LOCALIZATION AND DISTRIBUTION AGREEMENT
BETWEEN
SOFTWARE PUBLISHING CORPORATION
AND
CHOTEN INC
This Agreement ("Agreement") is made effective as of February 16, 1995
(the "Effective Date"), by and between SOFTWARE PUBLISHING CORPORATION, a
Delaware corporation with its principal office located at 0000 Xxxxx Xxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000 ("SPC"); and CHOTEN INC., a Minnesota corporation with
its principal office located at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx,
Xxxxxxxxx 00000 ("Choten").
RECITALS
SPC and Choten desire that Choten localize SPC's proprietary software
Products known as "Harvard Graphics Windows version 3.x" and all subsequent
releases, enhancements, modifications, bug fixes and updates therefor for
distribution only in Japan, under the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, SPC and Choten
agree as follows:
AGREEMENT
1. DEFINITIONS
In this Agreement (including the Recitals, and the Exhibits attached
hereto), unless the context otherwise requires, the following expressions will
bear the meanings shown:
1.1 END-USER LICENSE. The SPC standard license agreement in the form
set out in Exhibit A to this Agreement (or in such other form as SPC
prescribes).
1.2 PRODUCTS. Harvard Graphics Windows version 3.x (comprising the
software, End-User License, manuals and other printed materials prepared by SPC)
for the following platforms:
(a) Harvard Graphics for Windows V3.xJ, NEC 9800 series (HGW 3.xJN);
(b) Harvard Graphics for Windows V3.xJ, IBM compatible (HGW 3.xJI);
(c) Harvard Graphics for Windows V3.xJ, Upgrade NEC 9800 series (HGW
3.xJNU);
(d) Harvard Graphics for Windows V3.xJ, Upgrade IBM compatible (HGW
3.xJIU),
(e) Harvard Graphics for Windows V3.xJ, OEM Products, NEC 9800 series
(HGW 3.xJNO); and
(f) Harvard Graphics for Windows V3.xJ, OEM Products, IBM compatible
(HGW 0.XXX).
Any upgrades, updates, corrections, modifications, new releases and
enhancements of the Products shall be deemed the Products and shall be covered
by is Agreement.
References to clauses, the parties, the Recitals, and the Exhibits are
respectively to the clauses of, and the parties, the Recitals, and the Exhibits
to this Agreement. Further, the headings in this Agreement are for use of
reference only and will not affect its interpretation.
2. GRANT OF LICENSE.
2.1 GRANT OF LOCALIZATION AND DISTRIBUTION LICENSE. During the term of
this Agreement SPC grants to Choten an exclusive license (a) to translate or
have translated the Products into the Japanese language and otherwise localize
or have localized the Products to account for cultural difference between the
United States and Japan, and (b) to copy and manufacture complete packages of
the translated Products, and distribute such packages of the translated Products
in Japan either directly or through subdistributors, original equipment
manufacturers, and value added resellers. In this regard, it is a material
condition to the rights granted to Choten hereunder that Choten assure that the
subdistributors, original equipment manufacturers, and value added resellers
distributes the translated Products in conformance with the conditions of this
Agreement, and as necessary to protect SPC's ownership and intellectual property
rights in the Products under applicable law.
2.2 LOCALIZATION OF PRODUCTS. Choten's translation of the Products will
include, without limitation, translation of the software, menus, manuals,
End-User License, registration cards, product packaging, disk labels, SPC
brochures, and all other packaging and promotional materials relating to the
distribution of the Products in Japan. Choten will advise SPC of all changes
necessary or advisable in order to comply with the local laws in Japan, and all
such changes must be first approved by SPC in writing before being implemented.
All translated materials must be first approved by SPC in writing before being
distributed by Choten in Japan. SPC agrees to respond to Choten's request for
approval within fifteen (15) calendar days of SPC's receipt of said request for
approval. If SPC does not respond to Choten within fifteen
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(15) calendar days, SPC's approval is assumed. Choten shall be obligated to
localize the Products unless Choten has commercially reasonable grounds not to
do so.
2.3 RECORDS. Choten will keep proper and accurate records of the
translated copies of the Products made by it and will provide SPC with a
quarterly statement (no later than the 45th day following the close of each
quarter) detailing the number of copies made and distributed by it in Japan
pursuant to this Agreement. Such statement shall be in a form specified by SPC.
2.4 AUDIT RIGHTS. SPC will have the right to enter Choten's
premises at any reasonable time:
(a) to audit the net number of translated copies of the Products
shipped by Choten. In the event of any discrepancy between the net
number of copies shipped by Choten and the statements provided to
SPC pursuant to Section 2.3 above, Choten will immediately rectify
such discrepancy to SPC's satisfaction, and pay to SPC all overdue
royalties, if any, with interest dating from the date when such
amounts were due. For this purpose, interest will be the lower of
1.5% of the overdue amount per month, or the highest amount
permissible under applicable law.
(b) to examine the quality of translated copies of the Products made
and distributed by Choten in accordance with Choten's obligations
pursuant to Section 2.5 below. In the event that, in the reasonable
opinion of SPC, Choten is not acting in accordance with its
obligations pursuant to Section 2.5 below, Choten will immediately
rectify such non-compliance. If Choten does not rectify such
discrepancy or non-compliance within 90 calendar days of the
discovery of the discrepancy or non- compliance, SPC may, at its
election, terminate this Agreement forthwith by service of written
notice of Choten.
2.5 TRANSLATION SCHEDULE AND QUALITY STANDARDS. Choten undertakes to
use its best endeavors to complete the translation of the Products within the
time frame and to the quality standards agreed as set forth on Exhibit B
attached hereto. On completion of the translation Choten will provide SPC with a
reasonable number of copies of the translated Products on each and every media
on which the Products has been translated and recorded, together with all
technical information related to the translation. It is expressly provided that
SPC's acceptance of the translation will neither relieve Choten from its
liabilities for defects in the translation nor make SPC responsible therefor.
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2.6 SPC DELIVERABLES. Promptly following execution of this Agreement
SPC will provide Choten with "double bite enabled" code for the Products and
object code which will be sufficient for Choten to complete the translation of
the Products as contemplated hereunder ("Localization Code"). SPC will also
provide Choten with copy of all manuals, registration cards and other written
materials which are to be translated by Choten and included in packages of the
Products for distribution in Japan. SPC will permit Choten's designated
engineers to access the SPC source code for the Products at SPC's facilities in
Santa Xxxxx - subject to the terms of this Section 2.6. For this purpose, SPC
will provide Choten with a reasonable amount of support at SPC's facilities -
but Choten and SPC each will pay all of its own direct and indirect costs,
including but not limited to travel costs, relating to Choten's translation out
of SPC's facilities and/or localization facilities in Japan. No Choten
designated engineers will have access to the Localization Code until he/she
executes and delivers to SPC a SPC confidentiality agreement in the form
attached hereto as Exhibit C. Choten will notify SPC immediately should it
become aware of misuse or disclosure of the Localization Code or source code in
an manner prohibited by this Agreement, and will fully cooperate with SPC to
correct and limit SPC's damages resulting from such disclosure or misuse.
