[LOGO]
UNIDATA-Registered Trademark-
VALUE ADDED RESELLER AGREEMENT
This Agreement, made as of the 17th day of Jan, 1997 is by and between
Unidata, Inc., a Colorado Corporation ("Unidata") with principal offices at
0000 00xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000 and Summit V, Inc. ("Var").
Unidata is engaged in developing and marketing computer products, including
application development software. Var markets software and / or hardware and
services directly to End users. The parties, intending to be bound, agree as
follows.
1. CERTAIN DEFINITIONS.
Certain terms used in this Agreement and the Schedules attached are defined
below:
1.1 "Agreement" means this agreement.
1.2 An "Affiliate" of any person means (x) any other person directly
or indirectly controlling or controlled by or under direct or
indirect common control with such person or (y) any officer,
director, employee, shareholder of such person. "Control" means
possession, directly or indirectly, of power to direct or cause
the direction of the management and policies of a person,
through ownership, by contract or otherwise; and "controlling"
and "controlled" have correlative meanings.
1.3 "Authorized territory" means Var's non-exclusive territory set
forth in Schedule 1, Part A.
1.4 To "distribute" means to market, promote, sell, assign, distribute,
license, sublicense, lease, disclose or otherwise transfer to a
person. A distribution occurs at the earliest time that the item
distributed is shipped or otherwise leaves the possession of the
transferor.
1.5 "Documentation" means on line help, printed manuals or electronic
media instructions which accompany Software.
1.6 "Effective date" means the date Unidata accepts this Agreement.
1.7 "End user" means a person sublicensed to use Software to develop
and/or run applications software for internal purposes, with no
right to distribute Software.
1.8 A "License" means a right granted by Unidata to use specified
Software.
1.9 A "License fee" means an amount to be paid by a person receiving
Software under this Agreement. License fees include relicensing
or transfer fees stated in the Price List.
1.10 A "person" means a natural person or an entity.
1.11 "Price list" means the most current version of Unidata's Retail
Price list, as revised from time to time, for the territory in
which the Software is to be used.
1.12 "Product availability list" means the most current version of
Unidata's published list of standard Software available for
commercial, educational or scientific use on commercial computer
platforms, as revised from time to time.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 1
[LOGO]
1.13 "Release" means a version of Software, numbered "x.y.z" which
Unidata distributes to customers. A "new release" is an "x" or
"y" releases, and a "major" release" is an "x" release as
designated by Unidata.
1.14 "Ship date" means the date Unidata ships Software to Var or its
End user.
1.15 "Software" means the Unidata products listed in Schedule 1, Part C,
and other products which may be added from time to time,
including object code programs, and documentation.
1.16 To "sublicense" means to distribute Software configured for a
maximum number of simultaneous users, for a License fee, upon
receipt of a sublicense agreement signed by an End user.
1.17 "Support fees" means fees paid by Var for Unidata Support service.
1.18 "Support service" or "maintenance" means help in resolving a
problem with Software.
1.19 The "term" of this Agreement means the initial term and any renewal
terms.
1.20 "Third party products" means products licensed or developed by
third parties and acquired or licensed by Unidata for distribution.
1.21 "Upgrade fee" means an annual fee paid by Var for Upgrade service
for its End users.
1.22 "Upgrade service" means a right to receive, subsequent to an
initial License, new releases of Software from Unidata as they
become available.
1.23 To add "value" means to supply prepared software applications,
custom programming or professional services to a customer. Var's
"added value" is set forth in Schedule 1, Part A. Value is
"significant" if the aggregate charges for it exceed the Price
list amount of License fees for Software sublicensed to the End
user.
1.24 A "Var license" means a personal, non transferable internal License
installed on a single machine, network or cluster of machines
operating under the control of one machine and used by Var solely
for application development, End user support, Software
demonstration and data processing for Var's internal business
use.
1.25 "Warranty period" means the ninety (90) day period beginning on
the Ship date. No additional Warranty period attaches to
Software which is transferred to a new platform, which is
upgraded with a Release, or which is reconfigured for a
different number of users.
2. GRANT OF DISTRIBUTION LICENSE; TERM.
2.1 As of the effective date and subject to the limitations in this
Agreement and its Schedules, Unidata grants Var a personal, non
transferable, limited, non exclusive right and license, during
the Term, from Var locations listed in Schedule 1, Part A and
within the Authorized territory, to
* distribute, for a license fee, Software products for which Var
has licensed Reseller Kits under Schedule 1.
* distribute, without a fee, demonstration versions of Software
provided that Var first obtains a demonstration license limited
in scope to a term of ninety (90) days or fewer;
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 2
[LOGO]
* use internally licensed Software for (a) Var's sales
personnel to demonstrate the use of Software; (b) Var's
service personnel to recreate errors in, isolate defects
of or propose improvements to Software; and (c) data
processing for Var's internal business use;
2.2 This Agreement transfers no title to or ownership of the
Software, intellectual property or proprietary rights associated
with the Software or its documentation. Without limiting the
foregoing, the licenses granted under this Agreement are expressly
conditioned upon and subject to these restrictions:
2.2.1 Var may sublicense only those Software products (a) for
which it has been granted a Var License and (b) which
are stated in the then current Product availability list.
2.2.2 Var may distribute Software only if such Software is
subject to written non transferable sublicense agreements
as stated in this Agreement.
2.2.3 In nations in which copyright and other intellectual
property protection exists for computer software, Var
may sublicense any Software product marked "shrink-
wrapped" in Exhibits to Schedule 1 under the "break the
seal" license agreement in the packaging supplied by
Unidata, with the license agreement visible from the
outside.
2.2.4 Every copy of Software or documentation Var distributes
will bear legends or restrictive notices as Unidata may
reasonably require to protect its rights.
2.2.5 All rights granted to distribute Software are limited to
Software in object code form only, together with
documentation.
2.2.6 This Agreement grants no rights to use, copy or modify any
Software source code or to derive any source code from
Software in any manner.
2.3 Certain Third party products which Unidata may make available
are subject to restrictions imposed by the products' licensors.
The restrictions are stated in Schedule 2. Upon Var's written
acceptance of the requirements in Schedule 2, Unidata grants Var
the right to distribute, for a License fee, those Third party
product(s) designated in Schedules 1 and 2.
2.4 Except as expressly authorized under this Agreement Var, its
affiliates and its sublicensees are prohibited from copying or
distributing Software.
2.5 Unidata reserves all rights not expressly granted to Var.
Nothing in this Agreement will be construed to constrain
Unidata from distributing Software to any other person or from
granting any person the right to use Software in any manner.
2.6 The initial term commences on the Effective date and continues
for one (1) year unless sooner terminated. The term renews
automatically on each anniversary for a term of one year until
four (4) renewal terms have been completed.
3. LICENSE FEES AND TERMS.
3.1 Var may sublicense Software to End users in exchange for License
fees under the Price list at the order date, for the applicable
hardware and number of users, less discounts calculated in
accordance with Schedule 1, Part B. All fees are f.o.b. Denver,
Colorado. Var may add users to an existing sublicense or
transfer an existing sublicense to a different platform for
additional License Fees under the Price list.
3.2 Unidata may revise its Price list(s) or Product Availability
list(s) at any time and from time to time. Changes to any
Price list will take effect after ninety (90) days notice
to Var. Price lists may vary between territories, and pricing
for Software delivered to a territory will be determined under
the territory Price list. Prices stated are exclusive of any
federal, state,
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 3
[LOGO]
municipal, or other governmental taxes, duties, licenses, fees,
excises, or tariffs now or hereinafter imposed on the production,
storage, licensing, transportation, import, export or use of
Software. Var agrees to pay all such taxes or charges, exclusive
of taxes based on Unidata's income, or to provide Unidata with
evidence of exemption.
