EXHIBIT 10.9
LICENSE AGREEMENT
This License Agreement (the "Agreement") entered into effective as of April 1,
1998, by and between Arbor Software Corporation ("Arbor") and ShowCase
Corporation ("ShowCase"), and supersedes the Arbor/ShowCase License Agreement
dated December 19, 1995.
The parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the meanings
specified below:
1.1 "Authorized Partner" is defined as (a) a software reseller with a
contractual relationship with Arbor or ShowCase which adds value by
providing its own or third party applications in addition to the
Essbase Software or the ShowCase AS/400 Port respectively, or (b) a
systems integrator (service companies such EDS and Xxxxxxxx
Consulting), OEM, or other entity approved in writing by the other
party. Under no circumstance may IBM be an Arbor Authorized Partner for
the ShowCase AS/400 Port without the written approval of ShowCase,
while ShowCase retains exclusive distribution rights to the ShowCase
AS/400 Port in accordance with section 2.1.
1.2 "Essbase Software" is defined as the Essbase Server, the Essbase
Application Manager, the Spreadsheet Client, the Essbase Application
Tools existing as of the effective date of this Agreement, and any
future releases of such products developed or distributed by Arbor.
Arbor agrees to negotiate in good faith to expand the definition of
Essbase Software to include other software products not specified above
that are either developed or distributed by Arbor after the effective
date of this agreement.
1.3 "First Level Support" is defined as the service provided in
response to a customer's initial contact reporting a software problem.
1.4 "Second Level Support" is defined as the service provided to
reproduce and correct a software problem.
1.5 "Third Level Support" is defined as the service provided to isolate
a software problem at the software component level and to furnish a
correction or circumvention of the software problem.
2. SHOWCASE DISTRIBUTION RIGHTS
2.1 Grant of License to Distribute Essbase Software on AS/400 Platform.
Subject to the terms and conditions of this Agreement, Arbor grants to
ShowCase an exclusive, non-transferable, non-sublicensable license to
use certain technical information, including, without limitation, all
algorithms, ideas, structure, organization , source code and other
technical information, about the Essbase Software that are portable to
the AS/400 platform (collectively, the "Technical Information") but
only as a part of, and for the sole purpose of, permitting ShowCase to
port the Essbase Software to the IBM AS/400 platform or any direct
successor platform (such ported product to be referred to as the
"ShowCase AS/400 Port"). Arbor also grants to ShowCase a worldwide
license to distribute and sublicense through Authorized Partners and
directly to end users executable versions (and only executable
versions) of the ShowCase AS/400 Port. Except as provided in Section
3.1 below, Arbor will not distribute the ShowCase AS/400 Port or grant
any other party a license to do so, provided ShowCase fully meets all
of its minimum royalty obligations set forth in Section 5.6 below.
Notwithstanding anything to the contrary, this Agreement does not
restrict Arbor's right to use or permit others to use the Technical
Information for any purpose other than developing and distributing
Essbase Software on the IBM AS/400 platform or any direct successor
platform. The exclusive license described above shall become a
nonexclusive license (subject to Sections 2.8 and 4.2) upon the
exercise by Arbor of its Buy-Back Right described in Section 2.7 below
or by operation of the provisions of Section 5.6 or upon the expiration
of this agreement pursuant to Section 4.1.
Page 1 of 17
2.2 Grant of License to Distribute Essbase Software on Non-AS/400
Platforms. Arbor hereby grants to ShowCase a non-exclusive, worldwide
license (subject to Sections 2.8 and 4.2) to distribute and sublicense
the Essbase Software (i.e., all Essbase Software not ported to the
AS/400 platform) to end users directly and through its Authorized
Partners, subject to the terms of this Agreement. However, any
distribution by systems integrators must be approved in writing in
advance by Arbor, which approval will not be unreasonably withheld. The
end user customer shall execute a software license agreement containing
terms no less restrictive than, and at least as protective of Arbor's
intellectual property rights as, those contained in Arbor's Software
License Agreement attached to this Agreement. ShowCase's right to
distribute and sublicense Essbase Software on non-AS/400 Platforms,
both directly and through its Authorized Partners, shall be subject to
the following conditions:
a. The end users must also license the ShowCase Warehouse
Manager and Warehouse Builder products or replacement versions
of such products and data must reside on or originate from an
IBM AS/400; or
b. The end users must license a ShowCase business application
built upon the Essbase Software and that adds significant
value to the Essbase Software.
2.3 Closing Responsibilities. ShowCase will be responsible for closing
sales without substantial field sales support from Arbor. ShowCase will
furnish customer contact information regarding each transaction to
Arbor within 30 days after execution of the contract with the customer.
2.4 Port Development. Arbor agrees to make available to ShowCase new
releases of the Essbase Software for the purpose of port development no
later than the earliest date on which Arbor makes such new releases
available to its beta test customers. New releases of the Essbase
Software are considered Technical Information and are subject to the
confidentiality provisions contained in Section 9. ShowCase shall use
its best efforts to develop and produce versions of the ShowCase AS/400
Essbase Server, the Essbase Application Manager and the Spreadsheet
Client which are compatible with such new releases of the Essbase
Software in a timely manner, so that the new version of the ShowCase
AS/400 Port is available for general release no later than 180 days
after the date of general release by Arbor of the new release of the
Essbase Software on all platforms currently supported by Arbor. Porting
the Essbase Application Tools and affiliated modules shall be at
ShowCase's discretion. Distribution of new versions of the ShowCase
AS/400 Port shall be subject to the same terms as are applicable to
current versions of the ShowCase AS/400 Port.
2.5 Trademark License.
a. License. Subject to the terms and conditions of this
Agreement, Arbor hereby grants to ShowCase a non-exclusive,
non-transferable license to use the name "Essbase" (the
"Trademark") but only in connection with its marketing and
distribution of the ShowCase AS/400 Port or the Essbase
Software and any derivative works thereof expressly authorized
under this Agreement. Every copy of the ShowCase AS/400 Port
shall clearly and prominently display the Trademark and shall
attribute authorship of the Technical Information to Arbor.
b. Quality Control. ShowCase shall (1) upon Arbor's request
from time to time, supply to Arbor fully documented sample
copies of the ShowCase AS/400 Port (in both source code and
object code form) and any advertising and marketing materials,
for Arbor's review and approval, which will not be
unreasonably withheld; (2) modify the ShowCase AS/400 Port and
any such advertising and marketing materials as may be
requested by Arbor to give full attribution to Arbor, ensuring
that the Arbor corporate and product names are noticeably and
prominently identified and displayed in connection with the
marketing and distribution of the ShowCase AS/400 Port.
