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EXHIBIT 10.5
OEM SOFTWARE LICENSE AGREEMENT
PREAMBLE: This Agreement ("Agreement") is effective as of the date shown on
the signature page between Gupta Corporation ("GUPTA"), a California
corporation, with offices at 0000 Xxxxx Xxxx, Xxxxx Xxxx, XX 00000 and the
organization specified on the signature page ("OEM") hereby enter into this
agreement whereby GUPTA is engaged in the business of designing and developing
database management software and has developed proprietary software products
collectively called "THE SQL SYSTEM" and OEM wishes to incorporate one or more
of such software products into OEM Products as defined and specified herein,
and OEM and GUPTA desire to enter into an agreement pursuant to which GUPTA
will provide such products for integration into a OEM Product within the
geographic territory specified on the signature page ("Territory") only who
will then further such Programs to end users in the Territory for their own
use, in accordance with the terms and conditions hereof.
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1. CERTAIN DEFINITIONS
1.1 "Program"
Shall mean the proprietary software programs in object code form specified on
the signature page to this Agreement.
1.2 "List Price" and "Territory List Price"
The term "List Price" shall mean the generally published single copy price for
the Program for a particular country or territory as found in the then-current
applicable Gupta OEM Price List for that specific geographic region if the
reference price only refers to that geographic region.
If the reference price of a given Program applicable to OEM is to vary from
geographic region to region then the term "Territory List Price" will be used.
Then-current applicable, generally published OEM Price Lists for requested
territories or countries will be supplied to OEM upon written request to GUPTA.
GUPTA reserves the right to modify or change the List Price or Territory List
Price of any Program, or of any other produce or services, at its sole
discretion, upon 30 days written notice to OEM.
1.3 "Distributor"
Shall mean any entity who is duly authorized by OEM to sublicense and/or
manufacture the Programs.
1.4 "Sublicensee"
Shall mean any entity who has been sublicensed by OEM or by a Distributor to
use the Programs.
1.5 "OEM Product"
Shall mean only the OEM programs or products specifically described or listed
on the signature page, and shall also include any Derivative Works.
Any OEM Product:
(i) must not provide a general purpose programming interface to the Programs
or links to one;
(ii) must not make the SQL/API or the SQL language directly accessible to
users;
(iii) must not provide a general purpose capability to users to create or
modify tables in the database. The application software may, however, create
tables without knowledge of the user for the purpose of storing application
specific data (e.g., parts table in an inventory control application) or for
storing and manipulating temporary results from queries;
(iv) must not contain a general purpose forms definition, adhoc query,
reporting or data analysis tool, except for the sole purpose of providing data
entry and reporting facilities for application specific data;
(v) must not function as a general purpose database management system.
1.6 "Derivative Works"
Shall mean a revision, modification, enhancement, abridgement, condensation or
expansion of a OEM Product or any form in which such OEM Product may be recast,
transformed, or adapted by OEM.
1.7 "License" or "Copy"
Shall mean a single copy of a Program or a OEM Product.
2. GRANT OF RIGHTS
2.1 Manufacturing, Sublicensing, Distribution and Packaging Rights
GUPTA grants to OEM, during the term of this Agreement, a non-exclusive, right
to manufacture, sublicense, distribute and package the Programs within the
Territory for use in conjunction with and as an embedded component of a OEM
Product only. OEM must specifically restrict its sublicensees from using a OEM
Product or any components thereof for general purpose application development
or for any other purpose that would violate the restrictions specified in this
Section 2.1 or Section 1.5 above.
2.2 Technical Restriction
GUPTA shall be permitted to make, or require OEM to make, reasonable technical
modifications to the Programs to ensure that the provisions of Section 1.5 and
2.1 regarding the sublicensing and use of the Programs are complied with,
provided, however, that the modifications do not unduly affect the legitimate
use of the Programs under the terms of this Agreement.
LICENSEE___________ GUPTA ______
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2.3 Sublicense Agreements
OEM agrees to sublicense the Programs only under an enforceable written
agreement, which may be shrinkwrapped, between OEM and its Sublicensees, which
(i) protects GUPTA's (and/or GUPTA's Licensors) proprietary rights and title to
the Programs, and (ii) which expressly prohibits the Sublicensee from using the
Programs for any purpose other than that permitted by the OEM Product.
2.4 Distributor Agreements
If OEM appoints a Distributor to market or otherwise sublicense an OEM Product,
then OEM will do so only under a written agreement between OEM and Distributor
which requires the Distributor to agree to the terms of Section 2.3 above, and
to further sublicense the Programs under the same terms. In addition, such
agreement must require Distributor to comply with the terms of Section 11.2
below.
2.5 Rights and Title
GUPTA and/or GUPTA's Licensors shall retain all right, title and interest in
and to the Programs (including without limitation all improvements, updates,
enhancements and copies thereof made by or for GUPTA) subject to a license to
OEM granted hereunder. Other than for exercising the rights granted in this
Agreement, OEM shall not use, duplicate, transfer, or otherwise modify the
Programs for any other purposes. OEM agrees not to, or cause a third party to,
dissemble or reverse compile, the Programs.
3. FEES AND PAYMENTS
3.1 Initial Payment and Commitment
In consideration for the rights granted in Section 2 above, upon the execution
of this Agreement, OEM agrees to pay to GUPTA the payment as specified on the
signature page. This initial payment shall serve as a noncontingent,
nonrefundable advance against License Fees that may become due to GUPTA under
Section 3.2 below.
3.2 License Fees
For each Copy of a Program distributed, sublicensed and/or shipped to a
customer by OEM under the terms of this Agreement, OEM agrees to pay a License
Fee equal to the single-copy Territory List Price for such Program, less the
applicable discount ("Discount") specified on the signature page.
3.3 Support Fee
In consideration for the support and maintenance services provided by GUPTA as
specified in Section 4 below, for each calendar quarter that this Agreement is
in effect, OEM agrees to pay GUPTA a quarterly Support Fee as specified on the
signature page.
3.4 Product Upgrade Fees
For each Copy of a new Enhancement Release or Major Version of the Programs (as
defined in GUPTA's generally published support policies, which may be changed
from time-to-time by GUPTA) sublicensed, distributed and/or shipped by OEM to
its existing customers for the OEM Products under the terms of this Agreement,
OEM shall pay to GUPTA a fee ("Product Upgrade Fee") equal to GUPTA's generally
published Territory List Price for such new Enhancement Release or Major
Versions less the discount specified on the signature page.
3.5 Reports and Payments
(i) All payments under this Agreement shall be made in U.S. dollars.
(ii) Payments of OEM's initial commitment shall be made as specified in
Section 3.1 above.
(iii) During the term of this Agreement and within thirty (30) days of the end
of each calendar quarter, OEM shall report ("Report") to GUPTA in writing all
copies of OEM Products and the Programs sublicensed, distributed and/or shipped
by OEM. Such Report shall also include a calculation of Licensee Fees and
Product Upgrade Fees due to GUPTA for such Copies, based upon the fees
specified in Sections 3.2 and 3.4, such fee to be based on the gross number of
Copies of the Programs distributed, sublicensed and/or shipped by OEM less
returned copies and a reasonable number of demonstration and evaluation copies.
OEM shall make payment of the fees specified in each Report, with an adjustment
for advances if any are outstanding, along with its submission. Should the
calculation of fees due to GUPTA be found to be in error, an adjustment shall
be made within fifteen days of the discovery of such error.
(iv) Payment of the Support Fee for any given calendar quarter shall be made
on or before the last day of the immediately previous calendar quarter.
3.6 Records and Review
OEM shall keep accurate records necessary to verify compliance with licensing
and payment terms of this Agreement, along with reasonable detail. OEM shall,
with reasonable advance notice, make such records available to GUPTA for
inspection during normal business hours. OEM shall pay GUPTA's reasonable,
documented, out-of-pocket expenses incurred in connection with such inspection
if and only in the case that such inspection reveals that the payments made by
to GUPTA during any applicable period aggregated less than ninety-five percent
(95%) of the payments required to be made during such period.