2.7 CHOTEN'S DELIVERABLES. The translated deliverables for the
translated Products to be provided by Choten to SPC will include (a) complete
machine-executable object code (and source code if it is made available by SPC
to Choten at SPC's facilities as described in Section 2.6 above), (b) complete
programmers' documentation in its best and most complete form then available as
well as other documentation and materials listed in Section 2.2 above, and (c)
all tools and compilers necessary for SPC to make a build of the Products being
delivered (if any such tools and compilers are readily available third party
products, Choten may identify such necessary compilers and tools rather than
provide them to SPC). Notwithstanding the foregoing, if the delivery of any
portion of any elements of the localized version of the Products, documents,
tools or any other items shall require the consent of any third party, such
assignment shall be subject to and effective as of the granting of such consent.
SPC shall be responsible for obtaining such third-party consents, provided that
Choten shall assist SPC as is reasonably necessary, at SPC's expense, in
obtaining such third party consents.
2.8 DELIVERY OF TRANSLATION DELIVERABLES. All deliverables, including
intermediate versions if specified on Exhibit B, will be delivered by Choten to
SPC at Choten's expense in conformance with Exhibit B (which exhibit also
specifies the specific format and SPC contact person for the delivery by Choten
of the deliverables for the Products). When and as SPC requests, Choten will
deliver to SPC, to the extent that it does not unreasonably interfere with
Choten's ability to comply with the time frame set forth on Exhibit
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B, a portion of the translated Products in its then most current form.
2.9 TRANSLATION OF UPDATES AND ENHANCEMENTS. During the term of this
Agreement, SPC will promptly provide Choten with updates and upgrades to the SPC
Products free of charge. Choten will promptly translate, at its expense, and
make part of the Products, such updates and upgrades for distribution hereunder.
All such translations will automatically be assigned to SPC as provided in
Section 3 below. Choten shall obligated to localize the Products unless Choten
has commercially reasonable grounds for not to do so.
2.10 RESTRICTIONS ON TRANSLATIONS. Choten will not be entitled to copy
or translate any materials of SPC other than the Products, the packaging or the
End-User License without SPC's prior written approval.
2.11 SUPPORT. During the terms of this Agreement, SPC shall provide the
Technical Support and the Error Fixes through appropriate communications
mechanisms (telephone, fax, or electronic mail) to Choten's designated support
contact or backup support contact if the primary designated contact is
unavailable. Choten will receive technical information on the development of
solutions, software problem analysis, and responses to technical issues as they
pertain to the operation of the Products.
2.12 TECHNICAL SUPPORT. During the term of this Agreement, SPC shall:
(i) designate an individual or individuals and fax numbers as main points of
contact at SPC for fax hotline support; and (ii) provide such fax hotline
support. SPC shall use its best efforts to respond to all fax inquiries
immediately, and, subject to its obligations with respect to Error Fixes set for
in Section 2.13 below, no later than 48 hours after the initial inquiry. The
obligations set forth in this Section shall be referred to as "Technical
Support".
2.13 ERROR FIXES. During the term of this Agreement, SPC shall provide
bug fixes, error fixes, workarounds, code corrections, and comparable solutions
to defects and malfunctions (collectively, "Error Fixes") of the Products
according to the schedule agreed by the parties.
3. TITLE TO TRANSLATED PRODUCTS AND MATERIALS.
3.1 SPC OWNERSHIP. Choten agrees that the Products (including the
source code, if made available by SPC to Choten) and all elements of the
translated version of the Products conducted by Choten hereunder are, and will
remain at all times, the property of SPC and SPC will retain all right, title
and interest thereto. Choten will have no right or license to use the Products
or the translated version of the Products except as expressly specified in this
Agreement.
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3.2 ASSIGNMENT OF TRANSLATED PRODUCTS AND MATERIALS. Choten further
hereby irrevocably assigns and transfers to SPC all right, title and interest
Choten may have or acquire in the translated Products, including the derivative
work copyright therein, and the deliverables thereto, including all related
trademarks, patents, copyrights, moral rights, and any other intellectual
property rights ("Assigning Rights"). Choten agrees that it will execute, upon
SPC's request, one or more written assignments in the form attached hereto as
Exhibit D or substantially similar thereto, and other documents as SPC may
reasonably request in order to document and/or record SPC's rights as stated
herein. Such documents may be filed or recorded with such governmental
authorities as SPC deems appropriate, including without limitation the United
States Copyright Office. Choten hereby waives and agrees never to assert any
moral rights it may have in the Products or in the translated Products, during
and after the expiration or any termination of this Agreement. Notwithstanding
the foregoing, if the assignment of any portion of any elements of the localized
version of the Products, documentation, tools or any other items shall require
the consent of any third party, such assignment shall be subject to and
effective as of the granting of such consent. SPC shall be responsible for
obtaining such third-party consents, provided that Choten shall assist SPC as is
reasonable necessary, at SPC's expense, in obtaining such third party consents.
THE ASSIGNING ASSETS ARE ASSIGNS OR TRANSFERS AS IS, WHERE IS AND CHOTEN MAKES
NO WARRANTY RELATING TO THE ASSIGNING ASSETS, EXPRESS OR IMPLIED, AND EXPRESSLY
EXCLUDED ANY WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT.
3.3 WAIVER OF BENEFITS OF OWNERSHIP. To the extent that any rights of
Choten in and in relation to the translated version of the Products made
pursuant to this Agreement cannot be assigned to SPC under any applicable law,
then in such instance Choten hereby irrevocably waives the benefit of any such
rights in any part of the world.
4. CHOTEN'S OBLIGATIONS.
4.1 MARKETING AND DISTRIBUTION COMMITMENT. Choten will use its best
efforts to (a) vigorously promote the distribution of the Products in Japan in
accordance with SPC's terms and policies as announced from time to time; and (b)
satisfy those reasonable criteria and policies with respect to Choten's
obligations under this Agreement communicated in writing by SPC to Choten from
time to time. Specifically, Choten will use commercially reasonable efforts to,
during the term of this Agreement implement the marketing and promotion programs
and budget commitments for the distribution of the Products by Choten as set
forth on Exhibit E attached hereto. These marketing commitments may be changed
from time-to-time on the mutual agreement of the parties. Failure to meet the
marketing commitments for the Products for each of years shall not be grounds
for termination of the Agreement.