ShowCase's failure to substantially comply with the terms of
this provision shall constitute a material default subject to
Section 4.2 below.
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2.6 Internal Use. Arbor hereby grants to ShowCase a non-exclusive,
non-transferable license to use (*) ports of the ShowCase AS/400 Port
and related modules for its internal business purposes at no additional
charge or royalty. Arbor will not provide any support and maintenance
services in connection with this license.
2.7 Buy-Back Right. Arbor has the right at any time during the term of
this Agreement to buy back (the "Buy-Back Right"), upon 12 months
advance written notice, all rights to use and distribute the Technical
Information granted hereunder, and all rights, title and interest in
and to the ShowCase AS/400 Port (except for a non-exclusive,
non-transferable, royalty bearing, worldwide license to distribute the
ShowCase AS/400 Port, which shall be retained by ShowCase subject to
the terms of this Agreement), and all items (including software and
documentation) in which the Technical Information resides, or for which
the Technical Information is or was used, including, without limitation
to, all algorithms, ideas, structure, organization, source code and
executables, and compilers incorporated into the ShowCase AS/400 Port
by ShowCase. Exercise of the Buy-Back Right will not, by itself, affect
the right of an authorized end user of the ShowCase AS/400 Port to
exercise the rights properly granted such end user by ShowCase. The
terms of the buy-back shall be as follows:
a. Amount. The amount to be paid for the Buy-Back Right shall
be the greater of (1) $(*) , or (2) an amount equal to (a)(*),
plus (b) (*) . In addition, at such time each party shall
deliver to the other a report documenting gross license fees
for the preceding 12 months. At either party's request, the
other party shall permit the requesting party and its auditors
to audit and review the other party's books and records (which
shall be deemed to be Proprietary Information) to confirm the
accuracy of the report.
b. Payment. Arbor shall pay to ShowCase a first payment of
$(*) at the time it delivers its 12-month notice. ShowCase
shall make delivery of technical information, source and
object code, and documentation within 30 days of payment so
that Arbor can begin to prepare for the support and sales of
the ShowCase AS/400 Port product following the completion of
the 12 month notice period. Arbor shall pay the balance of the
Buy-Back Right price no later than 12 months after the date of
the Buy-Back notice, provided that ShowCase shall have
delivered to Arbor all technical information, source code,
object code, and documentation for the ShowCase AS/400 Port
prior thereto.
c. Technical Information. Within 30 days after receipt of
Arbor's notice of the Buy-Back Right, ShowCase will deliver to
Arbor a copy of the ShowCase AS/400 Port source code and of
the Essbase source code that ShowCase currently has in its
possession, and 12 months thereafter, ShowCase shall return to
Arbor all copies of all Technical Information. Beginning 12
months after the exercise of the Buy-Back Right, Arbor shall
assume responsibility for support of the ShowCase AS/400 Port.
2.8 Nonexclusive License and Distribution Rights
a. Minimums for Nonexclusive License. ShowCase's nonexclusive
license and distribution rights shall continue so long as the
annual royalty payments received by Arbor from ShowCase are at
least $(*) beginning as of the date the exclusive license
converts to a nonexclusive license; provided that the $(*)
shall increase at the rate of (*) percent per year (on a
compounded basis). If Arbor fails to receive its minimum
nonexclusive royalty payments specified above for any given
year, ShowCase shall have the option to pay Arbor the
remaining balance of the commitment for that year within 30
days after the end of that year, thereby meeting its
commitment and protecting its nonexclusive distribution rights
for the subsequent year. Any such payment will be treated as a
credit towards royalty payments due to Arbor from ShowCase in
the subsequent year, but shall not
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 3 of 17
be a credit towards meeting the next year's annual royalty
minimum. Notwithstanding the foregoing, ShowCase's
nonexclusive license and distribution rights shall in any
event terminate if this Agreement is terminated in accordance
with Section 4.2.
b. Nonexclusive License Royalty Rate. The royalty to be paid
to Arbor by ShowCase for the nonexclusive license shall be as
set forth in Section 5, except that if Arbor gives written
notice of its Buy-Back Right, the royalty shall be as set
forth in Section 5 for the 36-month period following the
notice, and the royalty shall be (*) percent of the Arbor
published list price thereafter, if applicable.
c. Maintenance Fees. During the period when ShowCase has
nonexclusive rights, ShowCase or its Authorized Partners shall
offer to their new customers two alternatives for maintenance.
First, ShowCase can pay to Arbor an annual maintenance fee
equal to (*) percent of the then-current Arbor local country
list price for the ShowCase AS/400 Port, and then Arbor will
provide First, Second and Third Level support directly to such
customers. Such maintenance fee shall be payable in advance.
After the first year of maintenance for a customer, Arbor will
handle all renewals and will extend its maintenance contract
to the customers at Arbor's then-current rates. Alternatively,
ShowCase or its Authorized Partner can provide First and
Second Level support and Arbor will provide Third Level
support, and ShowCase will pay Arbor an annual maintenance fee
equal to (*) percent of the then-current Arbor local country
list price for the initial and additional renewal years.
2.9 Development Copies. ShowCase shall have the right to provide copies
of the ShowCase AS/400 Port to its Authorized Partners at (*) ,
provided that such copies are used by such Authorized Partners only for
purposes of application development, customer hot-line support, and
on-site demonstration. For any and all revenue-generating use of the
ShowCase AS/400 Port, such as consulting and training, ShowCase will
apply the effective royalty rate against Arbor's established discounted
pricing for such uses.
