructions and to be responsible for arranging freight and insurance
and shipping and handling. PH agrees to reimburse SPSS for the
freight, insurance and shipping and handling charges, provided that PH
first approves such charges. Products
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shall be shipped in saleable condition and copies received which
are not in saleable condition or which are returned to PH by the
end-user as defective shall at the option of SPSS, be returned to SPSS
at SPSS's expense or destroyed by PH at SPSS's expense.
9.6 SPSS agrees to place on all copies of the Products delivered
to PH an ISBN and bar code as directed by PH and to supply such other
product identification codes as PH shall reasonably request.
9.7 SPSS agrees to promptly turn over to PH all orders for the
Products, except as set forth in paragraph 2.2, for fulfillment by PH
and to inform all customers of PH's exclusive distributorship.
9.8 Except as set forth in paragraph 4.4, all matters pertaining
to pricing, discounts, marketing and selling of the Products shall be
determined by PH.
10. PH Distribution and Promotion
10.1 PH agrees:
(a) to use customary and reasonable efforts to promote
sales of the Products, including preparing and producing all
advertising copy, catalogs and other promotional materials deemed
necessary by PH,
(b) to fulfill orders received for the Products.
(c) to encourage authors of works on statistics or other
subjects directly related to SPSS products who have entered into
agreements with PH to refer to or describe SPSS products, including
the Contract Software, within such works when appropriate.
(d) that SPSS may purchase copies of the Documentation,
Titles and/or other PH titles in accordance with PH's standard
discount policies for distribution to fulfill orders that may be
received by SPSS during the performance of customer service.
(e) to maintain sufficient inventory of the Products to
fulfill the demand for the Products.
(f) to provide SPSS with monthly statements describing the
sales of the Products, by the fifteenth working day of the following
month.
(g) to allow SPSS to attend and participate in PH meetings,
such as sales meetings, as may be reasonably requested by SPSS.
(h) to encourage PH editors to contract with SPSS to do
"PH/SPSS Integrated Versions."
11. Compensation
11.1 As full consideration for all rights and licenses granted or
relinquished hereunder and the initial and ongoing services to be
provided by SPSS, PH agrees to pay to SPSS:
(a) A royalty of 25% on sales of each of the Contract
Software based on the net cash received by PH from sales of the
Contract Software in the United States and Canada.
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(b) A royalty of 30% on sales of each of the Titles based on the
net cash received by PH from the sales of each Title in the United States
and Canada..
(c) A royalty of 35% on sales of the Documentation based on the
net cash received by PH from the sales of Documentation in the United
States and Canada.
(d) A royalty of 17.5% for sales of the Contract Software,
Titles and Documentation outside the United States and Canada.
If PH packages or sells Products together with other products ( a "Package"
or "Value Pack"), the net price of such Product for the purpose of
calculating royalty payment will be an amount equal to the Product's net
price divided by the sum of the net prices of each individual product in
the Package, multiplied by the net price of the Package.
No royalty shall be paid on copies of the Product (i) destroyed or returned
to SPSS pursuant to paragraph 12 or (ii) on copies given away gratis to
instructors for review or promotional purposes.
11.2 (a) PH agrees to pay to SPSS an advance against royalties for
each new SPSS Educational Version or Update ("Advance") equal to 50% of the
expected first year royalty which shall have been mutually agreed upon by
the parties for the new SPSS Educational Version or Update at issue,
payable as follows:
(i) one-half, upon SPSS's commencement of the development of
the new SPSS Educational Version or Update; and
(ii) one-half, within 30 days after the initial date of PH's
distribution of such new SPSS Educational Version or Update.
(b) Notwithstanding anything set forth in paragraph 11.2 (a) to
the contrary, if SPSS does not deliver by the final Delivery Dates agreed
upon by the parties pursuant to paragraphs 3.1(b) or 8.1, as applicable,
(i) final operational new SPSS Educational Versions or Updates which
substantially conform to the specifications to be agreed to by the parties
and/or (ii) related Documentation which is materially accurate, PH shall
have the right to reduce the Advance by 50%. Furthermore, in the event that
SPSS fails to deliver final versions of such new SPSS Educational Versions
or Updates within one year from the final agreed Delivery Date and the
first portion of the Advance has been paid as set forth in paragraph
11.2(a)(i), PH may notify SPSS in writing that it will no longer accept
delivery of such new SPSS Educational Version or Update, and PH shall have
the right to recover any Advance made to SPSS in connection with such new
SPSS Educational Version or Update from any amounts otherwise due to SPSS
hereunder. PH agrees that, if sales of a new SPSS Educational Version or
Update or any other Product do not enable PH to recover the Advance for
such new SPSS Educational Version or Update, SPSS will have no obligation
to repay PH the uncovered portion of such Advance. Nothing set forth in
this paragraph 11.2(b) shall be deemed to be or construed as a waiver of
any other rights or remedies that PH may have under this Agreement or at
law or in equity.
11.3 (a) In the event that PH requests that SPSS develop an Update,
PH shall notify SPSS, and provide an estimate of the Advance. If in the
good faith judgment of SPSS, the development costs for such Update would be
more than double the amount of the Advance, SPSS shall have the absolute
right to decline to do the Update upon notice to PH in writing. If for any
other reason, SPSS does not believe that such development is commercially
reasonable, SPSS shall notify PH thereof, in writing, specifying the
reasons for such determination. In the latter case, if, PH still desires
SPSS to commence development of such Update, PH will notify SPSS thereof,
in writing, in which event, the parties shall comply with the procedures
set forth in paragraphs 3 or 8 and
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11.2, as applicable, except that the Advance will be multiplied by two
and SPSS shall receive royalties as set forth in paragraph 11.1. PH agrees
that, if its sales of such Update do not enable PH to recover the Advance
for such Update, SPSS will have no obligation to repay PH the unrecovered
portion of such Advance.
(b) In the event that SPSS wishes to develop a new SPSS Educational
Version or Update and PH does not believe that the development and/or
distribution of such new SPSS Educational Version or Update is commercially
reasonable, PH shall notify SPSS in writing, specifying the reasons for
such determination. If, notwithstanding PH's opinion, SPSS desires to
commence development of such new SPSS Educational Version or Update, SPSS
will notify PH in writing. At such time, PH will notify SPSS, in writing,
either that it wishes to comply with the procedures set forth in paragraphs
3 or 8 and 11.2, as applicable, or that it will not pay an Advance for such
new SPSS Educational Version or Update. If PH notifies SPSS that it will
not pay an Advance, SPSS may offer a third party the right to develop and
distribute such new SPSS Educational Version or Update, provided that PH
shall have the right of last refusal to match any terms offered by the
third party. If SPSS and the third party enter into an agreement, such new
SPSS Educational Version or Update shall not be included in the definition
of "Contract Software" and SPSS shall not use the Designation (as defined
in paragraph 4.3) in connection with such new SPSS Educational Version or
Update.