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4.2 SALES GOALS. Choten will use its best efforts to achieve the sales
goals during first year from the first customer shipment of the Products in
Japan, as described and set forth on Exhibit F attached hereto, consisting of
targeted unit sales of the Products in Japan. Following the initial period (and
within 60 days of the end of the then current year), the parties will mutually
agree on the quarterly and annual sales goals for the immediately succeeding
year - which in any event will be no less than the sales goals for the
immediately preceding year. In the event that SPC and Choten are unable to
agree, the annual sales goals for the immediately succeeding year will be the
same amount of immediately preceding year. Failure to meet the sales goals for
the Products for each of years shall not be ground for termination of this
Agreement.
4.3 SUPPORT AND RESOURCE COMMITMENTS. Choten further commits to provide
an adequate level of support, in line with software industry standards in the
Japanese market, for the Products at its own expense and in accordance with the
customer sales and support staffing levels, training and related customer
service commitment as described and set forth on Exhibit G attached hereto.
These support and resource commitments may be changed from time-to-time on the
mutual agreement of the parties. Choten's failure to meet the agreed-on
commitments will be a material breach of this Agreement.
4.4 NO COMPETITIVE PRODUCTS. Choten agrees and undertakes not to stock,
promote or distribute any product that directly competes with the Products.
4.5 PRODUCT RETURNS. Choten agrees and undertakes to be solely
responsible for all returns of the translated Products at its own expense,
provided, however, Choten shall have the right to deduct license fees payable to
SPC to account for returns received and credited in that calendar quarter.
4.6 DISTRIBUTION SUBJECT TO END-USER LICENSE. Choten agrees and
undertakes to ensure that the distribution of the Products in Japan will be
subject to the End-User License, and in particular but without limitation,
Choten will ensure that all its customers are made aware, prior to the license
to the customer being concluded, that the Products are being supplied subject to
the terms of the End-User License. For this purpose, translated copy of the
End-User License will be included in each package of the Products distributed by
Choten in Japan.
4.7 QUALITY OF TRANSLATED PRODUCT; INDEMNITY. Choten will be
responsible for the quality of the copies of the Products and the accuracy of
the translations made by it pursuant to this Agreement and agrees to indemnify
and hold SPC harmless from and against, any and all claims, costs, damages,
liabilities and expenses (including legal fees) arising out of Choten's
distribution of the Products in Japan.
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4.8 TRANSLATION EXPENSE. The translation of the Products, packaging and
End-User License will be at the entire expense of Choten.
4.9 INVENTORY. Choten will maintain at least one warehouse facility in
Japan, and will maintain an inventory of the Products and warehousing facilities
sufficient to serve adequately the needs of its customers on a timely basis. As
a minimum, such inventory will include not less than the quantity of the
Products necessary to meet Choten's reasonably anticipated demands for a 30 day
period.
4.10 CHOTEN FINANCIAL CONDITION. Choten will maintain and employ in
connection with Choten's business under this Agreement such working capital and
net worth as may be required in SPC's reasonable opinion to enable Choten to
carry out and perform all of Choten's obligations and responsibilities under
this Agreement. From time to time, on reasonable notice by SPC, Choten will
furnish such financial reports and other financial data as SPC may reasonably
request as necessary to determine Choten's financial condition.
4.11 PACKAGING. Choten will distribute the Products with all packaging,
warranties and disclaimers and license agreements intact as specified by SPC,
and will instruct its customers as to the terms of such documents applicable to
the Products.
4.12 CHOTEN COVENANTS. Choten will: (a) conduct business in a manner
that reflects favorably at all times on the Products and the good name, good
will and reputation of SPC; (b) avoid deceptive, misleading or unethical
practices that are or might be detrimental to SPC, the Products or the public;
(c) make no false or misleading representations with regard to SPC or the
Products; (d) not publish or employ, or cooperate in the publication or
employment of, any misleading or deceptive advertising material with regard to
SPC or the Products; (e) make no representations, warranties or guarantees to
customers or to the trade with respect to the specifications, features or
capabilities of the Products that are inconsistent with the literature
distributed by SPC; and (f) not enter into any contract or engage in any
practice detrimental to the interests of SPC in the Products.
4.13 COMPLIANCE WITH LAW. Choten 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.
4.14 JAPANESE GOVERNMENTAL APPROVAL. If any approval with respect to
this Agreement, or the notification or registration thereof, will be required at
any time during the term of this Agreement, with respect to giving legal effect
to this Agreement in Japan, Choten will immediately take whatever steps may be
necessary
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in this respect, and any charges incurred in connection therewith will be for
the account of Choten. Choten will keep SPC currently informed of its efforts in
this connection.
4.15 MARKET CONDITIONS. Choten will advise SPC promptly concerning any
market information that comes to Choten's attention respecting SPC, the
Products, SPC's market position or the continued competitiveness of the Products
in the Japanese marketplace. Choten will confer with SPC from time to time at
the request of SPC on matters relating to market conditions, sales forecasting
and product planning relating to the Products.
5. ROYALTY PAYMENTS.
5.1 ROYALTY PAYMENTS. For each copy of the Products that Choten shipped
to end users, subdistributor, OEM manufacturers, and value-added resellers,
Choten will pay to SPC the per unit royalty as set forth in Exhibit H attached
hereto. The per unit royalty is 17.5% of either (i) the recommended retail price
("RRP") of the Products in Japan if the Product is shipped stand alone; or (ii)
the product price charged by Choten's OEM manufacturer less the cost of goods if
the Products are shipped as an OEM product. For this purpose and within 60 days
of the end of the then-current year, SPC will set and notify Choten of the RRP
in effect for the immediately succeeding year. Choten will provide to SPC an
analysis of the current local market conditions in Japan ("Market Information")
and SPC will consider the Market Information provided in good faith in setting
the RRP; but in no event will the RRP for the succeeding year be more than then
RRP then in effect. If the term of this Agreement is extended beyond the initial
period, as provided in Section 6.1 below, the Agreement continues under the same
terms and conditions as the original Agreement.
5.2 MINIMUM ANNUAL ROYALTY PAYMENTS. To maintain its rights granted by
SPC under this Agreement, Choten agrees to pay to SPC the following minimum
annual royalties during each year of the term of this Agreement:
(a) For the period commencing from the Effective Date through June 30,
1996, Choten will pay to SPC a minimum annual royalty of Y97,700,000 in
two payments consisting of (i) a first payment of Y40,000,000 by no
later than September 30, 1995, and (ii) a second payment of Y57,700,000
by no later than June 30, 1996.
