EXHIBIT 10.16
VALUE ADDED RESELLER AGREEMENT
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FOR VISIGENIC PRODUCTS
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WITH MANUFACTURING RIGHTS
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This Value Added Reseller Agreement ("Agreement") is entered into as of the
EFFECTIVE DATE (identified below), between VISIGENIC SOFTWARE, INC.,
("VISIGENIC"), and BUSINESS OBJECTS S.A. ("VAR"). VAR desires to license
VISIGENIC's PRODUCTS from VISIGENIC under the terms of this Agreement, for the
purpose of packaging the VISIGENIC DISTRIBUTION PRODUCTS in combination with
certain of VAR's software products as an application bundle and to sublicense
that application bundle to end users for their internal use. Therefore, the
parties agreed as follows:
1. DEFINITIONS
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(A) "VISIGENIC PRODUCTS" means the English language version of VISIGENIC's
proprietary software products known as the VISIGENIC DISTRIBUTION PRODUCTS,
the VISIGENIC DEVELOPMENT PRODUCTS and any other software provided to VAR by
VISIGENIC under this Agreement.
(B) "VISIGENIC DISTRIBUTION PRODUCT(S)" means the deployment copies of the
object code of the English language version of VISIGENIC's proprietary software
products or software products in which VISIGENIC has all necessary rights, power
and authority to enter into this Agreement, as selected hereunder and as is more
fully set forth in Exhibit A.
(C) "VISIGENIC DEVELOPMENT PRODUCTS" means the development copies of the
object code of the English language version of VISIGENIC's proprietary software
products or software products in which VISIGENIC has all necessary rights, power
and authority to enter into this Agreement, as selected hereunder and as is more
fully set forth in Exhibit A.
(D) "VAR PRODUCTS" means VAR's software product(s) specified in Exhibit
A.
(E) "APPLICATION BUNDLE" means the VISIGENIC DISTRIBUTION PRODUCT(S)
packaged in combination with one or more VAR PRODUCTS.
(F) DISTRIBUTOR" means a third party appointed by VAR to distribute
APPLICATION BUNDLEs directly to RESELLERs, VARs, SYSTEMS INTEGRATORs or END
USERs, subject to the terms and conditions imposed by this Agreement.
(G) "RESELLER" means a third party appointed by VAR or a DISTRIBUTOR to
distribute APPLICATION BUNDLEs directly to END USERs, subject to the terms and
conditions imposed by this Agreement.
(H) "END USER" means a third party sublicensed by VAR, a DISTRIBUTOR, or a
RESELLER to use an APPLICATION BUNDLE for the END USER's customary internal
business purposes, and not for redistribution.
(I) "TERRITORY" will be worldwide.
2. LICENSE GRANTS AND LIMITATIONS
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(A) GRANT. Subject to the terms and conditions of this Agreement VISIGENIC
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grants to VAR and its majority owned subsidiaries, a nonexclusive, non-
transferable, non-assignable (except as provided under Section 10d), license
fee bearing, as set forth in this Agreement, limited (except for the unlimited
VISIGENIC DISTRIBUTION PRODUCTS provided in this Agreement) license throughout
the TERRITORY (i) to copy and use the VISIGENIC PRODUCTS in VAR's internal
development, support and testing process; (ii) to copy the VISIGENIC
DISTRIBUTION PRODUCT(S) and package it in combination with one or more VAR
PRODUCTS as an APPLICATION BUNDLE, (iii) to market and distribute the
VISIGENIC DISTRIBUTION PRODUCT(S) as contained in such APPLICATION BUNDLE to
END USERs, and (iv) to copy and use internally an unlimited number of copies
of the VISIGENIC DISTRIBUTION PRODUCT(S) as contained in the APPLICATION
BUNDLE(S)
(B) APPOINTMENT OF DISTRIBUTORS AND RESELLERS. VISIGENIC grants to VAR the
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right to appoint DISTRIBUTORs and RESELLERs to market and distribute APPLICATION
BUNDLEs to END USERs. DISTRIBUTORs will have the additional right to appoint
RESELLERs. Each DISTRIBUTOR or RESELLER appointed by VAR, and each RESELLER
appointed by a DISTRIBUTOR, must enter into a written license agreement with VAR
or the appointing DISTRIBUTOR that provides substantially similar protection of
VISIGENIC's title, rights and defenses as this Agreement. VAR will use its
reasonable efforts, but in no case less than VAR's efforts to enforce its own
agreements, to ensure that DISTRIBUTORs, RESELLERs and END USERs comply with the
terms of their respective agreements, and will notify VISIGENIC of any
violation.
