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Exhibit 10.20
CONFIDENTIAL TREATMENT REQUESTED
CDP COMMUNICATIONS INC.
OEM AGREEMENT
THIS AGREEMENT is made and effective as of the 15th of October, 1993, between
CDP COMMUNICATIONS INC. ("CDP"), having its principal place of business at 00
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx, and MOBIUS MANAGEMENT SYSTEMS, INC. (the
"OEM"), a corporation duly organized under the laws of New York and having its
principal place of business at Xxx Xxxxxx Xxxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000.
In consideration of the mutual agreements and covenants set forth herein, CDP
and the OEM agree as follows:
1. Definitions
As used in this Agreement, the following words and terms shall be defined
as indicated below:
1.1 "Added Value" means the substantial value to be added by the OEM to
the CDP Products as described in Schedule F attached hereto.
1.2 "Authorized Service Agent" means an organization contracted by CDP
to perform Product installation and maintenance services on its
behalf.
1.3 "Base Royalty" means, for any Software, the list price or license
fee, as the case may be, for such Software as set forth on Schedule
B.
1.3.1 "Concurrent Session" means a computer is connected to other
computers on a communication network and each use of the Software by
each user concurrently connected to the other computers is a
Concurrent Session.
1.4 "Customer Support Services" means services supplied by the OEM to
its Customers for the continued operation of a System.
1.5 "Customers" means those persons and entities who license or are
marketed Software and Added Value from the OEM or OEM remarketers
for their own use but not for resale.
1.6 "Demo System" means a System consisting of at least one Processing
Unit (a "CPU") and the minimum peripherals to make such CPU
effective for demonstration purposes.
1.6.1 "Evaluation Copies" means copies of the Software and Added Value
which OEM provides to Customers pursuant to
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an Evaluation Agreement (as defined in Section 6.3.1 of this
Agreement) and for which no OEM Royalty or Maintenance Fee shall be
paid to CDP.
1.6.2 "Maintenance Fees" means the maintenance royalties on the Software
which OEM's Customers have sublicensed and for which such Customers
have paid OEM a maintenance fee. Maintenance fees shall be
calculated in accordance with Schedule B of this Agreement.
1.7 "Minimum Commitment" means the purchase and license volume
commitments set forth in Schedule A attached to this Agreement.
1.8 "OEM Royalty" is defined in Section 7.1 of this Agreement.
1.9 "Software" means the object code versions of the computer software
programs listed on Schedules A and B and developed and owned by CDP
and ancillary and related documentation and all future modifications
and enhancements thereto.
1.10 "System" means the combination of the Software and the Added Value
software and other components and services offered by OEM.
1.11 "Territory" means the territory shown on Schedule C attached to this
Agreement.
2. Appointment
2.1 Appointment
CDP hereby grants OEM the non-exclusive right to use, make
reproductions of the Software, market, display, demonstrate and to
sublicense such copies of the Software to Customers in the Territory
solely on the condition that the OEM only sublicenses copies of the
Software in conjunction with the Added Value and further provided,
however, that this appointment, and the rights and licenses granted
herein, are made subject to and contingent upon the terms and
conditions of this Agreement.
OEM acknowledges and agrees that the marketing of the Software
without Added Value is expressly prohibited.
OEM warrants to CDP that its employees shall be conversant with the
technical language of computer products in general and shall develop
sufficient knowledge of the Software and of competitors' products to
be able to explain the difference to Customers.
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2.2 Sales
The OEM shall use due diligence in efforts to promote the
sublicensing of copies of the Software to Customers. The OEM is
responsible for obtaining all permits and licenses required in the
Territory for the conduct of the OEM's business pursuant to this
Agreement.
3. Term
3.1 Term
This Agreement shall be for an initial term of three years (the
"Initial Term"). After the Initial Term, this Agreement may be
renewed for subsequent three year term(s) ("Renewal Term"). If at
any time during the Initial Term or any Renewal Term, either party
notifies the other, in writing, of its intention to terminate this
Agreement, this Agreement shall terminate 360 days from the date of
such notice of termination.
4. Territory
4.1 Sales to other OEMs
The OEM is entitled to use remarketers (distributors and dealers) to
market the System as long as CDP is paid the required OEM Royalty
for each Concurrent Session of the Software sublicensed to a
Customer and the relevant Maintenance Fees.
5. Not Applicable.
6. Software License
6.1 CDP hereby grants, and the OEM hereby accepts, a non-exclusive
license, subject to the terms and conditions of this Agreement and
to the payment by the OEM of the relevant OEM Royalty therefor, to
use, make reproductions of the Software, market, display,
demonstrate and sublicense the use of the Software, including
enhancements, updates and revisions, as part of a System. A separate
license agreement shall be required for each Customer who
sublicenses the Software.
6.2 Title to Programs
Title to and ownership of the Software, and all modifications,
enhancements, additions to and developments of the Software prepared
by CDP, including all patents, copyrights and property rights
applicable thereto, shall at all times remain solely and
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exclusively with CDP, notwithstanding that the OEM or a Customer as
the case may be, may contribute to the cost of making such
modifications, enhancements, additions or developments, and the OEM
shall not take any action inconsistent with such title and
ownership. Notwithstanding the foregoing, the Added Value software,
and any other software, modifications, enhancements, or additions
developed by OEM, that do not infringe CDP property rights in the
Software, including all patents, copyrights and property rights
applicable thereto, shall at all times remain solely and exclusively
with OEM, and CDP shall not take any action inconsistent with such
title and ownership.
