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EXHIBIT 10.20
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of the 23rd day of December, 1993,
by and between Arbor Software Corporation, a Delaware corporation ("Arbor"),
and Comshare, Incorporated, a Michigan corporation ("Comshare").
In consideration of the mutual promises contained herein, the parties
agree as follows:
1. License Grant. Subject to the restrictions contained herein,
Arbor grants to Comshare and its subsidiaries the worldwide right to use,
reproduce, adapt, distribute, and sublicense to third parties any or all of the
computer software owned or developed by Arbor during the term of this
Agreement, including but not limited to the programs and components listed on
Exhibit A (the "Software"), excluding only computer software that is developed
or acquired by Arbor after the date of this Agreement and that is unrelated to
multidimensional modeling software. Notwithstanding the above, however, Arbor
may but is not required to add to the Software any unique computer software
that Arbor develops and embeds in an Arbor customer's application, so long as
that application is not within the Comshare application markets as defined in
Section 6 hereof.
(a) Distribution. Comshare may distribute the Software
through its subsidiaries, distributors, resellers and agents ("Comshare
Distributors"), who may at Comshare's election grant sublicenses subject to the
terms contained in this Agreement. Arbor shall have no right of approval or
rejection of Comshare Distributors. The Software will be protected under the
terms of Comshare's contracts with Comshare Distributors to the same extent
Comshare protects its own software products under such contracts with respect
to proprietary rights and use restrictions. Comshare shall fulfill its
obligations to Arbor by enforcing such contracts to the same extent it enforces
confidentiality and use restrictions for Comshare products.
(b) Sublicenses. Comshare and the Comshare Distributors
may grant sublicenses to customers for a perpetual term or for a term of years,
as they choose. The sublicenses shall contain provisions as protective of
proprietary rights in
* Indicates that material has been omitted and
confidential treatment has been requested
therefore. All such omitted material has been
filed separately with the SEC pursuant to Rule
24b-2.
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the Software as they contain for Comshare's proprietary rights in its software.
A copy of Comshare's current standard license, without schedules is attached as
Schedule 1(b).
(c) Reproduction. On or before execution of this
Agreement, Arbor will provide to Comshare the number of demonstration and
development copies of the Software and documentation indicated on Exhibit A.
Thereafter, Arbor will provide the same numbers of demonstration and
development copies of new and revised programs and documentation for all new or
changed Software. Comshare may make additional copies as it deems necessary or
desirable for the purposes of this Agreement.
(d) Adaptation. Comshare may adapt or reconfigure the
Software solely for purposes of facilitating the Software's operation in
connection with Comshare's software; provided, however, that this provision
does not give Comshare any right of access to the source code. Comshare may
prepare foreign language translations of documentation and training materials
at its own expense, and with respect solely to limited use sublicenses (as
defined in Section I.A of Exhibit D Pricing), Comshare may modify, adapt or
excerpt documentation and training materials as it deems appropriate. Comshare
shall own all intellectual property rights to such modification or translation
of the documentation and training materials; provided, however, that the
foregoing shall not in any manner limit or inhibit Arbor's right to translate
or have the documentation and training materials translated and to own such
translation, provided Comshare's translation is not used to facilitate such
translation. Comshare shall ensure that all documentation delivered with the
Software contains appropriate attribution to Arbor.
(e) Arbor Attribution.
(i) With respect to full use sublicenses (as defined in
Section I.B of Exhibit D, Pricing) of the Software, Comshare shall
take the following steps to preserve Arbor's corporate identification:
(A) If Comshare elects to repackage some or all
of the Software in Comshare's own packaging, then the
packaging shall give attribution to Arbor in style and size no
less than the attribution Comshare gives to its own software.
Comshare understands and agrees that the intent of the
foregoing language is to ensure that Arbor preserves its
corporate and product identities.
(B) Comshare may elect to reprint the documentation
on a different color or type of
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stock, but (except with respect to translations,
which are addressed in Section 1(d)) shall not
change the text of the documentation. Comshare may,
however, produce and distribute supplements to the
documentation as it deems appropriate.
(ii) With respect to any Software sublicensed as
described in Section I.A of Exhibit D, Comshare shall ensure
that Arbor's copyright attribution will appear on the
documentation, disks, the screen used by Comshare as the
boot-up screen for its own notice for that application and
wherever else may be necessary to protect Arbor's copyrights.
2. Term. This Agreement shall be effective as of December
23rd, 1993 (the "Effective Date") and shall continue in effect until December
31, 2001, unless terminated sooner as provided in Section 8. As used herein,
"Year 1" means the period from the Effective Date through December 31, 1994;
"Year 2" means the period from January 1, 1995 through December 31, 1995; and
"Year 3" and succeeding Years mean the succeeding calendar years.
3. Development Services and Maintenance.
(a) Initial Support. For the payments described
in Section 4(b), during Year 1, Arbor shall provide technical support,
training, and hotline support for Comshare developers as described on Exhibit B
attached hereto.
(b) Ongoing Support and Training. For the
payments described in Section 4(c), after Year 1, Arbor shall provide ongoing
support, training, and hotline support for Comshare developers as described on
Exhibit B.
(c) Maintenance. For the payments described in
Section 4(d), during the Term and for so long thereafter as Comshare requests
and pays for as provided herein, Arbor shall provide maintenance services to
Comshare, consisting of updates, enhancements, bug fixes, "Star Account" and
other "severity 1" responses, and other services related to the Software, all
as described on Exhibit C attached hereto. Comshare and the Comshare
Distributors shall be responsible for passing on updates, enhancements and bug
fixes as appropriate to sublicensees.
4. Payments.
(a) License Fees. Comshare shall pay Arbor a fee
for each sublicense of the Software granted to a customer by Comshare or a
Comshare Distributor, based on the type of sublicense, as described on Exhibit
D attached hereto.
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Comshare shall not be required to pay additional fees for copies of the
Software that Comshare uses for its own internal purposes or that Comshare or
the Comshare Distributors use for development, marketing, demonstration or
other purposes contemplated by this Agreement, in accordance with Comshare's
standard practices.
(b) Initial Support Fee. For the initial support services
described in Section 3(a), Comshare shall pay Arbor a flat fee of *
plus reasonable travel, room and board, payable in the manner provided in
Section 5.
(c) Ongoing Support and Training Fees. For the ongoing
support and training described in Section 3(b), Comshare shall pay Arbor as
described on Exhibit D.
(d) Maintenance Fees. For the maintenance services
described in Section 3(c), Comshare shall pay Arbor a fee for each sublicensee
that has contracted for maintenance services, as described in Exhibit D.
(e) New Product Fees. As new Arbor products and
platforms are added to the Software, the license and support fees shall be
calculated as provided in Exhibit D.
5. Payment Method and Minimum Amounts.
(a) Payment Method. The * fee for all Year 1 services
shall be paid in twelve (12) installments of * with the first installment
due January 10 and the remaining eleven payments due on the same day of each
succeeding month. All other amounts are payable quarterly and are due sixty
(60) days after the end of the calendar quarter. License and maintenance fees
will be based on revenue recognized by Comshare during that quarter in
accordance with its standard accounting practices, less bad debt adjustments
and net of credits granted for that or previous quarters.
(b) Payment Reporting and Audit. Within forty-five (45)
days after the end of each calendar quarter, beginning with the first quarter
in which a sublicense of the Software is sold, Comshare will provide Arbor
with a report of sublicenses and maintenance contracts sold (by customer
identification number and Comshare sales territory and not by name) during
that quarter, in accordance with Comshare's standard accounting practices.
Arbor may, upon twenty (20) days' written notice and not more than once in
each Year, examine Comshare's books and records related to the amounts
due to Arbor. Such examination may be done, at Arbor's expense, by Arbor's
internal auditor or its certified public accounting firm; provided, however,
that if any such audit uncovers an
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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underpayment in excess of * Comshare shall be liable for the full costs
of such audit.
(c) Year 2 Minimum. Regardless of the amount of
sublicense, maintenance and other payments due to Arbor as provided in Section
4, Comshare shall pay Arbor no less than * for Year 2, payable quarterly as
follows: if the payment otherwise due to Arbor for limited-use and System W
downsizing sublicenses (as defined in Section I.A and I.B.2 of Exhibit D) and
their associated maintenance fees (collectively referred to herein as "Eligible
Minimum Fees") for any quarter of Year 2 is less than * then Comshare
shall nevertheless pay a total of * for that quarter; provided, however,
that (i) payments of Eligible Minimum Fees made by Comshare in any prior
quarter of Year 2 that are in excess of * shall have the excess amount
subtracted from the prepayment minimum of succeeding quarter(s) of Year 2, and
(ii) over the Term of the Agreement, Comshare may credit any payments otherwise
due to Arbor that are attributable to Eligible Minimum Fees against any
unearned minimum payments made to Arbor under this Section 5(c). The * minimum
due and payable for Year 2, however, shall not be refundable to Comshare even
if succeeding Years' payment credits never total * . Examples of the
calculation of minimum payments are given in Exhibit E.
(d) Subsequent Years Minimum. For each quarter of Years
3 through 8, if Comshare's payments of Eligible Minimum Fees including any
prepayment carry-forward) do not equal * Arbor may elect to terminate
this Agreement, upon six months' notice given after the end of the quarter for
which the minimum was not achieved.
(e) Exclusivity Minimum. During the Term of this
Agreement, Arbor shall not grant, directly or indirectly, licenses or any
rights to market or sublicense the Software to the companies described on
Exhibit F attached hereto (the "Exclusivity Companies"), provided that Comshare
makes the following minimum payments:
(i) Beginning with the third quarter of Year 2 and continuing for
a total of four consecutive quarters ("Exclusive Year 1"):
* per quarter for a total of * in Exclusive Year 1.
(ii) For each four quarters after Exclusive Year 1: * per
quarter for a total of * in Exclusive Year 2, and so
on for succeeding Exclusive Years.
Notwithstanding the above, however, Arbor and its agents and
distributors are not prohibited from licensing the
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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Software to the Exclusivity Companies strictly for their own internal business
use and not for resale or sublicensing.
These exclusivity payments shall be made and calculated in the manner
prescribed in Section 5(c) for the Year 2 minimums, and all excess exclusivity
payments shall be credited against any future amounts due from Comshare to
Arbor. The minimum payments described in Sections 5(c) and 5(d) are included
in and are not in addition to the amounts described in this Section 5(e).
6. Arbor Limitation.
(a) Two-year Limitation. For a period of two years after the
Effective Date of this Agreement, Arbor shall not license or distribute, either
itself or through its distributors or agents, application-specific value-added
code developed, owned or licensed by Arbor to be used as part of or in
conjunction with the Software to customers in the worldwide markets served by
Comshare's applications. Notwithstanding the above, Arbor may (i) distribute
samples to be used as application productivity tools that aid end users with
their own application development, such as sample data outlines, sample report
scripts, sample calculation scripts, and sample spreadsheets, and (ii) give
application demonstrations that provide visual demonstration to end users of
the implementation of specific applications. Comshare's current application
markets include: executive information systems, profit reporting and analysis,
financial consolidation and management reporting, budgeting, sales and
marketing reporting and analysis, and merchandise planning and performance
analysis. Comshare may add new application markets to this Section 6 list as
it introduces new products; provided, however, that such additions shall not
affect any licenses granted by Arbor or Arbor's marketing in such new
applications market of any new products developed prior to such addition or any
derivatives thereof.