3. ARBOR DISTRIBUTION RIGHTS
3.1 Grant of License to Distribute ShowCase AS/400 Port.
Notwithstanding the grant to ShowCase of the exclusive license set
forth in Section 2.1, Arbor hereby reserves to itself the right to
distribute and sublicense the ShowCase AS/400 Port directly and through
Arbor's Authorized Partners. The end user customer shall execute a
software license agreement containing terms no less restrictive than,
and at least as protective of ShowCase's intellectual property rights
as, those contained in ShowCase's Software License Agreement attached
to this Agreement. ShowCase acknowledges that Arbor's Software License
Agreement attached to this Agreement satisfies the foregoing
requirement. ShowCase shall be responsible for the delivery of the
ShowCase AS/400 Port to such end users. For sales of full use licenses
of the ShowCase AS/400 Port by Authorized Partners, any additional
sales to that particular end user (whether to a different department
division or location of the end user) shall be made by the Authorized
Partner or ShowCase, and not Arbor or its Authorized Partners. Arbor's
right to distribute and sublicense the ShowCase AS/400 Port in a given
transaction through its own direct field sales force shall be subject
to the following conditions (which conditions shall not apply to
Authorized Partners):
a. Limited to end user sales in countries where Arbor has
direct sales; and
b. Arbor's total revenue from the transaction must exceed $(*)
and at least (*) percent of the established gross revenue
before royalties and discounts of the Essbase Software must be
on platforms other than the AS/400 or its direct successor; or
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 4 of 17
c. The end user must be an Arbor substantial customer. An
Arbor substantial customer is an existing Arbor customer who
has purchased software licenses and services from Arbor
totaling at least $(*) during the 12 months immediately
preceding the transaction in question; or
d. ShowCase declines to participate in the transaction after
being notified of it in writing.
3.2 Closing Responsibilities. Arbor will be responsible for closing
sales without substantial field sales support from ShowCase. Arbor will
furnish customer contact information regarding each transaction to
ShowCase within 30 days after execution of the contract with the
customer.
3.3 Trademark License.
a. License. Subject to the terms and conditions of this
Agreement, ShowCase hereby grants to Arbor a non-exclusive,
non-transferable license to use the name "ShowCase" (the
"Trademark"), but only in connection with its marketing and
distribution of ShowCase AS/400 Port. Every copy of the
ShowCase AS/400 Port shall clearly and prominently display the
Trademark.
b. Quality Control. Arbor shall promptly: (1) upon ShowCase's
request from time to time, supply to ShowCase fully documented
sample copies of any advertising and marketing materials
relating to the ShowCase AS/400 Port, for ShowCase's review
and approval, which will not be unreasonably withheld; (2)
modify any such advertising and marketing materials as may be
requested by ShowCase. Arbor agrees to give full attribution
to ShowCase, ensuring that ShowCase corporate and product
names are noticeably and prominently identified and displayed
in connection with the marketing and distribution of the
ShowCase AS/400 Port. Arbor's failure to substantially comply
with the terms of this provision shall constitute a material
default subject to Section 4.3 below.
4. TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on the Effective
Date and shall continue unless terminated in accordance with the
provisions of this Agreement.
4.2. Termination by Arbor. This Agreement may be terminated by Arbor
upon any one of the following events:
a. If ShowCase materially breaches any material provision of
this Agreement and fails to fully cure such breach within 30
days of written notice describing the breach.
b. If ShowCase shall seek protection under any bankruptcy,
receivership, trust deed, creditor arrangement, composition or
comparable proceeding, or if any such proceeding is instituted
against ShowCase and not dismissed within 120 days.
c. If there is a "change of control" in the ownership of
ShowCase (whether through acquisition, merger, consolidation,
or reorganization) unless Arbor elects to waive such
condition, which waiver shall not be unreasonably withheld. By
way of clarification, ShowCase acknowledges that it shall not
be unreasonable for Arbor to withhold such waiver if Arbor in
good faith determines that the acquiring or surviving entity
(1) is not financially sound, (2) is a significant competitor,
(3) does not or is not likely to possess the technical
know-how and expertise properly to maintain and support the
ShowCase AS/400 Port, (4) does not or is not likely to
allocate sufficient resources to the maintenance and support
of the ShowCase AS/400
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 5 of 17
Port, or (5) is not able or willing to provide the necessary
security for the protection of the Technical Information, the
Arbor trademarks, or the Arbor Proprietary Information. For
purposes of this Section 4.2.c, Arbor agrees that it will
waive this condition if ShowCase is acquired by or merges with
(*) provided that (*) is then a reseller of the Essbase
Software. If (*) is not a reseller of the Essbase Software,
then Arbor will, within 30 days after ShowCase's request,
determine whether it will waive this condition for the
succeeding 6 month period if ShowCase is acquired by or merges
with (*) during such 6 month period. There is no limit to the
number of times that this process may be repeated. A "change
of control" shall mean any change in the actual or beneficial
ownership of more than 50 percent (or, with respect to a
then-existing holder of equity rights, such lesser amount as
would be required for such holder directly or indirectly to
hold more than 50 percent of the voting stock) of its voting
stock in one or more related transactions.
4.3 Termination by ShowCase. This Agreement may be terminated by
ShowCase upon any of the following events:
a. If ShowCase gives written notice to Arbor of its desire to
terminate the Agreement, which termination shall be effective
12 months after delivery of such notice.
b. If Arbor materially breaches any material provision of this
Agreement and fails to fully cure such breach within 30 days
of written notice describing the breach.
4.4 Liabilities. Neither party shall incur any liability whatsoever for
any damage, loss or expenses of any kind suffered or incurred by the
other (or for any compensation to the other) arising from or incident
to any termination of this Agreement by such party which complies with
the terms of the Agreement whether or not such party is aware of any
such damage, loss or expenses. This section is not intended to preclude
an action for damages against a party that commits a breach.
4.5 Obligations on Termination. Upon termination of this Agreement by
either party or naturally at the end of the term (a) all exclusive
rights and licenses of ShowCase and restrictions on Arbor hereunder
shall terminate; (b) ShowCase will immediately return to Arbor all
Arbor Proprietary Information including the Technical Information,
catalogues and literature in its possession, custody or control in
whichever form held (including all copies or embodiments thereof) and
will cease using any trademarks, service marks and other designations
of Arbor, and (c) in the event of a termination of this Agreement in
accordance with Section 4.2, ShowCase's nonexclusive license set forth
in Section 2.8 shall terminate and ShowCase shall, without additional
consideration, assign, convey and transfer to Arbor all right, title
and interest in and to the ShowCase AS/400 Port.
4.6 Remedies. Termination is not the sole remedy under this Agreement
and, whether or not termination is effected, all other remedies will
remain available.