3.7 Shipping Expenses
All prices are ex-works Menlo Park, and OEM shall reimburse GUPTA for any
shipping expenses incurred by GUPTA.
3.8 Service Charge
A service charge of 1.5% per month will apply to all delinquent payments.
4. SUPPORT AND MAINTENANCE
4.1 Technical Support
GUPTA shall provide OEM with the applicable technical support services
specified on the signature page. GUPTA's support services and maintenance of
the Programs shall be consistent with GUPTA's generally published support
programs and policies, which may be changed from time-to-time by GUPTA.
4.2 Support of OEM's Sublicensees and/or Distributors
OEM shall be responsible for supporting OEM's Sublicensees and/or Distributors
for the Programs.
4.3 Product Updates
Provided that OEM has paid the Support Fee as provided in Section 3.3 above,
during the term of this Agreement periodic updates ("Product Updates") to the
Programs will be provided to OEM, such Product Updates to include Maintenance
Releases. Such Product Updates will be provided to OEM contemporaneously with
when GUPTA first makes such Product Updates commercially available to its other
OEM customers for the Programs. OEM shall have the right to sublicense and
distribute (as provided in Section 2.3 above) such Product Updates to its
existing customers for the OEM Products without payment of additional fees to
GUPTA.
4.4 Product Upgrades
Provided that has paid the Support Fee as provided as provided in Section 3.3
above, during the term of this Agreement periodic upgrades ("Product
Upgrades") to the Programs will be provided to OEM, such Product Upgrades to
include Enhancement Releases and Major Versions to the Programs. GUPTA shall
use reasonable efforts to provide information to
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OEM for such Product Upgrades (4) to (6) months in advance of when such Product
Upgrades are commercially available. Furthermore, such Product Upgrades will be
provided to OEM contemporaneously with when GUPTA first makes such Product
Upgrades commercially available to its other OEM customers for the Programs.
OEM shall have the right to sublicense and distribute (as provided in Section
2.1 above) such new Major Versions of the Programs to its existing customers
for the OEM Products, subject to the payment of Product Upgrade Fees as
provided in Section 3.4 above.
4.5 Training and Consulting
OEM may avail of GUPTA's services for product training and custom development
at the then current Territory List Prices for such services, or as contained in
the then current GUPTA U.S. and Canada Price List.
5. CONFIDENTIAL
GUPTA AND OEM agree that each of them shall, during the term of this Agreement
and for five (5) years thereafter, take all steps which are necessary or
reasonable to safeguard the secrecy and confidentiality of, and proprietary
rights to, the confidential information of the other party disclosed hereunder
(including, but not limited to, product plans, marketing and/or other business
plans, technical specifications, the terms and conditions of this Agreement,
and, if disclosed, portions of the Programs source code) and shall not, without
the prior written consent of the other party, disclose the foregoing to any
third party; provided, however, that this provision shall not be construed to
restrict the disclosure of information which (a) is publicly known at the time
of its disclosure to a party, (b) is lawfully received by a party from a third
party not bound in a confidential relationship to GUPTA or OEM, (c) was already
known by GUPTA or OEM at the time of disclosure by the other party, or (d) is
required by law to be disclosed by such party.
6. WARRANTIES
6.1 Representation and Warranties of GUPTA
GUPTA hereby represents and warrants to OEM that (i) to the best of GUPTA's
knowledge, the Program does not infringe any patent, copyright, trade secret or
any other proprietary right of any third party, (ii) GUPTA and/or to the best
of GUPTA's knowledge GUPTA's Licensors owns all right, title and interest in
and to the Program, free and clear of all liens, security interests, charges or
encumbrances by third parties; and (iii) GUPTA has full right, power and
authority to enter into this Agreement and to carry out its obligations
hereunder.
6.2 Limitation of Warranties
OTHER THAN THE REPRESENTATIONS SET FORTH IN THIS AGREEMENT, GUPTA MAKES NO
WARRANTIES EXPRESS OR IMPLIED, CONCERNING THE PROGRAMS, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IT IS
EXPRESSLY AGREED THAT GUPTA SHALL NOT BE LIABLE, OR IN ANY WAY RESPONSIBLE FOR
THE COMMERCIAL SUCCESS OF THE PROGRAM OR ANY ENHANCEMENT THEREOF.
7. INDEMNIFICATIONS AND LIMITATION OF LIABILITY
7.1 Indemnification by GUPTA
GUPTA agrees to hold OEM harmless from and against any liability whatsoever
associated with any claim or suit for infringement of any United States
copyright, patent, trade secret or other proprietary right of another as a
result of its use or of any version of the Programs. To qualify for indemnity
under this Section 7.1 OEM must (i) give GUPTA prompt written notice of any
such claim or liability, and (ii) allow GUPTA to control and cooperate with
GUPTA (at GUPTA's expense, excluding the time spent by employees or consultants
of OEM) in the defense of any such claim and in all related settlement
negotiations. In the event that OEM wishes to participate in the defense of
any such claim, GUPTA shall allow OEM to participate at its own expense.
GUPTA has no obligations or liability under this Section for any claim based on
the use of the Programs or parts thereof with software not delivered by GUPTA
or when used in a manner for which it was notdesigned or where modified by or
for OEM in a manner to become infringing.
THIS SECTION STATES GUPTA'S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
7.2 Indemnification by OEM
OEM agrees to hold GUPTA harmless from and against any liability whatsoever
associated with the use of the Programs by OEM or its Sublicensees and/or
Distributors except as provided in Section 7.1 and to the extent that such
liability does not result from a breach of Section 6.1. To qualify for
indemnity under this Section 7.2, GUPTA must (i) give OEM prompt written notice
of any such claim or liability, and (ii) allow OEM to control and cooperate
with OEM at OEM's expense in the defense of any such claim and in all related
settlement negotiations. In the event that GUPTA wishes to participate in the
defense of any such claim, OEM shall allow GUPTA to participate at its own
expense.
7.3 Limitation of Liability
EXCEPT AS SET FORTH IN SECTION 7.1 ABOVE, GUPTA'S LIABILITY ARISING OUT OF THIS
AGREEMENT OR THE USE OR DISTRIBUTION OF ANY LICENSE SHALL BE LIMITED TO THE
AMOUNT PAID BY OEM TO GUPTA FOR THAT LICENSE UNDER THE TERMS OF THIS AGREEMENT.
IN NO EVENT SHALL GUPTA BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS
BY ANYONE, NOR WILL GUPTA BE LIABLE FOR SPECIAL, CONSEQUENTIAL, OR OTHER
DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR
OTHERWISE, AND WHETHER OR NOT GUPTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL
LIABILITY OF GUPTA ARISING OUT OF THIS AGREEMENT.
8. PROPRIETARY RIGHTS
8.1 Trademarks
GUPTA hereby warrants that SQLBase, SQLGateway, SQLHost, Quest, SQLTalk,
SQLRouter and SQLWindows are registered trademarks of GUPTA in the U.S.A.
GUPTA represents that it is applying for numerous other trademarks in the
U.S.A. and other jurisdictions. GUPTA hereby authorizes OEM to use GUPTA's
trademarks in its product and marketing literature, provided OEM shall
adequately acknowledge and publish GUPTA's ownership of such trademarks. GUPTA
reserves the right to revoke such authorization, at GUPTA's sole discretion.
8.2 Copyrights
Subject to the rights and licenses granted to OEM by this Agreement, GUPTA
shall have sole and exclusive right, title, and interest in and to its
copyright in the Programs (including without limitation all improvements,
updates, enhancements and copies thereof made by or for GUPTA or OEM). OEM
shall reproduce GUPTA's copyright on the title screen or "About Box" of the
Programs and on the package and/or media containing the relevant Program.