(C) LIMITATIONS. All rights not expressly granted herein are reserved by
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VISIGENIC and/or its suppliers. Without limiting the generality of the
preceding sentence, VAR receives no rights and agrees: (i) not to modify, port,
translate, localize, or create derivative works (in the case of derivative
works, exclusive of the APPLICATION BUNDLES as herein defined) of the VISIGENIC
PRODUCTS, (ii) not to decompile, disassemble or otherwise reverse engineer,
except as permitted under applicable EEOC law, the VISIGENIC PRODUCTS, (iii) not
to distribute an APPLICATION BUNDLE except under a valid sublicense agreement
that contains substantially the same terms set forth in this Agreement, but in
no event less than the same terms as VAR distributes VAR's Products, and (iv)
not to copy, market or distribute the VISIGENIC PRODUCTS except as part of an
APPLICATION BUNDLE, (v) not to copy or sublicense the VISIGENIC PRODUCTS on a
stand-alone basis or for use with any software other than the VAR PRODUCTS.
Each DISTRIBUTOR and RESELLER must agree to substantially similar terms and
conditions as are contained in this Agreement for the copying, marketing and
distribution of the APPLICATION BUNDLE.
3. PAYMENT AND OTHER OBLIGATIONS
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(A) LICENSE FEE(S). VAR agrees to pay to VISIGENIC LICENSE FEES as set
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forth in Exhibit A. All LICENSE FEE(s) are non-refundable and non-cancelable
except as specifically set forth in Exhibit A, regardless of the number of
copies of the VISIGENIC PRODUCTS, if any, that are used or distributed by VAR
or its DISTRIBUTORs.
(B) VISIGENIC ANNUAL MAINTENANCE AND SUPPORT FEE. VAR will pay a VISIGENIC
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ANNUAL MAINTENANCE AND SUPPORT FEE, as set forth in Exhibit A, on the EFFECTIVE
DATE, or within 30 days of the date of the VISIGENIC invoice, whichever is later
and on each anniversary of the EFFECTIVE DATE, or within 30 days of the date of
the VISIGENIC invoice, whichever is later
(C) MONTHLY REPORTS. [*]
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(D) ROYALTY. [*]
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[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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(E) VOLUME SUPPORT FEE. [*]
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(F) TAXES. VAR will pay or reimburse all federal, state and local taxes
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(exclusive of taxes on VISIGENIC's net income), duties and assessments arising
on or measured by amounts payable to VISIGENIC under this Agreement, or furnish
VISIGENIC with evidence acceptable to the taxing authority to sustain an
exemption therefrom.
(G) RECORDS; AUDITS. VAR agrees to keep all usual and proper records and
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books of account and all usual and proper entries relating to each transaction
involving any APPLICATION BUNDLE. Upon showing reasonable cause, VISIGENIC may
cause an audit and/or inspection to be made of the applicable VAR records and
facilities in order to verify statements issued by VAR and VAR's compliance
with the terms of this Agreement. Any such audit will be conducted by an
independent certified public accountant selected by VISIGENIC (other than on a
contingent fee basis). Any audit and/or inspection will be conducted during
regular business hours at VAR's facilities, with five (5) days notice no more
often than once per year VAR agrees to provide VISIGENIC's designated audit or
inspection team access to the relevant VAR records and facilities. Any such
audit will be paid for by VISIGENIC. VAR will impose a similar audit
requirement upon each DISTRIBUTOR or RESELLER, and upon the reasonable request
by VISIGENIC, VAR will cause an audit to be conducted by VAR, at VISIGENIC's
reasonable expense, in order to verify statements issued by such DISTRIBUTOR
or RESELLER and DISTRIBUTOR'S and RESELLER's compliance with the terms of
their agreement with VAR as it effects VISIGENIC PRODUCTS licensed to VAR
hereunder. In the event that a VISIGENIC supplier's rights are affected,
VISIGENIC may disclose the results of any audit conducted under this section
to its suppliers solely as it relates to those suppliers
(H) MARKETING EFFORTS. All fees charged by VAR for the APPLICATION BUNDLE
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will be at its sole discretion. VAR grants to VISIGENIC the right to use VAR's
logo(s) and include VAR information on the VISIGENIC partner web site and in
the VISIGENIC partner program marketing materials and collateral, subject to
VAR's prior written approval which shall not be unreasonably withheld. In
addition the parties agree that the parties may mutually agree to issue a
joint press release upon execution of this Agreement.
(I) SUPPORT OBLIGATIONS. VAR will be responsible for providing adequate
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support and maintenance of the APPLICATION BUNDLE to its DISTRIBUTORs and
RESELLERs, and VAR and its DISTRIBUTORs and RESELLERs will be responsible for
providing adequate support and maintenance of the APPLICATION BUNDLEs to END
USERs. VISIGENIC will provide VAR with Premium Support, as described in
Exhibit C, in consideration of VAR's maintenance payments under Section 3(b).