3.3 Unidata may require advance payment prior to shipment. Payment
of the balance is due thirty (30) days after the Ship date. On
Unidata's request, Var agrees to provide Unidata with an
accounting of Software distributed and fees paid to Unidata.
Unidata's right to receive License Fees from Var for licensed
Software survives termination of this Agreement. Should Var's
account become delinquent, Unidata may revise Var's payment terms
or decline to continue performing any agreement with Var.
3.4 Var may cancel any order, without penalty, until five (5) days
before the requested Ship date. If Var cancels up to sixty (60)
days after the Ship date, Var will reimburse Unidata for shipping
by paying a fee of ten percent (10%) of the License fee or two
hundred fifty dollars ($250), whichever is less. No order may
be canceled later than sixty (60) days after the Ship date.
4. VAR'S OBLIGATIONS.
4.1 Var agrees to sublicense or acquire, for License and service
fees, the products and services summarized in Schedule 1 Part C.
Var's authorized representative will approve all orders to
Unidata. Software provided to Var under this Section may be
copied for back-up, archive or emergency recovery purposes, or to
replace a worn copy. The original copy of Software and any other
internal copies are and will remain Unidata property.
4.2 Var represents that it (i) distributes computer software; (ii)
adds significant value to products obtained from other persons,
and (iii) engages in selling, licensing and distributing products
to End users through direct "face to face" contact.
4.3 Var agrees to
4.3.1 use all commercially reasonable efforts to distribute and
install Software correctly and appropriately, so as to
not detract from Unidata's and its Software reputation.
4.3.2 add Significant value before distributing Software.
4.3.3 obtain, for every copy of Software it sublicenses, a
signed agreement including in substance the provisions
in Schedule 4.3. Var may elect to use Unidata's standard
End user license agreement in lieu of preparing Var's
own. Var agrees to send Unidata a copy of Var's standard
sublicense agreement before Var's initial shipment of
Unidata Software, and thereafter if Var modifies or
replaces its standard agreement. Var agrees to retain
a copy of each signed sublicense agreement on file at
its main office. Var agrees to furnish Unidata either
a copy of the End user sublicense agreement or the End
user's name, major contact, address, type of processor,
location of the licensed copy, media specifications,
operating system and release number, number of users, and
the manufacturer's model number and serial number of the
computer licensed to run Software. In the United States
and other nations in which copyright protection exists for
computer software, Var may sublicense any Software marked
"shrink-wrapped" in Schedule 1 Part C under the "break the
seal" license agreement in the packaging Unidata supplies
with the license agreement visible from the outside, or an
end user license agreement signed by the user.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 4
[LOGO]
4.3.4 use all commercially reasonable efforts to enforce its
sublicense agreements including the provisions set forth
in Schedule 4.3.
4.3.5 enroll for Support service as set forth in Schedule 5.
4.3.6 assume responsibility for proper installation of
Software on the End user's system.
4.3.7 assume responsibility for first call support during the
Warranty period. After the Warranty period, Var may
offer its End user Support and Upgrade Service.
[Except for products designated in Exhibits B and G to
Schedule 1, Var may elect to refer End users to Unidata
for support and upgrades.]
4.3.8 enroll and send at least two of its employees during the
first year, and one of its employees during each year
thereafter, for a minimum of one week of Unidata
training during each year of the term.
4.3.9 determine, in its sole discretion, its sublicense fees
for Software, which may be different from fees stated in
the Price list. No Unidata employee has any authority to
advise Var what Var's license fees for Software must be.
4.4 Var agrees not to:
4.4.1 distribute Software except as permitted under this
Agreement and in the packaging as received from Unidata;
4.4.2 market Software without including Unidata's applicable
copyright and trademark notices;
4.4.3 modify or alter any advertising, artwork, promotional
materials, logos, or trademarks of Unidata without prior
written consent from Unidata; or
4.4.4 make any claims, commitments or representations about
Software that are inconsistent with the information
provided by Unidata in product descriptions,
documentation, and promotional material.
4.5 Var agrees to hold Unidata, its employees and directors harmless
from any and all claims or loss or liability arising in any way
out of acts or omissions by Var or its agents. This Section
survives termination or expiration of this Agreement.
5. GENERAL DUTIES OF UNIDATA
5.1 On five (5) days' advance written notice, Unidata will ship the
Software on the Ship date requested by Var and in accordance
with Var's shipping instructions.
5.2 Subject to space availability, Unidata will permit Var employees
to attend Unidata training classes, at a cost determined
according to the discount structure in Schedule 1 and Schedule
4.1.
5.3 Unidata will provide Var reasonable supplies of Software
marketing materials. Upon mutual agreement, Unidata will provide
marketing support for major accounts, lead referrals from
Unidata marketing channels, and trade show participation.
5.4 Before terminating Support service for machines listed in the
Product availability list, Unidata will give Var six (6) months
advance written notice.
5.5 Additional agreements of the parties are set forth in Schedule
5.5.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 5
[LOGO]
6. AUTHORITY, LAWS AND REGULATIONS.
The parties represent and warrant to each other that they have the power and
authority to enter this Agreement, have obtained any requisite government
approvals to enter and to perform this Agreement, will keep such approvals in
force and will obtain such additional government approvals as may from time
to time be required. This Agreement and each party's performance thereof is
made subject to all laws, regulations, orders or other restrictions that may
be imposed from time to time on export from the US or other nations of
computer software, hardware, communications equipment and related technical
knowledge. Var assures Unidata that it will not export, re-export or
transfer, directly or indirectly, any such software, hardware, communications
equipment or information to any country for which the US Government or any
agency thereof or any other nation requires an export license or other
governmental approval at the time of export, re-export or transfer without
first obtaining the consent of the licensing party and such export license
and approval. Each party further agrees that it will obtain the written
assurance of each person to which the Software is distributed that such
person will comply with all applicable export control laws and regulations.
7. COPYRIGHT NOTICES; PROPRIETARY INFORMATION; TRADE SECRETS; CONFIDENTIALITY.
7.1 Var acknowledges that Unidata's Software and documentation are
protected by copyright and other law. Var agrees to include
unaltered in all copies of Software distributed reproductions of
Unidata's restricted rights notices, copyright notices and other
proprietary legends. A copyright notice in Software does not, by
itself, constitute evidence of publication or public disclosure.
7.2 Var acknowledges that Software and documentation are Unidata's
proprietary products. Unidata retains all proprietary right and
interest in all Software, including, but not limited to, patent,
copyright, trademark, and trade secret rights. Var agrees to
protect Unidata's proprietary rights in any Software in Var's
possession or control, and not to challenge or assist any other
person in challenging Unidata's proprietary rights in any manner.
7.3 Var understands that Software (including programs, documentation
and sales and marketing information) supplied by Unidata contain
legally protected trade secrets the use and disclosure must be
carefully controlled. Var agrees to safeguard Unidata's trade
secrets with no less care than it uses in safeguarding its own
valuable trade secrets. Var and its affiliates may have access
to confidential information owned or controlled by Unidata
relating to Software, specifications, plans, sales and marketing
information and other data. This information may contain
confidential and proprietary information and disclosures. All
information or data acquired from Unidata by Var or its
employees, affiliates or agents under this Agreement will be and
will remain Unidata's exclusive property. Var agrees to keep, or
have its employee keep, all such information confidential, and
not to copy or publish or disclose it to others, or authorize
its employees, agents, or any person to copy, publish, or
disclose it, without Unidata's prior written approval. Var
agrees to return such information and data to Unidata at its
request. Disclosure of information which: (a) is publicly
available at the time of disclosure; (b) is disclosed to the Var
by a third party who is not in breach of an obligation of
confidentiality; (c) becomes publicly available after disclosure
through no act of Var; or (d) is developed by the Var without
breach of this Agreement, is excepted from the restrictions in
this Section.
