1
*** Text Omitted and Filed Separately. Confidential Treatment
Requested Under 17 C.F.R. Sections 200.80, 200.83 and 240.24b-2
EXHIBIT 10.34
AMENDMENT #6
This Amendment #6 ("Amendment #6) to the Value-Added Reseller License
Agreement effective September 24, 1992, between Informix Software, Inc.
("Informix") and Continuus Software, previously known as Caseware, Inc.
("Licensee"), as amended by Amendment #1 effective September 24, 1992, Amendment
#2 effective March 5, 1993, Amendment #3 effective August 26, 1993, Amendment #4
effective August 2, 1994, and Amendment #5 effective January 31, 1995
(collectively, the "Agreement"), each of them having respective principal places
of business as set forth in the signature block below, is made as of the
Amendment #6 Effective Date hereinafter set forth.
This Amendment #6 is made with reference to Section 8.5 of the Agreement
which provides that modifications of any of the provisions of the Agreement are
binding provided they are contained in a writing signed by a duly authorized
representative of Informix and Licensee which expressly refers to the Agreement.
When signed below by Informix and Licensee, this Amendment #6 shall constitute
such a writing. All unmodified and remaining terms and conditions of the
Agreement shall remain in full force and effect.
WHEREAS, Informix and Licensee desire to amend the Agreement, as more
fully described below.
NOW THEREFORE, in consideration of the mutual promises and obligations
herein contained, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. This Agreement is hereby amended by adding Exhibit F attached hereto.
2. This Amendment #6 shall be effective as of the date set forth in the
signature block below (Amendment #6 Effective Date).
3. In the event of a conflict between the terms and conditions of the
Agreement, inclusive of Amendment #1, Amendment #2, Amendment #3,
Amendment #4 and Amendment #5, and the terms and conditions of this
Amendment #6, the terms and conditions of this Amendment #6 shall
prevail.
LICENSEE: INFORMIX:
CONTINUUS SOFTWARE INFORMIX SOFTWARE, INC.
108 Pacifica 0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx XxXxxx, VP & GM Attn.: General Counsel
Phone: (000) 000-0000 Phone: (000) 000-0000
/s/ Xxxxx XxXxxx /s/ Xxxxx Xxxxxx
---------------------------------- -----------------------------------------
Signature Signature
Xxxxx XxXxxx Xxxxx Xxxxxx
---------------------------------- -----------------------------------------
Printed Name/Title Printed Name/Title
---------------------------------- -----------------------------------------
Date 12/21/1999 Date 12/23/1999
1.
2
Order Agreement #: 6458-06
EXHIBIT F
MAINTENANCE ORDER
This Maintenance Order ("Order") incorporates the Informix maintenance
program(s) specified below. There shall be no force or effect to any different
or additional terms of any related purchase order, confirmation or similar form
even if signed by the parties after the date hereof. Each party's acceptance of
this Order (as indicated by execution hereof) was and is limited to and
expressly conditional upon the other's acceptance of the terms contained in the
Order to the exclusion of other terms. After execution of this Order, Licensee
will return this Order and a purchase order to Informix to the attention of
Maintenance Support at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000.
By signing below, each party agrees to be bound by all the terms and conditions
of this Order. Each individual signing this on behalf of an identified party
below represents that he or she has the authority and power to execute this
Order on behalf of the party so identified.
LICENSEE INFORMATION:
Client Name: Continuus Software Corporation
Client Contact:
Address: __108 Pacifica_______________________
Address: __Irvine, CA 92618___________________
Address: _____________________________________
Phone: _____000-000-0000______________________
Fax: _______000-000-0000______________________
INSTALLED AT:
Client Name: ____Various Sites._______________
Client Contact: ______________________________
Address: _____________________________________
Address: _____________________________________
Address: _____________________________________
Phone: _______________________________________
Fax: _________________________________________
XXXX TO:
Client Name: Continuus Software Corporation
Client Contact:
Address: __108 Pacifica_______________________
Address: __Irvine, CA 92618___________________
Address: _____________________________________
Phone: _____000-000-0000______________________
Fax: _______000-000-0000______________________
Part Hardware Maint. # of # of Maintenance Unit Extended
No. Software Description Platform Type CPUs Users Term Price Qty Price
------------------------------------------------------------------------------------------------------------------------------------
Informix OnLine Dynamic Server versions: DEC/ALPHA, HP/UX, Other See Attch. A 6/15/1999- $[*****]
5.02.UC6, 5.02.UC7, 5.03.UC1, 5.03.UC2, IBM/AIX, SGI/IRIX, 6/15/2000
5.05.UCI, 5.05 UCIP1, 5.05.UC2, 5.05.UC4, SOLARIS, SUN/OS
5.05.UC4, 5.06.UC1, 5.02.UC6X1 (collectively,
"Covered Products")
TOTAL BEFORE TAXES__[*****]_____________________________________________________
SALES TAX __%_______[*****]_____________________________________________________
Total Order [******]
________________________________________________________________________________
Terms: Net thirty (30) days from the Amendment #6 Effective Date.
