1
EXHIBIT 10.9
Note: Portions of this exhibit are the subject of a Confidential Treatment
Request by the Registrant to the Securities and Exchange Commission. Such
portions have been redacted and are marked with a "[*]" in place of the
redacted language.
IBM AND VISION
JOINT PRODUCT AND MARKETING AGREEMENT
This Joint Product and Marketing Agreement is entered into this 27th day of
September, 1999 ("EFFECTIVE DATE") between Vision Software Tools, Inc.
("Vision") located at 0000 Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx, XX 00000, and
International Business Machines Corporation ("IBM") located at Xxx Xxxxxxx
Xxxx, Xxxxxx, XX 00000. For purposes of this Agreement, all references to IBM
shall mean IBM and its Subsidiaries.
In this Agreement the parties establish a strategic marketing and development
relationship to create a single product offering that integrates Vision's
Business Logic Server technology and Developer Studio development tools with
IBM's WebSphere Application Server Advanced Edition and WebSphere Studio. The
resulting product will be offered by both parties under their own brand names,
terms conditions and prices.
SOW's and ATTACHMENTS (incorporated herein by reference)
1. JM-SOW
2. JP-SOW
3. Attachment 1: EFT Authorization Form
The parties hereby agree as follows:
1.0 DEFINITIONS
1.1 "AGREEMENT" means this Joint Product and Marketing Agreement and any
relevant Statements of Work and other agreements, attachments or
appendices specifically referenced in this Agreement.
1.2 "CODE" means computer programming code, including both "Object Code"
(computer programming code substantially in binary form that is directly
executable by a computer after processing, but without compilation or
assembly) and "Source Code" (computer programming code that may be
displayed in a form readable and understandable by a programmer of
ordinary skill, excluding Object Code).
1.3 "DELIVERABLE" means items that one party prepares for or provides to
another as described in a SOW. Deliverables include, as applicable, Code
and Documentation.
1.4 "DERIVATIVE WORK" means a work that is based on an underlying work and
that would be a copyright infringement if prepared without the
authorization of the copyright owner of the underlying work.
1.5 "DEVELOPMENT ENVIRONMENT" means the Tools, Documentation, Test Suites and
other items that are necessary to develop and maintain Integrated Code and
Derivative Works thereof.
1.6 "DOCUMENTATION" will be defined in the JP-SOW.
1.7 "ENHANCEMENTS" means all changes to Code and Documentation, including:
upgrades, new functions, Maintenance Modifications, new releases, and new
versions that the parties agree to include in future Releases, whether or
not constituting Derivative Works.
1.8 "HARMFUL CODE" is any computer Code, programming instructions, or set of
instructions that is constructed for the purpose of damaging, interfering
with, or otherwise adversely affecting computer programs, data files or
hardware, without the consent or intent of the computer user. This
definition includes, but is not limited to, self-replicating and
self-propagating programming instructions commonly called "viruses" and
"worms."
1.9 "IBM CODE" will consist of WebSphere Application Server-Advanced Edition
("WAS-AE") and WebSphere Studio ("WS") in Object Code form accompanied by
all associated Documentation as well as other Code that may be defined in
a SOW.
1.10 "INTEGRATED CODE" consists of Vision Code integrated with IBM Code in
Object Code form and accompanied by its associated Documentation.
Integrated Code will be further defined in a JP-SOW. The resulting
Integrated Code is expected to be the technology base of the parties'
strategic relationship.
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1.11 "INVENTION" means any idea, design, concept, technique, invention,
discovery or improvement, whether or not patentable, conceived or
reduced to practice by a party.
1.12 "JOINT INVENTION" means any Invention made jointly by IBM and Vision.
1.13 "MAINTENANCE MODIFICATIONS" means revisions in either party's Object
Code to correct errors and deficiencies.
1.14 "RELEASE(S)" is a version of Integrated Code that is further described
in a SOW. Specific Releases will be designated by a number in the
relevant SOW.
1.15 "STATEMENT OF WORK" or "SOW" means any document attached to or included
in this Agreement which describes the parties responsibilities,
including, without limitation, any requirements, specifications,
Deliverables or schedules. Initially, the Agreement will include the
following SOW's:
1.15.1 "JOINT MARKETING SOW" or "JM-SOW" describes the parties' joint
marketing activities and responsibilities and is incorporated
herein by reference.
1.15.2 "JOINT PRODUCT SOW" or "JP-SOW" describes the parties'
responsibilities with respect to product development and support
and is incorporated herein by reference.
1.16 "SUBSIDIARY" means an entity that is owned or controlled directly or
indirectly (by more than 50% of its voting stock, or if not voting
stock, decision-making power) by Vision or IBM. An entity is considered
to be a Subsidiary only so long as such ownership or control exists.
1.17 "TERMINATION LEVEL CODE" is the most recent version of IBM Code or
Vision Code that exists as of the date of termination.
1.18 "TOOLS" means non-commercially available software required for the
development, maintenance or implementation of a software deliverable.
1.19 "VISION CODE" will consist of Business Logic Server ("BLS") and
Developer Studio in Object Code form accompanied by all associated
Documentation as well as other Code that may be defined in a SOW.
2.0 RESPONSIBILITIES OF THE PARTIES
2.1 IBM RESPONSIBILITIES.
2.1.1 Deliverables. IBM will provide to Vision all Deliverables as
specified in the JP-SOW.
2.1.2 Development and Support Responsibilities. IBM shall be
responsible to complete the obligations specified in the JM-SOW.
2.1.3 Marketing Responsibilities. IBM shall be responsible to complete
the obligations specified in the JM-SOW.
2.2 VISION RESPONSIBILITIES.
2.2.1 Deliverables. Vision will provide to IBM all Deliverables as
specified in the JP-SOW.
2.2.2 Development and Support Responsibilities. Vision shall be
responsible to complete the obligations specified in the JP-SOW.
2.2.3 Marketing Responsibilities. Vision shall be responsible to
complete the obligations specified in the JM-SOW.
2.3 JOINT RESPONSIBILITIES. Vision and IBM will each create a project office
to coordinate activity related to the overall success of the
relationship. This office will be staffed as follows:
2.3.1 Sponsoring Executive -- A senior executive from each party will
be assigned to provide oversight to the relationship. These
individuals will meet quarterly to review the progress, status
and plans for the relationship.
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2.3.2 Marketing Program Manager -- Each party will assign a manager who
will be responsible for the marketing aspects of the relationship.
These individuals will monitor the execution of joint marketing
programs, facilitate agreement on "special bid" situations, and
build joint marketing plans for future use.
2.3.3 Development Manager -- Each party will assign a development manager
to oversee product definition and release scheduling. This team
will be responsible for creating the requirements and reaching
agreement for the new/changed content of each release. This team
will recommend changes potentially to both BLS/Developer Studio and
WAS-AE. The intent is to ensure that neither product introduces any
enhancements that regress the functionality of the other or
introduce any migration compatibility problems for IBM or Vision's
respective customers. In addition, meetings will be held as needed
with the product groups to discuss any new initiatives that IBM or
Vision may want to integrate into a future release.
2.3.4 Contract Coordinators -- Each party will assign a contact
coordinator who will be responsible to receive all notices and
administer the Agreement.
2.3.5 The assigned members of the project office are identified in
Section 12.0, "Project Office Staff" and will be available to
participate in the resolution of disputes per Section 9.0 "Dispute
Resolution Process."
3.0 LICENSE GRANTS
3.1. BY IBM. Subject to the terms and conditions of this Agreement:
3.1.1 For Integration. IBM grants Vision a nonexclusive, worldwide
license to use, have used, execute, reproduce, transmit, display,
test, and perform the IBM Code in Object Code form only for
integration of the IBM Code as part of the US English language
version of Release 1, the International version of Release 1, and
for distribution to IBM for the purpose of allowing IBM to perform
its proposed obligations under the JP-SOW.
3.1.2 For Distribution. IBM grants Vision a nonexclusive, worldwide
license to use, reproduce, transfer, distribute, market and
sublicense the IBM Code in Object Code form and any modifications
made to the Vision Code made by IBM solely contained as part of the
Integrated Code as part of the US English language version of
Release 1, the International version of Release 1, or any follow on
Releases as agreed to by the parties.
3.1.3 For Documentation. IBM grants Vision a nonexclusive, worldwide
license to use, have used, execute, reproduce, transmit, display,
perform, modify, prepare or have prepared Derivative Works,
transfer, distribute, market, and sublicense the IBM-modified BLS
and Developer Studio Documentation Source Code for use with the US
English language version of Release 1, the International version of
Release 1, or any follow on Releases as agreed to by the parties.
3.2 BY VISION. Subject to the terms and conditions of this Agreement.
3.2.1 For Documentation. Vision grants IBM a nonexclusive, worldwide
license to use, have used, execute, reproduce, transmit, display,
modify, prepare [*] and perform the BLS and Developer Studio
Documentation Source Code in order to conform to IBM documentation
standards and for translation and internationalization purposes.
Further Vision grants IBM the right to distribute the resulting
work to Vision for the purpose of integration of such work into the
US English language version of Release 1, the International version
of Release 1, or any follow on Releases as agreed to by the parties.
3.2.2 For Translation and Testing. Vision grants IBM a nonexclusive,
worldwide license to use, have used, execute, reproduce, transmit,
display, prepare or have prepared Derivative Works, perform, and
test the Vision Code and other materials to be translated and
internationalized and to provide the resulting work to Vision for
integration into the US English version of Release 1, International
version of Release 1 and follow on Releases as agreed to by the
parties.
* Confidential treatment requested for redacted portion.
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3.2.3 For Distribution. Vision grants IBM a nonexclusive,
worldwide license to use, reproduce, transfer, distribute,
market, prepare [*] for distribution the Vision Code solely
as contained in the Integrated Code (including but not
limited to the International version of the Integrated
Code), and Documentation as modified by IBM (including but
not limited to any internationalization changes) in Object
Code form only, for use with the US English language version
of Release 1, the International version of Release 1, or any
follow on Releases as agreed to by the parties.
3.2.4 For Developer Studio. Vision grants IBM a nonexclusive,
worldwide license to use, reproduce, market, prepare or have
prepared Derivative Works of the Developer Studio code,
Documentation as may be modified by IBM (including but not
limited to any internationalization changes), and any
enhancements thereof, and to distribute, transfer and
sublicense such code and Documentation in Object Code form
only, to customers who have licensed the US English language
version of Release 1, the International version of Release
1, or any follow on Releases as agreed to by the parties.
3.1 FOLLOW-ON RELEASES. The Parties anticipate that follow-on releases of
the Integrated Code (beyond Release 1) will be mutually agreed upon
during the term of this Agreement. At such time, the appropriate SOW
and license terms will be added to this Agreement by written
Amendment.
3.2 EXERCISE OF SECTION 10.6.3 OPTION. Should IBM elect the option
specified in Section 10.6.3, and subject to the terms and conditions
of this Agreement, the following licensing terms apply to such an
engagement.
3.2.1 By IBM for Integration of Future Releases of WAS-AE with the
Termination Level Code. IBM grants Vision a nonexclusive,
worldwide license to use, execute, reproduce, transmit,
display, and perform the IBM Code in Object Code form only
for the purpose of integrating the selected level of the IBM
Code (provided by IBM to Vision pursuant IBM's exercise of
the option defined in Section 10.6.3 of this Agreement) with
the latest version or release of the Vision Code distributed
as part of the Integrated Code at the time of termination or
expiration of this Agreement.
3.2.2 By Vision for the Derivative Work of the Vision Code that
Results From the Integration. Vision grants IBM an
exclusive, worldwide, [*] license to transfer, distribute
market, prepare or have prepared Derivative Works and
sublicense the Derivative Works of the Vision Code as part
of the Integrated Code created by Vision pursuant to IBM's
exercise of the option defined in Section 10.6.3, in Object
Code form only solely for distribution to existing users of
the Integrated Code at the time of termination or expiration
of this Agreement.
3.2.3 Except as otherwise provided herein, Vision shall have no
right to distribute or otherwise use and distribute the
Integrated Code created pursuant to Sections 10.6.3 and 3.4
or any Derivative Work of the Vision Code created pursuant
to IBM's exercise of the option defined in Section 10.6.3 of
the Agreement.
