SECOND AMENDMENT TO LICENSE AGREEMENT
THIS SECOND AMENDMENT TO LICENSE AGREEMENT (this "Second Amendment") is made
and entered into as of the ----- day of December, 1997 by and between (i)
ARBOR SOFTWARE CORPORATION, a Delaware corporation ("Arbor"), and (ii)
COMSHARE, INCORPORATED, a Michigan corporation ("Comshare") (individually, a
"Party", and collectively, the "Parties"), with reference to the following:
RECITALS
A. Arbor and Comshare entered into that certain License Agreement dated
as of December 23, 1993.
B. Arbor and Comshare entered into the First Amendment to License
Agreement effective March 1, 1994 (the "First Amendment"). The License
Agreement, as modified by the First Amendment, is referred to collectively
as the "License Agreement".
C. Arbor and Comshare have been engaged in litigation regarding the
License Agreement and related issues pending in the United States District
Court for the Northern District of California, Civil Action No. C-96-20812
RMW (the "Litigation").
D. Arbor and Comshare are entering into the Settlement Agreement dated
concurrently herewith, pursuant to which the Parties agree to fully settle
and resolve the Litigation and all claims and controversies existing between
them. As a condition to the Settlement Agreement, the Parties agree to
modify and amend the License Agreement, in accordance with Section 16(i) of
the License Agreement, as set forth in this Second Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and in the Settlement Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the Parties hereto agree to amend the License Agreement as follows:
1. Rules of Construction. Unless otherwise defined herein,
capitalized words and phrases used in this Second Amendment shall have the
meanings set forth in the License Agreement. To the extent the meaning of
any term as used herein is inconsistent with the meaning of such term in the
License Agreement, the meaning set forth in this Second Amendment shall
prevail.
2. Definitions. In addition to the other capitalized terms
defined elsewhere in this Second Amendment, the following terms shall have
the meanings set forth below:
(a) "Software" means: (i) all Core Software (as
hereinafter defined), and all technical and user documentation and training
materials (courseware) related thereto; (ii) the Arbor software product
known as the "Essbase Web Gateway"; (iii) all software utilities and
subroutines incidental to the operation of such software, such as operating
system dynamic link libraries (".dll's"), database connectivity drivers, and
end-user installation tools, that Arbor licenses from third parties and
embeds at the source or object code level in such computer software; and
(iv) all Related Works (as hereinafter defined) provided by Arbor pursuant
to Section 4 (Related Works) below. "Software" excludes: (1) any Related
Works not provided to Comshare under Section 4 below; and (2) any software
that is not expressly included in this definition.
* 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.
(b) "Related Works" means: (i) all ports of the
Software to various hardware and software operating systems platforms other
than Windows NT, Windows 95, OS/2, HP-UX, Sun Solaris, DEC Alpha, Macintosh,
and AIX operating system platforms and their successors; (ii) any software
interface developed on any operating system or hardware platform for the
purpose of permitting the Essbase Data Analysis Server to work with a third-
party database product, such as the IBM relational storage interface; (iii)
any software on any operating system or hardware platform that results from
the combination or integration of the Essbase Data Analysis Server with a
third party database product including without limitation IBM's DB2
relational database product, whether the software products are sold
independently on a stand-alone basis or as a combined or integrated product;
and (iv) any translations of the Software into local languages.
(c) "Limited Use" means the category of Software
sublicenses described in Section I(A) of Exhibit D attached to this Second
Amendment.
(d) "Application Specific Use" means the category of
Software sublicenses described in Section I(B) of Exhibit D attached to this
Second Amendment.
(e) "Full Use" means the category of Software
sublicenses described in Section I(C) of Exhibit D attached to this Second
Amendment.
3. License Grant. The first full paragraph of Section 1 of the
License Agreement (titled "License Grant") is hereby deleted in its entirety
and replaced with the following language:
"Subject to the restrictions contained herein, Arbor grants
to Comshare and its subsidiaries the non-exclusive,
worldwide right and license to use, reproduce, adapt,
distribute and sublicense to Comshare Distributors and
customers the Software (as defined in the Second Amendment
to the License Agreement). Any and all rights not expressly
granted to Comshare hereunder are reserved by Arbor."
