EXHIBIT 10.3
CENTURA Agreement No. 98-OEM-7088-INVU-00
LIMITED MANUFACTURING AGREEMENT
(Signature Pages)
Preamble: The following are the signature pages of an agreement ("Agreement")
which consists of (i) the General Terms and Conditions and (ii) these Signature
Pages. The documents are referenced together by the contract number and are to
be taken together and not separately.
IN CASE OF CONFLICT BETWEEN THE TERMS AND CONDITIONS SPECIFIED IN THE SIGNATURE
PAGES BELOW AND THE GENERAL TERMS AND CONDITIONS, THE TERMS AND CONDITIONS OF
THESE SIGNATURE PAGES SHALL CONTROL.
Notational Convention: Provisions of the General Terms and Conditions shall be
referred to as "Section XY(z) GTC". Provisions of these Signature Pages shall be
referred to as "Item A.B(c) SP".
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1. LICENSEE: For purposes of this Agreement, LICENSEE shall be the
following organization at the designated address:
Organization Name: INVU Services Limited
Organized under the laws of: England
Headquarters Address: The Beren, Xxxxxxxxx Xxxx Xxxx
Xxxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxxxxxxxx XX0 0XX
Telephone: 00000-000000 Fax: 00000-000000
2. Territory: Worldwide.
3. Effective Date of Agreement: March 25, 1998
4. Termination Date: March 24, 1999
5. Programs: *SQLBase Desktop 1 -machine pack,
Version 6.1.2
*SQLBase Desktop 1 -machine pack,
Version 7.0
(*collectively known as the "Desktop
Programs")
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**SQLBase Server (all commercially
available user levels as of the date
of execution of this Agreement),
Version 6.1.2
**SQLBase Server (all commercially
available user levels as of the date
of execution of this Agreement),
Version 7.0 (NT Only)
("collectively known as the "Server
Programs")
6. Initial Payment & Shipping Expenses:
(i) Payment: Upon execution of this Agreement and in consideration for
the rights granted in Section 2 GTC, LICENSEE irrevocably agrees to pay to
CENTURA the noncontingent, nonrefundable payment of (pound)77,000 (seventy-seven
thousand Pounds Sterling). This sum is immediately due and payable and shall be
remitted immediately upon execution of this Agreement. CENTURA will provide
LICENSEE with two (2) master copies of each of the Programs, from which the
authorized copies can be manufactured by LICENSEE.
(ii) Shipping Expenses: All prices for any Programs acquired from
CENTURA hereunder shall be F.O.B. point of origin and LICENSEE shall reimburse
CENTURA for any shipping expenses incurred under this Agreement.
7. License Fees: The payment of (pound)77,000 specified in Item 6 SP above
shall be considered a one-time payment in full for LICENSEE's right to
manufacture and distribute copies of the Programs as follows, subject to the
terms of this Agreement:
(a) Of such amount of (pound)77,000, an amount of (pound)60,000 shall
be considered a one-time payment in full for LICENSEE's right to manufacture and
distribute copies of the Desktop Programs to a maximum of six thousand (6,000)
PC Workstations for use in conjunction with and as an embedded component of
LICENSEE's "Invu SOLO" Application only;
(b) Of such amount of (pound)77,000, an amount of (pound)15,000 shall
be considered a one-time payment in full for LICENSEE's right to manufacture and
distribute copies of the Desktop Programs to a maximum of six hundred (600) PC
Workstations for use in conjunction with and as an embedded component of
LICENSEE's "Invu PRO" Application only; and
(c) The remaining (pound)2,000 shall be considered a one-time payment
in full for LICENSEE's right to manufacture and distribute copies of the Server
Programs to a maximum of one hundred (100) PC Workstations for use in
conjunction with and as an embedded component of LICENSEE's "Invu PRO (Network)"
Application only.
For purposes of this Agreement a "PC Workstation" shall mean any PC workstation
(i) on which the applicable Program (or components thereof) is/are manufactured
and distributed by LICENSEE to its internal and/or external customers and/or
(ii) any PC workstation that is concurrently connected at any one time to any
applicable Program manufactured and/or distributed
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by LICENSEE and/or (iii) that accesses any applicable Program manufactured
and/or distributed by LICENSEE subject to the terms of this Agreement.