3.3 OWNERSHIP RIGHTS.
3.3.1 Except as otherwise provided herein, IBM shall retain
exclusive ownership of all right, title and interest,
including all intellectual property rights, in all of its
preexisting material, including, but not limited to, the IBM
Code and any IBM Documentation. IBM will also exclusively
own all right, title and interest, including all
intellectual property rights, in any Code (other than
Joint Inventions) that it creates that becomes a part of the
Integrated Code.
3.3.2 Except as otherwise provided herein, Vision shall retain
exclusive ownership of all right, title and interest,
including all intellectual property rights, in all of its
preexisting material, including, but not limited to, the
Vision Code and any Vision Documentation. Vision will also
exclusively own all right, title and interest, including all
intellectual property rights, in any Code (other than Joint
Inventions) that it creates that becomes a part of the
Integrated Code.
3.4 The parties agree that IBM may package and distribute the Vision Code
incorporated into the Integrated Code pursuant to the terms of Section
3.2.3 with other IBM or third party products subject to mutual
agreement on the appropriate royalty payments due to Vision.
* Confidential treatment requested for redacted portion.
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3.5 Except as provided herein, nothing contained in this Agreement shall be
construed to grant either party any other licenses, whether express or
implied, by estoppel or otherwise, in or to any trademarks, copyrights,
patents, or other intellectual property rights of the other party.
4.0 ROYALTIES
4.1 VISION ROYALTY PAYMENTS. Subject to the terms and conditions of this
Agreement, Vision will pay IBM [*]
4.2 IBM ROYALTY PAYMENTS. Subject to the terms and conditions of this
Agreement, IBM will pay Vision a percentage of all product license fees,
product upgrade fees (including fees for additional development seats)
and monthly usage fees recorded by IBM (less any applicable taxes,
shipping costs and returns) for each authorized copy of the Integrated
Code licensed and distributed by IBM pursuant to the terms of this
Agreement according to the following table:
[*]
4.3 [*] IBM agrees to establish a process to [ * ] the Vision Code is used
for productive internal use, and in the event that it comes to the
attention of the Contract Coordinators that IBM employees are using the
Vision Code for productive (non-development) purposes, IBM will [*] that
the foregoing shall not be deemed to constitute a waiver of Vision's
right to seek any remedies it may have at law or in equity relating to
such unauthorized use.
4.4 In the event that the content of the Integrated Code is modified by the
addition of [*], Vision and IBM agree to, in good faith, renegotiate the
royalty percentages to reflect the value of the added Code.
4.5 ROYALTY CALCULATIONS. Royalties, if any, are paid against revenue
recorded by the party licensing to the end-user for a calendar royalty
payment quarter [*]. All payments will be made in U.S. Dollars. Payments
based on foreign revenue will be converted to U.S. dollars on a monthly
basis at the rate of exchange published by Reuters Financial Service on
approximately the same day each month.
4.6 [*]
* Confidential treatment requested for redacted portion.
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[*]
4.7 [*]
4.8 EXCEPTIONS TO ROYALTY PAYMENT OBLIGATIONS. Neither party has any
royalty obligation for:
4.8.1 [*]
4.8.2 [*]
4.8.3 [*]
4.8.4 Documentation provided with, contained in, or derived from the
Integrated Code;
4.8.5 Maintenance Modifications; and
4.8.6 warranty replacement copies of the Integrated Code.
5.0 SOURCE CODE ESCROW
5.1 The parties will enter into a separate, written escrow agreement, at
IBM's expense, with a recognized third-party escrow agent to maintain
at least one (1) copy, for each version and release of the Vision Code,
of the following escrowed materials ("ESCROWED MATERIALS"):
5.1.1 the Vision Code in a machine-readable format, including both
Source Code and Object Code;
5.1.2 a complete set of Vision's existing user and development
documentation in both hard copy and machine-readable (as
available) formats (including design specifications, flowcharts,
etc.);
5.1.3 [*]
5.1.4 [*]
5.1.5 [*]
5.1.6 [*]
* Confidential treatment requested for redacted portion.
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Vision will update the Escrowed Materials whenever it issues a
modification to the Vision Code or Documentation to incorporate any
Maintenance Modifications and Enhancements, and to account for new
releases and versions of the Vision Code.
5.2 The terms of such escrow agreement will be mutually agreed to and will
provide for IBM's reasonable inspection of the Escrowed Materials [*]:
5.2.1 [*]
5.2.2 [*]
5.2.3 [*]
5.2.4 [*]
5.3 Vision will notify IBM within five (5) days of the occurrence of a Release
Event. [*]
5.4 IBM and Vision will treat the release of the Escrowed Materials as a
disclosure of Confidential Information under the parties' existing
Confidential Disclosure Agreement related to the Vision Code, or if none,
under IBM's then standard Confidential Disclosure Agreement. [*]
6.0 ONGOING WARRANTIES
6.1 Each party makes the following ongoing representations and warranties:
6.1.1 It has the right to enter into this Agreement and its performance
of this Agreement will not violate the terms of any contract,
obligation, law, regulation or ordinance to which it is or becomes
subject;
6.1.2 As of the Effective Date, no claim, lien, or action exists or is
threatened against a party that would interfere with the other
party's rights under this Agreement;
6.1.3 The Code contributed by the party to the Integrated Code will be,
when contributed by such party and combined with the Integrated
Code, Year 2000 ready such that when used in accordance with the
appropriate documentation it is capable of correctly processing,
providing, receiving and displaying date data before and after
January 1, 2000 (including without limitation leap year
calculations), provided that all products (for example, hardware,
software and firmware) used with the Code contributed by the party
properly exchange accurate date data with it;
* Confidential treatment requested for redacted portion.
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6.1.4 The Code contributed by the party to the Integrated Code will
be, when contributed by such party and combined with the
Integrated Code, euro-ready such that it will correctly process,
send, receive, present, store, and convert monetary data in the
euro denomination, respecting the euro currency formatting
conventions (including the euro symbol);
6.1.5 The Code contributed by the party to the Integrated Code will be
tested for harmful Code and the parties will not knowingly provide
the other Harmful Code;
6.1.6 The Code contributed by the party to the Integrated Code does not
infringe any privacy, publicity, reputation or intellectual
property right of a third party, provided that the sole remedy and
a party's entire liability for breach of this warranty shall be
indemnification pursuant to Section 7; and
6.1.7 All authors of the Code contributed by the party to the Integrated
Code have agreed not to assert their moral rights (personal rights
associated with authorship of a work under applicable law, if any)
in the IBM Code and the Vision Code (respectively), to the extent
permitted by law.
6.2 THE WARRANTIES AND CONDITIONS IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER
WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED AND, EXCEPT AS PROVIDED
ABOVE, CODE IS FURNISHED ON AN "AS IS" BASIS AND EACH PARTY HEREBY
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION WARRANTIES OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
7.0 INDEMNIFICATION AND LIMITATION OF LIABILITY
7.1 VISION INDEMNIFICATION. Vision will defend or settle any suit, third
party claims, or proceedings brought, or threatened, against IBM based
upon a claim that any Vision Code furnished hereunder or part thereof,
alone and not in combination with any other software or product (unless
there is no non-infringing use for the Vision Code when it is functioning
in the Release, and only to the extent that the infringement is
attributable to the Vision Code) constitutes an actual or alleged
infringement or misappropriation of any copyrights, trade secrets and/or
patents worldwide, as well as any actual, alleged, or threatened
infringement of any trademark, provided that: (i) Vision is notified
promptly in writing of such claim; (ii) Vision controls the defense or
settlement of the claim; and (iii) IBM cooperates reasonably and gives all
necessary authority, information and assistance (at Vision's expense).
Vision will pay all damages and costs finally awarded against IBM, but
Vision will not be responsible for any costs, expenses or compromise
incurred or made by IBM without Vision's prior written consent. If the
use of such of the Vision Code is permanently enjoined, Vision will, in
its sole discretion and at its own expense, procure for IBM the right to
continue using said product, replace same with non-infringing Vision Code,
modify it so that it becomes non-infringing, or if Vision is unable to do
any of the above on a commercially reasonable basis and if IBM is enjoined
from distributing the Vision Code, Vision will credit IBM the sum paid to
Vision by IBM for the infringing Vision Code in a Release which is still
in IBM's inventory. The obligations set forth in this Section shall not
apply to the extent that any claim arises from modification of the Vision
Code after delivery to IBM, except for any modification mutually agreed to
by the Parties or made pursuant to Vision's unilateral, mandatory written
direction. Notwithstanding the foregoing, Vision shall have no obligation
to Indemnify IBM pursuant to this Section for a) any "Open Source"
software included in the Vision Code, which has been identified as Open
Source software by Vision and provided to IBM hereunder or b) any Vision
Code distributed by IBM one hundred and twenty (120) days after IBM has
received written notice from Vision representing that Vision has conducted
a commercially reasonable assessment of a claim of intellectual property
infringement relating to the Vision Code and as a result has elected to
withdraw the Vision Code from the entire marketplace.
7.2 IBM INDEMNIFICATION. IBM will defend or settle any suit, third party
claims, or proceedings brought, or threatened, against Vision based upon a
claim that any IBM Code furnished hereunder or part hereof, alone and not
in combination with any other software or product (unless there is no
non-infringing use for the IBM Code when it is functioning in the Release,
and only to the extent that the infringement is attributable
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to the IBM Code) constitutes an actual or alleged infringement or
misappropriation of any copyrights, trade secrets and/or patents worldwide,
as well as any actual, alleged, or threatened infringement of any
trademark, provided that: (i) IBM is notified promptly in writing of such
claim; (ii) IBM controls the defense or settlement of the claim; and (iii)
Vision cooperates reasonably and gives all necessary authority, information
and assistance (at IBM's expense). IBM will pay all damages and costs
finally awarded against Vision, but IBM will not be responsible for any
costs, expenses or compromise incurred or made by Vision without IBM's
prior written consent. If the use of such IBM Code is permanently enjoined,
IBM will, in its sole discretion and at its own expense, procure for Vision
the right to continue using said product, replace same with non-infringing
IBM Code, modify it so that is becomes non-infringing, or if IBM is unable
to do any of the above on a commercially reasonable basis and if IBM is
enjoined from distributing the IBM Code, IBM will credit Vision the sum
paid to IBM by Vision for the infringing IBM Code in a Release which is
still in Vision's inventory. The obligations set forth in this Section
shall not apply to the extent that any claim arises from: modification of
the IBM Code after delivery to Vision, except for any modification mutually
agreed to by the Parties or made pursuant to IBM's unilateral, mandatory
written direction. Notwithstanding the foregoing, IBM shall have no
obligation to Indemnify Vision pursuant to this Section for a) any "Open
Source" software included in the IBM Code which has been identified as Open
Source software by IBM and provided to Vision hereunder or b) any IBM Code
distributed by Vision one hundred and twenty (120) days after Vision has
received written notice from IBM representing that IBM has conducted a
commercially reasonable assessment of a claim of intellectual property
infringement relating to the IBM Code and as a result has elected to
withdraw the IBM Code from the entire marketplace.
7.3 LIMITATION OF LIABILITY.
7.3.1 Intellectual Property Indemnification. IN NO EVENT WILL EITHER
PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
KIND, INCLUDING, BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF USE,
OR INTERRUPTION OF BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THE PARTIES AGREE THAT IN THE EVENT OF AN
INTELLECTUAL PROPERTY INDEMNIFICATION CLAIM (covered by the
sections above), A THIRD PARTY'S DAMAGES, THAT INCLUDE LOST
PROFITS, ARE DEEMED TO BE THE DIRECT DAMAGES OF VISION OR IBM, AS
THE CASE MAY BE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, EACH PARTY'S TOTAL LIABILITY FOR INTELLECTUAL PROPERTY
INFRINGEMENT SHALL NOT EXCEED [*].
7.3.2 Other Claims. IN ANY AND ALL CASES OTHER THAN EACH PARTY'S
OBLIGATION FOR INTELLECTUAL PROPERTY INFRINGEMENT, EACH PARTY'S
TOTAL LIABILITY FOR ALL OTHER CLAIMS RELATING TO THIS AGREEMENT
SHALL NOT EXCEED [*]. THIS LIMITATION EXCLUDES: i) CLAIMS FOR
MONIES DUE A PARTY UNDER THIS AGREEMENT; AND ii) CLAIMS FOR
BREACH OF A PARTY'S OBLIGATIONS OF CONFIDENTIALITY.