(b) Payment Reductions. In the event that Arbor breaches its
obligations under Section 6(a) above during the first two years immediately
following the Effective Date, Comshare may elect to terminate this Agreement,
and the amounts payable to Arbor hereunder shall be reduced by * percent and
all minimum payment requirements shall be eliminated. In the event that Arbor
acts in the manner described in Section 6(a) after a date two years from the
Effective Date of this agreement, such act shall not be a breach of this
Agreement, but the payments due to Arbor defined as Eligible Minimum Fees shall
be reduced by * percent, the minimum payments under Sections 5(d) shall be
eliminated, and the exclusivity minimum payments under Section 5(e) shall be
reduced by * percent.
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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(c) Comshare Distributors. In addition, during the Term
of this Agreement, Arbor shall not, directly (or indirectly with respect to the
Exclusivity Companies or the parent or direct or indirect subsidiary of Arbor),
market its Software through Comshare Distributors. It is understood, however,
that the restriction in this Section 6(c) shall not apply if a Comshare
Distributor ceases to be a Comshare Distributor, without solicitation by Arbor.
Comshare has provided, solely for purposes of this Section 6(c), a list of
Comshare Distributors according to geographic territory as of the date hereof
(the "List"), attached as Schedule 6(c), and may add to the List, subject to
the following:
(i) Comshare may not add names to the List for the territory
of the United States.
(ii) Comshare may not add a name to the List unless that
entity has the right to grant full use sublicenses of the Software.
(iii) If Comshare adds an entity with a territory outside the
United States with which Arbor does not at that time have a
distribution arrangement pursuant to a written contract, then Arbor
may distribute its software through that Comshare Distributor,
provided that Arbor pays to Comshare, for the three-year period from
the beginning date of Arbor's arrangement with that Comshare
Distributor and with respect to the territory for which it is a
Comshare Distributor: * of the revenues received by Arbor from the
activities of that Comshare Distributor, except that with respect to
revenues from limited use licenses (that is, similar to limited use as
defined in this Agreement or to those customarily referred to as OEM)
the percentage shall be * provided, however, that Arbor shall not be
required to make payments for limited use licenses unless Comshare has
permitted that Comshare Distributor to sell limited use licenses for
the Software, and further provided that in no event shall Arbor be
required to make payments with respect to *
*
(iv) Notwithstanding the above subsection, however, Arbor
may distribute its software through an entity that is added to the
List without payment to Comshare if Arbor has established a
distribution arrangement with that Comshare Distributor for that
territory pursuant to a written contract prior to the date on which
the entity is added to List.
(d) Representation. As of the date of this Agreement,
Arbor represents that Arbor has not granted any license or distribution rights
that would be prohibited by this Section 6.
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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7. Right of Offer.
(a) Competitor Proposal. In the event that Arbor
or an Arbor shareholder receives from a Comshare Competitor (as defined below)
a bona fide offer which it intends to accept for an equity interest in Arbor,
substantially all of the assets of Arbor, or substantially all of the
intellectual property rights to the Software (such offer is referred to herein
as a "Competitor Proposal"), then before Arbor or the shareholder(s) may accept
the Competitor Proposal or effect any such transaction:
(i) Arbor shall promptly give Comshare written notice of
the Proposal, including the name of the offering Competitor, the
proposed price, whether the Competitor Proposal is for a minority
portion, controlling portion or all of Arbor's business or assets,
which portions shall be specified, and to the extent not directly
prohibited by the Competitor, all other details of the Competitor
Proposal.
(ii) Within five days after giving the initial notice, Arbor
shall provide to Comshare all information provided to the Competitor,
and all information customarily provided by a seller to a buyer if
requested by Comshare.
(iii) Comshare shall have twenty (20) days after receipt of
all of the material information described in subparagraph (a)(ii) in
which to make a competing offer, which Arbor (and, as applicable, the
Arbor shareholders) shall consider in good faith but shall not be
required to accept.
(b) Competitor Definition. For purposes of this
Section 7, a Competitor is defined as any of the companies identified on
Schedule 7(b) attached hereto, including any entity controlling, controlled by
or under common control with them, and any assignee of or successor to the
competing portion of their business. Comshare may, at any time after 6 months
from the date of this Agreement, but in no event more than once per year, add
the name of any company that is a bona fide substantial direct competitor of
Comshare to Schedule 7(b), which shall then become a Competitor; provided,
however, that in no event shall there be more than fifteen (15) competitors.
If Arbor reasonably believes that an entity added by Comshare is not a bona
fide substantial direct competitor of Comshare, then Arbor may submit the issue
for resolution under the arbitration procedures of Section 15.
(c) Comshare Remedy. At any time a Competitor becomes the
owner of at least 20% of the outstanding equity of
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Arbor, substantially all of the assets of Arbor, or substantially all of the
intellectual property rights to the Software, then all amounts payable to Arbor
under Sections 4(a) and 4(d) shall be reduced by 50 percent, all minimum
payments under Section 5 shall be eliminated, and Comshare may elect to
terminate this Agreement effective at any time thereafter.
(d) Expiration. Upon the earlier of (i) the effective
date of Arbor's initial public offering or (ii) the sale or transfer to a
Competitor of 20% or more of the outstanding equity of Arbor, substantially all
of the assets of Arbor, or substantially all of the intellectual property
rights to the Software, then the rights granted to Comshare in Section 7(a)
shall expire, but Comshare's rights under Section 7(c) shall continue.
(e) Purpose. Arbor understands that Comshare would not
enter into a long-term arrangement for embedding third-party software into
Comshare's products if a direct Competitor of Comshare had an interest in that
embedded software, and Arbor represents that it has no present intention of
transferring, directly or indirectly, any such interest to a Competitor. The
parties will interpret and implement the provisions of this Section 7 in good
faith in accordance with this purpose.
8. Termination.
(a) By Either Party. Either party may terminate this
Agreement on ninety (90) days' written notice to the other for any breach of a
material provision of this Agreement by the other, unless the breach complained
of in the termination notice is cured within the ninety (90) day notice period;
provided, however, that if the breach complained of concerns a disputed
nonpayment or payment by Comshare, Comshare shall pay to Arbor any undisputed
amount and this Agreement may not be terminated unless the dispute has been
settled in Arbor's favor under the arbitration procedure provided in Section
15.
(b) By Comshare. Comshare may terminate this
Agreement effective at any time (i) after thirty (30) days' written notice, in
the event that Arbor breaches its obligations under Section 6(a) and fails to
cure such breach within the thirty (30) day notice period, or (ii) as provided
in Section 7(c).
(c) Early Termination. In the event that Comshare
rightfully terminates or Arbor wrongfully terminates this Agreement either at
or prior to the end of Year 2 or prior to the first grant by Comshare of an end
user sublicense of the Software, then Comshare shall not be required to make
any monthly or quarterly payment that would otherwise be payable
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after the date of such termination, notwithstanding anything to the contrary
in Section 4 or 5.
(d) Effect of Termination. All sublicenses to the
Software granted by Comshare to customers under this Agreement shall
continue in effect, in accordance with their terms, after termination of this
Agreement. Regardless of the reason for such termination, Arbor shall, upon
Comshare's request, continue to maintain and provide technical support for the
Software on the terms provided in this Agreement for all existing customer
sublicensees and Comshare may continue to use the Software for its internal
business purposes and may also possess a copy of the Software solely for the
purpose of customer support.
9. Source Code. Within thirty (30) days after execution
of this Agreement, Arbor shall place a copy of the source code to the Software
in escrow with Data Securities International, Inc., under an escrow agreement
in the form attached hereto as Exhibit G (the "Escrow Agreement"). The Deposit
Material shall consist of the items listed in Section 16 of the Escrow
Agreement for all of the Software. Arbor shall update the Deposit Material
after each major release of the Software and at least once every twelve (12)
months. The Release Conditions under Section 21 of the Escrow Agreement shall
be: (i) Arbor shall become subject to any proceeding under the Federal
Bankruptcy Act (except that, with respect to an involuntary petition with
which Arbor disagrees Arbor shall have 120 days to have the petition dismissed)
or any other statute relating to insolvency or the protection of creditors,
become insolvent, or make a general assignment for the benefit of creditors; or
(ii) Arbor shall, at any time during or after the term of this Agreement, fail
or refuse to provide maintenance of the Software as provided in Exhibit C or
shall materially breach those maintenance obligations and shall fail to cure
such breach within thirty (30) days of receiving written notice of the breach.
10. Confidentiality. The Mutual Non-Disclosure Agreement
between the parties dated November _ , 1993, a copy of which is attached hereto
as Exhibit H (the "Non-Disclosure Agreement") remains in effect. In case of a
conflict between a provision of this Agreement and a provision of the
Non-Disclosure Agreement, the provision of this Agreement shall prevail.
11. Intellectual Property Rights.
(a) Warranty. Arbor warrants that to the
best of its knowledge and as of the effective date of this Agreement, it is the
copyright owner and the owner of all other intellectual property rights,
including trademarks, in and of
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the Arbor Software, source code, and all corrections, modifications,
enhancements and adaptations made thereto by or for Arbor, except for software
owned by * for which Arbor has sufficient license rights, and Arbor has
and shall retain the authority to enter into and perform this Agreement and to
grant licenses to Comshare to the Arbor Software, in conformance with the
terms of this Agreement. Arbor has provided Comshare with copies of all
registration applications for all Software that is registered with the
U.S. Copyright Office and will continue to do so, upon Comshare's request, for
additional registrations during the term of this Agreement.
(b) Indemnification. Arbor shall be responsible for any
and all losses, costs, expenses, liabilities, or damages (including without
limitation attorneys' fees and costs) and shall defend, indemnify and
hold Comshare and Comshare's licensees, agents, distributors and
representatives harmless from and with respect to any and all claims that the
Software infringes allegedly or in fact any present or future copyright,
patent, trade secret or other proprietary right of any third party in any
country which is a signatory to the Berne Convention and/or the Universal
Copyright Convention. Comshare shall promptly notify Arbor of any such claim
and provide Arbor such reasonable cooperation and assistance, at Comshare's
expense, as Arbor may request from time to time in the defense thereof, but
Arbor shall have sole control of any defense or settlement. If an injunction
or order is obtained against Comshare or its licensees, agents, distributors
and representatives' use or distribution of the Software, or if Arbor
determines that the Software is likely to become the subject of a claim of
infringement or violation of a patent, copyright, trade secret or other
proprietary right of any third party, Arbor will, at its option and expense: (i)
procure for Comshare the right to continue using, reproducing, and distributing
the Software and for Comshare's licensees, agents, distributors and
representatives the right to continue using the Software; or (ii) replace or
modify the same so that it becomes non-infringing, provided such modification
or replacement does not adversely affect the specifications for or the use or
operation of the Software by Comshare or its licensees, agents, distributors
and representatives. If neither (i) nor (ii) is feasible, Arbor shall refund
the payments made by Comshare for the Software. Arbor shall not be liable
hereunder to Comshare for, and Comshare shall indemnify Arbor against, in the
same manner provided in this Section 11(b), any claim to the extent based upon
the combination, operation or use of the Software with equipment, data or
software supplied by Comshare, or based upon any modification made by or for
Comshare to the Software other than those made by Arbor or to specifications
supplied by Arbor in writing.