9. SALE OR ASSIGNMENT
OEM may not assign this Agreement without the prior written consent of GUPTA.
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10. TERM AND TERMINATION
10.1 Term of Agreement
The initial term of this Agreement shall expire on the date specified on the
signature page. Thereafter, it may be renewed, on an annual basis, only upon
mutual written agreement.
10.2 Termination for Breach
Either party may terminate this Agreement for material breach of this Agreement
upon thirty (30) days prior written notice, if said breach is not cured by the
other party within such period (or longer period if the parties agree in
writing).
10.3 Continuing Obligations
The termination of this Agreement for any reason shall not relieve any party of
(i) its obligations to make payments which may have accrued hereunder, but
which remained unpaid as of the date of termination; (ii) to maintain
confidentiality; and (iii) to indemnify against certain actions. The
termination of this Agreement shall not in any manner terminate, abrogate, or
otherwise limit or curtail the rights and licenses previously granted to
Sublicensees pursuant to this Agreement, including OEM's right to continue to
support its customers for the applications that include or access the Programs.
10.4 Force Majeure
Neither party shall be liable for any delays in the performance of any of its
obligations hereunder due to causes beyond its control, including but not
limited to, fire, strike, war, riots, acts of any civil or military authority,
judicial action, acts of God, or other casualty or natural calamity.
11. MISCELLANEOUS PROVISIONS
11.1 Entire Agreement
This Agreement, together with the Exhibits attached hereto, sets forth the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes any and all prior agreements, understandings, promises
and representations made by either party to the other concerning the subject
matter hereof and the terms applicable hereto. This Agreement may not be
released, discharged, amended or modified in any manner except by an instrument
in writing signed by both parties hereto.
11.2 Import and Export Provisions
OEM shall, at its own expense, pay all import and export licenses and permits,
pay customs charges and duty fees, and take all other actions required to
accomplish the export and import of the Programs acquired by OEM. In the
performance of their respective obligations under this Agreement, Gupta and OEM
shall, at all times, strictly comply with all laws, regulations and orders of
the United States of America and other applicable jurisdictions. Without
limiting the generality of this Section 11.2, the parties specifically
acknowledge that the Programs and Confidential Information are subject to
United States export controls, including, without limitation, the Export
Administration Regulations, 15 C.F.R. Parts 768-799. OEM agrees, and shall
cause each end-user and/or reseller to agree, that it will not export or
reexport the Programs, the Confidential Information or any direct product
thereof, directly or indirectly to, or for use in, any country for which such
export is forbidden and/or controlled by the laws of the United States of
America or other applicable jurisdictions.
11.3 Parties Independent
In making and performing this Agreement, the parties act and shall act at all
times as independent contractors and nothing contained in thisAgreement shall
be construed or implied to create an agency, partnership or employer and
employee relationship between OEM and GUPTA or between any party hereto and any
officer or employee of the other party. At no time shall either party make
commitments or incur any charges or expenses for or in the name of the other
party.
11.4 Severability
The invalidity or unenforceability of one or more provisions of this Agreement
shall not affect the validity or enforceability of any of the other portions
hereof, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provisions were omitted.
11.5 Governing Law
This Agreement shall be construed and enforced in accordance with the laws of
the U.S.A. and the state of California. All disputes arising out of this
Agreement shall be subject to the exclusive jurisdiction of the California
State courts, San Mateo County, California (or, if there is exclusive federal
jurisdiction, the United States District Court for the Northern District of
California), and the parties agree and submit to the personal and exclusive
jurisdiction and venue of these courts.
11.6 Injunctive Relief
Each party acknowledges that the other believes that its confidential
information is unique property of extreme value to the other party, and the
unauthorized use or disclosure thereof would cause the other party irreparable
harm that could not be compensated by monetary damages. Accordingly, each party
agrees that the other may seek injunctive and preliminary relief to remedy any
actual or threatened unauthorized use or disclosure of the other party's
confidential information.
11.7 Waivers
The failure of either party to insist, in any one or more instances, upon the
performance of any of the terms, covenants or conditions of this Agreement,
shall not be constructed as a waiver or relinquishment of the future
performance of any such term, covenant or condition, but the obligations of the
other party with respect to such future performance shall continue in full
force and effect.
11.8 Headings
The headings of the articles and sections used in this Agreement are included
for convenience only and are not to be used in construing or interpreting this
Agreement.
11.9 Notices
Any notice required to be made or given to either party hereto shall be made by
personal delivery, to a designated FAX number, telegram, telex, mailgram,
certified or registered mail return receipt requested, postage prepaid, and
addressed to such party at its address set forth on the first page of this
Agreement or to such other address of such party shall designate by written
notice. Written notice shall be deemed to have been given (48) hours after
posting when sent by first class mail, on delivery when sent by hand, and when
to a designated FAX number.
11.10 Counterparts
This Agreement may be executed in two counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
11.11 Taxes
OEM shall pay or reimburse GUPTA for all national, federal, state, local or
other taxes and assessments of any jurisdiction, including sales or use taxes,
property taxes, withholding taxes as required by international tax treaties,
customs or other import or export taxes,value added taxes, and amounts levied
in lieu thereof based on charges set, services performed or to be performed or
payments made or to be made under this Agreement. In no case shall OEM be
liable for taxes based on GUPTA's net income.
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11.12 Marketing and Promotional Activities
As soon as practicable after the effective date of this Agreement, both parties
will issue a joint press release announcing OEM's rights to distribute and
market the Programs, but in no case shall such press release be issued without
the consent of both parties. GUPTA shall have the right to use the OEM name in
customer lists or promotional documents that incorporate such lists. During
the term of this Agreement, both parties agree to cooperate in ongoing joint
promotional and marketing activity with respect to the Programs and to respect
the other party's reasonable policies with respect to use of its corporate or
product names.
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OEM SOFTWARE LICENSE AGREEMENT
(Signature Pages)
IN CASE OF CONFLICT BETWEEN THE TERMS AND CONDITIONS SPECIFIED ON THE SIGNATURE
PAGES BELOW AND THE TERMS AND CONDITIONS CONTAINED IN THE BODY OF THE
AGREEMENT, THE TERMS AND CONDITIONS OF THESE SIGNATURE PAGES SHALL CONTROL.
1. OEM: For purposes of this Agreement, OEM shall be the following
organization at the designated address:
Organization Name: Deltek
Organized Under the laws of: Virginia
Headquarters Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
XxXxxx, XX 00000
Phone: (000) 000-0000 FAX: (000) 000-0000
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2. TERRITORY: Worldwide
3. EFFECTIVE DATE OF AGREEMENT: March 1, 1993
4. TERMINATION DATE: March 31, 1996
5. PROGRAMS (PLEASE LIST): SQLBASE FOR SUN UNIX (UNLIMITED USERS)
SQLBASE FOR SUN UNIX (5 USERS)
SQLBASE NLM (UNLIMITED USERS)
SQLBASE NLM (20 USERS)
SQLBASE NLM (5 USERS)
SQLBASE FOR OS/2 (UNLIMITED USERS)
SQLBASE FOR OS/2 (5 USERS)
SQLBASE FOR OS/2 (SINGLE USER)
SQLBASE FOR DOS (UNLIMITED USERS)
SQLBASE FOR DOS (5 USERS)
SQLBASE FOR DOS (SINGLE USER)
SQLBASE SERVER FOR WINDOWS
SQLBASE ENGINE FOR WINDOWS
SQLWINDOWS RUNTIME FOR DOS*
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FOR PURPOSES OF THIS AGREEMENT ONLY, THE LIST PRICE FOR THE SQLWINDOWS RUNTIME
FOR DOS AS IT AFFECTS OEM SHALL BE $0 (ZERO U.S. DOLLARS).
6. INITIAL PAYMENT AND COMMITMENT:
(a) In consideration for the rights granted in Section 2 of this Agreement,
OEM agrees that the sum of [*] is immediately due and payable to GUPTA and shall
be paid by OEM to GUPTA net thirty (30) days from receipt of GUPTA's invoice.