8.0 INTELLECTUAL PROPERTY
8.1 NAMES AND TRADEMARKS.
8.1.1 IBM grants Vision a nonexclusive, worldwide license to use the
name and trademark "WebSphere" (the Licensed Marks) in accordance
with the "WebSphere Usage Guidelines." "WebSphere Usage
Guidelines" shall mean such guidelines as may be established by
IBM and modified from time to time, upon reasonable notice by
IBM, providing for the use and display of the Licensed Marks. The
current "WebSphere Usage Guidelines" appear below in Section
8.1.2. If IBM objects to Vision's improper use of IBM's name or
trademark, Vision will take all steps necessary to resolve IBM's
objections. Any goodwill attaching to IBM's trademarks, service
marks, or trade names belongs to IBM and this Agreement does not
grant Vision any right to use them. All ownership rights in the
Licensed Marks belong exclusively to IBM. Vision has no ownership
rights in the Licensed Marks and shall acquire no ownership
rights in the Licensed
* Confidential treatment requested for redacted portion.
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Marks as a result of its performance (or breach) of this Agreement.
All use of the Licensed Marks or variations thereon shall inure
solely to the benefit of IBM. Upon termination of this Agreement
all rights of Vision to use the Licensed Marks shall terminate
immediately.
8.1.2 WebSphere Usage Guidelines.
A. Without a trademark license from IBM, IBM's marks MAY NEVER
be incorporated as part of the name of a product or service
of another company. Vision may not include "WebSphere" or any
potentially confusing variation in the name of its product or
service.
B. The compatibility or integration of an application program
with IBM WebSphere products may be noted on packaging,
collateral material or advertising (but not included in the
product or service name) by using phrases such as "for use
with", "compatible with" or "for", or "powered by" the
WebSphere product. On all such materials, Vision's product or
service name must appear more prominently than WebSphere's
xxxx. WebSphere's xxxx should be visually distinguishable
from Vision's product or service name by putting it in a
different font, color, or on a different line. It is
important to avoid any implication that Vision's product or
service is produced, endorsed or supported by IBM.
C. Vision must attribute IBM trademarks to IBM. For example,
Vision must use the symbol "TM" with IBM's xxxx WebSphere and
use the R in a circle with IBM. The symbols should be placed
next to the last letter of the xxxx, at the upper right or at
the baseline. In advertising copy, the proper symbol should
be used as the first or most prominent mention. A proper
trademark attribution is "WebSphere is a registered [NOTE:
***waiting for official notice, so may need to leave out
registered***] trademark of the IBM Corporation."
D. Vision must acknowledge that IBM claims trademark rights in
the name WebSphere and Vision must agree not to object to or
otherwise interfere with IBM's rights or registrations (or
registration applications in this name).
8.2 INVENTIONS.
8.2.1 With respect to Inventions first conceived or reduced to practice
solely by one or more employees of one of the parties, right and
title to such Inventions shall reside solely with that party.
8.2.2 With respect to Inventions first conceived or reduced to practice
by one or more employees of IBM with one or more employees of
Vision, these inventions shall be called Joint Inventions and will
be the joint property of the parties. Title to such Joint
Inventions as well as in and to any patent application and patents
issued thereon shall be assigned jointly to IBM and Vision. Vision
and IBM shall share equally in the expenses of seeking and
maintaining patent protection, except that either party may elect
at its own expense to seek and maintain patent protection for both
parties, if the other party declines to share expenses. Each party
shall have the right to grant licenses to third parties or assign
its rights therein without accounting to the other party.
9.0 DISPUTE RESOLUTION PROCESS
In the event that either party notifies the other of a unresolved dispute
pertaining to any matter relating to the Agreement (including the SOW's), the
following dispute resolution procedure will be followed:
9.1 Each party shall promptly name, from among the staff of the project
office, a facilitator to represent such party in discussions relating to
the Agreement. The facilitators shall make a good faith effort to resolve
the dispute as soon as possible.
9.2 In the event that the facilitators cannot resolve such dispute within ten
(10) business days of receipt of notice, the matter may, at the option of
either party, be submitted for resolution to a Manager of each
facilitator. For purposes of this Section, "Manager" shall mean someone
in the management chain of the
Page 10 of 17
11
applicable facilitator who is senior to such facilitator in terms of
responsibility, and who is familiar with this Agreement. The Managers
shall make a good faith effort to resolve the dispute as quickly as
possible.
9.3 In the event that the Managers cannot resolve such dispute within ten (10)
business days, the matter may, at the option of either party, be submitted
for resolution to each party's Sponsoring Executive.
9.4 If the matter is not resolved at the executive level within twenty (20)
days, the parties may then pursue any remedies available to them in law
or equity.
10.0 TERM AND TERMINATION
10.1 TERM. The initial term of this Agreement begins on the Effective Date and
ends on 12/31/2001. After that date, the Agreement will automatically be
renewed each year on January 1, unless written notice of termination is
given by one party to the other, at least ninety (90) days prior to the
beginning of the next term period. In any event, the Agreement will
expire, without automatic renewal, on 12/31/2005.
10.2 TERMINATION FOR CONVENIENCE. The Agreement may not be terminated for
convenience by either party until 12/31/2001. In the event of termination
for convenience by either party pursuant to Section 10.1, the Licensee
shall continue to have [*]. For the purposes of this Section 10,
"Licensor" and "Licensee" shall refer to Vision or IBM, as applicable,
depending on whether the party is the licensor or licensee of the rights
granted in Sections 3.1 and 3.2.
10.3 TERMINATION FOR MATERIAL BREACH. Either party can terminate this
Agreement, after completely exercising the dispute resolution process as
specified in Section 9.0 hereunder (which shall occur concurrently with,
and not in addition to, the notice period specified herein), for material
breach by the other party that is not cured within [*} days after the
breaching party receives written notice of the material breach. In the
event of termination for material breach, [*].
10.4 [*]
10.5 EXPIRATION. In the event that the Agreement expires, the Licensee shall
continue to have the then existing rights to the Licensors' Code (IBM
Code or Vision Code as applicable) for so long as the Licensor receives
royalties from the Licensee, but for no longer than one (1) year.
However, the Licensee shall continue to have the then existing rights to
the Licensor's Code (IBM Code or Vision Code as applicable) beyond the
one year period, but only to allow the fulfillment of orders placed
before the end of the one year period.
10.6 SURVIVAL OF VISION SUPPORT OBLIGATIONS TO IBM. In the event of expiration
or termination for any reason, Vision's support obligations are as
follows:
10.6.1 During the first two (2) years after termination, Vision will
maintain and support the Vision Termination Level Code [*].
10.6.2 During years three, four and five after termination, and provided
that Vision is still supporting the Vision Termination Level Code
for its customers, Vision will maintain and support the Vision
* Confidential treatment requested for redacted portion.
Page 11 of 17
12
Termination Level Code [*].
10.6.3 For three (3) years after termination, Vision will, at IBM's
option, develop, test, certify, maintain and support the Vision
Termination Level Code with new releases of WAS-AE, operating
systems, databases and other dependent technologies [*]. Vision
will complete any such development, testing and certification
within a commercially reasonable time (subject to a mutually
agreed upon schedule) after written request from IBM made
sufficiently prior to the general availability date of the
respective IBM new release. Should IBM elect to exercise the
option specified in this Section 10.6.3, IBM and Vision shall
have the rights specified in Section 3.4 of this Agreement.
10.7 SURVIVAL OF IBM SUPPORT OBLIGATIONS TO VISION. In the event of
termination for any reason, but only for up to five (5) years after
termination, IBM's support obligations are as follows:
10.7.1 From the date of termination and for as long as IBM supports
the IBM Termination Level Code for its commercial customers,
IBM will maintain and support versions of the IBM Termination
Level Code that exist as of the date of termination at no
additional charge.
10.7.2 For maintenance and support beyond the period in which IBM
supports the IBM Termination Level Code for its commercial
customers, IBM will maintain and support versions of the IBM
Termination Level Code [*].
10.8 VISION SURVIVING RIGHTS IN IBM-TRANSLATED MATERIALS. In the event of
expiration or termination for any reason Vision shall continue to have
the then existing rights in the IBM-translated Materials (as defined in
the JP-SOW).
11.0 IBM RIGHT OF NOTIFICATION
[*]
12.0 PROJECT OFFICE STAFF
--------------------------------------------------------------------------------
FOR IBM FOR VISION
--------------------------------------------------------------------------------
SPONSORING EXECUTIVE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name Name
--------------------------------------------------------------------------------
Title Title
--------------------------------------------------------------------------------
Address Address
--------------------------------------------------------------------------------
Phone Phone
--------------------------------------------------------------------------------
Fax Fax
--------------------------------------------------------------------------------
Email Email
--------------------------------------------------------------------------------
MARKETING PROGRAM MANAGER
--------------------------------------------------------------------------------
Name Name
--------------------------------------------------------------------------------
Title Title
--------------------------------------------------------------------------------
Address Address
--------------------------------------------------------------------------------
Phone Phone
--------------------------------------------------------------------------------
* Confidential treatment requested for redacted portion.
Page 12 of 17
13
-------------------------------------------------------------------------------------------
Fax Fax
-------------------------------------------------------------------------------------------
Email Email
-------------------------------------------------------------------------------------------
DEVELOPMENT MANAGER
-------------------------------------------------------------------------------------------
Name Name
-------------------------------------------------------------------------------------------
Title Title
-------------------------------------------------------------------------------------------
Address Address
-------------------------------------------------------------------------------------------
Phone Phone
-------------------------------------------------------------------------------------------
Fax Fax
-------------------------------------------------------------------------------------------
Email Email
-------------------------------------------------------------------------------------------
CONTRACT COORDINATORS
-------------------------------------------------------------------------------------------
Name Xxxxxxx Xxxxxxxxx Name Xxxx Xxxxxxxx
-------------------------------------------------------------------------------------------
Title Finance Director Title Contract Administrator
-------------------------------------------------------------------------------------------
Address 0000 Xxxxxxx Xxxxxx, 8th Floor Address 0000 Xxxxxxxxxx Xxxx, 000/XXXX
Xxxxxxx, XX 00000 XXX, XX 00000
-------------------------------------------------------------------------------------------
Phone (000) 000-0000 Ext. 2258 Phone 000-000-0000
-------------------------------------------------------------------------------------------
Fax (000) 000-0000 Fax 000-000-0000
-------------------------------------------------------------------------------------------
Email xxxxxxx-xxxxxxxxx@xxxxxx-xxxx.xxx Email xxxxxx@xx.xxx.xxx
-------------------------------------------------------------------------------------------
13.0 GENERAL
13.1 AMENDMENTS: This Agreement may only be amended or modified by a written
document specifically referencing this Agreement which has been signed by
authorized representatives of the parties.
13.2 ASSIGNMENT: Neither party may assign this Agreement, or its rights and
obligations under it without the prior written consent of the other party
except: (i) to a Subsidiary, (ii) or in connection with the sale of all
or a substantial portion of that party's business or relevant business
unit, or (iii) rights to payments. Such assignment shall not be effective
until notice of such assignment is provided to the other party.
13.3 CHOICE OF LAW; WAIVER OF JURY TRIAL; LIMITATION OF ACTION: This Agreement
and the performance of transactions under this Agreement will be governed
by the laws of the State of New York applicable to contracts executed in
and performed entirely within that State. The parties expressly waive any
right to a jury trial regarding disputes related to this Agreement.
Unless otherwise provided by local law without the possibility of
contractual waiver or limitation, any legal or other action related to a
breach of this Agreement must be commenced no later than two (2) years
from the date of the discovery of the breach.
13.4 COMMUNICATIONS: All communications between the parties regarding this
Agreement will be conducted through the parties' Project Office
representatives.
13.5 COUNTERPARTS: This Agreement may be signed in one or more counterparts,
each of which will be deemed to be an original and all of which when
taken together will constitute the same agreement. Any copy of this
Agreement made by reliable means is considered an original.