* Indicates that material has been omitted and
confidential treatment has been requested
therefore. All such omitted material has been
filed separately with the SEC pursuant to Rule
24b-2.
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12. Representations and Warranties. Arbor represents and
warrants that:
(a) Performance. The Software substantially conforms to
the specifications in its technical and user documentation, and all releases
will be upwardly compatible with the previous release of the same product, as
is further described in Exhibit C.
(b) No Virus, etc. To the best knowledge of Arbor, after
due care and testing, the Software does not and during the Term will not
contain any instructions, Algorithms, or code, except as specifically
set forth in the documentation, which would cause the product (including any
component, routine, or sub-routine thereof or other data relating thereto) or
any data contained within the computer facilities of the user in any format,
regardless of the method of storage, to, in a malicious and destructive
fashion, (a) be modified or damaged, (b) modify, damage or delete itself or
cause other software, programs, routines or sub-routines or data to be
modified, damaged or deleted or to modify, damage or delete themselves, (c)
replicate and propagate itself throughout other software, programs, routines or
sub-routines or data, (d) search for and consume memory in the user's
computers, (e) transmit data, (f) usurp the normal operation of the computer
facilities of the user, or (g) alter or place itself within or substitute
itself for any of the Software (including any component, routine, or sub-routine
thereof and other data relating thereto).
(c) Authority. The execution and performance of
this Agreement will not conflict with any agreement, understanding, law or
regulation to which Arbor is a party or by which it is bound. Comshare, for
its part, represents and warrants that the execution and performance of this
Agreement will not conflict with any agreement, understanding, law or
regulation to which Comshare is a party or by which it is bound.
(d) No Claim. No claim or assertion of infringement of
any copyright, patent or other intellectual property right has been made or is
pending against Arbor, and Arbor knows of no valid basis for any such claim.
(e) Equity. As of the date hereof, no Comshare
Competitor (as defined in Section 7) holds shares or options to purchase shares
in Arbor.
(f) Financial Statements. The financial statements
provided by Arbor, a list of which is attached hereto as Schedule 12(f), are
in accordance with the books and records of Arbor, present fairly the financial
condition of Arbor as at the respective dates thereof and the results of its
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operations for the periods covered by such statements, and have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis. Arbor shall provide such current statements on an annual
basis until such time as Arbor becomes a public reporting company under the
Securities Exchange Act of 1934. All information disclosed pursuant to this
subsection shall be deemed confidential information and governed by Section 10
above.
13. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
ARBOR MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
14. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE
LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY
DAMAGES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEPT FOR INDEMNIFICATION
FOR INFRINGEMENT AS AND TO THE EXTENT PROVIDED IN SECTION 11. NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT, HOWEVER, NOTHING HEREIN SHALL LIMIT
THE LIABILITY OF EITHER PARTY FOR FRAUD OR INTENTIONAL OR NEGLIGENT
MISREPRESENTATION.
15. Arbitration. In the event of a dispute that remains unresolved
despite the parties' good faith negotiations over (i) the applicable
Commonly Used Retail Price, or (ii) amounts properly payable by Comshare
hereunder, the dispute shall be resolved through binding arbitration under the
procedures specified in this Section 15. Either party may make a written
demand for arbitration (the "Demand") setting forth the specific matters that
remain in dispute. The parties shall jointly select and engage, and shall
share equally the expense of, an independent auditor to resolve the disputed
matters. In the event that the parties cannot agree on an auditor within twenty
(20) days after the Demand is received, then the parties' certified public
accounting firms shall select the independent auditor no later than thirty (30)
days after the Demand is received. The independent auditor shall deliver a
written report setting forth the resolution of the disputed matters no later
than sixty (60) days after his or her selection. Judgment upon the
arbitrators' award may be entered in any court of competent jurisdiction.
16. General.
(a) Remedies Cumulative. The remedies provided in this
Agreement shall be cumulative, and the assertion by any party of any right or
remedy shall not preclude the assertion by such party of any other rights or
the seeking of any other remedies.
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(b) Disclaimer of Agency. This Agreement shall not be
construed as creating an agency, partnership, joint venture or any other
form of legal association between the parties.
(c) Notices. All notices and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed given when delivered personally or by confirmed telecopy or five (5)
days after being sent by registered mail, or certified mail, return receipt
requested, postage prepaid and addressed as follows:
ARBOR NOTICE ADDRESS COMSHARE NOTICE ADDRESS
Arbor Software Comshare, Incorporated
Corporation 0000 X. Xxxxx Xxxxxx
0000 Xxxxx Xxxx. Xxxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Attention: President Attention: President
or to such other address as each party may designate in writing.
(d) Force Majeure. Neither party shall be responsible
for any failure to perform due to causes beyond such party's reasonable control.
(e) Non-Solicitation. During the Term of this Agreement,
neither party shall solicit the employees of the other for employment.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Michigan, except
for the enforcement of Arbor's intellectual property rights in the Software,
which shall be governed by California law, and applicable federal law.
The United Nations Convention on Contracts for the International Sale of
Goods shall not apply to any transactions under this Agreement between Arbor
and Comshare.
(g) Partial Invalidity. Wherever possible, each
provision of this Agreement shall be interpreted in such a way as to be
effective and valid under applicable law. If a provision is prohibited by or
invalid under applicable law, it shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement. The parties agree to
replace any such prohibited or invalid provision with a new provision which has
the most nearly similar permissible economic effect.
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(h) Assignment. This Agreement or any of its rights or
obligations hereunder shall not be assignable by either party to any third
party or entity, and this Agreement may not be involuntarily assigned or
assigned by operation of law, without the prior written consent of the
nonassigning party, in its sole and absolute discretion. Notwithstanding the
foregoing, (i) the rights granted to Comshare under this Agreement are
divisible and assignable in whole or in part without permission in connection
with a merger, consolidation, reorganization, assignment to direct or indirect
subsidiaries or sale, exclusive license, or other transfer of assets, including
without limitation any Comshare software used in conjunction with any portion
of the Software, and (ii) Arbor may assign its rights and obligations under
this Agreement as part of a sale of substantially all of its assets or
substantially all of its intellectual property rights in the Software, provided
that Arbor has complied with its obligations under Section 7 hereof. Any
attempted assignment in contravention of this Section shall be null and void.
(i) Entire Agreement and Amendments. This Agreement, including
the attached Exhibits, represents the entire agreement between the parties, and
expressly replaces, supersedes and cancels any prior oral or written agreements
or communications on this subject. Each party acknowledges that it is not
entering into this Agreement on the basis of any representations not expressly
contained herein. Other than as specified herein, this Agreement may only be
supplemented, modified or waived in a writing executed by an officer of Arbor
and a duly authorized representative of Comshare and expressly referring to
this Agreement. No additional or conflicting term in a purchase order or other
document shall have any effect.
(j) Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties, their successors
and permitted assigns.
(k) Waiver. The waiver by either party of one breach or default
under this Agreement shall not constitute the waiver of any subsequent breach
or default, and shall not act to amend or negate the rights of the parties
under this Agreement.
(l) Exhibits, Titles and Headings. The attached Exhibits referred
to in this Agreement are incorporated by reference as though set forth in full,
and shall be construed as an integral part of this Agreement. Titles and
headings to sections or paragraphs in this Agreement are inserted for
convenience of reference only and are not intended to affect the interpretation
or construction of this Agreement.
ARBOR SOFTWARE CORPORATION COMSHARE, INCORPORATED
By: Xxxxxx Xxxxx By: T. Xxxxxxx Xxxxxxxx
------------ -------------------
Its: Vice President Its: Sr. Vice President
-------------- ------------------
Date: 12-23-93 Date: 12-23-93
-------- --------
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EXHIBIT A
CURRENT ARBOR SOFTWARE
1. Programs and Components
Essbase Application Manager
Essbase Spreadsheet Clients
Excel for Windows
Excel for Macintosh
1-2-3 W
1-2-3 R 2.4 for DOS
Currency Conversion Module
SQL Interface Module
DOS/WIN client API
Server Systems API
Data Analysis Server for NT and OS/2
Extended Spreadsheet Macros
Installation Software
Testing and Debugging Utilities (not for sublicense to
customers)
2. Documentation
Product Documentation - all commercial product documentation,
including:
Technical Reference Manual
Application Designer Guide
API Reference Manuals
Command Line Interface Manual
User Guide
Developer Documentation - all pertinent internal technical
documentation materials which would assist Comshare in
developing its applications, including any API's for which
commercial documentation does not exist and for testing and
debugging utilities.
3. Training Materials
Training manuals, slides, sample training applications, video
tapes, written and electronic tutorials, and the like.
4. Copies
Number of Demonstration and development copies of programs,
documentation, and training materials to be delivered: 3 master copies, to be
delivered to locations designated by Comshare, plus demonstration copies for
Comshare Distributors and sales offices (number to be supplied by Comshare
within thirty days) to be delivered to Comshare's Xxx Arbor headquarters.
17
EXHIBIT B
SUPPORT AND TRAINING
INITIAL SUPPORT
During Year 1 Arbor will provide the following:
1. Technical Training.
(a) Developers and Support Personnel. Arbor will
provide as much training as is reasonably necessary on-site at Comshare for
Comshare developers and support personnel on a schedule requested by Comshare.
Training will include product usage, support techniques, application and
database design and efficiencies, and other appropriate technical concepts.
Comshare will develop the schedule on a four week basis and will consult with
Arbor and adjust the schedule as reasonably necessary within that four week
time frame, taking into account Arbor's resources.
(b) Comshare Field Consultants. Arbor will
provide as much training as is reasonably necessary at the appropriate Comshare
regional sites on a schedule requested by Comshare. This will include detailed
technical training to cover end-user application development with Essbase.
Comshare will develop the schedule on a four week basis and will consult with
Arbor and adjust the schedule as reasonably necessary within that four week
time frame, taking into account Arbor's resources.
2. Sales Training. Arbor will provide as much sales
training as is reasonably necessary to Comshare sales personnel on a schedule
requested by Comshare. Comshare will develop the schedule on a four week basis
and will consult with Arbor and adjust the schedule as reasonably necessary
within that four week time frame, taking into account Arbor's resources.
3. Consulting. Arbor will provide a high level of
consulting to Comshare developers on application and database considerations,
product efficiencies, and other technical considerations. As part of such
technical consulting, Arbor will provide a full-time expert resource dedicated
to Comshare who will as requested by Comshare spend approximately half-time at
Comshare facilities.
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4. Technical Support.
(a) Product and Development Information. Arbor
will respond to Comshare questions regarding Essbase product and API usage, use
of Arbor testing and debugging utilities, and other technical questions as they
arise. Arbor will use commercially reasonable efforts to respond promptly
(within 1 business day) to information queries.