4. Related Works. Arbor will provide to Comshare all Related
Works owned and developed by Arbor. If a Related Work is developed by a
third party and Arbor retains for itself or obtains from the third party, as
the case may be, the right to distribute the Related Work to Arbor's
customers and distributors, Arbor will use reasonable commercial efforts to
obtain or retain the right to provide the Related Work to Comshare for
distribution by Comshare under this License Agreement. In such event, Arbor
agrees that it will not withhold or encourage any third party to withhold
from Arbor the right to relicense the Related Work to Comshare; provided,
however, that Arbor does not guarantee that it will be able to retain or
obtain such right for Comshare. Notwithstanding the foregoing and by way of
limitation, the Parties agree that the rights granted by Arbor to Comshare
hereunder shall in no event be greater than the rights granted to or
retained by Arbor with respect to the Related Works. In addition, and
notwithstanding anything to the contrary herein, (i) with respect to any
Related Work owned by a third party, Arbor makes no different
representations or warranties to Comshare than those provided by the third
party to Arbor and (ii) with respect to any Related Work owned or developed
by a third party, Arbor undertakes no obligation of support or maintenance
greater than that provided by Arbor to any of its other distributors. In
the event that Arbor does retain or obtain rights for Comshare with respect
to any Related Work of a third party, Comshare shall pay Arbor an additional
royalty as described in Section I(E) of Exhibit D to the License Agreement.
5. Core Software. Subject to Sections 11(b) (Indemnification)
and 16(d) (Force Majeure) of the License Agreement and Section 7
(Discontinuance of Support) of this Second Amendment, Arbor agrees to ensure
Comshare's right during the Term of the License Agreement to distribute and
sublicense for use by third parties, under the terms of the License
Agreement, (i) all versions of the Essbase Data Analysis Server (including
the partitioning option), Essbase Spreadsheet Add-In, Essbase Application
Manager, Essbase Spreadsheet Toolkit, Essbase Currency Conversion Module,
SQL Drill Thru, SQL Interface, Essbase Objects, and Essbase Application
Programming Interface ("API"), including all successors to such products,
and (ii) any and all computer software in object code form related to multi-
dimensional modeling software that Arbor owns, develops, or acquires
ownership of during the Term of the License Agreement and that functions by
making calls to the source code of the Essbase Data Analysis Server (or its
successors) using calls not available to Comshare through a commercially-
available Arbor application program interface, in each of cases (i) and (ii)
designed to run on the Windows NT, Windows 95, OS/2, HP-UX, Sun Solaris, DEC
Alpha, Macintosh, and AIX operating system platforms, including all
successors to such platforms, but excluding all Related Works (the "Core
Software"). Any sale or license by Arbor of the Core Software (or any
portion of the Core Software) during the Term of the License Agreement shall
be subject to this obligation.
6. Essbase Translations. In the event that there is more than
one (1) version of the Software available in a single language in a
particular territory, Arbor may select a single translation to be
distributed by the Parties and shall notify Comshare in writing which
translation shall be distributed. Provided that Arbor has obtained for
Comshare the right to distribute the selected translation to its Comshare
Distributors and customers under the License Agreement, each Party shall,
and shall use reasonable commercial efforts to cause its respective
distributors to, cease distributing all other translated or localized
versions of the Software for such language within sixty (60) days of the
date of Arbor's delivery of the selected translated version. In particular,
Arbor shall provide to Comshare the Japanese translation of the Software
designated as "Essbase Version 4.1.3J" as soon as Arbor makes such release
generally available to its distributors.
7. Discontinuance of Support. Neither Arbor nor any third party
shall be required to continue to develop new releases of the Software,
including any Core Software, on operating system platforms that Arbor, in
its sole judgment, finds commercially undesirable. In connection with any
decision by Arbor to discontinue development of new releases on any
operating system platform, Arbor may also discontinue providing bug fixes,
workarounds, or "how-to" support for existing versions of the Software on
any discontinued operating system platforms; provided that Arbor shall give
Comshare twelve (12) months' notice prior to implementation of the decision
to discontinue support (i.e., bug fixes, workarounds, and "how-to" support).