This Order may be renewed for one twelve month period for $[******] usd before
tax.
Continuus Software
--------------------------------------------
Name of Licensee
/s/ Xxxxx McCannn
--------------------------------------------
Signature of Authorized Individual
Xxxxx XxXxxx
--------------------------------------------
Name (Please Print)
VP & GM Americas 12/21/1999
---------------------------------------------
Title Date
Informix Software, Inc.
/s/ Xxxxx Xxxxxx
---------------------------------------------
Signature of Authorized Individual
Xxxxx Xxxxxx
--------------------------------------------
Name (Please Print)
12/23/1999
---------------------------------------------
Title Date
PROGRAM DESCRIPTION(S):
___ OpenLine ____ Assurance ____ 24x7
___ Enterprise ____ Regency ____x_Other See Attachment A
PURCHASING INFORMATION:
Sales Rep: __________________________________
Support Rep: ________________________________
Order Date: _________________________________
Purchase Order #_____________________________
Sales & Use Tax Rate: ______________________ (if applicable)
Quote Num/Expiration: _______________________
*** Text Omitted and Filed Separately. Confidential Treatment
Requested Under 17 C.F.R. Sections 200.80, 200.83 and 240.24b-2.
3
ATTACHMENT A
TO
EXHIBIT F
(NON-STANDARD SUPPORT)
The terms and conditions of the non-standard support to be provided on the
Covered Products follow.
1. DEFINITIONS.
"PRODUCT PROBLEMS" means a Covered Product, which is not functioning according
to the specifications in the user manual.
"PROBLEM DIAGNOSIS" means INFORMIX's investigation of Product Problems reported
by Covered Client Developers. INFORMIX requires detailed Product Problem
descriptions from Covered Client Developers. Product Problem resolution may be,
but is not limited to, a description of the Covered Products functional
operation, suggested alternative uses of the Covered Products, a temporary
method of circumventing the Product Problem, or a recommendation of the
installation of a patch. When requested to resolve a Product Problem, INFORMIX
may require access to your computer system via modem and telephone lines.
"ROOT CAUSE ANALYSIS" is defined as continued research beyond diagnostic work to
identify the exact cause of the problem the customer has encountered. In the
context of a down system, Informix would perform the work necessary to return
the system to operational status. Informix would not be required to ascertain
the reason the system became inoperable.
2. RESPONSIBILITIES OF INFORMIX.
TELEPHONE SUPPORT. INFORMIX will provide telephone support for up to: (i) ten
(10) Client developers who are located in Client's Irvine, CA office, (ii) up to
six (6) Client developers who are located in Client's Dublin, Ireland office,
and (iii) one (1) Client developer who is located in Client's Australia office
(collectively "Covered Client Developers"). Telephone support shall consist of
the Covered Client Developers access to Informix's technical support engineers
to assist Client on down-systems recovery and Problem Diagnosis, with Informix
providing reasonable efforts toward providing workarounds to resolve such
issues. At no time will Informix be required to provide Root-Cause analysis in
support of Client's use of the Covered Products.
PATCHES. In the event that Client requests INFORMIX to provide a patch to
correct a Product Problem in the Covered Products, Client must provide the
hardware and software operating environment to INFORMIX in addition to paying a
fee of $[******] per patch.
3. LIMITATIONS OF COVERED PRODUCT SUPPORT.
INFORMIX has no obligation to provide support services for:
A. Altered or modified products;
B. Derivative works;
C. Third party software or application being used in conjunction with the
products;
D. Product Problems which arise as a result of your negligence or fault, or from
malfunctions of your computer or its operating system;
E. Product Problems that result from changes to your operating environment which
make it incompatible with the operating environment for the products when they
were originally licensed. This could include, but is not limited to, additions
or changes to hardware, operating system, compilers, or co-resident software.