VISIGENIC will not be required to provide support or maintenance directly to
VAR's DISTRIBUTORs, RESELLERs or END USERs, unless they contract for such
support directly to VISIGENIC.
(J) [*]
4. PROPRIETARY RIGHTS
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Except as expressly provided for in Section 2 of this Agreement, VISIGENIC
and/or its suppliers retain any and all right, title and interest in and to the
VISIGENIC PRODUCTS. This Agreement grants no additional express or implied
license, right or interest in any copyright, patent, trade secret, trademark,
invention or other intellectual property right of VISIGENIC. VAR receives no
rights to and will not sell, assign, lease, market, transfer, encumber or
suffer to exist any lien or security interest on any VISIGENIC PRODUCT, nor
will VAR take any action that would cause any VISIGENIC PRODUCT to be placed
in the public domain. VAR will not remove, or allow to be removed, any
VISIGENIC copyright, trade secret or other proprietary tights notice from any
VISIGENIC PRODUCT. VAR will not make any warranties with respect to any
VISIGENIC PRODUCT beyond those made to VAR by VISIGENIC under this Agreement.
Any patents already issued to VISIGENIC or patents issued to VISIGENIC in the
future will not limit any rights granted to VAR hereunder.
5. CONFIDENTIAL INFORMATION
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(A) DEFINITION. Confidential information will include all confidential and
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proprietary information of either party or any third party disclosed by one
party to the other, which in the case of written information is marked
"confidential" or "proprietary", and which in the case or information disclosed
orally, is identified at the time of the disclosure as confidential or
proprietary ("CONFIDENTIAL INFORMATION"). All oral disclosures of CONFIDENTIAL
INFORMATION will be summarized and confirmed as confidential or proprietary by
the disclosing party in writing within ten (10) business days of the disclosure.
VAR is hereby notified that the VISIGENIC PRODUCTS source code supplied under
this Agreement, if any, is CONFIDENTIAL INFORMATION.
(B) GENERAL NONDISCLOSURE OBLIGATIONS. Each party must hold the other
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party's CONFIDENTIAL INFORMATION in confidence, and use the same degree of
care (but not less than reasonable care) to safeguard such CONFIDENTIAL
INFORMATION as the party uses to protect its own CONFIDENTIAL INFORMATION.
Each party agrees that it has obtained or will obtain a written agreement with
each employee or contractor having access to any such CONFIDENTIAL
INFORMATION, under which the employee or contractor acknowledges the
importance of protecting the CONFIDENTIAL INFORMATION to which such individual
may have access and agrees to protect and not disclose the CONFIDENTIAL
INFORMATION. CONFIDENTIAL INFORMATION may only be used for exercising rights
and fulfilling obligations under this Agreement.
(C) EXCEPTIONS TO NONDISCLOSURE OBLIGATIONS. The obligations of this
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Section 5 do not apply to information which was in the recipient's rightful
possession without an obligation of confidentiality before receipt from the
disclosing party, or is or becomes a matter of public knowledge through no
fault of the recipient, or is rightfully received by the recipient from a
third party without a duty of confidentiality, or is independently developed
by the recipient without reliance on the CONFIDENTIAL INFORMATION, or is
disclosed under operation of law, or is disclosed by the disclosing party to
third parties habitually without restriction on subsequent disclosure. Either
party may disclose the name of the other party and the existence of this
Agreement, but not its terms, without the consent of
6. INDEMNIFICATION
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(A) VISIGENIC'S OBLIGATIONS. VISIGENIC will defend, indemnify and hold
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harmless VAR against any third party claim, lawsuits, or damages, including
attorney's fees, that the use of the VISIGENIC PRODUCTS under the terms of
this Agreement infringes any copyright, patent, trademark or other similar
intellectual property right of any third party in any country that VAR
distributes the APPLICATION BUNDLE. VISIGENIC will have no obligation
hereunder for any claim of infringement based on (i) the use of a superseded
or altered release of the VISIGENIC PRODUCTS if such infringement would have
been avoided by the use of a current, unaltered release of the VISIGENIC
PRODUCTS, so long as the current release is substantially compatible with the
immediately preceding released version of the VISIGENIC PRODUCTS, (ii) the
combination or use of the VISIGENIC PRODUCTS with software, hardware or other
materials not furnished by VISIGENIC if such infringement would have been
avoided by the use of VISIGENIC PRODUCTS alone, or (iii) the use of the
VISIGENIC PRODUCTS other than as permitted under this Agreement. In the event
that the VISIGENIC PRODUCTS are held or are believed by VISIGENIC to infringe
VISIGENIC shall have the option, at its expense, to: (i) modify the VISIGENIC
PRODUCTS to be noninfringing; (ii) obtain for VAR a license to continue using
the VISIGENIC PRODUCTS, or (iii) terminate this
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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Agreement as to the infringing VISIGENIC PRODUCTS and refund to VAR the fees
paid under this Agreement for such infringing VISIGENIC PRODUCTS. The foregoing
states VISIGENIC's entire liability and VAR's exclusive remedies for
infringement of intellectual property rights of any kind.