11.4 PH will report on the sale of the Products by March 31 and
September 30 of each year ("Reporting Dates") for the six month period
ending the prior December 31 and June 30, respectively. With each
report of sales, PH will make settlement for any balance shown to be
due less a reasonable reserve for returns.
11.5 Except as limited in paragraph 11.3(a), all Advances paid
to SPSS hereunder shall be recoupable from royalties otherwise payable
pursuant to paragraph 11.1 and 11.3. In the event that, as of any
Reporting Date, the total royalties earned on the sale of the Products
("Earned Royalties") do not exceed the aggregate amount of the advance
payments made to SPSS hereunder (other than any Advance pursuant to
paragraph 11.3(a)) ("Aggregate Advance"), PH shall be entitled to
reduce any future advance payments by the amount that the Aggregate
Advance exceeds the Earned Royalties.
11.6 The parties agree that, during the term hereof, at the
expiration of each Fiscal Year (January 1 through December 31), PH
will provide SPSS with a report setting forth (i) PH's total Per Unit
Costs (as defined in paragraph 9.2) for the Products sold by PH during
such Fiscal Year ("Fiscal Unit Costs") and (ii) PH's total Net Cash
Received for the Products sold, during such fiscal year ("Fiscal Net
Sales"). If the Fiscal Unit Costs total less than 19% of the Fiscal
Net Sales ("Budget Costs"), PH will pay SPSS one-half of the
difference between the Budget Costs and Fiscal Unit Costs. If the
Fiscal Unit Costs total more than the Budget Costs, SPSS will pay PH
one-half of the difference between the Budget Costs and Fiscal Unit
Costs. Any payments due under this paragraph 11.6 will be made within
60 days of the end of each Fiscal Year and will be considered separate
from any royalty payments made under this Agreement.
11.7 PH will maintain relevant records with respect to any
royalty report or statement provided to SPSS under the Agreement for a
two year period from the date of the statement. SPSS may, at SPSS's
expense, during normal business hours and upon reasonable notice not
more frequently than once each year, on its own or using a competent
professional representative, examine the relevant records pertaining
to the statement for the purpose of verifying its accuracy. SPSS
agrees to keep confidential all information relating to the business
affairs of PH and to impose such obligation on his/her
representatives. Royalty statements will be final and binding upon
SPSS after two years. In the event any underpayment or overpayment is
discovered, PH shall promptly pay any underpayment and SPSS shall
repay any overpayment or allow PH to take a credit for such
overpayment.
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12. Discontinue Distribution
If PH decides that the public demand for any Product no longer
warrants its continued marketing and distribution, PH will notify SPSS thereof,
whereupon, SPSS may request that PH return any remaining inventory of such
Product to SPSS for distribution by SPSS, and PH will do so, provided that SPSS
(i) pays for all freight and insurance expenses and shipping and handling
charges in connection therewith, (ii) gives PH a full refund at the per unit
price for such inventory. If SPSS does not purchase such inventory from PH
within 15 days of PH's notification, PH may either destroy or sell it, as PH
deems appropriate, provided however that any buyer shall be bound by the terms
set forth in this Agreement, and that if PH sells the inventory, royalties will
be paid to SPSS pursuant to paragraph 11.
13. Representations and Warranties
13.1 SPSS represents and warrants that:
(a) It has full power and authority to grant the rights granted
hereunder;
(b) It is financially sound and technically competent to perform its
obligations hereunder, and agrees that any change in such status shall be
immediately communicated in writing to PH;
(c) It shall develop the Contract Software in accordance with
customary professional standards applicable to the development of software.
(d) The development, preparation and manufacture of the Products
shall be in accordance with and shall not violate applicable federal, state
and local laws, rules and regulations and that SPSS shall obtain all
permits or permissions required to be in compliance therewith;
(e) No licenses, grant of rights or permissions other than as set
forth herein is required for PH to exercise all rights granted hereunder;
(f) Except to the extent developed by PH or its employees, the
Deliverables and all portions thereof shall be developed by SPSS employees
or by consultants who have executed enforceable non-disclosure and "work
made for hire" agreements with SPSS. SPSS shall at all times remain
responsible for the Deliverables and the final Products and for all
obligations, warranties and indemnities of SPSS pursuant to this Agreement.
(g) Neither the Deliverables nor the Products nor their content,
promotion, advertisement, sale, distribution, disposition or use by
end-users will infringe or violate any copyright, patent, trade secret,
trademark, right of publicity or privacy or other personal or proprietary
right of any third party or contain any defamatory, libelous or obscene
materials or any matter injurious to man or machine. SPSS represents that,
during the term of this Agreement, it will do all things necessary to
maintain its copyright protection in the Products;
(h) The performance of the terms of this Agreement and of SPSS's
obligations hereunder shall not breach any separate agreement by which SPSS
is bound; and
(i) During the term hereof, the Contract Software will be
substantially free of errors that interfere with its use under normal use
and conditions, and the Documentation and Titles will not contain
substantially inaccurate information that interferes with its use
(collectively, and respectively, "Errors"). (a) If PH determines that the
Contract Software or Documentation or Titles contain any such Error, it
shall promptly send a written notice to SPSS describing the Error (and, in
the case of the Contract Software) the
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conditions under which the Error arose. SPSS shall promptly test
the Contract Software and review the Documentation or Title. (b) If
the Error is in the Contract Software, SPSS will promptly inform PH of
its classification of the severity of the error, using the same
process and scale as it does for its Commercial SPSS software and what
action SPSS considers to be commercially reasonable to address the
Error based on that classification. SPSS may elect to correct the
Error immediately, provide a workaround for the Error, correct the
Error in a future version, or whatever else it deems commercially
reasonable, including not addressing the Error. If PH finds SPSS'
actions to be insufficient, PH, at its option and expense, may
exercise its rights under paragraph 19 and take such corrective steps
as it deems necessary. (c) If the Error is in the Documentation or
Title, SPSS will promptly inform PH of what SPSS considers to be
commercially reasonable to address the Error. SPSS may elect to
correct the Error immediately, correct the Error in a future edition,
or whatever else it deems commercially reasonable. If PH finds SPSS'
actions to be insufficient, PH, at its option and expense, may
exercise its rights under paragraph 19 and take such corrective steps
as it deems necessary. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE
WARRANTIES SET FORTH IN THIS SUB-PARAGRAPH 13(i) ARE EXCLUSIVE AND IN
LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE
CONTRACT SOFTWARE. SPSS MAKES NO OTHER WARRANTIES WITH RESPECT TO THE
PERFORMANCE OF THE CONTRACT SOFTWARE, INCLUDING BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WHICH ARE SPECIFICALLY EXCLUDED.
13.2 SPSS shall provide PH with complete, packaged Contract
Software with documentation containing licenses, all warranties,
disclosures and representations concerning the Contract Software and
its use, and such licenses, warranties, disclosures and
representations of SPSS will be extended to the end user. PH has no
authority, express or implied, to make any representations,
warranties, or disclosures to customers or users concerning the
Contract Software or their use beyond that information and
documentation which is provided by SPSS.