LICENSEE shall have the right to make a reasonable number of copies of the
Programs solely for LICENSEE's demonstration and/or evaluation use with it's
Application at no charge to LICENSEE.
8. Application: For purposes of this Agreement the Application shall
mean LICENSEE's "Invu SOLO", "Invu PRO" and "Invu PRO (Network Edition) software
application products and by whatever name such products become known in the
future.
9. Other Terms:
(a) Grant of License Restriction (Desktop Programs): LICENSEE's use and
distribution of the Desktop Programs is strictly limited to use in conjunction
with and as an embedded component of LICENSEE's "Invu SOLO" and "Invu PRO"
Applications only; furthermore LICENSEE agrees that it shall not (nor permit any
third party to) access the following components of the Desktop Programs:
(i) Stored Procedures and Triggers
(ii) External Functions
(iii) SQI-Console (SQLCON*.EXE)
(iv) SQI-Talk (SQLTALK.EXE)
(v) Database Monitor (SSM.EXE)
(vi) Connectivity Administrator (CFGWI*.EXE)
(vii) SQLEdit (SQLEDIT.EXE)
(viii) ODBC (SQLODBW.DLL)
(ix) Views
(x) Partitioned Databases
(xi) Stored Commands.
(b) Grant of License Restriction (Server Programs): LICENSEE's use and
distribution of the Server Programs is strictly limited to use in conjunction
with and as an embedded component of LICENSEE's "Invu PRO (Network)" Application
only; furthermore LICENSEE agrees that it shall not (nor permit any third party
to) access the following components of the Server Programs:
(i) Stored Procedures and Triggers
(ii) External Functions
(iii) ODBC (SQLODBW.DLL)
(iv) Views
(v) Stored Commands.
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(c) Additional License Grant: CENTURA further grants LICENSEE the
right to distribute the manufactured copies of the Programs through its
resellers for further transfer to End Users and only for use in conjunction with
the Application.
(d) Additional PC Workstation Connections: During the term of this
Agreement, and provided that LICENSEE is in compliance with it's obligations
hereunder, LICENSEE shall be eligible to acquire the right to manufacture and
distribute additional copies of the Programs (over and above the number of
copies manufactured and distributed in Item 7 SP above), subject to the terms
and conditions of this Agreement.
In the event that LICENSEE wishes to acquire the rights to such additional
copies of the Programs, LICENSEE shall issue a purchase order (or equivalent
document acceptable to CENTURA), referencing the terms and conditions of this
Item 9(d) SP, for the applicable nonrefundable, noncontingent amount in License
Fees for such additional PC Workstation connections, in accordance with the
following License Fee Schedule and subject to a minimum order value of
(pound)50,000 (fifty thousand Pounds Sterling).
License Fee Schedule
--------------------
License & Application Per PC Workstation
--------------------- ------------------
License Fee Due CENTURA
----------------------
Desktop for Invu SOLO (pound)10 (Ten Pounds Sterling)
Desktop for Invu PRO (pound)25 (Twenty-five Pounds Sterling)
Server for Invu PRO (Network) (pound)20 (Twenty Pounds Sterling)
Amounts due under this Item 9(d) SP shall be immediately due and payable to
CENTURA and paid net thirty (30) days from CENTURA's invoice date. Upon
acceptance of each applicable purchase order (or equivalent document) by CENTURA
the rights to the applicable additional PC Workstation connections shall be
deemed granted by CENTURA.
(e) Gold Support: Upon execution of this Agreement, and in consideration for the
provision of Gold Support ("Gold Support") by CENTURA during the period
commencing March 25, 1998 and ending March 24, 1999 ("Support Period"), LICENSEE
irrevocably agrees to pay CENTURA Gold Support fees in the amount of
(pound)7,500 (seven thousand five hundred Pounds Sterling). Such amount shall be
due and payable in four (4) instalments, as follows:
(i) (pound)1,875 due on or before Xxxxx 00, 0000
(xx) (pound)1,875 due on or before June 25, 1998
(iii) (pound)1,875 due on or before September 25, 1998; and
(iv) (pound)1,875 due on or before December 21, 1998.
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As of the date of execution of this Agreement, Gold Support comprises the
following support services.
