1
EXHIBIT 10.44
COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Agreement is made effective November 1, 1996 between SYBASE, INC.
("Sybase") with offices at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000
(or SYBASE CANADA LIMITED, with offices at I Xxxxxx Xxxxx Parkway; Suite 800,
Mississauga, Ontario, Canada L4Z 3M3), and Phoenix International Ltd, Inc
("Partner"), with offices at 000 Xxxxxxxx Xx. Xxxxx 000 Xxxxxxxx XX 00000.
1. LICENSE GRANT. Subject to the terms and conditions below, Sybase grants to
Partner a nonexclusive and nontransferable license to market and distribute
copies of unmodified object code versions of those Sybase and/or Powersoft
software products identified in the attached initialed Schedules along with
accompanying documentation ("Programs") to Partner's customers ("End-Users") who
will use the Programs only for their own internal business purposes in the
applicable Territory described in each Schedule A, provided that the Programs
are distributed for use with computer application programs developed by Partner
for commercial distribution to more than one third party and containing
significant added functionality over the Programs ("Application Software").
Partner shall license to each End-User the same number of copies of the Programs
and the same number of Seats/Named Users for such Programs as Partner licenses
to such End-User for its Application Software. In addition to being able to
distribute "full use" copies of the Programs, "full use" Seats and "full use"
Named Users, Partner may also distribute, with respect to certain Programs
identified in Sybase's then-current price list, Application Deployment Copies,
Application Deployment Seats and Application Deployment Named Users (which are
restricted licenses defined in the Sybase license agreement accompanying each
copy of the Program ("Sybase Shrinkwrap")). Partner may also sell to End-Users
certain Sybase services as described in the Schedule(s). Notwithstanding the
above, if the Territory includes any of the Prohibited Countries set forth in
Sybase's then current "Prohibited Country List" (a current copy of which has
been provided to Partner), Partner may not market or distribute Programs for use
in such Prohibited Countries. The CAP shall not be authorized to use or allow
its End-Users to use the Programs for timesharing, rental or service bureau
purposes or on behalf of any third party. In connection with the distribution
rights granted above, Partner may appoint distributors to distribute the
Programs to End-Users within the Territory. The appointment of distributors
shall be by contracts which require that the distributor market the Programs
only in accordance with the terms of this Agreement and on a basis which
protects the proprietary interests of Sybase in and to the Programs to the same
extent that Partner's proprietary interests in its own products are protected
(but in any event no less than a reasonable extent). Partner may order under
this Agreement (a) copies of the Programs for its own internal production
purposes and/or developing and supporting the Application Software ("Internal
Use Copies"), (b) copies of the Programs which may only be used for developing
and supporting the Application Software ("Development Copies"), (c) copies of
the Programs which may be distributed to End-Users for evaluation purposes and
for up to the number of days designated in the applicable Schedule A, after
which they must be returned to Partner ("Evaluation Copies"), and (d) up to that
number of copies of the Programs shown on Schedule A for purposes of Partner
providing demonstrations and training for the Application Software
("Demonstration Copies"). Partner is authorized to incorporate into the
documentation for the Application
2
Software portions of the documentation for the Program to the extent such
portions are necessary to document usage of the Program in conjunction with the
Application Software.
2. FEES AND PAYMENT TERMS. For the first year of this Agreement, Partner shall
be responsible for paying to Sybase a non-refundable program fee shown in
Schedule A ("Initial Fee"). The Initial Fee is due upon execution of this
Agreement by Partner. For each additional year, a non-refundable annual program
renewal fee ("Annual Renewal Fee") as set forth in such Schedule is due and
payable upon each anniversary of the date of this Agreement. Fees as set forth
in the attached Schedule(s) shall be due to Sybase for each copy of the Programs
ordered by Partner for an End-User and for each Internal Use Copy; such fees
shall be based on Sybase's then-current price list for the country in which the
Programs are to be used ("Price List"). The license fee for Development Copies
is the same as the fee for Internal Use Copies unless Sybase designates
otherwise in its Price List. The license fee for Demonstration Copies, if any,
is set forth in the Schedule(s). Notwithstanding the above, there is no charge
for authorized Evaluation Copies distributed to End-Users. License fees for
Internal Use Copies, Development Copies, Demonstration Copies, and copies of the
Programs which Sybase ships to Partner for distribution to End-Users shall be
due and payable to Sybase with Partner's order for the Programs or, upon Sybase
credit approval of Partner, 30 days after the date of Sybase's invoice for the
Programs. Any past-due invoice may subject Partner to credit hold at the sole
discretion of Sybase. All fees under this Agreement are stated in United States
dollars.