6.3 Transfer and Sublicenses
This license of the Software granted under this Agreement is
nontransferable, except that:
6.3.1 The OEM is authorized to sublicense the Software to Customers,
provided that the OEM enters into a written agreement with each such
Customer substantially in the form of Schedule D to this Agreement
(a "Sublicense Agreement") or substantially in the form of Schedule
F (an "Evaluation Agreement"), prior to the installation of any
Software for such Customer.
6.3.2 This license may be transferred to a subsidiary, affiliate, parent
company, successor or assignee of the OEM provided the transferee
agrees to be bound by all the terms hereof.
6.4 Protection of Programs
The OEM acknowledges that CDP represents that it has trade secrets
and other proprietary interests in the Software and the OEM shall
hold such Software in confidence. The OEM shall not, without the
prior written consent of CDP, disclose or otherwise make available
such Software in any form to any person, except to the OEM's own
employees, agents, prospects, distributors and Customers who have
signed a Sublicense Agreement or Evaluation Agreement. The OEM is
granted the right to copy the Software for the purposes of
distribution to Customers, subject to other clauses in this
Agreement. The OEM shall not remove or obscure any copyright,
patent, trademark, trade secret or similar notice affixed to any
Software and shall reproduce and affix such notice on any copies or
modifications of the Software performed by CDP. The OEM shall notify
CDP promptly upon its actual discovery of the unauthorized
possession or use of the Software and of other information made
available to OEM under this Agreement, by any person or organization
not
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authorized by this Agreement to have such possession or use. OEM
will all at the sole cost of CDP: (i) promptly furnish full details
of such possession or use to CDP, (ii) reasonably assist in
preventing the recurrence of such unauthorized possession or use,
and (iii) reasonably cooperate with CDP in any litigation against
third parties reasonably deemed necessary by CDP to protect such
proprietary rights as CDP may have had on the date of this
Agreement.
Notwithstanding anything to the contrary in this Agreement, OEM may
disclose any information required by law to be disclosed or that may
otherwise be disclosed under the terms of the Nondisclosure
Agreement, between the parties, dated January 18, 1993.
6.5 Term of License
CDP may terminate any license (including the rights granted to OEM
hereunder) granted under this Agreement by written notice to the
OEM, if the OEM has materially breached this Agreement and such
material breach continues for 30 days after OEM's receipt of notice
thereof from CDP; provided that the termination of any license
granted to the OEM hereunder shall not affect the sublicenses
granted by the OEM to its Customers or the Evaluation Agreements
with OEM's Customers, so long as the OEM does not have the right to
terminate such Customers' Sublicense Agreements or Evaluation
Agreements due to an uncured material breach by such Customers.
Within 30 days after such termination of the OEM's or a Customer's
license rights, the OEM or the Customer as the case may be, shall
destroy or return to CDP the original and all copies (including
partial copies) of terminated Software and certify in writing to CDP
that it has done so. The obligations of the OEM and the Customer
under Subsection 6.4 above shall survive the termination of any such
license, or sublicense, for ten (10) years.
Notwithstanding anything in this Agreement to the contrary, upon the
termination of any license or sublicense granted under this
Agreement, OEM shall retain all rights necessary to comply with
existing obligations and commitments to Customers in existence on
the effective date of such termination, but only for the number of
Concurrent Sessions that were licensed, or for any Concurrent
Sessions for which commitments to license were made, prior to the
termination of the Agreement; provided that if any additional
Concurrent Sessions licenses are issued, applicable royalties must
be paid to CDP.
7. Prices and Payment
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7.1 OEM Royalty
As compensation for the right to reproduce copies of the Software,
the OEM shall be charged and agrees to pay the OEM Royalty in
accordance with the terms of this Agreement. OEM Royalties shall be
based on the * sublicensed. The Normal OEM Royalty shall equal the
Base Royalty for Software set forth on the OEM Royalty and
Maintenance Schedule attached hereto as Schedule B. During the first
18 (eighteen) months of the Agreement, the Base Royalties in
Schedule B will be replaced with the Incentive Royalties as defined
in Schedule A if the OEM meets the Minimum Commitment specified in
Schedule A. The OEM will initially pay the Base OEM Royalty;
however, if the Minimum Commitment volume has been achieved during
the first 18 months, CDP will provide a credit, to be deducted
evenly from revenues payable over the next six months for adjustment
of the pricing of the first eighteen months of Software
sublicensing. The OEM Royalty may be changed at any time by CDP on
at least 90 days prior written notice. * .
