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Exhibit 10.15 - OEM License Agreement
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IMP COMPUTER SERVICES, INC.
OEM LICENSE AGREEMENT
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This Agreement is made as of June 28, 1996 (the "Effective Date") between
Seagate Software Information Management Group, Inc. ("IMG"), a British Columbia,
Canada, corporation, and Opis Corporation ("OEM"), an Iowa corporation, with
reference to the following facts.
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A. IMG has developed and is the owner of certain report writing and related
software products. OEM is a manufacturer and/or reseller of certain
computer hardware and/or software products.
B. OEM wishes to obtain from IMG the right to market and distribute IMG's
software products with OEM's products, on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
1.1. "Bundled Products" shall mean combinations of copies of IMG Products
and OEM Products sold to customers as single packages.
1.2. "IMG Products" shall mean, collectively, the software programs
identified in Exhibit A attached hereto, along with the
Documentation, if applicable, as well as an y modifications,
enhancements, and derivative works thereof as may be provided by IMG
or produced by OEM under the terms of this Agreement.
1.3. "Documentation" shall mean the user manuals, instructions, and other
written materials made available by IMG in printed or electronic
format to assist in the use of the IMG Products.
1.4. "End User License" shall mean a license agreement between OEM and
any end user to whom OEM sublicenses any IMG Products.
1.5. "Master Copy" shall mean an original copy of a IMG Product on
appropriate media for use by OEM for internal purposes only in
accordance with the terms hereof.
1.6. "OEM Products" shall mean the computer hardware and/or software
products which are identified on Exhibit B attached hereto.
1.7. "Prepackaged Copy" shall mean a copy of a IMG Product which is
packaged by IMG before delivery to OEM, for resale by OEM in
accordance with the terms hereof.
1.8. "Trademarks" includes IMG's trademarks, service marks, tradenames,
and service names.
2. GRANT OF RIGHTS
2.1. Grant of License. Subject to the terms and conditions of this
Agreement, IMG hereby grants OEM during the term of this Agreement a
nonexclusive, nontransferable, worldwide limited license to
reproduce, market, distribute and sublicense IMG Products to OEM's
customers, but only in accordance with the terms herein.
2.2. OEM Election.
(a) OEM shall elect, by purchase order or other written notice to
IMG, whether to exercise its rights hereunder by using a
Master Copy, or by distributing Prepackaged Copies, or by some
specified combination of both such means.
(b) If OEM elects to use a Master Copy, IMG shall deliver a Master
Copy to OEM for each IMG Product as to which a Master Copy is
ordered. OEM shall safeguard all Master Copies and may use
them only to reproduce IMG Products at locations approved by
IMG in writing, for resale in accordance herewith. OEM shall
package all such copies made from Master Copies, with such
Documentation, IMG's form of end user license agreement per
Exhibit C, and/or other IMG materials and Trademarks,
according to such requirements as IMG may prescribe.
(c) If OEM elects to distribute Prepackaged Copies, IMG shall sell
and deliver such Copies to OEM for resale herein. OEM may not
open, modify, or reproduce any Prepackaged Copy or its
contents, including without limitation IMG's end user license
and registration card included in each package.
2.3. Bundled Products. OEM may market, distribute and sublicense IMG
Products ONLY (1) as part of Bundled Products, or (2) directly to
existing registered end users of OEM Products. The Sublicenses
granted under this agreement limit the sublicensee to use of the IMG
Products only with OEM products and the data related specifically to
the Bundled Products. OEM shall cause all distributors, resellers,
and others to whom it sells Bundled Products (other than end users)
to distribute and resell them only as Bundled Products.
2.4. Ownership of Software. OEM acknowledges that the software programs
embodied in the IMG Products are
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and shall remain the sole and exclusive property of IMG.
3. GENERAL OBLIGATIONS OF OEM
3.1. End User Licenses. As to each IMG Product which OEM markets,
distributes or sublicenses, OEM shall secure the end user's consent
to an End User License which provides that the end user
("Sublicensee") may use the IMG Products only under license terms
and conditions which include, at a minimum those set forth in
Exhibit C attached hereto.