7.4 Var agrees to notify Unidata immediately of any possession or
use of Software that Var believes is unauthorized. Var agrees to
provide Unidata all information in Var's possession regarding
unauthorized possession or use, assist in preventing the
recurrence of such
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 6
[LOGO]
unauthorized possession or use, and cooperate with Unidata, at
Unidata's direction and expense, in any proceeding Unidata deems
necessary to protect its proprietary rights. Var's compliance
with this Section will not be construed as a waiver of Unidata's
right to recover damages or obtain other relief against Var for
its negligent or intentional harm to Unidata's proprietary rights
or for breach of any other provision of this Agreement.
7.5 Var agrees not to:
7.5.1 copy or duplicate Software or permit any person to copy
or duplicate Software without the express written
permission of Unidata, except as is required for normal
backup and security purposes on hardware licensed to use
the Software, and except for operator manuals or training
manuals, and other user oriented materials copied for
Var's internal use;
7.5.2 disseminate or publish Software benchmarks of any kind
without the advance written consent of Unidata.;
7.5.3 modify or alter the Software; or
7.5.4 create or attempt to create or permit others to create or
attempt to create, by reverse engineering, decompiling,
assembling or otherwise, all or part of any Software
source program from the object program or from other
information made available to Var by Unidata.
7.6 Unidata grants Var the right to use the trademarks for the
products listed in Schedule 1 Part C in connection with
Var's marketing of Software. Use of trademarks will be in
accordance with Unidata's established uses and practices and
written standards. Nothing in this Agreement grants Var any
proprietary interest in such trademarks, and Var's use will
cease immediately upon termination of this Agreement. Unidata may
from time to time use other or additional trademarks or trade
names with respect to its products, and this Agreement will apply
to such trademarks and trade names.
7.7 The parties understand that breach of this Section may give
Unidata the right to injunctive relief in addition to other
remedies. Section 7 survives termination of this Agreement.
8. AUDIT.
8.1 Unidata may, on reasonable advance notice, at its expense, and
during normal business hours, examine copies of the relevant
excerpts of the books and records of Var that relate to the
distribution and maintenance of the Software, or Unidata may
request that such an audit be performed by a nationally
recognized public accounting firm. Any person performing an
audit will protect the confidentiality of Var's confidential
information and abide by Var's reasonable security regulations
while on Var's premises.
8.2 If Var distributes Third party products, Unidata's suppliers may
have certain rights to audit the accuracy of the number of
copies of Software distributed, the number of users licensed,
and compliance with copyright, confidentiality and similar
restrictions contained in this Agreement. If an audit discloses
the necessity of an increase in License fees, such fees will be
payable within thirty (30) days of such invoice. If the
adjustments to License Fees are greater than 5% of the amounts
previously accrued due to under reporting by Var, then Var agrees
to pay the reasonable expenses associated with such audit.
Section 8 survives termination of this Agreement.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 7
[LOGO]
9. TERMINATION.
9.1 Either party may terminate this Agreement at the end of its term
by giving ninety (90) days' advance written notice prior to the
first day of each renewal term.
9.2 Unidata may terminate this Agreement by written notice to Var if
(i) Var fails to comply with any material provision of this
Agreement, including failure to pay License fees or Support
Fees; or (ii) Var becomes bankrupt, insolvent or seeks relief
from creditors. Termination by Unidata will be effective as of
the day written notice is given if based upon failure to perform
or comply with Section 7; otherwise, termination will become
effective fifteen (15) days after notice that a payment to
Unidata is past due or thirty (30) days after notice of any other
breach of this Agreement.
9.3 Upon termination, all licenses granted under this Agreement will
cease, and Var will be deemed to have waived, transferred, and
conveyed back to Unidata all goodwill, or other rights granted
under, in and to this Agreement and its subject matter.
Termination will not relieve Var or Unidata of any obligations
that survive this Agreement, nor will it affect valid End user
sublicenses properly granted by Var prior to termination.
9.4 Upon termination, Var shall return promptly to Unidata all
copies of the Software (except for an archive version) and
related materials licensed to or in Var's possession, and each
party will return to the other any of the other's confidential
information. Var may retain for a reasonable period such
materials which facilitate support for Software. At Unidata's
request, an officer of Var will certify that Var has complied
with and will continue to comply with Var's continuing
obligations under this Agreement.
9.5 Unidata will continue to furnish Support and Upgrade service to
Var's End users which have contracted for support for the
Software and for which Unidata has received Support and Upgrade
fees. On the anniversary date of an End user's service contract,
it may elect to enroll for Unidata Support and Upgrade service
at the then current service fee.
10. LIMITED WARRANTIES.
10.1 Unidata warrants to Var and to End users sublicensed by Var that
during the Warranty period Software licensed to Var will operate
substantially in conformity with its documentation. Var
understands that computer Software is a complex product which may
have inherent defects. Should Software perform inconsistently
with the documentation when used in accordance with the
documentation, Var's sole and exclusive remedy will consist
of Unidata's correcting the defect(s), providing replacement
Software, or refunding the License fee paid by Var to Unidata
for the Software on Var's return of the Software to Unidata. Var
agrees to provide Unidata details of the occurrence and
circumstances of any breach of warranty. This warranty extends
only to Var, and to End users licensed by Var, and will be void
if the Software has been modified, tampered with or improperly
used, or if the Software is used with hardware or an operating
system other than as approved and supported by Unidata. Unidata
and its suppliers do not warrant that all errors in any Software
will be corrected or that Software's functionality meets Var's or
its End users' requirements.
10.2 Unidata warrants that it has the right to license the Software,
and that distribution or use of Software under this Agreement
will not infringe U.S. patents, trademarks or copyrights.
10.2.1 Unidata will defend and hold Var, and End users licensed
by Var, harmless in any action brought against them, to
the extent that such action is based upon a claim that
Software infringes a U.S. patent, trademark or
copyright, and if the claim is
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 8
[LOGO]
settled. Unidata will pay the amount of such settlement.
This indemnification is expressly subject to the
conditions precedent that (1) Unidata receives prompt
written notice of any action or claim, (2) Unidata
retains sole and exclusive control of the defense of
any action including the right to select counsel and to
settle, and (3) Var cooperates with Unidata and
provides all information relating to the claim.
10.2.2 If all or any part of the Software is or in Unidata's
opinion may become the subject of any claim or action
for patent, copyright, trademark or trade secret
infringement, Unidata may, and should Var or an End
user be enjoined by a court from continued use of the
Software because such Software is declared to infringe
a valid United States copyright or patent, then Unidata
will, at its sole option and expense (1) procure the
right to continue using the Software, (2) replace or
modify the Software with non infringing software that
is substantially functionally equivalent to the
Software, or (3) refund the unamortized portion (using
a five (5) year life) of the License fee paid by Var
for all such infringing Software.
10.2.3 Unidata will have no liability to Var under any
provision of this Agreement with respect to any claim
of patent or copyright infringement or violation of a
third party's proprietary right which is based on the
use of any release other than a current release if the
claim would have been avoided by the use of the current
release of Software, or which is based upon the
combination or utilization of Software with equipment
or devices not authorized by Unidata.