4.7 After Termination. Upon the termination of this Agreement for any
reason, the licenses granted by ShowCase and its Authorized Partners to
its end user customers will remain in full force and effect, and Arbor
will honor each such end user license, provided that the end user
customer is not in default thereof. ShowCase will make good faith
efforts to have each end user license agreement assigned to Arbor so
that Arbor shall be the licensor. Arbor agrees that it will provide
software maintenance and support services to all such end user
customers, who are not in default of the terms of their license
agreements, in accordance with its then-current terms, conditions, and
prices. Arbor agrees to indemnify and hold harmless ShowCase from any
liability to an end user customer arising from maintenance and support
services provided by Arbor after the date on which Arbor agrees to
provide such services to the end user customer in question.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
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5. ROYALTIES
5.1 ShowCase Royalty Payment to Arbor. Except as provided in Sections
5.3, 5.4, and 5.5 below, ShowCase will pay Arbor a royalty for each
copy of the ShowCase AS/400 Port and the non-ported Essbase Software
distributed by ShowCase or its Authorized Partners. ShowCase will pay
Arbor (*) percent of Arbor's then-current local country list price for
the ShowCase AS/400 Port and (*) percent of Arbor's then-current local
country list price for the non-ported Essbase Software, whether the
sale is directly by ShowCase or by a ShowCase Authorized Partner. For
those non-ported Essbase Software products for which Arbor pays
royalties to a third party, the royalty for such products shall
increase by (*) percent of the net royalties paid to the third party.
ShowCase need not pay any royalties to Arbor with respect to the (*)
running on the AS/400 platform when used for the direct loading of (*)
via the ShowCase Warehouse Manager and Warehouse Builder products.
Arbor agrees to provide ShowCase with 90 days prior written notice of
any change in its relevant list prices. If Arbor offers any promotions
with respect to the ShowCase AS/400 Port or the non-ported Essbase
Software, Arbor agrees to notify ShowCase of such promotion and
ShowCase's royalty payment to Arbor for sales during the promotion
period shall be (*) . The royalties due Arbor hereunder shall be
reduced as specified in Exhibit A for large transactions with a single
customer. (*) . The parties agree to negotiate in good faith regarding
discounts for large transactions not covered in Exhibit A.
5.2 ShowCase Royalty Payment for Essbase Restricted Use Licenses.
ShowCase shall be entitled to license restricted use licenses of the
Essbase Software through its Authorized Partners. Restricted use
licensing arrangements include programs under which Essbase may only be
used for a specific application, or for a number of ports not to exceed
(*) ports, and where the end user customer would be required to license
a full use license to use the Essbase Software beyond these
restrictions. For restricted use sales made by ShowCase's Authorized
Partners of the Essbase Software, ShowCase shall pay Arbor a royalty of
(*) percent of Arbor's then-current local country list price. These
terms apply so long as the business terms to ShowCase's Authorized
Partner are the same for both the ShowCase AS/400 Port and non-ported
version of the Essbase Software.
5.3 Royalties for IBM sales of the Essbase Software. For sales made by
IBM or its channels of the ShowCase AS/400 Port, ShowCase shall pay
Arbor a royalty of (*) percent of Arbor's then-current local country
list price.
5.4 Royalties for sales of the IBM AS/400 DB2/OLAP version of the
Essbase Software. For sales made by (*) or its channels of the IBM
AS/400 DB2/OLAP version of the Essbase Software, ShowCase shall pay
Arbor a royalty of (*) percent of Arbor's local country list price in
effect as of the effective date of this Agreement. For sales made by
ShowCase or its Authorized Partners of the IBM DB2/OLAP server,
ShowCase shall pay Arbor a royalty of (*) percent of Arbor's
then-current local country list price for the ShowCase AS/400 Port,
less any royalties paid to (*) , but the minimum royalty shall be (*)
percent of Arbor's local country list price in effect as of the
effective date of this Agreement. For purposes of this Section 5.4, the
Arbor local country list price shall be adjusted to the then-current
local country list price on or after the date (*) months from the
effective date of the agreement between ShowCase and (*) , but in any
case no later than (*). However, if, during the period between the
effective date of this Agreement and the date referred to in the
preceding sentence, Arbor's local country list price decreases, then
the applicable Arbor local country list price as of the effective date
of this Agreement shall immediately be decreased accordingly.
5.5 Migrations. If any licensee of the Essbase Software on a non-AS/400
platform, licensed directly by Arbor, desires to convert to an AS/400,
then such licensee shall license the ShowCase AS/400 Port from ShowCase
or its Authorized Partner, and ShowCase shall pay royalties to Arbor
with respect to such
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 7 of 17
license equal to (*) . However, if the licensee of the Essbase Software
on a non-AS/400 platform has a restricted use license, then ShowCase or
its Authorized Partner may license the ShowCase AS/400 Port and pay
Arbor a royalty of (*) percent of Arbor's then current local country
list price.
5.6 Minimum Royalty Payments. In order for ShowCase to maintain the
exclusive right to distribute the ShowCase AS/400 Port, subject to the
reservation of rights granted to Arbor in Section 3.1, and subject to
Arbor's Buy-Back Right set forth in Section 2.7, Arbor must receive the
minimum royalty payments specified in (a) through (f) below. If Arbor
fails to receive its minimum royalty payments specified below for any
given Agreement Year (as defined in (a) through (f) below), ShowCase
shall have the option to pay Arbor the remaining balance of the
commitment for that Agreement Year within 30 days after the end of that
Agreement Year, thereby meeting its commitment and protecting its
distribution rights for the subsequent Agreement Year. Any such payment
will be treated as a credit towards royalty payments due to Arbor from
ShowCase in the subsequent year, but shall not be a credit towards
meeting the next year's annual royalty minimum. If Arbor fails to
receive its minimum royalty payment outlined below for a particular
Agreement Year and ShowCase elects not to pay Arbor the remaining
balance of the commitment for that Agreement Year, the exclusive
distribution rights granted to ShowCase shall, as of such date,
automatically become non-exclusive.
a. During the 12 months ending on March 31, 1998, the
cumulative royalty and license payments to Arbor by ShowCase
and by end users, respectively, of the ShowCase AS/400 Port
(net of any royalties Arbor pays to ShowCase) shall equal at
least $(*) . If ShowCase achieves this level, the period of
exclusivity shall be extended through March 31, 1999. If
ShowCase fails to achieve the stated level of cumulative
royalty payments, the period of exclusivity shall end on March
31, 1998.
b. During the 12 months ending March 31, 1999, the cumulative
royalty and license payments to Arbor by ShowCase and by end
users, respectively, of the ShowCase AS/400 Port (net of any
royalties Arbor pays to ShowCase) shall equal at least $(*) .