Arbor will provide Comshare with maintenance and support on discontinued
platforms to the same extent that Arbor provides maintenance and support to
its own end users. Solely in the circumstances contemplated by this Section
7, if Arbor permits its distributors or end users to exchange Software
running on a discontinued operating system platform free or at a reduced
charge for Software that runs on a supported platform, Comshare may offer
Comshare customers similar rights of exchange and pay Arbor a
correspondingly reduced or eliminated royalty. The discontinuance of
development, maintenance or support under this Section shall in no way
trigger a Release Condition under the Escrow Agreement described in Section
9 of the License Agreement or give Comshare any other rights to the source
code of the Software.
8. Arbor Attribution.
(a) Applicable to All Software. The words "any
Software sublicensed as described in Section I.A of Exhibit D", appearing in
Section 1(e)(ii) of the License Agreement are hereby deleted from that
Section and replaced with the words "all Software". The words "(if
applicable)" are inserted between the words "application" and "and" in
Section 1(e)(ii) of the License Agreement.
(b) Patent Marking. The following language is added as
new Section 1(e)(iii) of the License Agreement:
"With respect to all sublicenses of the Software, Comshare
shall also ensure that Arbor's patent number (U.S. Patent
No. 5,359,724), and other patent numbers as Arbor may
designate, are marked on the documentation, packaging, and
physical media of Comshare's application."
9. Essbase Training Materials. During the Term of the License
Agreement, Comshare may copy and redistribute Software training materials
(courseware) directly or through Comshare Distributors to Comshare customers
for training purposes in connection with the Software, at no charge,
provided that Comshare ensures that all Arbor copyright attribution and
notices on such materials are preserved.
10. Pricing and Royalties. Exhibit D attached to the License
Agreement is hereby deleted in its entirety and replaced by a new Exhibit D,
attached to this Second Amendment. All references to Exhibit D in the
License Agreement shall be deemed to refer to Exhibit D attached hereto.
11. Audit. The second and third sentences of Section 5(b) of
the License Agreement are hereby deleted in their entirety. Mutual audit
rights of the Parties are set forth in Section V of Exhibit D attached
hereto.
12. Minimum Fees. Sections 5(c) and 5(d) of the License
Agreement are hereby deleted in their entirety from the License Agreement.
Exhibit E attached to the License Agreement (titled "Examples of Minimum
Payment Calculations") is hereby deleted in its entirety.
13. Exclusivity Minimum. Section 5(e) of the License Agreement
is hereby deleted in its entirety from the License Agreement. Exhibit F
attached to the License Agreement (titled "Exclusivity Companies") is hereby
deleted in its entirety.
14. Arbor Limitation. Sections 6(a) and 6(b) of the License
Agreement are hereby deleted in their entirety from the License Agreement.
15. Comshare Distributors. The Parties acknowledge that
Comshare has added to and amended the List by replacing Schedule 6(c)
(titled "Comshare Distributors") attached to the License Agreement with
"Schedule 6(c) Amendment" attached hereto. Section 6(c) of the License
Agreement is hereby deleted in its entirety and replaced with the following
language:
"During the Term of the License Agreement, neither Arbor,
nor Arbor's parent, nor any of Arbor's direct or indirect
subsidiaries, may directly market the Software through an
entity (i) that is then a Comshare Distributor or (ii) that
was formerly a Comshare Distributor and that was solicited
by Arbor to terminate its distribution arrangement with
Comshare. In the event that during the Term of the License
Agreement, Arbor markets the Software through an entity that
was, but is no longer, a Comshare Distributor, Arbor shall
pay to Comshare * of all software license and maintenance
fee royalties paid by such former Comshare Distributor to
Arbor with respect to Software sublicenses sold by the
distributor during the one (1) year period following the
date on which such distributor ceased to be a Comshare
Distributor. This obligation shall not survive with respect
to any royalties paid to Arbor for periods after the earlier
of (1) the expiration of the Term of the License Agreement
or (2) the effective date of termination of the License
Agreement, if terminated by Arbor for reason of Comshare's
breach pursuant to Section 8(a) of the License Agreement.
Solely for purposes of this Section 6(c), Comshare has
provided a list of Comshare Distributors for each geographic
territory as of the date hereof (the "List"), attached
hereto as Schedule 6(c) Amendment, and may add to the List,
subject to all of the following conditions:
(i) Comshare may not add names to the List for the
territory of the United States.
* 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.