-- Multiple designated support contacts and one management contact at LICENSEE
site
-- Queued access to a team of Technical Support Engineers
-- Target response time to telephone calls of:
1 working hour maximum for priority one calls
1.5 working hours maximum for priority two calls
2 working hours maximum for lower priority calls
-- 8.00 a.m. to 5.00 p.m. GMT and 9.00 a.m. to 6.00 p.m. CET service on Monday
- Thursday
-- 8.00 a.m. to 4.00 p.m. GMT and 9.00 a.m. to 5.00 p.m. CET service on Friday
- closed on public holidays
-- Quarterly conference call review of customer activity and product alerts
-- Quarterly call tracking reports
-- Eligibility to a fifteen percent (15%) discount from the list price of
training courses scheduled directly by CENTURA and booked directly with
CENTURA
-- Access to open support cases through CENTURA Web Site.
Provided, however, that CENTURA reserves the right to modify the Gold Support
offerings specified herein at CENTURA's sole discretion.
(f) Grant of License (Payment): Upon execution of this Agreement, Section 2 GTC
is hereby modified by adding the following after the word "Pages" in line
eleven:
"Notwithstanding the foregoing, should LICENSEE fail to pay to CENTURA
the License Fees due under Item 6 SP, all rights granted to LICENSEE in
this Section 2 shall be immediately canceled by CENTURA and any copies
made by LICENSEE of the Programs shall be destroyed by LICENSEE at such
time."
(g) Representations and Warranties by CENTURA to LICENSEE. CENTURA represents
and warrants to and for the benefit of LICENSEE that to the best of CENTURA's
knowledge, the Programs do not infringe any patent, copyright, trade secret or
any other proprietary right of any third party.
(h) Replacement of Section 7 GTC ("CENTURA's Liability") of the Agreement: Upon
execution of this Agreement, Section 7 GTC is hereby deleted and replaced with
the following:
"7. Liability:
(a) Limitation of Liability. EXCEPT AS SET FORTH IN SECTION 8(b) GTC,
EACH PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT FOR THE USE OR
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DISTRIBUTION OF ANY PROGRAM SHALL BE LIMITED TO (pound)100,000 (ONE HUNDRED
THOUSAND POUNDS STERLING) UNDER THE TERMS OF THIS AGREEMENT.
(b) Exclusion Of Consequential And Other Damages. IN NO EVENT SHALL
EITHER PARTY BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE,
NOR WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, HOWEVER CAUSED, WHETHER FOR A
BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT THE OTHER PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ESSENTIAL PURPOSE OF
THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF CENTURA AND LICENSEE ARISING
OUT OF THIS AGREEMENT."
(i) Replacement of Section 8 GTC ("INDEMNITY") of the Agreement: Upon execution
of this Agreement, Section 8 GTC is hereby deleted and replaced with the
following:
"8. Indemnity:
(a) Indemnity by LICENSEE: LICENSEE SHALL INDEMNIFY, DEFEND AND HOLD
CENTURA HARMLESS FROM AND AGAINST ANY CLAIMS OR LAWSUITS, INCLUDING REASONABLE
ATTORNEY'S FEES, THAT ARISE OR RESULT FROM THE USE, SALE OR DISTRIBUTION OF THE
APPLICATION BY LICENSEE, ANY END USER OF LICENSEE OR ITS RESELLERS, OR ANY
CLAIMS BROUGHT BY LICENSEE'S RESELLERS OR ANY END USER OF LICENSEE OR ITS
RESELLERS.
(b) Indemnity by CENTURA: CENTURA SHALL FULLY INDEMNIFY, DEFEND AND
HOLD LICENSEE HARMLESS FROM AND AGAINST ANY CLAIMS OR LAWSUITS, INCLUDING
REASONABLE ATTORNEY'S FEES, ASSOCIATED WITH ANY CLAIM OR SUIT FOR INFRINGEMENT
OF ANY COPYRIGHT, PATENT, TRADE SECRET OR ANY OTHER PROPRIETARY RIGHT OF ANY
THIRD-PARTY AS A RESULT OF THE LICENSES GRANTED TO LICENSEE HEREUNDER."