10.2.4 Unidata's contractual obligation of indemnity will not
extend to modifications of the Software effected by
Var, its End users, or others.
10.2.5 This contractual obligation of indemnity is Unidata's
entire obligation with respect to third party claims,
demands or causes of action with respect to Software,
and is Var's and End users' sole and exclusive remedy
with respect to any third party claims, demands or
causes of action. The foregoing states the entire
liability of Unidata with respect to infringement of
copyrights or patents or violation of third party trade
secrets or rights.
10.3 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 10, UNIDATA
DISCLAIMS ALL WARRANTIES INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
10.4 THE REMEDIES STATED IN THIS SECTION 10 ARE THE SOLE AND EXCLUSIVE
REMEDIES FOR ANY BREACH OF WARRANTY UNDER THIS AGREEMENT.
THE TOTAL LIABILITY, IF ANY, OF UNIDATA AND ITS AFFILIATES
AND SUPPLIERS, HOWEVER CAUSED, OR OCCURRING OUT OF OR IN
CONNECTION WITH THE DISTRIBUTION, USE OR PERFORMANCE OF THE
SOFTWARE, OR FROM TERMINATION OF THIS AGREEMENT FOR ANY
REASON SHALL NOT EXCEED THE LICENSE FEES PAID BY VAR TO
UNIDATA. UNIDATA, ITS AFFILIATES AND SUPPLIERS SHALL NOT BE
LIABLE TO VAR OR ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS
OR INACCURACY OF DATA, OR FOR INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, BASED ON CONTRACT, TORT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY
OTHER LEGAL THEORY, EVEN IF UNIDATA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS OF LIABILITY
SHALL APPLY TO ANY CLAIMS BY VAR AGAINST UNIDATA OF EVERY
KIND AND CHARACTER WHATSOEVER, WHETHER SUCH CLAIMS ARE BASED
ON CONTRACT, TORT, OR OTHERWISE. THESE PROVISIONS ARE
INTENDED TO APPLY EVEN IF THEY HAVE THE EFFECT OF
EXCULPATING A PARTY FROM LEGAL RESPONSIBILITY FOR THE
CONSEQUENCES OF ITS NEGLIGENCE OR OTHER CONDUCT. NO ACTION
AGAINST UNIDATA OR ITS SUPPLIERS MAY BE
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 9
[LOGO]
BROUGHT MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS
ACCRUED. SECTION 10 SURVIVES TERMINATION OF THIS AGREEMENT.
11. MISCELLANEOUS.
11.1 RELATIONSHIP. Each party in a contractor independent of the
other. Neither party has any authority to assume or create
any obligation, express or implied, on behalf of the other,
or to represent the other as agent or in any other capacity.
Unidata will incur no obligation or liabilities to Var or
End users except as contracted directly through Unidata.
This Agreement confers no third party right of action on any
person, and there are no intended third party beneficiaries
except as expressly created under sublicense agreements.
11.2 BINDING AGREEMENT; SEVERABILITY. This Agreement, including its
Schedules, is binding on the parties and their successors
and assigns. To the extent that any law, statute, treaty or
regulation by its terms as determined by a court, tribunal
or other governmental authority of competent jurisdiction,
is in conflict with the terms of this Agreement, the
conflicting terms of this Agreement shall be superseded only
to the extent necessary by the terms required by such law,
statute, treaty or regulation. It is understood that each
provision of this Agreement that provides for a disclaimer
of warranty, limitation of liability or exclusion of damages
is intended to be severable and independent of any other
provision and to be enforced as such. If any provision of
this Agreement shall be otherwise unlawful, void, or for any
reason unenforceable, then that provision shall be enforced
to the maximum extent permissible so as to effect the intent
of the parties. In either case, the remainder of this
Agreement shall continue in full force and effect.
GOVERNMENT RESTRICTED RIGHTS NOTICE. The Software and
Documentation are provided with RESTRICTED RIGHTS. Use,
duplication, or disclosure by the Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of the
Rights in Technical Data and Computer Software clause of
DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of
Commercial Computer Software--Restricted Rights at 48 CFR
52.227-19, as applicable. Manufacturer is Unidata, Inc.,
0000 00xx Xxxxxx, Xxxxxx, XX 00000.
11.3 ASSIGNMENT. Var will not sell, assign, transfer, convey, delegate,
or encumber its appointment or any rights or interests under
this Agreement, and Var will not suffer or permit any
voluntary assignment or transfer or encumbrance, by
operation of law or otherwise, without the prior written
consent of Unidata.
11.4 NOTICE. All notices will be sent or delivered by certified mail
or by commercial courier overnight delivery to the parties
at the addresses listed above, or to such other address as
either party may substitute by written notice.
11.5 WAIVER AND AMENDMENT. Failure of a party to exercise any right,
or to require the performance of any term of this Agreement,
or the waiver of either party of any breach of this
Agreement, will not prevent a subsequent exercise or
enforcement of such terms or be deemed a waiver of any
subsequent breach of any provision of this Agreement. Any
modification or amendment of this Agreement must be in
writing, be captioned an "Amendment," and be signed by
authorized representatives of both parties.
11.6 FORCE MAJEURE. No delay, failure or default in performance of
any obligation of either party, excepting all obligations to
make payments hereunder, will constitute a breach of this
Agreement to the extent caused by force majeure. If the
period of non performance exceeds thirty (30) days from the
receipt of notice of the force majeure event, the unaffected
party may, by written notice, terminate this Agreement.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 10
[LOGO]
11.7 EFFECTIVENESS. This Agreement will become effective when executed
by the authorized officers of each party. Unidata and Var each
warrant to each other that the person executing this Agreement
on its behalf has been, and is on the date of this Agreement,
duly authorized by all necessary action to execute this
Agreement.
11.8 DISPUTE RESOLUTION; REMEDIES.
11.8.1 Any and all existing or future claims, demands or
disputes arising out of or relating to this Agreement,
its breach, or in any way relating to the relationship
between and/or among Unidata, Var and End users
licensed by Var, even though some or all of such claims,
demands or disputes arise ancillary to or independently
of this Agreement, whether in contract, tort or
otherwise, at law or equity, under state or federal law,
shall be resolved and determined exclusively under the
provisions of this Section 11.8.
11.8.2 If there is a controversy between Var and Unidata
relating to this Agreement, the parties agree to use all
reasonable efforts to resolve such controversy amicably
at senior management levels of both parties.
11.8.3 If the parties fail to reach a mutually acceptable
resolution of the controversy within sixty (60) days of
the first formal written notice of the controversy, then
either party may request settlement by arbitration.
Arbitration will take place in Denver, Colorado, in
accordance with the Center for Public Resources Rules
for Non Administered Arbitration of Business Disputes
(the "CPR Rules"), by a single arbitrator acceptable to
both parties (acceptance not to be withheld
unreasonably) knowledgeable in computer software
disputes. If the parties fail to agree upon the
appointment of an arbitrator then an arbitrator shall be
appointed under CPR Rule 6. The language of the
arbitration shall be English. The arbitrator may make no
finding, ruling or award that does not conform to the
terms of this Agreement, and may award no punitive
damages. The parties hereby agree to submit to such
arbitration and to the enforcement of any award resulting
therefrom by any court of competent jurisdiction. Nothing
contained in this Section shall prohibit either party from
seeking equitable relief without first resorting to
arbitration under circumstances in which that party
believes that its interests under this Agreement and/or
in its property otherwise will be compromised. This
Agreement will be construed under Colorado law, without
regard to conflict of laws. No remedy under law or this
Agreement is intended to be exclusive of any other remedy,
and every remedy will be cumulative and in addition to any
other remedy.