(b) Commencing July 1, 1996, and for each 12-month period during the
remaining term of this Agreement extending from July 1st to June 30th
each year, Choten will pay to SPC a minimum annual royalty which will
be mutually agreed to by the parties in good faith at least 60 days
prior to the commencing of the next succeeding 12-month period. In the
event that Choten and SPC cannot agree on the minimum annual royalty
for
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any 12-month period, then the minimum annual royalty for that year will
be Y97,700,000 the first installment consisting of Y40,000,000 to be
paid by December 31st of that year, and the second installment
consisting of Y57,700,000 to be paid by June 30th of that year. The
minimum annual royalty will be paid in two payments, in an amount also
to be agreed on by the parties, the first payment to be paid by
December 31st and the second payment to be paid by June 30th during
each such 12- month period.
(c) For purposes of payment of the minimum annual royalties, actual
royalties paid by Choten will be credited against and will reduce the
payment of minimum annual royalties as follows:
(i) for the period from the Effective Date until
September 30, 1995, actual royalties paid during that period will be
credited against the Y40,000,000 installment due on September 30, 1995.
The payment described above shall be credited to future royalties
between January 1, 1996 and June 30, 1996.
(ii) for the period of October 1, 1995 until June 30,
1996, actual royalties paid during that period will be credited against
the Y57,700,000 installment due on June 30, 1996;
(iii) for each successive period following June 30,
1996, from July 1st to December 1st, actual royalties paid during that
period will be credited again the installment due on December 31st; and
(iv) for each successive period following June 30,
1996, from January 1st to June 30th, actual royalties paid during the
period between January 1st and June 30th of that year will be credited
against the installment due on June 30th.
The parties agree that the remedy for the failure to pay the minimum annual
royalty payments shall be limited to the rights to terminate the agreement by
SPC in accordance with Section 6.5. [Notwithstanding the above, Choten is still
obligated to pay to SPC royalties on actual sales of the Products made by
Choten, and SPC does not waive its rights to collect such royalties.]
5.3. PAYMENT TERMS. Choten will pay the per unit royalties described in
Section 5.1 above within 60 days following the close of the end of the quarter
for which the license fees are due. This payment will be accompanied by a report
containing Choten's calculation of royalties paid, as described in Section 2.3
above.
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5.4 TAXES AND LATE PAYMENT. The royalties payable by Choten to SPC are
exclusive of any sales, use and/or all other taxes or duties, however
designated, except for (i) taxes on SPC's net income and (ii) withholding taxes
required to be paid by Choten to Japanese taxing authority, if any. Any such
taxes or duties required to be paid or collected by SPC shall be paid by Choten
to SPC, unless Choten provides to SPC and appropriate certificate of exemption
from the applicable taxing authority. In the event of any delay in making
payment of amounts payable to Choten to SPC hereunder, SPC may charge interest
at the lower of 1.5% per month from the due date until payment is received by
SPC, or the maximum amount payable under applicable law.
5.5 NO SETOFF. Choten will not setoff or offset against payment to SPC
amounts that Choten claims are due to it. Choten will bring any claims or causes
of action it may have in a separate action and waives any right it may have to
offset, setoff or withhold payment to SPC for the Products.
6. TERM AND TERMINATION
6.1 TERM. This Agreement will commence on the Effective Date and will
continue by the end of June 1999. Thereafter, unless and until terminated as
provided below, this Agreement will be renewed for additional periods of one
year each on the mutual agreement of the parties in writing.
6.2 TERMINATION WITHOUT CAUSE. At any time following the initial term
of this Agreement, either party may terminate this Agreement upon giving the
other party not less than 120 days prior written notice.
6.3 TERMINATION FOR CAUSE. If either party defaults in the performance
of any of its material obligations under this Agreement, then the non-defaulting
party may give written notice to the defaulting party that if the default is not
cured within 60 days this Agreement will be terminated. If the default is not
cured during the 60 day period then this Agreement will terminate immediately
upon the provision of written notice of termination from the non-defaulting
party.
6.4 FAILURE TO COMPLETE TRANSLATION. SPC may terminate this Agreement
in accordance with Section 6.3 above if the translation of the Products and
their related materials are not completed in accordance with Exhibit B; provided
however, Choten shall no be held responsible if SPC should fail to provide
Choten with Localization Code and support necessary to complete the localization
of the Products within reasonable time frame. Failure to provide required
Localization Code and support shall be considered a default by SPC.
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6.5 FAILURE TO MEET ANNUAL ROYALTY COMMITMENTS. Failure to meet the
Annual Royalty Commitment for the Product(s) in Exhibit H attached hereto, shall
be grounds for termination of this Agreement with respect to the Product(s). SPC
must provide written notice of termination within thirty (30) days of Choten's
failure to meet the Annual Royalty Commitment for the Product(s).
6.6 TERMINATION OF INSOLVENCY. Either party may, in its sole
discretion, terminate this Agreement forthwith without notice to the other party
(a) upon the institution by or against the other party of insolvency,
receivership or bankruptcy proceedings or any other proceedings for the
settlement of the other party's debts, (b) upon the other party making an
assignment for the benefit of creditors, or (c) upon the other party's
dissolution, or (d) the other party suffers any other action in consequence of
debt or insolvency.
7. CONSEQUENCES OF TERMINATION.
7.1 NO RIGHT TO DISTRIBUTE. On termination of this Agreement the
license granted to Choten to copy and distribute the Products will immediately
cease except such supporting software, information and data which Choten will
require to continue to support the Products beyond the date of expiration of
termination - but Choten will be entitled to sell off its existing stock of the
Products subject to Section 7.2 below.
7.2 SPC'S PURCHASE OF INVENTORY. SPC will have the option, exercisable
by notice in writing served on Choten either before or within 15 days after the
date of termination of this Agreement, to require Choten to deliver to SPC or to
its order all or part of Choten's inventory of the Products - subject to payment
by SPC of full manufacturing cost of such products. If SPC exercises this
option, Choten will not be obliged to pay the royalties for the repurchased
units of the Products under Section 5.1 above.
7.3 RETURN OF CONFIDENTIAL INFORMATION. Within 30 days after the
termination or expiration of this Agreement, Choten will prepare and return to
SPC (at SPC's expense) all SPC confidential information and other SPC materials
in Choten's possession, as SPC may direct.
8. COPYRIGHT AND CONFIDENTIALITY.
8.1 COPYRIGHT NOTICES. Copyright in the program included in the
Products is owned by SPC, and not by Choten or any of Choten's agents or
customers. Choten will not remove any legal notices or copyright marks which
appear in the Products and will ensure that any and all copies of the Products
made by Choten include such notices or marks.
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8.2 NONDISCLOSURE OF CONFIDENTIAL INFORMATION. Each party will keep
confidential and will not disclose to any third party any trade secrets and
proprietary, technical, commercial and other information relating to the other
party without the prior written consent of the other party. In particular,
Choten will keep confidential and will not disclose to any third party nor use
(except pursuant to this Agreement) any information relating to the Products.