(B) VAR'S OBLIGATIONS. VAR agrees to indemnify and defend VISIGENIC from
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any and all third party claims, lawsuits or damages, including attorney's
fees, that VISIGENIC may suffer as a result of the failure of VAR to abide by
the material terms of this Agreement.
(C) CONDITIONS OF INDEMNITY. The foregoing indemnities are conditioned on
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prompt written notice of any claim, action or demand for which indemnity is
claimed; complete control of the defense and settlement thereof by the
indemnifying party, and cooperation of the other party in such defense. The
non-indemnifying party may choose to be represented by legal counsel during
any such action, at their expense, which in no event shall dilute the rights
and obligations of the preceding sentence.
7. WARRANTY
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(A) IN GENERAL. For 90 days from the date of shipment, Visigenic warrants
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that the media on which any VISIGENIC PRODUCT is contained will be free from
defects in materials and workmanship and that the VISIGENIC PRODUCT as
received from Visigenic will substantially conform to its most-current end
user documentation, To obtain warranty service during the 90 day period, VAR
may return the VISIGENIC PRODUCT to VISIGENIC,
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postage prepaid, with a description of the problem. The defective media on
which the
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VISIGENIC PRODUCT is contained will be replaced at no additional charge to VAR.
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(B) NO OTHER WARRANTIES. EXCEPT AS SET FORTH IN 7(a) ABOVE, THE VISIGENIC
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PRODUCTS AND THE ACCOMPANYING WRITTEN MATERIALS ARE PROVIDED "AS IS" WITHOUT
EXPRESS OR IMPLIED WARRANTY OF ANY KIND. VISIGENIC FURTHER DISCLAIMS ALL
IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VISIGENIC DOES NOT WARRANT
THAT THE VISIGENIC PRODUCTS WILL BE ERROR FREE OR WILL OPERATE WITHOUT
INTERRUPTION. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE
VISIGENIC PRODUCTS AND ACCOMPANYING WRITTEN MATERIALS REMAINS WITH VAR AND ITS
LICENSEES.
The VISIGENIC PRODUCTS are not designed for use in hazardous environments
requiring fail-safe controls, including without limitation operation of nuclear
facilities, aircraft navigation or communication systems, air traffic control,
and life support or weapons systems. Without limiting the generality of the
foregoing, VISIGENIC specifically disclaims any express or implied warranty of
fitness for such purposes.
VISIGENIC shall use reasonable efforts to test the VISIGENIC PRODUCTS for
any virus(s) or time bomb(s), and will not knowingly deliver any VISIGENIC
PRODUCT to VAR that contains any such virus(s) or time bomb(s)
(C) RIGHTS, POWER AND AUTHORITY. Each party warrants to the other party
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that it has all necessary rights, power and authority to enter into this
Agreement and to grant the rights granted by such party under this Agreement
8. LIMITATION OF LIABILITY
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EXCEPT FOR VAR'S WILLFUL VIOLATION OF VISIGENIC'S INTELLECTUAL PROPERTY RIGHTS
IN AND TO VISIGENIC PRODUCTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF
THIS AGREEMENT,, BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT
LIABILITY OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY
OR CONTRIBUTION, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
9. TERM AND TERMINATION
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(A) TERM. The term of this Agreement will begin on the EFFECTIVE DATE and
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will end five (5) years following such EFFECTIVE DATE, unless terminated
earlier in accordance with the provisions hereof. [*] It may thereafter be
renewed for successive terms under terms to be negotiated, subject to mutual
written agreement by the parties.
(B) TERMINATION FOR BREACH. Either party may terminate this Agreement by
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written notice to the other party if the other party fails to perform or
observe any of its obligations under this Agreement and such failure is not
cured within thirty (30) days after written notice thereof from the
terminating party.
(C) BANKRUPTCY. Either party may terminate this Agreement immediately by
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written notice to the other party if there occurs any assignment of the other
party's assets for the benefit of creditors, any dissolution of the other
party, any voluntary act of bankruptcy by the other party, or any involuntary
filing under any bankruptcy law against the other party which is not dismissed
within thirty (30) days of filing.
(D) EFFECT. Upon expiration or termination of this Agreement for any
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reason:
(i) All licenses and other rights granted to VAR under this Agreement will
become null and void, except: (a) for the END USER licenses for any APPLICATION
BUNDLE previously distributed by VAR, or (b) for the limited license to VAR to
use the VISIGENIC PRODUCTS for the sole purpose of fulfilling any pre-existing
contractual obligations for maintenance and support services of the APPLICATION
BUNDLE to its END USERs.