7.2 Taxes and Import Duties
All OEM Royalties and Maintenance Fees are in United States dollars,
unless otherwise specified and noted in Schedule B. Except as stated
above, OEM Royalties and Maintenance Fees are exclusive of all local
jurisdiction, sales, use, occupational or similar taxes now in force
or enacted in the future, all of which shall be paid by the OEM,
except for such taxes as are imposed on CDP's income or gross
receipts, which shall be paid by CDP. The OEM is responsible for
obtaining and providing to CDP any certificate of exemption or
similar document required to exempt any sale or license from sales,
use or similar tax liability.
7.3 Payment Terms
OEM shall pay CDP, by the 10th of each month, the OEM Royalties due
on Software sublicense fees actually received by OEM during the
previous month.
7.4 Late Payment Charges
If the OEM fails to pay any amounts within 30 days after payment is
due, interest on overdue amounts shall accrue at an annual rate
equal to three percent (3%)
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* The Redacted Material Has Been Separately Filed With The Commission.
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over the prime interest rate as set by the Royal Bank
of Canada.
8. Purchase Orders/Delivery
8.1 Not Applicable.
8.2 Delivery
Within 10 days of the commencement date of this Agreement, CDP shall
provide a master diskette containing the Software to the OEM.
9. Not Applicable.
10. Warranties
10.1 Software Warranty
The Software is provided "AS IS" without warranty whatsoever.
However, CDP shall, at no cost to the OEM, for a period of 365 days
from the date of delivery of the master diskette to the OEM (the
"Warranty Period"), provide reasonable assistance by due care and
diligence to correct all defects in the Software delivered to the
OEM. As used in this subsection, "defect" shall mean material
deviations from the published specifications for the Software.
10.2 No Warranties by OEM
The OEM is not authorized to make any warranty commitment to any
party, whether written or oral, on behalf of CDP other than as
provided by CDP hereunder, and will indemnify and save CDP harmless
from any and all liability, loss, damages, costs and expenses
incurred or arising out of the breach of this obligation.
10.3 Disclaimers
(a) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, CDP MAKES
NO FURTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, AS TO ANY
MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY
CONDITION OR WARRANTY OF MERCHANTABILITY OR MERCHANTABLE
QUALITY OF THE SOFTWARE OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR
FROM A COURSE OF DEALING OR USAGE OF TRADE. IN NO EVENT WILL
EITHER PARTY BE LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT
LIMITED TO (i) DAMAGES CAUSED BY THE OEM'S FAILURE TO PERFORM
ITS COVENANTS AND RESPONSIBILITIES, BY REASON OF CDP'S
NEGLIGENCE OR OTHERWISE; (ii)
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DAMAGES CAUSED BY REPAIRS OR ALTERATIONS DONE WITHOUT CDP'S
WRITTEN APPROVAL; (iii) DAMAGES DUE TO DETERIORATION DURING
PERIODS OF STORAGE BY THE OEM; (iv) LOST DATA; OR (v) ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES.
(b) The parties will reasonably cooperate with each other and
undertake at the requesting party's expense reasonably
necessary action required by laws and regulations of the
Territory where Customers are located to ensure that this
Agreement's limits of responsibility as set forth above are
valid and enforceable against whomever they are applicable.
The OEM will promptly inform CDP as soon as the OEM becomes
aware of liability claims by a third party against the OEM or
CDP, based on the Software.
(c) NOTWITHSTANDING ANYTHING IN THE FOREGOING PARAGRAPHS (a) AND
(b) OR OTHERWISE IN THIS AGREEMENT TO THE CONTRARY: (i) OEM
AND CDP, AS THE CASE MAY BE, SHALL BE LIABLE FOR ANY AND ALL
DAMAGES DUE TO SUCH PARTY'S NEGLIGENCE OR WILLFUL MISCONDUCT
AND (ii) CDP'S INDEMNITY OBLIGATIONS TO OEM SHALL NOT BE
LIMITED IN ANY WAY BY ANY LIMITATION ON CDP'S LIABILITY.
11. Training
Training shall be provided in accordance with training schedules
established by CDP from time to time. Training shall be at a time
mutually agreed upon. The OEM shall be responsible for all travel
and living expenses of its employees in connection with such
training.
12. Customer Services
12.1 Installation and Maintenance Services
CDP will not have any responsibilities to provide OEM's Customers
with direct installation and maintenance services. CDP will provide
maintenance training to the OEM in accordance with its then
prevailing charges and terms and conditions.
12.2 Customer Support Services
OEM will charge and collect maintenance fees consistent with
maintenance fees for other similar software marketed by the OEM. CDP
will not have any responsibilities to collect fees for Customer
Support Services from OEM's Customers. The OEM shall at all times
have sufficient CDP trained customer support
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representatives, having the appropriate qualifications to meet the
requirements of its marketplace.
12.3 OEM Support
CDP maintenance services to OEM shall include the attempts on a best
efforts basis to fix material defects in the Software within one
week of receiving notice thereof and the provision of all
enhancements, modifications and new releases of the Software to OEM.
CDP shall make the foregoing maintenance services available to OEM
on behalf of all installed Customers during the first year of their
Sublicense Agreement or Evaluation Agreement and all other installed
Customers who have a Software maintenance agreement in effect with
OEM.
CDP maintenance services to OEM shall also include the prompt
provision in a reasonable time frame of all modifications to the
Software that are necessary to support * .