8.3 INFORMATION THAT IS NOT CONFIDENTIAL. For purposes of Section 8.2
above, the following information will not be deemed to be confidential:
(a) information that was in the public domain at the time at which the
recipient acquired it or came into the public domain after that
time through no fault of the recipient;
(b) information that was in the recipient's knowledge before it was
acquired; or
(c) information that was subsequently disclosed to the recipient by a
third party who has the right to make such a disclosure.
(d) information that has been independently developed by the recipient.
9. TRADEMARKS AND TRADE NAMES.
9.1 USE OF TRADEMARK. During the term of this Agreement, Choten will
have the right to indicate to the public in Japan that it is a licensee of SPC
in relation to the Products and to advertise the Products under the trademarks
and trade names that SPC may adopt from time to time (the "SPC Trademarks").
9.2 NO ALTERATION OR REMOVAL OF TRADEMARKS. Choten will not alter or
remove or obscure or translate any of the SPC Trademarks, and it will not at any
time during or after the term of this Agreement attempt to register any
trademarks or trade names similar to the SPC Trademarks.
9.3 NO USE OF OTHER TRADEMARKS. Choten will not use any trademarks
other than the SPC Trademarks in connection with the Products without the prior
written agreement of SPC; provided, however, SPC agrees that Choten may affix
its own brand name, trade symbol, logo or their marking to localized Products,
in addition to that of SPC, but in no way shall Choten alter SPC's xxxx.
Choten's brand name, trade symbol, logo or other markings must not be more
prominent thatn SPC's xxxx. Choten shall deliver SPC for its approval copies of
any advertising or promotional packaging, materials bearing the Trademarks used
by Choten with respect to the Products. SPC agrees to respond to Choten's
request for approval
13
within fifteen (15) calendar days of SPC's receipt of said request for approval.
If SPC does not respond to Choten within fifteen (15) calendar days, SPC's
approval is assumed.
9.4 PRIOR SPC APPROVAL. All representations of the SPC Trademarks that
Choten intends to use will first be submitted to SPC for written approval.
9.5 NO RIGHTS IN TRADEMARKS. Choten has paid no consideration for the
use of SPC's trademarks, trade names, logos, designations or copyrights, and
nothing contained in this Agreement will give Choten any right, title or
interest in any of them. Choten acknowledges that SPC owns and retains all
trademarks, trade names, logos, designations, copyrights and other proprietary
rights in or associated with the Products, and agrees that Choten 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 of SPC's Trademarks. In
this regard, Choten agrees to use reasonable efforts to protect SPC's
proprietary rights and to cooperate in SPC's efforts to protect its proprietary
rights.
10. INFRINGEMENT PROCEEDINGS AND INDEMNIFICATION.
10.1 SPC'S INDEMNIFICATION OF CHOTEN. If Choten learns of any possible
infringement of any U.S. and/or Japanese patent, copyright or trade xxxx of any
third party arising from the distribution of the Products in Japan pursuant to
this Agreement, Choten will immediately notify SPC. At the written request of
Choten, SPC will have the sole conduct of any proceedings (including the right
to settle a compromise) issued by any third party that the distribution of the
Products in Japan by Choten infringes any U.S. or Japanese intellectual property
rights of that third party. If Choten requests the conduct of any such
proceedings, such conduct will be at the cost of SPC and SPC will indemnify
Choten in resepct of any costs, damages or reasonable expenses incurred by
Choten and arising from such proceedings or incurred in the course of or in
connection with the performance of this Agreement provided that Choten
co-operates and assists SPC in conduct of such proceedings including, where
appropriate, lending its name.
10.2 NO INDEMNITY. SPC will have no liability and will not defend
Choten in respect of any proceeding arising from the supply of the Products
otherwise than in accordance with this Agreement, including without limitation,
the distribution of any Products incorrectly translated or in combination with
any other products or processes or if the Products are modified or adapted
without the prior agreement in writing of SPC or in respect of any trademark
infringement claims arising from the use by Choten of any marking or branding
not approved by SPC. In particular, SPC will have no liability and will not
defend Choten in respect of any proceeding
14
where an infringement results from Choten's translation and not from the
original Products.
10.3 CHOTEN'S INDEMNITY OF SPC. Choten will indemnify SPC and its
affiliates for, and hold them harmless from, any loss, expense (including
reasonable attorney's fees), damage, or liability arising out of any claim,
demand, suit, or action alleging facts that constitute a breach of this
Agreement, including but not limited to Choten's distribution of defectively
translating Products, Choten's or Affiliate's misrepresentation of the Products
in Japan, or infringement of third party intellectual property rights (through
no fault of SPC) - provided that SPC promptly informs Choten in writing of any
such claim, demand, suit or action. SPC will not agree to the settlement of any
such claim, demand, suit or action prior to a final judgement thereon without
the consent of Choten, whose consent will not be unreasonably withheld.
10.4 ENTIRE LIABILITY; WAIVER OF REMEDIES. The provisions of this
Section 10 constitute the entire liability and obligations of SPC and the
exclusive remedy of Choten in respect of any alleged infringement of any third
party rights arising from the distribution by Choten of the Products pursuant to
this Agreement, and Choten waives any remedies it may have at common law,
statute or otherwise.
11. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES.
11.1 LIMITED WARRANTY. SPC MAKES NO WARRANTIES OR REPRESENTATIONS AS TO
THE PERFORMANCE OF THE PRODUCT OR AS TO SERVICE TO CHOTEN OR TO ANY OTHER
PERSON, EXCEPT AS SET FORTH IN SPC'S LIMITED WARRANTY AS STATED IN THE END-USER
LICENSE. SPC RESERVES THE RIGHT TO CHANGE THE WARRANTY AND SERVICE POLICY SET
FORTH IN SUCH LIMITED WARRANTY, OR OTHERWISE, AT ANY TIME, WITHOUT FURTHER
NOTICE AND WITHOUT LIABILITY TO DISTRIBUTOR OR TO ANY OTHER PERSON.
11.2 DISCLAIMER OF WARRANTIES. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ARE
HEREBY EXCLUDED BY SPC.
11.3 CHOTEN WARRANTY. Choten will make no warranty, guarantee or
representation, whether written or oral, on SPC's behalf.
12. LIMITED LIABILITY.
12.1 NO CONSEQUENTIAL DAMAGES. REGARDLESS WHETHER ANY REMEDY SET FORTH
HEREIN OR IN SPC'S LIMITED WARRANTY AS STATED IN THE END- USER LICENSE FAILS OF
ITS ESSENTIAL PURPOSE OR OTHERWISE, NEITHER
15
PARTY SHALL BE LIABLE FOR ANY LOST PROFITS OR FOR ANY DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES SUFFERED BY THE
OTHER PARTY, ITS CUSTOMERS OR OTHERS ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE PRODUCTS, FOR ALL CAUSES OF ACTION OF ANY KIND (INCLUDING TORT, CONTRACT,
NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY) EVEN IF ONE PARTY BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 MAXIMUM LIABILITY. EXCEPT FOR LIABILITY FOR PERSONAL INJURY OR
PROPERTY DAMAGE ARISING FROM SPC'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO
EVENT WILL SPC'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR
THE PRODUCTS, FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT,
NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY, EXCEED THE TOTAL AMOUNT
PAID BY CHOTEN TO SPC HEREUNDER.
