EXHIBIT 10.12
[Logo]
B u s i n e s s O b j e c t s
UNIVERSE OF PARTNERS
Partner Company Name Aurum Software, Inc. Agreement Date: 3/22/96
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BUSINESS OBJECTS, INC.
VERTICAL APPLICATION RESELLER AGREEMENT
This Agreement is made as of the date set forth below (the "Effective Date") by
and between Business Objects, Inc., a Delaware corporation ("BOI") having as its
principal place of business at 00000 Xxxxxxx Xxxxx Xxxx., Xxxxx 000, Xxxxxxxxx,
XX 00000 and the vertical application reseller named on Schedule 1 hereto
("VAR").
WHEREAS, BOI is the developer, manufacturer, distributor and licensor of the
software and related products listed in Exhibit A hereto (the "BOI Products")
and is owner of certain trademarks (the "BOI Trademarks") and other intellectual
property rights related to the BOI Products.
WHEREAS, VAR is a developer, manufacturer and distributor of the software
products, listed on Exhibit B hereto, that add value to or work in conjunction
with, the BOI Products (the "VAR Products").
WHEREAS, VAR desires to license from BOI, and BOI desires to license to VAR,
certain limited rights to use the BOI Products for the sole purpose of
developing a set of data access, reporting and analysis modules for the VAR
Products (the "Value-Add"), and to market and sublicense the BOI Products with
the VAR Products.
NOW, THEREFORE, in consideration of the mutual promises contained herein, it is
agreed as follows:
1. APPOINTMENT AND AUTHORITY OF VAR
1.1 Appointment of VAR. Subject to the terms and conditions of this
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Agreement, BOI hereby appoints VAR to act as a non-exclusive vertical
application reseller of BOI for the BOI Products, within the territory listed in
Schedule 1 ("Xxx Xxxxxxxxx"), and VAR hereby accepts such appointment.
1.2 Independent Contractors. The relationship of BOI and VAR
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established by this Agreement is that of independent contractors, and nothing
contained in this Agreement shall be construed to (i) give either party the
power to direct and control the day-to-day activities of the other, (ii)
constitute the parties as legal partners, jointventurers, co-owners or otherwise
as participants in a joint undertaking, or (iii) allow either party to create or
assume any obligation on behalf of the other party for any purpose whatsoever.
All financial and other obligations associated with the business of BOI and VAR
are their sole respective responsibilities.
2. DEVELOPMENT AND DEMONSTRATION LICENSE
2.1 Development and Demonstration License Grant. For the
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Development and Demonstration License Fees set forth in Section 11.1 of this
Agreement, BOI hereby grants to VAR a non-exclusive, nontransferable right to
have VAR use object code copies of the BOI products listed on Exhibit C solely
for the purpose of developing, testing, and supporting the Value-Add, and not
for other internal productive purposes, (the "Development and Demonstration
License"), provided that VAR: (i) shall not make, reproduce or modify any copies
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of the BOI Products, or the BOI Documentation, and shall not authorize any other
party to do so, except for the copies specified in Exhibit C, and except that
VAR may make one copy of the BOI Products to be used by it pursuant to this
Section 1.2 solely for back-up or archival purposes; (ii) shall not modify,
reverse engineer or decompile any of the BOI Products and shall not alter or
remove any copyright or other proprietary notices on or in any of the BOI
Products or BOI Documentation; (iii) shall not under any circumstances
sublicense, assign or otherwise transfer its rights under this Section 2.1.
3. MARKETING AND SUBLICENSING
3.1 License to Sublicense. For the Sublicense License Fees specified in
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Section 11.3 of this Agreement, BOI grants to VAR a nonexclusive,
nontransferable right during the term of this Agreement to market and sublicense
to end users for such end-users' own internal purposes object code copies of the
BOI Products and the related BOI Documentation, if any, in connection with the
marketing and license of the VAR Products (the "Sublicense
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License") pursuant to BOI's standard form Software License Agreement, or an
agreement substantially similar andapproved by BOI (the "Sublicense License
Agreement"), provided, that VAR shall not: (a) market or sublicense the BOI
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Products, except for sole use with the VAR Products, supplied in conjunction
therewith, and to end users for their own internal purposes; (b) sublicense the
BOI Products, except in whole as received from BOI and in object code form; (c)
modify, reverse engineer or decompile the BOI Products; (d) remove any of BOI's
proprietary notices or legends, including any BOI Trademark contained in or on
the BOI Products or the BOI Documentation, without the specific prior written
consent of BOI; (e) make any copies of the BOI Products or the BOI
Documentation, except for one copy of each BOI Product sublicensed by, and for
delivery to, each sublicensee; (f) sublicense, assign or otherwise transfer its
rights under this Section 3.