(b) Designated Contacts. Comshare will designate
primary and secondary US and UK contacts for coordinating information questions
with Arbor. Arbor will designate primary and secondary contacts for
communicating with Comshare. Primary and secondary contacts will redirect
communications to other personnel as needed. Communication may be either via
phone or E-mail as appropriate.
ONGOING SUPPORT
After Year 1, Arbor will provide the above described training,
consulting and technical support as Comshare shall reasonably request, at the
prices described in Exhibit D.
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EXHIBIT C
MAINTENANCE SERVICES
Maintenance Services to be provided by Arbor shall consist of the following:
1. Updates
Comshare should receive master media of all product components
created for all Arbor Alpha, Beta and commercial releases. Alpha software
includes versions of software that would be of benefit when accessed by other
product developers but not deemed ready for customer access. Beta software
includes versions of software considered ready for customer pre-commercial
testing, but not deemed ready for commercial release.
Arbor should provide the updates and final drafts of
documentation within three (3) working days of their internal completion and
availability at Arbor, and the documentation copy should be sent to Comshare at
the same time it is sent to the printer. Software should be on diskette or any
other media reasonably requested by Comshare. Documentation masters will be
delivered in electronic form to Comshare within three (3) working days of
becoming completed and available internally within Arbor, and three (3) copies
in hard copy form within three (3) working days of when Arbor inventory exists.
Training Material copy will be sent to Comshare at the same time it is sent to
the printer, and masters will be delivered in written, electronic or other form
appropriate to the materials as mutually agreed upon, within three (3) working
days of their internal availability at Arbor.
2. Enhancements.
In planning each major release, Arbor will consult with Comshare
and will provide Comshare with a list of proposed contents. If Arbor does not
wish to develop an enhancement that is requested by Comshare and required for
Comshare customers, Comshare may require Arbor to use its best efforts to
develop the enhancement at a reasonable charge to Comshare, subject to Arbor's
resource availability.
20
3. Bug Fixes.
Arbor shall provide bug fixes in accordance with Comshare's
internal standards for responsiveness. Comshare will classify the bugs it
reports and Arbor will respond according to the following severities (provided,
however, that it shall not be a breach of this Agreement if Arbor's performance
is within Comshare's own general actual performance for response to the
applicable bug classification):
(1) A severity 1 bug is a debilitating bug that stops a
customers's application from running. It should be treated as a "drop
everything until it's resolved" situation. Resolutions may include get-arounds
(provided they are acceptable to the customer), patch disks, or a formal
release if necessary. A severity 1 bug must be resolved within 5 working days
of notice. The bug fix shall be included in the next available interim
release, and no later than 60 days.
(2) Severity 2 bugs are bugs which need to be fixed,
but don't have the degree of urgency associated with a severity 1. These
bugs are usually easy to get around or obscure cases discovered internally or
by only one or two customers. The bug fix shall be included in the next
available major release, and no later than 180 days.
(3) A severity 3 bug is the least serious
classification. These bugs are largely annoyances more than problems that get
in the way of getting the job done. These are most often cosmetic issues.
Severity 3 bugs should be fixed when the affected area of code is next
modified, or within one year of notice, whichever is sooner. The fix is then
included in the next available major release.
4. STAR Accounts.
Under Comshare's customer service policies, certain customers
that experience particularly serious problems are assigned STAR account status.
Comshare's STAR account manager is empowered to assign necessary Comshare
resources, including on-site visits, to investigate and resolve the customer's
problems on an urgent basis. Arbor will provide any necessary cooperation,
including participating in on-site visits, as requested by Comshare.
5. Hot Line.
Comshare support personnel shall have priority access to Arbor's
telephone hot line as necessary to resolve Comshare's customer questions.
Comshare customers shall not have direct access to Arbor's hot line.
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6. Prior Releases.
Arbor shall continue to support prior commercial releases of all
products for at least six months after the new commercial release is issued.
7. Upward Compatibility.
All Arbor releases must be upward compatible with the previous
release of that product. This applies both to running client applications and
to Comshare's ability to build its applications using the Arbor APIs. Comshare
must approve any incompatibility and any proposed method for handling such
incompatibility.
8. Intent. Arbor agrees that overall customer satisfaction
is important to both companies and that it will treat Comshare on a priority
basis. However, in the event that Arbor cannot fulfill its obligations
hereunder due to resource constraints, the parties will work together to find
a mutually acceptable solution.
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EXHIBIT D
PRICING
Comshare shall pay Arbor for sublicenses of Software and for
Arbor services as follows:
I. SOFTWARE SUBLICENSE PRICES.
A. For Software sublicensed as a component module of a Comshare
packaged application solution and contractually limited to use with a Comshare
application, Comshare shall pay Arbor: * of Arbor's Commonly Used Retail
Price.
1. For the first thirty (30) months of the Term of this Agreement,
however, the price paid by Comshare for the Software on the *
shall not exceed the sum of * plus * per port (calculated
in * increments) for each port over * for each
server on which the Software runs.
2. The sublicense price in this Section I.A is further subject to
the volume discounts described in Section I.C.
3. For purposes of the pricing in this Section I.A, the Software
provided to the customer will not include those portions that
would enable the customer to use the Software to develop its own
(non-Comshare) applications; provided, however, that Comshare
may provide the customer with any portion of the Software that
the customer needs in order to execute the application provided
by Comshare. As part of any delivered Comshare application,
Comshare may include the Essbase Application Manager ("EAM"),
provided that the EAM is programmatically, or if programmatic
restriction is not feasible then contractually, limited to the
specific Comshare application with which it is delivered.
Delivering Essbase without the above restrictions, with or
without other Comshare products, would constitute delivery of a
full use Essbase license.
B . For Software sublicensed for full use (i.e., that is not
limited as described in Section I.A), Comshare shall pay Arbor the following
percentages of Arbor's Commonly Used Retail Price, based on the total amounts
payable by Comshare under this Section I.B for each Year:
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
23
Price in Price
Annual Amounts Payable Years 1 and 2 After Year 2
---------------------- ------------- ------------
* * *
* * *
* * *
above* * *
1. The payment volumes in the table do not cumulate from Year to
Year. During the course of a Year, as amounts so far payable
exceed the threshold for the next price category, Comshare
shall adjust the payments due, retroactively for the previous
portion of the Year and continuing during that Year until the
next threshold is reached. At the end of each Year, the
annual payment volume will be finally calculated for that
Year, and the corresponding price percentage will be (i)
retroactively applied to that Year, and (ii) used as the
preliminary price applicable to the next Year. Any remaining
overpayment by Comshare in one Year will be credited against
payments due in the succeeding Year. Any underpayment in a
Year would be paid to Arbor sixty (60) days after the end of
that Year.
2. The percentages in the above table shall be reduced by *
percentage points for full-use sublicenses of the Software
granted to current licensees of Comshare's System W mainframe
software that are replacing System W. For such sublicenses,
Comshare shall pay only one sublicense fee per server (any
fees based on the number of ports, shall be calculated as
otherwise provided herein), regardless of the number of
Comshare applications that are being downsized.
3. The percentages in the above table shall be reduced by *
percentage points for full-use sublicenses of Software granted
to customers who have also licensed Comshare software with a
value equal to at least * of the combined price paid by the
customer for both the Software and the Comshare software.
This reduction is not, however, applicable to any sublicense
which has received the * percentage point reduction under
Section I.B.2.
4. The sublicense prices in the above table are further subject
to the volume discounts described in Section I.C.
5. In the case of a customer that has previously purchased a
limited use sublicense in accordance with
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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Section I.A, for each server the price of an upgrade to a full
use sublicense shall be the difference between the price as
calculated in this Section I.B and the amount Comshare has
previously paid to Arbor for that customer's limited use
sublicense on that server. Comshare will require the customer
to return the limited use sublicense diskette(s) of the
Software in order to receive the substituted full use
diskette(s) and sublicense. In the event that Comshare has
previously paid Arbor higher fees for the limited use
sublicenses on a server than would be due for the substituted
full use sublicense, Comshare shall not be entitled to a
refund.
6. Arbor will provide Comshare with all copies of the Software,
including Arbor's standard number of copies of documentation,
for full-use sublicenses in Arbor's standard packaging, at no
extra charge. Comshare will give Arbor reasonable advance
forecasts of its inventory requirements for documentation, and
Arbor will use commercially reasonable efforts to provide
Comshare with the required inventory level. Arbor will
deliver to Comshare (at locations designated by Comshare)
three camera ready as well as master copies of documentation
as it changes from time to time, and if Comshare produces the
documentation itself, then Comshare may subtract its
reasonable costs of producing the documentation from amounts
otherwise owed to Arbor; provided, however, that such costs
shall not exceed Arbor's own costs by more than *
C. The sublicense prices described in Section I.A and
in the table in Section I.B shall be further reduced in each contract Year as
follows in the event the amounts payable by Comshare to Arbor under all
sections of this Agreement reach the following levels in that Year:
SECTION I.A SECTION I.B
RATES RATES
----- -----
For Reduction Reduction Rate
Amounts in Percentage Rate Percentage (example
Excess of: ---------- ---- ---------- only)
---------- --------
* * * * *
* * * * *
* * * * *
* * * * *
Each reduction percentage in the table applies only to sublicenses
granted after the corresponding amount in the table has been achieved.
* Indicates that material has been omitted and confidential treatment has
been requested therefore. All such omitted material has been filed separately
with the SEC pursuant to Rule 24b-2.
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II. MAINTENANCE PRICES.
For the maintenance services described on Exhibit C, Comshare shall
pay, for each of the sublicensees that purchase annual maintenance of the
Software, the customer maintenance percentage rate actually realized by Arbor
(the "Realized Maintenance Rate") times the license fee actually paid to Arbor
for the sublicensed Software under maintenance.
III. SUPPORT AND TRAINING PRICES.
For the support and training services described on Exhibit B, Comshare
shall pay $ * in Year 1, as provided in Section 4(b), plus reasonable
travel, room and board, and thereafter shall pay * of Arbor's standard hourly
rate for that service, plus reasonable travel, room and board. Travel, room
and board expenses shall conform to Comshare's standard policies and must be
approved in advance by Comshare (i) during Year 1, if they exceed more than *
in any one month and (ii) after Year 2, at the time Comshare requests Arbor to
provide the services.
IV. DEFINITIONS AND ADDITIONAL TERMS.
A. "Commonly Used Retail Price" ("CUR") is defined as the average
price which Arbor realizes for the corresponding units of Software being
sublicensed by Comshare.
1. The CUR will be calculated and reported by Arbor on a calendar
quarterly basis, for each Software product, by country. The
CUR for each software product (including, as applicable, any
component that Arbor separately prices) will be calculated for
each server and port configuration, by number of copies
licensed per order and in accordance with the manner in which
Arbor actually prices and sells Software to its customers.
2. Arbor's quarterly report will list the number of sales on
which each CUR is calculated. If there have not been at least
* sales of an item in the United States, then Arbor shall
provide a reasonable estimate of what CUR would have been if
at least * sales had occurred. If with respect to a country
other than the United States, there have not been at least *
sales in that country in the previous six months, then the
U.S. CUR shall be used. If Comshare disputes the
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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estimate, Comshare and Arbor shall negotiate in good faith to
arrive at a mutually agreeable CUR. Comshare shall have
reasonable access to Arbor's books and records to verify any
CUR.