IN WITNESS WHEREOF, the parties hereby confirm that this Agreement is effective
at the date set forth above and that all terms and conditions have been agreed
to:
LICENSEE: CENTURA:
Signature: Signature:
------------------------ -------------------------
Name: Name:
------------------------ -------------------------
Title: Title:
------------------------ -------------------------
Date: Date:
------------------------ -------------------------
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CENTURA Agreement No. 98-OEM-7088-INVU-00
LIMITED MANUFACTURING AGREEMENT
(General Terms and Conditions)
Preamble: The following are the general terms and conditions of an agreement
("Agreement") which consists of (i) these General Terms and Conditions and (ii)
the Signature Pages. The documents are referenced together by the contract
number and are to be taken together and not separately.
Notational Convention: Provisions of these General Terms and Conditions shall be
referred to as "Section XY(z) GTC". Provisions of the Signature Pages shall be
referred to as "Item A.B(c) SP".
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1. PURPOSE OF THIS AGREEMENT: This Agreement is between Centura Software Limited
("CENTURA"), an English corporation, with offices at Xxxxx Xxxxx, Xxxxxxxxxx
Xxxx, Xxxxxx, Xxxxx XX0 ILW and the organization as specified in the Signature
Pages ("LICENSEE"). This Agreement grants to LICENSEE certain rights to
manufacture and distribute CENTURA's proprietary software products specified on
the Signature Pages ("Programs") subject to the payments, terms and conditions
specified below.
2. Grant of License: In consideration for the payments specified In Sections 3
and 4 GTC and the other applicable provisions of this Agreement, CENTURA grants
to LICENSEE, during the term of this Agreement, the limited and nonexclusive
right and license to manufacture and distribute copies of the Programs only (a)
in the geographic region specified on the Signature Pages ("Territory") and (b)
for use solely in conjunction with and as an embedded component of LICENSEE's
application software product specified on the Signature Pages ("Application").
Such license may be further limited as specified on the Signature Pages.
LICENSEE's distribution of the Programs (for use solely in conjunction with and
as an embedded component of the Application) is subject to the following
requirements:
(i) LICENSEE shall affix a valid copyright notice on such
Application;
(ii) LICENSEE must affix the CENTURA copyright notice In the "About
Box" or startup screen of the Application; other rights to use
CENTURA's name, logo or trademarks may be granted by separate
agreement.
3. License Fees: LICENSEE agrees to pay the License Fees (including initial
commitment or payments) specified on the Signature Pages.
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4. Payment: All payments under this Agreement shall be made in U.S. dollars or
other currency as CENTURA may designate. The terms of any payment shall be as
specified In the Signature Pages and subject to credit availability from
CENTURA, at CENTURA's sole discretion.
5. Records and Review: LICENSEE shall keep accurate records necessary to verify
compliance with the licensing and payment terms of this Agreement, along with
reasonable detail. LICENSEE shall, with reasonable advance notice, make such
records available to CENTURA for inspection and copying during normal business
hours.
6. Support: Unless otherwise specified in the Signature Pages or by separate
agreement, CENTURA shall have no obligation to provide support or Program
updates or upgrades to LICENSEE.
7. CENTURA's Liability: CENTURA'S LIABILITY UNDER THIS AGREEMENT IS STRICTLY
LIMITED TO THE AMOUNT PAID TO CENTURA HEREUNDER.
8. Indemnity: LICENSEE SHALL INDEMNIFY, DEFEND AND HOLD CENTURA HARMLESS FROM
AND AGAINST ANY CLAIMS OR LAWSUITS, INCLUDING REASONABLE ATTORNEY'S FEES, THAT
ARISE OR RESULT FROM THE USE OR DISTRIBUTION OF THE APPLICATION.
9. Term of Agreement: This Agreement shall commence on the Effective Date
specified on the Signature Pages and shall expire on the date specified In the
Signature Pages. Provided, however, either party may terminate this Agreement
for a material breach of this Agreement If at the end of a thirty (30) day
period after providing the other party written notice specifying a material
breach, the breaching party has not cured such breach.
10. CENTURA's Reservation of Rights and Remedies: In addition to any specific
right or remedy provided for in this Agreement, CENTURA reserves all other
rights and remedies available in law or equity.
11. Amendments: This Agreement may not be amended, modified, released or
discharged, amended or modified in any manner, or any term or breach waived
except by an instrument in writing signed by a duly authorized official of
LICENSEE and CENTURA.
12. Sale or Assignment: LICENSEE may not assign, transfer or delegate any of its
rights or duties under this Agreement without the prior written consent of
CENTURA.
