Exhibit 10.14
DSS PARTNER
MICROSTRATEGY INCORPORATED
OEM AGREEMENT
This Original Equipment Manufacturer Agreement (the "Agreement") is
entered into and effective as of September 30, 1999 by and between MICROSTRATEGY
INCORPORATED, a Delaware corporation, having its principal place of business at
0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000 ("MicroStrategy"), and XXX
XXXXXXXXXXX, a Maryland corporation, having its principal place of business at
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxx 00000 ("OEM") (collectively, the
"Parties") and replaces in its entirety the Value Added Reseller Agreement dated
as of August 21, 1998, as amended, entered into by and between the Parties.
OEM and MicroStrategy previously entered into a Global Solutions Partner
Agreement dated February 1, 1996 (hereinafter, the "GSP Agreement"). The GSP
Agreement is separate from this Agreement, remains unchanged by this Agreement,
and is in full force and effect. Under no circumstances will the terms and
conditions of the GSP Agreement apply to or otherwise supplement the terms and
conditions of this Agreement, including the obligations or rights of both
parties, or activities conducted by either party under this Agreement.
1. Definitions. For the purposes of this Agreement, the following terms
are defined as follows:
"Affiliate" means any person, corporation or other entity which,
directly or indirectly, controls or is controlled by or is under common control
with OEM.
"Collateral Price List" means the list, as prepared by MicroStrategy
from time to time, setting forth its then-current fees for each type of
Collateral.
"Collateral" means any marketing, trade press, product sales,
education, consulting and support collateral publicly used by MicroStrategy in
the United States (including presentation slides).
"OEM Discounted Price Schedule" means MicroStrategy's standard
volume discount schedule, a copy of which is set forth in Exhibit B.
"End User of Xxxxxxxx.xxx and/or Telecaster Services" means any third
party, individual, business, governmental customer or other customer which OEM
brings to MicroStrategy other than as a direct and immediate result of direct
sales efforts by MicroStrategy and who executes an agreement with MicroStrategy
as a Xxxxxxxx.xxx Network Services affiliate or Telecaster Network Services user
within sixty (60) days of NCR bringing that customer to MicroStrategy.
"End User License Agreement" means the agreement between OEM and End
User, referenced in Section 2.1 herein, which specifies the terms and conditions
of the license granted to End User to use Products.
1.
"End User" means any third-party individual, business, governmental
customer, or other customer of OEM which purchases or may purchase one or more
licenses of Products for personal or business use in accordance with the End
User License Agreement or which purchases access to the Xxxxxxxx.xxx or
Telecaster Network Services in accordance with MicroStrategy's then current End
User License Agreement for such services. An End User does not have rights to
resell or sublicense Products to resellers, distributors, other End Users or any
other parties.
"Evaluation" means an installation of the OEM Solution for a period
of sixty (60) days or less, during which an End User may evaluate the OEM
Solution for its internal use.
"NCR Client Affiliate" means a third-party individual, business,
governmental customer, or other customer of OEM to which OEM markets and sells
the Xxxxxxxx.xxx and Telecaster Network Services on behalf of MicroStrategy.
"OEM Solution" means the combination of a Product with the Teradata
software product.
"Products" means all current and future generally available software
products in MicroStrategy's product line, including those listed in Section 1.1
of Exhibit A, that are made generally-available to the public by MicroStrategy,
including User Documentation. A description of current Products is set forth in
Exhibit B.
"Xxxxxxxx.xxx Network Services" means the Xxxxxxxx.xxx business
services division of MicroStrategy that provides personal and customized
information to End Users through the Xxxxxxxx.xxx Network.
"Telecaster Network Services" means the proprietary voice-enabled
decision support system of MicroStrategy which provides voice-activated,
personalized information to End Users upon the occurrence of certain specified
trigger events.
"Update" means a subsequent release of a Product that is made
generally available to MicroStrategy customers who are paying for Technical
Support Services at no additional charge other than media and handling charges.
"Update" does not include any release, option or future product that
MicroStrategy licenses separately.
"User Documentation" means the MicroStrategy user manual(s) and other
written materials on proper installation and use of the Products which are
normally distributed with the Products.
2. Rights Granted and Restrictions.
2.1 License Grant. MicroStrategy hereby grants OEM: (a) a non-exclusive,
non-transferable license to install and use the Products and Updates thereto
(subject to payment of applicable fees as outlined herein) in a test environment
for purposes of combining the OEM's software products with such Products, and
MicroStrategy agrees not to unreasonably withhold its consent to allow OEM to
use the Products and Updates thereto in a test environment for purposes of
combining third party software products with such Products; (b) a non-exclusive,
nontransferable license to market, sublicense and distribute, directly or
through its indirect sales
2.
channels, the Products and Updates (subject to payment of applicable fees as
outlined herein) as a part of the OEM Solution worldwide (the "Territory")
pursuant to the terms of this Agreement; (c), non-transferable license to
market, sublicense and distribute in the Territory, directly or through its
indirect sales channels, the Teradata Version, as defined in Section 6.1(a); and
(d) a non-exclusive, non-transferable license to use the Products in the
Territory for internal business purposes in accordance with the terms of the
applicable Shrink Wrap License Agreement accompanying the products, which terms
are incorporated herein by reference. This is not a license to market,
distribute or sublicense the Products separately. OEM shall establish its own
prices for purposes of sublicensing the Products as part of the OEM Solution to
its End Users. Provided, however, that MicroStrategy will not offer the Teradata
Version to any resellers other than members of NCR's indirect sales channel.
Notwithstanding anything in this Agreement to the contrary, NCR will not license
the Products through any indirect sales channel without first discussing the
appropriate royalty payments with MicroStrategy and obtaining MicroStrategy's
prior written consent, which shall not be unreasonably withheld.
2.2 Appointment as Sales Agent. MicroStrategy hereby appoints OEM as
a nonexclusive sales agent of MicroStrategy for the purposes of marketing, and
selling the Xxxxxxxx.xxx Network Services and Telecaster Network Services to NCR
Client Affiliates (subject to the payment of applicable fees as outlined herein)
in the Territory and pursuant to the terms of this Agreement. In connection with
its sales of the Xxxxxxxx.xxx and Telecaster Network Services, OEM shall ensure
that all End Users sign a standard Xxxxxxxx.xxx Affiliation Agreement and/or a
Telecaster Voice Bureau Agreement, as applicable, in the forms set forth in
Exhibit I hereto.
2.3 OEM shall license, and shall require its members of its indirect
sales channel to license, the OEM Solution solely through a written agreement
that shall, at a minimum, contain provisions that accomplish the following:
(a) License the OEM Solution under Named User Licenses for End
User's own internal uses, and restrict use of the Product portion of the OEM
Solution to object code form for the End User's own internal uses.
(b) Prohibit use of the Products except in connection with the
Teradata software, unless such use is consistent with the provisions of Section
2.4(k).
(c) Prohibit transfer or duplication of the Product portion of
the OEM Solution except for temporary transfer in the event of computer
malfunction and as part of routine back-up procedures.
(d) Prohibit assignment of the Product portion of the OEM
Solution licenses and the Affiliated Licenses without the prior written consent
of MicroStrategy, which consent shall not be unreasonably withheld; provided,
however, that, in the case of the OEM Solution licenses only, the End User
License Agreement may contain a provision that allows the End User to assign
licenses for the OEM Solution to its Affiliates so long as the End User agrees
to be fully responsible for any failure of such Affiliates to act in accordance
with the terms of the End User License Agreement.
3.
(e) Prohibit the use of the Product portion of the OEM
Solution by any third party other than an Affiliate as outlined in subsection
(c).
(f) Prohibit causing or permitting the reverse engineering,
disassembly or decompilation of the Products.
(g) Prohibit title to the Products from passing to the End
User.
(h) Disclaim MicroStrategy's liability for damages, whether
direct or indirect, incidental or consequential, arising from the use of the OEM
Solution.
(i) Disclaim any warranties beyond the warranties that
MicroStratecy offers to OEM.
(j) Prohibit written and oral disclosures of any results of
benchmark tests of the Products themselves to any third party without the prior
written consent of MicroStrategy (as opposed to benchmark test of the OEM
Solution).
(k) For Products sublicensed for use outside the United
States, require the End User to comply fully with all relevant export laws and
regulations of the United States to ensure that neither the Products, nor any
direct products thereof, are exported, directly or indirectly, in violation of
United States law.
(l) Require the End User to use a commercially reasonable
degree of care to protect the Confidential Information of MicroStrategy and
prohibit the End User from directly or indirectly, (1) using any Confidential
Information of MicroStrategy to create any computer software program or user
documentation which is substantially similar to any Product, or (2) using or
disclosing Confidential Information of MicroStrategy, except as authorized by
this Agreement.
(m) Require the End User to notify OEM promptly of any
unauthorized use or disclosure of MicroStrategy Confidential Information, and
provide reasonable assistance to MicroStrategy (at MicroStrategy's expense) in
the investigation and prosecution of any such unauthorized use or disclosure.
(n) Disclaim MicroStrategy's liability for any taxes or
duties, however designated or levied (including but not limited to sales, use
and personal property).
(o) Allow OEM to audit End Users' records regarding use of the
Products and/or OEM Solution.
MicroStrategy agrees that the agreement attached hereto as Exhibit C
("End User License Agreement"), including the Supplement (entitled "Additional
Terms Related to MicroStrategy Products") adequately addresses the foregoing
requirements. MicroStrategy reserves the right to amend its requirements for the
contractual provisions contained in the agreement used to license the OEM
Solution or sell the Xxxxxxxx.xxx and/or Telecaster Network services upon ninety
(90) days' advance written notice, provided, however, that such amended
4.
requirements shall apply only to agreements executed by OEM subsequent to the
expiration of the ninety (90)-day notice period.
2.4 License Restrictions. The rights granted in Section 2.1 of this
Agreement are expressly limited to and restricted by the following:
(a) No copies may be made of Products except as explicitly
authorized by this Agreement or the applicable End User License Agreements. OEM
shall have no right to manufacture, modify, or copy User Documentation.
(b) MicroStrategy reserves the right to amend, modify, enhance,
add to or delete from the list of Products upon thirty (30) days' written notice
to OEM so long as the list includes at all times any Product then actively
marketed by MicroStrategy in the United States, provided, however, that such
modifications to the list of Products shall not apply to proposals to End Users
outstanding on the notice date of such modifications until the earlier of (i)
the proposal expiration date or (ii) sixty (60) days from the notice date,
provided that OEM provides a list of such End Users to MicroStrategy within
thirty (30) days of the notice date. The list of End Users shall include (i) the
name of the End User, (ii) the date of the proposal, and (iii) the expiration
date of the proposal. This Agreement shall automatically cover all such
amendments, modifications, or enhancements to the list of Products.
(c) OEM agrees that it will not, either directly or through a
third party, use Products, the source code, or a derivative thereof, or any
Confidential Information of MicroStrategy, to create, modify or enhance any
computer software programs or user documentation which is functionally,
visually, or otherwise identical or substantially similar to any MicroStrategy
products. This Section does not restrict the assignment of employees within
either party. Nothing contained in this Section shall be construed as to
prohibit employees of the recipient who have been exposed to the Products,
source code, or a derivative thereof, or any Confidential Information from using
residual knowledge retained as part their general skill, knowledge talent or
experience provided that in doing so they do not a) make direct reference to the
Products, source code, or a derivative thereof, or any Confidential Information
in tangible form, or b) disclose Confidential Information to a third party in
breach of this Section. Both parties acknowledge that either of them may be
engaged in the development and production of products similar to those disclosed
under this Agreement and that nothing herein limits or restricts the Parties
from such development or production.