This sum shall serve as a noncontingent, nonrefundable advance against License
Fees that may become due to GUPTA under Section 3.2 of the Agreement.
(b) Provided that OEM has not exercised its option to terminate the
agreement or increase its discount as provided in Item 7(b) below, OEM further
agrees that its minimum nonrefundable payments of License Fees (over and above
the initial payment specified in Item 6(a) above) during each twelve month
period that this Agreement is in effect shall be [*]. If, during the annual
period ending March 31 of each calendar year that this Agreement is in effect,
such nonrefundable payments of License Fees to GUPTA do not equal or exceed [*],
then OEM agrees to pay the difference between such payments actually made to
GUPTA and [*] on or before March 31 of such calendar year, such payment to serve
as an additional noncontingent, nonrefundable advance against License Fees that
may become due to GUPTA during the remaining term of the Agreement.
Example: Assume that OEM makes payment to GUPTA of License Fees (over
and above the initial prepayment) of [*] each along with the quarterly
reports for the quarters ending June 30, 1993, September 30, 1993 and
December 31, 1993. Therefore, in order to meet the requirement of the
above paragraph, OEM will make a nonrefundable payment of License Fees
to GUPTA in the amount of [*] on or before March 31, 1994.
7. LICENSE FEES/DISCOUNTS:
(a) For each Copy of a Program distributed, sublicensed and/or shipped to
a customer by OEM under the terms of this Agreement, OEM agrees to pay GUPTA
the following License Fees:
(i) For Copies of the Programs, the U.S. and Canada List Price
for such Program [*];
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSSION]
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(ii) For Copies of the Standard Products (as provided in Section
2.l(ii) of this Agreement), the Territory List Price [*].
(iii) In the event that GUPTA is in default of its shipment
obligations for OEM's orders for such Standard Products as provided in
this item 7 under the rights granted to OEM under Section 2.1 (ii) of
this Agreement, for a period in excess of thirty (30) days, then OEM
shall have a limited right to manufacture the Standard Products for
the sole purpose of distribution as provided under Section 2.1(ii) of
this Agreement. OEM shall report to GUPTA within ten (10) days of
manufacture any copies it makes of the Standard Products under this
provision and the applicable License Fees for such Standard Products
shall be credited against OEM's outstanding prepayment balance with
GUPTA.
OEM's right to manufacture copies of such Standard Products hereunder
shall terminate at the earlier of: (i) the termination or expiration
of this Agreement; (ii) when GUPTA has demonstrated that it is able to
meet its shipment obligations hereunder at which time OEM shall notify
GUPTA in writing that such has occurred, or (iii) when the applicable
prepayments are exhausted.
(iv) OEM shall acquire support services for the Standard Products
under GUPTA's then current prices, terms and according to GUPTA's
support policy in effect at the time.
(b) On or before December 15, 1993, OEM agrees to notify GUPTA in writing
whether (i) it elects to terminate this Agreement effective December 31, 1993
at which point OEM shall have no financial obligation to Gupta other than that
which would be due to Gupta for licensing and support through December 31, 1993
or (ii) it will elect to increase the above discount [*]. If OEM so elects,
then the provisions of 6(b) above are waived and OEM agrees to make minimum
nonrefundable, noncontingent advance payments of License Fees in the following
amounts on or before the specified dates:
Amount Date
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[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
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8. OEM SUPPORT FEE:
(a) During the initial four calendar quarters following execution of this
Agreement and in consideration for the support and maintenance services provided
by GUPTA as specified in Section 4 of this Agreement, OEM agrees to pay GUPTA a
quarterly fee equal to the sum of (i) [*] of GUPTA's then current fee for STAR
Support Service (as of the date of execution of this Agreement such fee is [*]),
plus (ii) a Support Fee of [*] of the cumulative License Fees for Standard
Product shipped by Gupta to OEM and for License Fees earned by Gupta for
Programs sublicensed by OEM (or distributed by OEM under Section 2.1 of this
Agreement) as of the end of the previous calendar quarter, reduced by those
License Fees paid by OEM for customers of the OEM Product who are not receiving
maintenance support for the OEM Product from OEM.
Example: Assume that at the time a quarterly support fee is due, Gupta
has shipped to OEM [*] worth of Standard Products and OEM has
sublicensed [*] worth of Programs. The fee due to Gupta at that time
would be [*] calculated as [*] for STAR Support (assuming the current
charge of [*] annually has not changed) plus [*] of [*].
The current STAR Support Agreement is attached to these Signature Pages as
Exhibit I.
(b) Subsequent to the initial four calendar quarters following execution of
this Agreement and in consideration for the support and maintenance services
provided by GUPTA as specified in Section 4 of this Agreement, OEM agrees to pay
GUPTA a quarterly fee equal to [*] of the cumulative License Fees for Standard
Product shipped by Gupta to OEM and for License Fees earned by Gupta for
Programs sublicensed by OEM (or distributed by OEM under Section 2.1 of this
Agreement) as of the end of the previous calendar quarter, reduced by those
License Fees paid by OEM for customers of the OEM Product who are not receiving
maintenance support for the OEM Product from OEM. OEM may, at its option,
acquire STAR Support Services for such subsequent period(s) from GUPTA, under
GUPTA's then current STAR Support Services terms and conditions, and unless OEM
so elects, GUPTA shall have no obligation to provide such STAR Support Services
during such subsequent period(s).
(b) For purposes of this Agreement only, GUPTA agrees to support prior
versions of the Programs up to a maximum of one (1) calendar year after release
of a successor version of such Program. Such support services shall be charged
to OEM at GUPTA's then current time and materials rate in effect. Terms of
payment shall be net thirty (30) days from receipt of GUPTA's invoice.
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
Sig 4
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9. PRODUCT UPGRADE FEE:
(a) For each Copy of a new Enhancement Release or Major Version of the
Programs (as specified in Section 3.4 of this Agreement) sublicensed,
distributed and/or shipped by OEM to its existing customers for the OEM Product
under the terms of this Agreement, OEM shall pay to GUPTA a Product Upgrade Fee
equal to the [*] (i) GUPTA's generally published U.S. and Canada List Price
for such new Enhancement Release or Major Versions of such Program less
OEM's then-current Discount for the Programs as provided under item 7 above or
(ii) [*] of (a) GUPTA's generally published List Price for the underlying
Program less (b) OEM's then current Discount for the Programs as provided
under item 7 above.
(b) For each Copy of a new Enhancement Release or Major Version of the
Standard Products distributed by OEM to its existing customers for the OEM
Product under the terms of this Agreement OEM shall pay to GUPTA a Product
Upgrade Fee equal to GUPTA's generally published U.S. and Canada List Price for
such new Enhancement Release or Major Versions for such Standard Product less
OEM's then-current Discount.
10. OEM PRODUCT:
For purposes of this Agreement the OEM Product shall mean any accounting, job
cost, or material management software application product which OEM sells.
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
Sig 5
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11. OTHER TERMS:
A. SECTION 1 ("CERTAIN DEFINITIONS") OF THE AGREEMENT IS AMENDED TO ADD
THE FOLLOWING ADDITIONAL DEFINITION AS SECTION 1.8.
1.8 "Standard Products"
Shall mean GUPTA's commercially available Quest for Windows, and
SQLWindows Standard Edition and SQLWindows Corporate Edition software
products only, as found in the then current applicable (commercial)
GUPTA Territory Price List. Copies of these price lists shall be
provided to OEM at OEM's written request to Gupta.