13.3 PH represents and warrants that:
(a) It possesses full power and authority to enter into
this Agreement and to fulfill its obligations hereunder;
(b) It is financially sound and competent to perform its
obligations hereunder, and agrees that any change in such status shall be
immediately communicated in writing to SPSS;
(c) The performance of the terms of this Agreement and of
PH's obligations hereunder shall not breach any separate agreement by which PH
is bound;
(d) Its marketing and distribution of the Products shall be
in accordance with and shall not violate applicable federal, state and local
laws, rules and regulations;
(e) All contributions of PH to the Deliverables which do
not originate with SPSS, shall not infringe intellectual property rights of
third parties.
14. Maintenance and Support and Training
14.1 SPSS shall provide technical support to the instructors
adopting the Contract Software, via telephone, during SPSS's normal
business hours, Monday through Friday, except official holidays. SPSS
shall provide PH with an example of a document informing the
instructors that such support is available and PH will
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distribute copies of such document to such instructors. PH shall not be
required or obligated to provide support or maintenance to end-users of the
Software but may do so if the technical support provided by SPSS is not
satisfactory.
14.2 At PH's request, SPSS will provide, free of charge, to PH such
reasonable number of hours of support and technical training relating to
the use and operation of the Contract Software as PH deems reasonably
necessary to effectuate the purpose of this Agreement.
15. Term/Termination
15.1 This Agreement shall become effective as of the date hereof and
extend for a period of five (5) years unless terminated sooner as set forth
in paragraph 15.5 or extended as set forth in paragraphs 15.2 or 15.4.
15.2 PH shall have the option to renew this Agreement for an
additional five (5) year term ("Renewal Term") upon written notice to SPSS
in the event that royalties earned in connection with the sale of the
Products total at least $2,750,000 (inclusive) at the date of expiration of
the Term or PH agrees to tender the difference.
15.3 If aggregate royalties paid to SPSS for sales of the Products
have reached $1,100,000 by the conclusion of the second year of this
Agreement, all rights set forth in paragraph 2 shall remain in effect for
the full term of the Agreement. If PH fails to pay such royalties by the
conclusion of the second year of the Agreement, PH's right to distribute
and fulfill orders for the Titles and Documentation shall continue as set
forth in paragraph 2, but PH's right to distribute and fulfill orders for
the SPSS Educational Versions shall become non-exclusive for the balance of
the Term, provided that SPSS:
a) notifies PH in writing, at least 30 days in advance, of its
intention to exercise its rights under this provision;
b) repays to PH all outstanding unearned Advances;
c) agrees to allow PH to return inventory of SPSS Educational
Versions in excess of a 1 year supply (as determined by PH's
prior year's sales); and
d) agrees to offer PH equivalent or substantially similar terms
(royalty percentage and Advances) to those SPSS offers any
other party distributing or fulfilling orders for SPSS
Educational Versions.
15.4 In the event that PH fails to recover all Advance payments made
to SPSS hereunder (other than Advances made pursuant to paragraph 11.3(a)
from royalties otherwise payable to SPSS hereunder as of the date of
expiration of the Agreement, the Initial Term shall be automatically
extended for an additional nine (9) month period, except that PH's right to
distribute and fulfill orders for the Products will be non-exclusive. PH
shall have no obligation to pay additional advances in connection with such
extension.
15.5 This Agreement may be terminated immediately by a party upon
written notice to the other under any of the following conditions:
(a) if the other party shall be declared insolvent or bankrupt;
(b) if a petition is filed in any court and not dismissed in
ninety (90) days to declare the other party bankrupt or for
a reorganization under the Bankruptcy Law or any similar
statute;
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13
(c) if a Trustee in Bankruptcy or a Receiver or similar
entity is appointed for the other party; or
(d) if the other party is in breach of a material term or
condition of this Agreement and fails to cure such breach
within 30 days of receipt of notice of such breach.
15.6 Upon expiration or termination of this Agreement in accordance
with the terms hereof, PH shall have the non-exclusive right to market and
distribute its inventory of the Products, subject to any royalty
obligations as set forth herein. Notwithstanding the foregoing, SPSS shall
have the right to request that PH return such inventory to SPSS, provided
that SPSS (i) pays for all freight and insurance expenses and shipping and
handling charges in connection therewith, and (ii) gives PH a full refund
at the Per Unit Cost for such inventory. In the event of return to SPSS, no
royalties shall be due SPSS, and PH shall have no further rights to market
and distribute the Products. The parties agree to continue their
cooperation in order to effect an orderly termination of their
relationship.
16. Indemnification
16.1 SPSS shall indemnify, defend and hold harmless PH against all
claims, demands, suits, liabilities, losses, damages, judgments,
settlements, costs and expenses, including attorneys' fees and court costs,
that PH may sustain or incur by reason of any breach or alleged breach of
any representation, warranty or covenant contained in this Agreement or as
a result of, in connection with or arising out of the end-users' use of the
Products, including, without limitation, as a result of, in connection with
or arising out of any error, failure, defect or other fault of the
Products, except to the extent that SPSS did not create, through its
actions or omissions, such error, failure, defect or fault. In the event
that SPSS does not repay PH the damages, costs or expenses incurred by PH
hereunder in a timely manner, PH shall have the right to withhold sums
otherwise due to SPSS under this Agreement.
16.2 If, in response to a notice of claim or a threat of suit for
infringement or violation of any copyright, patent or other intellectual
property right, SPSS prepares a non-infringing version of the Commercial
SPSS Software or procures the right to continue to reproduce, use or
distribute the intellectual property at issue in connection with the
Commercial SPSS Software, SPSS agrees to take the same corrective measures
in connection with the corresponding SPSS Educational Version.
16.3 PH shall indemnify, defend and hold harmless SPSS against all
claims, demands, suits, liabilities, losses, damages, judgments,
settlements, costs and expenses, including attorneys' fees and court costs,
that SPSS may sustain or incur by reason of any breach or alleged breach of
any representation, warranty or covenant made by PH hereunder.
16.4 If a claim, suit, proceeding, action or demand (hereinafter
referred to as "Claim") is made against a party indemnified pursuant to
this paragraph 16 ("Indemnitee"), the Indemnitee will promptly notify the
other party ("Indemnitor") of such Claim. Indemnitor may elect to undertake
the defense of such Claim, with legal counsel approved by Indemnitee (which
approval shall not be unreasonably withheld), provided, however, that
Indemnitor shall not be entitled to assume the defense on Indemnitee's
behalf for any Claim which seeks an order, injunction, or other equitable
relief against Indemnitee. Should such a Claim be brought, Indemnitee shall
have the right to assume and control the defense of such Claim, at
Indemnitor's expense. Should Indemnitor elect to assume the defense of a
Claim pursuant to the provisions of this paragraph and legal defenses are
available to Indemnitee which are different from or in addition to those
available to Indemnitor, or a conflict exists which precludes
representation of Indemnitee and Indemnitor by the same counsel, Indemnitee
may retain counsel to act as co-counsel on behalf of Indemnitee, at the
expense of Indemnitor. In the event that Indemnitor desires to settle
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14
any Claim that it is defending, Indemnitee shall have the right to
approve any settlement providing for any relief other than the payment
of money; which approval shall not be unreasonably withheld.