3. Comshare has established and observes a consistent,
corporate-wide policy for allocation and recognition of
licensing revenues in transactions involving sublicenses of
third-party software, "free" maintenance, consulting services,
sales of other software packages and other items affecting
overall revenues from the transaction. Comshare's policy
shall be used by Arbor in calculating CUR.
B. The Realized Maintenance Rate shall be calculated and reported
in the same manner provided for the Commonly Used Retail Price.
C. Comshare may examine Arbor's books and records related to the
calculation of CUR or Realized Maintenance Rate at Comshare's expense, by
Comshare's internal auditor or its certified public accounting firm; provided,
however, that if any such audit uncovers an overpayment amount in excess of *
then Arbor shall be liable for the full costs of such audit.
D. With respect to sublicense and maintenance fees in countries
other than the United States, Comshare will pay Arbor in U.S. dollars or local
currency, at Comshare's election and if permitted by applicable law, at the
exchange rates used by Comshare for its own internal transaction purposes in
effect at the time of payment to Arbor, less any exchange fees actually
incurred. Any tax, duty or withholding on such funds (other than a tax on
Comshare's income) shall be the responsibility of Arbor, and all payments will
be net thereof.
E. In the event that Arbor enters into an agreement with any
third party that contains, calculated separately with respect to limited use
and full use sublicenses, any of the following terms more favorable to the
third party than to Comshare: (i) base sublicense fee rates and any volume
discount on such rates, adjusted for the value of any prepaid amounts, and (ii)
maintenance fees, then Arbor shall immediately notify Comshare and shall grant
Comshare, effective with the date on which those terms become effective for
the third party, all of such more favorable rates that are lower than the
applicable Comshare rate by at least two percentage points. Arbor represents
that it has not entered into any such more favorable agreements as of the date
of this Agreement. Any dispute concerning the application of this subsection
shall be settled by the arbitration provisions of Section 15.
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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EXHIBIT E
EXAMPLES OF MINIMUM PAYMENT CALCULATIONS
1. Assume the following Eligible Minimum Fees due to Arbor from
actual sales in each quarter:
01 02 * 03 04
Then payments actually made to Arbor in each quarter would be:
01 02 * 03 04
2. Assume the following Eligible Minimum Fees due to Arbor from
actual sales in each quarter:
01 02 * 03 04
Then payments actually made to Arbor in each quarter would be:
01 02 * 03 04
3. Assume the following Eligible Minimum Fees due to Arbor from
actual sales in each quarter:
01 02 * 03 04
Then payments actually made to Arbor in each quarter would be:
01 02 * 03 04
And: * is carried forward as a credit against future
amounts owed.
* Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
28
EXHIBIT F
---------
EXCLUSIVITY COMPANIES
---------------------
*
*
*
*
*
*Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
29
EXHIBIT G
PREFERRED REGISTRATION
TECHNOLOGY ESCROW AGREEMENT
Account Number ____________________________
Recitals
This Preferred Registration Technology Escrow Agreement including any Exhibits
("Agreement") is effective this _____ day of _________ 199__, by and among Data
Securities International, Inc. ("DSI"), a Delaware corporation, Arbor Software
("Depositor"), and Comshare, Inc. ("Preferred Registrant").
WHEREAS, Depositor has entered or will enter into a contract with the Preferred
Registrant regarding certain proprietary technology and other materials of
Depositor;
WHEREAS, Depositor and Preferred Registrant desire the Agreement to be
supplementary to said contract pursuant to 00 Xxxxxx Xxxxxx Code Section
365(n);
WHEREAS, availability of or access to certain proprietary data related to
certain proprietary technology and other material is critical to Preferred
Registrant in the conduct of its business;
WHEREAS, Depositor has deposited or will deposit with DSI proprietary data to
provide for retention, administration and controlled access for Preferred
Registrant under the conditions specified herein;
NOW THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, and in consideration of the promises, mutual covenants and
conditions contained herein, the parties hereto agree as follows:
1. Deposit Account. Following the delivery of the executed Agreement, DSI
shall open a deposit account ("Deposit Account") for Depositor. The opening of
the Deposit Account means that DSI shall establish an account ledger in the
name of Depositor, assign a deposit account number ("Deposit Account Number"),
calendar renewal notices to be sent to Depositor as provided in Section 29, and
request the initial deposit ("Initial Deposit") from Depositor. Depositor has
an obligation to make the Initial Deposit. Unless and until Depositor makes the
Initial Deposit with DSI, DSI shall request the Initial Deposit from Depositor.
DSI, Inc. 1992
30
2. Preferred Registration Account. Following the execution and delivery of the
Agreement, DSI shall open a registration account ("Registration Account") for
Preferred Registrant. The opening of the Registration Account means that DSI
shall establish under the Deposit Account an account ledger with a unique
registration number ("Registration Number") in the name of Preferred
Registrant, calendar renewal notices to be sent to Preferred Registrant as
provided in Section 29, and request the Initial Deposit from Depositor. DSI
shall notify Preferred Registrant upon receipt of Initial Deposit.
3. Term of Agreement. The Agreement will have an initial term of one (1) year,
commencing on the effective date, and shall continue in full force unless
terminated earlier as provided in the Agreement. The Agreement may be extended
for additional one (1) year terms.
4. Exhibit A, Notices and Communications. Notices and invoices to Depositor,
Preferred Registrant or DSI should be sent to the parties at the addresses
identified in the Exhibit A.
Documents, payment of fees, deposits of material, and any written communication
should be sent to the DSI offices as identified in the Exhibit A.
Depositor and Preferred Registrant agree to each name their respective
designated contact ("Designated Contact") to receive notices from DSI and to
act on their behalf in the performance of their obligations as set forth in the
agreement. Depositor and Preferred Registrant agree to notify DSI immediately
in the event of a change of their Designated Contact in the manner stipulated
in Exhibit A.
5. Exhibit B and Deposit Material. Depositor will submit proprietary data and
related material ("Deposit Material") to DSI for retention and administration
in the Deposit Account.
The Deposit Material will be submitted together with a completed document
called a "Description of Deposit Material", hereinafter referred to as
Exhibit B. Each Exhibit B should be signed by Depositor prior to submission to
DSI and will be signed by DSI upon completion of the Deposit Material
inspection.
Depositor represents and warrants that it lawfully possesses all Deposit
Material, can transfer Deposit Material to DSI and has the authority to store
Deposit Material in accordance with the terms of the Agreement.
Page 2
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6. Deposit Material Inspection. Upon receipt of an Exhibit B and Deposit
Material, DSI will be responsible only for reasonably matching the labeling of
the materials to the item descriptions listed on the Exhibit B and validating
the count of the materials to the quantity listed on the Exhibit B. DSI will
not be responsible for any other claims made by the Depositor on the Exhibit B.
Acceptance will occur when DSI concludes that the Deposit Material Inspection
is complete. Upon acceptance DSI will sign the Exhibit B and assign the next
Exhibit B number. DSI shall issue a copy of the Exhibit B to Depositor and
Preferred Registrant within ten (10) days of acceptance.
7. Initial Deposit. The Initial Deposit will consist of all material
initially supplied by Depositor to DSI.
8. Deposit Changes. Depositor may desire or may be obligated to update the
Deposit Account with supplemental or replacement Deposit Material of Technology
releases.
Supplemental Deposit ("Supplemental") is Deposit Material which is to be added
to the deposit account.
Replacement Deposit ("Replacement") is Deposit Material which will replace
existing Deposit material as identified by any one or more Exhibit B(s) in the
Deposit Account. Replaced Deposit Material will be destroyed or returned to
Depositor.
9. Deposit. The existing deposit ("Deposit") means all Exhibit B(s) and their
associated Deposit Material currently in DSI's possession. Destroyed or
returned Deposit Material is not part of the Deposit; however, DSI shall keep
records of the destruction or return of Deposit Material.
10. Replacement Option. Within ten (10) days of receipt of Replacement from
Depositor, DSI will send a letter to Preferred Registrant stating that
Depositor requests to replace existing Deposit Material, and DSI will include a
copy of the new Exhibit B(s) listing the new Deposit Material.
Preferred Registrant has twenty (20) days from the mailing of such letter by
DSI to instruct DSI to retain the existing Deposit Material held by DSI, and if
so instructed, DSI will change the Replacement to a Supplemental. Conversion to
Supplemental may cause an additional storage unit fee as specified by DSI's Fee
and Services Schedule.
If Preferred Registrant does not instruct DSI to retain the existing Deposit
Material, DSI shall permit such Deposit Material to be replaced with the
Replacement. Within ten (10) days of acceptance of the Replacement by DSI, DSI
shall issue a copy of the executed Exhibit B(s) to Depositor and Preferred
Registrant. DSI will either destroy or return to Depositor all Deposit Material
replaced by the Replacement.
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11. Storage Unit. DSI will store the Deposit in defined units of space,
called storage units. The cost of the first storage unit will be included in
the annual Deposit Account fee.
12. Deposit Obligations of Confidentiality. DSI agrees to establish a locked
receptacle in which it shall place the Deposit and shall put the receptacle
under the administration of one or more of its officers, selected by DSI, whose
identity shall be available to Depositor at all times. DSI shall exercise a
professional level of care in carrying out the terms of the Agreement.
DSI acknowledges Depositor's assertion that the Deposit shall contain
proprietary data and that DSI has an obligation to preserve and protect the
confidentiality of the Deposit.
Except as provided for in the Agreement, DSI agrees that it shall not divulge,
disclose, make available to third parties, or make any use whatsoever of the
Deposit.
13. Audit Rights. DSI agrees to keep records of the activities undertaken and
materials prepared pursuant to the Agreement. DSI will issue to Depositor and
Preferred Registrant an annual report profiling the Deposit Account. Such
annual report will identify the Depositor, Preferred Registrant, the current
Designated Contacts, selected special services, and the Exhibit B history,
which includes Deposit Material acceptance and destruction or return dates.
Upon reasonable notice, during normal business hours and during the term of the
Agreement, Depositor or Preferred Registrant will be entitled to inspect the
records of DSI pertaining to the Agreement, and accompanied by an employee of
DSI, inspect the physical status and condition of the Deposit. The Deposit may
not be changed during the audit.
14. Renewal Period of Agreement. Upon payment of the initial fee or renewal
fee, the Agreement will be in full force and will have an initial period of at
least one (1) year unless otherwise specified. The Agreement may be renewed for
additional periods upon receipt by DSI of the specified renewal fees prior to
the last day of the period ("Expiration Date"). DSI may extend the period of
the Agreement to cover the processing of any outstanding instruction made
during any period of the Agreement.
Preferred Registrant has the right to pay renewal fees and other related fees.
In the event Preferred Registrant pays the renewal fees and Depositor is of the
opinion that any necessary condition for renewal is not met, Depositor may so
notify DSI and Preferred Registrant in writing. The resulting dispute will be
resolved pursuant to the dispute resolution process defined in Section 25.