13. Entire Agreement: This Agreement, together with any attachments or
specifically referenced documents or licenses, sets forth the entire agreement
between CENTURA and LICENSEE with respect to the subject matter hereof and
supersedes any and all prior agreements, understandings, promises and
representations made by either party to the other concerning the subject matter
hereof and the terms hereof.
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14. Taxes: All charges In this Agreement are exclusive of U.K. Value Added Tax.
15. Supplementary Terms: The terms and conditions of this Agreement supplement
the terms and conditions specified in the CENTURA Software Corporation Software
License Agreement which governs the use by LICENSEE of the Programs.
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Synergy Partner Agreement
1. Purpose: This Agreement is between Centura Software Limited "Centura")
located at Xxxxx Xxxxx, Xxxxx Xxxx, Xxxxxx, Xxxxx, XX0 0XX Xxxxxxx and the
company listed below. Centura appoints company as a "Partner" under the Centura
Synergy Partner Program in the Territory subject to the terms and conditions
below:
Xxxx Xxxxxxx
Invu Services Limited
The Xxxxx
Xxxxxxxxx Xxxx Xxxx
Xxxxx Xxxx
Xxxxxxxxx
Xxxxxxxxxxxxxxxx
___7 3DB
Tel: 00000 000000
Fax: 00000 000000
Additional Authorized Location(s):
---------------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
Phone:
----------------------------------
Fax:
----------------------------------
Contact:
----------------------------------
2. Definitions:
2.1 "End User" shall mean a customer of Partner who acquires (and has proof of)
a valid license to use the Programs for personal or internal business purposes
(and not for transfer to others) in accordance with the terms of the Centura
Software License Agreement.
2.2 "Centura Software License Agreement" shall mean the license agreement
between the End User and Centura which accompanies each Program.
2.3 "List Price" shall mean Centura's suggested list price in the Territory for
a single copy of a Program. Such prices are listed in Centura's Territory Price
List(s) or other pricing documents as generally published by Centura from time
to time during the term of this Agreement Centura reserves the right to modify
or change the List Price upon 30 days written notice to Partner.
2.4 "Marks" shall mean the trademarks, service marks and logos of Centura and/or
its licensors.
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2.5 "Program(s)" shall mean only the commercially available software program(s)
in object code form as listed in Centura's Price List(s) except those programs
that Centura may denote from time to time as not available under the Centura
Synergy Partner Program (e.g., SQLHost).
2.6 "Authorized Location(s)" shall mean an additional authorized sales office(s)
of Partner whose principal business shall be to order and acquire the Programs
and distribute the Programs to End Users, as more specifically set forth in
Section 6 below.
2.7 "Territory" shall mean the United Kingdom and Republic of Ireland only.
2.8 "Trademark Use Policy" shall mean the written policies, as amended by
Centura from time-to-time, for the proper usage of the Marks.
2.9 "Upgrade(s)" shall mean any modification of the Programs which is denoted by
Centura (i) by changing a number to the left of the first decimal point in the
then current version number, e.g., a change from version 4.1 to 5.0. and (ii) as
a "version upgrade" in Centura's Price List(s).
3. Partner Added Value Criteria: Partner represents that it satisfies one or
more of the following added value criteria In connection with the Centura
Programs and will continue to satisfy such criteria during the term of this
Agreement: (i) installation support: (ii) consulting/professional services;
(iii) application software; and/or (iv) training/education. Partner's failure to
continue to satisfy such added value criteria during the term of this Agreement
will be grounds for termination of this Agreement pursuant to Section 18.
4. Partner Benefits: During the term of this Agreement and provided that Partner
is current on its commitments and obligations under this Agreement. Centura
shall provide Partner with the benefits as specified in Attachment I hereto, as
may be modified by Centura from time to time with written notice to Partner.
5. Term: This Agreement shall commence on the date when both parties have signed
this Agreement and shall have an initial term of one (1) year, unless terminated
under Section 18. Thereafter, it may be renewed for an additional one (1) year
period upon mutual written agreement between the parties to appropriate terms
and conditions, and subject to payment by Partner of the then-current fees and
charges as may be specified by Centura, and provided that the parties comply
with all material obligations hereunder during the initial term.
6. License Grant: Centura hereby grants Partner during the term of this
Agreement only the following nonexclusive rights in the Territory:
(a) To transfer the Programs and Upgrades to its End User
customers for their Own use.