13.6 ELECTRONIC COMMERCE: The parties will conduct transactions using an
electronic commerce approach under which the parties will electronically
transmit and receive legally binding purchase and sale obligations
("DOCUMENTS"), including electronic credit entries transmitted by one
party to the other party's account specified in the relevant Attachment.
Each party, at its own expense, will provide and maintain the equipment,
software, services and testing necessary for it to effectively and
reliably transmit and receive such Documents. Either party may use a
third party service provider for network services, provided the other
party is given sixty (60) days prior written notice of any changes to
such services. A Document will be deemed received upon arrival at the
receiving party's mailbox or Internet address and the receiving party
will promptly send an acknowledgment of such receipt. The receiving party
will promptly notify the originating party if a Document is received in
an unintelligible form, provided that the originating party can be
identified. In the absence of such notice, the originating party's record
of the contents of such Document will prevail. Each party will
authenticate Documents using a digital signature or User ID, as specified
by IBM, and will maintain security procedures to prevent its unauthorized
use.
Page 13 of 17
14
13.7 EXCHANGE OF INFORMATION: Unless required otherwise by law, all
information exchanged by the parties will be considered non-confidential
except as otherwise provided in this Section. If the parties require the
exchange of confidential information, such exchange will be made under
the Confidential Disclosure Agreement between the parties, dated
3/29/1999 ("CDA"). The parties will not publicize the terms or
conditions of this Agreement in any advertising, marketing or
promotional materials without the prior written consent of the other
party, such consent not to be unreasonably withheld, or except as may be
required by law, provided the party publicizing obtains any
confidentiality treatment available or as is defined in this Agreement.
13.8 EXPENSES: Except as may be expressly provided in the Agreement, each
party will bear its own expenses in connection with the Agreement and
the activities under it.
13.9 COMPLIANCE WITH EXPORT REGULATIONS: The parties acknowledge and agree
that the Integrated Code is expected to contain encryption code and
agree to comply with all U.S. export laws and regulations as well as
applicable laws and regulations governing trade in other nations in
which the Integrated Code is distributed.
13.10 FREEDOM OF ACTION: This Agreement is nonexclusive and either party may
design, develop, manufacture, acquire or market competitive products or
services provided such party does not infringe or misappropriate the
other party's patent, copyrights, trade secrets or other proprietary
rights. The parties will independently establish prices for resale of
products and, except as provided in this Agreement, are not obligated to
announce or market any products or services and do not guarantee the
success of marketing efforts, if any.
13.11 FORCE MAJEURE: Neither party will be in default or liable for any delay
or failure to comply with this Agreement due to any act beyond the
control of the affected party, excluding labor disputes, provided such
party immediately notifies the other.
13.12 INDEPENDENT CONTRACTORS: Each party's efforts in relation to this
Agreement will be as an independent contractor. Nothing contained in
this Agreement shall constitute the parties as entering upon a joint
venture or partnership, or shall constitute either party the agent for
the other party for any purpose or in any sense whatsoever.
13.13 PRIOR COMMUNICATIONS AND ORDER OF PRECEDENCE: The provisions of this
Agreement, including Attachments and the CDA, constitute the entire
agreement between the parties. This Agreement replaces any prior oral or
written agreements or other communication between the parties with
respect to the subject matter of this Agreement, excluding any
confidential disclosure agreements. In the event of any conflict in these
documents, the order of precedence will be: (i) the quantity, payment
and delivery terms of any relevant purchase order; (ii) the relevant
SOW; (iii) the Agreement; and (v) the remaining terms of any relevant
purchase order.
13.14 RECORDKEEPING AND AUDIT RIGHTS: The parties will maintain (and provide
to the other party access upon request as provided below) relevant
accounting records to support invoices and payment obligations under
this Agreement, for three (3) years following completion or termination
of the Agreement. All accounting records will be maintained in
accordance with generally accepted accounting principles. Each party
shall have the right (at its expense, upon reasonable notice and during
the other party's normal business hours) to have an independent
certified public accountant inspect and audit the books and records of
the other party for the purpose of verifying any reports, information or
payments provided or due hereunder. All under/over payments revealed buy
such audit shall be paid or returned to the affected party within thirty
(30) days of the audit results.
13.15 RESERVATION OF RIGHTS: Unless explicitly granted in this Agreement,
neither party grants the other any rights in any intellectual property,
including patents and patent applications, by implication, estoppel or
otherwise.
13.16 SEVERABILITY: If any term in this Agreement is found by competent
judicial authority to be unenforceable in any respect, the validity of
the remainder of this Agreement will be unaffected, provided that such
unenforceability does not materially affect the parties' rights under
this Agreement.
Page 14 of 17
15
13.17 SURVIVAL: In addition to the survival provisions in Section 10.0, "Term
and Termination," the provisions set forth in the following Sections and
Subsections of this Agreement will survive after termination of this
Agreement and will remain in effect until fulfilled: 1.0 "Definitions,"
3.0 "License Grants," 4.0 "Royalties," 5.0 "Source Code Escrow," 6.0
"Ongoing Warranties," 7.0 "Indemnification and Limitation of Liability,"
8.0 "Intellectual Property," 10.0 "Term and Termination," and 13.0
"General."
13.18 WAIVER: An effective waiver under this Agreement must be in writing
signed by the party waiving its right. A waiver by either party of any
instance of the other party's noncompliance with any obligation or
responsibility under this Agreement will not be deemed a waiver of
subsequent instances.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
By: /s/ XXXX X. XXXXXXXX 9-27-99 By: /s/ XXXX X. XXXXXX, XX. 9-27-99
-------------------------------------- -------------------------------------
IBM Signature Date Vision Signature Date
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxx, Xx.
-------------------------------------- -------------------------------------
Printed Name Printed Name
Contract Specialist, IBM Corporation President and CEO
-------------------------------------- -------------------------------------
Title and Organization Title and Organization
IBM Address: Vision Address:
-------------------------------------- -------------------------------------
IBM Corporation Vision Software Tools, Inc.
0000 Xxxxxxxxxx Xxxx, 002/VRDA 0000 Xxxxxxx Xxxxxx, Xxxxxx Floor
Research Triangle Park, NC 27709 Xxxxxxx, XX 00000
XXX XXX
Page 15 of 17
16
ATTACHMENT 1: AUTHORIZATION FOR ELECTRONIC FUNDS TRANSFER
You hereby authorize IBM to initiate credit entries to the account listed below
in connection with agreed upon Electronic Data Interchange (EDI) transactions
between our companies. You agree that such transactions will be governed by the
National Automated Clearing House Association rules. This authority is to remain
in effect until IBM has received written notification of termination in such
time and such manner as to afford IBM a reasonable opportunity to act on it. IN
NO EVENT SHALL IBM BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES AS A RESULT OF THE DELAY, OMISSION OR ERROR OF AN
ELECTRONIC CREDIT ENTRY, EVEN IF IBM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. This Agreement shall be governed by the laws of the State of New York.
Trading Partner Name VISION SOFTWARE TOOLS, INC.
--------------------------------
Payment Remit Address ATTN: ACCOUNTS RECEIVABLE DEPT.
in the event a paper --------------------------------
check needs to be sent 0000 XXXXXXX XXXXXX, 8th FLOOR
--------------------------------
City, State OAKLAND, CA ZIP 94612
--------------------------------
Account Payee (If different than above) N/A
--------------------------------
Address
--------------------------------
City, State ZIP
--------------------------------
EFT Domestic Banking Institution CUPERTINO NATIONAL BANK
--------------------------------
Contact Name/Title XXX XXXXXX, VICE PRESIDENT
--------------------------------
Contact Phone Number 000-000-0000
--------------------------------
Address THREE PALO ALTO SQUARE,
--------------------------------
SUITE 150
--------------------------------
City, State PALO ALTO, CA ZIP 94306
--------------------------------
Account Number 003103838 (MAX 17)
-------------------
Bank Routing/Transit Cd ABA #000000000 (MAX 9)
-------------------
Remit Advice Option 1 80-126-9440
(see attachment) ----- -----------------------
DUNS#/UserID + Acct#--
2 See Attachment
-----
Tax ID Number 00-0000000
-------------------
By /s/ XXXX X. XXXXXX XX.
--------------------------------
authorized signature
Name Xxxx X. Xxxxxx Xx.
--------------------------------
Title Pres. & CEO
--------------------------------
Phone Number 000 000 0000
--------------------------------
Date 9/27/99
--------------------------------
Page 16 of 17
17
EFT REMITTANCE OPTIONS
OPTION 1 -- IBM sends funds electronically to trading partner's bank and sends
remittance advice electronically to the trading partner. The trading partner
must have EDI capability or be an IBM Forms Exchange user for this option. The
remittance will usually be received two days prior to the funds being deposited
-- the Effective Date on the remittance is the date the funds will be posted to
trading partner's account.
EDI ENABLED VENDORS:
This option requires a TPA agreement form completed. This option also required
your DUNS# or Account# + UserID -- Van Net and X12 version.
IBM FORMS EXCHANGE ENABLED VENDORS:
Remittances will be sent via forms exchange. Please go to your 'inbox' to view
all remittances.
OPTION 2 -- IBM sends funds and remittance advice electronically to trading
partner's bank. Trading partner's bank forwards the remittance advice to the
trading partner. The trading partner must verify with their bank that they have
the ability to receive the deposit and remittance and must make the appropriate
arrangements with their bank for forwarding of the remittance advice. Your
remittance file will be forwarded to your bank in a CTX format as an ACH
transaction. Please register with the commercial help line at your banking
institution.
THIS OPTION WILL BE SETUP FOR NON-EDI VENDORS.
NOTE: If an option is not selected on the EFT form, your will automatically be
set up with Option 2. Please make the necessary arrangements with your bank to
receive your remittance detail.
NOTE: If you have a foreign banking institution, please contact Xxx Xxxxxx at
000-000-0000.
Page 17 of 17
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IBM AND VISION
JOINT PRODUCT AND MARKETING AGREEMENT
JOINT PRODUCT STATEMENT OF WORK
This JP-SOW is part of any incorporates by reference the terms and conditions
of the Joint Product and Marketing Agreement and capitalized terms used herein,
unless defined herein, shall have the meaning ascribed to them in the Agreement.
ATTACHMENTS
Attachment 1: Certificate of Originality
Attachment 2: Product Support
1.0 SCOPE OF WORK
This SOW covers a new version of Vision's current product line that will be
built to re-host Vision's BLS on top of (and integrating) IBM WAS-AE. This SOW
details the structure of this joint development relationship. It also describes
the content of Release 1 of the new product called "BLS/WAS-AE" for the
purposes of this SOW.
The goal of this relationship is to create a product that is relevant to the
IBM market and Vision market place. The Vision product delivery to IBM will
consist of BLS and the associated Developer Studio. The IBM product delivery to
Vision will consist of WAS-AE and WS.
2.0 DESCRIPTION OF CODE
2.1 DESCRIPTION OF INTEGRATED CODE FOR RELEASE 1. Integrated Code for Release
1 consists of the BLS Code with WAS-AE silently installed and Developer
Studio ("BLS/WAS-AE"), with WebSphere Studio ("WS") included in the product
package [*]. Release 1 will consist of a US English language version and
an International version.
2.2 INTEGRATED CODE FOR THE US ENGLISH LANGUAGE OF RELEASE 1 GENERAL
DESCRIPTION.
2.2.1 CODE NAME AND VERSION NUMBER: The Integrated Code for US English
language Release 1 is the combined product Business Logic Server
(with Developer Studio)/WebSphere Application Server, Advanced
Edition (BLS/WAS-AE) Version 1.0, in Object Code form and WS.
2.2.2 GENERAL DESCRIPTION OF ITS FUNCTION:
A. WebSphere Application Server-Advanced Edition is a portable,
Java-based web application deployment platform which supports
and executes Java Servlets, Java Beans, Java Server Pages, and
Enterprise Java Beans while interacting with enterprise
databases, transaction processing systems, and other
applications for dynamic web content. It provides the
portability and control of server-side business applications
along with the performance and manageability of Enterprise Java
Beans to offer a comprehensive Java-based Web application
platform.
B. Vision Business Logic Server provides logic execution services
for executing business rules. Vision Developer Studio is a
complete development environment for developing presentation,
business logic and data access logic for web applications.