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33
15. Expiration. If the Agreement is not renewed or is otherwise terminated,
all duties and obligations of DSI to Depositor and Preferred Registrant will
terminate. If Depositor requests the return of the Deposit, DSI shall return the
Deposit to Depositor only after any outstanding invoices and the Deposit return
fee are paid. If the fees are not received by the Expiration Date of the
Agreement, DSI, at its option, may destroy the Deposit.
16. Certification by Depositor. Depositor represents to Preferred Registrant
that:
a. The Deposit delivered to DSI consists of the following: source code
deposited on computer magnetic media, all necessary and
available information, proprietary information, and technical
documentation which will enable a reasonably skilled programmer of
Preferred Registrant to create, maintain and/or enhance the
proprietary technology without the aid of Depositor or any other
person or reference to any other materials; maintenance tools (test
programs and program specifications); proprietary or third party
system utilities (compiler and assembler descriptions); description of
the system/program generation; descriptions and locations of programs
not owned by Depositor but required for use and/or support; and names
of key developers for the technology on Depositor's staff.
b. The Deposit will be defined in the Exhibit B(s).
These representations shall be deemed to be made continuously throughout the
term of the Agreement.
17. Indemnification. Depositor and Preferred Registrant agree to defend and
indemnify DSI and hold DSI harmless from and against any and all claims,
actions and suits, whether in contract or in tort, and from and against any and
all liabilities, losses, damages, costs, charges, penalties, counsel fees, and
other expenses of any nature (including, without limitation, settlement costs)
incurred by DSI as a result of performance of the Agreement except in the event
of a judgment which specifies that DSI acted with gross negligence or willful
misconduct.
18. Filing For Release of Deposit by Preferred Registrant. Upon notice to
DSI by Preferred Registrant of the occurrence of a release condition as defined
in Section 21 and payment of the release request fee, DSI shall notify
Depositor by certified mail or commercial express mail service with a copy of
the notice from Preferred Registrant. If Depositor provides contrary
instruction within ten (10) days of the mailing of the notice to Depositor, DSI
shall not deliver a copy of the Deposit to Preferred Registrant.
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34
19. Contrary Instruction. "Contrary Instruction" is the filing of an
instruction with DSI by Depositor stating that a Contrary Instruction is in
effect. Such Contrary Instruction means an officer of Depositor warrants that a
release condition has not occurred or has been cured. DSI shall send a copy of
the instruction by certified mail or commercial express mail service to
Preferred Registrant. DSI shall notify both Depositor and Preferred Registrant
that there is a dispute to be resolved pursuant to Section 25. Upon receipt of
Contrary Instruction, DSI shall continue to store the Deposit pending Depositor
and Preferred Registrant joint instruction, resolution pursuant to Section 25,
order by a court of competent jurisdiction, or termination by non-renewal of the
Agreement.
20. Release of Deposit to Preferred Registrant. Pursuant to Section 18, if
DSI does not receive Contrary Instruction from Depositor, DSI is authorized to
release the Deposit, or if more than one Preferred Registrant is registered to
the Deposit, a copy of the Deposit, to the Preferred Registrant filing for
release following receipt of any fees due to DSI including Deposit copying and
delivery fees.
21. Release Conditions of Deposit to Preferred Registrant.
Release condition is:
The ocurrence of a Release Condition described in Section 9 of the License
Agreement between Preferred Registrant and Depositor.
22. Grant of Use License. Subject to the terms and conditions of the
Agreement, Depositor hereby transfers and upon execution by DSI, DSI hereby
accepts a non-exclusive, irrevocable, perpetual, and royalty-free Use License
which DSI will transfer to Preferred Registrant upon controlled release of the
Deposit as described in the Agreement. The Use License will be for the sole
purpose of continuing the benefits afforded to Preferred Registrant through any
existing license, maintenance, or other agreement with Depositor.
23. Use License Representation. Depositor represents and warrants to
Preferred Registrant and DSI that it has no knowledge of any incumbrance or
infringement of the Deposit, or that any claim has been made that the Deposit
infringes any patent, trade secret, copyright or other proprietary right of any
third party. Depositor warrants that it has the full right, power, and ability
to enter into and perform the Agreement, to grant the foregoing Use License,
and to permit the Deposit to be placed with DSI.
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35
24. Conditions Following Release. Following a release and subject to payment
to DSI of all outstanding fees, DSI shall transfer the Use License to Preferred
Registrant. Additionally, Preferred Registrant shall be required to maintain
the confidentiality of the released Deposit.
25. Disputes. In the event of a dispute, DSI shall so notify Depositor and
Preferred Registrant in writing. Such dispute will be settled by arbitration
(which arbitration shall be binding for purposes of this Agreement only) as
follows: (a) the parties shall each select one independent arbitrator within
ten (10) days, (b) such arbitrators shall select in good faith a third
arbitrator within five (5) days, (c) each party will have one (1) day to
present its case (presentation shall be at least five (5) and no more than
fifteen (15) days after selection of the third arbitrator), (d) the arbitrators
shall have ten (10) days after completion of such presentation to render their
decision (the decision of a majority of the arbitrators), (e) if one party
fails to timely appoint an arbitrator, the arbitration shall be conducted
solely by the other party's arbitrator, and (f) such arbitration shall be
conducted under the commerical rules of the American Arbitration Association in
Detroit, Michigan.
26. General. DSI may act in reliance upon any instruction, instrument, or
signature believed to be genuine and may assume that any employee giving any
written notice, request, advice or instruction in connection with or relating
to the Agreement has apparent authority and has been duly authorized to do so.
DSI may provide copies of the Agreement or account history information to any
employee of Depositor or Preferred Registrant upon their request. For purposes
of termination or replacement, Deposit Material shall be returned only to
Depositor's Designated Contact, unless otherwise instructed by Depositor's
Designated Contact.
DSI is not responsible for failure to fulfill its obligations under the
Agreement due to causes beyond DSI's control.
The Agreement is to be governed by and construed in accordance with the laws of
the State of California.
The Agreement constitutes the entire agreement between the parties concerning
the subject matter hereof, and supersedes all previous communications,
representations, understandings, and agreements, either oral or written,
between the parties. The Agreement may be amended only in a writing signed by
the parties.
If any provision of the Agreement is held by any court to be invalid or
unenforceable, that provision will be severed from the Agreement and any
remaining provisions will continue in full force.
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36
27. Title to Media. Subject to the terms of the Agreement, title to the
media, upon which the proprietary data is written or stored, is and shall be
irrevocably vested in DSI. Notwithstanding the foregoing, Depositor will retain
ownership of the proprietary data contained on the media including all
copyright, trade secret, patent or other intellectual property ownership rights
subsisting in such proprietary data.
28. Termination of Rights. The Use License as described above will terminate
in the event that the Agreement is terminated without the Use License
transferring to Preferred Registrant.
29. Fees. Fees are due upon receipt of signed contract, receipt of Deposit
Material, or when service is requested, whichever is earliest. If invoiced fees
are not paid within sixty (60) days of the date of the invoice, DSI shall
notify Preferred Registrant of Depositor's failure to pay. DSI shall give
Preferred Registrant thirty (30) days to cure such default before terminating
the agreement.
Renewal fees will be due in full upon the receipt of invoice unless otherwise
specified by the invoice. In the event that renewal fees are not received
thirty (30) days prior to the Expiration Date, DSI shall so notify Depositor
and Preferred Registrant. If the renewal fees are not paid within thirty (30)
days of such notice, DSI shall have the right to terminate the Agreement without
further notice and without liability of DSI to Depositor or Preferred
Registrant.
DSI shall not be required to process any request for service unless the payment
for such request shall be made or provided for in a manner satisfactory to DSI.
All service fees will be those specified in DSI's Fee and Services Schedule in
effect at the time of renewal or request for service, except as otherwise
agreed. For any increase in DSI's standard fees, DSI shall notify Depositor and
Preferred Registrant at least ninety (90) days prior to the renewal of the
Agreement. For any service not listed on the Fee and Services Schedule, DSI
shall provide a quote prior to rendering such service.
Arbor Software
------------------- --------------------
Depositor Preferred Registrant Data Securities
International, Inc.
By: _______________ By: ________________ By: _________________
Name: _____________ Name: ______________ Name: _______________
Title: ____________ Title: _____________ Title: ______________
Date: _____________ Date: ______________ Date: _______________
Page 8
37
EXHIBIT A
DESIGNATED CONTACT
Account Number 0000000-00001
Notices, Deposit Material returns
and communication, including Invoices to Depositor
delinquencies to Depositor should be addressed to:
should be addressed to:
Company Name: Arbor Software _________________________________
Address: 0000 Xxxxx Xxxx. _________________________________
Xxxxx Xxxxx, XX 00000 _________________________________
Designated Invoice
Contact: Xxxxxx Xxxxx Contact: ________________________
Telephone: 000-000-0000 _________________________________
Facsimile: 000-000-0000 _________________________________
State of Incorporation: Delaware
Notices and communication,
including delinquencies to Invoices to Preferred
Preferred Registrant should be Registrant should be
addressed to: addressed to:
Company Name: _________________________ ________________________________
Address: _________________________ ________________________________
_________________________ ________________________________
_________________________ ________________________________
Designated Invoice
Contract: _________________________ Contact: _______________________
Telephone: _________________________ ________________________________
Facsimile: _________________________ ________________________________
Requests from Depositor or Preferred Registrant to change the Designated
Contact should be given in writing by the Designated Contact or an authorized
employee of Depositor or Preferred Registrant.
Contracts, Deposit Material Invoice inquiries and
and notices to DSI should fee remittances to DSI
be addressed to: should be addressed to:
DSI DSI
Attn: Contract Administration Attn: Accounts Receivable
0000 Xxxxxxxxx Xxxxx 00 Xxxxxxxxx Xxxxxx
Xxxxx 000 Xxxxx 000
Xxx Xxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Date: ____________________________
DSI, Inc. 1992
38
EXHIBIT H
ARBOR SOFTWARE CORPORATION
MUTUAL NON-DISCLOSURE AGREEMENT
This Agreement dated November 15, 1995 is made by and between Arbor Software
Corporation ("Arbor") and Comshare, Incorporated ("Company") and replaces
the Mutual Confidentiality and Exploratory Agreement dated May 13, 1993 between
Arbor and Company and the Mutual Non-Disclosures Agreement dated May 13, 1993
between Arbor and Company (collectively, the "Prior Agreements").
In consideration of the mutual promises and covenants contained in this
Agreement, each party's intention to enter into discussions regarding a
potential business relationship and each party's disclosure of Confidential
Information (as defined below) to the other party, the parties hereby agree as
follows:
1. Confidential Information and Materials
(a) "Confidential Information" means the software published by either
party ("Software") and any tangible or intangible information or material
which is proprietary to either party or designated as Confidential
Information. Such information shall be deemed Confidential Information
whether or not owned or developed by either party and which the other party
may obtain knowledge of through or as a result of the relationship
established hereunder, access to each other's premises, or communications
with the other party's employees or independent contractors.