(d) OEM agrees that it is OEM's responsibility to take all
reasonable precautions against unauthorized disclosure or copying of Products
while Products are being demonstrated or evaluated. OEM shall take all
reasonable steps to ensure that the Products are inaccessible during inactive
demonstration times (lunch, overnight, etc.), delete any demonstration copies of
Products upon completion of any demonstration at a customer site, and shall
further exercise reasonable efforts to ensure the security of Products.
(e) OEM agrees that it will not, either directly or through a
third party, reverse engineer, disassemble or decompile any of the Products, or
make any attempt to obtain or derive the source code from any MicroStrategy
product, whether or not such product is listed in Exhibit A.
5.
(f) Upon expiration of an Evaluation period, if an End User does
not license the Product, OEM shall require that all copies of the Product be
promptly removed from the End User's facilities and returned to OEM.
(g) Regardless of any disclosure by OEM to MicroStrategy of an
ultimate destination of Products, OEM shall not transfer or re-export Products,
any goods created with Products, related documentation, or other related
proprietary information, to anyone outside the United States as to which export
may be in violation of the United States export laws or regulations, without
first obtaining the appropriate license from the U.S. Department of Commerce
and/or any other agency or department of the U.S. Government, as required.
(h) OEM agrees to use reasonable commercial efforts to market
and demonstrate the Product to End Users provided, however, that OEM reserves
the right to determine at its sole discretion on a case-by-case basis, and
taking into consideration OEM's best interests, the appropriateness of marketing
or demonstrating the Product to a prospective End User.
(i) A list of certified and supported languages for each Product
is attached as Exhibit J.
(j) OEM agrees that its sublicensing to End Users of the OEM
Solution will be solely to (1) installed Teradata customers who have a pre-
existing contractual relationship with OEM and whose products presently run
against the Teradata data warehouse installation (the "Teradata Server"), or (2)
new customers (without current access to the Teradata Server); subject to the
provisions of the next sentence. Notwithstanding the above, OEM may sublicense
the Products solely to: new customers (without current access to the Teradata
Server) only if they agree in writing to implementation of the OEM Solution
and/or the Teradata Server within twelve (12) months after execution of the End
User Agreement; and provided that OEM co-proposes the Products to such new
customers along with the Teradata Server.
(k) OEM agrees that its sales of the Xxxxxxxx.xxx Network
Services and Telecaster Network Services will be limited to NCR Client
Affiliates who have a measurable business relationship with OEM.
3. Reservation of Rights and Remedies.
The rights granted hereunder do not transfer to OEM or End Users any
right, title or interest to any Products. MicroStrategy shall retain all right,
title, and interest, and all intellectual property rights, including, without
limitation, all copyrights, trade secrets, and any other intellectual property
and proprietary rights to Products and all copies of Products. This Agreement
does not, except as explicitly provided herein, grant OEM any rights in
Products, or in any improvements, modifications, enhancements or updates to
Products. Use of the terms "sell", "license", "purchase", "license fees" and
"price" will be interpreted in accordance with this Section 3.
6.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
4. Pricing and Royalty Structure.
4.1 Pricing. OEM shall be solely responsible to set its Product license
fees to End Users. OEM shall, in accordance with Sections 4.1 and 4.2, pay
MicroStrategy [**] of the net revenue received by OEM from licensing the
Products. In the event OEM believes it is necessary to offer a discount to an
End User greater than that provided by the OEM Discounted Price Schedule
attached hereto as Exhibit B, OEM and MicroStrategy shall negotiate in good
faith the percentage of revenue payable by OEM to MicroStrategy for that
opportunity. The OEM Discounted Price Schedule shall be updated by MicroStrategy
semiannually to conform to street pricing practices employed by MicroStrategy
sales staff.
4.2 Product Royalties. OEM shall not be obligated to pay MicroStrategy
royalties on the first [**] of revenue generated from licensing the
Products within a given quarter for the initial three year term of this
Agreement ("Non-Royalty Revenues"). OEM shall pay MicroStrategy royalties
(collectively, "Product Royalties") on all OEM revenue in excess of Non-Royalty
Revenues generated from licensing the Product portion of the OEM Solution within
a given quarter ("Royalty Revenues"). Each calendar quarter, OEM shall retain
[**] of the Non-Royalty revenues and shall remit [**] of the Royalty Revenues to
MicroStrategy ("Incremental Revenue") within thirty days of the close of such
calendar quarter as Product Royalties. In the event that OEM does not generate
revenue equal to the Non-Royalty Revenues in a given calendar quarter, the
difference between the Non-Royalty Revenues and the actual revenues generated by
OEM during such quarter may be added to the next succeeding calendar quarter's
Non-Royalty Revenues during the initial three-year term of this Agreement only.
By way of example only, if OEM generates only [**] in revenue in any given
calendar quarter during the initial three-year term of this Agreement, [**] may
be rolled over to the next succeeding calendar quarter, and Non-Royalty Revenues
for such quarter shall be deemed to be [**]. At the end of the third year, OEM
and MicroStrategy shall compare the total revenues received by OEM under this
Agreement (the "OEM Revenue") with the Non-Royalty Revenues. If, at the end of
the third year, the total OEM Revenue is less than [**], MicroStrategy shall
purchase from OEM software in an amount equal to the difference between the [**]
and the OEM Revenue up to the sum of all Incremental Revenue received by
MicroStrategy during the initial term.
4.3 Service Fee Royalties. MicroStrategy shall pay OEM Service Fee
Royalties to OEM, which royalties will be calculated based upon net revenue
generated by OEM, as sales agent of MicroStrategy, from selling the Xxxxxxxx.xxx
and Telecaster Network Services to End Users ("MicroStrategy Net Royalty
Income"). The MicroStrategy Net Royalty Income shall include any net revenue
received by MicroStrategy and relating to customers that come to MicroStrategy
through NCR Client Affiliates. MicroStrategy shall remit to OEM, on a quarterly
basis within thirty days after the close of each calendar quarter, [**] of all
MicroStrategy Net Royalty Income (as defined herein) (collectively, "Service
Fee Royalties") generated by OEM sales to NCR Client Affiliates of the
Xxxxxxxx.xxx Network services and/or Telecaster Network Services.
MicroStrategy shall no longer be obligated to pay Service Fee Royalties to
OEM in the event that this Agreement is terminated as a result of a
material breach or with respect to each NCR Client Affiliate, in the event that
such NCR Client Affiliate ceases to have a measurable business relationship with
OEM. For purposes of this Agreement, MicroStrategy "Net Royalty income" shall
mean all revenue actually received by MicroStrategy
7.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
from OEM's sales to End Users of the Xxxxxxxx.xxx and Telecaster Network
Services, less direct third party costs, including, without limitation,
affiliate royalties, cost of content, long distance telephone charges, etc.
4.4 Changes and Updates in OEM Discounted Price Schedule. In the event
MicroStrategy changes the OEM Discounted Price Schedule as provided in Section
4.1 above, the license fees in the Discounted Price Schedule for OEM Sales, the
new license fees shall apply to any order received by MicroStrategy after the
effective date of the price change, except for orders resulting from outstanding
proposals until the earlier of (i) the proposal expiration date or (ii) sixty
(60) days from the notice date, provided that OEM provides a list of such End
Users to MicroStrategy within thirty (30) days of the notice date. The list of
End Users shall include (i) the name of the End User, (ii) the date of the
proposal, and (iii) the expiration date of the proposal.
4.5 Initial Order. For the rights granted in this Agreement, OEM agrees
to pay MicroStrategy [**]. This fee shall be noncancelable and non-refundable,
subject to the provisions of this Agreement. OEM will pay MicroStrategy [**]
within thirty (30) days of execution of this Agreement and pay MicroStrategy
[**] within twelve (12) months of executing this Agreement.
4.6 Payment Terms.
(a) All payments of Product Royalties by OEM under this
Agreement shall be made to MicroStrategy in United States dollars and drawn on a
United States bank, at MicroStrategy's headquarters or such other address
designated by MicroStrategy from time to time. All payments made to
MicroStrategy are non-refundable, except as provided herein.
(b) Payment of Product Royalties is due within thirty (30) days
of each calendar quarter. If payment is late, OEM shall pay a late fee on the
unpaid balance of one percent (1%) per month from the date of invoice.
(c) Product Royalties and Service Fee Royalties do not include
any national, state or local sales, use, value-added or other taxes, customs,
duties or similar tariffs and fees MicroStrategy may be required to pay upon
delivery of the Products or upon collection of the Product Royalties, Service
Fee Royalties or otherwise. All sales and other taxes relating to an OEM
Solution order, a Xxxxxxxx.xxx Network Service Order and/or a Telecaster Network
Service Order, including those levied by federal, state, municipal or other
governmental authority (but excluding taxes (i) based on MicroStrategy's income,
(ii) for which MicroStrategy receives a credit or (iii) assessed from a
governmental authority with whom OEM has a valid reseller tax exemption
certificate) will be paid by OEM upon receipt of an invoice from MicroStrategy.
5. Delivery of Products and Right to Copy.
5.1 OEM acknowledges that it has received copies from MicroStrategy of
all Products listed in Exhibit B.
8.
5.2 Downloading of New Products. All new Products and Updates to
existing Products will be provided to OEM by an ftp download implemented by
MicroStrategy. OEM shall have the right to make copies of the Products in order
to exercise its rights under this Agreement.
6. Representations and Obligations.
6.1 MicroStrategy's Obligations and Restrictions. MicroStrategy shall
use reasonable efforts to perform the following:
(a) Asset Development. MicroStrategy will develop a version of
its MicroStrategy OLAP server and engine technology optimized for use with
Teradata ("Teradata Version") in conformance with the requirements set forth in
Exhibit G.
(b) Local Language Requirements. MicroStrategy will support
OEM's local language requirements within jointly agreed timeframes. For existing
Products, MicroStrategy agrees to meet NCR's double byte requirements within
twelve (12) months of the execution of this Agreement and use all commercially
reasonable efforts to meet those requirements within six (6) months of the
execution of this Agreement.
(c) Collateral. MicroStrategy shall provide reasonable
quantities of Collateral to OEM at no cost, other than shipping charges. If
requested, updates to such Collateral shall be made available to OEM via
MicroStrategy's Web server within ten (10) days of public use by MicroStrategy
of such completed updates, and if hard copies are desired, MicroStrategy shall
provide them to OEM at the prices indicated in MicroStrategy's then-current
Collateral Price List. All such materials provided to OEM shall be subject to
the confidentiality provisions of Section 12 of this Agreement. MicroStrategy
shall make reasonable efforts to comply with all applicable international,
national, state, regional and local laws and regulations in performing its
duties hereunder and in any of its dealings with respect to the Products.
6.2 OEM's Obligations. OEM shall use reasonable efforts to perform the
following:
(a) Promotion Efforts. OEM will promote the distribution of the
OEM Solution in the Territory.
(b) Sales and Consulting Staff. OEM will train and maintain a
sufficient number of capable technical and sales personnel having the knowledge
and training necessary to: (i) properly inform End Users of the features and
capabilities of the OEM Solution and the Products; (ii) service and support the
Products in accordance with OEM's obligations under this Agreement; and (iii)
otherwise carry out the obligations and responsibilities of OEM under this
Agreement.
(c) Technical Expertise. OEM's staff will be conversant with
the technical language conventional to MicroStrategy Products (including
specifications, features and benefits) so as to be able to explain in detail the
use of the Products in the OEM Solution to End Users.
9.
(d) Intellectual Property Rights. OEM will use commercially
reasonable efforts to protect MicroStrategy's rights in its trademarks, patents,
logos, service marks, copyrights and trade secrets.