3.2. IMG's Trademarks. Except to any extent which may be expressly
authorized under terms set forth in Exhibit D hereto, OEM shall not
delete or in any manner alter the Trademarks or other intellectual
property rights notices of IMG and IMG's suppliers, if any appearing
on the IMG Products as delivered to OEM. As a condition of the
license rights granted to OEM in this Agreement, OEM shall reproduce
and display such Trademarks and notices on each copy of IMG
Products. If OEM adopts and uses its own trademarks to identify the
Bundled Products, it shall state in all marketing, advertising, and
packaging materials that the IMG Products are the technology of IMG.
OEM shall cooperate fully with IMG in the defense and protection of
the Trademarks, and shall promptly advise IMG of the use of any xxxx
infringing any of the Trademarks.
3.3. Marketing. OEM shall make no representations or warranties
concerning the IMG Products, except as IMG may itself provide or
approve in writing.
3.4. OEM's Business Practices. OEM shall (a) comply with all applicable
laws and regulations, (b) avoid deceptive, misleading or unethical
practices.
4. PAYMENTS, DELIVERY, TAXES
4.1. Orders, Payments and Payment Terms. OEM shall order IMG Products
according to IMG's standard procedures, and shall pay IMG the
payments and fees, on the terms and conditions, set forth in Exhibit
E.
4.2. Taxes and Costs. All amounts payable hereunder are exclusive of all
sales, use value-added, withholding and other taxes and duties. OEM
shall pay all shipping and transportation charges, taxes, duties and
other fees imposed on product purchases and sales hereunder. In the
event IMG pays any such amounts, OEM shall reimburse IMG and they
shall be added to the invoiced amounts as separate charges.
5. REPORTS AND AUDITS
5.1. Payment Reports. Within 20 days after the close of each calendar
quarter, OEM will deliver to IMG a report (the "Quarter Report")
which will provide all information reasonably required by IMG for
computation and/or confirmation of the payments, if any, due or
credited to IMG for such quarter.
5.2. Audits. During the term of this Agreement and for one (1) year after
termination or expiration, OEM will maintain complete records
regarding its distribution and sublicensing of the IMG Products to
each of its customers. Upon reasonable notice to OEM IMG may audit,
at IMG's expense, OEM's books and records to determine its
compliance hereunder. In the event any such audit reveals that OEM
has underpaid IMG by an amount greater than 5% of the amounts due
IMG in the period being audited, or that OEM has knowingly breached
any material obligation hereunder, then, in addition to such other
remedies as IMG may have, OEM shall pay or reimburse to IMG the cost
of the audit.
6. MAINTENANCE SUPPORT
6.1. Customer Support By OEM. OEM will provide direct first level
technical support for IMG Products to end users acquiring them from
OEM or OEM's customers. OEM's support will include, but not
necessarily be limited to answering product use questions,
diagnosing problems, and using reasonable efforts to provide
solutions to problems.
6.2. IMG's Support. OEM will designate one of its employees as its
technical contact person, to whom IMG will provide technical support
for IMG Products by telephone free of charge, provided that OEM has
during the preceding 12-month period paid royalties and fees to IMG
in an amount equal to or greater than the minimum fee amount set
forth in Exhibit E. If OEM has not met the minimum fee amount, then
OEM shall pay IMG for any technical support at the rate of $150 per
hour.
7. REPRESENTATIONS AND WARRANTIES
7.1. OEM Warranties. OEM represents and warrants that: (a) OEM has the
unrestricted right and authority to enter into and perform this
Agreement, (b) no consent of any other person or entity is needed to
market and distribute the OEM Products, in combination with the IMG
Products, as contemplated hereunder, and (c) its combination of the
IMG Products and the OEM Products in a Bundled Product does not and
will not violate any applicable laws, including without limitation
any applicable competition or antitrust laws.
7.2. IMG Limited Warranties. IMG warrants to OEM that during the 90 days
following the delivery of any Master Copy to OEM or the delivery of
any Prepackaged Copy to an end user, as applicable: (a) the IMG
Products will perform substantially in accordance with IMG's
applicable product documentation in all material respects; and (b)
the storage media containing the IMG Products will be free from
defects in materials and workmanship. In the event the IMG Products
or storage media fail to conform to such warranty, as OEM's sole and
exclusive remedy for such failure IMG will, at IMG's option and
without charge to OEM, repair or replace such IMG Products or
storage media, provided the nonconforming item is returned to IMG
within such warranty period.