16.5 The parties agree that the party controlling the defense of
a Claim shall have the reasonable cooperation and assistance of the
other party in the defense of such Claim.
17. Confidentiality
17.1 Each party hereto (the "Disclosing Party") may disclose to
the other ("Recipient") Confidential Information to further the
performance of this Agreement. Confidential Information includes, but
is not limited to, technical and business information relating to
Disclosing Party's products, research and development, production,
costs, engineering processes, profit or margin information, finances,
customers, marketing and future business plans. Confidential
Information also may include proprietary or confidential information
of another party that Disclosing Party is under an obligation to keep
confidential. All Confidential Information shall remain the sole
property of Disclosing Party and Recipient shall have no rights to the
Confidential Information, except as set forth herein. Recipient agrees
that it shall hold the Confidential Information in strict confidence.
Recipient further agrees that it shall not make any disclosure of the
Confidential Information (including methods or concepts utilized in
the Confidential Information) to anyone without the express written
consent of Disclosing Party, except to employees, consultants or
agents to whom disclosure is necessary to the performance of this
Agreement. Recipient shall take all reasonable steps to ensure the
confidentiality of all Confidential Information.
17.2 After expiration or termination of this Agreement, upon
request, Recipient shall promptly return all originals and copies
thereof of any requested Confidential Information disclosed by
Disclosing Party which has been fixed in any tangible means of
expression. Notwithstanding the foregoing, PH shall have no obligation
to turn over any information or items that it needs to exercise its
rights hereunder, including, without limitation, paragraphs 15.6 and
19.
17.3 Notwithstanding the provisions of this Agreement, nothing
received by Recipient shall be considered to be Confidential
Information if: (i) it has been published or is otherwise readily
available to the public other than by breach of this Agreement; (ii)
it has been rightfully received by Recipient from a third party
without Confidentiality limitations; (iii) it was known to or
rightfully in the possession of Recipient at the time of disclosure;
(iv) it has been intentionally disclosed by Disclosing Party to a
third party without restriction on disclosure; or (v) it is required
to be disclosed by law or court order, provided that prior written
notice of such required disclosure and a reasonable opportunity to
oppose or limit disclosure is given to Disclosing Party.
18. Exclusive Product
PH agrees that, as of the date hereof and for the Term hereof:
18.1 The Simon & Xxxxxxxx Higher Education Division (which shall
include all the college divisions of Xxxxxxxx-Xxxx, Inc., but
excluding Allyn & Bacon and its operating divisions ) will refrain
from entering into agreements with SPSS competitors listed in Exhibit
F ("SPSS Competitors") for the distribution of educational versions of
software that compete with the Contract Software, such software being
also listed in Exhibit F. Exhibit F may be amended by mutual consent
of the parties in response to changes in industry conditions, which
consent shall not be unreasonably withheld.
18.2 Notwithstanding the foregoing, the Simon & Xxxxxxxx Higher
Education Division may enter into agreements with SPSS Competitors or
any other party to produce Integrated Versions of SPSS Competitors'
products. As used in this Agreement, "Integrated Versions of SPSS
Competitors' Products" shall mean
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15
any new educational version of an SPSS Competitor's product combined
with documentation, CD-ROM electronic books of such products, and
text-specific data relating to a textbook(s) published by PH, and
packaged with that textbook, and without separate print documentation,
Competitors' products or titles.
18.3 PH shall not be in breach of paragraph 18.1 if the Simon &
Xxxxxxxx Higher Education Division or its divisions become a party to
and fulfills the terms of such an agreement as a consequence of the
acquisition of the Simon & Xxxxxxxx Higher Education Division, or a
merger, consolidation or acquisition of all or substantially all of
the stock or assets of another corporation ("Acquisition").
18.4 If PH acquires all or substantially all of the stock or
assets of, or merges with, an SPSS Competitor during the Initial Term,
it will notify SPSS thereof. In such event, SPSS has the option to
terminate PH's right to renew this Agreement as set forth in paragraph
15.2 upon written notification to PH at least 90 days prior to the
expiration of the Initial Term.
19. Escrow/SPSS Breach
In the event that (i) SPSS is in material breach of any term,
provision or condition of this Agreement; (ii) SPSS ceases to exist, to function
as a going concern, or to conduct its operations in the normal course of
business; (iii) SPSS is declared insolvent or bankrupt or makes an assignment
for the benefit of its creditors; (iv) a petition is filed in any court and not
dismissed in ninety days to declare SPSS bankrupt for a reorganization under
Bankruptcy Law or any similar statute; (v) a Trustee in bankruptcy or a receiver
or similar entity is appointed for SPSS; or (vi) in the circumstances set forth
in paragraphs 6.2, 7.1, 9.3, 13.1(i) or 17.2:
19.1 PH shall be given access to copies of the full proprietary
source language statements of the most recent versions of the Contract
Software and related documentation (hereinafter "Source Code Package")
in accordance with the terms set forth in an agreement substantially
similar to the Escrow Agreement annexed hereto as Exhibit E which
shall be executed by SPSS, PH and the escrow agent simultaneous with
or immediately following the execution of this Agreement. PH shall
have the right to use such Source Code Package to reproduce, duplicate
and manufacture copies of the Contract Software, at its expense, and
to exercise all rights granted hereunder with respect to the Contract
Software in accordance with the terms set forth herein. In cases where
PH has access to the Source Code Package as a result of a material
breach by SPSS, PH agrees to use such Source Code Package only to the
extent necessary to perform the obligation that SPSS has breached.
(a) Upon execution of this Agreement, such Source Code Package shall
be deposited with the escrow agent pursuant to the Escrow Agreement and
maintained, during the term hereof, in a form sufficient to permit a data
processing professional familiar with such software to create an executable
copy of such Contract Software. Such Source Code Package shall include
precise identification of all compilers, library packages, utilities and
linkers necessary to generate executable code.
(b) When and if, during the term of this Agreement, SPSS provides PH
with new SPSS Educational Versions of Other SPSS Software, or Updates, as
the case may be, then within 10 days of acceptance of such software by PH,
SPSS shall deposit a Source Code Package for such software and give notice
of such delivery.
(c) All fees and expenses charged by the escrow agent shall be borne
as set forth in Exhibit E.
19.2 PH shall have the right to print copies of the
Documentation and the Titles, at its expense, and to exercise all
rights granted hereunder with respect to the Documentation and the
Titles in accordance with the terms set forth herein. Upon PH's
request and at its expense, SPSS shall deliver the film of the
Documentation
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16
and the Titles to PH. If SPSS fails to do so, PH shall have the
right to have such film produced at PH's expense. Notwithstanding
anything contained herein to the contrary, SPSS shall retain copyright
ownership rights to the Documentation and Titles, subject to PH's
rights under this Agreement.