C. BLS/WAS-AE hosts Vision's BLS on top of WAS-AE, providing the
ability to deploy business logic as Enterprise Java Beans. The
product will consist of two components: the Vision Developer
Studio and the combined server.
D. WebSphere Studio is a set of web application development tools
designed to allow web developers to create dynamic web
applications that run on the WebSphere Application Server. The
product will be delivered as its is shipped to IBM customers.
In addition to
* Confidential treatment requested for redacted portion.
Page 1 of 13
19
WebSphere Studio 3.0, the package will include NetObjects
ScriptBuilder 3.0 and VisualAge for Java Professional
Edition 3.0.
2.2.3 DOCUMENTATION: Documentation consists of developer and end-user
external documentation. All documentation is produced and
delivered in a delivery format, either HLP, PDF or HTML.
2.2.4 OTHER MATERIALS: (none).
2.2.5 DELIVERY LOCATION: Distributions will be delivered by Vision
electronically to the designated IBM representative.
2.3 INTEGRATED CODE FOR THE US ENGLISH LANGUAGE VERSION OF RELEASE 1
SPECIFIC DESCRIPTION
2.3.1 CODE NAME AND VERSION NUMBER: BLS/WAS-AE, in Object Code
format, including: (i) WAS-AE (per Section 2.2 and as described
in Section 2.5 below), and (ii) BLS and Developer Studio (per
Section 2.2 and as described in Section 2.7 below) and WS (per
Section 2.2 and as described in Section 2.6 below).
2.3.2 REQUIRED FUNCTION FOR BLS/WAS-AE: BLS/WAS-AE will have all of
the features of WAS-AE (per Section 2.2 and as described in
Section 2.5 below) and BLS and Developer Studio (per Section
2.2 and as described in Section 2.7 below) plus the following:
A. Common install and configuration;
B. Ability to compile business objects into Enterprise
Java Beans;
C. Ability to host Vision Business Logic Services as
Enterprise Java Beans;
D. Ability to build and develop business logic in a non-US
English language (see below):
E. Ability to call into other Enterprise Java Beans; and
F. Ability to use RMI (over IIOP) for communication.
2.3.3 PRODUCT/OPERATING SYSTEM SUPPORTED BY BLS/WAS-AE: The server
portion will be supported on Windows NT Server Version 4.0, Sun
Solaris Version 2.6 at the latest maintenance level, AIX
Version 4.3.2 or later. The Developer Studio will be supported
on Windows NT Version 4.0, and Windows 98.
2.3.4 DOCUMENTATION FOR BLS/WAS-AE: WAS-AE end-user documentation
consisting of: (i) the WAS-AE Documentation Center (HTML only);
(ii) the Javadoc reference (HTML only, not translated); and
(iii) the Getting Started guide (HTML, RTF, and PDF) and the
BLS and Developer Studio end-user documentation consisting of:
(i) BLS Admin guide (PDF, HLP); (ii) Getting Started guide (PDF,
HLP); (iii) XDA connector manual (PDF, HLP); and (iv) Project
Management guide (PDF, HLP).
2.3.5 OTHER MATERIALS FOR BLS/WAS-AE: Test cases and test results, in
text format.
2.3.6 WS. The WS portion of the Integrated Code will have the
description provided in Section 2.6.
2.3.7 DELIVERY LOCATION AND OTHER SPECIFICS: Delivery will be
electronic via the Internet to an individual/site specified by
IBM.
2.4 INTEGRATED CODE FOR THE INTERNATIONAL VERSION OF RELEASE 1 GENERAL
DESCRIPTION. The International version of Release 1 will be the US
English language version of Release 1, with the addition of the
following:
2.4.1 [*]
2.4.2 IBM will translate these versions into the group 1 languages:
Spanish, French, Italian, German, Brazilian Portuguese,
Simplified Chinese, Traditional Chinese, Korean and Japanese.
2.5 DESCRIPTION OF WAS-AE CODE.
2.5.1 WAS-AE GENERAL DESCRIPTION.
[*] Confidential treatment requested for redacted portion.
Page 2 of 13
20
A. CODE NAME AND VERSION NUMBER: WAS-AE is WebSphere Application
Server Advances Edition (WAS-AE) Version 3.0, in object code form.
B. GENERAL DESCRIPTION OF ITS FUNCTION: WebSphere Application Server
Advanced Edition is a portable, Java-based web application
deployment platform which supports and executes Java Servlets, Java
Beans, Java Server Pages, and Enterprise Java Beans while
interacting with enterprise databases, transaction processing
systems, and other applications for dynamic web content. It provides
the portability and control of server-side business applications
along with the performance and manageability of Enterprise Java
Beans to offer a comprehensive Java-based Web application platform:
C. DOCUMENTATION: Documentation consists of developer and end-user
external documentation. All documentation is produced and delivered
in a softcopy format, either PDF or HTML.
D. OTHER MATERIALS: (NONE).
E. DELIVERY LOCATION: Distribution will be delivered electronically to
the designated Vision representative.
2.5.2 WAS-AE SPECIFIC DESCRIPTION.
A. CODE NAME AND VERSION NUMBER: WebSphere Application Server Advanced
Edition, in Object Code format, including:
i) all Java class files;
ii) selected DB2 files (see below);
iii) IBM HTTP Server Version 3.0 executable; and
iv) IBM JDK Version 1.1.7 for Windows NT, Version 1.1.6 for AIX
and Solaris.
B. REQUIRED FUNCTION: THE FOLLOWING ARE FEATURES OF WAS-AE:
i) Java Servlet Runtime, including servlet configuration,
virtual hosting, aliasing, and filtering;
ii) Enterprise Java Bean support;
iii) Java Server Page 0.91 and 1.0 and tag support;
iv) XML Document Structure Services;
v) Support for IBM, Apache, Microsoft, and Netscape HTTP
Servers;
vi) User Profile and Session tracking;
vii) Connection pooling;
viii) Database Connections and Databeans;
ix) Access Control;
x) Administration;
xi) Security;
xii) Workload Management;
xiii) Trace and Debug Support;
xiv) Monitoring and Graphing;
xv) Logging;
xvi) Multi-node administration;
xvii) Modeling/Cloning for WLM Support; and
xviii) Remote Servlet Execution Support.
C. The following features of DB2 are included:
i) DB2 Application Development;
ii) DB2 ADT Sample Programs;
iii) License Support for DB2;
iv) DB2 Client Application Enabler;
v) Code Page Conversion Tables;
vi) DB2 Connect;
vii) DB2 Communication Support;
Page 3 of 13
21
viii) Administration Server;
ix) DB2 Engine;
x) DB2 Run-time Environment;
xi) DB2 Sample Database Source;
xii) License Support for DB2 UDB;
xiii) Java Support;
xiv) Open Database Connectivity; and
xv) DB2 Replication.
D. PRODUCT/OPERATING SYSTEM SUPPORTED: [*].
E. NATIONAL LANGUAGE SUPPORT VERSION REQUIRED: NLS Enabled
and translated into the group 1 languages: Spanish,
French, Italian, German, Brazilian Portugese, Simplified
Chinese, Traditional Chinese, Korean and Japanese.
F. DOCUMENTATION: The WAS-AE end-user documentation
includes:
i) the WAS-AE Documentation Center (HTML only);
ii) the Javadoc reference (HTML only); and
iii) the Getting Started guide (HTML, RTF, and PDF).
G. OTHER MATERIALS: Test cases and test results, in text
format.
H. DELIVERY LOCATION AND OTHER SPECIFICS: Delivery will be
electronic via the Internet to an individual/site
specified by Vision.
I. ENCRYPTION: WAS-AE will be provided in separate builds
with either 56-bit or 128-bit encryption technology. IBM
will identify the nature of the build to Vision per
Section 5.4.
2.6 DESCRIPTION OF WS CODE.
2.6.1 WS GENERAL DESCRIPTION.
A. CODE NAME AND VERSION NUMBER: WS is WebSphere Studio
Version 3.0, in Object code form.
B. GENERAL DESCRIPTION OF ITS FUNCTION: WebSphere Studio is
a set of web application development tools designed to
allow web developers to create dynamic web applications
that run on the WebSphere Application Server. The
product will be delivered as it is shipped to IBM
customers. The WS package will include WebSphere Studio
3.0, NetObjects ScriptBuilder 3.0 and VisualAge for Java
Professional Edition 3.0.
C. DOCUMENTATION: Documentation consists of Developer and
end-user external documentation. All documentation is
produced and delivered in a softcopy format, either HLP,
PDF or HTML.
D. OTHER MATERIALS: (None).
E. DELIVERY LOCATION: Distributions will be delivered via
CD-ROM to the designated Vision Representative.
2.6.2 WS SPECIFIC DESCRIPTION.
A. CODE NAME AND VERSION NUMBER: WebSphere Studio Version
3.0 in Object Code format (as well as NetObjects
ScriptBuilder 3.0 in Object Code format and VisualAge
for Java Professional Edition 3.0 in Object Code
format).
B. REQUIRED FUNCTION: The following are features of
WebSphere Studio:
i) Graphical display of the links between files in a
project;
ii) Automatic update of links whenever files change or
move;
iii) Registration of other tools for editing;
* Confidential treatment requested for redacted portion.
Page 4 of 13
22
iv) A built-in Page Designer to visually create and
edit HTML and JSP files;
v) Wizards that jump-start the creation of dynamic
pages using databases and JavaBeans;
vi) Staging and publishing to different (and to
multiple) servers;
vii) An integrated Debugger to find JSP and Java
code problems;
viii) Integration with popular source control
management software;
ix) Applet Designer, a visual authoring tool for
building Java applets;
x) WebArt Designer, for creating masthead images,
buttons, and other graphics; and
xi) AnimatedGif Designer, for assembling GIF
animations.
C. PRODUCT/OPERATING SYSTEM SUPPORTED: Windows NT Version
4.0 with Service Pack 3, Windows 95, or Microsoft
Windows 98.
D. NATIONAL LANGUAGE SUPPORT VERSION REQUIRED: NLS Enabled
and translated into the group 1 languages: Spanish,
French, Italian, German, Brazilian Portuguese,
Simplified Chinese, Traditional Chinese, Korean and
Japanese.
E. DOCUMENTATION: WebSphere Studio end-user documentation:
i) WS Documentation Center (HTML only);
ii) Online help files (HLP); and
iii) Getting Started guide (HTML, RTF and PDF).
F. OTHER MATERIALS: (none).
G. DELIVERY LOCATION AND OTHER SPECIFICS: Delivery will be
via CD-ROM to an individual / site specified by Vision.
In addition to WebSphere Studio 3.0, the CD will contain
NetObjects ScriptBuilder 3.0 and VisualAge for Java
Professional Edition 3.0.
2.7 DESCRIPTION OF VISION CODE (BLS AND DEVELOPER STUDIO).
2.7.1 BLS AND DEVELOPER STUDIO GENERAL DESCRIPTION
A. CODE NAME AND VERSION NUMBER: BLS is Vision Business
Logic Server Version 5.0 and Developer Studio is Vision
Developer Studio Version 5.0, both in Object Code
format.
B. GENERAL DESCRIPTION OF ITS FUNCTION: Vision Business
Logic Server provides logic execution services for
executing business rules. Vision Developer Studio is a
complete development environment for developing
presentation, business logic and data access logic for
web applications.
C. DOCUMENTATION: Documentation consists of developer and
end-user external documentation. All documentation is
produced and delivered in a delivery format, either PDF
or HLP.
D. OTHER MATERIALS: Test cases, delivered in text format.
E. DELIVERY LOCATION: Distributions will be delivered
electronically to the designated IBM representative.
2.7.2 BLS AND DEVELOPER STUDIO SPECIFIC DESCRIPTION.
A. CODE NAME AND VERSION NUMBER: Vision Business Logic
Server Version 5.0 and Vision Developer Studio Version
5.0, both in Object Code format.
B. REQUIRED FUNCTION: The following are features of Vision
Business Logic Server and Vision Developer Studio:
i) Ability to compile business objects;
ii) Ability to capture business rules;
iii) Ability to reverse engineer existing objects;
iv) Ability to deploy business objects to the
server;
v) Ability to define applications using diagrams;
vi) Ability to customize client and server objects;
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vii) Ability to monitor business logic execution;
viii) Ability to bind business objects to presentation logic;
ix) Ability to manage result sets efficiently; and
x) Ability to integrate business rules with external data.