(b) To order and acquire the Programs and Upgrades from one of
Centura's authorized distributors as designated by Centura
from time-to-time. [Note: The Programs and
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Upgrades acquired from Centura's authorized distributors will
be subject to prices and terms as made available by such
distributors].
(c) To distribute the Programs and Upgrades in unaltered form in
the original sealed package manufactured by Centura for use by
Partners End Users under. the terms and conditions of the
Centura Software Corporation Software License Agreement that
accompanies each Program and/or Upgrade..
(d) To use, in unaltered form, the Marks solely to promote the
distribution of the Programs.
7. License Restrictions and Conditions: The rights and licenses granted
in Section 6 are restricted by, or conditioned upon the following:
(a) Centura and/or its licensors shall retain all and sole right, title
and interest in and to the Programs.
(b) Partner shall not, nor shall Partner cause or permit a third party
to, copy, manufacture, adapt, rent, lease, lend, trade-in, create derivative
works from, translate, reverse engineer, disassemble or decompile or otherwise
modify the Programs.
(c) All Programs, when provided to an End User by Partner under this
Agreement, must be contained in the original sealed package manufactured by
Centura and must be accompanied by the appropriate Centura Software License
Agreement.
(d) The use of the Marks by Partner shall strictly adhere to the terms
and conditions of Centuries Trademark Use Policy.
(e) During the term of this Agreement and within fifteen (15) days of
the end of each calendar quarter, Partner shall report to Centura in ______ the
value of Partner's net purchases from Centura's authorized distributor(s) during
the previous calendar quarter.
8. Fees, Payments and Credit Terms:
8.1 Partner Program Fee: NOT APPLICABLE
8.2 Payments: Terms of payment for order placed by Partner with Centura shall be
net 30 days from Centura's invoice date. Delinquent payments shall be subject to
a 1.5% per month service charge.
8.3 Credit Terms: Centura may offer to provide credit to Partner in amounts and
at times to be determined and/or limited in Centura's sole discretion. Should
Partner be in excess of any credit limit determined by Centura or should Partner
give Centura any cause to question its credit worthiness. Centura shall not be
obligated to accept or fulfill orders submitted by Partner.
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Partner agrees to provide Centura with credit information prior to the execution
of this Agreement and thereafter upon Centura's reasonable request.
8.4 Shipping Expenses: All prices for orders placed with Centura hereunder are
FOB Centura's point of origin, and Partner shall: (i) reimburse Centura for any
shipping expenses incurred by Centura, and (ii) bear the risk of loss damage or
theft for goods in transit to Partner.
9. Order Targets: During the initial term of this Agreement, Partner shall use
reasonable endeavors to place orders for packaged versions of the Programs as
follows, measured by net purchase price from Centura's authorized distributors:
NOT APPLICABLE.
10. Training: Partner certifies that, within three (3) months of the Effective
Date of this Agreement, at least one (1) Partner salesperson and one (1) Partner
technical engineer shall undergo Centura product training through attendance of
a Centura reseller training course. This initial training for two Partner
personnel shall be offered at no additional charge by Centura, as outlined in
"Benefits of the Synergy Partner Program"in Attachment 1 to this Agreement.
Further training may be provided to Partner at the applicable list prices
offered by Centura at such time.
11. Marketing Funds: During the term of this Agreement, Partner shall use
reasonable efforts to allocate a minimum of three percent (3%) of its net
revenues from the sale of the Programs towards the marketing of the Centura
product line. Such marketing may be supported by Centura in the form of joint
campaigns which may be partially funded by Centura, at Centura's sole discretion
and by separate mutual arrangement between the parties on a case by case basis.
12. Rights Outside the UK and Republic of Ireland: The rights provided to
Partner under this Agreement apply only in the UK and Republic of Ireland.
Rights may be granted outside this Territory by separate addendum to this
Agreement, provided that Partner acknowledges that additional conditions or
restrictions may apply to its exercise of rights under such separate addendum.