19.3 PH may exercise all rights under this paragraph 19 without
any liability to SPSS except for any royalty payments that may be due
as set forth herein.
19.4 Nothing set forth in this paragraph 19 shall be deemed to
be or construed as a waiver of any other rights or remedies that PH
may have under this Agreement or at law or in equity.
20. General
20.1 Except as set forth in paragraph 16, each party waives any
right it may have to special, consequential or incidental damages,
including lost profits, even if such party provides advance notice of
the possibility of such damages.
20.2 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND FULLY PERFORMED THEREIN. Exclusive jurisdiction for
all suits, proceedings, disputes, controversy or claim arising out of,
in connection with, or in relation to this Agreement, or the breach
thereof, shall be only in the appropriate state court located in New
York County or the federal court sitting in the Southern District of
New York.
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20.3 This Agreement, the Exhibits annexed hereto, and the Source
Code Escrow Agreement, constitute the entire agreement between the
parties with respect to the subject matter hereof and supersedes all
previous proposals, negotiations, representations, commitments,
writings and all other communications between the parties, both oral
and written. This Agreement may not be released, discharged, changed
or modified except by an instrument in writing signed by a duly
authorized officer of each of the parties. The terms of this Agreement
shall prevail in the event that there shall be any variance with the
terms and conditions of any invoice or other such document submitted
by SPSS or any purchase order or any other such document submitted by
PH. This Agreement shall not be valid until signed and accepted by
both parties and no change, termination or attempted waiver of any of
the provisions hereof shall be binding unless in writing and signed by
the party against whom the same is sought to be enforced.
20.4 It is expressly agreed that under no circumstances shall
this Agreement create any actual or apparent authority, partnership or
relationship of employer and employee between the parties. This
Agreement shall not be construed as authority for either party to act
for the other party or to make commitments of any kind for the
accounts of, or on behalf of, the other party, except to the extent,
and for the purposes, expressly provided for and set forth herein.
20.5 All notices contemplated or required hereunder shall be
given in writing and shall become effective on the date actually
delivered by hand and received by recipient, five days after being
mailed by certified or registered mail, postage prepaid, return
receipt requested, or one day after being sent by overnight courier
services, freight prepaid:
To PH: Xxxxxxxx-Xxxx, Inc.
Xxx Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxxx, XX 00000
Attention: President, PH College,
Engineering Science & Math
With a copy to: Simon & Xxxxxxxx
Legal Department
Xxx Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxxx, XX 00000
Attention: Vice President and Deputy General Counsel
To SPSS: SPSS Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Hamburg
Chief Financial Officer
and Executive Vice President
20.6 This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and
assigns.
20.7 If any provision of this Agreement is determined by a court
of competent jurisdiction to be invalid or unenforceable, such
determination shall not affect the validity or enforceability of any
other part or provision of this Agreement.
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20.8 No waiver by any party of any breach of any provision
hereof shall constitute a waiver of any other breach of that or any
other provision hereof.
20.9 Nothing contained herein can be deemed or construed to
limit PH's discretion in the operation of any part or aspect of its
business, except as set forth herein.
20.10 All remedies, rights and obligations contained in this
Agreement shall be cumulative and none of them shall limit or preclude
any remedy or right available under this Agreement or at law or in
equity.
20.11 Following the expiration or termination of this Agreement,
whether by its terms, operation of law or otherwise, the terms,
provisions and conditions set forth in paragraphs 13, 14, 15.6, 16,
17, and 20 as well as any term, provision or condition required for
the interpretation of this Agreement or necessary for the full
observation and performance by each party hereto of all rights and
obligations arising prior to the date of expiration or termination
shall survive such expiration or termination.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by a duly authorized officer as of the date set forth above.
SPSS INC.
By: /s/ Xxxx Xxxxxxxxx
--------------------
Title: Executive Vice President
-------------------------
XXXXXXXX-XXXX, INC.
By: /s/ Xxxxxx Xxxxx
------------------
Title: Editor-in-Chief
----------------
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EXHIBIT A
Contract Software S/034
SPSS/PC+ Studentware Plus 0-13-178021-2
SPSS 6.1 for Windows Student Version 0-13-486077-2
SPSS 6.1 for Windows for the Business Student 0-13-486085-3
SPSS 6.1 for the Macintosh Student Version 0-13-350091-8
SPSS 7.5 for Windows Student Version, CD ROM 0-13-631680-8
SPSS 7.5 for Windows Student Version, 3.5" disks 0-13-656919-6
SPSS 8.0 for Windows Student Version 0-13-687377-4
SYSTAT 6.0 for Windows Student Version 0-13-659970-2
SYSTAT 8.0 for Windows Student Version
-------------
27
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EXHIBIT B
TITLES S/028
SPSS Guide to Data Analysis of SPSS/PC+, 2/e 0-13-178443-9
SPSS Guide to Data Analysis Version 4.0 0-13-178096-4
SPSS 6.1 Guide to Data Analysis 0-13-437054-6
SPSS 6.1 for Windows Brief Guide 0-13-455677-1
SPSS 7.5 Guide to Data Analysis 0-13-656877-7
SPSS 7.5 for Windows Brief Guide 0-13-656885-8
SPSS 8.0 Guide to Data Analysis 0-13-687484-3
SPSS 8.0 for Windows Brief Guide 0-13-687914-4
SYSTAT 6.0 for Windows Brief Guide, 0-13-618885-0
Introductory Statistics with SYSTAT 0-13-903329-7
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EXHIBIT C
DOCUMENTATION S/070
SPSS Reference Guide Version 4.0 0-13-177858-7
SPSS Base System User's Guide 4.0 0-13-177866-8
SPSS Advanced Statistics User's Guide 0-13-177940-0
SPSS/PC+ Base System User's Guide Version 5.0 0-13-177692-4
SPSS/PC+ Professional Statistics Version 5.0 0-13-177700-9
SPSS/PC+ Advanced Statistics Version 5.0 0-13-177718-1
SPSS for Windows Base System User's Guide Release 6.0 0-13-178856-6
SPSS 6.1 Base System User's Guide, Part 1, UNIX Version 0-13-459651-0