7.3. DISCLAIMER. EXCEPT AS SET FORTH IN WRITING IN THIS AGREEMENT, IMG
MAKES NO PERFORMANCE REPRESENTATIONS,
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WARRANTIES, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, WITH RESPECT TO THE IMG PRODUCTS AND ANY SERVICES COVERED
BY OR FURNISHED PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY (A) OF MERCHANTABILITY, (B) OF
FITNESS FOR A PARTICULAR PURPOSE, OR (C) ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
8. IMG'S INTELLECTUAL PROPERTY
8.1. Limited Rights. OEM shall not acquire any right to any of IMG's
Trademarks, or its copyrights, patents, trade secrets, commercial
symbols, goodwill, or other form of its intellectual or commercial
property. OEM shall not use IMG's Trademarks in any manner, except
only to identify the IMG Products and to identify itself as an
authorized distributor of IMG, in a form prescribed or approved from
time to time by IMG in writing. IMG may from time to time
discontinue or modify its Trademarks, add new Trademarks, and revise
these instructions, to protect the standards of quality established
for IMG's goods and services marketed and/or licensed under its
Trademarks.
8.2. Protection of Trademarks. IMG shall have sole and exclusive right to
protect and defend the Trademarks, at its sole cost and expense. IMG
shall not be liable to OEM for any loss of damage suffered by OEM as
a result of the use of the expense. IMG shall not be liable to OEM
for any loss or damage suffered by OEM as a result of the use of the
Trademarks, any litigation or proceeding involving the Trademarks,
or any failure by IMG to protect or defend the Trademarks.
8.3. Modifications. Except as may be expressly provided in Exhibit D
hereto, OEM shall not copy, modify, enhance, or make derivative
works of the IMG Products. However, in no event shall OEM remove or
alter the provision for an electronic registration capture screen
which will appear when any end user first accesses the IMG Products.
Provisions will be made to have the software pre-registered with
Opis. Any copies, modifications, enhancements and derivative works
shall belong to IMG and OEM hereby assigns all rights to them
(including moral rights) to IMG.
8.4. Reverse Engineering, Source Code. OEM shall not reverse engineer or
decompile any IMG Products.
8.5. Confidential Information.
(a) As used herein, "Confidential Information" shall mean all
information concerning either party (the "disclosing party")
to which the other party (the "receiving party") is provided
access by virtue of this Agreement or its activities
hereunder, including without limitation source code, technical
data, sales information, quantity and kind of IMG Products or
OEM Products marketed or sold, prices and methods of pricing,
marketing techniques and plans, returns, unannounced products,
product and process information, and such other information
which, if disclosed to others, might be competitively
detrimental to the disclosing party. Confidential Information
shall not include any information which has been publicly
disseminated in writing by the disclosing party, which the
receiving party can show it knew prior to the disclosing
party's disclosure hereunder, or which is rightfully received
by the receiving party from a third party without restriction.
(b) During the term hereof and at all times thereafter, the
receiving party shall maintain the Confidential Information of
the disclosing party in strictest confidence, shall not
disclose it to any third party, and shall use it only as
necessary to perform hereunder. The receiving party shall
cause each of its officers, directors, employees, and agents
to restrict disclosure and use of such Confidential
Information in like fashion, and shall be responsible for any
wrongful disclosure or use by any of them.
(c) In the event any court or other authority orders the receiving
party to disclose any Confidential Information of the
disclosing party, the receiving party shall use its best
efforts to protect its confidentiality and shall forthwith
notify the disclosing party thereof to enable it to do
likewise. At the termination of this Agreement, the receiving
party shall promptly return all tangible Confidential
Information to the disclosing party.
9. INDEMNIFICATION
9.1. Infringement Claims. If an action is brought against OEM claiming
that IMG Products or any part thereof infringes any Canadian or
United States patent, copyright or trade secret rights of a third
party, IMG shall defend OEM at IMG's expense and shall pay the
damages and costs finally awarded against OEM in the action, but
only if (a) OEM notifies IMG promptly upon learning that the claim
might be asserted, (b) IMG has sole control over the defense of the
claim and any negotiation for its settlement or compromise, and (c)
OEM takes no action that, in IMG's reasonable judgment, impairs
IMG's defense of the claim.