13. Confidentiality: Centura and Partner agree that each of them shall, during
the term of this Agreement and for three (3) years thereafter, take all steps
which are reasonable to safeguard the confidentiality of, and proprietary rights
to. the confidential information ("Confidential Information") of the other party
which may be disclosed hereunder (including, but not limited to, product plans,
designs, business plans, technical specifications, research, customer or
financial data) and shall not, without the prior written consent of the other
party, (i) use such Confidential Information for its own benefit or the benefit
of any third party except for purposes expressly provided for in this Agreement,
or (ii) disclose such Confidential Information to any third party; provided.
however, that this provision shall not be construed to restrict the disclosure
of information which (a) is publicly known at the time of its disclosure to a
party, (b) is lawfully received by a party from a third party not bound in a
confidential relationship to Centura or Partner, (c) was already known by
Centura or Partner prior to entering into this Agreement or (d) is required by
law to be disclosed.
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14. Proprietary Rights: Partner agrees to respect the trademarks, service marks,
copyrights and other proprietary rights of Centura an Centura Software
Corporation and shall take no action which would adversely affect or interfere
with such rights or (ii) disparage such rights. Any violation of this provision
will subject Partner to immediate termination of this Agreement.
15. Representations and Indemnification by Partner:
15.1 Partner represents and warrants to Centura that it has the full power and
authority to enter into this Agreement and that it shall make no representation
and or warranty to its End Users regarding the use of the Programs except as may
be contained in the documentation published by Centura or in the Centura
Software License Agreement.
15.2 Partner shall indemnify and hold Centura harmless from any claim, action or
other liability whatsoever resulting from the use of the Programs by End Users
(except as permitted by the Centura Software License Agreement) or from
representations made by Partner to its End Users in breach of Section 15.1
above.
15.3 Partner shall be responsible for supporting End Users unless the End User
purchases directly from Centura.
16. Representations and Warranties by Centura:
16.1 Representations and Warranties: Centura represents and warrants to Partner
that: (i) Centura has the full power and authority to enter into this Agreement,
and (ii) End Users shall receive the full benefit of the warranties and
representations of Centura as specified in the Centura Software License
Agreement.
16.2 WARRANTY DISCLAIMER: THE PROGRAMS, SUPPORT PLANS AND UPGRADES ARE OFFERED
"AS IS" WITH ALL FAULTS AND, EXCEPT AS SPECIFIED IN SECTION 16.1 ABOVE, CENTURA
MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED CONCERNING THE SAME,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. IT IS EXPRESSLY AGREED THAT CENTURA SHALL NOT BE LIABLE, OR IN ANY WAY
RESPONSIBLE FOR THE COMMERCIAL SUCCESS OF THE PROGRAMS, SUPPORT PLANS AND
UPGRADES OR ANY ENHANCEMENTS THEREOF.
17. Liability and Exclusion of Damages:
17.1 Limitation of Liability: CENTURA'S LIABILITY ARISING OUT OF THIS AGREEMENT
SHALL BE LIMITED TO THE AMOUNT PAID BY PARTNER TO CENTURA UNDER THE TERMS OF
THIS AGREEMENT.
17.2 Exclusion of Damages: IN NO EVENT SHALL CENTURA BE LIABLE FOR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE, NOR WILL CENTURA BE LIABLE FOR
SPECIAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES,
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HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND
WHETHER OR NOT CENTURA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE
ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF CENTURA
ARISING OUT OF THIS AGREEMENT.
18. Termination/Expiration: Either party may terminate this Agreement for a
material breach of this Agreement if, at the end of a thirty (30) day period
after providing the other party written notice specifying a material breach, the
breaching party has not cured such breach. Centura may terminate this Agreement
without notice if Partner fails to pay Centura any fee specified in this
Agreement. Upon the expiration or termination of this Agreement for any reason,
Partner agrees to immediately destroy (and provide Centura written confirmation
that the same has been done): (i) all Programs acquired from Centura under any
NFR License, and (ii) all materials which contain the Confidential Information
of Centura.
19. Miscellaneous Provisions:
19.1 Centura's Reservation of Rights and Remedies: In addition to any specific
right or remedy provided for in this Agreement, Centura reserves all other
rights and remedies available by law.
19.2 Sale or Assignment: Partner may not assign, transfer or delegate any of its
rights or duties under this Agreement without the prior written consent of
Centura.
19.3 Force Majeure: Neither party shall be liable for any delays in the
performance of any of its obligations hereunder (other than the obligation to
pay money ) due to causes beyond its reasonable control, including but not
limited to, fire, strike, war, riots, acts of any civil or military authority,
judicial action, acts of God, or other casualty or natural calamity for so long
as and to the extent that the effects of such circumstance continue.