13. GENERAL PROVISIONS.
13.1 NOTICE. Any notice under this Agreement will be in writing and
will be sent by prepaid registered air mail post or by facsimile transmission
(confirmation to be posted within 3 days of the facsimile transmission)
addressed to the party at the above address or such other address as may be
notified by that party during this Agreement. A notice will be deemed received
if sent by registered air mail post on the 10th day after the date of posting
and, if sent by facsimile on the date of transmission provided that written
confirmation is posted by registered air mail post within three days of the
transmission.
13.2 FORCE MAJEURE. Non-performance of either party will be excused to
the extent that performance is rendered impossible by strike, fire, flood,
governmental acts or orders or restrictions, failure of suppliers or any other
reason where failure to perform is beyond the control and not caused by the
negligence or fault of the non-performing party.
13.3 ASSIGNMENT. Choten may not transfer, assign, charge, sub-license
or sub-contract, directly and indirectly, its obligations under this Agreement
without the prior written consent of SPC. Notwithstanding the foregoing, this
Agreement shall be automatically assigned to Kubota Corporation, a Japanese
corporation ("Kubota") upon written notice from Kubota and Choten of such
assignment together with the copy of the assignment agreement executed by Choten
and Kubota. Such assignment will provide that Kubota and Choten are jointly and
severally liable for Choten's performance as described under this agreement.
13.4 SEVERABILITY. If any provision of this Agreement is held to be
invalid by a court of competent jurisdiction, then the remaining provisions will
nevertheless remain in full force and effect.
16
13.5 WAIVER. No waiver of any term or condition of this Agreement will
be valid or binding on either party unless agreed to in writing by both parties.
The failure of either party to enforce at any time any of the provisions of this
Agreement, or the failure to require at any time performance by the other party
of any of the provisions of this Agreement, will in no way be construed to be a
present or future waiver of such provision, nor in any way affect the validity
of such provision or the right of either party to enforce each and every such
provision thereafter.
13.6 ENGLISH LANGUAGE. This Agreement is in the English language only,
which language will be controlling in all respect and all versions in any other
language will be for accommodation only and will not be binding upon the
parties. All communications and notices to be made or given pursuant to this
Agreement will be in the English language.
13.7 GOVERNING LAW. This Agreement will be governed by and construed
under the laws of the State of California. The federal and state courts of Santa
Xxxxx County, California will have exclusive jurisdiction and venue to
adjudicate any dispute arising out of this Agreement. Choten hereby expressly
consents to (a) the personal jurisdiction of the courts of California, and (b)
service of process being effected upon it by registered mail sent to the address
set forth on the cover page of this Agreement.
13.8 ARBITRATION. Any dispute between the parties arising out of this
Agreement will be settled by arbitration to be held in Santa Xxxxx County,
California in accordance with the rules of the American Arbitration Association.
The arbitration will be conducted by a single arbitrator mutually selected by
the parties. The parties agree that the decision of the arbitrator will be final
and binding and may be enforced in any court of competent jurisdiction. The
substantially prevailing part in the arbitration of any subsequent litigation
will be entitled to recover from the other party all the costs, attorneys' fees
and other expenses incurred by such party in the arbitration or litigation. Each
party shall have a limited time of three (3) months after service of notice of
the Arbitration Demand, to conduct limited discovery as shall be determined by
the arbitrator, depending upon the complexity of the issues to be decided at the
Arbitration.
13.9 ENTIRE AGREEMENT. This Agreement, the End-User License, and all
exhibits attached hereto together constitute the entire agreement between the
parties pertaining to the subject matter hereof, and supersedes in their
entirety any and all written or oral agreements previously existing between the
parties with respect to the subject matter. Choten acknowledges that it is not
entering into this Agreement on the basis of any representations not expressly
contained herein.
13.10 EQUITABLE RELIEF. Choten acknowledges that any breach
17
of its obligations under this Agreement with respect to the proprietary rights
or confidential information of SPC will cause SPC irreparable injury for which
there are inadequate remedies at law, and therefore SPC will be entitled to
equitable relief in addition to all other remedies provided by this Agreement or
available at law.
13.11 DUE EXECUTION. The party executing this Agreement represents and
warrants that he or she has been duly authorized under Choten's charter
documents and applicable law to execute this Agreement on behalf of Choten and
its affiliates.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the date specified below.
SOFTWARE PUBLISHING CORPORATION CHOTEN, INC.
By:_______________________ By:__________________________
Name:_____________________ Name:________________________
Title:____________________ Title:_______________________
18
EXHIBIT A
SPC END USER LICENSE AGREEMENT
SOFTWARE LICENSE AGREEMENT
IF AFTER READING THIS SOFTWARE LICENSE AGREEMENT YOU DO NOT ACCEPT OR AGREE TO
THESE TERMS, YOU MAY, WITHIN NINETY (90) DAYS, RETURN THIS ENTIRE PACKAGE UNUSED
AND UNOPENED TO THE PERSON FROM WHOM YOU ACQUIRED IT FOR A FULL REFUND. Software
Publishing Corporation grants you a nonexclusive, nontransferable license to use
this copy of the program and accompanying documentation according to the
following terms:
LICENSE
FOR THE SOFTWARE PROGRAM YOU MAY:
a. install the program on one computer or network server and concurrently have
a single user access the program from such network, and you may make a
second copy of the program onto either a home computer or a portable
computer provided that the program is installed on a single computer which
is used by you at least 80% of the time that the computer is in use;
b. use as a single concurrent node in a network environment;
c. make one (1) copy of the program in machine readable form solely for backup
purposes, provided that you reproduce all proprietary notices on the copy;
and
d. physically transfer the program from one computer to another, provided that
the program is installed on only one computer at a time except as provided
in subsection (a) above.
YOU MAY NOT:
a. use the program on more than one computer or server at a time;
b. modify, translate, reverse engineer, decompile, disassemble, create
derivative works based on, or copy (except for the backup copy) the program
or the accompanying documentation;
c. rent, transfer or grant any rights in the program or accompanying
documentation in any form to any person without the prior written consent
of Software Publishing Corporation; or
d. remove any proprietary notices, labels, or marks on the program and
accompanying documentation.