11.9 HEADINGS; COUNTERPARTS; ENTIRE AGREEMENT. This Agreement, which
includes the Schedules, sets forth the entire understanding between
the parties, merges all discussions between them, and replaces
all other agreements which may have existed between Unidata and
Var to the extent that any such agreement relates to the
establishment of an arrangement for the distribution of Support
of software. The express terms of this Agreement control and
supersede any course of performance and/or usage of trade
inconsistent with any of the terms, and will control any
conflicting or inconsistent standard terms or conditions on any
communication, purchase order or sales order of either party,
notwithstanding any provision to the contrary in any such
document. The section headings in this Agreement are for
convenience of reference only and will not affect the meaning of
any provisions. This Agreement may be executed in multiple
counterparts, each of which may be deemed to be an original, and
all of which will constitute one Agreement.
In witness whereof, the parties have caused their authorized officers to sign
this Agreement.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 11
[LOGO]
UNIDATA, INC. SUMMIT V, INC.
(VAR)
/s/ Xxxxxx Xxxxxxxxxx /s/ Xxxxx X. Xxxxx Ex VP
-------------------------------------- ---------------------------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
Xxxxxx Xxxxxxxxxx, VP/ General Counsel Xxxxx X. Xxxxx Ex VP
-------------------------------------- ---------------------------------------
NAME/TITLE NAME/TITLE
date date 2/28/97
--------- -------
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 12
[LOGO]
Schedule 1
A. Var Information
-------------------------------------------------------------------------------
NAME Summit V, Inc.
-------------------------------------------------------------------------------
ADDRESS 00000 XX 00xx Xxxxxx
-------------------------------------------------------------------------------
Suite 300
-------------------------------------------------------------------------------
Xxxxxxxxx, XX 00000
-------------------------------------------------------------------------------
VAR'S "VALUE ADD" Summit V (Software Application)
-------------------------------------------------------------------------------
AUTHORIZED TERRITORY Worldwide except China and Taiwan.
In addition, Var may not distribute any products
listed under Exhibit C to Schedule 1, Part C of
this Agreement, in Switzerland, Russia, Czech
Republic or Austria.
-------------------------------------------------------------------------------
AUTHORIZED VAR LOCATIONS Vancouver, WA
-------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 13
[LOGO]
B. Discount Schedule
-------------------------------------------------------------------------------------------------------------
PRODUCT CLASS DISCOUNT NOTES
RATE
-------------------------------------------------------------------------------------------------------------
Class 1 Products 40% 1) During the first term of the Agreement Var's discount rate for
Class 1 & 2 products will be 50% and the discount rate for Class 3
products will be 40%. These discounts will remain in effect for each
term following a term in which net license fees paid to Unidata by Var
are greater than or equal to $450,000.
2) Var's list price for SBClient will be fifty dollars ($50) less than
the then current list price of SBClient.
3) Var's special pricing for customers currently using Var's application
software, DISCOS-TM-, is as follows:
--------------------------------------
Class 2 Products 40% - Var's list price for UniData RDBMS will be thirty percent (30%)
less than the then current list price for UniData RDBMS.
- Var's list price for SB+ Runtime will be fifty percent (50%) less
than the then current list price for SB+ Runtime.
The special pricing in item 3, above, is valid only when:
- Var's customer is replacing DISCOS-tm- with Summit V-TM-
application software.
--------------------------------------
Class 3 Products 30% - Var's customer is replacing a non-UniData database with the
UniData database. Customer must order SB+ Runtime within
twelve (12) months of the initial ship date of UniData RDBMS
to be eligible for the special pricing.
- The number of SB+ Runtime users ordered at special pricing may
not exceed the number of UniData RDBMS users originally licensed.
-------------------------------------------------------------------------------------------------------------
Unidata 50% for training of Var employees at scheduled classes at Unidata
Training facilities. Enrollment is subject to seating availability.
-------------------------------------------------------------------------------------------------------------
C. Var Sign-up Fees & Services
Var sign up fee is $_______________. (Sum of all selected Reseller Kits)
--------------------------------------------------------------------------------
RESELLER KIT FEE RESELLER KIT FEE
--------------------------------------------------------------------------------
A. RDBMS Renewal E. System Builder #3 Renewal
--------------------------------------------------------------------------------
B. wIntegrate Renewal F. System Builder #4
--------------------------------------------------------------------------------
C. System Builder #1 G. UDMS #1
--------------------------------------------------------------------------------
D. System Builder #2 H. UDMS #2
--------------------------------------------------------------------------------
total:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 14
[LOGO]
Exhibit A to Schedule 1, Part C
UNIDATA RDBMS-REGISTERED TRADEMARK- (CORE PRODUCT) RESELLER KIT - SIGN UP FEE
PAID UNDER A PRIOR AGREEMENT (SEE SCHEDULE 5.5).
- The following Var licenses. Additional Var licenses can be acquired
for $250 each.
Discount Product Discount Product
Class Class
-------------------------------------------------------------------------------------------------------------
2 UniData RDBMS-REGISTERED TRADEMARK- (required) 3 UniDesktop-TM- for Windows (Open Client,
ODBC, ObjectCall-TM-)
-------------------------------------------------------------------------------------------------------------
3 UniData Journaling 3 UniDesktop-TM- for UNIX (Open Client)
-------------------------------------------------------------------------------------------------------------
3 UniData Recoverable File System/ 3 UniData Bond to OpenInsight Client
Transaction Processing
-------------------------------------------------------------------------------------------------------------
3 USAM-TM- (all modules) 3 UniData Bond to Advanced Revelation
Client
-------------------------------------------------------------------------------------------------------------
3 UniData Network File Access 3 OpenInsight / Advanced Revelation
Server
-------------------------------------------------------------------------------------------------------------
3 UniServer-TM- 3 Cobol DIRECT CONNECT-TM-
-------------------------------------------------------------------------------------------------------------
(Please indicate the hardware platform and operating system for each license)
---------------------------------------------------------------------------------------------------
Var License #1 HP 837S / 16 user: RDBMS
195J0013 HPUX 10.0
---------------------------------------------------------------------------------------------------
Var License #2 DGAV 4625 / 60 user: RDBMS, UniSQL, NFA, UniServer, USAM
993J0003 DGUX 5-4-2.01 Monitor/Profile, Print/Batch, UniDesktop, Journaling
---------------------------------------------------------------------------------------------------
Var License #3 HP 800H70 / 100 user: RDBMS
196J0003 HPUX 10.01
---------------------------------------------------------------------------------------------------
Var License #4 PC+ Pentium / 16 user: RDBMS
196J0017 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #5 PC+ Pentium / 16 user: RDBMS
196J0011 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #6 PC+ Pentium / 16 user: RDBMS
196J0012 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #7 PC+ Pentium / 16 user: RDBMS
196J0013 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #8 PC+ Pentium / 16 user: RDBMS
196J0014 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #9 PC+ Pentium / 16 user: RDBMS
196J0015 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #10 PC+ Pentium / 16 user: RDBMS
196J0016 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #11 PC+ Pentium / 16 user: RDBMS
196J0007 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 15
[LOGO]
---------------------------------------------------------------------------------------------------
Var License #12 PC+ Pentium / 16 user: RDBMS
196J0006 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #13 PC+ Pentium / 16 user: RDBMS
196J0008 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #14 PC+ Pentium / 16 user: RDBMS
196J0009 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #15 PC+ Pentium / 16 user: RDBMS
196J0010 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #16 PC+ Pentium / 16 user: RDBMS
196S0027 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #17 PC+ Pentium / 16 user: RDBMS
196S0026 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #18 PC+ Pentium / 16 user: RDBMS
196S0025 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #19 PC+ Pentium / 1 user: RDBMS
196J0019 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
Var License #20 PC+ Pentium / 1 user: RDBMS
196S0021 Sco Unix 3-2V4-2
---------------------------------------------------------------------------------------------------
- Support for the initial conversion process including one (1) week of
conversion support at Unidata's Denver office, four (4) days on site
at Var's headquarters, and forty-five (45) days of subsequent
telephone support. THIS SERVICE WAS PROVIDED UNDER A PRIOR AGREEMENT
(SEE SCHEDULE 5.5).