When OEM's problem diagnosis procedures confirm the existence of a
defect in the Software which the OEM is unable to resolve, OEM shall
have the right to obtain second level support from CDP for the
maintenance fee for the Initial Term as set out in Schedule B; such
fee is to be negotiated for each Renewal Term; provided that
aggregate annual increases shall not exceed the increase in the
Consumer Price Index by more than * . CDP shall use due care and
diligence to correct documented errors. CDP will provide support
directly to OEM only. If OEM asks CDP to directly support Customers,
this work will be performed on a time and materials basis at rates
on the then current CDP consulting fee schedule.
12.4 Charges
The OEM shall not charge Customers for maintenance and support
services until after the expiration of the applicable warranty
period. OEM agrees to pay to CDP for each of its Customers the
maintenance fees actually received by OEM set out in Schedule B
attached hereto. Amounts shall be due and payable to CDP 30 days
following the end of a calendar period established by the OEM in
advance of the commencement date of this Agreement, as approved by
CDP. The calendar period shall be quarterly.
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* The Redacted Material Has Been Separately Filed With The Commission.
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13. Verification of OEM's Records
Upon 5 business days' written request, CDP shall have reasonable
access to the OEM's records relating to amounts paid or payable to
CDP hereunder, solely for purposes of audit to verify the
correctness of payments. Such audit will be performed no more
frequently than annually by a mutually acceptable party at CDP's
expense. If any audit reveals a discrepancy between the amounts
payable to CDP and the amounts actually paid to CDP since the date
of this Agreement or the most recent previous audit (whichever is
later), and if that discrepancy exceeds five percent (5%) of the
amounts payable as determined in the audit, OEM shall pay all CDP's
verified reasonable costs associated with this audit.
14. Advertising and Promotion
Not Applicable
15. Patents and Trademarks
15.1 Infringement Indemnification by CDP
At its expense, CDP will defend any action brought against the OEM
or its Customers, and pay all reasonable expenses and damages of the
OEM or its Customers, as the case may be, and hold harmless OEM and
its Customers against any loss, cost or expense suffered or incurred
in connection with any claim, suit or proceeding arising in
connection with any claims that the Software infringes a patent,
copyright or other third party right ("Infringement") effective in
the Territory, provided the OEM notifies CDP promptly in writing of
the action and shares with CDP control of the defense and
negotiations for its settlement or compromise. CDP shall pay all
damages and costs awarded therein against the OEM but shall not be
responsible for any compromise made without its consent, which shall
not be unreasonably withheld. In the event of a judgment, or
injunction which prohibits the OEM's or its Customer's continued use
of any Software by reason of an Infringement, CDP may at its option,
but only upon the OEM's specific written request: (a) obtain for the
OEM and its Customers the rights to continued use of any such
Software; (b) replace or modify such Software so that it is no
longer infringing; or (c) refund the amount paid to CDP by OEM in
respect of the Software, less 2% per month of use as depreciation.
CDP shall have no liability for any claim of infringement based
solely on: (a) use of other than a current unaltered release of the
Software available from CDP if such Infringement would have been
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avoided by the use of such current Software release; provided that
the foregoing phrase "current unaltered release of the Software
available from CDP" shall include: (i) the most current release of
the Software and all prior releases of the Software that were
released during the 180 days prior to the most current release and
(ii) the Software as modified with CDP's approval, or (b) use of
combination of the Software with software or equipment not supplied
by CDP, other than the Added Value. THIS PARAGRAPH STATES THE ENTIRE
RESPONSIBILITY OF CDP CONCERNING INFRINGEMENTS.
CDP shall have no liability to the OEM under any provision of this
Section 15 if any Infringement or claim thereof is based upon the
use of Software delivered hereunder in a manner for which such
Software was not designed.
15.2 Ownership of Patents and Trademarks
All patents, trademarks, trade names, copyrights, trade secrets,
designs and other proprietary rights in the Software and the
literature supplied by CDP in connection therewith shall be and
remain the property of CDP and no rights to duplicate such property
shall accrue to the OEM, except as set forth in this Agreement or
unless written permission is granted by CDP. The OEM shall not
itself and shall not permit its employees to infringe or deal with
CDP's title to its property in any manner inconsistent with CDP's
exclusive ownership. Except to the extent required to permit the OEM
to carry out its obligations hereunder or as required by law, the
OEM and its agents, employees and consultants shall not disclose any
technical information concerning the Software or any literature
furnished by CDP to any person, firm or corporation.
16. Trade Name and Copyright
16.1 The OEM shall market the Software under the OEM's trade names, which
names shall not be confusingly similar to the names used by CDP. The
OEM shall include and shall not alter, obscure or remove any
copyright notice of CDP.
16.2 Any advertising or promotional literature or announcement to the
press by a party regarding its relationship with the other party or
otherwise utilizing such other party's name must be approved by such
other party in advance in writing. The only such authorized
representation to third parties by the OEM is to identify itself an
authorized OEM.
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16.3 The terms of this Agreement and its existence shall not be disclosed
by either party without the prior written consent of the other
party, except for the following:
(a) Disclosure by both parties to their current and potential
investors;
(b) Disclosure as required by law.