9.2. IMG's Options. If OEM's use of any IMG Products is enjoined, or if
IMG wishes to minimize its liability hereunder, IMG may, at its
option and expense, and as a complete remedy to OEM, either (a)
substitute equivalent non-infringing software for the infringing
item, (b) modify the infringing item so that it no longer infringes
but remains functionally equivalent, (c) obtain for OEM the right to
continue marketing and sublicensing such item, or (d) if none of the
foregoing is reasonably feasible, accept a return of the IMG
Products which are subject to the injunction and refund to OEM the
amounts paid by OEM to IMG with respect to those copies which are
returned, less reasonable depreciation, plus shipping costs paid by
OEM. The
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indemnity in Section 9.1 will not apply if and to the extent that
the infringement claim results from (a) a correction or modification
of the IMG Products not provided by IMG, (b) a failure to promptly
install an update provided by IMG, or (c) the combination of the IMG
Products with other software not provided by IMG.
9.3. LIMIT. THE FOREGOING STATES THE ENTIRE LIABILITY AND OBLIGATION OF
IMG WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT, BY THE
IMG PRODUCTS, OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER
INTELLECTUAL PROPERTY RIGHT.
9.4. Indemnification by OEM. OEM shall defend, indemnify and hold IMG and
its affiliated companies harmless from any and all claims by any
other party (including reasonable attorneys' fees and costs of
litigation) resulting from OEM's own breaches, acts, omissions or
misrepresentations, including but not limited to OEM's combining (or
its authorizing others to combine) the IMG Products with any
products not provided by IMG.
10. LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN SECTION 9, THE LIABILITY
OF IMG AND ITS AFFILIATED ENTITIES UNDER THIS AGREEMENT TO OEM, REGARDLESS
OF THE BASIS OF LIABILITY OR THE FORM OF ACTION, SHALL IN NO EVENT EXCEED
THE TOTAL AMOUNTS PAID TO IMG BY OEM, NET OF ALL DISCOUNTS, REBATES, AND
REFUNDS, FOR THE IMG PRODUCTS DIRECTLY CAUSING THE LIABILITY. IN NO EVENT
SHALL IMG OR ITS AFFILIATED ENTITIES BE LIABLE FOR COSTS OF PROCUREMENT OF
SUBSTITUTE GOODS BY ANYONE, OR FOR INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL, OR OTHER DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF
CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT IMG HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE ESSENTIAL PURPOSE OF THIS SECTION
IS TO LIMIT THE POTENTIAL LIABILITY OF IMG AND ITS AFFILIATED ENTITIES
ARISING OUT OF THIS AGREEMENT.
11. TERM AND TERMINATION
11.1. Term. The term of this Agreement shall commence on the Effective
Date hereof and shall expire two years thereafter unless sooner
terminated in accordance herewith.
11.2. Minimum Fees. IMG may terminate this Agreement on written notice to
OEM if OEM fails for any reason, including any reason out of its
reasonable control, to pay the minimum annual fees specified in
Exhibit E.
11.3. Payment Breach. Except as otherwise provided herein, IMG may
terminate this Agreement prior to its expiration in the even OEM
fails to cure any breach of a payment obligation hereunder within 10
days after written notice from IMG describing the breach.
11.4. Termination Cause. Either party may terminate this Agreement at any
time if (a) a receiver is appointed for the other party or its
property, (b) the other party makes an assignment for the benefit of
its creditors, (c) proceedings are commenced by or for the other
party liquidates or dissolves or attempts to do so, (e) the other
party assigns or purports to assign this Agreement in breach of its
provisions, or (f) the other party commits any other breach of a
material obligation hereunder which it fails to cure within 20 days
of written notice or which is by its nature incurable.