(e) Compliance with Law. OEM will comply with all applicable
international, national, state, regional and local laws and regulations in
performing its duties hereunder and in any of its dealings with respect to the
Products.
(f) Compliance with U.S. Export Laws. OEM acknowledges that all
MicroStrategy Products and other technical data, are subject to export controls
imposed by the U.S. Export Administration Act of 1979, as amended (the "Act"),
and the regulations promulgated thereunder. OEM will not export or re-export
(directly or indirectly) any MicroStrategy Products or other technical data
therefore (if permitted by this Agreement) without complying with the Act and
the regulations thereunder.
(g) Market Conditions. OEM will confer with MicroStrategy from
time to time, at the request of MicroStrategy, on matters relating to market
conditions, sales forecasting and Product planning.
(h) Costs and Expenses. Except as expressly provided herein or
agreed to in writing by MicroStrategy and OEM, OEM will pay all costs and
expenses incurred in the performance of OEM's obligations under this Agreement.
6.3 OEM Covenants. OEM will (i) refrain from deceptive, misleading or
unethical practices that are or might be detrimental to MicroStrategy, the
Products or the public; (ii) make no false or misleading representations with
regard to MicroStrategy or the Products; (iii) refrain from publishing or
employing, or cooperating in the publication or employment of, any misleading or
deceptive advertising material with regard to MicroStrategy or the Products; and
(iv) make no representations, warranties or guaranties to End Users or to the
trade with respect to the specifications, features or capabilities of the
Products, except those permitted by Section 2.1 herein.
7. Training.
7.1 Partner Certification Program. OEM will use commercially reasonable
efforts to have on staff within two (2) months of the execution of this
Agreement and at all times thereafter at least two (2) employees who have
completed the MicroStrategy Certification Program at MicroStrategy headquarters
(the "Certification Program"). Such persons must maintain their certification by
annually attending MicroStrategy-specified update courses covering new products
and product features. OEM shall be entitled to have three (3) of its US
employees and three (3) of its employees based in other countries complete the
Certification Program free of charge. OEM shall be responsible for all fees
related to update courses taken by its employees. All expenses for OEM's
attendance at the Certification Program and update courses shall be borne by
OEM.
7.2 Training Consultants. Given reasonable advance notice, MicroStrategy
shall make its training consultants available to OEM to provide training on the
Products to OEM's
10.
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
employees. OEM shall pay MicroStrategy for such services at MicroStrategy's
then-current standard consulting rates, plus travel and living expenses.
8. Maintenance.
8.1 Support Services to End Users of OEM. Support services for the
Products shall be provided to End Users as outlined in Exhibit E. OEM shall
provide first-line support for all "NCR Branded Offerings" MicroStrategy shall
provide second-line support for all such offerings. OEM will receive a royalty
of [**] for all OEM Solution support sold by OEM. Exhibit E shall be subject to
review and re-negotiation upon the request of either party six (6) months from
the date of execution of this Agreement.
9. Fees and Records.
9.1 Records. OEM and MicroStrategy shall each maintain, for at least two
(2) years after termination of this Agreement, any records and contracts
relating to the sale or license of the OEM Solution, the Xxxxxxxx.xxx Network
Services and/or the Telecaster Network Services under this Agreement, and will
permit examination thereof by authorized representatives of MicroStrategy and
OEM at all reasonable times.
9.2 Notification. OEM will: (i) use commercially reasonable efforts to
notify MicroStrategy in writing of any claim or proceeding involving the
Products after OEM learns of such claim or proceeding; and (ii) report promptly
to MicroStrategy all claimed or suspected defects in the Products.
10. Limitation of Warranty and Liability.
10.1 Limited Warranty.
(a) MicroStrategy warrants that the media containing Products is
free from defects in material and workmanship for a period of thirty (30) days
from the date of receipt by the End User. For any breach of this warranty, OEM's
exclusive remedy and MicroStrategy's entire liability shall be replacement of
defective media returned within thirty (30) days of receipt of the media by the
End User.
(b) MicroStrategy warrants for a period of six (6) months from the
date of delivery of the Products to OEM that each unmodified Product will
perform in substantial conformance with the functions described in the User
Documentation. MicroStrategy also warrants from the date of delivery of the
Products to OEM that the unmodified Products will be Year 2000 Qualified, as
such term is defined in the document entitled NCR Year 2000 Qualification
Requirements attached hereto as Exhibit F, provided that all year date data
presented to the Products for processing is in a four (4)-digit format, and
provided that MicroStrategy makes no warranty with respect to any such failure
or incorrect result that may arise due to: (i) the quality of the data processed
with the Software; (ii) the effect of other software including, without
limitation, the Teradata software product, not licensed by MicroStrategy to
Licensee or developed by MicroStrategy for Licensee; or (iii) the use of the
Software in an operating environment or on a platform not specified by
MicroStrategy. MicroStrategy further warrants that on the date of delivery to
OEM. the Products are, to the best
11.
of MicroStrategy's knowledge, free of any program routine, device or other
undisclosed feature, including without limitation, virus, worm, trojan horse,
trap door or malicious logic, that is designed to delete, disable, deactivate,
interfere with or otherwise harm the Product or the End User or OEM's respective
hardware, data or programs, or that is intended to provide access or produce
modifications not authorized by the End User or OEM; provided, however, that
MicroStrategy reserves the right to insert code in the Product(s) that will
prevent their use by more than the number of authorized users so long as such
code does not interfere with use of the Product(s) by authorized users. In
addition, MicroStrategy warrants that the Products are currently interoperable
with OEM's Teradata V2RX (V2R2) via ODBC interfaces, and that it will make all
commercially reasonable efforts to modify the Products to be compatible with
future versions of Teradata. For any breach of the warranties contained in the
Section 10.1(b), OEM's exclusive remedy and MicroStrategy's entire liability
shall be, at MicroStrategy's sole discretion, the correction of the Product
errors that caused breach of the warranty or replacement of the Product.
(c) THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
IMPLIED WARRANTIES OF MERCHANTABELITY AND FITNESS FOR A PARTICULAR PURPOSE.
MICROSTRATEGY DOES NOT WARRANT THAT OEM OR END USERS' USE OF PRODUCTS WILL BE
UNINTERRUPTED OR ERROR FREE, OR THAT THE FUNCTIONS CONTAINED IN PRODUCTS WILL
MEET OEM OR END USERS' REQUIREMENTS.
10.2 Limitation of Liability. EXCEPT FOR CLAIMS WITH RESPECT TO EITHER
PARTY'S INDEMNIFICATION OBLIGATIONS UNDER TIES AGREEMENT, EACH PARTY'S LIABILITY
FOR DAMAGES TO THE OTHER OR ANY THIRD PARTY UNDER THIS AGREEMENT SHALL IN NO
EVENT EXCEED ALL AMOUNTS PAID UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL
MICROSTRATEGY BE LIABLE FOR WARRANTIES GRANTED BY OEM IN EXCESS OF THOSE
CONTAINED IN THE APPLICABLE STANDARD MICROSTRATEGY END USER LICENSE AGREEMENT
FOR EACH PRODUCT OR THIS AGREEMENT, NOR SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES
FOR LOSS OF PROFITS, REVENUE, DATA OR USE, WHETHER IN AN ACTION IN CONTRACT OR
TORT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Reliance on Disclaimers. OEM agrees that the limitations of
liability and disclaimers of warranty set forth in this Agreement will apply
regardless of whether MicroStrategy has tendered delivery of the Products or OEM
has accepted any such Products. OEM acknowledges that MicroStrategy has set its
prices, established its royalty structure and entered into this Agreement in
reliance on the disclaimers of liability, the disclaimers of warranty and the
limitations of liability set forth in this Agreement and that the same form an
essential basis of the bargain between the parties.
12.
11. Indemnification.
11.1 Indemnification of OEM. MicroStrategy will defend at its expense
and indemnify OEM against a claim that the Products infringe a patent or
copyright of a third party in the territory indicated in Section 2, provided
that OEM (i) gives MicroStrategy prompt written notice of the claim, (ii) allows
MicroStrategy to have sole control of the defense and all related settlement
negotiations, and (iii) provides MicroStrategy with the information, authority
and assistance necessary to perform MicroStrategy's obligations under this
Section. In the event the Products are held or believed to infringe,
MicroStrategy may, at its sole option, (i) obtain for OEM a license to continue
using the Product, (ii) replace or modify the Product so that it becomes
noninfringing or (iii) if neither (i) nor (ii) can be reasonably effected by
MicroStrategy, refund to OEM the prices paid for the infringing Products,
provided that such Products are returned to MicroStrategy in an undamaged
condition.
11.2 No Combination Claims. Notwithstanding Section 11.1 above,
MicroStrategy shall not be liable to OEM for any claim arising from or based
upon the combination, operation or use of any Product with equipment, data or
programming not supplied by MicroStrategy unless and to the extent that any type
of such claim would have arisen regardless of the combination or arising from
any alteration or modification of the MicroStrategy Products.
11.3 Limitation. THE PROVISIONS OF THIS SECTION SET FORTH THE ENTIRE
LIABILITY OF MICROSTRATEGY AND THE SOLE REMEDIES OF OEM WITH RESPECT TO
INFRINGEMENT AND ALLEGATIONS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR
OTHER PROPRIETARY RIGHTS OF ANY KIND IN CONNECTION WITH THE INSTALLATION,
OPERATION, DESIGN, DISTRIBUTION OR USE OF THE PRODUCTS AND/OR THE OEM SOLUTION.
11.4 OEM Indemnification. OEM will defend at its expense and indemnify
MicroStrategy against: (1) a claim caused by OEM's misrepresentations about the
Products and/or the OEM Solution, the Telecaster Network Services and/or the
Xxxxxxxx.xxx Network Services; or (2) a claim by a third party that the OEM
Solution infringes upon or misappropriates any intellectual property rights of
such third party, including without limitation, copyrights, patents, trademarks
and trade secrets, which claim would not have occurred but for the combination
of a Product with other software not supplied by MicroStrategy in OEM's
development of the OEM Solution, provided that McroStrategy (i) gives OEM prompt
written notice of the claim; (ii) allows OEM to have sole control of the defense
and all related settlement negotiations and (iii) provides OEM with the
information, authority and assistance necessary to perform OEM's obligations
under this Section.
12. Confidential and Proprietary Information.
12.1 MicroStrategy or OEM may from time-to-time disclose to the other
party confidential information relating to its business and affairs under this
Agreement ("Confidential Information"). Confidential Information shall be
clearly designated in writing as confidential, or if verbally disclosed,
identified at the time of disclosure as being confidential and reduced to
writing within ten (10) business days of disclosure. For a period of three (3)
years from the date of disclosure, each party agrees that it will use reasonable
efforts not to disclose Confidential
13.
Information of the other to any third party without the express written consent
of the disclosing party, unless disclosure is required by law. Notwithstanding
the foregoing, the recipient may disclose Confidential Information to its
Affiliates or contractors with a legitimate need to know who agree in writing to
confidentiality obligations consistent with this Agreement, All materials
containing Confidential Information are and remain the discloser's property, and
upon written request the recipient shall promptly return them, and all copies of
them, except a single archival copy. Confidential Information does not include:
(a) information generally available to or known to the public through no act or
omission of the recipient; (b) information previously lawfully known to the
recipient; (c) information independently developed by the recipient; or (d)
information lawfully disclosed by a third party. This Section does not require
either party to disclose any particular information, nor does it grant the
recipient a license to any of the discloser's patents or copyrights. In the
event that either party becomes aware of an unauthorized use or disclosure of
the other's Confidential Information by a third party, such party shall promptly
inform the other and provide, at the other's expense, commercially reasonable
assistance in the investigation and prosecution of any such unauthorized
disclosure. Notwithstanding the marking requirement above to the contrary, the
Products and related technical specifications, information regarding
MicroStrategy's pricing, MicroStrategy's training material and the results of
any benchmark tests conducted by OEM on the Products alone (as opposed to
benchmark tests of the OEM Solution) shall be considered MicroStrategy's
Confidential Information, whether or not so-labeled, so long as MicroStrategy
has used reasonable efforts to xxxx such items. Subject to the parties'
compliance with the provisions of Section 12, any disclosure of details on
unreleased products or business strategies for planning purposes, including
without limitation, any such information regarding Castor and MicroStrategy 6.0
products, shall be considered the Confidential Information of the Disclosing
Party.