19.4 Governing Law: This Agreement shall be construed and enforced in accordance
with the laws of England.
19.5 Taxes: All charges in this Agreement shall be subject to U.K. Value Added
Tax.
19.6 Severability: The invalidity or unenforceability of one or more provisions
of this Agreement shall not affect the validity or enforceability of any of the
other provisions, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provisions were omitted.
19.7 Headings: The Section headings in this Agreement are included for
convenience only and are not to be used in interpreting this Agreement.
19.8 Notices: Required notices under this Agreement shall be deemed delivered
when (i) personally delivered, (ii) faxed with confirmation to a designated fax
number, or (iii) upon signed receipt when delivered by certified or registered
mail. Such notices shall be sent to other
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party in writing at its address set forth an the first page of this Agreement or
to such other address as such party shall designate by written notice.
19.9 Conflicts and Additions: In the event of any conflict between the terms of
this Agreement and the terms of any Partner document or other writing exchanged
between the parties (e.g., Partner's purchase order), the terms of this
Agreement shall control. In the event that any term contained in any such
writing attempts to add to the terms of this Agreement, such additional term(s)
shall not be effective unless such writing is signed by both Centura and
Partner.
19.10 Export Administration: Partner shall not export the Programs in contraven-
tion of U.S. or other applicable laws of any jurisdiction.
19.11 Counterparts and Exchanges by Fax: This Agreement may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument. The
exchange of a fully executed Agreement (in counterparts or otherwise) by fax
shall be sufficient to bind the parties to the terms and conditions of this
Agreement.
19.12 Entire Agreement Waivers: This Agreement sets forth the entire agreement
between Centura and Partner with respect to the subject matter hereof and
supersedes any and all prior agreements, understandings, promises,
representations made by either party to the other concerning the subject matter
hereof and the terms applicable hereto. This Agreement may not be released,
discharged, amended or modified in any manner or any term or breach waived
except by an instrument in writing signed by both Centura and Partner.
In the event that Partner and Centura are currently (as of the date of execution
of this Agreement) operating under a previous agreement of similar scope to this
Agreement (i.e. a "partner" agreement, but not an OEM or other license agreement
whose scope is not similar to this Agreement), this Agreement shall supersede
and terminate such previous agreement.
19.13 Parties Independent: In making and performing this Agreement, the parties
act and shall act at all times as independent contractors and nothing contained
in this Agreement shall be construed or implied to create an agency, partnership
or employer and employee relationship between Partner and Centura or between any
party hereto and any officer or employee of the other party, At no time shall
any party make commitments or incur any charges or expenses for or in the name
of the other party.
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The parties confirm that all the above terms and conditions have been agreed to:
For Centura For Partner
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Signature: Signature:
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Name: Name:
------------------------- ------------------------------
Title: Title:
------------------------- ------------------------------
Date: Date:
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Attachment I
Benefits of the Synergy Partner Program
During the term of this Agreement and so long as Partner is in compliance with
the terms and obligations of this Agreement, Partner shall be entitled to the
following:
(a) To use the designation "Centura Synergy Partner" and associated logo,
such logo to be provided to Partner by Centura in electronic form.
(b) Provision by Centura of a two-day Centura reseller training course for
attendance by two of Partner's personnel as specified in Section 10 to
this Agreement.
(c) Attendance at Centura Partner briefings and training days.
(d) Access to Centura's "Partner-Only" web-site at "xxxxxxx.xxx", for which
Centura will provide a logon-ID and password. As soon as made available
by Centura, market exposure to Partner's web-site via hotlinks with
xxxxxxx.xxx.
(e) Marketing and sales support from Centura which may include, at
Centura's discretion, Centura's assistance in the conducting of sales
seminars and other events.
(f) Regular provision by Centura to Partner of marketing materials and
qualified sales leads.
(g) Entry in the Centura Partner catalogue, published bi-annually by
Centura.
(h) Access (at Centura's discretion) to a Centura corporate sales executive
and/or pre-sales consultant for the purpose of assisting with Partner's
major corporate sales activities.
(i) Access to pre-release or beta versions of the Programs subject to the
terms of the applicable Centura Software Corporation beta program
agreement.
(j) To participate in Centura product promotions; access to online informa-
tion service.
(k) Other benefits as may be made available from Centura from time-to-time.
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