B. SECTION 2.1 ("MANUFACTURING, SUBLICENSING, DISTRIBUTION AND PACKAGING
RIGHTS") OF THIS AGREEMENT IS DELETED AND REPLACED AS FOLLOWS:
2.1 Manufacturing. Sublicensing, Distribution and Packaging Rights
(i) GUPTA grants to OEM, during the term of this Agreement, a
non-exclusive, right to manufacture, sublicense, distribute and
package the Programs within the Territory for use in conjunction with
and as an embedded component of a OEM. OEM must specifically restrict
its sublicensees from using a OEM Product or any components thereof
for general purpose application development or for any other purpose
that would violate the restrictions specified in this Section 2.1 or
Section 1.5 above.
(ii) GUPTA further grants to OEM a non-exclusive right to
distribute the Standard Products as manufactured and packaged by GUPTA
within the Territory for use in conjunction with the OEM Product only.
IN WITNESS WHEREOF, the parties hereby confirm that this Agreement is effective
at the date set forth above and that all terms and conditions have been agreed
to:
By: /s/ Xxxxxxx X. xxXxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. xxXxxxx Name: Xxxxxxx X. Xxxxx
Title: President Title: President
Date: March 29, 1993 Date: March 29, 1993
Sig 6
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EXHIBIT I
STAR SUPPORT SERVICES AGREEMENT
(ATTACHED HERETO)
Sig 7
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STRATEGIC TECHNICAL ACCOUNT REPRESENTATION ("STAR")
SUPPORT AGREEMENT
PREAMBLE: Gupta Corporation, ("Gupta") is engaged in the business of
designing, developing, marketing, licensing, and supporting computer software
programs and related user manuals, and ("Licensee") desires to subscribe to the
STAR Support program in accordance with the terms of this Agreement. Gupta
provides STAR Support, a special support applicable to Gupta's proprietary
software products, ("Programs") for which Licensee is licensed, and Licensee
desires to receive STAR Support Services in conjunction with previously
acquired Programs by Licensee and licensed for Licensee's use by Gupta.
1. STAR SUPPORT:
During the initial term of this Agreement, Licensee shall be eligible to
receive Gupta STAR Support Services as described in the STAR Support program
description current as of the date of execution of this Agreement, attached
hereto as Exhibit 1. During such initial term, Gupta may add additional
services to those listed in Exhibit I but may not delete any services or add
additional fees without the written consent of Licensee unless Licensee is in
default of its payment or other obligations to Gupta under this Agreement.
It is expressly understood that STAR Support Services are in addition to any
other support services which may be due Licensee from Gupta including, without
limitation, License Subscription Service ('LSS") as are commercially defined
and provided by Gupta to its other customers for the Programs. To the extent
that Licensee's eligibility to receive STAR Support Services is dependent on
Licensee maintaining such additional support services on the covered Programs,
Licensee expressly agrees to do so.
STAR Support Services as provided by Gupta hereunder shall only apply to those
Product license numbers previously and/or contemporaneously acquired by
Licensee from Gupta and/or Gupta's authorized resellers andlisted on the
signature page, ("STAR Supported Software").
2. RESPONSIBILITIES OF GUPTA:
Gupta agrees, during the initial term of this Agreement, to provide to Licensee
STAR Support Services as specified in Exhibit 1, subject to the following
understandings:
(i) All response times are targets. Gupta shall use its reasonable
efforts to adhere to these targets.
(ii) Gupta's obligations with respect to shipping Maintenance Releases to
the Programs shall be to provide such Maintenance Releases only for the STAR
Support Software listed on the signature page, as soon as reasonably possible
after such Maintenance Releases become available. This Agreement shall not be
construed to obligate Gupta to provide Maintenance Releases to Licensee on any
specific timetable.
(iii) Upon execution of this Agreement, Gupta shall designate on the
signature page the named representatives that may be required as part of
providing STAR Support Services to Licensee. Gupta may change the designated
technical representatives assigned to work with Licensee upon written notice to
Licensee.
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(iv) Nothing in this Agreement shall be construed to obligate Gupta to do any
specific development work on the Programs nor to change Gupta's general
maintenance and support policies with respect to the Programs.
3. SOFTWARE SUPPORT NOT COVERED BY THIS AGREEMENT:
Gupta has no obligation under this Agreement to support the following:
(i) Altered or modified STAR Supported Software;
(ii) Derivative works;
(iii) A combination of the STAR Supported Software and software not covered
by this Agreement;
(iv) Gupta will provide support services only for the most recent version
of the Programs, and will support the preceding version for no more than six
(6) months after a new Enhancement Release or Major Version of the Programs
becomes generally commercially available to Licensee. If Licensee does not
update Licensee's STAR Supported Software within that time, Gupta will have no
further obligation to provide STAR Support Services or other support services
for the Product(s).
(v) Errors or Program problems created by Licensee's negligence or fault;
(vi) Errors or Program problems resulting from hardware malfunction or by
malfunction in other software not provided by Gupta
4. LICENSEE'S RESPONSIBILITIES:
Questions concerning the adaptation or modification of the STAR Supported
Software are not covered by this Agreement. Licensee agrees to furnish
descriptions of malfunctions inthe form requested by the STAR Support Engineer.
Licensee also agrees to assist Gupta's efforts to duplicate any errors or
problems in the STAR Supported Software.
5. LICENSE AGREEMENT:
The Programs are licensed to Licensee under the terms and conditions of the
applicable Gupta Software License Agreement that accompanies the given Program
or has been separately executed by Gupta and Licensee. Nothing in this
Agreement shall affect Licensee's rights to use the given Program as defined in
such applicable Gupta Software License Agreement.
6. FORCE MAJEURE:
Neither party shall be liable for any delays in the performance of any of its
obligations hereunder due to causes beyond its reasonable control, including
but not limited to, fire, strike, war, riots, acts of any civil or military
authority, judicial action, acts of God, or other casualty or natural calamity.
7. LIMITATION OF LIABILITY:
GUPTA'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT
PAID BY LICENSEE TO GUPTA UNDER THE TERMS OF TIES AGREEMENT. IN NO EVENT
SHALL GUPTA BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE,
NOR WILL GUPTA BE LIABLE FOR SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, HOWEVER
CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR
NOT GUPTA HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. THE ESSENTIAL
PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF GUPTA ARISING
OUT OF THIS AGREEMENT.
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8. PAYMENT:
Upon execution of this Agreement, Licensee will pay to Gupta a nonrefundable
payment for STAR Support Services as specified on the signature page. This sum
shall be paid to Gupta by Licensee upon receipt of Gupta's invoice. This
payment will be confirmed by Licensee with a purchase order (or equivalent
document) submitted by Licensee to Gupta, the terms and conditions of which
will not supercede this Agreement.
9. EXTRAORDINARY EXPENSES:
Gupta reserves the right to charge for unusual or excessive telephone,
shipping, handling, media or user manual expenses in connection with the STAR
Support to be provided hereunder. In all cases, Gupta shall notify Licensee of
these costs in advance.
10. TERM AND TERMINATION:
The initial term of this Agreement shall expire on the date specified on the
signature page, unless terminated earlier under the provisions of Section 11.
At the expiration of the initial term, this Agreement may be renewed for
additional one (1) year terms upon Licensee's agreement to the terms,
conditions, prices and scope of services applicable to STAR Support Services as
may be generally available from Gupta at that time.
Nothing in this Agreement shall obligate Gupta to (i) offer STAR Support
Services to Licensee beyond the initial term of this Agreement or, if offered
to Licensee for a renewal term, offer STAR Support Services at any set rate,
price or fee or (ii) include within the STAR Support Services any specific set
of services during such renewal term.
11. TERMINATION FOR BREACH:
This Agreement may be terminated at any timeon thirty (30) days written notice
by either party specifying a breach of the terms and conditions of this
Agreement, provided the other party does not cure the breach within that
period.
12. MISCELLANEOUS:
(i) Licensee may not assign this Agreement to a third party without the
prior written consent of Gupta.
(ii) This Agreement cannot be modified or amended unless a written
amendment or modification is executed by authorized representative of Gupta and
Licensee.
(iii) This Agreement supersedes all prior agreements, written or oral,
relating to the Gupta support of the Supported Software.