4. GENERAL
EXTRAORDINARY CIRCUMSTANCES. INFORMIX shall not be responsible for failure to
fulfill, or delay in fulfilling its obligations under this Attachment A due to
causes beyond its control.
LIMITATION OF LIABILITY. INFORMIX's liability to you or any other third party,
for a claim of any kind arising as a result of, or related to, any Covered
Product or service provided under this Attachment A, whether in contract, in
tort (including negligence or strict liability), under any warranty, or
otherwise, shall be limited to monetary damages, and the aggregate amount of
such damages for all claims relating to any particular Covered Product or
service shall in no event exceed the amount paid to Informix under this program
for the Covered Product or service which gave rise to the claim. Under no
circumstances shall Informix be liable to you or any third party for indirect,
special or consequential damages (including lost profits), even if INFORMIX has
been advised of the possibility of such damages.
GOVERNING LAW. This support is governed by and interpreted in accordance with
the laws of the State of California without regard to its conflict of law
provisions.
ACKNOWLEDGMENT. BY YOUR PAYMENT FOR THE SERVICES TO BE PROVIDED UNDER THIS
SUPPORT PROGRAM, YOU ACKNOWLEDGE YOU HAVE READ AND UNDERSTAND THE TERMS AND
CONDITIONS OF THIS PROGRAM AND AGREE TO BE BOUND BY THEM.
*** Text Omitted and Filed Separately. Confidential Treatment
Requested Under 17 C.F.R. Sections 200.80, 200.83 and 240.24b-2.
4
AMENDMENT #7
This Amendment #7 ("Amendment #7) to the Value-Added Reseller License
Agreement effective September 24, 1992, between Informix Software, Inc.
("Informix") and Continuus Software Corporation, previously known as Caseware,
Inc. ("Licensee"), as amended by Amendment #1 effective September 24, 1992,
Amendment #2 effective March 5, 1993, Amendment #3 effective August 26, 1993,
Amendment #4 effective August 2, 1994, Amendment #5 effective January 31, 1995,
and Amendment #6 effective January 30, 2000 (collectively, the "Agreement"),
each of them having respective principal places of business as set forth in the
signature block below, is made as of the Amendment #7 Effective Date hereinafter
set forth.
This Amendment #7 is made with reference to Section 8.5 of the Agreement
which provides that modifications of any of the provisions of the Agreement are
binding provided they are contained in a writing signed by a duly authorized
representative of Informix and Licensee which expressly refers to the Agreement.
When signed below by Informix and Licensee, this Amendment #6 shall constitute
such a writing. All unmodified and remaining terms and conditions of the
Agreement shall remain in full force and effect.
WHEREAS, Informix and Licensee desire to amend the Agreement, as more
fully described below.
NOW THEREFORE, in consideration of the mutual promises and obligations
herein contained, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. Third sentence of Section 4.2 of the Agreement is hereby deleted in its
entirety and restated as follows:
"Within net thirty (30) days of the end of every calendar quarter,
Licensee shall deliver to Informix the Copy Records applicable to the
previous quarter accompanied by any payment due to Informix relating to
such Records."
2. Exhibit A of the Agreement is hereby amended by adding the following
Section 1.3:
1.3 Additional Authorized Products: Informix hereby grants to
Licensee, subject to Section 1.1 of the Agreement, the right to
acquire licenses of the following Informix Products which are to
be used only on the platforms within the Unix and NT operating
systems supported by Informix (the "Amendment #7 Products"):
- Informix-OnLine 5.1
- Informix-SE 7.x
- Informix-Dynamic Server 7.2
- Informix-Dynamic Server 7.3
- Informix-Dynamic Server.2000 9.2
- Client SDK 2.x
*** Text Omitted and Filed Separately. Confidential Treatment
Requested Under 17 C.F.R. Sections 200.80, 200.83 and 240.24b-2.
5
3. This Agreement is hereby amended by adding the following Amendment #7
Schedule:
AMENDMENT #7 SCHEDULE
1. Prepayment. (a)Upon the Amendment #7 Effective Date, Licensee
shall pay to Informix the irrevocable, nonrefundable amount of
$[*******] as a prepayment of Licensee's Royalty Payments as
defined herein ("Prepayment") which Informix shall apply to
license fees for the Amendment #7 Products and Informix-Assurance
fees for such Amendment #7 Products.