11.5. Obligations on Termination. Termination of this Agreement will not
relieve either party from fulfilling its obligations which by their
terms or nature survive termination. Upon termination of this
Agreement for any reason: (a) OEM shall immediately cease using and
shall deliver to IMG, any unused sales literature and other written
information and materials supplied by IMG pursuant to this Agreement
or which contain IMG's Trademarks; (b) OEM shall immediately cease
to identify itself as an authorized distributor for IMG or otherwise
affiliated in any manner with IMG; and (c) IMG shall have the
option, but not the obligation, in its discretion, to reacquire from
OEM all or part of the IMG Products and Documentation, including
translated versions, which are then held on OEM in inventory and are
not committed to sales. IMG shall exercise such option by written
notice to OEM within 30 days after termination. IMG shall pay for
such IMG Products at the prices originally paid by OEM in acquiring
them from IMG.
12. MISCELLANEOUS
12.1. Assignment. This Agreement may be assigned by IMG to any entity
which assumes its obligations and acquires ownership of or the right
to use and license the IMG Products. This Agreement has been entered
into by IMG in reliance upon the reputation of OEM and its
management, and accordingly may not be assigned or encumbered by OEM
without IMG's prior written consent, not unreasonably withheld. Due
to the importance of OEM's ownership and management, the sale,
transfer or assignment of 50% or more of OEM's capital stock,
partnership interests, or voting rights shall be deemed an
assignment of this Agreement.
12.2. Independent Contractors. The relationship of IMG and OEM established
by this Agreement is that of independent contractors.
12.3. Entire Agreement. This Agreement constitutes the entire agreement
of the parties and supersedes any prior and contemporaneous oral or
written understanding as to the subject matter hereof. Each party
acknowledges that it is entering into this Agreement as a result of
its own independent investigation and not as a result of any
representation of the other party not contained herein.
12.4. Amendments; Waivers. This Agreement may be modified only by a
writing signed by the party to be charged. A waiver of any provision
or breach is no waiver of any other provision or breach.
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12.5. Force Majeure. Except as otherwise provided in Section 11.2, neither
party shall be liable to the other for its failure to perform any of
its obligations hereunder during any period in which such
performance is delayed by circumstances beyond its reasonable
control including, but not limited to earthquake, fire, flood, war,
embargo, strike, riot, or the intervention of any governmental
authority.
12.6. Import and Export Controls. OEM shall comply with all applicable
laws, including export, re-export and foreign policy controls and
restrictions which may be imposed by the Canadian or United States
government. OEM shall take all necessary actions and precautions to
ensure that its customers do not contravene such Canadian or U.S.
laws or regulations.
12.7. Publicity. The terms of this Agreement are confidential. No press
release or other like publicity regarding this Agreement may be made
without the other party's approval.
12.8. Notices. All notices and other communications hereunder shall be
given in writing and delivered (a) by personal delivery, by prepaid
overnight or courier service to the addresses set forth herein, or
(b) by facsimile to such facsimile number as may be provided in
writing by a party. Notices are deemed given on receipt or attempted
delivery (if receipt is refused).
12.9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard
to its conflicts of laws rules.
12.10. Dispute Resolution.
(a) Except as otherwise provided below, any controversy or claim
arising out of or relating to this Agreement shall be
submitted to final and binding arbitration in San Francisco,
California, in accordance with the commercial rules of the
American Arbitration Association ("AAA"). The arbitration
shall be before a single arbitrator, except that in the event
the amount in controversy exceeds $100,000 the arbitration
shall be before three (3) arbitrators and the decision of any
two of them shall be binding. If not mutually agreed upon, the
arbitrator(s) shall be selected according to AAA rules from a
list, prepared by the AAA, of persons having expertise in the
subject matter. Judgment upon the award may be entered in any
court having jurisdiction thereof. This provision is
self-executing, and in the event that either party fails to
appear at any properly noticed arbitration proceeding, an
award may be entered against such party notwithstanding said
failure to appear.
(b) Notwithstanding the foregoing: (1) any claim relating to any
of the parties' confidential information, the Trademarks, or
other proprietary technology or intellectual property shall
not be determined by arbitration, but only by a court located
in San Francisco, California to whose jurisdiction the parties
hereby consent; and (2) each party acknowledges that any
breach of its obligations under this Agreement with respect to
the proprietary rights or confidential information of the
other party will cause the other party irreparable harm, and
therefore the non-breaching party will be entitled to
equitable relief in addition to all other remedies provided by
this Agreement or available at law or in equity, in any court
of competent jurisdiction.