3.2 Temporary Trial Demonstration Licenses. VAR shall be entitled to
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grant, at the charges and terms then current for VARs, up to a maximum combined
total of ten (10) temporary Trial Sublicenses of the BOI Products at any one
time, only in conjunction with trials of the Value-Add. Such Sublicenses shall
be for evaluation purposes only and shall be for a period not to exceed thirty
(30) days. VAR is responsible for ensuring that prospects receiving a trial
sublicense sign a trial license agreement substantially similar to BOI's
Software Trial License Agreement and for ensuring that trial software is purged
at the end of the evaluation period. BOI reserves the right to require VAR to
provide Business Objects with a prospect summary and trial plan prior to
providing trial software.
4. TRADEMARK LICENSE GRANT
4.1 Grant of License. BOI hereby grants to VAR a nonexclusive,
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nontransferable license for the term of this Agreement to use the BOI Trademarks
solely for the purpose of marketing the BOI Products pursuant to this Agreement.
VAR is granted no other license hereby, and specifically is granted no right to
use any name, xxxx, logo, trademark, tradename or other intellectual property
right, including any BOI Trademark, on, in or in connection with any products
developed by VAR or other than pursuant to this Agreement. VAR agrees that it
will not, at any time during or after the term of this Agreement, use,
advertise, or display any name, xxxx, logo, or designation on a product or as a
name under which it does business that is confusingly similar to any name, xxxx,
logo, or designation of BOI.
4.2 Review of Use of the BOI Trademarks. BOI may, at its sole option,
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review all VAR use of the BOI Trademarks, including in the promotion and
advertising of the VAR Products and the BOI Products, prior to and/or after the
use of any of the BOI Trademarks. VAR agrees towithdraw and retract any such
use, including any such promotion or advertising that BOI, in its sole
discretion, finds unsuitable.
4.3 No Transfer. VAR may under no circumstances sublicense, assign or
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otherwise transfer its rights under this Section 4.
5. OBLIGATIONS OF VAR
5.1 Compliance with Terms of Licenses. VAR shall at all times comply
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with the terms of the Licenses granted to VAR under Sections 2, 3 and 4 of this
Agreement.
5.2 VAR Conduct. VAR shall conduct its business in its own name and in
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such a manner that will be reasonably expected to reflect favorably at all times
on the BOI Products and the good name, goodwill and reputation of BOI. VAR shall
not engage in deceptive, misleading or unethical practices that are or might be
detrimental to BOI, the BOI Products or any third party.
5.3 Staff Requirements. VAR shall at all times employ trained personnel
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who have been adequately trained to support, demonstrate and develop with the
BOI Products in accordance with reasonable training requirements and policies as
may be issued by BOI from time to time.
5.4 Payment. VAR shall pay BOI all license and support fees due under
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this Agreement in accordance with the terms of Section 11 of this Agreement. VAR
shall directly xxxx its end user customers for licensing of VAR Products and
sublicensing of BOI Products and BOI Documentation. VAR shall pay all expenses
incurred by it in connection with its marketing, distribution, delivery and
service of the VAR Products and the BOI Products.
5.5 Maintenance of VAR's Customers. VAR shall provide support of the VAR
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Products and Value-add directly to its end user customers. VAR shall provide the
appropriate first level of support, skilled instruction and maintenance to VAR's
customers for BOI Products.
5.6 Marketing and Advertising. During the term hereof, VAR, as part of
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its activities to promote the distribution of the BOI Products with the VAR
Products, agrees to confer periodically with BOI at BOI's request on
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matters relating to market conditions, sales forecasting, product planning, and
update, promotional and marketing strategies.