This license is not a sale. Title and copyrights to the program, accompanying
documentation and any copy made by you remain with Software Publishing
Corporation. Unauthorized copying of the program or the accompanying
documentation, or failure to comply with the above restrictions, will result in
automatic termination of this license and will make available to Software
Publishing Corporation other legal remedies.
UPGRADES
Your use of this upgrade is governed by the terms of this Agreement. If the
upgrade replaces a Software Publishing program, you agree to destroy prior
versions upon receipt of this upgrade.
LIMITED WARRANTY AND DISCLAIMER
Software Publishing Corporation warrants that, for a period of ninety (90) days
from the date of delivery to you as evidenced by a copy of your receipt, the
diskettes on which the program is furnished under normal use will be free from
defects in materials and workmanship and the program under normal use will
perform without significant errors that make it unusable. Software Publishing
Corporation's entire liability and your exclusive remedy under this warranty
(which is subject to your returning the program to Software Publishing
Corporation or an authorized dealer with a copy of your receipt) will be, at
Software Publishing Corporation's option, to attempt to correct or help you
around errors with efforts which Software Publishing Corporation believes
suitable to the problem, to replace the program or diskettes with functionally
equivalent software or diskettes, as applicable, or to refund the purchase price
and terminate this Agreement.
EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, SOFTWARE PUBLISHING CORPORATION
MAKES AND YOU RECEIVE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY
OR IN ANY COMMUNICATION WITH YOU, AND SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. Software Publishing Corporation does not warrant that the operation of
the program will be uninterrupted or error free.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE
EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.
YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
LIMITATION OF LIABILITY
IN NO EVENT WILL SOFTWARE PUBLISHING CORPORATION BE LIABLE FOR ANY DAMAGES,
INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER OR OTHER SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE USE OF THE
PROGRAM OR ACCOMPANYING DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SOFTWARE PUBLISHING CORPORATION OR
AN AUTHORIZED DEALER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU
ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK. SOME STATES
DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
GOVERNMENT RESTRICTED RIGHTS LEGEND
Use, duplication or disclosure by the United States Government is subject to
restrictions of Restricted Rights for computer software developed at private
expense as set forth in FAR ss. 52.227-19 or DOD FAR Supplement ss.
252.227-7013(c)(1)(ii), and successors thereof, as applicable. Software
Publishing Corporation, 0000 Xxxxx Xxxx, X.X. Xxx 00000, Xxxxx Xxxxx, XX
00000-0000.
GENERAL
This Agreement will be governed by the law of the State of California, without
reference to conflict of laws principles. This Agreement is the entire agreement
between us and supercedes any other communications or advertising with respect
to the program and accompanying documentation. If any provision of this
Agreement is held invalid, the remainder of this Agreement shall continue in
full force and effect. If you have any questions, please contact in
writing:Software Publishing Corporation Customer Service, X.X. Xxx 00000 Xxxxx
Xxxxx, XX 00000-0000. Return of the registration card is required for:
o notices of updates and enhancements
o eligibility for customer service and product support
EXHIBIT B
TRANSLATION SCHEDULE AND QUALITY STANDARDS
TRANSLATION SCHEDULE:
Choten will complete and deliver to SPC all materials as indicated in the
Agreement and this exhibit for the full translation of each of SPC's products as
indicated below:
Completion Date Product
--------------- -------
7/1/95 Harvard Graphics for Windows V3.xJ, NEC 9800
series (HGW 3.xJN)
7/1/95 Harvard Graphics for Windows V3.xJ, IBM compatible (HGW
3.xJI);
TBD Harvard Graphics for Windows V3.xJ, Upgrade NEC 9800
series (HGW 3.xJNU);
TBD Harvard Graphics for Windows V3.xJ, Upgrade IBM
compatible (HGW 3.xJIU),
TBD Harvard Graphics for Windows V3.xJ, OEM Products, NEC
9800 series (HGW 3.xJNO); and
TBD Harvard Graphics for Windows V3.xJ, OEM
Products, IBM compatible (HGW 3.xJIO).
Quality Standards:
Translation of all SPC products by Choten as indicated above will include
the following (in addition to the specifications set forth in the Agreement):
1. Translation will include language enablement of the software program to
accommodate Japanese characters and fonts;
2. Translation will include the translation from English into Japanese of:
- the End-User License;
- the instruction manuals;
- the product packaging; and
- the screens, messages, menus and any other components of the
user interface of the product.
3. Clipart and other standard images may be added to show Japanese
representations.
4. Translation will include certain additional features to be mutually agreed
to by SPC and Choten that are important in the Japanese market (such as
doughnut charts, radar charts, import/export of Japanese file formats and
others).
1
EXHIBIT C
SPC CONFIDENTIALITY AGREEMENT
SOFTWARE PUBLISHING CORPORATION CONFIDENTIALITY AGREEMENT
This Agreement is effective as of the 1st day of January, 1995 between
Software Publishing Corporation ("SPC") and Choten Inc. ("Choten").
SPC is in the business of developing, manufacturing and marketing business
application software products, and Choten is in the business of translating and
distributing software products in Japan and in other markets. In order for
Choten to localize and distribute SPC's product in Japan (the "Business
Purpose"), as contemplated in that certain Localization and Distribution
Agreement between the parties effective on the same date herewith (the
"Localization Agreement"), Choten and SPC recognize that there is a need to
disclose to Choten certain confidential information of SPC to be used only for
the Business Purpose and to protect such confidential information from
unauthorized use and disclosure.
In consideration of the disclosure of such information by SPC, Choten
agrees as follows:
1. CONFIDENTIAL INFORMATION. This Agreement will apply to all confidential
and proprietary information disclosed by SPC to Choten, including but not
limited to trade secrets and confidential and proprietary information of SPC,
all inventions, designs, trademarks, formulas, processes, trade secrets, ideas
and copyrightable works, and other intellectual property rights, including
source code, derivative works and enhancements to any of SPC's products, and
other proprietary information and materials from SPC including knowledge about
SPC's business, products, programming techniques, experimental work, customers,
clients and suppliers (the "Confidential Information").
2. OBLIGATIONS. Choten agrees (i) to hold SPC's Confidential Information
in strict confidence, (ii) not to disclose such Confidential Information to any
third parties, and (iii) not to use any Confidential Information for any purpose
except for the Business Purpose. Choten may disclose the Confidential
Information to its responsible employees with a bona fide need to know, but only
to the extent necessary to carry out the Business Purpose. Choten agrees to
instruct all such employees not to disclose such Confidential Information to
third parties, including consultants, without the prior written permission of
SPC.
3. DEEMED NOT CONFIDENTIAL. Confidential Information will not include
information which:
(i) is now, or hereafter becomes, through no act or failure to act
on the part of Choten, generally known or available to the public;
(ii) was acquired by Choten before receiving such information from
SPC and without restriction as to use or disclosure;
(iii) is hereafter rightfully furnished to Choten by a third party
without restriction as to use or disclosure; or
(iv) is disclosed with the prior written consent of SPC.