The parties acknowledge that as a result of exposure to Confidential
Information, increases in the general skill or knowledge of the receiving
party's employees may occur. Nothing in this Agreement shall be construed to
prohibit the receiving party from utilizing such increases in general skill or
knowledge. Nevertheless, under no circumstance shall tangible copies of the
Confidential Information be used for any purposes other than the implementation
of this Agreement.
12.2 Authorized Disclosure. Either party may disclose the existence of
this Agreement, but not its content, without the prior consent of the other
party.
12.3 Branding. OEM shall not remove MicroStrategy's trademark and
copyright notices in and on the Products or the documentation accompanying any
copy of the Product sublicensed as part of the OEM Solution.
12.4 Custom Interfaces. OEM may remove the MicroStrategy trademark
notice from the splash screen and replace it with OEM's trademark notice in any
Customized Interface. A "Customized lnterface" shall mean any interface to the
Products created or modified by OEM using DSS Web or DSS Objects where the
visual appearance (i.e., the "look and feel") of the user interface has been
created in such a way as to be reasonably deemed a unique work of OEM. Any such
removal of the MicroStrategy trademark notice in the Products shall be subject
to MicroStrategy's written approval, which shall not be unreasonably withheld.
OEM acknowledges that it is not acquiring and shall not attempt to acquire, by
usage, filing or
14.
otherwise, either in the United States or any other country, any right, title or
interest in or to any of MicroStrategy's names, acronyms, logos, trademarks,
service marks, trade names or other identifying description of MicroStrategy's
products (the "Marks"), nor will OEM challenge MicroStrategy's rights therein.
OEM's use of the Marks shall inure to the benefit of MicroStrategy and shall be
subject to such reasonable restrictions and standards as MicroStrategy may adopt
from time to time. The Marks are identified in Exhibit H hereto; provided,
however, that MicroStrategy may amend such Exhibit from time to time.
12.5 No Proprietary Rights. OEM has paid no consideration for the use of
MicroStrategy's trademarks, trade names, logos, designations or copyrights, and
nothing contained in this Agreement will give OEM any right, title or interest
in any of them. OEM acknowledges that MicroStrategy owns and retains all
trademarks, trade names, logos, designations, copyrights and other proprietary
rights in or associated with the Products, and agrees that it will not at any
time during or after this Agreement assert or claim any interest in or do
anything that may adversely affect the validity of any trademark, trade name,
logo, designation or copyright belonging to or licensed to MicroStrategy
(including, without limitation, any act or assistance to any act, which may
infringe or lead to the infringement of any of MicroStrategy's proprietary
rights).
12.6 No Continuing Rights. Upon expiration or termination of this
Agreement, OEM will immediately cease all display, advertising and use of all
MicroStrategy trademarks, trade names, logo or designations and will not
thereafter use, advertise or display any trademark, trade name, logo or
designation which is, or any part of which is, similar to or confusing with any
trademark, trade name, logo or designation associated with any MicroStrategy
product, whether or not such product is set forth in Exhibit A.
12.7 Obligation to Protect. OEM agrees to use commercially reasonable
efforts to protect MicroStrategy's proprietary rights and to cooperate with
MicroStrategy in MicroStrategy's efforts to protect its proprietary rights. OEM
agrees to notify MicroStrategy promptly of any known or suspected breach of
MicroStrategy's proprietary rights that comes to OEM's attention.
13. Term and Termination.
13.1 Term. This Agreement will be effective as of the date first set
forth above, and shall have a term of three (3) years.
13.2 Termination for Breach of Confidentiality Obligations. Either party
may terminate this Agreement prior to the expiration of its stated term in the
event that the other party breaches the confidentiality provisions set forth in
Section 12.1.
13.3 Termination for Cause. Either party may terminate this Agreement at
any time prior to the expiration of its stated term in the event that:
(a) The other party is in default with respect to any material
term or condition undertaken by such party under this Agreement and such failure
or default continues unremedied for a period of ten (10) days following written
notice of such failure or default (a material breach shall include but not be
limited to a breach of Sections 2, 4, 5, 6, 7, 8, 9, 12, and 14.2).
15.
(b) The other party is merged, consolidated, sells all or
substantially all of its assets or implements or suffers any substantial change
in management or control; provided, however, that a sale of stock as part of an
initial public offering shall not be considered a change in control;
(c) A receiver is appointed for the other party or any of its
property, the other party makes an assignment for the benefit of its creditors;
any proceedings are commenced by, for or against the other party under any
bankruptcy, insolvency or debtor's relief law; or the other party is liquidated
or dissolved; or
(d) The other party is in material breach of any other written
agreement between the parties.
13.4 Effect of Termination or Expiration. Upon termination of this
Agreement:
(a) OEM shall cease using any MicroStrategy trademark, trade
name, logo or designation.
(b) OEM shall return to MicroStrategy or destroy and certify
to MicroStrategy the destruction of all Collateral and other MicroStrategy
Confidential Information in its possession and shall destroy or return, at the
option Of MicroStrategy, all Products and all copies thereof to MicroStrategy
and shall cease all marketing and distribution of the OEM Solution, the
Xxxxxxxx.xxx Network Services and the Telecaster Network Services.
13.5 Survival. The obligations of the parties under this Agreement
which by their nature would continue beyond the termination, cancellation or
expiration of this Agreement, shall survive termination, cancellation or
expiration of this Agreement.
14. General.
14.1 Independent Contractors. Both parties to this Agreement are
independent contractors, and shall so represent themselves to all other parties.
There is no relationship of partnership, agency, employment, franchise, or joint
venture between the parties. Neither party has any express or implied right or
authority to bind the other or incur any obligation on behalf of the other, In
particular, nothing herein shall be interpreted as making OEM the commercial
agent of MicroStrategy except in connection with sales of the Xxxxxxxx.xxx and
Telecaster Network Services in accordance with the terms of this Agreement.
14.2 Assignment. This Agreement shall not be assigned by either party
without the prior written consent of the other party; provided, however, that
neither party shall unreasonably withhold its consent to the assignment of this
Agreement to the successor in interest of the other party. Notwithstanding
anything in the foregoing to the contrary, OEM reserves the right to assign this
Agreement to an Affiliate without such consent; provided, however, that OEM
shall notify MicroStrategy of any assignment of this Agreement to an Affiliate,
and OEM shall indemnify MicroStrategy for any failure of a subsidiary to whom
this Agreement has been assigned for any failure of such subsidiary to act in
accordance with the terms of this Agreement.
16.
14.3 Force Majeure. Neither party shall be responsible for failure of
performance due to causes beyond its control, including, but not limited to,
acts of God or nature, labor disputes, actions of any Government agency, and
shortage of materials.
14.4 Notices. Any and all notices required or permitted to be given
hereunder shall be in writing and shall be deemed to have been given two (2)
business days after deposit in the United States Mail, certified or registered
mail, postage prepaid, or one business day after deposit with an overnight
delivery service of national reputation, and in any case addressed as follows:
To MicroStrategy:
MicroStrategy Incorporated
0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
ATT'N: [Contracts Department]
To OEM:
Senior Vice President, National Accounts
Solutions Group
XXX Xxxxxxxxxxx
0000 X. Xxxxxxxxx Xxxx.
Xxxxxx, XX 00000
and
General Counsel/Notices WHQ-5
XXX Xxxxxxxxxxx
0000 X. Xxxxxxxxx Xxxx.
Xxxxxx, Xxxx 00000
14.5 Waiver. The waiver by either party of any default by the other
shall not waive subsequent defaults of the same or different kind.
14.6 Severability. In the event that any of the provisions of this
Agreement shall be held by a court or other tribunal of competent jurisdiction
to be invalid, such provision will be enforced to the maximum extent permissible
and the remaining portions of this Agreement shall remain in full force and
effect.
14.7 Equitable Relief. Each party acknowledges that any breach of its
obligations under this Agreement with respect to the proprietary rights or
confidential information of the other party will cause such party irreparable
injury for which there are inadequate remedies at law, and therefore such party
will be entitled to seek equitable relief in addition to all other remedies
provided by this Agreement or available at law.
17.
14.8 Entire Agreement. This Agreement is the complete and exclusive
statement of the understanding of the parties, and supersedes all other prior
representations between them, whether oral or written, relating to the subject
matter of this Agreement. This Agreement may not be modified except in writing
signed by an officer of MicroStrategy and a duly authorized representative of
OEM.
14.9 Section Headings. Section headings are for purposes of convenience
and shall not be considered part of this Agreement.
14.10 Execution of Agreement, Governing Law, and Arbitration. This
Agreement may be executed simultaneously in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the state of New York, excluding that body of law
known as conflict of laws. The parties will attempt in good faith to resolve any
controversy or claim by negotiation or mediation. If they are unable to do so,
and regardless of the causes of action alleged, the claim will be resolved by
arbitration before a sole arbitrator in the headquarters city of the non-
initiating party pursuant to the then-current Commercial Rules of the American
Arbitration Association. The arbitrator's award will be final and binding, and
may be entered in any court having jurisdiction thereof. The arbitrator will not
have the power to award punitive or exemplary damages, or any damages excluded
by, or in excess of, any damage limitations expressed in this Agreement. Each
party will bear its own attorney's fees and costs related to the arbitration.
Any claim or action must be brought within five years after the cause of action
accrues.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first set forth above.
MICROSTRATEGY INCORPORATED XXX XXXXXXXXXXX
("OEM")
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
--------------------- ---------------------
Name: Xxxxxxx Xxxxxx Name: Xxxx X. Xxxxxx
----------------- -----------------
Title: President & CEO Title: Vice President -
------------------------- Corporate Finance
-------------------------
18.
EXHIBIT A
PRODUCTS LICENSED
1.1 Products. The following Products are licensed to OEM in accordance with
the terms of the Agreement:
Product
---------
DSS Agent[TM]
DSS Objects[TM]
DSS Architect[TM]
DSS Executive[TM]
DSS Server[TM]
DSS Web Server[TM]
DSS Web (PE)[TM]
DSS Web (SE)[TM]
DSS Administrator[TM]
DSS Broadcaster Server without SQL Server
Info Center without SQL Server
MicroStrategy will, from time to time, add new Products as they become
"generally available ("GA")".