5.7 Support of Development and Demonstration Licenses. VAR shall
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purchase at least one year of telephonesupport and program updates (the "Support
Period") for each Development and Demonstration License commencing on the date
each such Development and Demonstration License is shipped for the Development
Support Fee specified in Section 11.2 of this Agreement. BOI shall automatically
extend the Support Period for additional one year periods (each being an
"Additional Support Period"), and VAR shall pay to BOI the Additional Support
Fee specified in Section 11.2 of this Agreement upon the commencement of each
Additional Support Period, unless VAR shall have given notice to BOI at least
thirty (30) days prior to the end of the Support Period or an Additional Support
Period.
5.8 Sublicense Reports. Within thirty (30) days of the last day of each
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quarter, VAR shall send BOI, if requested by BOI, (a) a report detailing for
that quarter for each sublicensee (i) such sublicensee's name and address, (ii)
the platform, (iii) the date of installation, (iv) the number of users and (v)
the total Sublicense License Fees and Sublicense Support Fees due BOI (the
"Sublicense Report"); and (b) a copy of the Sublicense License Agreement signed
and dated by VAR and each such sublicensee.
5.9 Records Inspection and Audits. VAR shall maintain books and records
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in connection with its obligations under this Agreement, during, and for a
period of two years after, the term of this Agreement. Such records shall
include the executed Sublicense License Agreements and the information required
in the monthly Sublicense Reports. VAR shall permit BOI to inspect all books,
records and other documentation relating to VAR's performance of this Agreement
and to audit up to twice yearly the relevant books of VAR to ensure compliance
with the terms of this Agreement upon reasonable prior notice to VAR. Any such
inspection or audit shall be conducted during regular business hours at VAR's
offices and shall not interfere unreasonably with VAR's business activities. BOI
shall pay all of its costs related to performing all inspections and audits;
provided, that if any audit reveals that VAR has underpaid fees to BOI in excess
of five percent (5%), then VAR shall pay BOI's reasonable costs of conducting
such audit in addition to paying the underpaid amounts.
5.10 Notice of Claims, Defects and Changes of Control. VAR shall notify
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BOI promptly in writing of: (i) any claim or proceeding involving a VAR Product
or BOI Product that comes to its attention; (ii) any claimed or suspected
defects in a VAR Product or a BOI Product; and (iii) any material change in the
management or control of VAR.
6. OBLIGATIONS OF BOI
6.1 BOI Support of the Development and Demonstration License. BOI shall
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provide telephone support for the Development and Demonstration License to two
contacts named by VAR (the "Authorized Contacts") for the fees specified in
Section 11.2 of this Agreement for technical and related inquiries arising from
VAR's use of the BOI Products in connection with VAR's development of the VAR
Products. Upon receipt of notice of a problem from an Authorized Contact, and if
such problem can be reproduced at a BOI support facility or via remote access to
the site of the Development and Demonstration License, BOI shall use its
reasonable efforts to correct or circumvent such problem; provided, that all
corrections to the BOI Products shall be made only to the most current generally
available release of such BOI Products, except that for a period of twelve (12)
months after the introduction of a new generally available release of such BOI
Products, BOI shall use reasonable efforts to provide telephone support for the
immediately prior generally released version of such BOI Products. BOI shall
also provide, for the Support Fees specified in Section 11.2 of this Agreement,
new releases, maintenance releases and patches to the Development and
Demonstration Licenses .
6.2 Training. BOI shall provide training for VAR employees according to
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the terms, and for the fees, established for VARs by BOI, from time to time.
7. OWNERSHIP OF PRODUCTS AND DOCUMENTATION
7.1 Ownership of BOI Products and BOI Documentation. BOI owns all right,
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title and interest in and to the BOI Products and the BOI Documentation,
including without limitation, all copyrights, trade secrets, patents, trademark
rights and other intellectual property rights in and to the BOI Products, except
for the limited rights licensed to VAR pursuant to Sections 2, 3 and 4 of this
Agreement. Upon any termination of this Agreement or the licenses granted in
Section 2, 3 or 4 of this Agreement, all rights of VAR to use, market or
distribute the BOI Products and the BOI Documentation shall also terminate.
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7.2 Ownership of VAR Products and VAR Documentation. VAR owns all right,
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title and interest in and to the VAR Products and the VAR Documentation,
including without limitation, all copyrights, trade secrets, patents, trademark
rights and other intellectual property rights in and to the VAR Products.