If ShowCase achieves this level, the period of exclusivity
shall be extended through March 31, 2000. If ShowCase fails to
achieve the stated level of cumulative royalty payments, the
period of exclusivity shall end on March 31, 1999.
c. During the 12 months ending on March 31, 2000, the
cumulative royalty and license payments to Arbor by ShowCase
and by end users, respectively, of the ShowCase AS/400 Port
(net of any royalties Arbor pays to ShowCase) shall equal at
least $(*) . If ShowCase achieves this level, the period of
exclusivity shall be extended through March 31, 2001. If
ShowCase fails to achieve the stated level of cumulative
royalty payments, the period of exclusivity shall end on March
31, 2000.
d. During the 12 months ending on March 31, 2001, the
cumulative royalty and license payments to Arbor by ShowCase
and by end users, respectively, of the ShowCase AS/400 Port
(net of any royalties Arbor pays to ShowCase) shall equal at
least $(*) . If ShowCase achieves this level, the period of
exclusivity shall be extended through March 31, 2002. If
ShowCase fails to achieve the stated level of cumulative
royalty payments, the period of exclusivity shall end on March
31, 2001.
e. If the term of the Agreement has been extended as provided
above, then during the 12 months ending on March 31, 2002, the
cumulative royalty and license payments to Arbor by ShowCase
and by end users, respectively, of the ShowCase AS/400 Port
(net of any royalties Arbor pays to ShowCase) shall equal at
least $(*) . If ShowCase achieves this level, the period of
exclusivity shall be extended through March 31, 2003. If
ShowCase fails to achieve the stated level of cumulative
royalty payments, the period of exclusivity shall end on March
31, 2002.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 8 of 17
f. If the term of the Agreement has been extended as provided
above, then during the 12 months ending on March 31, 2003, the
cumulative royalty and license payments to Arbor by ShowCase
and by end users, respectively, of the ShowCase AS/400 Port
(net of any royalties Arbor pays to ShowCase) shall equal at
least $(*) . If ShowCase achieves this level, the period of
exclusivity shall be extended through March l, 2004. If
ShowCase fails to achieve the stated level of cumulative
royalty payments, the period of exclusivity shall end on March
31, 2003.
5.7 Payment Terms to Arbor. All payments due Arbor under this Agreement
shall be paid to Arbor thirty days after the end of the calendar month
in which they are accrued. Amounts not paid within such thirty day
period shall bear a late fee equal to (*) percent per month on the
outstanding amount or the maximum rate permitted by applicable law,
whichever is less. No part of any amount payable to Arbor hereunder may
be reduced due to any counterclaim, set-off, adjustment or other right
which ShowCase might have against Arbor, any other party or otherwise.
5.8 Arbor Royalty Payment to ShowCase. Arbor shall pay ShowCase a
royalty for each copy of the ShowCase AS/400 Port distributed by Arbor
or its Authorized Partners. Such royalty shall be equal to (*) percent
of ShowCase's then-current local country list price, but not to exceed
(*) percent of (*) percent of the then-current Arbor local country list
price for a similar software product running on a UNIX platform,
whether the sale is made directly by Arbor or by an Authorized Partner.
The parties agree to negotiate in good faith regarding discounts for
large transactions. ShowCase agrees to provide Arbor with 90 days'
prior written notice of any change in its relevant list price.
5.9 Arbor Royalty Payment to ShowCase For Restricted Use Licenses.
Arbor shall be entitled to license restricted use licenses of the
ShowCase AS/400 Port through its Authorized Partners. Restricted use
licensing arrangements include programs under which the ShowCase AS/400
Port may only be used for a specific application, or for a number of
ports not to exceed (*) ports, and where the end user customer would be
required to license a full use license to use the Essbase Software
beyond these restrictions. For restricted use sales made by Arbor's
Authorized Partners of the ShowCase AS/400 Port, Arbor shall pay
ShowCase a royalty of (*) percent of the ShowCase then-current local
country list price. These terms apply so long as the business terms to
Arbor's Authorized Partner are the same for both the ShowCase AS/400
Port and non-ported version of the Essbase Software.
5.10 Payment Terms to ShowCase. All payments due ShowCase under this
Agreement shall be due no later than 30 days after the end of the
calendar month in which they are accrued. Amounts not paid within such
30-day period shall bear a late fee equal to (*) percent per month on
the outstanding amount or the maximum rate permitted by applicable law,
whichever is less. No part of any amount payable to ShowCase hereunder
may be reduced due to any counterclaim, set-off, adjustment or other
right which Arbor might have against ShowCase, any other party, or
otherwise.
6. MAINTENANCE
6.1 Maintenance for ShowCase Customers. ShowCase shall provide First
Level Support and Second Level Support (as well as Third Level support
for the ShowCase AS/400 Port) to those customers who have purchased the
ShowCase AS/400 Port or the Essbase Software from ShowCase or its
Authorized Partners. Arbor will provide First Level Support, Second
Level Support and Third Level Support directly to ShowCase (and not to
its distributors or end users) with respect to all such sales. Arbor
will also provide maintenance releases and/or software upgrades. For
such support, ShowCase shall pay Arbor (a) (*) percent of the
cumulative prior years' royalties from all customers, or (b) $(*) per
agreement year, whichever is higher; provided, however, that royalties
from end users that have canceled their licenses of the ShowCase AS/400
Port or the Essbase Software shall not be included. Application and
product support through Arbor's Application Field Support Group
("AFSG") will be made available to ShowCase
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 9 of 17
at a rate equal to (*) percent of the rate set forth on Arbor's
published AFSG consulting services fee schedule at the time such
services are to be rendered.
6.2 Maintenance for ShowCase AS/400 Port Sales by Arbor. Arbor and its
Authorized Partners shall offer to their customers of the ShowCase
AS/400 Port two alternatives for maintenance. First, Arbor or its
Authorized Partner can collect or cause to be collected and promptly
pay to ShowCase an annual maintenance fee equal to (*) percent of the
then-current ShowCase local country list price for the ShowCase AS/400
Port, and then ShowCase will provide First, Second and Third Level
support directly to such customers. After the first year of maintenance
for a customer, ShowCase will handle all renewals and will extend its
maintenance contract to the customers at ShowCase's then current rates.