12.11. Attorney's Fees. In the event of any litigation or arbitration hereunder,
the arbitration or court shall award costs and reasonable attorney's fees
to the prevailing party.
12.12. Severability. The terms of this Agreement are severable. If any term
hereof is held invalid, illegal, or unenforceable for any reason
whatsoever, such term shall be enforced to the fullest extent permitted by
applicable law, and the validity, legality, and enforceability of the
remaining terms shall not in any way be affected or impaired thereby.
SEAGATE SOFTWARE INFORMATION OPIS CORPORATION
MANAGEMENT GROUP, INC.
0000 Xxxx Xxxxxx Xxxxxx, 0xx. Floor 0000 Xxxxxx Xxxxxx
Xxxxxxxxx, X.X. Xxx Xxxxxx, Xxxx
Xxxxxx X0X0X0 XXX 00000-0000
By: By:/s/ Xxxxxxx Xxxxxx
---------------------------------- -----------------------------------
Its: Its: President
---------------------------------- ----------------------------------
6/28/96
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EXHIBIT A
IMG PRODUCTS
1. Programs
English, French, German and Spanish language, when they become available,
custom-specific builds of:
Crystal Reports Version 4.5 for Windows (16-bit or 32-bit)
2. Documentation
English Language version of Crystal Reports User Manuals, in electronic
format
EXHIBIT B
OEM PRODUCTS
Opis Support Express
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EXHIBIT C
MINIMUM TERMS OF OEM END USER LICENSE
Each OEM End User License must contain the following minimum terms and
conditions applicable to IMG Products (modified as necessary for multi-copy
packages):
1. Only a personal, non-transferable and non-exclusive right to use the
executable version of the product on a single central processing unit is
granted to end user.
2. The license granted to the end user is further qualified, in that this
copy of IMG software may only be used with the third party product with
which it was provided. Accessing data that is not created by, or used by,
the third party product is in violation of this end user license.
3. End user will not copy the product except as necessary to use the OEM
system and for back-up and archival purposes.
4. Except as stated above, end user is not granted any right (whether by
license, ownership or otherwise) in or to any proprietary rights in the
product.
5. No title to the proprietary rights in the product or documentation is
transferred to end user.
6. End user will not transfer the product to a third party unless end user
transfers all copies of the product and ceases all use of the product, and
the transferee agrees to be bound by the terms and conditions imposed on
end user with respect to the product.
7. End user will not translate, reverse compile or disassemble the product.
8. End user will not remove, alter or destroy any form of copyright notice,
proprietary markings or confidential legends placed upon or contained
within the product.
9. End user will not export or re-export the product without the appropriate
United States or foreign government licenses.
10. End user is notified that IMG Computer Services, Inc., a British Columbia,
Canada, corporation ("IMG") is a third-party beneficiary to the end user
license to the extent it relates to use of the IMG product. Such
provisions are made expressly for the benefit of IMG and are enforceable
by both OEM and IMG.
11. IMG makes no warranty to end user of any kind with respect to the product,
express or implied, including without limitation, the implied warranties
of merchantability, fitness for a particular purpose and non-infringement
of third party rights.
12. If the produce is acquired under the terms of: (i) a DOD contract:
the Government's rights to use, modify, reproduce, release or disclose
the software or accompanying documentation are subject to the
restrictions set forth in this license agreement pursuant to DFARS
227.7202; (ii) a Civilian agency contract: the Government's rights to
use, modify, reproduce, release or disclose the software or
accompanying documentation are subject to the restrictions of
paragraphs (a)-(d) of the Commercial Computer Software--Restricted
Rights clause at FAR 52.227-19 and the restrictions set forth in this
license agreement.
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EXHIBIT D
PERMITTED MODIFICATIONS
OEM SHALL NOT ALTER IMG'S TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS
NOTICES APPEARING ON THE IMG PRODUCTS AS DELIVERED TO OEM, AND SHALL REPRODUCE
ALL SUCH TRADEMARKS AND NOTICES ON EACH COPY.
OEM SHALL NOT COPY, MODIFY, ENHANCE, OR MAKE DERIVATIVE WORKS OF THE IMG
PRODUCTS.