7.3 Ownership of Other Materials. All other aspects of the BOI Products,
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the BOI Documentation and all other items licensed by BOI hereunder, including
without limitation, programs, methods of processing, specific designs and
structure of individual programs and their interaction and unique programming
techniques employed therein as well as screen formats shall remain the sole and
exclusive property of BOI and shall not be sold, revealed, disclosed or
otherwise communicated, directly or indirectly, by VAR to any person, company or
institution whatsoever other than for the purposes set forth herein.
8. WARRANTIES
8.1 Limited Warranty. BOI warrants that the BOI Products, when properly
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used, will operate in all material respects in conformity with BOI published
specifications for such version for so long as VAR shall purchase Support from
BOI in accordance with the terms of Section 11 of this Agreement. BOI does not
warrant that the BOI Products work or perform satisfactorily with any VAR
Products or that the VAR Products will work or perform satisfactorily. The
medium on which the BOI Products are delivered to VAR is warranted against
defects for a period of 90 days from the original date of invoice. If the medium
is defective, return it within the warranty period, and BOI will replace it at
no charge. BOI's obligations under this warranty are limited to replacing or
repairing at BOI's option, the initial copy of the BOI Products delivered to VAR
and which shall be returned to BOI, transportation charges prepaid, and which
are, after examination, disclosed to BOI's satisfaction to be defective. This
warranty shall not apply to any BOI Products that have been altered or repaired,
except by BOI, or which have been subject to misuse, negligence or accident.
8.2 Customer Warranty. VAR agrees not to make any representations or
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warranties with respect to the BOI Products which exceed the limited warranties
made by BOI under this Agreement absent BOI's prior written consent.
8.3 Disclaimer of Warranties. OTHER THAN THOSE WARRANTIES SET FORTH IN
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PARAGRAPHS 8.1 AND 8.2, BOI SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESSED OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE BOI PRODUCTS AND THE
VAR PRODUCTS.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL BOI BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT
LIMITATION,LOSS OF DATA, LOSS OF PROFITS, COST OF COVER OR OTHER SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM OR IN RELATION TO
THIS AGREEMENT OR THE USE OF THE BOI PRODUCTS OR THE VAR PRODUCTS, HOWEVER
CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF
BOI HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. VAR HEREBY
ACKNOWLEDGES THAT THE MUTUAL COVENANTS AND AGREEMENTS SET FORTH IN THIS
AGREEMENT REFLECT THIS ALLOCATION OF RISK.
10. INDEMNIFICATION
10.1 Indemnification by BOI. Subject to Section 9 of this Agreement, BOI
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shall indemnify, defend and hold VAR harmless from any claims, demands,
liabilities, losses, damages, judgments or settlements, including all reasonable
costs and expenses related thereto including attorneys' fees, directly or
indirectly resulting from any claimed infringement or violation by BOI of any
copyright, patent or other intellectual property right with respect to the
Developer Programs, so long as the BOI Products are used in accordance with the
BOI Documentation and VAR has adhered to its obligations under this Agreement;
provided, that the foregoing notwithstanding, BOI's obligation to indemnify
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shall not pertain to the extent that the infringement or violation is
attributable to any misuse, modification or use of the BOI Products or the BOI
Documentation by VAR or by the combination of a BOI Product or the BOI
Documentation with a VAR Program or VAR Documentation, respectively.
10.2 Indemnification by VAR. VAR shall indemnify, defend and hold BOI
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harmless from any claims, demands, liabilities, losses, damages, judgments or
settlements, including all reasonable costs and expenses related thereto
including attorneys' fees, directly or indirectly resulting from any claimed
infringement or violation by VAR of any copyright, patent or other intellectual
property right with respect to any VAR Product or to a VAR Product used in
conjunction with a BOI
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Product, except to the extent such infringement or violation is attributable
solely to a BOI Product.
10.3 Cooperation by Indemnified Party. Notwithstanding Sections 10.1 and
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10.2 of this Agreement, the indemnifying party is under no obligation to
indemnify and hold the other party harmless unless: (a) the indemnifying party
receives notice of the suit or claim from the indemnified party and is furnished
with a copy of each communication,notice or other action relating to said claim
within ten (10) days after the indemnified party receives such notice and each
such communication; (b) the indemnifying party shall have the right to assume
sole authority to conduct the trial or settlement of such claim or any
negotiations related thereto at the party's own expense; and (c) the indemnified
party shall provide reasonable information and assistance requested by the
indemnifying party in connection with such claim or suit.