- One (1) week of Unidata training for two (2) Var employees, in
scheduled classes at Unidata facilities. Training is required to be
taken during the first ninety (90) days after the Effective date.
Seating is subject to availability. Var is responsible for its
employees' travel and living expenses. THIS SERVICE WAS PROVIDED
UNDER A PRIOR AGREEMENT (SEE SCHEDULE 5.5).
- Reduced rate consulting. Unidata consulting service is available to
Var at a discount to assist in conversion and application front end
redevelopment. Reduced rate consulting is available during the first
one hundred eighty (180) days after the Effective date. THIS SERVICE
WAS PROVIDED UNDER A PRIOR AGREEMENT (SEE SCHEDULE 5.5).
- Var is enrolled for Support service as stated in Schedule 5, Part
III, Item A.
VAR IS ENROLLED FOR RESELLER KIT A
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 16
[LOGO]
Exhibit B
To Schedule 1, Part C
WINTEGRATE-TM- RESELLER KIT - NO ADDITIONAL FEE. THE CONTENTS OF THIS
RESELLER KIT WERE PROVIDED UNDER A PRIOR AGREEMENT (SEE SCHEDULE 5.5).
- The following Var licenses:
1. Four (4) copies of wIntegrate-TM-
- Two (2) Developer Reference Guides.
- Three (3) days of training for two Var employees, in scheduled
classes at Unidata facilities. Training is required to be taken
during the first ninety (90) days after the Effective date.
Seating is subject to availability. Var is responsible for its
employees' travel and living expenses.
- One (1) day of consulting for four hundred dollars ($400), to be
used within one (1) year of the Effective date.
- Var is enrolled for Support and Upgrade service as set forth in
Schedule 5, Part III, Item C.
wIntegrate-TM- is designated a Class 3, Shrink-wrapped
product.
VAR IS ENROLLED FOR RESELLER KIT B
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 17
[LOGO]
Exhibit C
To Schedule 1, Part C
C. SYSTEM BUILDER RESELLER KIT # 1: SB+-TM- SERVER KIT - $5,000
- One (1) Var license configured with two (2) SB+-TM- Server Developer
users and five (5) SB+-TM- Server Runtime users. Additional users or
licenses may be acquired at a fifty percent (50%) discount from the
Price list.
- Two (2) SB+ Reference Manuals.
- Two (2) SB+ System Administration Manuals.
- Var is enrolled for Support service as stated in Schedule 5, Part III,
Item B. This Reseller Kit includes one year of Standard Var support.
Other levels of Support service are available at list price for such
services. Fees for subsequent terms are as set forth in Schedule 5.
- Enrollment for two (2) Var employees in a scheduled ED500 class (or
equivalent) to be held at Unidata facilities. Seating is subject to
availability. Var is responsible for its employees' travel and living
expenses.
All products offered in Reseller Kit C are Class 3 products.
VAR SELECTS RESELLER KIT C:_____________INITIALS _________________DATE
D. SYSTEM BUILDER RESELLER KIT # 2: SB+-TM- SERVER KIT UPGRADE - $3,500
- The following Var licenses:
1. Five (5) copies of SBClient-TM-.
Additional users or licenses may be acquired at a fifty percent (50%)
discount from the Price list.
- Two (2) SBClient User's Guide.
- Var is enrolled for Support service as stated in Schedule 5, Part III,
Item B. This Reseller Kit includes one year of Standard Var support.
Other levels of Support service are available at list price for such
services. Fees for subsequent terms are as set forth in Schedule 5.
- Enrollment for two (2) Var employees in a scheduled SBClient Class (or
equivalent) to be held at Unidata facilities. Seating is subject to
availability. Var is responsible for its employees' travel and living
expenses.
All products offered in Reseller Kit D are Class 3 products.
VAR SELECTS RESELLER KIT D:_______________INITIALS _______________DATE
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 18
[LOGO]
E. SYSTEM BUILDER RESELLER KIT # 3: SB+ -TM-CLIENT/SERVER KIT - SIGN UP FEE
IS WAIVED. CONTENTS OF THIS RESELLER KIT WERE PROVIDED UNDER A PRIOR
AGREEMENT (SEE SCHEDULE 5.5).
- The following Var licenses. Additional users or licenses may be acquired
at a fifty percent (50%) discount from the Price list.
-------------------------------------------------------------------------------
Var License #1 HP 800H70/ 100 user: SB+ Runtime, SB+ Development
196J0003 HPUX 10.01
-------------------------------------------------------------------------------
Var License #2 PC+ Pentium/ 16 user: SB+ Runtime
196J0017 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #3 PC+ Pentium/ 16 user: SB+ Runtime
196J0011 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #4 PC+ Pentium/ 16 user: SB+ Runtime
196J0012 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #5 PC+ Pentium/ 16 user: SB+ Runtime
196J0013 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #6 PC+ Pentium/ 16 user: SB+ Runtime
196J0014 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #7 PC+ Pentium/ 16 user: SB+ Runtime
196J0015 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #8 PC+ Pentium/ 16 user: SB+ Runtime
196J0016 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #9 PC+ Pentium/ 16 user: SB+ Runtime
196J0007 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #10 PC+ Pentium/ 16 user: SB+ Runtime
196J0006 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #11 PC+ Pentium/ 16 user: SB+ Runtime
196J0008 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #12 PC+ Pentium/ 16 user: SB+ Runtime
196J0009 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #13 PC+ Pentium/ 16 user: SB+ Runtime
196J0010 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #14 PC+ Pentium/ 16 user: SB+ Runtime
196S0027 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #15 PC+ Pentium/ 16 user: SB+ Runtime
196S0026 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #16 PC+ Pentium/ 16 user: SB+ Runtime
196S0025 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #17 HP 800H70 1 user: SB+ Development
196J0019 HP UX 10.01
-------------------------------------------------------------------------------
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 19
[LOGO]
-------------------------------------------------------------------------------
Var License #18 PC+ Pentium/ 1 user: SB+ Runtime
196S0021 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #19 PC+ 486/ 3 user: SB+ Development, SBClient
196J0001 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #20 PC+ Pentium/ 1 user: SB+ Runtime
196J0005 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #21 PC+ Pentium/ 1 user: SB+ Runtime
196S0016 Sco Unix 3-2V4-2
-------------------------------------------------------------------------------
Var License #22 HP 800H70 1 user: SB+ Runtime
196S0022 HPUX 10.01
-------------------------------------------------------------------------------
- Two (2) SB+ Reference Manuals and two (2) SB+ System Administration
Manuals.
- Var is enrolled for Support service as stated in Schedule 5,
Part III, Item B. This Reseller Kit includes one year of
Standard Var support. Other levels of Support service are available
at list price for such services. Fees for subsequent terms are as
set forth in Schedule 5.
- Enrollment for two (2) Var employees in a scheduled ED500 class (or
equivalent) to be held at Unidata facilities. Enrollment is subject
to availability. Var is responsible for travel, lodging and meals
for its employees.