(b) Confidential Information includes, but is not limited to, information
relating to the parties' software products and their features and modes of
operation, trade secrets, know-how, inventions (whether or not patentable),
programs, alogorithams, schematics, testing procedures, software design and
architecture, computer code, internal documentation, design and function
specifications, problem reports, analysis and performance information,
software documents and other technical, business, product, marketing and
financial information and plans. Confidential Information shall also
include all tangible materials including without limitation written or
printed materials and documents and computer disks or tapes, whether
machine or user-readable.
(c) Confidential Information shall also include the fact that discussions
are taking place between Arbor and Company regarding a potential
relationship and the content of the discussions.
(d) Confidential Information does not include information, technical data
or know-how which (i) became known to the receiving party prior to disclosure
of such information by the disclosing party; (ii) is or subsequently becomes
publicly available without either party's breach of any obligation owed to the
other party; (iii) is subsequently disclosed to the receiving party from a
third-party source without an obligation of confidentiality to the disclosing
party; (iv) is independently developed by the receiving party without reliance
upon the disclosing party's Confidential Information. Notwithstanding the
above, the parties agree that for purposes of this Agreement the Software shall
not be deemed "publicly available" despite the fact that the Software is
licensed to third-parties.
2. Restrictions
(a) Each party understands and acknowledges that Confidential Information
has been developed or obtained by the other party by investment of significant
time, effort and/or expense, and that such Confidential Information provides
such party with a significant competitive advantage in its business.
(b) All Confidential Information shall be used by the recipient solely for
the purpose of exploring a business relationship with the disclosing party and
for no other purposes. The furnishing of Confidential Information does not
constitute the grant or waiver by either party of any of their respective
proprietary interests, including without limitation, patents, trade secrets,
copyrights or trademarks.
(c) For a period of five (5) years following the date of its disclosure,
each party shall take reasonable security procautions, at least as great as the
precautions it takes to protect its own confidential information, to prevent
the disclosure of any Confidential Information to any third party. Dissemination
of Confidential Information shall be limited to only (i) those employees or
consultants of the receiving party as are necessary to perform the limited
purpose for which the Confidential Information was supplied, provided, however,
that such employees or
39
consultants have executed appropriate written agreements sufficient
to enable the parties to comply with all the provisions of this
Agreement, or (ii) in the event disclosure is reasonably required by
applicable law or legal process and provided the receiving party
given reasonable advance notice to the other party so that the
requirement of such disclosure may be contested.
(d) Each party agrees to not make copies of any software disclosed
to each other except as is required solely for replacement of
the original in the event the original becomes unuseable. Neither
party may make copies of any written materials or documents without the
prior written consent of the other party.
(e) Each party may use any software disclosed by the other
party in machine-readable form only and will not reverse
engineer, decompile or disassemble any software so disclosed. Each
party agrees to not modify nor create a derivative of any part of any
software disclosed, nor remove any product identification, copyright or
other notice.
(f) Each party agrees to return all materials, software or documents
which have been furnished as part of this Agreement, together
with any copies thereof, promptly upon the request of the other party,
or, if not requested earlier, promptly after the limited function for
which they were furnished has been accomplished or abandoned.
3. Software License
(a) Arbor hereby grants to Company a non-exclusive,
non-transferable limited license to use the Software internally for
evaluation purposes only. Company may not sublicense, assign, or
otherwise transfer any of its rights in such license. The license
granted hereunder will expire ninety (90) days from the date of this
Agreement unless otherwise terminated earlier or extended by Arbor, in
its sole discretion, upon which Company must erase or otherwise destroy
the Software, all copies, and all materials unless directed to return
all of the above to Arbor at Arbor's sole discretion.
(b) Company agrees to not make copies of the Software except as is
required solely for replacement of the original in the event
the original becomes unuseable. Company agrees to use the Software in
machine-readable form only and not to reverse engineer, decompile or
disassemble the Software. Company agrees that it will not modify nor
create a derivative of any part of the Software nor remove any product
identification, copyright or other notices. In the event a maintenance
release or an update of the Software is provided to Company. Company
agrees to destroy and not use, nor permit the use of, any previous
release or version of the Software in its possession.
4. Similar Products
Nothing in this Agreement shall prohibit either party from independently
developing, acquiring, marketing or selling products which are
similar to or competitive with the products of the other party provided
that (i) the proprietary rights of the other party are not infringed
upon, and (ii) neither party uses nor copies any of the Confidential
Information of the other party, including, without limitation, the
Software, for any such independent development, marketing or selling.
5. Exploratory Discussion Not Binding
The parties agree that this Agreement, continuing discussions, future
exchange of Confidential Information and nonconfidential
information, past and future correspondence (including without
limitation, correspondence indicating interest or intent) and other
communications between the parties shall not commit either party to
continue discussions or negotiate, or be legally binding as an
informal agreement or agreement to agree to a potential business
relationship. The only way the parties shall be bound to a business
relationship, if at all, shall be by a mutually satisfatory definitive
written agreement signed by the parties. Any research and development
prototyping, or other action or expense which either party takes or
incurs in anticipation that a business relationship will be consummated
shall be entirely at the acting party's risk and expense and shall not
impose any liability on the other party.
6. Miscellaneous
(a) All Confidential Information is and shall remain the property of
the disclosing party. Nothing in this Agreement, nor any
disclosures of Confidential Information, shall grant any express or
implied right to the receiving party to or under disclosing party
patents, copyrights, trademarks or trade secret information.
(b) This Agreement is made in the State of California and shall be
governed and interpreted in accordance with California law.
40
(c) Headings and captions are for convenience only and are not to be
used in the interpretation of this Agreement.
(d) This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and merges all prior
discussions between them as to Confidential Information and merges all
prior discussions or agreements as to Confidential Information. This
Agreement may not be modified except by a written agreement dated
subsequent to the date of this Agreement and signed by both parties.
No waiver of any provision of this Agreement shall constitute a waiver
of any other provision(s) or of the same provision on a different
occasion. This Agreement supersedes the Prior Agreements, and such
Prior Agreements are hereby terminated.
(e) If any provision of this Agreement shall be held by a court
of competent jurisdiction to be illegal, invalid or unenforceable, that
provision shall be limited or eliminated to the maximum extent
necessary so that the remaining provisions remain in full force and
effect.
(f) This Agreement shall be binding upon and for the benefit of
the undersigned parties, their successors and assigns, provided,
however, that neither party may assign Confidential Information without
the prior written consent of the other party.
(g) Each party agrees that its obligations hereunder are
necessary and reasonable to protect the business of the other party,
and expressly agrees that monetary damages would be inadequate to
compensate the other party for any breach of any covenant set forth
herein. Accordingly, each party agrees and acknowledges that any such
violation or threatened violation will cause irreparable injury to the
other party and that, in addition to any other remedies that may be
available in law, in equity or otherwise, the other party shall be
entitled to obtain injunctive or equitable relief as may be deemed
proper by a court of compentent jurisdiction.
(h) All confidentiality obligations created by this Agreement
shall survive change or termination of the parties' business
relationship.
IN WITNESS WHEREOF, duly authorized representatives of the parties hereto have
executed this agreement.
Arbor Company
Arbor Software Corporation Comshare, Inc.
0000 Xxxxx Xxxxxxxxx 0000 Xxxxx Xxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000
Signature: /s/ Xxxxxx Xxxxx Signature: /s/ T. Xxxxxxx Xxxxxxxx
----------------------- --------------------------
Name: /s/ Xxxxxx Xxxxx Name: /s/ T. Xxxxxxx Xxxxxxxx
---------------------------- -------------------------------
Title: Vice President Title: Senior Vice President
--------------------------- -----------------------------
41
SCHEDULE 1(b)
[COMSHARE LOGO]
COMSHARE, INCORPORATED
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxx 00000
SOFTWARE LICENSE AGREEMENT
Date ___________________
Customer _____________________________________________________________________
Address ______________________________________________________________________
City _________________________________________ State __________ Zip ________
Thank you for choosing Comshare. The terms appearing below and on the enclosed
ordering and pricing schedules (Schedules A and B), which are incorporated by
this reference, form Our contract for licensing software and documentation.
Please read carefully, fill out Schedule A, and sign this Agreement in
duplicate. Both copies (including the Schedules) should be returned to Comshare
for processing. All Agreements are subject to Comshare Headquarters written
acceptance.
1. LICENSE TERM:
The license term starts on the above date and continues for the period
described in Schedule A unless terminated earlier in accordance with this
Agreement.
2. LICENSE GRANT:
a. We grant You a license to use Our software in object code form. Our
user documentation, and Our materials (collectively "Comshare Products")
selected from Schedule A under the terms of this Agreement. This license is
nonexclusive and nontransferable by You. You may not make any copies unless
You have paid the applicable fees and You are otherwise authorized by the
Schedules, except that You may make one complete backup copy of the
software for emergency or archival use. You may not use more than the number
of copies You have licensed. You agree to keep records of the number and
location of copies in Your possession and to permit Us to audit such
records and Your use of Comshare Products during normal business hours upon
reasonable notice to You. Copies of our copyright notice and other
proprietary legends and labels must be included on and in all copies. See
the Schedules for information on ordering additional copies.
b. Use of software designated by Us as mainframe or host software is
restricted to residence and use on specified equipment. Each copy of
software designated by Us as microcomputer software is restricted to
residence and use on one microcomputer at a time. However, you may use
Comshare Products in local area networks or other multi-processor
environments provided You have paid the applicable fee and You are
authorized to do so by the Schedules. All software installation and use is
restricted to the United States. Host software is restricted to use at a
specified location. We will not unreasonably withhold Our consent to
movement to another United States location or different equipment, although
We will have the right to charge additional maintenance and license fees at
Our then current rates for upgrades if You want to use Our software on a
larger machine. All software requires, and is limited to use with, the
operating environment specified in the Schedules or documentation. Some
Comshare products can be utilized only in combination with other Comshare
products. These restrictions are in addition to any set forth in the
Schedules.
c. Any attempted assignment, sublicense, or other transfer by You of
this Agreement or the Comshare Products shall be void. You may use Comshare
Products only to process your own data and only for internal operations.
You may not use Comshare Products to offer timesharing or other computer
based
1
42
services to third parties. Any of Your majority or wholly owned
subsidiaries or Your parent corporation (if any) may enjoy the benefits of
this Agreement along with You as a licensee, provided they first agree in
writing to be bound by it in the same manner as You and a copy of that
writing is forwarded to Us.
d. We may terminate Your license only in the event of a material breach by You
not cured within 30 days after the giving of notice by us. However, no
notice will be required in the event of a material breach by You of
confidentiality or Our proprietary rights. Upon termination for any reason,
You agree to return the Comshare Products, destroy all copies (including
those in computer memory), and stop all usage.
3. PRICING:
Schedule B fees apply to Your Selection of Comshare Products, maintenance, and
other services described in Schedule A. You agree to pay Us the applicable fees
and charges as described in Schedule B. In addition, You agree to pay all sales,
use, personal property, or other taxes associated with this Agreement or the
Comshare Products and services, except taxes on Our net income. Our terms are 30
days net from date of invoice. Past due payments bear interest of 1 1/2% per
month from the due date or the highest rate permitted by law if a lesser amount.