SPSS 6.1 Base System User's Guide, Open VMS Version 0-13-462441-6
SPSS 6.1 Base System User's Guide, Part 1, Mac Version 0-13-438862-3
SPSS 6.1 Base System User's Guide, Part 2 0-13-438870-4
SPSS Professional Statistics 6.1 0-13-190125-7
SPSS Advanced Statistics 6.1 0-13-200065-2
SPSS 6.1 Base System Syntax Reference Guide 0-13-438250-1
SPSS 6.1 for Windows Update 0-13-182338-8
SPSS Base 7.0 for Windows User's Guide 0-13-476300-9
SPSS Base 7.0 Applications Guide 0-13-476318-1
SPSS Base 7.0 Syntax Reference Guide 0-13-476326-2
SPSS Advanced Statistics 7.0 Update 0-13-476334-3
SPSS Base 7.5 Applications Guide 0-13-656992-7
SPSS Professional Statistics 7.5 0-13-656935-8
SPSS Advanced Statistics 7.5 0-13-656927-7
SPSS Base 7.5 User's Guide 0-13-657214-6
SPSS Base 7.5 Syntax Reference Guide 0-13-656943-9
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EXHIBIT C Continued
SPSS Base 8.0 Graphics 0-13-095891-3
SPSS Base 8.0 User's Guide 0-13-688590-X
SPSS Base 8.0 Syntax Reference Guide 0-13-688533-0
SPSS Advanced Statistics 8.0 0-13-688400-8
SPSS Base 8.0 Applications Guide 0-13-687949-7
SYSTAT for Windows Version 5, Getting Started 0-13-437237-9
SYSTAT for Windows Version 5, Data 0-13-437245-X
SYSTAT for Windows Version 5, Statistics 0-13-437252-2
SYSTAT for Windows Version 5, Graphics 0-13-437062-7
SYSTAT 6.0 for Windows: Command Reference 0-13-654310-3
SYSTAT 6.0 for Windows: Data 0-13-654485-1
SYSTAT 6.0 for Windows: Graphics 0-13-654393-6
SYSTAT 6.0 for Windows: Statistics 0-13-654352-9
SYSTAT 7.0: Command Reference 0-13-644618-3
SYSTAT 7.0: New Statistics 0-13-644627-2
SYSTAT 7.0: Graphics 0-13-676909-8
SYSTAT 7.0: Data 0-13-676917-9
SYSTAT 7.0: Statistics 0-13-679739-3
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EXHIBIT D
Print Specifications for Documentation and Titles
Page sizes: 7" x 9"
7-3/8" x 9'
8-1/2' x 12"
Binding: Perfect or layflat
Saddle stitch (not greater than 104 pages)
Text stock: 45# New Era Matte or equivalent
brightness 78+, opacity 89+
Text prints: Black only
Black and second color
Cover stock: 80# LOE Dull
10 pt. Carolina
Cover is film laminated or UV coated on one side
Cover prints: Two colors: 2-0-0-2
Packaging: Bulk in cartons
Pallet size: 40" x 48" or as required
Over/under Margins: 10%
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EXHIBIT E
ESCROW #
SOURCE CODE ESCROW AGREEMENT
between
PRODUCER, FORT XXXX and SINGLE LICENSEE
This Escrow Agreement ("Agreement") is made as of this day of
-----
, 1998, by and between SPSS Inc. ("Producer"), Fort Xxxx Escrow
-----------------
Services, Inc. ("Fort Xxxx") and Xxxxxxxx-Xxxx, Inc. ("Licensee").
Preliminary Statement. Producer intends to deliver to Fort Xxxx a sealed package
containing magnetic tapes, disks, disk packs, or other forms of media, in
machine readable form, and the written documentation prepared in connection
therewith, and any subsequent updates or changes thereto (the "Deposit
Materials") for the computer software products (the "System(s)"), all as
identified from time to time on Exhibit 2 hereto. Producer desires Fort Xxxx to
hold the Deposit Materials, and, upon certain events, deliver the Deposit
Materials (or a copy thereof) to Licensee, in accordance with the terms hereof.
Now, therefore, in consideration of the foregoing, of the mutual promises
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Delivery by Producer. Within fifteen (15) days after execution of this
Agreement, Producer shall deliver to Fort Xxxx the Deposit Materials. Fort Xxxx
shall hold the Deposit Materials in accordance with the terms hereof. Fort Xxxx
shall have no obligation to verify the completeness or accuracy of the Deposit
Materials.
2. Duplication; Updates.
(a) Fort Xxxx may duplicate the Deposit Materials by any means in order to
comply with the terms and provisions of this Agreement, provided that Licensee
shall bear the expense of duplication. Alternatively, Fort Xxxx, by notice to
Producer, may require Producer to reasonably promptly duplicate the Deposit
Materials.
(b) Producer shall deposit with Fort Xxxx any modifications, updates, new
releases or documentation related to the Deposit Materials by delivering to Fort
Xxxx an updated version of the Deposit Materials ("Additional Deposit") as soon
as practicable after the modifications, updates, new releases and documentation
have been developed by Producer. Fort Xxxx shall have no obligation to verify
the accuracy or completeness of any Additional Deposit or to verify that any
Additional Deposit is in fact a copy of the Deposit Materials or any
modification, updates, or new release thereof. If the Additional Deposit is an
upgrade to the Deposit Materials, Fort Xxxx shall return the original Deposit
Materials to the Producer.
3. Notification of Deposits. Simultaneous with the delivery to Fort Xxxx
of the Deposit Materials or any Additional Deposit, as the case may be, Producer
shall deliver to Fort Xxxx and to Licensee a written statement specifically
identifying all items deposited and stating that the Deposit
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25
Materials or any Additional Deposit, as the case may be, so deposited have been
inspected by Producer and are complete and accurate.
4. 4.1 Delivery by Fort Xxxx to Licensee. Fort Xxxx shall
deliver the Deposit Materials, or a copy thereof, to Licensee only in the
event that:
(a) Producer notifies Fort Xxxx to effect such delivery to Licensee
at a specific address, the notification being accompanied by a check
payable to Fort Xxxx in the amount of one hundred dollars ($100.00); or
(b) Fort Xxxx receives from Licensee:
(i) written notification (with specific details) that Producer
has failed in a material respect to support the applicable Systems as
required by the license agreement ("License Agreement") between Licensee
and Producer or that Producer has otherwise defaulted in a material respect
under the License Agreement ("Producer Default");
(ii) evidence satisfactory to Fort Xxxx that Licensee has
previously notified Producer of such Producer Default in writing;
(iii) a written demand that the Deposit Materials be released
and delivered to Licensee;
(iv) a written undertaking from the Licensee that the Deposit
Materials being supplied to the Licensee will be used only as permitted
under the terms of the License Agreement;
(v) specific instructions from the Licensee for this delivery;
and
(vi) a certified or cashier's check payable to Fort Xxxx in the
amount of five hundred dollars ($500.00).
(c) If the provisions of paragraph 4.1(a) are satisfied, Fort Xxxx
shall, within five business days after receipt of the notification and
check specified in paragraph 4.1(a), deliver the Deposit Materials in
accordance with the applicable instructions.