C. PRODUCT/OPERATING SYSTEM SUPPORTED: The Developer Studio is
supported on [*]. The Business Logic Server is supported on [*].
D. NATIONAL LANGUAGE SUPPORT VERSION REQUIRED: The Business Logic
Server will be NLS Enabled [*]. The Developer Studio will be NLS
Enabled [*].
E. DOCUMENTATION: BLS and Developer Studio end-user documentation
consists of:
i) BLS Admin guide (PDF, HLP);
ii) Getting Started guide (PDF; HLP);
iii) XDA connectors manual (PDF, HLP); and
iv) Project Management guide (PDF, HLP).
F. OTHER MATERIALS: Test cases, delivered in text format.
G. DELIVERY LOCATION AND OTHER SPECIFICS: Delivery will be
electronic via the Internet to an individual/site specified by
IBM.
3.0 IBM DELIVERABLES
3.1 WAS-AE. When it becomes available, IBM will deliver to Vision a golden
master copy of WAS-AE for integration by Vision into the Vision Code to
produce Release 1 of the Integrated Code.
3.2 WAS-AE DRIVERS. When they become available, IBM will deliver to Vision
IBM's internal drivers for WAS-AE. Based upon driver stability, the IBM
Development Manager will determine which drivers are appropriate for
delivery by IBM to Vision. This early access will allow Vision to start
both analysis of the new features and test for backward compatibility
early on in the release cycle. Vision realizes that these are early builds
and as such have not completed IBM's full test cycle; hence. IBM will
provide Vision with functional restrictions associated with these early
builds.
3.3 WS. IBM will deliver to Vision a golden master copy of WS for eventual
distribution as part of the Integrated Code.
3.4 IBM MAINTENANCE RELEASES AND PATCHES. During the term of the Agreement,
IBM will deliver all maintenance releases and patches of WAS-AE and WS
made available to other IBM customers to Vision, including those that
result from defects reported to IBM by Vision. The maintenance releases
and patches will be provided to Vision when they are provided to IBM's
commercial customers.
3.5 IBM-TRANSLATED MATERIALS. IBM will deliver the IBM-translated versions of
Vision's PII files and documentation as they are described in Section
4.1.3 to Vision for incorporation into the Vision Code.
3.6 TEST CASES. IBM will deliver to Vision those WAS-AE test cases which are
relevant to the development effort.
3.7 IBM DOCUMENTATION. IBM will deliver to Vision the WAS-AE Getting Started
Guide in source format and the WAS-AE Documentation Center in US English
and in supported translated languages as specified in Section 5.2.1 to
Vision. These guides will use the generic nomenclature and will not be
company specific in their identification of various components. However,
in the interest of shipping the respective products at the earliest
reasonable date, the product documentation may include company-specific
references in Release
* Confidential treatment requested for redacted portion.
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1. The documentation for any other IBM products addressed in this JP-SOW
will be delivered to Vision consistent with that product's IBM deliverable to
its customers.
3.8 INSTALLATION CODE. IBM will deliver to Vision WAS-AE silent install Object
Code. This Code will allow WAS-AE to be silently installed by BLS in the
BLS/WAS-AE product.
4.0 VISION DELIVERABLES
4.1 BLS/WAS-AE.
4.1.1 Preliminary Builds. Vision will deliver to IBM builds of BLS/WAS-AE
after Visions's code freeze (which is equivalent to the code and
unit test completed phase). Based upon driver stability, the Vision
Development Managers will determine which builds are appropriate
for delivery by Vision to IBM. This early access will allow IBM to
start both analysis of the new features and test for backward
compatibility early on in the release cycle. IBM realized that
these are early builds and as such have not completed Vision's full
test cycle. Vision will provide IBM with functional restrictions
associated with these early builds.
4.1.2 Final Build. Vision will deliver to IBM a fully-tested version of
BLS/WAS-AE in an installable format. The final builds will meet the
specification described in Section 9.0 "Acceptance."
4.1.3 PII Volumes. Vision will deliver to IBM its Program Integrated
Information ("PII") volumes. Vision will also deliver to IBM its
non-PII volumes. Non-PII includes HTML and product documentation
(PDF and help files). These deliveries will occur as referenced in
Section 8.0.
4.1.4 Complete NLS Build. Vision will deliver to IBM the complete NLS
builds of BLS/WAS-AE as well as a separate Vision Developer Studio
NLS build for TVT prep/entry in an operational and installable
format. These deliveries will occur as referenced in Section 8.0.
4.1.5 Final NLS Build. Vision will deliver to IBM the final NLS builds of
BLS/WAS-AE as well as a separate Vision Developer Studio NLS build
in an installable format based on TVT-exit level code. These
deliveries will occur as referenced in Section 8.0.
4.1.6 Test Cases. Vision will deliver to IBM those BLS and Developer
Studio test suites, its BLS/WAS-AE port of those test suites, and
its BLS/WAS-AE test cases that are relevant to the development
effort.
4.2 VISION MAINTENANCE RELEASES AND PATCHES. During the term of this Agreement,
Vision will deliver all maintenance releases and patches of BLS/WAS-AE to
IBM, including those that result from defects reported to Vision by IBM.
The maintenance releases and patches will be provided to Vision when they
are provided to IBM's commercial customers.
4.3 VISION DOCUMENTATION. Vision will deliver the following items in US
English to IBM as part of the BLS/WAS-AE delivery:
4.3.1 Developer's guide to using BLS/WAS-AE;
4.3.2 System Administration guide for BLS/WAS-AE;
4.3.3 Developer's Reference for BLS/WAS-AE;
4.3.4 Vision API documentation;
4.3.5 On-line help files; and
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4.3.6 Getting Started (Vision's book).
The Vision Documentation will be delivered in two output formats: Adobe
Acrobat Format (.pdf) and Windows help (.hlp). Additionally, to
facilitate the reformatting of these guides to IBM product standards,
Vision will provide the documentation source to IBM in Framemaker and
Rich Text Format. These guides will use the generic nomenclature and
will not be company specific in its identification of various
components. However, in the interest of shipping the respective products
at the earliest reasonable date, the product documentation may include
company-specific references in Release 1. For Release 1, the images will
not be converted to different documentation formats and will not be
localized to various languages.
5.0 IBM RESPONSIBILITIES
5.1 IBM DELIVERABLES. IBM will provide all IBM Deliverables to Vision in
accordance with the Schedule in Section 8.0 and the specifications
described in this SOW.
5.2 NATIONAL LANGUAGE SUPPORT ("NLS").
5.2.1 NLS Translation of Vision Code. IBM will translate the Vision
Code, perform a translation verification test ("TVT") and
deliver the IBM-translated version of these files and
documentation to Vision for eventual distribution as part of
Vision's version of the BLS/WAS-AE product. The Vision Code will
be translated into group 1 languages: Spanish, French, Italian,
German, Brazilian Portuguese, Simplified Chinese, Traditional
Chinese, Korean and Japanese. [*].
5.2.2 NLS and IBM Code. The IBM Code is NLS enabled for all platforms
[*].
5.2.3 [*]
5.2.4 Timing of Delivery. Due to the time needed to translate the PII
and non-PII volumes, the translated PII and non-PII volumes will
be available for delivery by IBM to Vision following the US
English language delivery by an expected 30 days.
5.3 TESTING AND QUALITY ASSURANCE.
5.3.1 IBM will perform a TVT per Section 5.2.1.
5.3.2 IBM will review Vision's BLS/WAS-AE test plans/cases in order to
independently confirm their comprehensiveness. Any proposed
modifications to these test plans/cases will need to be mutually
agreed upon.
5.3.3 IBM will provide the necessary number of engineers to work with
Vision during the testing process to help test and certify
acceptance (per Section 9.0) of the BLS/WAS-AE product.
* Confidential treatment requested for redacted portion.
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5.3.4 IBM will create a test plan/cases to test the BLS/WAS-AE product
that it intends to complete in parallel with the Vision testing.
At the completion of the NLS TVT, IBM or Vision may decide to
refresh the previously released English version of the product
via the service stream to incorporate any functional defect
solutions. Additional details regarding personnel requirements
will be included in the IBM's test plan.
5.3.5 IBM will report all BLS and related Vision Code and Documentation
defects to Vision for appropriate resolution. Upon receipt of the
defect solution, IBM will verify that the solution corrects the
original defect and so inform Vision. Additional testing details
will be included in IBM's test plan.
5.4 Encryption. IBM will identify to Vision the levels of encryption for each
WAS-AE build delivered to Vision. (See Section 7.5).
6.0 VISION RESPONSIBILITIES
6.1 Vision Deliverables. Vision will provide all Vision Deliverables to IBM
in accordance with the Schedule in Section 8.0 and the specifications
described in this SOW.
6.2 National Language Support ("NLS"). Vision will NLS-enable the Vision
Code and deliver to IBM as part of the BLS/WAS-AE delivery all
externalized resource files, documentation and help files for NLS
translation by IBM as described under Section 5.1. Vision will perform
an NLS enablement verification test. All of the NLS enablement test
cases, as reviewed by IBM (per Section 5.3.2), must be executed to
completion before IBM can perform a TVT.
6.3 TESTING AND QUALITY ASSURANCE.
6.3.1 Vision has a regression suite to test multiple aspects of the
Vision Developer Studio and BLS products. Vision will port the
test suite to enable testing of the BLS/WAS-AE product. In
addition, Vision will develop new tests for the integrated
product. This testing suite will be used to certify the BLS/WAS-AE
product. [*]. The platform matrix will be included in the Vision's
product test documentation as referenced in Section 5.3.2. [*].
Vision intends to use its QA staff to its fullest and expects to
assign the necessary number of QA engineers to help with the
complete testing and certification of the project.
6.3.2 Vision will report all WAS-AE and related IBM Code and
Documentation defects to IBM for appropriate resolution. Upon
receipt of the defect solution from IBM, Vision will verify that
the solution corrects the original defect and so inform IBM.
Additional testing details will be included in Vision's test plan.
6.3.3 Vision personnel will be available to assist IBM in the testing of
the English language version of the BLS/WAS-AE product. At lest
one Vision employee will be expected to assist the IBM TVT team on
site with the execution of their activities to verify the proper
translation of the Vision product(s) and to maintain the TVT
schedules. Additionally, Vision may be required, at IBM's
discretion, to provide daily or more frequent delivery of product
builds (Preliminary Builds) during the TVT to allow that test to
maintain its project schedule goals. The TVT build requirements
usually pertain to the correction of translated information only,
but may also require functional defect corrections.
* Confidential treatment requested for redacted portion.
27
6.3.4 Vision will review IBM's BLS/WAS-AE test plans/cases in order to
ensure their comprehensiveness. Any proposed modifications to these
test plans/cases after the review must be approved by IBM.
6.3.5 Vision will perform NLS-enablement testing per Section 6.2.
6.3.6 Vision will perform a final functional/installation regression test
on the BLS/WAS-AE final build to ensure that all components are
installed properly before delivery to IBM.
6.4 END-USER PRODUCT LICENSING. Before providing BLS/WAS-AE product to IBM,
Vision will disable all key-enabled utilities such that the use of the
BLS/WAS-AE product by IBM end-users is not contingent upon key access.
7.0 JOINT RESPONSIBILITIES
7.1 DEVELOPMENT.
7.1.1 [*].
7.1.2 [*].
7.1.3 Each party will provide the appropriate project personnel and
tracking information to the other on a regularly scheduled basis.
This will be provided during a weekly conference call.
7.2 YEAR 2000 TESTING. Vision will test the Year 2000 compliance of
BLS/WAS-AE and ensure that it is Year 2000 ready such that when used in
accordance with the appropriate documentation it is capable of correctly
processing, providing, receiving and displaying date data before and
after January 1, 2000 (including without limitation leap year
calculations), provided that all products (for example, hardware, software
and firmware) used with BLS/WAS-AE properly exchange accurate date data
with it.
7.3 PRODUCT MANUFACTURING. Each party will produce the appropriate media and
physical documentation for products incorporating the Integrated Code
independently. Each party will provide to the other the necessary CD
media layout information to enable each company to package the products
for their respective offerings.