4. DELIVERY AND INSTALLATION:
a. Schedule A delivery dates are approximate. Risk of loss will not pass to
You until delivery to Your designated address. Replacement copies of
software included in Comshare Products may be obtained so long as they are
being made commercially available at Our standard media and physical
preparation charge if Your copies become lost or damaged while in Your
possession.
b. If You choose to have Us do the installation of the host or mainframe
software, You will let Us use Your system and equipment necessary for
testing and installation. You must provide the necessary specified operating
environment.
5. MAINTENANCE AND TRAINING:
You may purchase, at the prices and for the term set forth in Schedule B, Our
standard Program Maintenance Services which consists of the following: (i) New
standard releases of software specified by Us as part of Program Maintenance
Services and (ii) problem solving as described below. New releases shall be
considered as part of the Comshare Products. Program Maintenance Services
specifically exclude new releases and/or new versions of computer programs which
are offered to the general public at an additional charge or which are
contracted for by a third party. When a problem occurs which You determine is
caused by the use of the Comshare Product, and the diagnosis by Our
representative indicates a problem is caused by a defect in an unaltered current
release of the Comshare Product. Our representative will (1) supply You with
correction information to the extent available; and (2) advise You concerning
any planned resolution. We will make a reasonable effort to correct materials
defects confirmed by Us. The foregoing sets forth Our entire maintenance
obligation. We shall have the right to charge reasonable fees if we spend time
investigating or fixing a problem which is not caused by a current standard
release of a Comshare Product. Due to difficulties in providing maintenance on a
piecemeal or component basis. We reserve the right to refuse to provide
maintenance for less than all systems and components under license. See the
Schedules for information on Training.
6. IMPLEMENTATION SERVICES:
Unless we enter into a separate written implementation Services Agreement,
Implementation Services will be performed under the terms and conditions of this
Agreement. Implementation Services are performed on a time and materials basis
at the rates in Schedule B. We reserve the right to perform similar
implementation Services for others. Any application produced as part of
implementation Services for You will become Comshare Products licensed under
this Agreement.
7. WARRANTY AND REMEDY:
We warrant that we have the right to grant You this license. We further warrant
that the first release of each Comshare Product delivered to You will at time of
delivery (or installation if We install) perform substantially in accordance
with Our user documentation as same may change from time to time, provided You
supply the specified operating environment. This warranty does not apply to
Implementation Services and any product thereof; Our warranty is that
Implementation Services will be performed by reasonably skilled personnel as
described in Schedule B. OUR SOLE OBLIGATION AND YOUR EXCLUSIVE REMEDY FOR ANY
WARRANTY FAILURE IS THE CORRECTION OR REPLACEMENT, AT OUR OPTION, OF THE
NONCONFORMING SERVICES OR COMPONENTS.
2
43
8. WARRANTY DISCLAIMER:
THE WARRANTIES CONTAINED IN THIS AGREEMENT ARE EXCLUSIVE. THEY ARE IN LIEU OF
ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF
TRADE.
9. OWNERSHIP AND CONFIDENTIALITY:
a. As between You and Us, all Comshare Products remain Our sole and exclusive
property and trade secret. You agree not to attempt to reverse engineer
or otherwise recreate source code for Comshare Products. You acquire
neither title nor ownership rights in the Comshare Products or the media on
which they are given to You. You agree to take reasonable security
precautions to prevent disclosure of Comshare Products to third parties and
to protect and maintain confidentiality. You agree to notify Us of any
unauthorized disclosure immediately. We will have the same confidentiality
obligations for any specific confidential information You supply to Us
provided You supply it in writing and xxxx it as confidential. The
recipient of confidential material or information will have no
confidentiality obligation with regard to information to the extent it is:
generally disclosed by the disclosing party without restrictions on
confidentiality, rightfully supplied to the recipient by a third party
without restrictions on confidentiality, or otherwise becomes generally
publicly known without any fault on the part of the recipient. Injunctive
relief, in addition to any other right or remedy, shall be an appropriate
remedy to enforce the provisions of this paragraph should the need arise.
b. As between You and Us, You acknowledge that We hold the copyright on the
Comshare Products and that they have not been published. Placement of
copyright notices on the Comshare Products shall not be deemed a
publication.
10. RESPONSIBILITY:
a. You will be responsible for establishing reasonable backups, accuracy
checks, and security precautions to guard against possible
malfunctions, loss of data, or unauthorized access.
b. Subject to Our obligations under Paragraph 12, "Patents and Copyrights",
You agree to indemnify and hold Us harmless from any claim, loss, or
liability arising out of Your use of Comshare Products or services, except
to the extent caused by Our gross negligence or willful misconduct.
11. LIMITATION OF LIABILITY:
a. EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 12. "PATENTS AND COPYRIGHTS", OUR
LIABILITY AND THAT OF OUR AGENTS, REPRESENTATIVES AND EMPLOYEES TO YOU
FOR DAMAGES WITH RESPECT TO THIS AGREEMENT, COMSHARE PRODUCTS, OR OTHER
ITEMS OR SERVICES SHALL NOT EXCEED IN THE AGGREGATE THE FEE OR PRICE FOR
THE PARTICULAR COMSHARE PRODUCT OR OTHER ITEM OR SERVICE INVOLVED IN THE
CLAIM. IN NO EVENT SHALL WE HAVE ANY LIABILITY FOR INCIDENTAL,
CONSEQUENTIAL, OR SPECIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOST
REVENUES OR PROFITS. THE LIMITATIONS AND EXCLUSIONS IN THIS PARAGRAPH SHALL
APPLY TO ALL CLAIMS OF EVERY NATURE, KIND AND DESCRIPTION WHETHER ARISING
FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT, OR
OTHERWISE. DAMAGES AS LIMITED BY THIS PARAGRAPH IS YOUR SOLE AND EXCLUSIVE
ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER REMEDY PROVIDED IN THIS
AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
b. We will not be responsible for any delay or failure in performance for
causes beyond Our reasonable control, including without limitation,
acts of God, any government, Our suppliers or any other similar or
dissimilar cause.
12. PATENTS AND COPYRIGHTS:
We will defend and indemnify You, at Our expense, against any claim or suit
against You based on an alleged violation of a United States patent or
copyright through Your use of the Comshare Products in accordance with this
Agreement and will pay all costs, settlements, or judgment finally awarded,
provided We have the right to control the defense of the litigation. You take
such actions as we may reasonably request at Our expense, and You give Us
prompt written notice of any claim. If a judgment is obtained against Your use
of any part of the Comshare Products, or if We feel that there is a likelihood
of a claim of infringement. We shall, at Our option and expense: modify or
substitute Comshare Products (but provide You with substantially the same
functionality); obtain the right to continued use; or terminate the license
3
44
and take back the Comshare Products. In the event of termination, We will
refund Your license fees, less a reasonable charge for use to the date of
termination. We will have no obligation to defend and indemnify You to the
extent that the claim or liability is based upon use of a noncurrent release of
Comshare Products and could have been avoided by use of a current release or if
the claim or liability is based upon modifications made by You or work
performed to Your specifications. THIS PARAGRAPH STATES OUR ENTIRE LIABILITY
FOR PATENT AND COPYRIGHT INFRINGEMENT.
13. EMPLOYEES:
In the event that You directly or indirectly (other than through Us) hire,
whether as an employee, independent contractor, or in any other capacity, any
person who was, within one year prior to the hiring, an employee of Ours or any
of Our subsidiaries, You agree to pay Us a finder's fee equal to 26 times that
employee's biweekly gross compensation at the time he or she left Our
employment. This provision shall apply only to those employees who either
worked for Us on Your account in some capacity or worked with software or
applications which were in some fashion generally similar to any offered or
provided to You.
14. GENERAL:
a. This Agreement shall be governed by and construed under the laws of
the State of Michigan, exclusive of its choice of law rules. This in an
integrated Agreement. It contains the full understanding of the parties and
supersedes all other understandings, proposals, samples, models, agreements,
warranties, representations, or conditions, written or oral, regarding its
subject matter. You acknowledge that You are not relying upon any
representations or statements as to the subject matter of this Agreement
except as specifically set forth in this writing. This Agreement may be
amended, modified, or waived only by another writing signed by the
authorized representatives of both parties. No trade usage, course of
dealing, or course of performance shall be used to supplement or explain it.
Headings are for convenience; they have no contractual significance. In the
event You issue a purchase order or other document covering the subject
matter of this Agreement, it is agreed that such purchase order or other
document is for Your internal purposes only and is not legally effective,
except to the extent specified otherwise in the Schedules. No orders placed
under this Agreement, including the initial order, shall be effective unless
accepted in writing at Our headquarters. The effective date of this
Agreement shall be the date first above written. Sections 8 through 14 and
the record keeping and audit provisions of Section 2a, shall survive
termination. Any action against Us under this Agreement or related to its
subject matter must be brought within one year after the cause of action
accrues.
b. All notices shall be by personal delivery, by U.S. mail postage
prepaid, or facsimile. Notices to You shall be sent to Your billing address.
Notices to Us shall be sent to Comshare, Incorporated, attention Senior Vice
President, Sales, at the address shown above. Notices are effective upon
delivery in the case of personal delivery, on receipt in the case of
facsimile, and five days after mailing in the case of posting. Prices, terms
and conditions, Comshare Products and other items and services are subject
to change in the future without notice. (Current pricing schedules will be
supplied upon request.)
THE ABOVE TERMS AND CONDITIONS ARE AGREED TO AND ACCEPTED.
(PLEASE SIGN AND RETURN TWO COPIES OF THIS AGREEMENT.)
ACCEPTED AT COMSHARE HEADQUARTERS:
_________________________________ COMSHARE, INCORPORATED
CUSTOMER
BY: _____________________________ BY: ______________________________
NAME: ___________________________ NAME: ____________________________
(Print or Type) (Print or Type)
TITLE: __________________________ TITLE: ___________________________
VICE PRESIDENT OR
SENIOR VICE PRESIDENT
12/90
Copyright @ 1990 COMSHARE, Incorporated
Serial Number 437201 Printed in U.S.A.
-4-
45
SCHEDULE 6(c)
COMSHARE DISTRIBUTORS
For the purposes of Section 6(c), the following are currently Comshare
Distributors:
Distribution Territory Distributors
---------------------- ------------
*
*
*
*
*
*
*
*
*
*
*
*
*Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
46
*
*
*
*
*
*
*
*
*
*
*
*
*
*
3732
*Indicates that material has been omitted and confidential treatment has been
requested therefore. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
-2-
47
SCHEDULE 7(b)
Comshare Competitors:
---------------------
Dun & Bradstreet
IMRS
Information Resources, Inc.
Pilot
Oracle
*
*
*
*
*
*
*
3698
*Indicates that material has been omitted and confidential treatment has been
requested therefore. The above list of Comshare Competitors constitutes only a
partial list of the Comshare Competitors named in the unredacted version of
this Agreement. All omitted material has been filed separately with the SEC
pursuant to Rule 24b-2.
48
SCHEDULE 12(f)
Arbor Financial Statements
Balance Sheet as of November 30, 1993.
Income Statement, April 1, 1993 to November 30, 1993.
Future financial statements shall be as of the end of Arbor's fiscal year.
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