(iv) This Agreement shall be construed and enforced in accordance with the
laws of the State of California, U.S.A. and shall be subject to the exclusive
jurisdiction of the courts of the State of California.
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EXHIBIT 1
STAR SUPPORT SERVICES
(EFFECTIVE 6/1/92)
The following features are associated with Gupta's STAR Support Service:
- Two designated support contacts.
- Named Strategic Technical Account Representative ("STAR
Consultant") with designated backup.
- Target response time to telephone calls of 2 working hours maximum.
- 6:00 a.m. to 6:00 p.m. PST service on Monday - Friday (except
holidays)
- Access to Senior Technical Support through STAR Consultant.
- Defined escalation procedure.
- Monthly call tracking reports itemizing correspondence and bug
status ("STAR Reports")
- Monthly conference call review of customer activity and product
alerts ("STAR Review")
- Automatic shipment of product updates ("Maintenance Releases").
- Support license reconciliation to Licensee's fiscal year end date
or other calendar date.
- Advance product information.
- First right of refusal for participation in Gupta's beta program.
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STRATEGIC TECHNICAL ACCOUNT REPRESENTATION ("STAR")
SUPPORT AGREEMENT
(SIGNATURE PAGE)
1. LICENSEE: For purposes of this Agreement, Licensee shall be the
following organization at the designated address:
Organization Name: Deltek
Organized Under the laws of: Virginia
Headquarters Address: 0000 Xxxxxxxxxx Xxxxx
Xxxxx 000
XxXxxx, XX 00000
Phone: (000) 000-0000 FAX: (000) 000-0000
-------------- --------------
2. EFFECTIVE DATE OF AGREEMENT: MARCH 31, 1993
3. TERMINATION DATE: MARCH 31, 1994
4. STAR SUPPORT SERVICES Fee: $ $12,500 (U.S. DOLLARS)
5. LICENSEE'S DESIGNATED STAR SUPPORT CONTACTS:
Name: Xxxxxxx Xxxx Name: Dien Do
------------------- ----------------------------
Phone: 703/000-0000 xxx 000 Phone: 703/000-0000 xxx 000
-------------------- --------------------
FAX: 703/ 000-0000 XAX: 703/ 000-0000
------------- -----------------
6. STAR SUPPORTED SOFTWARE
(PLEASE LIST ):
GUPTA PROGRAM(S): GUPTA PROGRAM LICENSE NUMBERS:
------------------- ------------------------------
------------------- ------------------------------
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------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
------------------- ------------------------------
Note: All STAR Supported Software must be covered under LSS.
7. OTHER TERMS:
(a) SECTION 3.(iv) OF THE STAR SUPPORT AGREEMENT IS DELETED AND REPLACED
AS FOLLOWS:
(iv) For purposes of this Agreement only, GUPTA agrees to support prior
versions of the Programs up to a maximum of one (1) calendar year after release
of a successor version of such Program. Such support services shall be charged
to Licensee at GUPTA's then current time and materials rate in effect. Terms
of payment shall be net thirty (30) days from receipt of GUPTA's invoice. If
Licensee does not update Licensee's STAR Supported Software within that time,
GUPTA will have no further obligation to provide STAR Support Services or other
support services for the Program(s).
IN WITNESS WHEREOF, the parties hereby confirm that this Agreement is effective
at the date set forth above and that all terms and conditions have been agreed
to:
LICENSEE: GUPTA:
By: /s/ Xxxxxxx X. xxXxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. xxXxxxx Name: Xxxxxxx X. Xxxxx
Title: President Title: Vice President
Date: March 29, 1993 Date: March 29, 1993
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AMENDMENT NUMBER ONE
TO THE
OEM SOFTWARE LICENSE AGREEMENT
BETWEEN
GUPTA CORPORATION ("GUPTA")
AND
DELTEK ("OEM")
This Amendment Number One to the OEM Software License Agreement
effective March 29, 1993 ("Agreement"), is between Gupta Corporation ("GUPTA"),
a California Corporation with offices at 0000 Xxxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxxx and Deltek ("OEM"), a Virginia corporation with principal offices at
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, XX 00000.
WHEREAS GUPTA and OEM desire to add additional Programs via this
Amendment One ("Amendment").
NOW, THEREFORE, GUPTA and OEM agree, as follows:
1. CONFLICTS, USE OF TERMS: In the event of conflict between the terms
and conditions of the Agreement and the terms and conditions of this Amendment
the terms and conditions of this Amendment will hold. The headings used in
this Amendment are included for convenience only and are not to be used in
construing or interpreting the Amendment or the Agreement.
2. MODIFICATION OF ITEM 5 OF THE SIGNATURE PAGES ("PROGRAMS") OF THE
AGREEMENT. Upon execution of this Amendment, Item 5 of the Signature Pages of
the Agreement is modified by adding the following Programs:
SQLRouter/Oracle
SQLRouter/Sybase
SQLRouter/AS/400
SQLRouter/Informix
SQLRouter/Ingres
SQLBase Server for NetWare (50 Users)
3. REPLACEMENT OF SECTION 4.4 OF THE AGREEMENT. Upon the execution of
this Amendment, Section 4.4 of the Agreement is deleted and replaced with the
following:
4.4 Product Upgrades
Provided that OEM has paid the Support Fee as provided in Section 3.3
above, during the term of this Agreement periodic upgrades ("Product
Upgrades") to the Programs will be provided to OEM, such Product
Upgrades to include (i) Enhancement Releases and Major
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Versions of the Programs and (ii) versions of the Programs adapted to
run on additional operating system platforms if and when made
commercially available by GUPTA. Such Product Upgrades will be
provided to OEM contemporaneously with when GUPTA first makes such
Product Upgrades commercially available to its other customers for the
Programs. OEM shall have the right to sublicense and distribute (as
provided in Section 2.1 above) such Product Upgrades to its existing
customers for the OEM Products, subject to the payment of Product
Upgrade Fees as provided in Section 3.4 above.
4. NO FURTHER MODIFICATIONS: Other than as provided above in this
Amendment, all other provisions of the Agreement shall remain unchanged.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and effective as of the day and year first above written.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxx X. Xxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: Vice President
Date: 6/15/94 Date: 6/15/94
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AMENDMENT NUMBER TWO
TO THE
OEM SOFTWARE LICENSE AGREEMENT
BETWEEN
GUPTA CORPORATION ("GUPTA")
AND
DELTEK ("OEM")
This Amendment Number Two ("Amendment Number Two") to the OEM Software
License Agreement effective March 1, 1993 ("Agreement"), as amended June 15,
1994, ("Amendment Number One") is between Gupta Corporation ("GUPTA"), and
Deltek ("OEM").
WHEREAS GUPTA and OEM have agreed on terms, conditions and payments
whereby certain modifications are to be made to the Agreement.
NOW, THEREFORE, GUPTA and OEM agree by way of this Amendment Number
Two, ("Amendment Two"), as follows:
1. CONFLICTS, USE OF TERMS: In the event of conflict between the terms
and conditions of the Agreement, Amendment Number One and this Amendment Number
Two, the terms and conditions of this Amendment Number Two will hold. Where
applicable, the defined terms in the Agreement and shall have the same meaning
in this Amendment Number Two.
2. MODIFICATION OF ITEM 4 ("TERMINATION DATE") OF THE SIGNATURE PAGES OF
THE AGREEMENT. Upon execution of this Amendment Two, Item 4 of the Signature
Pages of the Agreement is modified by replacing the date "March 31, 1996 " by
"August 31, 1997."
3. MODIFICATION OF ITEM 5 ("PROGRAMS") OF THE SIGNATURE PAGES OF THE
AGREEMENT. Effective September 1, 1994, Item 5 SP of the Agreement is modified
by the addition of the following Programs.