7.4 PRODUCT USER INTERFACE. The user interface for the Integrated Code will
remain intact with the only change between the IBM and Vision versions
being the product name, icon and any terms, conditions and prices offered
by the parties. IBM will supply a product name and icon that will be used
consistently across the product for the IBM version of the Integrated
Code. IBM and Vision will include the necessary copyright and trademark
notices in the Integrated Code for each other's components.
7.5 ADMINISTRATIVE REQUIREMENTS. WAS-AE contains 56-bit or 128-bit
encryption technology. This technology is required to be registered with
the US Government and handled appropriately according to the US State
Department guidelines.
* Confidential treatment requested for redacted portion.
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7.6 CERTIFICATES OF ORIGINALITY. Each party will provide the other with a
Certificate of Originality for the IBM Code and Vision Code (respectively),
substantially in the format of Attachment 1.
8.0 SCHEDULE
The following chart describes the series of milestones that the parties
understand must be achieved in order to maintain the defined schedule. These
milestones are specified in order to ensure a reasonable set of expectations
for the delivery schedule from each party.
[*]
9.0 ACCEPTANCE
9.1 IBM's acceptance test is expected to consist of a subset of the previously
executed test cases completed by Vision and IBM. The acceptance tests may
include one or more of the following: (i) component testing; (ii)
functional verification testing; (iii) system testing; and (iv)
compatibility testing.
9.2 The acceptance criteria will be determined in advance according to the
schedule in Section 8.0. At a minimum, IBM will determine if:
9.2.1 the Integrated Code meets the specifications described in this
SOW;
* Confidential treatment requested for redacted portion.
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9.2.2 the Integrated Code executes repetitively within the system
environment described in this SOW;
9.2.3 IBM can successfully execute to completion all functional and
system test scenarios; and
9.2.4 all Severity 1 and Severity 2 (as those terms are defined in the
Product Support Attachment) problems are resolved, or an action
plan to resolve them has been agreed upon by IBM and Vision. This
action plan shall have specific dates and responsibilities
identified.
9.3 The final acceptance test of the NLS versions will be the TVT.
10.0 PRODUCT SUPPORT
10.1 For the purposes of this Section 10 and of the Product Support Attachment,
"Licensor" and "Licensee" shall refer to Vision or IBM, as applicable,
depending on whether the party is the licensor or licensee of the rights
granted in Sections 3.1 and 3.2 of the Joint Product and Marketing
Agreement.
10.2 Each party will provide the staff and processes required to deliver Level 1
and 2 product support directly to its respective customers for the
Integrated Code as defined in the Product Support Attachment.
10.3 The Licensor will provide the staff and processes required to deliver Level
3 product support to the Licensee for the Licensor's portion of the
Integrated Code (IBM Code or Vision Code, respectively) as defined in the
Product Support Attachment.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
By: /s/ XXXX X. XXXXXXXX 9-27-99 By: /s/ XXXX X. XXXXXX XX. 9-27-99
-------------------------------------- ----------------------------------
IBM Signature Date Vision Signature Date
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxx Xx.
-------------------------------------- ----------------------------------
Printed Name Printed Name
Contract Specialist, IBM Corporation President & CEO
-------------------------------------- ----------------------------------
Title and Organization Title and Organization
IBM Address: Vision Address:
-------------------------------------- ---------------------------------
IBM Corporation Vision Software Tools, Inc.
0000 Xxxxxxxxxx Xxxx, 002/VRDA 0000 Xxxxxxx Xxxxxx, Xxxxxx Floor
Research Triangle Park, NC 27709 Xxxxxxx, XX 00000
XXX XXX
Page 12 of 13
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ATTACHMENT 1: CERTIFICATE OF ORIGINALITY
The Certificate of Originality questionnaire may be used to cover one complete
Licensed Work, even if that Licensed Work includes multiple modules. Write "not
applicable" or "N/A" if a question is not relevant to the furnished software
material.
1. The following Certificate of Originality applies to ___________ described
in this Statement of Work.
2. Was any portion of the software material written by anyone other than you
or your employees within the scope of their employment? YES ___ NO ___ If
YES, identify the author and the circumstances:
A) Indicate if the whole software material or only a portion thereof was
written by such party, and identify such portion:
i. Specify for each involved party the name, address, and
citizenship:
ii. If the party is a company, how did it acquire title to the
software material (e.g., software material was written by
company's employees within the scope of their employment)?
iii. If the party is an individual, did he/she create the
software material while employed by or under contractual
relationship with another party? YES ___ NO ___ If YES,
provide name and address of the other party and explain the
nature of the contractual relationship:
B) How did you acquire title to the software material written by the
other party?
3. Are any copyright, confidentiality, or proprietary notice(s) present
on the software material(s)? YES ___ NO ___ If YES, please describe such
notice(s).
4. Was any portion of the software material (e.g., Code, associated
documentation or Externals) derived from preexisting works (either yours or
a third party's), including any code from freeware, shareware, electronic
bulletin boards, or the Internet? YES ___ NO ___ If YES, please identify
the material, author, owner and copyright notice, if any, for each of the
preexisting materials.
5. Does any of the software materials (e.g., Code, associated documentation or
Externals) include recognizable voices, pictures or other likenesses?
YES ___ NO ___ If YES, how did you acquire rights to use such recognizable
voices, pictures or other likenesses?
6. Provide an explanation of any other circumstance which might affect the
licensee's ability to reproduce, distribute and market this software
material, including whether your software material was prepared from any
preexisting materials which have any: a) confidentiality or trade secret
restrictions to others; b) known or possible royalty obligations to others;
and c) used other preexisting materials developed for another party or
customer (including government) where you may not have retained full rights
to such other preexisting materials.
Authorized Signature: /s/ XXXX X. XXXXXX XX.
------------------------------
Name: Xxxx X. Xxxxxx Xx.
------------------------------
Title: Pres. & CEO
------------------------------
Date: 9-27-99
------------------------------
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ATTACHMENT 2: PRODUCT SUPPORT
This Product Support Attachment is part of and incorporates by reference the
terms and conditions of the Joint Product and Marketing Agreement and its
Statements of Work and other Attachments, and capitalized terms used herein,
unless otherwise defined herein, shall have the meaning ascribed to them in the
Agreement.
1.0 DEFINITIONS
1.1 "CUSTOMER" is the end-user of the Integrated Code.
1.2 "CORRECTION TIMES" are objectives that each party must achieve for
resolution of errors and distribution of the appropriate correction to
the Customer or to the Licensee (as appropriate).
1.21. "Severity 1" requires maximum effort support until an emergency
fix or bypass is developed and available for shipment to the Licensee.
Critical situations may require Licensee and Licensor personnel to be at
their respective work locations or available on an around-the-clock
basis. The objective will be to provide relief to Licensee within [*]
hours and provide a final solution or fix within [*] days;
1.22 "Severity 2" must be resolved within [*] calendar days;
1.23 "Severity 3" must be resolved within [*] calendar days; and
1.24 "Severity 4" must be resolved with a bypass or by the next
release of the product.
The calendar days begin when Licensor receives the PMR from Licensee and
supporting documentation and end when the Maintenance modification or
other resolution is shipped to Licensee. Licensee will consider
exceptions from these objectives when warranted by technical or business
considerations.
1.3 PMR SEVERITY LEVELS are designations assigned by Licensee to errors
reported to indicate the seriousness of the error based on the impact
that the error has on the operation of Licensee or its Customer:
1.31 SEVERITY 1 is a critical problem. Licensee or its Customer
cannot use the Licensor Code or there is a critical impact on
the operations of Licensee or its Customer which requires an
immediate solution;
1.32 SEVERITY 2 is a major problem. Licensee can use the Licensor
Code, but an important function is not available or the
operations of Licensee or its Customer are severely impacted;
1.33 SEVERITY 3 is a minor problem. Licensee can use the Licensor
Code with some functional restrictions, but it does not have a
severe or critical impact on the operations of Licensee or its
Customer; and
1.34 SEVERITY 4 is a minor problem that is not significant to the
operations of Licensee or its Customer. Licensee may be able to
circumvent the problem.
1.4 Licensee Test Systems are an appropriate configuration of installed
hardware and software that Licensee maintains which is representative of
typical Customer installations using the Integrated Code. These test
systems will contain, at a minimum, a level or prerequisite/co-requisite
hardware and software that is correspondent with that of the documented,
supported platforms of the shipping product (e.g. the product
prerequisite requirements).
1.5 Maintenance Level Service is the service provided when Licensee
identifies an error.
1.51. LEVEL 1 is the service provided in response to Licensee's
initial phone call identifying an error.
1.52. LEVEL 2 is the service provided to reproduce and attempt to
correct the error or to find that the service provider cannot reproduce
the error.
* Confidential treatment requested for redacted portion.
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1.53 Level 3 is the service provided to isolate the error at the component
level of the Code. The service provider distributes the Maintenance
Modification or circumvention or gives notice if no Maintenance
Modification or circumvention is found.
1.6 PROBLEM DETERMINATION/CHARACTERIZATION is the process of determining
whether a problem is being caused by hardware, software or documentation.
1.7 PROBLEM MANAGEMENT RECORD ("PMR") is a record created when Licensee makes
the initial support request. This record becomes a part of the Licensee's
problem management system database and records the essential information
about Licensee's question or problem.
1.8 PROBLEM SOURCE IDENTIFICATION is the process of determining which software
or documentation component is failing or attributing the failure to some
external cause such as a Licensee error or to no trouble found.
2.0 MAINTENANCE AND SUPPORT RESPONSIBILITIES
2.1 The parties will agree to the specific details of the process flow each
will follow to resolve problem calls for requests for support 30 days
prior to the general availability of the first Integrated Code product
released by one of the parties.
2.2 Licensor will provide Licensee electronic (softcopy) information on any
known problems in the Licensor Code and the work arounds and solutions, if
available, within fourteen (14) days prior to the general availability of
the Integrated Code.
2.3 IBM Customers will initiate requests for support by contacting IBM; Vision
Customers will initiate requests by contacting Vision. IBM or Vision, as
appropriate, will perform the following Maintenance Level Service (Level
1) support responsibilities for its Customers, as described below. Each
party will:
2.31 create the PMR;
2.32 obtain from the Customer a description of the problem, and verify
its severity;
2.33 search its data base for known problems;
2.34 provide the available resolution if the problem is known;
2.35 recommend local assistance as required;
2.36 if no resolution, pass the PMR to that party's Level 2 personnel; and
2.37 update the PMR, documenting Level 1 actions.
Each party will be the primary contact point for its Customers for
questions, problems and assistance concerning the Integrated Code. Either
party may use a third party to perform its obligations.
2.4 thirty days prior to general availability of the Integrated Code, each
party will establish a process to check incoming electronic requests for
Level 3 support at least twice daily.
2.5 The parties agree to the following Customer Product Maintenance Level
Service responsibilities.
2.51 Each party will perform the following Xxxxx 0 responsibilities for its
Customers:
A. receive the PMR from its Level 1 personnel;
B. analyze problem symptoms and gather additional Customer data
from its Level 1 personnel as required;
C. recreate the problem on its Test Systems;
D. determine if the error is due to improper installation of the
Integrated Code by the Customer;
Page 2 of 5
33
E. determine if the suspected error is due to prerequisite
or operationally related equipment or software at the
Customer location;
F. determine if the error is due to the Licensor Code;
attempt a bypass or if so, create a new PMR between
Licensee and Licensor for the error circumvention for
high impact problems, i.e., Severity 1 and 2;
G. if no resolution and the problem appears not to be with
the Licensor Code, to be a newly discovered Code or
documentation error, create a problem analysis record.