19.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
EXHIBIT B
OEM DISCOUNTED PRICE SCHEDULE
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
MicroStrategy Price List
10/25/99
Infrastructure
Product Price Description
MicroStrategy Intelligence Server [**] per server with no more than four processors
(4 Processor)
MicroStrategy Intelligence Server [**] per server with no more than two processors
(2 Processor)
MicroStrategy Intelligence Server Upgrade [**] to upgrade MicroStrategy Intelligence Server from
two processor system to a four processor system
MicroStrategy Web Server [**] per server with no more than four processors
(4 Processor)
MicroStrategy Web Server [**] per server with no more than two processors
(2 Processor)
MicroStrategy Web Server Upgrade [**] to upgrade MicroStrategy Web Server from a two
processor system to a four processor system
MicroStrategy Broadcast Server [**] per server with no more than four processors
MicroStrategy Architect [**] per named user
MicroStrategy Executive [**] per named user
MicroStrategy Administrator [**] per two named users
MicroStrategy Development Bundle [**] per two named users
-----------------------------------------------------------------------------------------------------------------------------
Interfaces
Product Price Description
------- ----- -----------
MicroStrategy Agent [**] per named user
MicroStrategy Web PE [**] per named user
MicroStrategy Web SE [**] per named user
MicroStrategy Broadcaster [**] per named user
MicroStrategy Objects [**] per named user
MicroStrategy Any Interface Bundle [**] per named user which includes Agent, Web PE,
Web SE, Broadcaster and Objects
Add MicroStrategy Broadcaster [**] per named user when acquired with any interface in
the same quantities
---------------------------------------------------------------------------------------------------------------------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
MicroStrategy Price List
10/25/99
MicroStrategy InfoCenter
Product Price Description
MicroStrategy InfoCenter Server [**] per server with no more than two processors
Additional 10 Thread Increments [**] per 10 threads--a thread is the ability of the
software to send data to and receive data from the
Metadata repository
---------------------------------------------------------------------------------------------------------------------------------
MicroStrategy Enterprise
Reporting Schedule
Product Price Description
Enterprise Reporting Module for [**] per server with up to two processors
companies with up to 15,000 employees
Enterprise Reporting Module for [**] per server with up to two processors
companies with up to 35,000 employees
Enterprise Reporting Module for [**] per server with up to two processors
companies with up to 55,000 employees
Enterprise Reporting Module for [**] per server with up to two processors
companies with up to 75,000 employees
Enterprise Reporting Module for [**] per server with up to two processors
companies with more than
75,000 employees
--------------------------------------------------------------------------------------------------------------------------------
Educational Products
Product Price Description
----- -----------
Web Based Training [**] per named user
Multimedia Based Training [**] per named user
---------------------------------------------------------------------------------------------------------------------------------
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
MicroStrategy Price List
10/25/99
Discount Schedule
Total List Price Non-Broadcaster MicroStrategy Broadcaster only
---------------- --------------- ------------------------------
$100,000 [**] [**]
$200,000 [**] [**]
$300,000 [**] [**]
$400,000 [**] [**]
$500,000 [**] [**]
$750,000 [**] [**]
$1,000,000 [**] [**]
$1,500,000 [**] [**]
$2,000,000 [**] [**]
$2,500,000 [**] [**]
$3,000,000 [**] [**]
$3,500,000 [**] [**]
$4,000,000 [**] [**]
$4,500,000 [**] [**]
$5,000,000 [**] [**]
$5,000,000+ [**] [**]
------------------------------------------------------------------------------
MicroStrategy Development
Software Discount
MicroStrategy Server Software may be discounted [**] for development purposes.
The licenses must be restricted to permit use for testing and development only.
The software may not be used for production purposes.
Up to 25 licenses of the MicroStrategy User Interface Software may be discounted
[**] for development purposes. The licenses must be restricted to permit use
for testing and development only. The software may not be used for production
purposes.
-------------------------------------------------------------------------------
International Price Uplifts
Tiers Countries Uplift
----- --------- ------
Tier 0 Territories Africa - ASEAN - Eastern Europe - Korea [**]
-- Latin America - Middle East
Tier 1 Territories Iberia - Italy [**]
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Tier 2 Territories Benelux - British Isles - Central Europe - [**]
France - Xxxxxxxxxxx
Xxxx 0 Xxxxxxxxxxx Xxxxx [**]
------------------------------------------------------------------------------------------------------------------------------
20.
Exhibit C
END USER LICENSE AGREEMENT
XXX XXXXXXXXXXX
MASTER AGREEMENT
--------------
Customer Number
-------------------------------
Your Business Name ("you")
-------------------------------
Xxxxxx Xxxxxxx
------------------------------
Xxxx Xxxxx Zip Code
------------------------------
Effective Date
IF YOU HAVE ANY QUESTIONS OR CONCERNS WITH THIS AGREEMENT OR NCR'S CONTRACTING
PROCEDURES, PLEASE CONTACT YOUR NCR ACCOUNT REPRESENTATIVE.
CONTENTS
1 - Definitions 9 - Limitations of Liability
2 - Orders, Addenda and Contract Formation 10 - Services
3 - Delivery and Installation
4 - Prices and Taxes Claims 12 - Defense of Infringement
5 - Invoice, Payment and Security Interest 13 - Third Party Products
6 - Rental 14 - Termination
7 - License to Use Software 15 - Mediation and Arbitration
8 - Warranties 16 - General
21.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
1.0 DEFINITIONS
The terms listed below will have the following meanings:
1.1 "Agreement" means this Master Agreement.
1.2 "Addendum" means a supplementary form designed to identify specific terms
and conditions for certain types of transactions.
1.3 "NCR Product Specifications" means NCR's official published specifications
for Products when you acquire them (which NCR will provide to you upon request),
and the documentation which NCR includes with Products delivered to you.
1.4 "NCR" means XXX Xxxxxxxxxxx (formerly known as AT&T Global Information
Solutions Company). Certain products, documents, and other items furnished under
this Agreement may continue to contain references to the AT&T name.
1.5 "Contract" means a contract for your acquisition of Products from NCR, as
explained in 2.0. Each Contract includes the terms of this Agreement.
1.6 "Equipment" means hardware and associated peripherals and features that you
acquire from NCR.
1.7 "Products" means Equipment, Software, Supplies and Services.
1.8 "Services" means those Services described in Section 10.0 that you acquire
from NCR.
1.9 "Software" means computer programs in any form that you acquire from NCR.
1.10 "Supplies" means consumable items that you acquire from NCR.
1.11 "Third Party Products" means products that you acquire from parties other
than NCR.
2.0 ORDERS, ADDENDA, AND CONTRACT FORMATION
2.1 Orders -- You may order Products from NCR with a written purchase order,
electronically or orally.
2.1.1 Written - You may submit a written purchase order on your form or
an NCR form. NCR may accept your purchase order by signing it,
delivering the Products which you ordered, or as NCR and you otherwise
agree. NCR's acceptance creates a Contract consisting of this
Agreement, any applicable Addendum, and your written order, except that
any preprinted language on your form will not become part of the
Contract.
2.1.2 Electronic - NCR may provide Electronic Data Interchange ("EDI")
options, including electronic ordering, invoicing and payment. These
options and NCR's acceptance of your electronic order will be governed
by an EDI
22.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
Addendum to this Agreement. If you and NCR communicate
electronically, an identification code contained in an electronic
document will be legally sufficient to verify the sender's identity
and the document's authenticity as a signed writing.
2.1.3 Oral - You may order certain categories of Products from NCR
orally. In such event, the Contract will consist of this Agreement
and the quantities, prices and product identifications as confirmed
on NCR's invoice or acknowledgment.
2.2 Invoiced Services - NCR may offer to provide Equipment maintenance or
Software Services for a fixed term by sending you an invoice in advance of the
term. If you accept the offer by paying the invoice or by accepting the
Services, a Contract is formed consisting of this Agreement and the terms of
NCR's invoice.
2.3 Other Communications - Each Contract supersedes all oral and written
communications between you and NCR concerning the ordered Products.
Correspondence, proposals and recommendations become binding commitments of NCR
only when you attach them to or expressly incorporate them in a Contract.
2.4 Delays, Cancellation and Modifications (Change Control) -- If you wish to
cancel, reschedule or modify a Contract (including changing delivery or
installation dates or locations) or if you cause delays in NCR's performance,
you and NCR will attempt to negotiate in good faith new schedules and sufficient
compensation to NCR for accommodating you. No such change is effective unless
agreed in writing signed by both parties, preferably on NCR's change control
form.
3.0 DELIVERY AND INSTALLATION
3.1 Delivery -- NCR will use reasonable efforts to perform its obligations by
dates included in a Contract. These dates are estimates only. NCR will inform
you of delays as far in advance as reasonably possible. If NCR's performance is
delayed (other than by a force majeure) for an unreasonable time, you may cancel
delivery without penalty.
3.2 Location - NCR will deliver Products to the location that you specify. If
you select the shipping agent, its receipt of the Products constitutes delivery.
Title and risk of loss pass to you upon delivery. You agree to inspect Products
when you receive them and to notify NCR promptly if there is any visible damage.
3.3 Installation - NCR will notify you if Products require a special physical
environment. You agree to provide that environment prior to installation. Upon
request, NCR will provide Installation Services which may be separately
chargeable.
23.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
4.0 PRICES AND TAXES
4.1 Prices -- Your order will generally state the Product price. If it does not,
the price will be NCR's then-current published price in the country and currency
where the Products are installed less any applicable discount. NCR may increase
your price if it increases its published price after it accepts your order, and
your order specifies delivery more than 120 days after the price increase
becomes effective. Also, price increases for Services or Software licensed for a
periodic fee will only apply to subsequent billing periods.
4.2 Taxes and Other Charges -- Unless otherwise stated, Product prices do not
include: delivery and installation charges; charges associated with preparing
your site; and all taxes that relate to your acquisition or use of Products,
including sales, use, VAT and property (ad valorem) taxes, other governmental
charges and taxes, and assessments after audit. You agree to pay those charges
and taxes, except for taxes based on NCR's net income or franchise taxes. If you
qualify for tax exemptions, you must provide NCR with appropriate exemption
documentation.
5.0 INVOICE, PAYMENT AND SECURITY INTEREST
5.1 Invoice and Payment -- NCR will invoice you (1) for Equipment and Software
-- after shipment; (2) for recurring Services, license fees and rental -- in
advance; and (3) for non-recurring Services -- after NCR provides them to you.
Payment is due on receipt of invoice. NCR reserves the right to charge late fees
stated on the invoice if it does not receive payment within 30 days. If you do
not pay after NCR notifies you of your default, NCR also may repossess the
applicable Products without waiving NCR's right to payment.
5.2 Security Interest -- NCR retains a purchase money security interest in each
Product that you purchase until you pay for it. You appoint NCR as your agent to
sign and file a financing statement to perfect NCR's security interest.
6.0 RENTAL
The Contract will specify the initial term for rented Equipment. After the term
expires, your rental will continue on a month to month basis until you and NCR
agree to extend the term, or until you or NCR terminates the rental by giving 60
days advance written notice. When the rental charge includes maintenance and NCR
increases its maintenance charge for that type of Equipment, NCR may increase
your rental charge by a like amount. Otherwise, NCR may increase your rental
charge only after the end of the specified term. NCR owns rented Equipment and
retains the risk of loss or damage except for loss or damage which you cause.
You may not alter rented Equipment without NCR's prior written consent.
24.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
7.0 LICENSE TO USE SOFTWARE
7.1 Scope -- NCR grants you a non-transferable, non-exclusive license to use
Software in object code form consistent with the terms of this Agreement. Unless
otherwise agreed, you may use the Software at any one time only on a single
processing unit of the class and model for which you originally licensed it.
Your order may specify other or different license terms, concerning matters such
as the number of users or site license rights, or you and NCR may agree
separately in writing to those terms. You may use source code only if we agree
to additional terms for it.
7.2 Fees -- NCR licenses Software for either periodic or one-time license fees.
If your order does not specify the type of fee, it is a monthly license fee.
Your payment of a one-time fee entitles you to a perpetual right to use the
Software subject to the terms of this Section 7.0.
7.3 Termination -- A Software license term begins when NCR delivers the Software
to you and continues for the specified term unless you or NCR terminates the
license as described below or you violate your obligations under this Section
7.0. You may terminate a periodic license at any time by providing 30 days
advance written notice. NCR will refund the unapplied portion of any advance
payment. One-time fees are not refundable. NCR may terminate a periodic license
at the end of a billing period by giving you at least 30 days advance written
notice. When the license ends, you agree to immediately stop using the Software
and either return all copies to NCR or certify to NCR that you have destroyed
them.