(ii) VAR and its DISTRIBUTORs and RESELLERs will surrender all copies of
the VISIGENIC PRODUCTS in their possession or control, or, at VISIGENIC's
option, they will destroy and provide VISIGENIC with a certificate signed by an
executive officer attesting to the destruction of all copies of the VISIGENIC
PRODUCTS remaining in their possession or control.
(iii) Upon termination of this Agreement, all outstanding obligations or
commitments of either party to pay amounts to the other party through the
termination date of this Agreement, if any, will become immediately due and
payable.
(iv) Upon termination of this Agreement, neither party will have any right
to receive any compensation, reimbursement or other amounts from the other party
solely as a result of such termination, and neither party will have any right
whatsoever in or to the other party's software or any copyrighted materials,
patents, trade secrets, or other proprietary rights relating to the other
party's software, other than as Provided for in this Section 9.
(v) Upon termination of this Agreement, either party can pursue it remedies
under this Agreement, whether at law or in equity, including without limitation
suing for damages and injunctive relief, and all other remedies available under
copyright, patent, trademark, trade secret, and other applicable laws and
administrative regulations.
(vi) Notwithstanding the foregoing, in the event of expiration or
termination except in the case of an uncured material breach by VAR of Section 3
(PAYMENT AND OTHER OBLIGATIONS), Section 4 (PROPRIETARY RIGHTS), or Section 5
(CONFIDENTIAL INFORMATION), VISIGENIC agrees to permit VAR a period of three (3)
months ("REMOVAL PERIOD") from the date of termination to re-engineer its
products to remove the VISIGENIC DISTRIBUTION PRODUCT(S) from
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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such products. Until the earlier of (i) the expiration of the REMOVAL PERIOD or
(ii) the date VAR has removed the VISIGENIC DISTRIBUTION PRODUCT(S) from its
products, all licenses granted under this Agreement will remain in effect,
subject to payment under Section 3.
10. GENERAL
(A) GOVERNING LAW, COMPLETE AGREEMENT; MODIFICATIONS. This Agreement is
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governed by the laws of the State of California and VAR further consents to
jurisdiction by the state and federal courts sitting in the State of
California. This Agreement and the accompanying exhibits and attachment(s) is
the complete agreement between VISIGENIC and VAR regarding the VISIGENIC
PRODUCTS and supersedes any prior agreements between VISIGENIC and VAR
relating to the subject matter hereof. This Agreement will not be modified
except by a properly executed written agreement. Any terms and conditions of
any purchase order or other instrument issued by VAR in connection with this
Agreement which are in addition to, inconsistent with or different from the
terms and conditions of this Agreement will be of no force or effect.
(B) ATTORNEYS' FEES. If either VISIGENIC or VAR employs attorneys to
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enforce any rights arising out of or relating to this Agreement, the
prevailing party will be entitled to recover reasonable attorneys' fees.
(C) SURVIVAL. All provisions, except for Section 2, will survive
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termination of this Agreement for any reason.
(D) ASSIGNMENT AND BINDING EFFECT. This Agreement, and any rights or
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obligations hereunder will not be assignable by contract or by operation of
law without the prior written consent, not to be unreasonably withheld, of the
non-assigning party, except that VAR may assign this Agreement to the buying
party, if VAR sells, at a minimum, 50% of its assets attributable to the VAR
PRODUCT technology. However, either party may assign this Agreement upon
thirty (30) days' prior written notice in connection with a merger,
consolidation, reorganization or sale of substantially all of the assigning
party's assets. This Agreement will be binding upon and inure to the benefit
of the parties, their successors and permitted assignees.
(E) NOTICES. Any notice required to be sent to a party under this Agreement
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will be in writing, effective on receipt by that party, and will be sent by fax,
first-class mail or personal delivery to the Address for Notice given for that
party below. Either party may change its notice address by giving written
notice to the other party at the other party's notice address.
(F) WAIVER AND SEVERABILITY. The waiver of one breach or default under
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this Agreement will not constitute the waiver of any subsequent breach or
default. Any provision of this Agreement held to be illegal or unenforceable
will be deemed amended to conform to applicable laws or regulations, or if it
cannot be so amended without materially altering the intention of the parties,
it will be stricken and the remainder of this Agreement will continue in full
force and effect.
(G) INDEPENDENT CONTRACTORS. The parties will at all times be independent
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contractors and will so represent themselves to all third parties. Neither
party has granted to the other the right to bind it in any manner whatsoever and
nothing herein will be deemed to constitute either party the agent or legal
representative of the other nor to constitute the parties as joint venturers.