17. Force Majeure
Neither CDP nor OEM shall be liable in any respect for failure or
delay in the performance of its obligations under this Agreement
where such failure or delay shall have been due to causes beyond the
reasonable control of CDP or OEM, as the case may be. In the event a
party's failure to perform or delay in performance of its
obligations under this Agreement due to causes beyond its reasonable
control continues for 60 days, the party to whom performance is due
may treat such nonperformance as a breach and pursue its remedies.
18. Assignment and Corporate Reorganizations
Except for OEM's assignment to a parent, subsidiary, successor,
affiliate company or any other assignee which agrees to be bound in
writing by the terms of this Agreement, neither this Agreement nor
any rights granted hereby may be assigned by either party
voluntarily or by operation of law without the other party's prior
written consent and such consent shall not be unreasonably withheld,
and any such attempted assignment shall be null and void. Assignment
shall be deemed to include the transfer of substantially all of the
assets of, or a majority interest in the voting shares of, a party,
or the merger or amalgamation of a party with one or more entities.
This Agreement shall inure to the benefit of and be binding upon any
permitted assign or successor of a party.
19. Default/Remedies
19.1 Events of Default
19.1.1 OEM Default
Upon occurrence of any of the following acts or events, the OEM
shall be in default and breach of this Agreement:
(a) The OEM attempts to assign this Agreement or any of its rights
hereunder, in violation of this Agreement.
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(b) The OEM fails to cure any payment deficiency within 30 days of
receipt of CDP's written notice thereof.
(c) The OEM neglects or fails to perform any of its material
covenants, obligations or responsibilities under this
Agreement and such failure continues for 30 days after OEM's
receipt of written notice thereof from CDP.
(d) The OEM is not paying its undisputed debts as such debts
become due, becomes insolvent, files or has filed against it a
petition in bankruptcy or any similar filing or action under
the laws of any country and such involuntary petition or
filing is not dismissed or stayed within 60 days; proposes any
dissolution, liquidation, financial reorganization or
recapitalization with creditors; makes an assignment for the
benefit of creditors; or if a receiver, trustee, custodian,
similar agent or government agency is appointed or takes
possession with respect to any material property or business
of the OEM; or if the OEM takes any other similar step or
measure under any applicable insolvency, bankruptcy or similar
law.
(e) The OEM engages in any unauthorized use, or misuse of CDP's
name, trademarks or trademarks or trade names.
19.1.2 CDP Default
Upon occurrence of any of the following acts or events, CDP shall be
in default and breach of this Agreement.
(a) CDP neglects or fails to perform any of its material
covenants, obligations or responsibilities under this
Agreement and such breach occurs for 30 days after CDP's
receipt of written notice from OEM.
(b) CDP is not paying its undisputed debts as such
debts become due, becomes insolvent, files or has
filed against it a petition in bankruptcy or any
similar filing or action under the laws of any
country and such involuntary petition or filing is
not dismissed or stayed within 60 days; proposes
any dissolution, liquidation, financial
reorganization or recapitalization with creditors;
makes an assignment for the benefit of creditors;
or if a receiver, trustee, custodian, similar
agent or government agency is appointed or takes
possession with respect to any material property
or business of CDP; or if CDP takes any other
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similar step or measure under any applicable insolvency,
bankruptcy or similar law.
(c) CDP engages in any unauthorized use, or misuse of the OEM's
name, trademarks or trade names.
(d) CDP attempts to assign this Agreement or any of its rights
hereunder, in violation of this Agreement.
19.1.3 Escrow
CDP shall deposit the source code for the Software with a mutually
acceptable Toronto-based escrow agent pursuant to a mutually
acceptable escrow agreement being signed by both parties. The OEM
shall be responsible for the cost of preparing the escrow agreement
and for the escrow agent fees.
The Escrow Agreement shall provide for the following:
(1) CDP shall maintain with the escrow agent the most current
version of the Software source code and the version of the
Software source code for which OEM has the object code.
(2) CDP or the escrow agent shall immediately deliver the Software
source code described in paragraph (1) above to OEM in the
event (a) CDP fails to maintain the Software in accordance
with this Agreement, (b) CDP has ceased its on-going business
operations, or sale, licensing, maintenance or other support
of the Software and such business has not been assumed by any
other party, or (c) CDP has availed itself, or been subjected
to by any third party, a proceeding in bankruptcy in which CDP
is the named debtor, an assignment by CDP for the benefit of
its creditors, the appointment of a receiver for CDP, or any
other proceeding involving insolvency or the protection of, or
from, creditors, and same has not been discharged or
terminated without any prejudice to OEM's rights or interests
within sixty (60) days. Upon receipt of the Software source
code pursuant to this paragraph (2), OEM shall have the right
to freely use, modify, or create derivative works based upon,
the Software source code, and OEM shall have sole and complete
ownership of all derivative works based upon the Software
source code.
(3) CDP shall give OEM written notice of the name and address of
the escrow agent.
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19.2 Remedies
If the OEM fails (a) to cure any payment deficiency within 30 days
of receipt of written notice from CDP, or (b) to cure any other
default within 30 days of receipt of written notice thereof from
CDP, then CDP, in its sole discretion, shall, in addition to any
other remedy which it may be entitled to at law, have the right to
terminate this Agreement by written notice to the OEM on a date
specified therein.