7.4 General -- You may not copy Software, or transfer, disclose, sublicense or
distribute it to any party without NCR's written consent. NCR will consent to
your transfer of Software only to parties who sign the then-current form of NCR
Master Agreement and pay any applicable fees. You must retain copyright notices
and proprietary legends on all copies of Software in your possession. Software
remains the property of NCR or its licensors. You will not take any steps, such
as reverse assembly or reverse compilation, to derive a source code equivalent
of the Software.
7.5 Other Companies' Software -- NCR may provide you with Software that bears
the logo or copyright of another company. The license terms of this Agreement
apply to that Software unless the Software is provided with a license agreement
(including a "shrink-wrap" license) from the other company, in which case the
terms of the other company's agreement apply.
8.0 WARRANTIES
8.1 Equipment -- NCR warrants that Equipment will be free from defects in
material and workmanship and will conform to NCR Product Specifications. This
warranty begins on delivery or, if applicable, when NCR installs the Equipment
and continues for 90 days unless the Contract or NCR's policies at the time of
order specify a longer period. If you notify NCR during the warranty period that
Equipment does not comply with this warranty, NCR will repair the Equipment at
no charge under Section 10.1.
8.2 Software -- NCR warrants that Software will conform to NCR Product
Specifications. This warranty begins on delivery or, if applicable, when NCR
installs the
25.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
Software and continues for 30 days unless the Contract or NCR's policies at the
time of order specify a longer period. If you notify NCR during the warranty
period that Software does not conform to NCR Product Specifications, NCR will
correct the Software at no charge under Section 10.2. Except for defects in
media, NCR warrants only the first copy of Software that it provides to you.
8.3 Other Companies' Products -- NCR may provide you with Products that bear
the logo or copyright of another company. Notwithstanding anything within
Section 8.1 or 8.2, if you receive these Products with terms from the other
company addressing warranty or support, the other company's terms apply, and
unless specifically agreed NCR provides no warranty or support.
8.4 Services -- NCR warrants that it will provide Services in a professional
manner consistent with Section 10.0, and any Contract, and NCR's published
policies in effect at the time Services are rendered.
8.5 Right to Refund
8.5.1 NCR will use its best efforts during a warranty period to repair
Equipment under Section 8.1 or correct Software under Section 8.2. If
NCR does not succeed within a reasonable time, you may return the
defective Product and obtain a refund, or you may accept the Product
"as is."
8.5.2 If NCR does not perform Services consistent with Section 8.4 or
any Contract, then if you provide prompt notice NCR will use its best
efforts to reperform them. If NCR cannot successfully reperform
Services, you may terminate the Contract, and obtain a refund of your
payments to NCR for those Services. Your refund for a fixed term
Services Contract will not exceed your payments for 12 months.
8.5.3 In addition to the warranties described above, NCR may make
commitments to you in a Contract such as those relating to Product
performance, capability or the future availability of features. If NCR
does not meet those commitments, you agree to notify NCR promptly in
writing. If NCR is unable to correct the problem within a reasonable
time and the Contract does not separately address your remedies, you
may return the Product and obtain a refund. The refund will be reduced
on the same basis as you depreciate the Product in your financial
statements. If you do not depreciate it, the refund will be reduced on
a 5-year straight-line basis.
8.6 Title -- NCR warrants that title in Equipment will be clear except for NCR's
security interest.
8.7 Warranty Services -- NCR will provide warranty Services under its standard
policies in effect when it delivers the Products. You may separately purchase
expanded warranty Services, when available. If NCR designates that Products are
provided "as is," there is no warranty.
26.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
8.8 YOU ACCEPT RESPONSIBILITY TO VERIFY THAT THE PRODUCTS YOU ACQUIRE WILL MEET
YOUR SPECIFIC REQUIREMENTS AND PERFORM AS WARRANTED. EXCEPT AS SPECIFICALLY SET
FORTH IN THIS AGREEMENT, NCR DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE AND THOSE ARISING FROM A COURSE OF DEALING. NCR DOES
NOT WARRANT THAT PRODUCTS WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL
DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED. NCR HAS NO
WARRANTY OBLIGATION FOR THIRD PARTY PRODUCTS.
8.9 Exclusive Remedies - Your rights and remedies set forth in this Agreement or
a Contract are exclusive and in lieu of all other rights and remedies related to
any Contract or Product.
9.0 LIMITATIONS OF LIABILITY
9.1 NCR IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL OR PUNITIVE
DAMAGES, OR FOR LOSS OF PROFITS, REVENUE OR DATA, WHETHER IN AN ACTION IN
CONTRACT, TORT, PRODUCT LIABILITY, STATUTE OR OTHERWISE, EVEN IF ADVISED OF THE
POSSIBILITY OF THOSE DAMAGES. NCR WILL NOT BE LIABLE FOR DIRECT DAMAGES CAUSED
BY LATE DELIVERY, PRODUCT DEFECT, OR ANY OTHER CAUSE EXCEPT AS EXPRESSLY
PROVIDED IN A CONTRACT. NCR HAS SET PRICES FOR ITS PRODUCTS BASED ON THE
ALLOCATION OF RISKS SET OUT IN THIS AGREEMENT.
9.2 Maximum Liability -- NCR's liability with respect to any Product will not
exceed the amount that you paid NCR for that Product even if any term of this
Agreement fails of its essential purpose.
9.3 Personal Injury and Property Damage -- Notwithstanding any limitations in
this Section 9.0, NCR will be liable for personal injury, including death, and
for direct damages up to $1,000,000 per occurrence for physical damage to
tangible property, to the extent NCR's negligence caused that injury or damage.
10.0 SERVICES
10.1 Equipment Warranty and Maintenance Services
10.1.1 During the term of an Equipment warranty or Contract for
Equipment maintenance Services, NCR will maintain the covered Equipment
in accordance with this Section so that it complies with the warranties
in Section 8.1. Unless otherwise stated, the initial term of a
maintenance Contract is one year and will automatically renew for
additional one year terms unless you or NCR terminate it. You or NCR
may terminate a contract for Equipment maintenance Services at any time
by providing 30 days advance written notice. On termination under this
Section, NCR will refund the unapplied portion of any advance payment.
27.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
10-1.2 NCR's Equipment warranty and maintenance Services include
Parts and labor during covered hours. NCR will charge separately for:
(1) Supplies; (2) service calls outside of the applicable scope of
contracted Service or coverage hours; (3) service calls for Equipment
that was in good operating condition at the time of the call; (4) use
of specified types of Equipment above designated levels which NCR has
communicated to you. NCR will also charge separately to repair
Equipment which has failed due to: (5) an alteration to Equipment or
Software or attachment not provided by NCR, approved by NCR in
writing or compatible with NCR's standard interfaces; (6) your use of
Supplies or Third Party Products that are defective or that do not
meet NCR standards or specifications; (7) your negligence, misuse, or
abuse; (8) any third party's negligent or intentional acts; or (9)
fire, smoke, water, or acts of God. Replaced parts become or remain
NCR's property.
10.1.3 At your expense, you must maintain the site of Equipment
consistent with NCR specifications, and you must provide safe working
conditions and appropriate utility services for maintenance
personnel. When Equipment is under warranty or an NCR maintenance
Contract, or is rented under Section 6.0 or is loaned to you under
Section 11.0, you may not allow anyone other than NCR to maintain it.
Before accepting a maintenance Contract, NCR may inspect and
refurbish at your expense Equipment that is not then under NCR
maintenance or which anyone other than NCR has installed or serviced.
You are responsible for operating your Equipment, for providing
back-up Equipment and Services and for safeguarding all programs,
data and funds.
10.1.4 If NCR provides Services for Third Party Products, NCR will
maintain those products in good operating condition during the term
of the Contract for those Services. NCR will not assume the
manufacturer's warranty obligations or make modifications specified
by the manufacturer unless otherwise agreed in writing.
10.2 Software Services
10.2.1 During the term of a Software warranty or Contract for Software
Services, NCR will: (1) provide telephone access to NCR support
resources to assist in resolving Software problems; (2) notify you of
available Software updates; and (3) distribute updates at your
request. Unless otherwise stated, the initial term of a Contract for
Software Services is one year and will automatically renew for
additional one year terms unless you or NCR terminate it. You or NCR
may terminate a Software Services Contract at any time by providing 30
days advance written notice. On termination under this Section, NCR
will refund the unapplied portion of any advance payment.
10.2.2 NCR will provide Software Services for the most recent release
and the prior release of covered Software. Software Services for the
prior release may not include updates or code level fixes. When you
order Software Services, you must order the same level of service (to
the extent available) for all interdependent Software operating on the
same Equipment. If you have licensed
28.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
multiple copies of the same Software, you must order Software
Services for each copy used at the same location.
10.2.3 To permit NCR to provide Software Services, upon request you
agree to assist in isolating Software problems. You also agree to
provide modems and telephone lines for NCR to access your system
remotely, to install and test all fixes and updates, and to perform
other actions reasonably requested by NCR.
10.3 Other Services -- This Agreement applies to other Services which NCR
offers, including systems integration, installation, custom programming,
training and time-and-materials Equipment and Software Services. Unless
otherwise stated in a Contract, you are responsible for implementing and
operating Products.
10.4 Custom and Modified Software -- A Contract may require NCR to create
custom Software or modify licensed Software for you. On your payment in full,
you will own the copyright in that custom Software or those modifications, but
NCR will retain a perpetual, royalty-free, worldwide, non-exclusive,
transferable license to possess, copy, use, modify, disclose, distribute, and
sublicense that custom Software or those modifications without restriction.
Your ownership of the copyright in modifications to Software does not affect
your obligations for the unmodified portions of Software licensed from NCR.
11.0 PRODUCT EVALUATION
NCR may loan Products to you for your evaluation. You and NCR will agree in
advance on: (1) the length of the evaluation period; (2) prices if you elect
to acquire the Products; (3) the post evaluation warranty periods, if any; and
(4) who will bear related costs of freight, installation/deinstallation and
maintenance. The evaluation period will begin when NCR delivers the Products
to you. At the end of the evaluation period, you will make the Products
available for return to NCR, or NCR will invoice you for the Products at the
agreed prices. You agree not to move the Products to another location during
the evaluation without NCR's consent. DURING YOUR EVALUATION, PRODUCTS ARE
FURNISHED TO YOU "AS IS." IF YOU ARE DISSATISFIED WITH THEM FOR ANY REASON,
YOUR EXCLUSIVE REMEDY WILL BE NCR'S REMOVAL OF THE PRODUCTS FROM YOUR SITE.
12.0 DEFENSE OF INFRINGEMENT CLAIMS
You will notify NCR immediately after you become aware of any claim or
threatened claim of infringement involving Products. NCR will defend at its
expense any claim or suit brought against you alleging that any Product
infringes a United States patent, copyright or trade secret and will pay all
costs and damages finally awarded, if you give NCR (1) prompt written notice
of the claim; (2) all requested information that you possess about the claim;
(3) reasonable cooperation and assistance; and (4) sole authority to defend or
settle the claim. In the defense or settlement of the claim, NCR may obtain
for you the right to continue using the Product or replace or modify the
Product so that it becomes non-infringing. If NCR is unable to reasonably
secure those remedies, as a last resort NCR will refund the purchase price for
infringing Equipment and refund one-time license fees for infringing Software.