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EXHIBIT E
PAYMENT TERMS
1. APPLICABLE TO ALL AMOUNTS PAYABLE TO IMG UNDER THIS AGREEMENT: Amounts
shall be paid in U.S. dollars. Payments made under this Agreement after
their due date will incur interest at a rate equal to one percent (1%) per
month or the highest rate permitted by applicable law, whichever is lower.
2. MINIMUM ANNUAL FEES: As a condition of retaining its rights under this
Agreement, including without limitation its right to receive technical
support from IMG free of charge (as set forth in paragraph 6.2 of the
Agreement), OEM must pays fees (including royalties, but excluding One
Time Program Fee) to IMG in the minimum annual amount of US$25,000.
3. ONE TIME PROGRAM FEE: OEM agrees to pay IMG a one-time, non-refundable
license fee of US$32,600, $10,000 of which is due upon the Effective date
of this Agreement; $10,000 is due July 30, 1996 and $12,600 is due Sept.
30, 1996.
4. IN THE EVENT AND TO THE EXTENT THAT IMG PROVIDES CUSTOM MASTER COPIES FOR
REPRODUCTION OF IMG PRODUCTS, THE FOLLOWING TERMS AND CONDITIONS SHALL
APPLY:
(a) Initial Set-up Fee. For each set of Master Copy diskettes that IMG
produces and delivers for the OEM, OEM shall pay IMG $2,000 as a
set-up fee. Said payment shall be due and payable within 30 days of
IMG's shipment of the Master Copies.
(b) Further Set-up Fees.
(1) Unless otherwise specified herein, all Master Copies to be
provided shall be for English language versions. To the extent
available, OEM may request and IMG will produce additional
sets of master diskettes in other languages; for each such set
of Master Copy diskettes that IMG produces and delivers for
the OEM, OEM shall pay IMG $2000 as a set-up fee.
(2) If OEM is entitled to upgrades, for each upgrade of IMG
Products which IMG makes available to the public during the
term of this Agreement, OEM may request and IMG will produce a
set of Master Copies of the upgrade version for OEM. for each
such set of Master Copy diskettes that IMG produces and
delivers for the OEM, OEM shall pay IMG $2,000 as a set-up
fee.
(c) Royalties. For each copy of any IMG Product which OEM sells, OEM
shall pay IMG royalties in the amounts set forth below. If the
royalty amount is set forth as a percentage, the percentage shall be
applied to OEM's Net Revenues in connection with the IMG Products.
"Net Revenues", for the purpose of calculating royalties, means the
amounts invoiced to OEM's customers for Bundled Products. Royalty
payments shall be due on the 20th day after the close of the month
in which OEM delivered the copy of IMG Products to its customer.
5. IN THE EVENT AND TO THE EXTENT THAT IMG PROVIDES OEM WITH PREPACKAGED
COPIES OR OTHER FINISHED GOOD MATERIALS, THE FOLLOWING TERMS AND
CONDITIONS SHALL APPLY:
(a) Fees. OEM shall pay IMG license fees for all Prepackaged Copies
(which include royalties and prepackaged costs), in the amounts set
forth below. All such payments shall be due within 30 days from the
date of shipment by IMG.
(b) Costs. OEM shall pay all shipping and transportation charges, taxes,
and other fees imposed on Product sales hereunder. In the event IMG
pays any such amounts, OEM shall reimburse IMG and they shall be
added to the invoiced amounts as separate charges.
(c) Stock Balancing. During the term of this Agreement, IMG shall allow
stock balancing of up to 30% of OEM's total orders of IMG Products
on a calendar quarter basis, commencing with the first calendar
quarter following the effective date of this Agreement, but only if
OEM submits to IMG an order for IMG Products equal to or greater
than the value of the IMG Products being returned for credit. To
obtain such stock balancing, OEM (a) may submit only the stock
balancing request per calendar quarter, (b) shall submit such
request in writing at least 30 days in advance of OEM's proposed
stock return date, and (c) shall indicate on the stock balancing
request the identity and quantity of the inventory to be returned.
Stock returned for stock balancing credit may not have been acquired
from IMG more than 3 months before the date of the stock balancing
request, IMG, at its sole option, may amend or discontinue its stock
balancing program without notice.