11. LICENSE AND SUPPORT FEES; PAYMENT TERMS
11.1 Development and Demonstration License Fees. VAR agrees to pay BOI
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the Development and Demonstration License Fees specified on Exhibit C hereto for
the Initial Development and Demonstration Licenses outlined on Exhibit C. VAR
shall have the right to acquire and use additional BOI Products for development
and demonstration purposes for the fees outlined on Exhibit D.
11.2 Initial and Subsequent Development Support Fees. VAR agrees to pay
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BOI a Support Fee, as outlined in Exhibit D, for each Development and
Demonstration License, which shall pay for support during the Support Period in
accordance with Sections 5.7 and 6.1 of this Agreement. In addition, VAR agrees
to pay an Additional Support Fee on the commencement date of each Additional
Support Period, in accordance with Support Fees established for VARs in effect
at the time, which BOI may change from time to time, which shall pay for support
during the Additional Support Period in accordance with Sections 5.7 and 6.1 of
this Agreement.
11.3 Sublicense License Fees. VAR agrees to pay BOI a Sublicense License
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Fee for each copy of each BOI Product sublicensed to an end user equal to the
list price of such BOI Product in effect on the date of such sublicense less the
applicable discount percentage specified on Exhibit D hereto.
11.4 End-User Support. A Support Fee, outlined in Exhibit D, will be
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added to the price of each BOI Product sublicensed by VAR, providing VAR with
the right to provide new releases, maintenance releases and patches to
Sublicensees for no charge for a period of one year. During subsequent years,
the Support Fee will be optional.
11.5 General Payment Terms. All fees payable hereunder shall be paid to
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BOI within thirty (30) days of invoice date. All payments made shall be in
United States currency and shall be made without deductions based on any taxes
or withholdings. The fees listed in this Agreement do not include taxes. If BOI
is required to pay sales, use,property, value-added or other federal, state or
local taxes based on the licenses granted under this Agreement, or the
sublicenses granted by VAR to end users, then such taxes shall be billed and
paid by VAR this shall not apply to taxes based upon BOI's income.
12. TERM, TERMINATION AND EFFECT OF TERMINATION
12.1 Term. This Agreement shall commence on the Effective Date and shall
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continue in full force and effect for three years unless terminated earlier
under the provisions of this Section 12. Thereafter, this Agreement shall
automatically renew for subsequent one year terms, unless terminated by either
party upon written notice to the other party at least thirty (30) days prior to
the end of the then current term.
12.2 Termination for Convenience, Change of Control. In addition to the
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foregoing, this Agreement may be terminated (i) by mutual written consent of
both parties or (ii) at the option of BOI, upon any majority change in ownership
or control of VAR.
12.3 Termination Upon Insolvency. This Agreement shall terminate,
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effective upon delivery of written notice by a party, (i) upon the institution
of insolvency, receivership or bankruptcy proceedings or any other proceedings
for the settlement of debts of the other party, (ii) upon the making of an
assignment for the benefit of creditors by the other party, or (iii) upon the
dissolution of the other party.
12.4 Termination Upon Default. Either party may terminate this Agreement
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in the event that the other party materially defaults in performing any
obligation under this Agreement and such default continues unremedied for a
period of thirty (30) days following written notice of default.
12.5 Survival of Certain Terms. The provisions of Sections 2, 4, 6, 8, 9,
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10, 11.5 and 12 shall survive termination of this Agreement. All other rights
and
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obligations of the parties shall cease upon termination of this Agreement.
12.6 Damages. NEITHER BOI NOR VAR SHALL BE LIABLE TO THE OTHER FOR
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DAMAGES OF ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT
OF THE TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION 12. VAR
WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS
ONTERMINATION OF THIS AGREEMENT, OTHER THAN AS EXPRESSLY PROVIDED IN THIS
AGREEMENT.