NCR will reduce any such
29.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
refund on the same basis as you depreciated the infringing Product in your
financial statements. If you do not depreciate it, the refund will be reduced
on a 5-year straightline basis. NCR is not obligated to indemnify you under
this Section if the alleged infringement is based on the use of the Product
with other products not furnished directly by NCR, or on NCR's compliance with
any designs, specifications or instructions provided by you, or if anyone
other than NCR has modified the Product. This Section states NCR's entire
liability for infringement of patents, copyrights, trade secrets, and other
intellectual property rights.
13.0 THIRD PARTY PRODUCTS
NCR is not responsible for Third Party Products, even if NCR assisted in
evaluating or selecting them. The failure of Third Party Products or their
suppliers will not affect your obligations to NCR.
14.0 TERMINATION
14.1 Voluntary Termination -- This Agreement will remain in effect until you
or NCR terminate it on 30 days advance written notice. Termination of this
Agreement will not terminate any existing Contract.
14.2 Bankruptcy -- You or NCR may terminate any current Contracts if the other
party files for protection under the bankruptcy laws or makes an assignment
for the benefit of creditors, or if a trustee or similar officer is appointed
for the other party or its assets.
15.0 MEDIATION AND ARBITRATION
15.1 "Dispute" means any controversy or claim between you and NCR. It includes
controversies or C1aims that are related directly or indirectly to this
Agreement, any Contract or any Product, whether based on contract, statute,
tort, fraud, fraudulent inducement, misrepresentation, intellectual property
rights, antitrust laws, competition laws, or other legal or equitable theory,
whenever brought, between you and NCR or any of NCR's or your employees or
agents or affiliates.
15.2 Mediation -- NCR and you agree to use good faith efforts to resolve any
Dispute promptly and fairly. If NCR and you are unable to resolve a Dispute by
negotiation, both parties agree to submit it to non-binding mediation
conducted by a mutually selected mediator or, at the option of either party,
by the American Arbitration Association ("AAA").
15.3 Arbitration -- If a Dispute submitted to mediation is not successfully
resolved, it shall be subject to binding arbitration under the then-current
rules and supervision of the AAA. The Federal Arbitration Act, 9 U.S.C.
Sections 1 to 16, not state law, will govern the arbitrability of all claims.
A single arbitrator who is knowledgeable in business information and
electronic data processing systems will conduct the arbitration. The
arbitrator's decision and award will be final and binding, and either party
may enter it in any court with jurisdiction. The arbitrator will not have
authority to award punitive or other non-compensatory damages to either party.
The arbitration will be held in the city where the AAA regional office closest
to your headquarters is located. Each party will
30.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
bear its own attorney's fees and related costs associated with the arbitration.
NCR and you will pay all other costs and expenses of the arbitration as the
rules of the AAA provide.
15.4 Court Proceedings -- Except as permitted in this Section, neither party (or
its employees, agents, officers, directors, and affiliates) may bring a case in
court. If NCR or you disregards this restriction, files a court case and fails
to dismiss it promptly upon being notified of this provision, that party will
pay the other party's costs and expenses, including attorney's fees, incurred
after the notice in defending the court case. NCR retains the right to obtain an
injunction in court to prevent your misuse of its intellectual properties.
15.5 Two Year Limitation -- Neither you nor NCR may bring a claim or action
arising out of or related to this Agreement, including any claim of fraud or
misrepresentation, more than two years after the cause of action accrues.
15.6 Substitute Products -- Your acceptance of refunds or substitute Products
under this Agreement waives all claims relating to the nonperforming Products
involved.
16.0 GENERAL
16.1 Effective Date, Modification, Non-Waiver and Assignment -- This Agreement
applies to all Products that NCR provides to you directly or through a leasing
company. The cover page of this Agreement specifies the effective date. If the
date is left blank, the date NCR signs this Agreement or first provides Products
to you is the effective date. No modification of this Agreement or any Contract
will be effective unless it is in writing and signed by authorized
representatives of both you and NCR. Failure to enforce any Contract term is not
a waiver of future enforcement of that or any other term. Neither you nor NCR
may assign this Agreement, a Contract, or its rights or obligations under them
without the express written consent of the other, except NCR may assign this
Agreement or a Contract to an affiliate and may use Subcontractors to fulfill
its obligations.
16.2 Supplements -- NCR may from time to time communicate to you policies and
procedures that supplement but do not modify the terms of this Agreement, such
as relating to Software or Services.
16.3 Notices -- NCR will send notices to you at the address on the face of this
Agreement, and you will send notices to NCR at its local district office or
other designated address.
16.4 Geographic Scope -- This Agreement applies only to Products in the United
States and does not obligate NCR to provide Products, including warranty or
maintenance Services, outside the United States. If you want to do business with
NCR internationally, please contact your NCR account representative, and NCR
will provide you with supplemental terms to this Agreement. You may not export
Products without appropriate approvals from the U.S. and foreign government.
31.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
16.5 Force Majeure -- Neither party is liable for failing to fulfill its
obligations due to acts of God, civil or military authority, war, riots,
strikes, fire, or other causes beyond its reasonable control, except for your
obligation to make payments.
16.6 Choice of Law -- New York law governs this Agreement, except for its laws
regarding choice of law and as stated in Section 15.3; the United Nations
Convention on Contracts for the International Sales of Goods does not apply.
THIS AGREEMENT TOGETHER WITH ANY CONTRACTS INCLUDING IT SETS FORTH THE ENTIRE
AGREEMENT WITH RESPECT TO YOUR ACQUISITION OF PRODUCTS FROM NCR. YOU ACKNOWLEDGE
THAT YOU HAVE READ AND UNDERSTAND THE TERMS OF THIS AGREEMENT.
Executed on your behalf by: XXX XXXXXXXXXXX
---------------------- -----------------------
Authorized Signature Authorized Signature
---------------------- -----------------------
Printed Name Printed Name
32.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
ADDITIONAL TERMS TO COVER LICENSING OF THE MICROSTRATEGY
PRODUCTS ("SUPPLEMENT")
BETWEEN XXX XXXXXXXXXXX AND
MICROSTRATEGY
These terms made and entered into as of __________1998, by and
between XXX Xxxxxxxxxxx ("NCR"), a Maryland corporation with its principal
place of business at 0000 X. Xxxxxxxxx Xxxxxxxxx, and _______________("you"),
a ____ corporation with its principal place of business at____________, I
hereby supplement the XXX Xxxxxxxxxxx Agreement dated _______________ between
NCR and you ("Agreement"). In the event of a conflict between any provision of
the Agreement and any provision of this Supplement as it relates to the
MicroStrategy Software, the provision of this Supplement shall prevail. Unless
otherwise defined in this Amendment, capitalized terms in this Supplement
shall have the same meaning as in the Agreement.
1. With respect to the MicroStrategy Software, NCR Product Specifications
means the MicroStrategy user documentation.
2. Software includes any software NCR licenses or sublicenses to you.
3. Third Party Products are licensed or sublicensed to you by a party other
than NCR.
4. Notwithstanding anything stated in the Agreement or Supplement,
MicroStrategy does not provide title to the MicroStrategy Software.
5. MicroStrategy Software licensed under the Agreement and this Supplement
may be used only for internal business purposes and only in connection
with the Teradata Server. Any other use of the MicroStrategy Software
licensed under this Supplement and the Agreement is prohibited. Third
parties may not access the MicroStrategy Software, except for contractors
providing services to you under contract with you.
6. You may not copy or internally transfer MicroStrategy Software except for
routine back-up procedures or in the event of a computer malfunction.
7. Even if any MicroStrategy Software is provided with a shrink-wrap license,
the Agreement and this Supplement applies and the MicroStrategy
shrink-wrap license shall be of no force and effect.
8. Notwithstanding anything stated in the Agreement or Supplement,
MicroStrategy makes no warranty to you regarding the MicroStrategy
Software.
9. MICROSTRATEGY SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES OF ANY KIND,
WHETHER DIRECT OR INDIRECT, ARISING FROM USE OF THE MICROSTRATEGY
SOFTWARE.
10. Notwithstanding anything else in the Agreement or this Supplement to the
contrary, you may not assign licenses for any MicroStrategy Product to any
third parties without MicroStrategy's prior written consent,
33.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
11. You agree to comply with all applicable US export laws and restrictions.
12. You agree to use a commercially reasonable degree of care not to disclose
the Microstrategy Software or associated documentation or any material
marked with MicroStrategy Confidential and Proprietary' or any similar
legend to any third parties other than contractors who are providing
services to you under contract with you. You agree that you will not,
directly or indirectly, use any such information to create any computer
software program or user documentation that is substantially similar to any
MicroStrategy software program or user documentation. You agree that you
will notify MicroStrategy promptly of any unauthorized disclosure of any
such information, and that you will provide reasonable assistance to
MicroStrategy, at MicroStrategy's expense, in the investigation and
prosecution of any unauthorized disclosure. You agree not to disclose the
results of any benchmark tests run on any MicroStrategy Software to any
third party without MicroStrategy's prior written consent.
13. NCR warrants from the date of delivery of the Software to you until June
30, 2001 that the unmodified MicroStrategy Software will be Year 2000
Qualified, as such term is defined in the document entitled NCR Year 2000
Qualification Requirements, provided that all year date data presented to
the MicroStrategy Software for processing is in a four (4) digit format,
and provided that NCR makes no warranty with respect to any such failure or
incorrect result that may arise due to: (i) the quality of the data
processed with the MicroStrategy Software; (ii) the effect of other
software not licensed by NCR to you or developed by NCR for you; or (iii)
the use of the MicroStrategy Software in an operating environment or on a
platform not specified by NCR.
14. The MicroStrategy Software is provided to you on a "Named User License"
basis. "Named User License" means a license to use a MicroStrategy Software
product, or a bundle of MicroStrategy Software products, under which only
one (1) Named User may access the MicroStrategy Software product, or the
MicroStrategy Software products included in the bundle. A "Named User"
shall mean an individual to whom you have assigned an identification number
for purposes of tracking use of a MicroStrategy Software product, or bundle
of MicroStrategy Software products. If and when a Named User no longer has
access to a MicroStrategy Software product, or bundle of MicroStrategy
Software products, an alternate user may assume the initial Named User's
identification number and use the MicroStrategy Software product, or bundle
of MicroStrategy Software products, in place of the initial Named User.
EXCEPT AS AMENDED AND MODIFIED hereby, the Agreement shall otherwise
remain in full force and effect, the parties hereto hereby ratifying and
confirming the same.
IN WITNESS WHEREOF, NCR and __________________ have caused this
Supplement to be duly executed as of the day and year first above stated.
[Signature Page to Follow]
34.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
XXX Xxxxxxxxxxx MicroStrategy Incorporated
0000 Xxxxx Xxxxxxxxx Xxxxxxxxx 0000 Xxxxxx Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000 Xxxxxx, XX 00000
BY:_________________________ BY:_________________________
PRINTED NAME: _____________ PRINTED NAME:_____________
TITLE:_______________________ TITLE:______________________
DATE:_______________________ DATE:______________________
35.
MICROSTRATEGY INCORPORATED AND XXX XXXXXXXXXXX CONFIDENTIAL AND PROPRIETARY
Unauthorized use, disclosure or duplication is strictly prohibited.