Alternatively, Arbor or its Authorized Partner can provide First and
Second Level support and ShowCase will provide Third Level support, and
Arbor or its Authorized Partner will pay ShowCase an annual maintenance
fee equal to (*) percent of the then current ShowCase local country
list price.
6.3 Maintenance After Arbor Buy-Back. For the first 12 months after
Arbor has exercised its Buy-Back Right, the maintenance obligations
described above will remain the same. Thereafter, Arbor will be
responsible for maintaining the ShowCase AS/400 Port. ShowCase
maintenance payment terms will remain as described in Section 6.1 for
12 months following the exercise of the Buy-Back Right.
7. PRODUCT AND PORTING
ShowCase will own the ShowCase AS/400 Port, but will not own (and hereby
quitclaims and assigns to Arbor any rights or interests in or to) any of the
Technical Information licensed hereunder and any derivative works thereof.
ShowCase will own any attachments or add on products or modules to the ShowCase
AS/400 Port, which have been or are developed by or for ShowCase without use of
any source code of the ShowCase AS/400 Port.
8. MARKETING SUPPORT
8.1 Support Assistance. Arbor will provide the following marketing,
sales and support assistance (outlined below) at no charge.
a. ShowCase may access Arbor's Service Partners (where Arbor
has the right to grant such access) to outsource ShowCase
AS/400 Port related service requirements.
b. ShowCase and Arbor will jointly develop a plan for their
respective technical support organizations for problem
resolution.
c. ShowCase may deliver evaluation copies of the ShowCase
AS/400 Port to prospects for trial use for a period not to
exceed (*) .
d. ShowCase has the right to make copies of the ShowCase
AS/400 Port for demonstration purposes.
e. ShowCase and Arbor will make commercially reasonable
efforts to develop integrated marketing programs.
f. ShowCase and Arbor will develop marketing communications
positioning detailing ShowCase as Arbor's recommended solution
for the AS/400 market.
g. Arbor agrees to provide ShowCase with copies of the Essbase
Software running under the Windows NT or Windows 95 operating
systems, in numbers as requested by ShowCase to
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 10 of 17
meet the needs of its sales force and that of its Authorized
Partners. Such copies are strictly and exclusively for
purposes of conducting demonstrations for customers and
prospects. These licensed demonstration copies may not be
copied, distributed, or used for any other purpose including
but not limited to test, evaluation, and internal use by
ShowCase or its customers. Arbor will not provide any support
and maintenance services in connection with this license,
other than to provide updates whenever they are generally
released to customers.
8.2 Marketing Assistance Fees (MAF). Arbor may contact ShowCase
whenever it becomes aware of an opportunity to license the ShowCase
AS/400 Port and ShowCase may contact Arbor whenever it becomes aware of
an opportunity to license the Essbase software. Such referrals will be
handled as provided below.
a. A Marketing Assistance Fee ("MAF") is a fee paid to the
party who supplies the other with a qualified referral for a
previously unidentified ShowCase AS/400 Port or Essbase
software license sales opportunity ("Opportunity"). MAFs apply
only to specific Opportunities and require the other party to
be actively involved.
b. A party officially registers an Opportunity with the other
party by using the Qualifying Order Form which is attached to
this Agreement. This form must be completed in full by the
requesting party in order to uniquely identify the
Opportunity. The management of the party fulfilling the order
approves the MAF request by signing and dating the form and
forwarding the original to the Channel Program Administrator
in Sunnyvale (Arbor) or Rochester (ShowCase) for approval by
the Vice President of Sales. After approval, copies will be
distributed to the appropriate organizations in both parties.
The original will be filed at the party fulfilling the order.
MAF requests must be submitted and approved before the order
is submitted. If the business closes, the party fulfilling the
order will make payment to the requesting party thirty (30)
days after receipt of payment from the customer. If for any
reason funds need to be returned to the customer, the
requesting party which received the MAF will refund the
appropriate amount of the MAF received, upon proper billing
from the other party.
c. A MAF request is valid for 90 days from the date of
approval. If the Opportunity does not close during the 90
days, the term may be extended at the discretion of the party
fulfilling the order for an additional 90 days. To approve
this change the previously approved Qualifying Order Form must
be resubmitted, signed and dated again. No opportunity may be
extended more than 90 additional days.
d. The MAF is (*) percent of the net software license revenue
received by the party fulfilling the order and will be paid
for each qualified referral. The maximum MAF for each specific
new referral is $(*). The maximum cumulative MAF amount paid
for referrals within a single account is $(*).
9. CONFIDENTIALITY
ShowCase will keep the terms of this Agreement, and any letter of intent,
negotiations, and all technical or commercial information, including, without
limitation, all Technical Information, received from Arbor, confidential
(collectively, the "Arbor Proprietary Information"). Similarly, Arbor will keep
the terms of this Agreement and any letter of intent, negotiations, and all
technical or commercial information received from ShowCase, confidential
(collectively, the "ShowCase Proprietary Information"; the ShowCase Proprietary
Information and the Arbor Proprietary Information together may be referred to as
the "Proprietary Information"). Each party shall only use the other party's
Proprietary Information as expressly and unambiguously provided in this
Agreement, and each party shall maintain and not disclose to any third party
(and shall similarly bind its employees in writing) any such Proprietary
Information of the other party without the other party's prior written consent.
However, a party shall
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 11 of 17
not be obliged to maintain the confidentiality of any Proprietary Information of
the other party that the receiving party can document:
a. is or has become readily publicly available without
restriction through no fault of the receiving party or its
employees or agents; or
b. is received without restriction from a third party lawfully
in possession of such information and lawfully empowered to
disclose such information; or
c. was rightfully in possession of the receiving party without
restriction prior to its disclosure by the other party; or
d. was independently developed by employees or consultants of
the receiving party without access to such Proprietary
Information; or
e. is required to be disclosed by court or government order,
provided that the other party has been given notice of and all
opportunities to contest or limit the scope of such order.