3. OWNERSHIP. Programs are owned by Sybase or its licensors and are protected by
copyright law, trade secret laws and international conventions. All rights in
and to patents, copyrights, trademarks and trade secrets in the Programs are and
shall remain with Sybase and its licensors. No title to or ownership of the
Programs is transferred to Partner or End-User. Partner shall not translate,
localize or modify any portion of the Programs without the prior written consent
of Sybase.
4. ORDERING AND DELIVERY. Internal Use Copies, Development Copies, Demonstration
Copies, Evaluation Copies and copies of the Programs for distribution to
End-Users shall be ordered from Sybase and delivered by Sybase to Partner (or in
the case of Evaluation Copies and copies for distribution to End-Users, Sybase
shall deliver the copies directly to the End-Users if so instructed by Partner).
Partner will use the "Exhibit A" form adopted by Sybase from time to time (or a
Purchase Order containing the same information) to order Programs from Sybase.
All shipments are FOB origin, and Partner is responsible for all shipping
charges. Except for taxes on Sybase's income, Partner shall be responsible for
any sales, use, excise or any other form of taxes resulting from this Agreement.
5. LICENSE ACCOMPANYING PROGRAMS. If Partner uses the Programs, Partner agrees
to be bound by the terms and conditions of the Sybase Shrinkwrap.
Notwithstanding the above, Development Copies and Demonstration Copies shall
only be used for the purposes outlined in Section 1 above and shall be returned
to Sybase upon expiration or termination of this Agreement. Partner shall ensure
that the End-User's use of the Programs is either subject to the terms and
conditions of (a) the Sybase Shrinkwrap or (b) an executed license agreement or
2
3
shrinkwrap agreement between Partner and End-User which is substantially similar
to, and no less restrictive in protecting Sybase's interests than, the Sybase
Shrinkwrap. If Evaluation Copies are being licensed, the Sybase Shrinkwrap or
license agreement between Partner and End-User (as applicable) shall be modified
by a written commitment from End-User to use the Programs for a period not to
exceed the number of days designated in the applicable schedule to this
Agreement. If a conflict arises between this Agreement and any such license
agreement, the terms of this Agreement shall prevail. Partner shall undertake
reasonable efforts to enforce the terms of any license agreement between Partner
and an End-User as it relates to the Programs.
6. REPORTS. Partner shall keep or cause to be kept full and accurate accounts
and records of all transactions made by it and by its authorized distributors
under this Agreement (including Evaluation Copies) in form such that all amounts
owing hereunder to Sybase may be readily and accurately determined. Partner
shall undertake to assure that its distributors are (a) accurately reporting to
Partner all sales to End-Users and (b) otherwise complying with this Agreement.
Partner shall allow Sybase to examine its records to determine compliance with
this Agreement. Any examination shall be at the expense of Sybase, shall occur
during regular business hours at Partner's offices and shall not interfere
unreasonably with Partner's regular activities. Sybase shall give Partner 30
days or more prior written notice of the date of each such examination and the
name of the accountant who will be conducting the examinations. All information
obtained from conducting the examinations shall be maintained as Confidential
Information. Partner agrees to pay Sybase any amounts owing as a result of
Partner's non-compliance with the payment provisions of this Agreement within 30
days of the date of the examination report which details such non-compliance. In
the event such amounts owed by Partner to Sybase exceeds 5% of total royalties
due, Partner shall pay the costs of such examination.
7. SUPPORT & MAINTENANCE. Partner shall be solely responsible for providing
End-User technical support and service of warranty claims for Partner's
Application Software, including the Programs, provided that Partner may also
sell Sybase technical support services for the Programs only, on the terms
described in the attached Schedules. Partner may distribute to End-Users to whom
it has licensed Application Deployment Copies of a Program updates to such
Program which am made generally available by Sybase so long as Partner has paid
Sybase all applicable Application Deployment Maintenance Fees.