In the event CDP is in default or breach of this Agreement under
Section 19.1.2, then OEM in its sole discretion, shall, in addition
to any other remedy which it may be entitled to at law or under this
Agreement, have the right to: (i) terminate this Agreement or (ii)
continue the Agreement in force with a 50% reduction in the OEM
Royalty and Maintenance Fees.
CDP shall give OEM at least 180 days prior written notice of any
material modification to the Software that may materially adversely
affect OEM. In the event of any such modification to the Software,
OEM may immediately terminate this Agreement upon 30 days notice or
continue the Agreement in force with a 50% reduction in the OEM
Royalty and Maintenance Fees.
19.3 Duties of the OEM Upon Termination
Upon termination of this Agreement for an OEM default, the OEM shall
pay to CDP, in full within 30 days of such termination, all amounts
owed to CDP. CDP shall be entitled to set off and deduct from any
money due the OEM, whether or not arising from or under this
Agreement, any and all amounts due CDP from the OEM.
Notwithstanding anything in this Agreement to the contrary, CDP's
and OEM's Software maintenance, support and source code escrow
obligations shall survive any termination of this Agreement.
19.4 Limitation of Liability
Three years after the termination of this Agreement neither party
shall have any obligation to the other for compensation or for
damages of any kind, whether on account of the loss by a party of
present or prospective sales, investments or goodwill due to such
termination; and the parties hereby waive any rights which may be
granted to them by statute or otherwise which are not granted to
them by this Agreement.
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20. General
20.1 Export
The OEM agrees that it shall use its best efforts to prevent the
Software from being distributed by OEM in such a way as to make it
available in or exported to foreign countries in contravention of
any law of The United States of America.
20.2 Confidentiality
CDP and the OEM agree that, in addition to Software, certain
information supplied by CDP to the OEM and vice versa during the
course of this Agreement may be proprietary, secret or confidential,
shall be held in confidence by the receiving party for a period of
five years following the date of disclosure and shall be used only
for the purposes of this Agreement. All documentation with respect
to the Software, including training documentation, software
documentation and maintenance manuals and drawings, is furnished
solely for the OEM's and its Customer's internal use. The OEM may
make, and may permit its Customers to make, copies of such
documentation to satisfy internal requirements and those of its and
its Customers, provided that all such copies include appropriate
copyright and proprietary information notices. No other copies or
use of such documentation, or any potion thereof, shall be made
without the prior written approval of CDP.
20.3 Applicable Law and Jurisdiction
This Agreement shall be governed and construed in accordance with
the laws of the New York State.
20.4 Relationship of the Parties
The parties acknowledge that both parties hereto are independent
contractors and that the OEM will, on its own behalf, solicit orders
for Software only as an independent contractor. The OEM shall
arrange the terms and conditions of the license of the Software,
including price, independent of CDP, except with respect to the
sublicensing terms set forth in Section 6 hereof which the OEM
agrees to fully comply with in its contracts with its Customers.
Neither party shall represent itself as a partner, joint-venturer,
agent, employee or general representative of the other party. Each
party acknowledges that it shall have no right, power or authority
to, in any way obligate the other party to any contract or other
obligation.
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20.5 Entire Agreement
This Agreement is the exclusive statement of the terms and
conditions between the parties with respect to its subject matter as
of its date, supersedes all prior agreements, negotiations,
representations and proposals, written or oral, and does not operate
as an acceptance of any conflicting terms or provision of any OEM's
purchase order or any other instrument. The terms and conditions
contained herein shall prevail notwithstanding any variance with the
terms and conditions of any order submitted by the OEM for Software
licensed hereunder. Deviations from these terms and conditions shall
not be valid and binding upon a party unless specifically accepted
by an authorized officer of such party in writing.
20.6 Waivers
No delay or omission on the part of either party to this Agreement
in requiring performance by the other party hereunder, or in
exercising any right hereunder, shall operate as a waiver of any
provision hereof or of any right or rights hereunder; and the
waiver, omission or delay in requiring performance or exercising any
right hereunder on any one occasion shall not be construed as a bar
to or waiver of such performance or right, or of any right or remedy
under this Agreement, on any future occasion.
20.7 Notices
For purposes of this Agreement, and for all notices and
correspondence hereunder, the addresses of the respective parties
have been set out at the beginning of this Agreement and no change
of address shall be binding upon the other party unless notice of
such change is given in writing at the address shown herein. All
notices shall be effective upon receipt if delivered personally or
sent by facsimile transmission or telegram, and seven days after
mailing if sent by registered mail.
20.8 Section Headings
Section headings are for descriptive purposes only and shall not
control or alter the meaning of this Agreement.
20.9 Rights and Remedies
All rights and remedies of either party shall be cumulative and may
be exercised singularly or concurrently. The failure of either
party, in any one
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or more instances, to enforce any of the terms of this Agreement
shall not be construed as a waiver of future enforcement of that or
any other term.