12.7 Effect of Termination (Termination of Licenses and Return of
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Materials). Upon termination of this Agreement for any reason, including the
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failure of VAR, in the opinion of BOI, to comply with any of VAR's obligations
under Section 5 of this Agreement, VAR shall immediately: (i) if a license
granted under this Agreement expires or otherwise terminates, cease all use of
the BOI Products and the BOI Documentation and promptly return all related
copies of BOI Product and BOI Documentation to BOI; (ii) cease all marketing and
distribution of the BOI Products and the BOI Documentation; (iii) cease all
display and advertising of all BOI Products and all BOI Trademarks and logos
associated therewith; (iv) cease using any and all materials identifying VAR
with BOI and the BOI Products; (v) promptly return all marketing literature,
written information and reports pertaining to the BOI Products; and (vi) return
to BOI any and all Confidential Information, as defined in Section 13 of this
Agreement.
13. CONFIDENTIAL INFORMATION
Except for the specific rights granted by this Agreement, neither party
shall use or disclose any Confidential Information of the other party. A party
receiving Confidential Information from the other shall use the highest
commercially reasonable degree of care to protect that Confidential Information.
The BOI Products including methods or concepts utilized therein, the BOI
Documentation and all information identified by the disclosing party as
proprietary or confidential ("Confidential Information"), shall remain the sole
property of the disclosing party and shall not be disclosed to any third party
without the express written consent of the disclosing party (except solely for
each party's internal business needs, to employees or consultants who are bound
by a written agreement with such party to maintain the confidentiality of such
Confidential Information in a manner consistent with this Agreement). Items will
not be considered to be Confidential Information if (i) available to the public
other than by a breach of an agreement with BOI; (ii) rightfully received from a
third party not in breach of an obligation of confidentiality; (iii)
independently developed by one party without access to the Confidential
information of the other; (iv) known to the recipient at the time of disclosure;
or (v) produced in compliance with applicable law or a court order, provided the
other party is given reasonable notice of such law or order and an opportunity
to attempt to preclude or limit such production.
14. MISCELLANEOUS
14.1 Notices. Any notice required or permitted hereunder shall be in
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writing and shall be given by registered or certified mail addressed as follows:
If to BOI:
Business Objects, Inc.
00000 Xxxxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to VAR, at the address and the fax number listed on Schedule 1 hereto.
Such notice shall be deemed to be given upon the earlier of actual receipt
or three (3) days after it has been sent, properly addressed and with postage
prepaid. Either party may change its address for notice by means of notice to
the other party given in accordance with this Section.
14.2 Assignment. This Agreement may not be transferred or assigned, in
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whole or in party, by either party either voluntarily or by operation of law,
and any attempt to do so shall be a material default of this Agreement and shall
be void.
14.3 Governing Law. This Agreement shall be interpreted according to the
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laws of the State of California without regard to or application of choice-of-
law rules or principles.
14.4 Entire Agreement and Waiver. This Agreement and the Exhibits hereto
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shall constitute the entire agreement between BOI and VAR with respect to the
subject matter hereof and all prior agreements, representations, and statement
with respect to such subject matter are superseded hereby. This Agreement may be
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changed only by written agreement signed by both BOI and VAR. No failure of
either party to exercise or enforce any of its rights under this Agreement shall
act as a waiver of subsequent breaches; and the waiver of any breach shall not
act as a waiver of subsequent breaches.
14.5 Severability. In the event any provision of this Agreement is held
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by a court or other tribunal of competent jurisdiction to be unenforceable, that
provision will be enforced to the maximum extent permissible under applicable
law, and the other provisions of this Agreement will remain in full force and
effect.
14.6 Headings. The headings of the sections of this Agreement are for
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convenience and shall not by themselves determine the interpretation of this
Agreement.
14.7 Counterparts. This Agreement may be signed in counterparts, each of
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which shall be deemed an original, but which together will constitute one and
the same instrument.