- Enrollment for two (2) Var employees in a scheduled SBClient Class
(or equivalent) to be held at Unidata facilities. Seating is
subject to availability. Var is responsible for its employees'
travel and living expenses.
- All products offered in Reseller Kit E are Class 3 products.
VAR IS ENROLLED FOR RESELLER KIT E
F. SYSTEM BUILDER RESELLER KIT #4: SB+-TM- FOR WINDOWS RESELLER KIT - $2,000
- The following Var licenses:
1. Two (2) copies of SB+ for Windows.
2. Five (5) copies of SB+ for Windows-TM- (Runtime Environment).
Additional users or licenses may be acquired at a fifty percent (50%)
discount from the Price list.
- Two (2) SB+ Reference Manuals.
- Two (2) SB+ System Administration Manuals.
- Var is enrolled for Support service as stated in Schedule 5, Part
III, Item B. This Reseller Kit includes one year of Standard Var
support. Other levels of Support service are available at list price
for such services. Fees for subsequent terms are as set forth in
Schedule 5.
- Enrollment for two (2) Var employees in a scheduled SB+ for Windows
class (or equivalent) to be held at Unidata facilities. Seating is
subject to availability. Var is responsible for its employees' travel
and living expenses.
All products offered in Reseller Kit F are Class 3 products.
VAR SELECTS RESELLER KIT F: ___________ INITIALS __________ DATE
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 20
[LOGO]
EXHIBIT G
TO SCHEDULE 1, PART C
G. UDMS RESELLER KIT # 1: UDMS RESELLER KIT - $4,000
- The following Var licenses:
1. One (1) copy of UDMS ReportMaker-TM-.
2. Three (3) copies of Safari-TM- Client.
3. Three (3) copies of VisualRPW-TM- for Windows Client.
- UDMS Documentation Set.
- VisualRPW-TM- Getting Started Guide.
- Enrollment for one (1) Var employee in a scheduled ED700 Class (or
equivalent) to be held at Unidata facilities. Seating is subject to
availability. Var is responsible for its employees' travel and living
expenses.
- Var is enrolled for Support and Upgrade Service as set forth in
Schedule 5, Part III, Item A.
All products offered in Reseller Kit G are Class 3 products.
VAR SELECTS RESELLER KIT G:________________INITIALS _______________DATE
H. UDMS RESELLER KIT # 2: FAST START PROGRAM - $6,000
- The following Software and documentation for resale:
1. Two (2) copies of UDMS ReportViewer-TM-.
2. Two (2) copies of Safari-TM- Client
3. Two (2) copies of VisualRPW-TM- for Windows Client
4. UDMS Product Documentation Set.
5. VisualRPW-TM- Getting Started Guide.
- Five (5) days of on-site training and consulting. Var is responsible
for all related travel and living expenses.
- Var is enrolled for Support and Upgrade Service as set forth in
Schedule 5, Part III, Item A.
All products offered in Reseller Kit H are Class 3 products.
VAR SELECTS RESELLER KIT H:________________INITIALS _______________DATE
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 21
[LOGO]
SCHEDULE 2
THIRD PARTY PRODUCTS
DERIVATIVE PRODUCTS BASED ON SYBASE, INC. PROGRAMS.
---------------------------------------------------
UniDesktop-TM-
UniServer-TM-
RESTRICTIONS FOR DISTRIBUTION OF SUCH PRODUCTS
----------------------------------------------
A. Sybase, Inc. is an intended third party beneficiary of this
Agreement and may enforce certain of its terms directly against Var.
B. Var agrees to comply with all export and re-export restrictions and
regulations ("Export Restrictions") imposed by the governments of the United
States or the country to which the Software is shipped. Var will not commit
any act or omission which will result in a breach of any such Export
Requirements. Var agrees that it will comply in all respects with any
governmental laws, orders or other restrictions on the export of the Software
(and related information and documentation) which may be imposed from time to
time by the governments of the United States and Canada or the country to
which the Software is shipped (Export Requirements). Var will take all
actions which may be reasonably necessary to assure that it does not
contravene the Export Requirements. Without limiting the foregoing, Var
agrees that unless prior authorization is obtained from the US. Office of
Export Administration, it will not export, re-export or transship, directly
or indirectly, to country groups Q, S, W, Y, or Z (as defined in the Export
Administration Regulations) or Afghanistan or the People's Republic of China
(excluding Taiwan), or disclose to any national or resident thereof, any of
the technical data or software disclosed or provided to licensee or the
direct product of such technical data or software (if the direct products
are commodities, software or technical data described on the Control List with
a letter "A" following its Export Control Number). This Section will survive
the expiration or termination of this Agreement.
C. Although copyrighted, the Software is unpublished and contains
proprietary and confidential information of Unidata and its licensors and is
considered by Unidata and its licensors to constitute valuable trade secrets.
The licensee will hold the Software in confidence and will protect the
Software with at least the same degree of care with which the licensee
protects its own similar confidential information.
Agreed by Var__________ __________
Initials Date
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 22
[LOGO]
Schedule 4.3.
End User Sublicense Provisions
1. Sublicensee is granted a non-exclusive, personal, and nontransferable
right to install the Software on the machine and at the site specified in
this Agreement, to perform data processing for the Authorized entities
designated in this Agreement. Authorized entities do not include entities
which pay any Authorized entity for data processing services. Sublicensee may
not make copies of the Software except for back-up, archive, or emergency
recovery purposes, or to replace a worn copy. If this license agreement
terminates or expires, all such copies must be destroyed and the Software
returned to licensor or its suppliers. Sublicensee agrees to certify
destruction of copies, on request. Any copies of Software must retain the
copyright and proprietary notices in the same form as were affixed on the
original.
2. Sublicensee agrees not to transfer the Software outside of the nation in
which it was acquired and licensed.
3. Sublicensee recognizes that the Software and related materials are
proprietary and that all copyrights, patents, trade secrets, and other
intellectual rights remain the sole and valuable property of licensor or
licensor's suppliers, and that no title is transferred to Sublicensee.
Sublicensee agrees to protect these rights diligently. Sublicensee agrees not
to disassemble, reverse compile or in any way attempt to obtain source code
for the Software.
4. Sublicensee agrees not to assign or grant sublicenses, leases, or other
rights or obligations to the Software or the Software documentation to
others, or reverse assemble, decompile, reverse translate, or in any way
derive from the Software any source code.
5. EXCEPT FOR THE EXPRESS WARRANTY AND LIMITED REMEDIES GRANTED, LICENSOR AND
LICENSOR'S SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. THE REMEDIES STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE REMEDIES
FOR ANY BREACH OF WARRANTY UNDER THIS AGREEMENT. THE TOTAL LIABILITY, IF ANY,
OF LICENSOR AND ITS SUPPLIERS, HOWEVER CAUSED, OR OCCURRING OUT OF OR IN
CONNECTION WITH THE DISTRIBUTION, USE OR PERFORMANCE OF THE LICENSED SOFTWARE
SHALL NOT EXCEED THE LICENSE FEES PAID. LICENSOR, ITS AFFILIATES AND
SUPPLIERS SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR LOSS OF
PROFITS, REVENUE OR GOODWILL, LOSS OR INACCURACY OF DATA, FOR INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, BASED ON CONTRACT,
TORT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL
THEORY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS OF LIABILITY SHALL APPLY TO ANY CLAIM BY LICENSEE AGAINST
LICENSOR, OR ITS SUPPLIERS, OF EVERY KIND AND CHARACTER WHATSOEVER, WHETHER
SUCH CLAIMS ARE BASED ON THEORIES OF CONTRACT LAW, TORT LAW, OR OTHERWISE.