(d) If the provisions of paragraph 4.1(b) are met, Fort Xxxx shall,
within five (5) business days after receipt of all the documents specified
in paragraph 4.1(b), send by certified mail to Producer a photostatic copy
of all such documents. Producer shall have ten (10) days from the date on
which Producer receives such documents ("Objection Period") to notify Fort
Xxxx of its objection ("Objection Notice") to the release of the Deposit
Materials to Licensee and to request that the issue of Licensee's
entitlement to a copy of the Deposit Materials be submitted to arbitration
in accordance with the following provisions:
(i) If Producer shall send an Objection Notice to Fort Xxxx
during the Objection Period, the matter shall be submitted to, and settled
by arbitration by, a panel of three (3) arbitrators chosen by the Illinois
Regional Office of the American Arbitration Association in accordance with
the rules of the American Arbitration Association. The arbitrators shall
apply Illinois law. At least one (1) arbitrator shall be reasonably
familiar with the computer software industry. The decision of the
arbitrators shall be binding and conclusive on all parties involved, and
judgment upon their decision may be entered in a court of competent
jurisdiction. All costs of the arbitration incurred by Fort Xxxx, including
reasonable attorneys' fees and costs, shall be paid by the party which does
not prevail in the arbitration; provided,
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however, if the arbitration is settled prior to a decision by the
arbitrators, the Producer and Licensee shall each pay 50% of all such
costs.
(ii) Producer may, at any time prior to the commencement of
arbitration proceedings, notify Fort Xxxx that Producer has withdrawn the
Objection Notice. Upon receipt of any such notice from Producer, Fort Xxxx
shall reasonably promptly deliver the Deposit Materials to Licensee in
accordance with the instructions specified in paragraph 4.1(b)(v).
(e) If, during the Objection Period, Fort Xxxx has not received an
Objection Notice from Producer, then Fort Xxxx shall reasonably promptly
deliver the Deposit Materials to Licensee in accordance with the
instructions specified in paragraph 4.1(b)(v).
4.2 Delivery by Fort Xxxx to Producer. Fort Xxxx shall release
and deliver the Deposit Materials to Producer upon termination of this
Agreement in accordance with paragraph 7(a) hereof.
4.3 Notwithstanding the provisions of paragraph 4.1, if Licensee
believes in good faith that it will suffer irreparable harm to its business
and operations in the event of delay caused by compliance with the terms of
paragraph 4.1, or in the event that release of the Deposit Materials is
wrongfully delayed by Licensor, Licensee may petition a court of competent
jurisdiction for injunctive relief to prevent such delay and/or to order
release of the Deposit Materials. Any and all costs incurred by Fort Xxxx
in connection therewith, including reasonable attorneys' fees and costs,
shall be borne 50% by each of Producer and Licensee.
5. Indemnity. Producer and Licensee shall, jointly and
severally, indemnify and hold harmless Fort Xxxx and each of its directors,
officers, agents, employees and stockholders ("Fort Xxxx Indemnitees")
absolutely and forever, from and against any and all claims, actions,
damages, suits, liabilities, obligations, costs, fees, charges, and any
other expenses whatsoever, including reasonable attorneys' fees and costs,
that may be asserted against any Fort Xxxx Indemnitee in connection with
this Agreement or the performance of Fort Xxxx or any Fort Xxxx Indemnitee
hereunder.
6. Disputes and Interpleader.
(a) In the event of any dispute between any of Fort Xxxx, Producer
and/or Licensee relating to delivery of the Deposit Materials by Fort Xxxx
or to any other matter arising out of this Agreement, Fort Xxxx may submit
the matter to any court of competent jurisdiction in an interpleader or
similar action. Any and all costs incurred by Fort Xxxx in connection
therewith, including reasonable attorneys' fees and costs, shall be borne
50% by each of Producer and Licensee.
(b) Fort Xxxx shall perform any acts ordered by any court of competent
jurisdiction, without any liability or obligation to any party hereunder by
reason of such act.
7. Term and Renewal.
(a) The initial term of this Agreement shall be two years, commencing
on the date hereof (the "Initial Term"). This Agreement shall be
automatically extended for an additional term of one year ("Additional
Term") at the end of the Initial Term and at the end of each Additional
Term hereunder unless, on or before ninety (90) days prior to the end of
the Initial Term or an Additional Term, as the case may be, any party
notifies the other parties that it wishes to terminate the Agreement at the
end of such term.
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(b) In the event of termination of this Agreement in accordance with
paragraph 7(a) hereof, Licensee shall pay all fees due Fort Xxxx and shall
promptly notify Licensee that this Agreement has been terminated and that
Fort Xxxx shall return to Producer all copies of the Deposit Materials then
in its possession.
(c) In the event of termination of this Agreement in accordance with
paragraph 8(b) hereof, Producer shall promptly notify Licensee that this
Agreement has been terminated.
8. Fees. Producer shall pay to Fort Xxxx the applicable fees in
accordance with Exhibit 1 as compensation for Fort Xxxx'x services under
this Agreement.
(a) Payment. Fort Xxxx shall issue an invoice to Producer following
execution of this Agreement ("Initial Invoice"), on the commencement of any
Additional Term hereunder, and in connection with the performance of any
additional services hereunder. Payment is due upon receipt of invoice. All
fees and charges are exclusive of, and Producer is responsible for the
payment of, all sales, use and like taxes. Fort Xxxx shall have no
obligations under this Agreement until the Initial Invoice has been paid in
full by Producer.
(b) Nonpayment. In the event of non-payment of any fees or charges
invoiced by Fort Xxxx, Fort Xxxx shall give notice of non-payment of any
fee due and payable hereunder to the Producer and, in such an event, the
Producer shall have the right to pay the unpaid fee within ten (10) days
after receipt of notice from Fort Xxxx. If Producer fails to pay in full
all fees due during such ten (10) day period, Fort Xxxx shall give notice
of non-payment of any fee due and payable hereunder to Licensee and, in
such event, Licensee shall have the right to pay the unpaid fee within ten
(10) days of receipt of such notice from Fort Xxxx. Upon payment of the
unpaid fee by either the Producer or Licensee, as the case may be, this
Agreement shall continue in full force and effect until the end of the
applicable term. Failure to pay the unpaid fee under this paragraph 8(b) by
both Producer and Licensee shall result in termination of this Agreement.
9. Ownership of Deposit Materials. The parties recognize and
acknowledge that ownership of the Deposit Materials shall remain with
Producer at all times.
10. Available Verification Services. Upon receipt of a written
request from Licensee, Fort Xxxx and Licensee may enter into a separate
agreement pursuant to which Fort Xxxx will agree, upon certain terms and
conditions, to inspect the Deposit Materials for the purpose of verifying
its relevance, completeness, currency, accuracy and functionality
("Technical Verification Agreement"). Upon written request from Producer,
Fort Xxxx will issue to Producer a copy of any written technical
verification report rendered in connection with such engagement. If Fort
Xxxx and Licensee enter into such Technical Verification Agreement,
Producer shall reasonably cooperate with Fort Xxxx by providing its
facilities, computer systems, and technical and support personnel for
technical verification whenever reasonably necessary. If requested by
Licensee, Producer shall permit one employee of Licensee to be present at
Producer's facility during any such verification of the Deposit Materials.
Results of shall technical verification shall be kept in confidence by the
parties.