Business Objects, Inc. VAR
By: /s/ Xxxxxx XxXxxx By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxxxx XxXxxx Name: Xxxx X. Xxxxxxx
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Title: President Title: President and CEO
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Date: 4/16/96 Date: 3/25/96
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SCHEDULE 1
Vertical Application Reseller
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Name: Aurum Software
Address:
0000 Xxxxx Xxxxxxxxx
Xxxxx Xxxxx, XX 00000
Telephone Number:
000-000-0000
Fax Number:
000-000-0000
Contacts
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1. Xxxxx Xxxxxxxx
2. Xxxxx Xxxxxx
Territory: Worldwide
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ADDENDUM
TO VERTICAL APPLICATION RESELLER AGREEMENT
Replace Section 3.1 (f), in its entirety, with the following:
"(f) sublicense, assign or otherwise transfer its rights under this Section 3,
except that VAR may authorize VAR's distributors of VAR Products to sublicense
BOI Products according to the terms of this Agreement. VAR Distributors are not
to be granted any additional rights regarding the BOI Products and Documentation
beyond those granted to VAR in this Agreement. VAR shall be responsible for
Distributors' compliance with the obligations and restrictions imposed upon VAR
under this Agreement;"
In Section 5.10, delete both occurrences of "a VAR Product or"
Replace Section 12.2, in its entirety, with the following:
12.2 Termination for Convenience, Change of Control. In addition to the
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foregoing, this Agreement may be terminated (i) by mutual written consent of
both parties.
Replace, in Section 12.1, "three years" to "four years"
Replace Section 12.6, in its entirety, with the following:
12.6 Damages. NEITHER BOI NOR VAR SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF
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ANY KIND, INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE
TERMINATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION 12, OTHER THAN IN
ACCORDANCE WITH SECTION 12.4. VAR WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY
COMPENSATION OR REPARATIONS ON TERMINATION OF THIS AGREEMENT, OTHER THAN AS
EXPRESSLY PROVIDED IN THIS AGREEMENT.
Replace, in Section 12.7, "in this opinion", with "in the reasonable opinion"
Delete "other than by a breach of an agreement with BOI" in Section 13.
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EXHIBIT A
BOI PRODUCTS
Business Objects Products for Windows, Macintosh, and UNIX Platforms
Manager's Module
User's Module
Batch Option
Procedures Option
Business Analyzer
Database Drivers for Windows, Macintosh and UNIX Platforms
Oracle Driver
Sybase Driver
Ingres Driver
Informix Driver
DEC Rdb Driver
Micro Decisionware Driver
Red Brick Warehouse Driver
Teradata Driver
ODBC Driver
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EXHIBIT B
VAR PRODUCTS
SalesTrack
SupporTrack
TeleTrack
QualityTrack
WebTrack
Additional VAR Products may be added upon mutual agreement, in writing, at any
time. Such agreement shall not be unreasonably withheld.
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EXHIBIT C
INITIAL
DEVELOPMENT AND DEMONSTRATION LICENSE
AND SUBLICENSE LICENSE SPECIFICATIONS
-------------------------------------
See attached Purchase Order for initial development license and sublicense
purchases.
BOI grants to VAR a license to demonstrate BOI products in conjunction with VAR
Products at VAR's Demonstration centers and by VAR's sales professionals.
INITIAL
DEVELOPMENT AND DEMONSTRATION LICENSE,
SUBLICENSE AND SUPPORT FEES
---------------------------
See attached Purchase Order for initial development license and sublicense
purchases.
There shall be no charge for the demonstration licenses granted above.
BOI shall provide VAR with a sales training course, on-site at VAR headquarters,
for sales personnel, not to exceed two days at no charge.
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EXHIBIT D
LICENSE AND SUBLICENSE FEES
---------------------------
Development and Demonstration License and Sublicense fees are calculated as a
discount of the then current BOI Price List. VAR shall receive the following
discounts:
Minimum initial non-refundable, non-returnable, non-cancelable purchase:
$154,713.25
VAR may exchange products previously licensed, dollar for dollar, for any then
currently available products.
Initial Discount: 60%
--------------------------------
Net Price to VAR for User Module is $100.00. BOI shall deliver master copy of
User Module and either camera ready documentation or electronic documentation,
as available, and not hardcopy documentation for User Module Licenses. VAR may
purchase User Module documentation at the then current list price.
International Uplifts:
An International uplift of 1.25 will be applied to all prices, including the
$100.00 User Module.
Large Deals:
BOI agrees to discuss special pricing for VAR deals to individual customers that
exceed 1,000 users.
SUPPORT FEES
------------
17.5% of the net License and Sublicense Fees paid to BOI for Manager Modules.
12% of the net License Sublicense Fee paid to BOI for all other products other
than Manager Modules. Sublicense Support Fees shall be due with Sublicense
Report delivered each quarter per Section 5.8.
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