8. INDEPENDENT CONTRACTORS. Partner and Sybase are independent contractors and
are not agents or representatives of each other. Partner does not have the right
to bind Sybase and shall not misstate or misrepresent its relationship to
Sybase.
9. ADVERTISING; TRADEMARKS. Sybase may identify Partner as a Commercial
Application Partner in Sybase advertising and marketing materials, Partner shall
not make any representations concerning the Programs which are inconsistent with
Sybase's marketing materials and advertising. Partner may utilize applicable
Sybase trademarks and logos only in accordance with Sybase's then-current
published guidelines, and trademarks shall remain the exclusive property of
Sybase or its licensors. Partner shall suitably feature the Programs and
3
4
related trademarks and Sybase's ownership of the Program in any advertising,
marketing literature, product documentation and packaging of the Application
Software. Partner shall give appropriate recognition in the Application Software
of Sybase's proprietary rights in the Programs in the same manner, places and
times and no less conspicuously than the recognition of the proprietary rights
of others including Partner in the Application Software.
10. TERM AND RIGHTS UPON TERMINATION. This Agreement will become effective as of
the date first shown above and shall continue in force for a period of 3 years,
subject to (a) Partner's payment of all fees owing hereunder, or (b) termination
under Section 11 below. Thereafter, this Agreement shall automatically renew for
additional one-year terms subject to payment of Sybase's then-current Annual
Renewal Fee and provided that Partner is not then in default of this Agreement,
unless written notice of termination is given by either party at least 30 days
prior to the expiration of the term then in effect. No expiration or termination
of this Agreement shall impair or affect (i) Internal Use Copies, which shall
continue so long as Partner is not in breach of the Sybase Shrinkwrap or (ii)
copies of Programs distributed by Partner to End-Users in accordance with this
Agreement prior to the effective date of the expiration or termination of this
Agreement. All Demonstration Copies shall be returned to Sybase. Termination or
expiration shall not release either party from its liability to pay any fees
accruing prior to the date of the termination or expiration. Sections 3, 5, 10,
11, 12, 13, 14 and 18 of this Agreement shall survive any expiration or
termination of this Agreement.
11. DEFAULT. Either party may immediately terminate this Agreement or any
license granted hereunder by written notice to the other if such other party
breaches any term or condition of this Agreement, including but not limited to
failure to pay when due any fee hereunder, and does not remedy such breach
within 30 days of written notice thereof from the non-breaching party. Each
party will reimburse the other party for all reasonable costs incurred by the
other party (including attorneys' fees) in collecting past due amounts
hereunder. Any breach which by its nature cannot be remedied shall entitle the
non-breaching party to terminate this Agreement immediately upon written notice
to the other party. This remedy shall not be an exclusive remedy and shall be in
addition to any other remedies which the non-breaching party may have under this
Agreement or otherwise.
12. CONFIDENTIAL INFORMATION. Each party will not disclose or use any business
and/or technical information of the other designated orally or in writing as
"Confidential" or "Proprietary" (together, "Confidential Information") without
the prior written consent of the other party. Such restrictions do not extend to
any item of information which (a) is now or later becomes available in the
public domain without the fault of the receiving party; (b) is disclosed or made
available to the receiving party by a third party without restrictions and
without breach of any relationship of confidentiality; (c) is independently
developed by the receiving party without access to the disclosing party's
Confidential Information, (d) is known to the recipient at the time of
disclosure, or (e) is produced in compliance with applicable law or court order,
provided that the disclosing party is given reasonable notice of such law or
order and an opportunity to attempt to preclude or limit such production. Upon
termination or expiration of this Agreement, each party shall immediately return
all copies of Confidential Information received from the other party. Partner
shall not release the results of any
4
5
benchmark of the Programs to any third party without the prior written approval
of Sybase for each such release.
13. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY. Except as expressly
provided in the Sybase Shrinkwrap, NO EXPRESS OR IMPLIED WARRANTY OR CONDITION
IS MADE WITH RESPECT TO THE PROGRAMS OR SERVICES SUPPLIED BY SYBASE OR ITS
SUBSIDIARIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The aggregate liability to
Sybase and its subsidiaries, if any, for any losses or damages arising out of or
in connection with this Agreement, whether the claim is in contract, tort or
otherwise, shall not exceed the amount paid by Partner to Sybase under this
Agreement for the affected Programs or services. UNDER NO CIRCUMSTANCES SHALL
SYBASE, ITS SUBSIDIARIES OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT,
EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED
TO, LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA OR LOSS RESULTING
FROM BUSINESS DISRUPTION, EVEN IF SYBASE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
14. INDEMNIFICATION. Partner indemnifies and holds harmless Sybase, its
affiliates, directors, employees and agents from all third party claims,
including court costs and reasonable fees of attorneys and expert witnesses,
arising in connection with (a) a breach by Partner of its agreement with an
End-User or distributor (unless such breach was caused by Sybase's breach of
this Agreement or the Sybase Shrinkwrap), or (b) use of the Application Software
if liability is not caused by the Programs as provided by Sybase. Sybase
indemnifies and holds harmless Partner, its affiliates, directors, employees and
agents from all third party claims, including court costs and reasonable fees of
attorneys and expert witnesses, arising in connection with (i) a breach by
Sybase of the Sybase Shrinkwrap or (ii) use of the Programs as provided by
Sybase if liability is not caused by the Application Software.
15. EXPORT RESTRICTION. Partner shall not transfer, directly or indirectly, any
restricted Programs or technical data received from Sybase or its subsidiaries,
or the direct product of such data, to any destination subject to export
restrictions under U.S. law, unless prior written authorization is obtained from
the appropriate U.S. agency.
16. ASSIGNMENT. This Agreement may not be assigned (by operation of law or
otherwise) or otherwise transferred in whole or in part by Partner unless
Partner has received prior written permission from Sybase, such permission not
to be unreasonably denied by Sybase. To the extent Partner is permitted to
assign this Agreement, all provisions of this Agreement shall be binding upon
Partners successors or assigns.
17. NOTICES. All notices under this Agreement shall be in writing and either
delivered personally, sent by first class mail, express carrier or by confirmed
facsimile transmission to the address of the party set forth above (and if to
Sybase, to the attention of the General Counsel). All notices shall be deemed
given on the business day actually received.
5
6
18. OTHER. This Agreement, the initialed Schedules, and any documents explicitly
referred to therein, constitute the entire agreement between the parties,
supersede any and all previous agreements authorizing Partner to distribute the
Programs to third parties and no representation, condition, understanding or
agreement of any kind, oral or written, shall be binding upon the parties unless
incorporated herein. This Agreement may not be modified or amended, nor will the
rights of either party be deemed waived, except by an agreement in writing
signed by authorized representatives of Partner and Sybase. Purchase orders
shall be binding as to the products and services ordered, and the site for
delivery of Programs or performance of services as set forth on the face side of
or a special attachment to the purchase order. Other terms and preprinted terms
on or attached to any purchase order shall be void. This Agreement shall be
governed by, and construed in accordance with, the laws of California if Partner
is located in the United States and the laws of Ontario if Partner is located in
Canada without regard to their conflict of laws rules or the United Nations
Convention on the International Sale of Goods. If any provision of this
Agreement is held to be unenforceable, the parties shall substitute for the
affected provision an enforceable provision which approximates the intent and
economic effect of the provision. The parties have requested that this Agreement
and all documents contemplated hereby be drawn up in English. For Quebec
Province transactions: Les parties aux presentes ont exige que cette entente et
tous autres documents envisages par les presentes soient rediges en anglais.
6
7
Accepted and agreed on behalf of:
Phoenix International Ltd, Inc. ("Partner") Sybase, Inc. ("Sybase")
(or Sybase Canada Limited, if applicable)
/s/ Xxxxx Xxxxxxxx /s/ Xxx-Xxx Xxxxxx
--------------------------------------------- ------------------------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx Xxxxxxxx
--------------------------------------------- ------------------------------------------
(Printed Name) (Printed Name)
Xxx-Xxx Xxxxxx
President 11/1/96 Sales Support Manager
--------------------------------------------- -----------------------------------------
(Title) (Date) (Title) (Date)
7