(H) EXCUSABLE DELAYS. Neither party will be responsible for failure of
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performance due to causes beyond its control. Such causes include (without
limitation) accidents, acts of God, labor disputes, actions of any government
agency and shortage of materials.
(I) EXPORT. VAR may not export or re-export the VISIGENIC PRODUCTS in
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violation of the then current United States export laws. VISIGENIC shall provide
VAR with reasonable assistance in classifying and otherwise describing the
VISIGENIC PRODUCT for purposes of meeting such U.S. Government requirements and
obtaining such U.S. Government approvals.
(J) GOVERNMENT USE. The VISIGENIC PRODUCTS provided under this Agreement
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are commercial computer software developed exclusively at private expense, and
in all respects are proprietary data belonging to VISIGENIC or its suppliers.
(a) Department of Defense End Users. (i) if the VISIGENIC PRODUCTS are
acquired by or on behalf of agencies or units of the Department of Defense
(DoD), then, pursuant to DoD FAR Supplement Section 227.7202 and its
successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or
disclose the VISIGENIC PRODUCTS acquired under this Agreement is subject to
the restrictions of this Agreement. (b) Civilian Agency End Users. (i) If the
VISIGENIC PRODUCTS are acquired by or on behalf of civilian agencies of the
U.S Government, then, pursuant to FAR Section 12.212 and its successors (48
C.F.R. 12.212), the Government's right to use, reproduce or disclose the
VISIGENIC PRODUCTS acquired under this Agreement is subject to the
restrictions of this Agreement.
(K) ESCROW. Upon request, VAR may become a beneficiary of VISIGENIC's
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existing source code escrow by entering into an agreement with VISIGENIC and the
independent escrow agent under which the relevant VISIGENIC PRODUCT will be
released to VAR under certain conditions in the event that VISIGENIC is unable
or unwilling to support or maintain such VISIGENIC PRODUCT in breach of this
Agreement. Any source code released to VAR will be CONFIDENTIAL INFORMATION
under this Agreement. Such source code may only be used by VAR for support and
maintenance of its customers within the scope of this Agreement, and may not be
used to create additional functionality or versions of the VISIGENIC PRODUCTS
VAR will promptly deliver to VISIGENIC copies of all modifications made to the
source code by VAR, and VISIGENIC will own such modifications, subject to a
license under this Agreement to VAR of the same scope as that for the VISIGENIC
PRODUCTS. In the event that VISIGENIC offers support to VAR, pursuant to the
terms and conditions of this Agreement, and VAR accepts the offer of support
subsequent to VAR becoming a beneficiary of VISIGENIC's source code escrow, if
ever, VISIGENIC will offer support to VAR at no charge for a period of time
equal to the amount of time VAR has been without support, in consideration of
VAR's delivery to VISIGENIC of any and all modifications made to the source code
by VAR. Attached hereto is Exhibit D, is the SourceFlex Software Source Code
Escrow Agreement, between VISIGENIC and SourceFile, and Exhibit B, the
SourceFile Form of Acknowledgment by Beneficiary. VISIGENIC will update the
VISIGENIC PRODUCTS source code in escrow no less frequently than semi-annually.
(L) INJUNCTIVE RELIEF. In the event of a breach of this Agreement, money
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or damages will not be an adequate remedy, and therefore, in addition to any
other legal or equitable remedies, either party will be entitled to seek an
injunction or other equitable relief against such breach. Notwithstanding the
foregoing, in the event a RESELLER, DISTRIBUTOR or END USER is in violation of
their agreement with VAR, as it relates to this Agreement, VISIGENIC will not
seek injunctive relief against VAR so long a VAR is not in violation of this
Agreement.
IN WITNESS WHEREOF, VISIGENIC and VAR have caused this Agreement to he
entered into by their duly authorized representatives as of the EFFECTIVE DATE
written below:
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EFFECTIVE DATE OF THIS AGREEMENT 3-27-97.
VAR
BUSINESS OBJECTS. VISIGENIC SOFTWARE, INC.
/s/ Xxxxxxx Xxxxxxxx /s/ J. Xxxxx Xxxxxxxx
By By
Xxxxxxx Xxxxxxxx J. Xxxxx Xxxxxxxx
Name(Print) Name (Print)
President and CEO VP-Worldwide Sales
Title Title
Address for Notice
Business Objects Americas Visigenic Software, Inc.
U.S. Headquarters 000 Xxxxxxx'x Xxxxxx Xxxx., Xxxxx 000
Xxxx.: Xxxxxxxx Xxxxxxxxx Xxx Xxxxx, XX 00000
2870 Zanker Road Phone: 000-000-0000
Xxx Xxxx, XX 00000 Fax: 000-000000
Phone: 000-000-0000 Fax: 000-000-0000
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EXHIBIT A
ADDITIONAL AND/OR MODIFIED TERMS AND CONDITIONS1. VISIGENIC PRODUCT selection
and definition:
A. VISIGENIC DISTRIBUTION PRODUCT(S): Check the box if the VISIGENIC
DISTRIBUTION PRODUCT is to be licensed pursuant to this Agreement.