Exhibit E
SOFTWARE SUPPORT SERVICES TO END USERS
OEM shall be responsible for providing front-line support to End Users. Front-
line support shall be provided by employees in OEM's Manned Support Centers,
working in consultation with OEM developers who have completed the Certification
Program. Front-line support shall include:
o Acting as the point of contact for End User requiring support in their use
of the OEM Solution
o Assisting End Users with installation of the OEM Solution
o Creating and maintaining problem databases
o Isolating problems
o Identifying whether problems arc caused by OEM components of the OEM
Solution (templates, reports or software) or MicroStrategy components of the
OEM Solution (the Products)
o Resolving problems caused by the MicroStrategy components of the OEM
Solution when such problems are documented in problem databases and when
otherwise possible through the exercise OEM of commercially reasonable
efforts
o Contacting the MicroStrategy, the technical support group regarding problems
caused by the MicroStrategy components of the OEM Solution that are not
documented in the problem databases or otherwise resolvable through the
exercise by OEM of commercially reasonable efforts, and supplying
MicroStrategy with sufficient information to enable MicroStrategy to
duplicate or identify the problem by whatever method the parties deem most
expedient. OEM communication with MicroStrategy's technical support group
shall be through technical support liaisons appointed by OEM. OEM may
appoint up to two (2) technical support liaisons from each of its four (4)
regional Manned Support Centers. Hereinafter, such individuals shall be
referred to as "Liaisons."
o Distributing Updates
MicroStrategy shall be responsible for providing back-end support to the End
Users through the Liaisons. The Liaisons shall be the interface to the End User
throughout the back-end support process. Back-end support shall consist of
answering questions regarding use of the Products, troubleshooting, and
exercising commercially reasonable efforts to resolve those problems not
resolved by OEM in the provision of frontline support that cause a MicroStrategy
product to fail to operate in substantial conformance with the Documentation.
Back-end support shall not include services which, in the usual course of
MicroStrategy's business, are provided to customers as consulting services.
Back-end support shall include the provision to OEM of all Updates to the
products.
MicroStrategy shall make commercially reasonable efforts to comply with the
following guidelines when involved in problem resolution. Time measurement
begins when OEM first contacts MicroStrategy. Time frames are stated in business
days. If OEM is dissatisfied with resolution time, OEM may escalate the
priority, level of an issue by following the procedure set forth in
MicroStrategy's Technical Support Policies and Procedures.
Priority Level 1 Critical 2 Urgent 3 Routine
-------------- ---------- -------- ---------
Priority Level Definition A problem that critically A problem that impacts A minor problem that
impacts the customer's the customer's ability to minimally impacts the
ability to do business. A do business, the severity customer's ability to do
significant number of of which is significant. business. Also includes
users of the system The problem may be questions and/or general
and/or network are repetitive in nature. A consultation.
unable to perform their function of the system.
tasks as necessary. The network or products is
system and/or network impacted.
is down or severely
degraded.
Initial Response to OEM 2 hours 4 hours 48 hours
Status Updates to OEM As status changes or As status changes or As status changes or
daily. daily. daily.
36.
MicroStrategy shall make back-end support available Monday through Friday on
non-holidays between the hours of 9:00 a.m. and 7:00 p.m. EST (9:00 a.m. through
5:00 p.m. GMT). At such time as MicroStrategy generally offers technical support
on a seven (7) day per week, twenty-four (24) hour per day basis. MicroStrategy
shall offer such support to OEM under the same terms and conditions as it does
to its other partners and customers.
The telephone number for MicroStrategy's technical support group is 000 000 0000
in the United States and 44 181 9562400 in London. MicroStrategy may change the
foregoing telephone numbers upon one (1) week's notice to OEM.
MicroStrategy will provide the support outlined herein for any particular
version of a Product for up to twelve (12) months from the date of general
availability for a new version of such Product.
If either party fails to perform its obligations as set forth in this Exhibit,
it shall be considered to have breached the Agreement, and the other party shall
be entitled to seek the remedies set forth in the Agreement.
MicroStrategy will provide OEM with four (4) copies of Documentation for use in
supporting end users at no additional charge.
37.
Exhibit F
NCR YEAR 2000 QUALIFICATION REQUIREMENTS DEFINITION
Meaning of "Year 2000 Qualification"
The purpose of this document is to provide our customers, partners, suppliers,
and employees a definition for NCR products that are "Year 2000 Qualified."
Throughout the industry, the term "year 2000 compliance" remains ambiguous and
this document is our attempt to place our stake in the sand. To avoid
confusion with less precise descriptions of the year 2000 issue, NCR uses the
term "Year 2000 Qualified" to identify products which meet our definition. We
anticipate that this document will evolve over time as more information about
the requirements and testing are known.
I. As used by NCR, "Year 2000 Qualification" means that an NCR product has
been reviewed to confirm that it stores, processes (including sorting and
performing mathematical operations), inputs, and outputs data containing date
information correctly regardless of whether the data contains dates before,
on, or after January 1, 2000. NCR products which do not perform date
manipulation, and which do not alter any date information that flows through
them, are also considered Year 2000 Qualified.
II. Specifically:
Dates before, on or after January 1, 2000 may be interpreted and stored using
either "FORMAT" or "CONVENTION" techniques. As used by NCR, "Year 2000
Qualification" means that the FORMAT technique is used. However, Qualification
by CONVENTION may be used in circumstances where compliance by FORMAT is
impractical, or where CONVENTION is required to meet specific external
interface requirements; in that case the convention used must be specifically
documented. "FORMAT" and "CONVENTION" have the following definitions:
FORMAT: All dates are stored, processed, input, and output in formats
that preserve century, decade, and year information.
CONVENTION: Dates are stored, input, or output in a format that
preserves only decade and year information, but are processed through a
"sliding window" calculation. For example, if the year is 00 to 70, add
2000, and if the year is 71 to 99, add 1900. There is no industry
standard for the "cut-off" date used in such calculations, and
therefore interfaces may not work correctly between programs or systems
using different conventions. Any NCR product achieving Qualification
through CONVENTION must clearly document the cut-off date and any other
necessary information relating to the bridging calculation used. This
documentation must be included in the product's entry in the NCR Year
2000 Qualification List.
III. Leap Year
The year 2000 itself must be correctly processed as a leap year. In other
words, the two days following February 28, 2000 must properly be interpreted
as Tuesday, February 29, 2000, and Wednesday, March 1, 2000.
IV. Display
38.
Any display of a date, whether on screens or in reports, should use a
four-digit year (YYYY). However, if two-digit display of a date is commonly
accepted and does not cause confusion, the year field may be displayed as two
digits.
V. Firmware and Hardware
Any firmware, hardware, or networking component in a Year 2000 Qualified
computer platform must process dates in accordance with this Definition.
VI. System Integration
Year 2000 Qualification extends only to the specific product configuration
tested, and does not include other software, firmware, or hardware products
which may be used in conjunction with the tested configuration. For an NCR
product configuration consisting of multiple components to be considered "Year
2000 Qualified," each constituent component, regardless of vendor, must be
"Year 2000 Qualified" in accordance with this Definition, and the system as a
whole must be tested for Year 2000 Qualification. "Constituent components"
include all software (including operating systems, programs, packages, and
utilities), firmware, hardware, networking components, and peripherals
provided by NCR as part of the configuration.
The Year 2000 status of third party products not provided by NCR is beyond the
scope of this Definition.
VII. Contracts
All contracts with vendors for products to be used in the computer system or
platform MUST state that Year 2000 Qualification is a performance
requirement, with appropriate remedies for non-performance.
VIII. Year 2000 Product Qualification Requirements
All of the following questions must be answered as indicated or "NA" for any
NCR product to be identified as "Year 2000 Qualified." Any deviations from
these responses must be specifically documented, and an exception must be
noted in the product's entry in the NCR Year 2000 Qualification List.
39.
DATE MANIPULATION QUESTIONS
NA No Yes
Does the product:
1. Use December 31, 1999 as a regular end of year without special meaning? X
2. Treat September 9, 1999 as a regular day with no special meaning? X
3. Do any of the following date field manipulation? X
4. * 99 indicates last record X
5. * 00 to indicate a null record X
6. * 99 and 00 default values X
7. * Special interpretations of 00 X
8. * Hard coded 19 in 4-digit year field X
9. * Separate manipulations of century digits X
10. Include any license date expiries associated with the end of 1999? X
11. Use dates in name constructions? X
12. Mix date data and control information in commands or flags which are interpreted
as one or the other depending on their values? X
13. Use a date as part of the key of an indexed file? X
YEAR AND CENTURY QUESTIONS
Does the product:
1. Recognize 2000 as a leap year? X
2. Allow itself to be set to any date after 12/31/99 including 02/29/2000? X
3. Indicate the correct day, date and time when the following test is performed:
With the date set to 12/31/99, power the product off and then back on when the
time will be in 1/1/2000. X
4. Indicate the correct day, date and time when the following test is performed:
With the date set to some time after 1/1/2000, power the product off and back on. X
5. Display the date correctly as 2/29/00 when the following test is performed:
With the date set to 2/28/2000, power the product off, and then back on when the
next day has been reached. X
6. Treat January 1, 2000, a Saturday? X
7. Treat February 29,2000, a Tuesday? X
8. Treat March 1, 2000, a Wednesday? X
9. Treat February 28, 2001, a Wednesday? X
10. Treat March 1, 2001, a Thursday? X
DATA BASE ACCESS AND STORAGE
Does the product:
1. Code all years as in a manner that preserves century, decade, and year information? X
2. Correctly perform all of the following manipulations across the century boundary? X
3. * Computations of time spans, due-dates, etc. X
4. * Sorting of data X
5. * Selections based on key fields X
6. * Selections based on non-key fields X
40.
OS & APPLICATION QUESTIONS
NA No Yes
Does the product:
1. Display the year as an unambiguous value with a minimum of two digits? X
2. Correctly handle data before 1/1/2000, on 1/1/2000 and after 1/1/2000 with the
system clock set to today's date? X
3. Correctly handle data before 1/1/2000, on 1/1/2000 and after 1/1/2000 with the
system clock set to 1/1/2000? X
4. Correctly handle data before 1/1/2000, on 1/1/2000 and after 1/1/2000 with the
system clock set to after 1/1/2000? X
5. Correctly handle data before 1/1/2000, on 1/1/2000 and after 1/1/2000 with the
system clock set to 12/31/1999? X
6. Correctly process dates with the system clock set to 12/31/1999 and processing
allowed to continue across the century boundary? X
7. Correctly handle date comparisons where one date is not greater than 12/31/1999
and the other Date is not less than 1/1/2000? X
8. Use a sliding window for year calculations? X
9. Contain a date format that does not preserve century information? X
10. Create and/or store data in files or log files, or generate reports that do not
preserve century Information in date fields? X
11. Use a 32 bit incrementing signed value for date and time? X
12. Correctly set and maintain the century digits in the real time clock, if the product
uses "AT"-class PC's (286 through Pentiums and clones), does the operating system
or your system software correctly set and maintain the century digits in the
real-time-clock? X
13. Correctly handle all time interval calculations based on the century
transition - both looking back into the past, and looking forward into the
future? X
14. Correctly handle future time interval calculations the span the century transition? X
15. If required, correctly handle date and time interval calculations based on the use
of data previously stored by the product or previous versions of the product? X
16. Dependent on other products being Year 2000 Qualified in order to attain Qualification?
(Describe below) X
17. Formally tested for year 2000 Qualification? X
41.
Exhibit G
TERADATA VERSION REQUIREMENTS
MicroStrategy intends to implement and Commits to track the evolution of
relevant Microsoft standards and interfaces in the OLAP environment, including
OLE DB for OLAP (ODBO) and MDX.
MicroStrategy agrees to track the evolution of relevant Meta Data standards,
specifically, those defined by the Meta Data Coalition, and those defined by
the Object Management Group.
Maximize the integration of their OLAP offering with the Teradata OLAP
Extensions embedded in the Teradata database.
42.
Exhibit H
MICROSTRATEGY MARKS
43.
Exhibit I
STANDARD XXXXXXXX.XXX AND TELECASTER VOICE BUREAU ACREEMEENTS
44.
Exhibit J
CERTIFIED AND SUPPORTED LANGUAGES
45.