20.10 Severability
If any provision of this Agreement shall for any reason be held
illegal or unenforceable, such provision shall be deemed separable
from the remaining provision of
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this Agreement and shall in no way affect or impair the validity or
enforceability of the remaining provisions of this Agreement.
IN WITNESS WHEREOF, CDP and the OEM hereby have duly executed this Agreement as
of the date first above written.
CDP COMMUNICATIONS INC. MOBIUS MANAGEMENT SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxxx Xxxxx
---------------------------- ----------------------------
Title: Vice President Title: President
INDEX OF SCHEDULES
Schedule A: Incentive Royalty Schedule
Schedule B: OEM Royalty and Maintenance Schedule
Schedule C: Territory
Schedule D: Master Software License Agreement
Schedule E: Evaluation Agreement
Schedule F: Added Value
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SCHEDULE A INCENTIVE ROYALTY SCHEDULE
This Royalty schedule becomes applicable if OEM sublicenses * of Software within
18 months of the commencement date of this Agreement.
--------------------------------------------------------------------------------
Level Low High Royalty per Concurrent
Quantity Quantity Session License to be
Paid by OEM
--------------------------------------------------------------------------------
A 0 * *
--------------------------------------------------------------------------------
B * * *
--------------------------------------------------------------------------------
C * * *
--------------------------------------------------------------------------------
D * * *
--------------------------------------------------------------------------------
E * Plus *
--------------------------------------------------------------------------------
Example
When the OEM is at Level A pricing, if a 100 user * were sold, this would result
in 100* * or * Royalty to CDP.
Software
*
----------
* The Redacted Material Has Been Separately Filed With The Commission.
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Schedule B OEM Royalty and Maintenance Schedule
The following is a schedule of Royalties due for each * license used by OEM or
its Customers:
--------------------------------------------------------------------------------
Level Low High Royalty per Concurrent
Quantity Quantity Session License to be
Paid by OEM
--------------------------------------------------------------------------------
A 0 * *
--------------------------------------------------------------------------------
B * * *
--------------------------------------------------------------------------------
C * * *
--------------------------------------------------------------------------------
D * * *
--------------------------------------------------------------------------------
E * Plus *
--------------------------------------------------------------------------------
Maintenance Fees
CDP will receive * annually for each * license of the Software after the
expiration of the first year of such license, if the Customer has paid the OEM
maintenance fees.
Software
*
----------
* The Redacted Material Has Been Separately Filed With The Commission.
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Schedule C
The Territory shall be worldwide.
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Schedule D
LICENSE AGREEMENT
This License Agreement is made as of the date indicated below by and between
Mobius Management Systems, Inc. (Mobius), a New York corporation located at Xxx
Xxxxxx Xxxxx, Xxx Xxxxxxxx, Xxx Xxxx 00000, and the party executing this
Agreement as Licensee (hereinafter referred to as "Licensee") as follows:
1. SCOPE OF THIS LICENSE AGREEMENT
Mobius agrees to grant to Licensee and Licensee agrees to accept from Mobius a
non-exclusive, non-assignable and non-transferable license for the use of the
computer software components described in Exhibit A (hereinafter referred to as
the "SYSTEM") on the terms and conditions hereinafter set forth.
2. LICENSE TERM
The license shall be for an initial term of fifteen (15) years from the date
Mobius first furnishes the SYSTEM to Licensee (the "Delivery Date").
3. PAYMENT TERMS
Payment shall be made in accordance with Exhibit A. All payments shall be made
in U.S. Dollars within ten days of the date of the invoice. Mobius reserves the
right to add an interest charge not exceeding 1-1/2% per month, or fraction
thereof, for failure to make a payment within 10 days of the invoice date.
4. TITLE AND NON-ASSIGNABILITY
Title to SYSTEM, all property rights therein and all materials supplied to
Licensee under this Agreement shall remain the sole property of Mobius. Licensee
may not assign this Agreement without the prior written consent of Mobius. Any
attempt to assign any of the rights, duties or obligations of this Agreement
without such consent is void.
5. RESTRICTIONS ON USE
(i) The SYSTEM and other items supplied by Mobius are for the sole use of
Licensee and may be used to process work and data owned by Licensee. SYSTEM
shall not be used to process work or data of another company as a "Service
Bureau" except SYSTEM may be used to process work and data of a parent company
or of a subsidiary of which Licensee owns more than fifty-percent (50%). (ii)
The computer programs licensed hereunder shall be used only on a single central
processing unit or mainframe (referred to as the CPU) as specified on Exhibit A
and its associated peripheral units at the same site. Use of a program shall
consist either of copying any portion of the program from storage units or media
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into the CPU, or the processing of data with the program, or both. The programs
licensed hereunder may be temporarily transferred to another CPU while the
specified CPU is undergoing repairs, but Licensee shall notify Mobius in writing
of such transfer if it is for a period of more than 72 hours. Licensee may
create backup copies of the SYSTEM for use in the CPU in the event of accidental
loss of the SYSTEM.