THESE PROVISIONS ARE INTENDED TO APPLY EVEN IF THEY HAVE THE EFFECT OF
EXCULPATING A PARTY FROM LEGAL RESPONSIBILITY FOR THE CONSEQUENCES OF ITS
NEGLIGENCE OR OTHER CONDUCT. THIS SECTION WILL SURVIVE TERMINATION OF THIS
AGREEMENT.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 23
[LOGO]
Schedule 5
SUPPORT & UPGRADE SERVICES
SERVICE IN GENERAL
Unidata has established support service policies published in UNIDATA, INC.
SUPPORT SERVICE POLICIES SUPPORT FOR VALUE ADDED RESELLERS, as revised from
time to time (the "Policies"). Services provided under this Agreement are
governed by this Schedule and the Policies.
NEW RELEASES. New Releases do not necessarily include new products or Third
party products which may require additional licenses and License Fees. New
products contain new functions and features and are licensed separately under
product names not included in Schedule 1, Part C.
DEFAULT. Unidata will not provide Support or Upgrade services if Var's
service fees are overdue or if Var is in breach of this Agreement.
ADDITIONAL FEATURES; CONSULTING SERVICES. Var may request the addition of new
features, functions or support of new hardware platforms. Unidata reviews all
enhancement requests quarterly and will advise Var. Additions not scheduled
for new releases may be made available through Unidata consulting services as
requested by purchase order.
I. VAR SUPPORT AND UPGRADE SERVICE.
Var agrees to enroll for Support & Upgrade Service as provided in this
Schedule. Unidata will provide annual Support and Upgrade service for all Var
licenses. Var agrees to
1. have available dump analysis tool(s) for all hardware platforms Var
sells and supports;
2. during problem diagnosis, follow the guidelines in Unidata's Problem
Determination Profile to isolate and reproduce a problem.
3. require in its End user service agreements that End users assume
responsibility for back up and other protection of data against loss
during service.
4. notify Unidata of End users declining Var support within ninety (90)
days after the Ship date. Unidata may then offer support directly to the
End user. In all cases, if Var fails to support the Software adequately,
Unidata may provide support on End user request.
II. END USER UPGRADE SERVICE.
1. Var agrees to encourage End users to enroll for Upgrade service.
Upgrade fees are due and payable ninety (90) days after the Ship date
and subsequently on each anniversary, unless Var has notified Unidata
prior to the anniversary date that the End user declines to continue
service.
2. For the Upgrade fee, Unidata will provide Var new releases of
Software for enrolled End users, free of charge except for shipping.
Var accepts responsibility for distribution and installation of new
releases to its End users, and agrees that new releases will be
distributed only to
* Var End user sublicenses still within the Warranty period, or
* Var End users for which Unidata has received an Upgrade fee for
the period covering the new release.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 24
[LOGO]
End users not enrolled for Upgrade service may license upgrades according to
the Price list, but only from the immediate previous Major Release. The
License fee will be determined in accordance with the Price list at the time
the upgrade is shipped. Unidata will not ship any Software if Upgrade Fees
are unpaid.
III. SUPPORT AND UPGRADE SERVICE PACKAGES
A. UNIDATA RDBMS (CORE PRODUCT) AND UDMS SUPPORT AND UPGRADE SERVICE PACKAGE.
Var's annual Support & Upgrade fee is six thousand dollars ($6,000), payable
in advance in four quarterly installments of $1,500 each. THIS SUPPORT AND
UPGRADE SERVICE PACKAGE COVERS THE PRODUCTS LICENSED AS PART OF RESELLER KITS
A, G AND H IN THE EXHIBITS TO SCHEDULE 1.
STANDARD SUPPORT SERVICE. Unidata provides Support service to Var from 7:00
AM to 6:00 PM, Mountain Time, Monday through Friday, except Unidata holidays.
For each End user enrolled for Support and Upgrade service with the Var, Var
agrees to pay Unidata an annual Upgrade fee in an amount equal to the greater
of (i) for Class 2 products, six percent (6%) of the then current License fee
in the Price list, (ii) for Class 3 products, nine percent (9%) of the then
current License fee in the Price list, or (iii) the then current minimum
Upgrade fee.
EXTENDED SUPPORT SERVICE. Unidata provides Support service to Var seven (7)
days a week, twenty-four (24) hours a day, every day of the year (365 days).
For each End user enrolled for Support service with the Var. Var agrees to
pay Unidata an annual Upgrade fee in an amount equal to the greater of (i)
nine percent (9%) of the then current License fee in the Price List, or (ii)
the then current minimum Upgrade fee. Unidata does not offer Extended Support
service for all products.
EXTENDED PLUS SUPPORT SERVICE: Unidata provides Support service to the Var
seven (7) days a week, twenty-four (24) hours a day, every day of the year
(365 days). Unidata provides Support service to Var's End users after hours,
from 6:00 PM to 7:00 AM Mountain Time. For each End user enrolled for Support
service with the Var, Var agrees to pay Unidata an annual Upgrade fee in an
amount equal to the greater of (i) eleven percent (11%) of the then current
License fee in the Price list, or (ii) the then current minimum Upgrade fee.
Unidata does not offer Extended Plus Support Service for all products.
Var elects support service as follows:
STANDARD x
---------
EXTENDED
---------
EXTENDED PLUS
---------
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 25
[LOGO]
B. SYSTEM BUILDER SUPPORT AND UPGRADE SERVICE PACKAGE. Var's annual Support &
Upgrade fee is $3,000.00 (sum total of fees for service levels as selected
below). THIS SUPPORT AND UPGRADE SERVICE PACKAGE COVERS THE PRODUCTS LICENSED
AS PART OF RESELLER KITS C THROUGH F.
(Please select from the following services)
------------------------------------------------------------------------------------------------------------------------
Service Type Annual Fee No Charge Hourly Rate Hourly Additional Services
Procedural for Rate for
("how to") Procedural After
support Support hours
(beyond No support
Charge
hours
-------------------------------------------------------------------------------------------------------------------------------
REQUIRED $3,000 1 hour per $150 $250
Standard (must be month
enrolled for standard
support to be eligible
for any other level of
service)
-------------------------------------------------------------------------------------------------------------------------------
Bronze Standard fee + 4 hours per $75 $250
$1,495 month
-------------------------------------------------------------------------------------------------------------------------------
Silver Standard fee + 15 hours per $65 $250
$5,940 month
-------------------------------------------------------------------------------------------------------------------------------
Gold Standard fee + 15 hours per $55 $250 *Guaranteed Call Back
$10,740 month within 2 hours
*Two designated support
reps
-------------------------------------------------------------------------------------------------------------------------------
Platinum Standard fee + unlimited N/A $250 *Guaranteed call back within
$19,992 2 hours
*Two designated support
reps
*Customized monthly
support reports
-------------------------------------------------------------------------------------------------------------------------------
7x24 - after hours Standard fee + N/A N/A $150 *4 hours of no charge after
coverage other applicable hours support per month
(May be added to any annual fee + $5,940 *Support Rep accessible by
of the above packages pager
-------------------------------------------------------------------------------------------------------------------------------
For each End user enrolled for Support and Upgrade service with the Var, Var
agrees to pay Unidata an annual Upgrade fee in an amount equal to nine
percent (9%) of the then current License fee in the Price list.
--------------------------------------------------------------------------------
-C- Unidata, Inc. 1996 Value Added Reseller Agreement-Support
Provider (var1-1;rev 2/15/96) Page 26