SQLBASE SINGLE-TASKING ENGINE FOR WINDOWS
SQLBASE MULTI-TASKING ENGINE FOR WINDOWS
SQLCONSOLE
REPORT WINDOWS
(a) For purposes of calculating the License Fees due to GUPTA by OEM under
Item 7 of the Signature Pages of the Agreement, the Programs listed in Item 5
of the Signature Pages of the Agreement have been classified as follows:
(i) The SQLBase Programs for Sun UNIX, DOS, NetWare and OS/2 (all user
levels) are collectively referred to as "SQLBASE SERVER PROGRAMS"
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(ii) The SQLBase Single-Tasking and Multi-Tasking Engine for Windows
Programs are collectively referred to as "SQLBASE ENGINE PROGRAMS."
(ii) The SQLRouter/Oracle, AS/400, Informix, Sybase, and Ingres Programs
are collectively referred to as "SQLROUTER PROGRAMS."
4. PAYMENT TO GUPTA: Upon execution of this Amendment Two and in
consideration of GUPTA's agreement to Sections 2 and 3 of this Amendment Two,
OEM irrevocably agrees that the sum of [*] is immediately due and payable to
GUPTA and shall be paid to GUPTA net thirty (30) days from GUPTA's invoice date.
This sum shall serve as an additional noncontingent, nonrefundable advance (over
and above the initial payment of [*] specified in Item 6(a) of the Signature
Pages of the Agreement) against License Fees that may become due to GUPTA under
Section 3.2 of the Agreement.
5. REPLACEMENT OF ITEM 7 ("LICENSE FEES/DISCOUNT") OF THE SIGNATURE PAGES
OF THE AGREEMENT. Effective September 1, 1994, Item 7 of the Signature Pages
of the Agreement is deleted and replaced with the following:
(a) For each Copy of a Program distributed, sublicensed and/or shipped to a
customer by OEM under the terms of this Agreement, OEM agrees to pay GUPTA the
following License Fees:
(i) The License Fee for a single Copy of any of the SQLBase Server
Programs shall be [*]:
(aa) [*] or,
(bb) [*] for each PC workstation (i) on which such Copy of the
relevant SQLBase Server Program or component thereof is distributed,
sublicensed and/or shipped by OEM and/or (ii) any PC workstation that
is concurrently running the OEM Product and/or accessing such Copy of
the SQLBase Server Program, subject to the terms of this Agreement;
(ii) The License Fee for Copies of the SQLBase Engine Programs shall be [*];
(iii) The License Fee for Copies of the SQL Console Program shall be the
United States and Canada List Price [*];
(iv) The License Fees for Copies of the Report Windows Program shall be [*];
(v) For purposes of this Agreement only, the SQLRouter Programs are
licensed to OEM to be sublicensed to customers on a "per server" basis, i.e.,
each License for the SQLRouter Programs shall permit OEM or its sublicensees to
make an unlimited number of copies of the relevant SQLRouter Program provided
that such copies are used to connect to a single copy of the relevant database
server (i.e., running on a single computer) only. The License Fee for the
SQLRouter Programs shall
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
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be [*].
(vi) For Copies of the Standard Products (as provided in Section 2.1(ii) of
this Agreement), the Territory List Price [*].
(vii) In the event that GUPTA is in default of its shipment obligations for
OEM's orders for such Standard Products as provided in Item 7(vi) above under
the rights granted to OEM under Section 2.1(ii) of this Agreement, for a period
in excess of thirty (30) days, then OEM shall have a limited right to
manufacture the Standard Products for the sole purpose of distribution as
provided under Section 2.1(ii) of this Agreement. OEM shall report to GUPTA
within ten (10) days of manufacture any copies it makes of the Standard
Products under this provision and the applicable License Fees for such Standard
Products shall be credited against OEM's outstanding prepayment balance with
GUPTA. OEM shall specify on its purchase order for the Standard Products the
country or territory to which such Standard Product is to be used by OEM.
OEM's right to manufacture copies of such Standard Products hereunder shall
terminate at the earlier of: (aa) the termination or expiration of this
Agreement; (bb) when GUPTA has demonstrated that it is able to meet its
shipment obligations hereunder at which time OEM shall notify GUPTA in writing
that such has occurred, or (ccc) when the applicable prepayments are exhausted.
(viii) To the extent that OEM's orders for the Standard Products are not
covered by a prepayment, or in the event that OEM wishes to acquire future
versions of such Standard Products (if and when such future versions become
commercially available from GUPTA), terms of payment for such orders shall be
net thirty (30) days from GUPTA's invoice date, subject to available credit
from GUPTA.
(ix) OEM's end-users shall be eligible to acquire support services for the
Standard Products under GUPTA's then current prices, terms and according to
GUPTA's Product Support Policy in effect at the time for the applicable country
or territory.
6. REPLACEMENT OF ITEM 8 ("OEM SUPPORT FEE") OF THE SIGNATURE PAGES OF THE
AGREEMENT. Effective September 1, 1994, Item 8 of the Signature Pages of the
Agreement is deleted and replaced with the following:
In consideration for the support services and maintenance provided by
GUPTA as specified in Section 4 of the Agreement, and for STAR Support
Services to be provided under GUPTA's STAR Support program (or the
equivalent GUPTA premium support program which may then be in effect),
OEM agrees to pay GUPTA follows:
Commencing September 30, 1994 and on the last day of each subsequent
calendar quarter thereafter during the term of this Agreement, OEM
agrees to pay GUPTA a quarterly support fee in advance equal to the
sum of (a) [*] of the cumulative License Fees for Standard Products
shipped by GUPTA to OEM and for the cumulative License Fees for the
Programs sublicensed by OEM (or distributed by OEM under Section 2.1
GTC) as of the end of that
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
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previous calendar quarter, reduced by those License Fees paid by OEM
for customers of the OEM Product who are not receiving maintenance
support for the OEM Product from OEM plus (b) [*] of GUPTA's then
current fee for STAR Support Services.
In consideration for the above payment GUPTA will provide to OEM, the
Support and Maintenance services for the Programs and Standard
Products as specified in Section 4 GTC, plus updates and upgrades to
the Programs and Standard Products. Such upgrades will cover future
like-for-like releases (identical product, user capacity and operating
system) of the Programs and Standard Products that may become
available from GUPTA during the term of this Agreement.
Such STAR Support Services shall be provided by GUPTA consistent with
GUPTA's then-current published service features of the STAR Support
program which may be changed from time-to-time by GUPTA. A copy of
the features of the STAR Support program current as of the date of
this Agreement shall be provided to OEM upon OEM's request.
NOTE: of the date of execution of this Amendment Number 2 GUPTA's annual fee
for STAR Support Services is [*].
7. MODIFICATION OF ITEM 9 ("PRODUCT UPGRADES") OF THE SIGNATURE PAGES OF THE
AGREEMENT. Effective September 1, 1994, Item 9 of the Signature Pages of the
Agreement is deleted and replace with the following:
(a) The fees paid by OEM to GUPTA under Item 8 SP above shall cover any
Product Upgrade Fees due to GUPTA for Product Upgrades for Programs and
Standard Products on a like-for-like basis.
8. SECTION 1.8, ("STANDARD PRODUCTS") OF THE AGREEMENT IS DELETED IN ITS
ENTIRETY AND REPLACED WITH THE FOLLOWING: Effective September 1, 1994,
Section 1.8 of the Agreement is deleted and replaced with the following
1.8 "Standard Products"
Shall mean GUPTA's commercially available GUPTA proprietary PC
software program(s) in packaged form listed below:
Quest, Version 3.x
SQLWindows Network Edition, Version 5.x
SQLWindows Corporate Edition, Version 5.x
SQLConsole Version 1.x
Quest Reporter, Version 3.x
9. ADDITION OF ITEM 11(d) OF THE SIGNATURE PAGES OF THE AGREEMENT. Upon
the effective date
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
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of this Amendment Number Two, Item 11(d) is added as follows:
(d) SQLBase Documentation
(i) OEM shall be eligible to acquire up to twenty (20) Copies of
the SQLBase documentation sets for OEM's internal use or distribution
at the then current United States and Canada List Price for such
documentation [*].