H. update the PMR, documenting Xxxxx 0 actions.
2.52 Licensor will perform the following Xxxxx 0 responsibilities if
the error is determined at Level 2 to be connected to the
Licensor Code:
A. receive the PMR and supporting documentation and
materials;
B. analyze the problem symptoms and diagnose the suspected
error;
C. notify Licensee's Level 2 personnel if additional
information, materials or documentation are required;
D. assist Licensee's Level 2 personnel in attempting to
develop a bypass or circumvention for high impact
problems, e.g., Severity 1 and 2;
E. If Maintenance Modifications are required to the
Licensor Code, provide Maintenance Modifications to
Licensee in the format specified by Licensee;
F. if Licensor requests, Licensee will assist Licensor in
obtaining additional materials to support problem
determination, problem source identification and problem
resolution;
G. provide resolution to PMRs according to the assigned
Severity Level and within the defined Correction Time,
such Correction Times including building, testing,
certifying successful tests of Maintenance
Modifications, and packaging for shipment to Licensee
and applicable Maintenance Modifications in the physical
format specified by Licensee;
H. receive technical questions, and supporting
documentation and materials;
I. analyze the technical questions and provide answers to
Licensee;
J. for high impact situations, e.g. Severity 1 and 2,
provide technical backup support to Licensee on the
Integrated Code for the Licensor Code as provided above
and provide assistance in answering questions that may
arise concerning the operation and use of the Licensor
Code that cannot be resolved by Licensee; and
K. close out the problem record with Licensee.
2.6 Level 3 Problem Resolution Criteria. The following criteria apply to
Licensor's Maintenance and Support under this Agreement. Maintenance
and Support under this Agreement. Maintenance and Support includes both
work associated with defects in the Code or Documentation. The criteria
listed below are during the times described in Section 2.6 below unless
noted differently. Licensor's obligation to resolve defects begins when
the problem is transferred to Licensor and ends when the problem is
determined not to be a defect in the Code, or when the final resolution
is accepted by Licensee.
2.7 Licensor agrees not to discuss or disclose problem resolution
information, where Licensee identifies such information as confidential
pursuant to the terms and conditions of the CDA referenced in the
Agreement, with any third parties without obtaining Licensee's prior
written consent (e-mail authorization is sufficient).
2.71 Initial Response Times. The initial response is an
acknowledgment from Licensor to Licensee that a problem has been
transferred to Licensor. Licensor must provide response to
Licensee within the following time periods:
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34
[*]
2.72 Temporary Relief. Unless Licensor has provided Licensee a final
resolution, Licensor agrees, if possible, to provide Licensee
Temporary Relief to the problem (as Licensee determines acceptable)
within the following time periods:
A. [*]
B. Severity 2 - Not applicable
C. Severity 3 - Not applicable
D. Severity 4 - Not applicable
2.73 Final Resolution. Licensor agrees to provide a final resolution as
soon as reasonably possible but no later than the Correction Times.
2.8 At least once every year, Licensor will provide a service pack for the
Licensor Code that includes all Maintenance Modifications to the Licensor
Code. Licensor will provide service packs for the Licensor Code to
Licensee when such versions are provided to other Licensor customers.
Additional service packs for the Licensor Code will be provided as
determined and mutually agreed to by Licensee and Licensor in the event
they become necessary due to the frequency or severity of newly
discovered defects.
2.9 Licensor will maintain procedures to ensure that new Maintenance
Modifications are compatible with previous Maintenance Modifications.
2.10 Delivery of Maintenance Modifications and migration Code to the Licensee
will be done as mutually agreed to by the Development Managers.
2.11 Vision will provide IBM with read only access to the BLS Bug Tracking
System and any knowledge database or systems used by the Vision technical
support team. IBM will provide access to similar IBM information systems
pertaining to the IBM Code to the Vision customer support, quality
assurance and development teams.
3.0 PMR ORIGINATION AND CORRECTION
3.1 Licensor will also report (via the information system/Bug Tracking System
access described in Section 2.11) to Licensee as PMR's all valid errors
discovered by Licensor and resolve such errors as set out below within
the applicable Correction Times:
3.11 the fix to the Object Code in machine-readable form including a
hard copy description of the Maintenance Modifications (which may
include a paper submission of the Maintenance Modifications);
3.12 the Maintenance Modifications to the Source Code in
machine-readable form that corresponds to the Object Code
Maintenance Modifications; and
3.13 for a procedural work-around, the corrected procedure in
machine-readable form.
3.2 Comments received by Licensee that do not form the basis of a PMR will be
forwarded to Licensor for proper and prompt handling as appropriate.
* Confidential treatment requested for redacted portion.
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4.0 TRAINING
4.1 Licensor will provide training on the Licensor Code at Licensee's
request, at Licensor's expense, and at the scope and level of effort
described below. This training will be provided on Licensor's premises
and will include:
4.11 Level 1 and Level 2 technical training and education of the
Licensee development staff on the workings of the Code;
4.12 Level 1 and Level 2 training on the Object Code version of the
Licensor Code for Licensee personnel within ninety (90) days of
delivery of the Licensor Code. This training will be for up to
fifteen (15) persons for a duration to be mutually agreed upon
and provide to Licensee the knowledge and use of any error
detection database, support detection methods, etc. that reduces
the delay to Customer issue resolution. Licensor will provide
Licensee, for its review and concurrence, a course description
including course objectives, an outline, required advance study
assignments, and course completion criteria;
4.13 Refresher and update Object Code version training at Licensee
should occur with each major release or feature enhancement.
Such training will be in a format similar to the initial course;
and
4.14 Each party will be responsible for its own travel-related
expenses.
5.0 GENERAL
5.1 Each party will provide to the other the name and phone numbers of that
party's personnel to contact when high priority problems are encountered
outside of normal working hours that require immediate assistance. IBM's
normal working hours are defined as 8:00AM to 5:00PM, Monday thru
Friday, Eastern Standard Time. Vision's normal working hours are defined
as 6:00AM to 6:00PM, Monday thru Friday, Pacific Standard Time.
5.2 Licensor will provide to Licensee, on request, information regarding
the status of reported PMRs related to the Licensor Code.
5.3 It is desirable that Licensee report PMRs and status requests to
Licensor via an electronic interface and that Licensor send Maintenance
Modifications, status updates and requests for additional documentation
to Licensee via the same interface. Licensee and Licensor will jointly
plan the electronic system. Each party is responsible for funding the
costs of this interface at its location.
5.4 Critical situations may require the parties to use the telephone for
immediate communications. The parties will follow such communications
via the electronic interface for tracking and recording purposes. Each
party is responsible for funding the costs of this communication at its
location.
5.5 In circumstances where materials have to be exchanged using facsimile or
courier services, each party is responsible for funding the costs of
these exchanges via facsimile or courier services at its location.
5.6 Licensor will participate in monthly telephone conference calls with
Licensee to review the status and performance of the parties'
obligations. These calls may be scheduled more or less frequently as
agreed to by the Development Managers. Each party is responsible for
funding the costs of these conference calls at its location.
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IBM AND VISION
JOINT PRODUCT AND MARKETING AGREEMENT
JOINT MARKETING STATEMENT OF WORK
This JM-SOW is part of and incorporates by reference the terms and conditions of
the Joint Product and Marketing Agreement and capitalized terms used herein,
unless otherwise defined herein, shall have the meaning ascribed to them in the
Agreement.
This SOW covers a new version of Vision's current product line that will be
built to re-host Vision's BLS on top of IBM WAS-AE. This SOW details the
structure of this joint marketing relationship.
1.1 The Integrated Code will be licensed and distributed by both Vision and
IBM (and their respective distributors) under their respective logos,
prices, terms, and conditions.
1.2 IBM will require a "WebSphere inside" or similar attribution of the
product and must approve the product name of the Vision release of the
Integrated Code, such approval not to be unreasonably withheld or
delayed.
IBM intends to include Vision attribution in the appropriate product
description information used with the IBM product, and will attempt to
include product identity linkage with the Vision product in the IBM
product name, but will not include the word "Vision." If necessary
Vision agrees to provide IBM the appropriate trademark license rights
in order to provide attribution to Vision.
1.3 Vision and IBM will provide skills transfer to each other's field
sales. The skills transfer will consist of sales training and "T3" or
"train the trainer" education. Each party will be responsible for its
own expenses incurred pursuant to this Section 1.3 The details and
location will be mutually agreed upon via the Marketing Program
Managers.
1.4 IBM and Vision will use reasonable efforts to develop and implement
marketing programs. Both parties will provide reasonable support to
each other to accomplish these tasks as described in the Marketing
Activities Attachment. Both parties will have the right to use
marketing collateral produced to create their own versions of the
collateral.
1.5 To create awareness and generate demand for the Releases, IBM and Vision
will each make marketing investments as further defined in the Marketing
Activities Attachment to support activities such as:
1.5.1 Relationship announcement, product announcements, ongoing press
and consultant activities;
1.5.2 Concept awareness for e-business automation and concept
education on Business Logic Server and business rules
automation;
1.5.3 Strategic positioning of the Releases in the context of IBM's
Application Framework for e-business, the WebSphere family of
web application servers, and the VisualAge family of products;
1.5.4 Product and marketing campaign web linkages;
1.5.5 e-business seminars, business shows, and customer executive
events (to the extent that such activities are led or jointly
funded by IBM, they will consist of appropriate content in
existing IBM geography-based marketing activities and will be
dependent on IBM geography approval);
1.5.6 Direct marketing campaign linage, targeted direct mail
campaigns, and telemarketing (to the extent that such activities
are led or jointly funded by IBM, they will be dependent on IBM
geography approval);
1.5.7 Direct sales and support channel training and client executive
education;
1.5.8 Indirect channel development focus including Regional SIs and
Web SIs;
1.5.9 Providing access to the other party's marketing collateral. IBM
will provide Vision with the details of the collateral access
process used within IBM. Vision will provide IBM access to the
process used within Vision.
IBM and Vision Confidential
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37
1.6 In order to successfully train the IBM Application Integration
Middleware (AIM) worldwide sales force, [*].
1.7 To ensure that a satisfactory level of market development and program
activities will occur, each company agrees to the minimum quarterly
investment of joint marketing funds, in addition its investment of
internal marketing resources (marketing personnel, time, travel and
living expenses, and so forth) that is described in the Marketing
Activities Attachment. The Joint Marketing funds will be used to pay
external costs for the development and execution of the marketing
programs listed in this JM-SOW, and do not include, nor will be used to
pay for, the investment of internal marketing resources of either
company.
1.8 The joint marketing activities are intended to benefit both parties'
efforts to market and sell their respective products. In joint marketing
activities that are led by IBM, IBM will promote the IBM-branded
versions of a Release as a part of its portfolio of e-business products.
1.9 All joint activities and materials must be agreed to, in writing, by
both parties prior to their occurrence or release.
1.10 In the Marketing Activities Attachment, the parties commit to funding
and programs for the first year. During the second half of year one the
parties agree to discuss the potential funding and programs for years
two and three. The parties may agree to modify the marketing activities
in light of the effectiveness of ongoing marketing efforts; such
agreement will be facilitated by the Marketing Program Managers.
1.11 The marketing activities are further defined in the Marketing
Activities Attachment. The column headings are defined as follows:
1.11.1 "ACTIVITY" provides a general description of the marketing
activities to be engaged in by the parties.
1.11.2 "ROLES AND RESPONSIBILITIES" provides a description of what role
each party will take in a particular activity and the
responsibilities associated with that role.
1.11.3 "COSTS" describes examples of the type of cost associated with
the relevant activity. In some cases, the amount of expected
committed cost is identified.
1.11.4 "JOINT MARKETING FUNDS" indicates the estimated maximum amount
tat the parties will jointly commit to an Activity or series of
Activities. Each party will be responsible for fifty percent
(50%) of the amounts listed unless alternative percentages are
otherwise noted. Where estimates for an activity or series of
activities differ by more than 5% of the referenced amounts,
then joint agreement of the revised financial commitment will be
needed before proceeding.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
By: /s/ XXXX X. XXXXXXXX 9-27-99 By: /s/ XXXX X. XXXXXX XX. 9-27-99
------------------------------------ -------------------------------------
IBM Signature Vision Signature
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxx Xx.
------------------------------------ -------------------------------------
Printed Name Printed Name
Contract Specialist, IBM Corporation President & CEO
------------------------------------ -------------------------------------
Title and Organization Title and Organization
IBM Address: Vision Address:
------------------------------------ -------------------------------------
IBM Corporation Vision Software Tools, Inc.
0000 Xxxxxxxxxx Xxxx, 002/VRDA 0000 Xxxxxxx Xxxxxx, Xxxxxx Floor
Research Triangle Park, NC 27709 Xxxxxxx, XX 00000
XXX XXX
* Confidential treatment requested for redacted portion.
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