[*]
B. VISIGENIC DEVELOPMENT PRODUCTS:
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
6
[*]
C. VISIGENIC PRODUCT LICENSE TYPES:
VISIGENIC PRODUCT are licensed according to one of the four license types
as set forth below:
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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2. VAR PRODUCT(s) permitted to be packaged in combination with the VISIGENIC
DISTRIBUTION PRODUCT(S), selected above, as an APPLICATION BUNDLE:
Business Objects products, either owned or licensed for sale or resale by VAR,
except that in the case of an assignment pursuant to 10(d) of this Agreement,
VAR PRODUCTS shall be limited to those VAR PRODUCTS in existence (Business
Objects products only, does not include the assignees products) at the time of
the assignment.
3. LICENSE FEE(S):
A. VAR will pay to VISIGENIC an ANNUAL LICENSE FEE which is due on or before
the EFFECTIVE DATE and on each anniversary of the EFFECTIVE DATE, in
consideration for which VAR will be entitled to:
* Copy, market and distribute, packaged in combination with one or more VAR
PRODUCTS as an APPLICATION BUNDLE, and unlimited number of' copies of the
VISIGENIC DISTRIBUTION PRODUCT(s), however, VAR shall not be required to
monitor or report the hardware systems on a machine by machine basis as is
indicate in Exhibit A.I.C.4, herein.
* Copy and use internally up to the combined maximum number of VISIBROKER for
C++ and VISIBROKER for JAVA VISIGENIC DEVELOPMENT PRODUCTS as is set forth
below:
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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5. ADDITIONAL AND/OR MODIFIED TERMS AND CONDITIONS:
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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EXHIBIT C
PREMIUM LEVEL
TECHNICAL SUPPORT SERVICES AGREEMENT
1.0 General Terms and Conditions:
1. I Scope of Technical Support Agreement: Visigenic Software, Inc. (VSI)
shall maintain an organization and be prepared with suitably qualified and
competent personnel during normal business hours to provide knowledgeable and
timely maintenance and support service in accordance with this Standard
Technical Support Services Agreement. This Support Agreement covers the
Visigenic software for which the customer has purchased a Technical Support
Agreement. This coverage outlined in this Agreement does not include any
adaptations or modifications made by the Customer to the Software unless special
prior agreement has been entered into regarding such modifications or additions.
1.2 Definition of Technical Support Services: Under the Standard Technical
Support Services Agreement, customers will be provided with the following
technical support services:
* Telephone Support: Visigenic will provide telephone access to the Customer
on an Active Support Agreement during Normal Business Hours. Normal
Business Hours are between 6 a.m. to 6 p.m. (PST), Monday through Friday,
excluding holidays. Telephone support is provided by Technical Support
Engineers (TSE). It is the responsibility of the TSE to coordinate the
resolution of problems, including the verification of any reported error,
communicating with the Customer for additional information, telephone or
email resolution or workaround, as applicable, and for supplying the error
correction and/or update as necessary.
* Email Support: Customer may log request for support via email by directing
their query to: xxxxxxx@xxxxxxxxx.xxx.
* Fax Support: Customer may log request for support via fax by sending a full
problem description to the published technical support fax number.
* On-Line Services: Visigenic provides access to a World Wide Web page which
allows access to a knowledgebase designed to provide Customers with general
information about the use and operations of Visigenic products and the
ability to submit Technical Support Cases via the WWW page.
* Notice of New Product Releases: Customers will be notified when major and
minor releases become available.
* Two (2) Authorized Contacts: Two (2) authorized contacts from the
Customer's organization may be named at any one time. These contacts may
be changed by written notice to VISIGENIC. Additional contacts may be
added for an additional charge.
* Semiannual technical reviews with members of the VISIGENIC employees.
2.0 REPORTING OF CASES TO VISIGENIC'S TECHNICAL SUPPORT DEPARTMENT
2.1 All inquires to technical support must be made by one of the Customer's
authorized contacts. Technical
Support Cases will generally fall into three categories:
* Technical Assistance: Questions about product usage and installations which
do not result in registration of a Product Defect or Enhancement Request.
* Product Defect: The Customer encounters a problem which is determined to be
a Product Defect.
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* Feature Enhancement Requests: Request by the Customer for a tool or feature
that is not included in the current set of Visigenic products or features.
Visigenic will review Customers requests for feature enhancement during normal
product update cycles, however, Visigenic is under no obligation to incorporate
any modifications or new features requested by Customer into any Visigenic
product.