6. NON-DISCLOSURE
Licensee recognizes that the computer programs, documentation manuals and other
materials supplied by Mobius to Licensee are subject to the proprietary rights
of Mobius. Mobius has represented that the programs, documentation and all
information or data supplied by Mobius are trade secrets of Mobius, are
protected by civil and criminal law, including the law of copyright, are very
valuable to Mobius, and that their use and disclosure must be carefully and
continuously controlled. Licensee agrees that (i) all programs, documentation,
and materials in machine-readable form supplied under this License shall be kept
in a secure place, under access and use restrictions not less strict than those
applied to Licensee's most valuable and sensitive programs. Licensee agrees to
notify Mobius immediately of the unauthorized possession or use of any item
supplied under this License and of other information made available to Licensee
under this Agreement, by any person or organization not authorized by this
Agreement to have such possession or use. Licensee will promptly furnish full
details of such possession or use to Mobius, will assist in preventing the
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SCHEDULE E
================================================================================
INFOPAC TRIAL AGREEMENT AND ORDER FORM
Please send me the INFOPAC products indicated below for a free trial.
1. The trial period will be for ___ days, starting the day the INFOPAC
product(s) indicated below are successfully installed and operating or
demonstrated by Mobius personnel.
2. There is no charge for the trial.
3. Company will respect and protect Mobius Management Systems, Inc.
proprietary rights to the product(s) ordered for trial.
4. Company agrees to return all tapes and materials related to the product(s)
under trial, and certify that the product(s) have been removed from the
Company's systems, and are no longer in use, if the Company does not lease
or license the product(s).
5. Company will protect the product(s) under trial as they protect their own
assets, while in their possession.
6. Product(s): _________________________________________
______________________________________________________
______________________________________________________
I agree to the terms and conditions of this agreement.
---------------------- --------------------- ----------------- ----------
Company Name Signature Title Date
--------------------------------------------------------------------------------
Installation Profile
Company Name ________________ ___)___-_______
Address ____________________
____________________
____________________
Contact Name ________________ ___)___-_______
CPU Model ___________ Operating System _______ Release _______
Return to:
Mobius Management Systems, Inc.
Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxx, Xxx Xxxx 00000
(000) 000-0000 Ext. 286 or (000) 000-0000 (FAX)
================================================================================
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SCHEDULE F
ENTERPRISE DATA MANAGEMENT SOFTWARE FROM MOBIUS MANAGEMENT SYSTEMS
INFOPAC-RDS for Windows
INFOPAC-RDS for Windows changes the way end-users view and print output.
INFOPAC-RDS for Windows uses the Microsoft(R) Windows environment to provide a
friendly graphical user interface to display report data stored anywhere in the
enterprise: the Host file server (including data stored on magnetic DASD,
optical disk and tape), local file servers, the LAN or the workstation hard
drive. Taking advantage of the power and flexibility of the workstation,
INFOPAC-RDS for Windows extends this power to enterprise report viewing and
printing.
Direct Access to Your Enterprise
Network With Full Security and
Data Integrity
INFOPAC-RDS for Windows, working with its mainframe partners INFOPAC-RDS and
ViewDirect, creates a true client/server relationship. This architecture
supports two application programming interfaces (APIs) for communicating between
the client and server. You can use any Windows-based PC communications product
that supports either of these APIs.
============================================
Attach Server
--------------------------------------------
Recipient ID Passwordtxxxxxx
--------------------------------------------
-----------------------------
Server ID IRDSPRO
Report ID
-----------------------------
CR 001 MONTHLY EXPENSE REPORT
Version ID CR001 SALES CALL DETAIL
SL001 MONTHLY SALES REPORT
Section ID
o HLLAPI - High-level Language Application Programming Interface supported
by many Windows 3270 terminal emulation packages, including those that
support TCP/IP.
o CPI-C API - Common Programming Interface for Communications, a standard
communications interface designed to support APPC software and LU6.2
protocols.
Using the client/server architecture, INFOPAC-RDS for Windows gives authorized
users access to data throughout the network. Pop down boxes display the servers
you can work with, a customized list of reports you are allowed to access,
versions that are available, and sections of reports you may view.
If you have ViewDirect or the Optical Disk Interface, you can directly access
archives stored on tape or optical disk.
Minimizes Network Traffic with the Intelligent
Object Processor(TM) Architecture
Through the unique and powerful intelligent Object Processor architecture.
INFOPAC.RDS for Windows minimizes the load on your network and optimizes the use
of the correct platform for each function. The Intelligent Object Processor
moves objects (data ______ requests) throughout the network to prosecute objects
on the most efficient platform, which, depending on the object might be the
server or the client. For example, the Intelligent Object Processor executes a
simple SEARCH command first on the workstation for data in the buffer then ships
the search to the server if it cannot be satisfied on the workstation. The
results of the object are then moved to the workstation after the prosecution of
the object on the server is complete. The end result, network traffic is
minimized and functionality is maximized.
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View Entire Page
INFOPAC-RDS for Windows allows you to display the report page in any size
window. It uses Variable font support to allow each user to dynamically define
how many characters and lines of the report are displayed on the screen at a
time. Simply by altering the font and its size, you alter displayed report text
to suit your preferences - from very small to very large.
=============================================
INSFOPAC RDS\C\REPORTS\STAC081.RPT
---------------------------------------------
File Exit View Options
---------------------------------------------
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