(b) Royalty Payments due to Informix, as defined herein, will be
deducted from the Prepayment until the exhaustion of the
Prepayment. Notwithstanding the foregoing, in the event that
there are still funds remaining in the Prepayment upon the second
anniversary of the Amendment #7 Effective Date, Licensee shall
provide to Informix a written waiver of its rights to the
remaining balance of the Prepayment. Upon the second anniversary
of the Amendment #7 Effective Date, the Prepayment shall be
deemed fully exhausted, regardless of any remaining balance in
the Prepayment.
(c) Upon the exhaustion of the Prepayment, Licensee shall pay to
Informix any and all Royalty Payments due to Informix, as defined
herein and subject to Section 4.2 of the Agreement.
2. Ongoing Maintenance.
(a) In addition to any Royalty Payments paid or due, upon the
first anniversary of the Amendment #7 Effective Date, Licensee
shall pay [**] of the total Royalty Payments from the previous
[**] months as Informix-Assurance fees for the Amendment #7
Products for a [**] month service period commencing on the first
anniversary of the Amendment #7 Effective Date.
(b) In addition to any Royalty Payments paid or due, upon the
second anniversary of the Amendment #7 Effective Date, Licensee
shall pay [**]of the total Royalty Payments from the previous
[**] months as Informix-Assurance fees for the Amendment #7
Products for a [**] month service period commencing on the second
anniversary of the Amendment #7 Effective Date.
3. Informix-OpenLine Option. During the term of this Amendment #7,
Licensee can purchase Informix-OpenLine for the Amendment #7
Products at the service fee for Informix-OpenLine set forth in
the then current Price List less a discount of [**]. Informix
agrees to grant to Licensee licenses of the development versions
of the Amendment #7 Products to be used solely for Licensee's
internal development purposes at no additional charge, provided
Licensee purchases Informix-OpenLine for such Amendment #7
Products.
4. Definitions.
"Informix-Assurance" means the Informix maintenance program which
offers new releases (other than those designated as New Products)
for certain Informix Products during a [**] month or specified
service period for an annual fee.
"Informix-OpenLine" means the Informix support program that
provides telephone support during Informix's normal business
hours and new releases for certain Informix Products during a
[**] month or specified service period for an annual fee.
Licensee shall designate up to (i) ten (10) contacts who are
located in Licensee's Irvine, CA office, (ii) up to six (6)
contacts who are located in Licensee's Dublin, Ireland office,
and (iii) one (1) contact who is located in Licensee's Australia
office within Licensee's organization to be the sole contacts
with Informix for provision of Informix-OpenLine. In addition,
Licensee shall provide first level support from its development
license site and manufacture, distribute and install releases of
the Products for which such services are being provided.
*** Text Omitted and Filed Separately. Confidential Treatment
Requested Under 17 C.F.R. Sections 200.80, 200.83 and 240.24b-2.
6
"Royalty Payments" means [**] of Licensee's total license revenue
derived from any and all of Licensee's products which embed
Informix Product(s) and any and all updates or upgrades to a
newer version of Licensee's products that embed Informix
Product(s).
5. This Amendment #7 shall be effective as of January 31, 2000
(Amendment #7 Effective Date).
6. The first term of this Amendment #7 shall be [********] from the
Amendment #7 Effective Date and then shall be renewed
automatically for [************************] unless terminated in
accordance with Section 7 of the Agreement.
7. In the event of a conflict between the terms and conditions of
the Agreement, inclusive of Amendment #1, Amendment #2, Amendment
#3, Amendment #4, Amendment #5, Amendment #6 and the terms and
conditions of this Amendment #7, the terms and conditions of this
Amendment #7 shall prevail.
LICENSEE: INFORMIX:
CONTINUUS SOFTWARE CORPORATION INFORMIX SOFTWARE, INC.
108 Pacifica 0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000 Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx XxXxxx, VP & GM Attn.: General Counsel
Phone: (000) 000-0000 Phone: (000) 000-0000
/s/ Xxxxx XxXxxx /s/ Xxxxx Xxxxxx
---------------------------------- ------------------------------------------
Signature Signature
Xxxxx XxXxxx Xxxxx Xxxxxx
---------------------------------- ------------------------------------------
Printed Name/Title Printed Name/Title
12/21/99 12/23/99
---------------------------------- ------------------------------------------
Date Date
*** Text Omitted and Filed Separately. Confidential Treatment
Requested Under 17 C.F.R. Sections 200.80, 200.83 and 240.24b-2.