Visigenic cannot provide extended consulting services through the Technical
Support organization as part of the Technical Support Agreement. Visigenic does
have a consulting organization to assist Customer in project planning and
programming. Visigenic reserves the right to advise Customers to use the
consulting organization for additional assistance in resolving issues that fall
outside the scope of Technical Support. These services would be subject to the
then current Consulting fees. Customers should contact their Visigenic Sales
Representative regarding availability and purchase of such services.
All case reports to Visigenic's Technical Support Department shall include the
following:
* The name and version of the Visigenic product and version number being
used.
* Platform on which the Visigenic product is running.
* A general description of the operating environment.
* A list of all hardware components in the environment.
* List of operating system versions of all hardware components.
* A reproducible test case demonstrating the problem, which is a small
code sample, usually less than a hundred (100) lines, that
demonstrates the specific syntax that causes the behavior being
reported.
* All applicable error, trace and system files.
* Exact wording of all error messages.
* A full description of the problem and expected results.
* Any special circumstances surrounding the discovery of the error.
3.0 DEFINITIONS OF TECHNICAL SUPPORT CASE PRIORITIES:
3.1 Priority Definitions:
Visigenic will work with the Customer to assign the appropriate priority to all
reported Technical Support Cases based on the following criteria:
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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[*]
3.2 Visigenic's Undertaking:
For each Technical Support Case reported by the Customer, VISIGENIC undertakes
to: [*]
ACKNOWLEDGMENT TIME is the amount of time between when the Customer reports the
case to VISIGENIC via phone, voicemail, email, WWW or fax, and the time that the
Customer is given an identifying case number. RESPONSE TIME is the elapsed time
until a technical support engineer (TSE) is assigned and actively working on the
case.
3.3 Customer's Undertaking:
Before opening a Technical Support Case, the Customer undertakes to:
* Use best efforts to verify that the error is reproducible on the approved
platform(s) for the Visigenic product being used.
* Appoint two Authorized Contacts from the Customer's organization for all
matters relating to the Technical Support Case.
* Obtain all information necessary in accordance with the necessary
information outlined above.
* Include the identifying case number in all communications with Visigenic
with regard to the technical support case.
4.0 CLOSURE OF TECHNICAL SUPPORT CASES
Open Technical Support Cases will be considered to be resolved and will be
closed when:
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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PRIORITY CONDITIONS
[*]
Technical support cases may be reopened at the customers request if the problem
reoccurs.
5.0 FAILURE SEVERITY LEVELS AND CORRECTION GOALS
Should a failure in the Visigenic product be discovered as the result of a
technical support Case, a failure identification number will be generated and
the failure will be escalated to Visigenic's Engineering staff. Failures are
assigned a severity level (Level 1 through 4). Each severity has associated
temporary correction (workaround) and permanent fix response time goals. The
severity levels for failures are defined as follows:
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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[*]
In order for a failure to be escalated to engineering, the customer must provide
a complete test case that will allow technical support to reproduce the failure.
After technical support has reproduced the failure, a failure identification
number will be assigned and the severity will be determined based on the
conditions outlined above. The response time goals above do not apply in
situations where it is verified that the source of the failure is a third party
product.
6.0 Case and Failure Escalation Procedure
The severity level for a reported failure will be determined jointly by
technical support and the customer. In the case of Severity 1 failures, regular
status updates will be provided to the customer and the case will be escalated
by the responsible Technical Support Engineer to the Visigenic Technical Support
manager.
7.0 MAINTENANCE RELEASES
Customers who are covered by an active support contract at the time of a
maintenance release will be notified when major or minor maintenance releases
become available. Maintenance releases fall into three types:
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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[*]
Product releases are identified by way of a three part version number of the
following form:
xx.yy.[zzzz], where
XX - major release number, may be one or two digits each
YY = minor release number, may be one or two digits each
ZZZZ = incremental release number and is optionally used, may be zero to four
digits
In general usage, such as in product documentation, only the major and minor
fields are typically used.
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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ATTACHMENT 2
EXPANDED DESCRIPTION OF THE VISIBROKER DEVELOPER'S KIT
FOLLOWING IS A DESCRIPTION OF THE COMPONENTS OF THE VISIBROKER DEVELOPER'S KIT
FOR BOTH JAVA AND C+V
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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ATTACHMENT 3
EXPANDED DESCRIPTION OF THE VISIBROKER EVENT SERVICE DEVELOPER'S KIT
FOLLOWING IS A DESCRIPTION OF THE COMPONENTS OF THE VISIBROKER EVENT SERVICE
DEVELOPER KIT:
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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ATTACHMENT 4
EXPANDED DESCRIPTION OF THE VISIBROKER NAMING SERVICE DEVELOPER'S KIT
[*]
[*] Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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