1
4. RETURN OF INFORMATION. Upon SPC's request, Choten will promptly return
to SPC all tangible items containing or consisting of SPC's Confidential
Information and all copies thereof.
5. NO GRANT OF RIGHTS. Choten recognizes and agrees that nothing contained
in this Agreement will be construed as granting any rights to Choten, by license
or otherwise, to any Confidential Information except as specified in this
Agreement.
6. OWNERSHIP. Choten acknowledges that all Confidential Information is
owned solely by SPC (or its licensors) and that the unauthorized disclosure or
use of such Confidential Information would cause irreparable harm and
significant injury, the degree of which may be difficult to ascertain.
Accordingly, Choten agrees that SPC will have the right to obtain an immediate
injunction enjoining any breach of this Agreement, as well as the right to
pursue any and all other rights and remedies available at law or in equity for
such a breach.
7. MISCELLANEOUS. This Agreement will be construed, interpreted, and
applied in accordance with the substantive laws of the State of California. This
Agreement and the Localization Agreement are the complete and exclusive
statement regarding the subject matter of this Agreement and supersede all prior
agreements, understandings and communications, oral or written, between the
parties regarding the subject matter of this Agreement.
8. TERM. This Agreement will remain in effect for seven years from the date
of the last disclosure of Confidential Information, at which time it will
terminate.
2
EXHIBIT D
FORM OF ASSIGNMENT
For good and valuable consideration, the adequacy of which is hereby
acknowledged, Choten Inc. ("Choten") hereby assigns to Software Publishing
Corporation ("SPC") all right, title and interest (including without limitation
all copyrights, trade secret rights, patent rights and other proprietary rights)
in and to the Japanese language version of the following SPC products - each of
which were translated into Japanese by Choten for SPC under the terms of that
certain Localization and Distribution Agreement between the parties effective as
of January 1, 1995:
(a) Harvard Graphics for Windows V3.xJ, NEC 9800 series (HGW 3.xJN);
(b) Harvard Graphics for Windows V3.xJ, IBM compatible (HGW 3.xJI);
(c) Harvard Graphics for Windows V3.xJ, Upgrade NEC 9800 series (HGW
3.xJNU);
(d) Harvard Graphics for Windows V3.xJ, Upgrade IBM compatible (HGW
3.xJIU),
(e) Harvard Graphics for Windows V3.xJ, OEM Products, NEC 9800
series (HGW 3.xJNO); and
(f) Harvard Graphics for Windows V3.0J, OEM Products, IBM compatible
(HGW 3.xJIO).
Notwithstanding the foregoing, if the assignment of any portion of any
elements of the localized version of the Products, documentation, tools or any
other items shall require the consent of any third party, such assignment shall
be subject to and effective as of the granting of such consent. SPC shall be
responsible for obtainig such third-party consents, provided that Choten shall
assist SPC as is reasonable necessary, at SPC's expense, in obtaining such third
party consents. THE ASSIGNING ASSETS ARE ASSIGNS OR TRANSFERS AS IS, WHERE IS
AND CHOTEN MAKES NO WARRANTY RELATING TO THE ASSIGNING ASSETS, EXPRESS OR
IMPLIED, AND EXPRESSLY EXCLUDED ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NON-INFRINGEMENT.
CHOTEN INC.
By:__________________________
Name:________________________
Title:_______________________
EXHIBIT E
MARKETING AND DISTRIBUTION PROGRAMS
Choten Inc. will invest the following minimum amounts in marketing the product
HGW 3.0J N/I during the periods listed below:
MARKETING SPENDING UNTIL PRODUCT AVAILABILITY
1. Press conferences and seminars Tokyo and Osaka $50k
2. Collateral, catalog, etc (10,000 initial issues) $100k
3. Advertisements (4 magazines over 3 months + set up) $130k
4. Launch training logistics, material, equipment, etc. $60k
Total through product availability is $340k
MARKETING SPENDING FOR THE 12 MONTHS AFTER AVAILABILITY
1. Advertisements (4 magazines over 12 months + set up) $490k
2. Seminars (1 per month) $60k
3. Exhibitions (3 major shows) $150k
4. Direct mail campaign $50k
Total for 12 months after product availability $750k
Total spending $one million and ninety thousand dollars
EXHIBIT F
SALES GOALS
PRODUCT 1995 1996 1997 1998
-------------------------------------------------------------------
HGW 3.xJ N/I XXX XXX XXX XXX
HGW 3.xJ N/IU XXX XXX XXX XXX
HGW 3.xJ N/I Office XXX XXX XXX XXX
Total K Units XXX XXX XXX XXX
Unit Sales Forecast for 1995 will be mutually agreed upon within 30 days of the
Effective Date.
PRODUCT Q1 Q2 Q3 Q4
HGW 3.xJ N/I XXX XXX XXX XXX
HGW 3.xJ N/IU XXX XXX XXX XXX
HGW 3.xJ N/I Office XXX XXX XXX XXX
Total K Units XXX XXX XXX XXX
EXHIBIT G
SUPPORT COMMITMENTS
TECHNICAL SUPPORT
Choten Inc. will provide a dedicated end user and dealer hot line to provide
first level support to all users of Harvard Graphics in Japan. The hot line will
be open during normal working hours and will be manned by suitable qualified
staff.
SALES AND MARKETING SUPPORT
Choten Inc. will provide the following dedicated resources in addition to all
general sales and administrative functions.
JAPAN BASED
Marketing Programs Manager (1)
Pre sales support specialist (2)
EXHIBIT H
Royalty Payments; Minimum Royalties
PRODUCTS ROYALTY BASE CURRENT PRICE RATE ROYALTY/UNIT
HGW 3.xJN/I Recommended Retail Price Y58,000 17.5% Y10,150
set by Choten
HGW 3.xJN/I Recommended Retail Price Y20,000 17.5% Y3,500
Major Upgrade Recommended Retail Price TBD 17.5% TBD
Minor Upgrade Free of Charge
OEM Sales amount deduct TBD 17.5% TBD
Component cost of goods
"Major Upgrades" shall mean upgrades, modifications, additions and substitutions
to the Products that result in substantial performance, structural, or
functional improvements or additions for which SPC, in its sole discretion,
imposes a separate charge on end users of the Products. These consist of version
upgrades for current users of the Product or competitive upgrades for users of a
competing products.
"Minor Upgrades" shall mean all corrections, upgrades, updates, modifications,
additions and substitutions to the Products which may from time to time be
distributed by SPC to end users of the Products without imposition of an
additional charge, but shall not include the Major Upgrades.