FEES: ROYALTIES:
$45 per unit of Crystal Reports Professional v.4.5 sold
with Support Express.
$180 per unit of Crystal Reports Professional sold
without Support Express.
$0 per unit for the first 460 seats of Crystal
Reports Professional Upgrades.
Major version upgrades to Licensee's existing users of
the Report Writer at $100.
$150 per unit of French, German and Spanish versions of
Crystal Reports Professional (when they become
available) when sold with Support Express.
$125 per unit of French, German and Spanish upgrade
versions of Crystal Reports Professional (when they
become available).
10
PREPACKAGED COPIES (AT IMG'S CURRENT COST OF MATERIALS):
Costs as of 3/95: $7 per set of manuals (User's Guide and
Developer's Reference)
$4 per book
$15 diskettes and manuals
11
SEAGATE Software
ADDENDUM TO OEM LICENSE AGREEMENT
This Addendum to the OEM License Agreement is made and entered into this 25th
day of September, 1998, by and between Seagate Software Information Management
Group, Inc. (Seagate) and SalesLogix Corporation, successor-in-interest Opis
Corporation (OEM).
Whereas upon execution of this Addendum, Opis has assigned its rights under the
Agreement to SalesLogix and SalesLogix assumes and agrees to perform all of the
obligations of Opis under the Agreement;
Whereas Seagate and OEM entered into an OEM license agreement dated June 28,
1996 (the "Agreement"), the parties wish to amend the agreement as follows:
1. Section 11.1 (Term) of the Agreement shall be extended for an additional
term of two (2) years, expiring June 28, 2000.
2. OEM agrees to pay a nonrefundable program fee in the amount of $12,500
upon execution of this Addendum. All fees and royalties owing to Seagate
for the original Term of the Agreement shall be considered to be paid.
3. Section 11.2 (Minimum Fees) shall be deleted from the Agreement and OEM
shall no longer be required to pay a minimum annual fee.
3. Exhibit B (OEM Products) shall be amended to include the following:
SALESLOGIX
SUPPORT LOGIX
4. Exhibit E (FEES) shall continue at the same rates for the term of this
Addendum.
The Agreement does not exclude either party from entering into similar
agreements with competitors of the other party. Except as modified herein, the
Agreement shall be unaffected and shall remain in full force and effect.
In Witness whereof, the parties hereto have duly executed this Addendum,
September 25, 1998.
SEAGATE SOFTWARE INFORMATION SALESLOGIX CORPORATION
MANAGEMENT GROUP, INC
By: By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------- ---------------------------------
Name: Name: Xxxxx X. Xxxxxxxxxx
------------------------------- --------------------------------
Title: Title: V. P. Finance
------------------------------ --------------------------------
12
SEAGATE Software
ADDENDUM NO. 2 TO OEM LICENSE AGREEMENT
This Addendum to the OEM License Agreement is made and entered into this 30th
day of November 1998, by and between Seagate Software Information Management
Group, Inc. (Seagate) and SalesLogix Corporation, successor-in-interest Opis
Corporation (OEM).
Whereas Seagate and OEM entered into an OEM license agreement dated June 28,
1996, and an Addendum dated September 25, 1998 (the "Agreement"), the parties
wish to amend the agreement as follows:
1. Exhibit A (IMG PRODUCTS) shall be amended to include Crystal Reports
version 6.0, and future versions as they become available. This Addendum
No. 2 shall be effective for the additional term of the Agreement,
beginning June 28, 1998, and expiring June 28, 2000.
Except as modified herein, the Agreement shall be unaffected and shall remain in
full force and effect.
OEM has read, understands and agrees to the terms of this Addendum and the
undersigned represents that he or she is duly authorized to sign this Addendum.
SEAGATE SOFTWARE INFORMATION SALESLOGIX CORPORATION
MANAGEMENT GROUP, INC
By: /s/ Xxxx Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------- ---------------------------------
Name: Xxxx Xxxxxxxxxx Name: Xxxxx X. Xxxxxxxxxx
------------------------------- --------------------------------
Title: V. P. Title: V. P. Finance
------------------------------ --------------------------------