10. ADDITIONAL SHOWCASE COVENANTS AND REPRESENTATIONS
Except as expressly and unambiguously provided herein and as conditions of
ShowCase's license hereunder, ShowCase represents, warrants and agrees:
a. Not to delete, alter, add to or fail to reproduce in and on
any copy of the ShowCase AS/400 Port or any media the Arbor
name and any copyright or other notices appearing in or on any
copy, media or master or package materials provided by Arbor
or which may be required by Arbor at any time.
b. To use its best efforts to comply with good business
practices and all laws and regulations relevant to this
Agreement or the subject matter hereof. ShowCase will not
contest the use by or authorized by Arbor of any trademark
(other than an existing ShowCase trademark or a trademark
confusingly similar thereto) or application or registration
therefor, whether during or after the term of this Agreement.
c. To maintain a file of all persons and entities to which it
distributes a copy of ShowCase AS/400 Port, including the name
and address of such person or entity, the serial number
designation of the copy of the ShowCase AS/400 Port, the date
of delivery of the copy of the ShowCase AS/400 Port and the
license agreement therefor, and to permit Arbor or a
representative to examine and audit such records, records
relevant to license fees and any related records (which shall
be deemed to be ShowCase Proprietary Information) during
reasonable business hours. If such an audit uncovers a
deficiency in reporting or payments greater than 5 percent,
ShowCase shall bear the audit expenses.
d. To comply with all export laws and regulations of the
Department of Commerce or other United States or foreign
agency or authority, and not to export, or allow the export or
re-export of any Arbor Proprietary Information, ShowCase
AS/400 Port, Essbase Software or any copy of any direct
product thereof in violation of any such laws and regulations.
ShowCase shall obtain and bear all expenses relating to any
necessary licenses and/or exemptions with respect to the
export from the U.S. of all material or items deliverable by
Arbor to any location and shall demonstrate to Arbor
compliance with all applicable laws and regulations prior to
delivery thereof by Arbor.
e. In addition to and without in any way limiting ShowCase's
other obligations hereunder, to use all methods to protect
Arbor's rights with respect to the Arbor Proprietary
Information as it uses to protect its own or any third party's
software, confidential information or rights of similar
nature.
Page 12 of 17
11. MISCELLANEOUS
11.1 Warranty Disclaimer. THE TECHNICAL INFORMATION AND SERVICES
PROVIDED TO SHOWCASE HEREUNDER ARE PROVIDED "AS IS" WITHOUT WARRANTY OF
ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
FURTHER, ARBOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS
REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE TECHNICAL
INFORMATION OR WRITTEN MATERIALS IN TERMS OF CORRECTNESS, ACCURACY,
RELIABILITY, OR OTHERWISE.
11.2 Limitation on Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS
AGREEMENT OR OTHERWISE, (A) EXCEPT WITH RESPECT TO A BREACH OF
SECTION 5 OR ACTIONS OF SHOWCASE BEYOND THE SCOPE OF THE
LICENSE GRANTED IN SECTION 2 ABOVE, NEITHER PARTY SHALL BE
LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST
DATA, AND (B) NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE
LICENSE FEES PAID TO ARBOR HEREUNDER DURING THE TWELVE MONTH
PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR (II) FOR
COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR
SERVICES.
11.3 Infringement. While Arbor has conducted no investigation, it is
not aware of any infringement that will result from distribution of the
Technical Information in accordance with the terms hereof. If ShowCase
becomes aware of a potential infringement or claim thereof, it will
immediately notify Arbor and will, if requested by Arbor, cease
distribution (and for the period of time during which such authorized
distribution has ceased, ShowCase's royalty obligations shall be
suspended). Arbor shall, at its cost, defend or, at its sole option,
settle any claim or suit brought against ShowCase on the issue that the
Technical Information infringes a copyright or U.S. patent, or violates
a trade secret of any third party, provided that ShowCase (a) notifies
Arbor promptly in writing of any such claim or suit; (b) gives Arbor
full information and assistance in settling and/or defending the suit;
and (c) gives Arbor full authority and control of the defense and/or
settlement of any such action. Arbor shall not be liable for any costs
or expenses incurred (1) by ShowCase without Arbor's prior written
authorization; (2) for any claim based on the use or combination of the
Technical Information with any other item not provided by Arbor, (3)
for any claim based on ShowCase's modification of the Technical
Information; (4) from use of other than the latest available version of
the Technical Information, or (5) any transaction entered into by
ShowCase relating to the Technical Information without Arbor's prior
written consent which will not be unreasonably withheld.
11.4 Remedies. If the Technical Information becomes subject to a claim
of infringement for which Arbor may become liable, Arbor may at its
option (a) obtain the right to continue using the Technical
Information; (b) replace or modify the Technical Information to make it
non-infringing so long as the replacement or modification meets
substantially similar specifications; or (c) terminate the licenses.
EXCEPT FOR THESE REMEDIES, ARBOR SHALL HAVE NO LIABILITY TO SHOWCASE OR
ITS CUSTOMERS FOR VIOLATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS, AND SHALL IN NO INSTANCE HAVE ANY LIABILITY TO SHOWCASE FOR
INDIRECT OR CONSEQUENTIAL DAMAGES FROM INFRINGEMENT OTHER THAN AS SET
FORTH IN THIS SECTION.
11.5 Exports. Arbor agrees to comply with all export laws and
regulations of the Department of Commerce or other United States or
foreign agency or authority, and not to export, or allow the export or
re-export of any ShowCase Proprietary Information, the ShowCase AS/400
Port, or any copy of any direct product thereof in violation of any
such laws and regulations. Arbor shall obtain and bear all expenses
relating to any necessary licenses and/or exemptions with respect to
the export from the U.S. of all material or items deliverable by Arbor
to any location and shall demonstrate to ShowCase compliance with all
applicable laws and regulations prior to delivery thereof.
Page 13 of 17
11.6 Relationship of Parties. The parties hereto expressly understand
and agree that ShowCase is an independent contractor in the performance
of each and every part of this Agreement, is solely responsible for all
of its employees and agents and its labor costs and expenses arising in
connection therewith and is responsible for and will indemnify Arbor
from any and all claims, liabilities, damages, debts, settlements,
costs, attorneys' fees, expenses and liabilities of any type whatsoever
that may arise on account of ShowCase's activities (including, without
limitation, direct and indirect distributors), including without
limitation, providing unauthorized representations or warranties (or
failing to effectively disclaim all warranties and liabilities on
behalf of Arbor) to its customers or breaching any term, representation
or warranty of this Agreement.
11.7 Amendment and Waiver. Except as otherwise expressly provided
herein, any provision of this Agreement may be amended and the
observance of any provision of this Agreement may be waived (either
generally or in any particular instance and either retroactively or
prospectively) only with the written consent of the parties. However,
it is the intention of the parties that this Agreement be controlling
over additional or different terms of any purchase order, confirmation,
invoice or similar document, even if accepted in writing by both
parties, and that waivers and amendments shall be effective only if
made by non-pre-printed agreements clearly understood by both parties
to be an amendment or waiver.