(ii) Terms of payment for any order for the SQLBase documentation
shall be net thirty (30) days from receipt of GUPTA's invoice.
Advance payments paid to GUPTA under Item 6(a) of the Signature Pages
above shall not be applicable against such purchases. OEM shall
specify on its purchase order for the SQLBase documentation the
country or territory to which such documentation is to be used by OEM.
10. ADDITION OF SECTION 2.1(iii) TO THE AGREEMENT: The following is added
as Section 2.1(iii) of the Agreement:
(iii) A personal, fully paid-up license to use, copy and distribute
the User Documentation for the Programs including all applicable
upgrades and updates to such documentation, provided that the
provision of such documentation is consistent with the limitations on
use of the Programs as provided in Sections 2.1 hereunder. OEM may
also acquire such User Documentation pursuant to this Agreement from
GUPTA at GUPTA's then-current price.
11. ROYALTY REPORT: Upon the effective date of this Amendment Number
Two, OEM agrees to provide to GUPTA an interim Report for the period commencing
July 1, 1994 through August 31, 1994.
12. TIME IS OF THE ESSENCE: This Amendment Number Two is null and void
unless executed no later than August 31, 1994.
13. NO ADDITIONAL MODIFICATIONS: Except as provided above, the terms and
conditions of the Agreement remain unchanged.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
and effective as August 31, 1994.
OEM: GUPTA CORPORATION
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer Title: Vice President
Date: August 31, 1994 Date: August 31, 1994
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
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AMENDMENT NUMBER THREE
TO THE
OEM SOFTWARE LICENSE AGREEMENT
BETWEEN
CENTURA SOFTWARE CORPORATION ("CENTURA")
AND
DELTEK ("OEM")
WHEREAS CENTURA and OEM have entered into an OEM Software License
Agreement with an Effective Date of March 1, 1993 ("Agreement") and as amended
June 15, 1994 ("Amendment Number One"), and as amended August 31, 1994
("Amendment Number Two") is between Centura Software Corporation, ("CENTURA")
and Deltek, ("OEM").
WHEREAS CENTURA and OEM have agreed to amend the terms and conditions
of the Agreement with respect to an additional prepayment, additional Standard
Products and License Fees via this Amendment Number Three ("Amendment');
NOW, THEREFORE, CENTURA and OEM agree as follows:
1. CONFLICTS, USE OF TERMS: In the event of conflict between the terms
and conditions of the Agreement, as previously amended, and this Amendment, the
terms and conditions of this Amendment shall take precedence. Where
applicable, the defined terms in the Agreement shall have the same meaning in
this Amendment.
2. CHANGE OF NAME: OEM hereby acknowledges that Gupta Corporation is in
the process of changing its name to and is now operating under the name of
Centura Software Corporation. At all times the term "CENTURA" or "Gupta" as
found in the Agreement and as modified by this Amendment shall be taken to
refer to Centura Software Corporation.
3. PAYMENT: Upon execution of this Amendment, and in consideration for
CENTURA's agreement to Sections 4, 5, 6, 7 and 8 below, OEM irrevocably agrees
to pay CENTURA the nonrefundable, noncontingent payment of [*] [over and above
the previous advances paid to CENTURA under the Agreement]. Such sum to serve
as a noncontingent, nonrefundable advance against License Fees and OEM Support
Fees that may become due to CENTURA under the Agreement. This sum shall be
immediately due and payable to CENTURA and shall be paid by OEM in three (3)
installments as follows:
(i) [*] on or before [*] and;
(ii) [*] on or before [*] and;
(iii) [*] on or before [*]
4. MODIFICATION OF SECTION 1.8, ("STANDARD PRODUCTS") OF THE AGREEMENT.
Effective July 1,
1
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
27
1996, Section 1.8 of the Agreement shall be modified to add the following
Standard Products:
Centura Team Developer
Centura Ranger
5. MODIFICATION OF ITEM 4 ("TERMINATION DATE") OF THE SIGNATURE PAGES OF
THE AGREEMENT: Upon the execution of this Amendment, Item 4 of the Signature
Pages of the Agreement shall be modified by deleting "August 31, 1997" and
replacing with "December 31, 1999."
6. REPLACEMENT OF ITEM 7(vi) OF THE SIGNATURE PAGES OF THE AGREEMENT.
Effective July 1, 1996, Item 7(vi) of the of the Signature Pages of the
Agreement is deleted and replaced with the following:
(vi) Excluding the SQLWindows Standard Products, for orders of
copies of the Standard Products, OEM shall pay to CENTURA the
Territory List Price less a discount of [*] and for copies of the
SQLWindows Standard Products, OEM shall pay to CENTURA the Territory
List Price less a discount of [*]
7. REPLACEMENT OF ITEM 8, ("OEM SUPPORT FEE") OF THE SIGNATURE PAGES OF
THE AGREEMENT. Effective June 30, 1996, Item 8 of the of the Signature Pages of
the Agreement is deleted and replaced with the following:
In consideration for the support services and maintenance provided by
CENTURA as specified in Section 4 of the Agreement, and for Gold
Support Services to be provided under CENTURA's Gold Support program
(or the equivalent CENTURA premium support program which may then be
in effect), OEM agrees to pay CENTURA follows:
Commencing June 30, 1996 and on the last day of each subsequent
calendar quarter thereafter during the term of this Agreement, OEM
agrees to pay CENTURA a quarterly support fee in advance equal to the
sum of (a) [*] of the cumulative License Fees for Standard Products
shipped by CENTURA to OEM and for the cumulative License Fees for the
Programs sublicensed by OEM (or distributed by OEM under Section 2.1
GTC) as of the end of that previous calendar quarter, reduced by those
License Fees paid by OEM for customers of the OEM Product who are not
receiving maintenance support for the OEM Product from OEM plus (b)
[*] of CENTURA's then current fee for Gold Support Services.
Such Gold Support Services shall be provided by CENTURA consistent
with CENTURA's then-current published service features of the Gold
Support program which may be changed from time-to-time by CENTURA.
8. REPLACEMENT OF ITEM 9 ("PRODUCT UPGRADE FEES") OF THE SIGNATURE PAGES
OF THE AGREEMENT. Effective June 30, 1996, Item 9 of the Signature Pages of
the Agreement is deleted and replace with the following:
2
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
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9. PRODUCT UPGRADE FEES: For each Copy of a Product Upgrade of
the Programs and/or Standard Products (as specified in Section 4.4 of
the Agreement) sublicensed, distributed and/or shipped by OEM to its
existing customers for the OEM Product as provided under Item 7 above,
OEM shall pay to CENTURA a Product Upgrade Fee equal to CENTURA's
generally published Territory List Price for the Product Upgrade of
such Program or Standard Product less a discount equal to OEM's
applicable Discount for the underlying Program or Standard Product.
Provided, however, that OEM's Product Upgrade Fee on any given
calendar year shall be [*] of the cumulative License Fees for Programs
sublicensed, distributed and/or shipped by OEM and Standard Products
acquired by OEM as of the end of that calendar year.
9. SQLWINDOWS 5 TO CENTURA MIGRATION: CENTURA agrees that the migration
fee of [*] for the migration of OEM's existing SQLWindows Corporate Edition
Standard Product licenses to Centura Team Developer licenses shall be available
to OEM through September 30, 1996.
10. NO OTHER MODIFICATION: Other than as provided in this Amendment
above, the terms and conditions of the Agreement, as previously amended, remain
unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
and effective as of: June 19, 1996.
OEM: CENTURA SOFTWARE CORPORATION:
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer Counsel Title: Sr. Vice President & General
Date: June 19, 1996 Date: June 19, 1996
[CONFIDENTIAL PORTION DELETED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
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