11. Bankruptcy. Producer and Licensee acknowledge that this Agreement
is an "agreement supplementary to" the License Agreement as provided in
Section 365 (n) of Xxxxx 00, Xxxxxx Xxxxxx Code (the "Bankruptcy Code").
Producer acknowledges that if Producer as a debtor in possession or a
trustee in Bankruptcy in a case under the Bankruptcy Code rejects the
License Agreement or this Agreement, Licensee may elect to retain its
rights under the License Agreement and this Agreement as provided in
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Section 365 (n) of the Bankruptcy Code. Upon written request of Licensee to
Producer or the Bankruptcy Trustee, Producer or such Bankruptcy Trustee shall
not interfere with the rights of Licensee as provided in the License Agreement
and this Agreement, including the right to obtain the Source Material from Fort
Xxxx.
12. Miscellaneous.
(a) Remedies. Except for actual fraud, gross negligence or intentional
misconduct, Fort Xxxx shall not be liable to Producer or to Licensee for any
act, or failure to act, by Fort Xxxx in connection with this Agreement. Any
liability of Fort Xxxx regardless of the cause shall be limited to the actual
cost of new blank magnetic media. Fort Xxxx will not be liable for special,
indirect, incidental or consequential damages hereunder.
(b) Natural Degeneration; Updated Version. In addition, the parties
acknowledge that as a result of the passage of time alone, the Deposit Materials
are susceptible to loss of quality ("Natural Degeneration"). It is further
acknowledged that Fort Xxxx shall have no liability or responsibility to any
person or entity for any Natural Degeneration. For the purpose of reducing the
risk of Natural Degeneration, Producer shall deliver to Fort Xxxx a new copy of
the Deposit Materials at least once every three years.
(c) Permitted Reliance and Abstention. Fort Xxxx may rely and shall be
fully protected in acting or refraining from acting upon any notice or other
document believed by Fort Xxxx in good faith to be genuine and to have been
signed or presented by the proper person or entity. Fort Xxxx shall have no
duties or responsibilities except those expressly set forth herein.
(d) Independent Contractor. Fort Xxxx is an independent contractor, and is
not an employee or agent of either the Producer or Licensee.
(e) Amendments. This Agreement shall not be modified or amended except by
another agreement in writing executed by the parties hereto.
(f) Entire Agreement. This Agreement, including all exhibits hereto,
supersedes all prior discussions, understandings and agreements between the
parties with respect to the matters contained herein, and constitutes the entire
agreement between the parties with respect to the matters contemplated herein.
All exhibits attached hereto are by this reference made a part of this Agreement
and are incorporated herein.
(g) Counterparts; Governing Law. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
Agreement. This Agreement shall be construed and enforced in accordance with the
laws of the State of Illinois.
(h) Confidentiality. Fort Xxxx will hold and release the Deposit Materials
only in accordance with the terms and conditions hereof, and will maintain the
confidentiality of the Deposit Materials and will use the Deposit Materials only
in accordance with this Agreement.
(i) Notices. All notices, requests, demands or other communications
required or permitted to be given or made under this Agreement shall be in
writing and shall be delivered by hand or by commercial
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overnight delivery service which provides for evidence of receipt, or
mailed by certified mail, return receipt requested, postage prepaid, and
addressed as follows:
(i) If to Producer:
to the address listed on the signature page
hereof
(ii) If to Licensee:
to the address listed on the signature page
hereof
(iii) If to Fort Xxxx:
Fort Xxxx Escrow Services, Inc. 0000-X Xxxxxx
Xxxxxx Xxxxxxxxx, Xxxxxxx 00000-0000 Attn:
Contracts Administrator
If delivered personally or by commercial overnight delivery service,
the date on which the notice, request, instruction or document is delivered
shall be the date on which delivery is deemed to be made, and if delivered
by mail, the date on which such notice, request, instruction or document is
received shall be the date on which delivery is deemed to be made. Any
party may change its address for the purpose of this Agreement by notice in
writing to the other party as provided herein.
(j) Survival. Paragraphs 5, 6, 8, 9 and 11 shall survive any
termination of this Agreement.
(k) No Waiver. No failure on the part of any party hereto to
exercise, and no delay in exercising any right, power or single or partial
exercise of any right, power or remedy by any party will preclude any other
or further exercise thereof or the exercise of any other right, power
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or remedy. No express waiver or assent by any party hereto to any breach of or
default in any term or condition of this Agreement shall constitute a waiver of
or an assent to any succeeding breach of or default in the same or any other
term or condition hereof.
IN WITNESS WHEREOF each of the parties has caused its duly authorized
officer to execute this Agreement as of the date and year first above written.
Fort Xxxx Escrow Services
By:
Title:
Producer
By:
Title:
Address:
Attention:
Licensee
By:
Title:
Address:
Attention:
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EXHIBIT 1
Fees to be paid by Producer shall be as follows:
Initialization fee (one time only) $ 750
Annual maintenance/storage fee
(includes one Deposit Material update) $ 800/Product
Additional Updates $ 100/Product
(above one per year)
Payable by Licensee:
Due Upon Licensee's Request for Release
of Deposit Materials $500/Product per Licensee
A ten percent discount is credited towards the initialization fee for current
Fort Xxxx clients. Fees due upon receipt of signed contract or deposit material,
whichever comes first. Thereafter, fees shall be subject to their current
pricing, provided that such prices shall not increase by more than 10% per year.
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EXHIBIT 2
B-1 Product Name
--------------------------------------------------------------
Version #
---------------------------------------------------------------------
Description of Materials Deposited: Date:
-----------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Updates
Version #
---------------------------------------------------------------------
Description of Materials Deposited: Date:
-----------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
B-2 Product Name
--------------------------------------------------------------
Version #
---------------------------------------------------------------------
Description of Materials Deposited: Date:
-----------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Updates
Version #
---------------------------------------------------------------------
Description of Materials Deposited: Date:
-----------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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EXHIBIT F
SPSS COMPETITORS
COMPANY PRODUCT
------- -------
STATSOFT ALL
MINITAB ALL
SAS Institute/Abacus SAS/JMP/STATVIEW
DATADESK ALL
MANUGISTICS STATGRAPHICS
STATA ALL
QUALITY AMERICA ALL
PQ SYSTEMS ALL
XXXXXXXX ALL
DATAMYTE ALL
MATHSOFT S+ PRODUCT
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EXHIBIT G
ELECTRONIC BOOKS
Content contained in the following book(s) may be included in electronic
format on CDs sold as part of "Other SPSS Integrated Versions" as defined
in paragraph 1.2.
ISBN# 013-455677-1 SPSS 6.1 for Windows Brief Guide
ISBN# 013-656885-8 SPSS 7.5 for Windows Brief Guide
ISBN# 013-687914-4 SPSS 8.0 for Windows Brief Guide
ISBN# 013-618885-0 SYSTAT 6.0 for Windows Brief Guide
Content from other titles may be added from time to time with written
consent of the Publisher.
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