11.8 Governing Law and Legal Actions. This Agreement shall be governed
by and construed under the laws of the State of California and the
United States without regard to conflicts of laws provisions thereof
and without regard to the United Nations Convention on Contracts for
the International Sale of Goods. Unless otherwise elected by Arbor in
writing for a particular instance (which Arbor may do at its option),
the sole jurisdiction and venue for actions related to the subject
matter hereof shall be the state and U.S. Federal courts in the County
of Santa Clara, California. In any action or preceding to enforce
rights under this Agreement, the prevailing party shall be entitled to
recover costs and attorneys' fees.
11.9 Headings. Headings and captions are for convenience only and are
not to be used in the interpretation of this Agreement.
11.10 Notices. Notices under this Agreement shall be sufficient only if
personally delivered, delivered by a major commercial rapid delivery
courier service or mailed by certified or registered mail, return
receipt requested to a party at its address as first set forth herein
or as amended by notice pursuant to this subsection. If not received
sooner, notice by mail shall be deemed received five days after deposit
in the U.S. mail.
11.11 Entire Agreement. This Agreement amends and restates the
Arbor/ShowCase License Agreement between Arbor and ShowCase dated
December 19, 1995, which is hereby superseded, and supersedes all
proposals, oral or written, all negotiations, conversations, or
discussions between or among parties related to the subject matter of
this Agreement and all past dealing or industry custom. This Agreement
does not amend or supersede ShowCase's Agreement with AppSource
Corporation dated January 4, 1996, as amended.
11.12 Severability. If any provision of this Agreement is held to be
illegal or unenforceable, that provision shall be limited or eliminated
to the minimum extent necessary so that this Agreement shall otherwise
remain in full force and effect and enforceable.
11.13 Basis of Bargain. Each party recognizes and agrees that the
warranty disclaimers and liability and remedy limitations in this
Agreement are material bargained for bases of this Agreement and that
they have been taken into account and reflected in determining the
consideration to be given by each party under this Agreement and in the
decision by each party to enter into this Agreement.
11.14 Non-solicitation of Employees. Throughout the term of this
Agreement and for a period of 12 months after any termination or
expiration of this Agreement, neither party shall solicit or recruit
for employment as an employee or agent, whether full-time or part-time,
by contract or by direct hire, any then-current employee or individual
consultant of the other party without the prior written consent of the
party
Page 14 of 17
employing such an individual. The foregoing is not to be construed as a
prohibition against conducting general advertisement campaigns or other
recruiting activities not aimed specifically at the other party or its
employees, nor hiring an employee or individual consultant of the other
party, provided that the hiring party has not in any way solicited or
recruited the other party's employee or individual consultant and that
the employment relationship was initiated by the employee or individual
consultant.
11.15 Assignment. ShowCase may assign this Agreement to any party that
acquires all or substantially all of the assets of ShowCase only upon
the prior written consent of Arbor, which consent shall not be
unreasonably withheld. By way of clarification, ShowCase acknowledges
that it shall not be unreasonable for Arbor to withhold such consent if
Arbor in good faith determines that the acquiring or surviving entity
(1) is not financially sound, (2) is a significant competitor, (3) does
not or is not likely to possess the technical know-how and expertise
properly to maintain and support the ShowCase AS/400 Port, (4) does not
or is not likely to allocate sufficient resources to the maintenance
and support of the ShowCase AS/400 Port, or (5) is not able or willing
to provide the necessary security for the protection of the Technical
Information, the Arbor trademarks, or the Arbor Proprietary
Information. For purposes of this Section 11.15 Arbor agrees that it
will give its consent if ShowCase is acquired by or merges with (*)
provided that (*) is then a reseller of the Essbase Software. If (*) is
not a reseller of the Essbase Software, then Arbor will, within 30 days
after ShowCase's request, determine whether it will give its consent
for the succeeding 6 month period if ShowCase is acquired by or merges
with (*) during such 6 month period. There is no limit to the number of
times that this process may be repeated.
11.16 Survival of Provisions. The provisions of this Agreement which by
their terms ought to survive termination of the Agreement shall survive
such termination.
Executed as of the effective date by the authorized representatives of the
parties.
SHOWCASE CORPORATION ARBOR SOFTWARE CORPORATION
By /s/ Xxx Xxxxx By /s/ Xxxxxxx Xxxxxx
---------------------------------- ----------------------------------
Name Xxx Xxxxx Name Xxxxxxx Xxxxxx
--------------------------------- ---------------------------------
Title President and CEO Title Chief Financial Officer
-------------------------------- --------------------------------
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 15 of 17
QUALIFYING ORDER FORM
Prospect Company Name
---------------------------------------
Prospect Address/Phone/Fax
---------------------------------------
Prospect Primary Contact Name
---------------------------------------
Date of Initial Prospect Contact
---------------------------------------
Date of Intro. to Fulfiller Party
---------------------------------------
Requester Contact/Location
---------------------------------------
Anticipated Purchase Amount
---------------------------------------
Description of Opportunity
---------------------------------------
---------------------------------------
Anticipated Purchase Date
---------------------------------------
Sales Manager Approval
---------------------------------------
Extension Date (if approved)
---------------------------------------
Accepted by:
--------------------------------- -----------------------------------
Authorized Signature Authorized Signature
Name:______________________________ Name:______________________________
Title:_____________________________ Title:_____________________________
Date:_____________________________ Date:_____________________________
Page 16 of 17
EXHIBIT A
VOLUME DISCOUNTS
For single transactions where the license fees charged by ShowCase are in the
ranges specified below, the royalty payable by ShowCase to Arbor will be
adjusted as shown below:
For sales of the ShowCase AS/400 Port:
License Fees Adjusted Royalty Rate
(*) (*)
For sales of non-ported Essbase Software:
License Fees Adjusted Royalty Rate
(*) (*)
Notes:
Transaction prices above $(*) will be handled on a case-by-case basis.
To qualify for the volume discounts, the sale must represent a single
transaction to one customer. Payment terms offered to end user customer do not
affect royalty payments.
Maintenance price calculation for sales that qualify for the volume discount
schedule will be based on net royalty received.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 17 of 17