(ii) For territories outside of the United States, Comshare may
add a name to the List only if Comshare has a distribution
arrangement with that entity pursuant to a written contract
and that entity has the right to grant Application Specific
Use and Full Use sublicenses of the Software.
(iii) Notwithstanding the above subsection, 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 Arbor receives written notice that the entity
was added to the List."
16. Right of Offer. Section 7 of the License Agreement is
hereby deleted in its entirety from the License Agreement. Schedule 7(b)
attached to the License Agreement (titled "Comshare Competitors") is hereby
deleted in its entirety.
17. Termination.
(a) By Comshare. Section 8(b) of the License Agreement
is hereby deleted in its entirety.
(b) Early Termination. Section 8(c) of the License
Agreement is hereby deleted in its entirety.
(c) Effect of Termination. Section 8(d) of the License
Agreement is hereby deleted in its entirety and replaced with the following
language:
"All sublicenses to the Software granted by Comshare and
Comshare Distributors to customers under this License
Agreement shall continue in effect, in accordance with their
terms, after termination of this License Agreement.
Regardless of the reason for such termination, consistent
with and under the terms of Section 3(c) of the License
Agreement, Comshare may request of Arbor and Arbor shall,
subject to Section 7 (Discontinuance of Support) of the
Second Amendment, provide technical support and maintenance
services to Comshare related to the Software, for Comshare's
and Comshare Distributors' existing customer sublicensees of
the Software as of the date of termination of the License
Agreement in accordance with the terms of the Second
Amendment. Comshare may continue to use the Software for
its internal business purposes and may also possess a
reasonable number of copies of the Software necessary for
the sole purpose of customer support. Arbor has prepared a
letter to be provided to Comshare customers upon execution
of this Second Amendment, and which is attached hereto as
Exhibit G, which confirms Comshare's right to receive
maintenance of the Software for such customers after
termination of the License Agreement. In addition,
following termination of the License Agreement, Arbor shall
have no obligation under Section 2 of Exhibit C to create
any enhancements to the Software, provided that if Arbor
does make any enhancements generally available for its
maintenance customers, Comshare will be entitled to receive
such enhancements in accordance with the terms of this
Section 8(d)."
18. Arbitration and Escalation of Disputes. Section 15 of the
License Agreement is hereby deleted in its entirety and replaced with the
following language:
"(a) In the event that a dispute arises between the Parties
regarding any provision of this License Agreement, the
Parties shall in good faith invoke the following escalation
procedure prior to commencing arbitration, litigation, or
any other form of dispute resolution: (i) the controller of
one party shall contact the controller of the other to
discuss and attempt to resolve the dispute; (ii) if the
dispute is not resolved, the chief financial officer of one
party shall contact the chief financial officer of the other
to discuss and attempt to resolve the dispute; (iii) if the
dispute is not resolved, the president of one party shall
contact the president of the other to discuss and attempt to
resolve the dispute.
(b) In the event of a dispute that remains unresolved
despite the Parties' good faith negotiations over
(i) the applicable Commonly Used Retail Price
("CUR") or (ii) amounts properly payable by
Comshare hereunder, the dispute shall be resolved
through binding arbitration in accordance with the
Non-Administered Arbitration Rules of the CPR
Institute for Dispute Resolution, by three (3)
arbitrators, of whom each Party shall appoint one,
and the third shall be selected by the two
arbitrators chosen by the Parties. The arbitration
shall be governed by the United States Arbitration
Act, 9 U.S.C. Sections 1-16, and judgment upon the award
rendered by the arbitrators may be entered by any
court having jurisdiction thereof. The place of
the arbitration shall be Chicago, Illinois.
(c) If the dispute has not been resolved by the means
provided in the above Subsection 15(b) within
ninety (90) days of the initiation of such
procedure, either Party may initiate litigation
upon thirty (30) days written notice to the other
Party; provided, however, that if one Party has
requested the other to participate in the
arbitration procedure described in the above
Subsection 15(b) and the other has failed to
participate, the requesting Party may initiate
litigation before expiration of the above period."
19. Notices. The addresses for notices provided in Section
16(c) of the License Agreement shall be amended as follows:
If to Arbor, to:
Arbor Software Corporation
1344 Crossman Avenue
Sunnyvale, California 94089
ATTN: Legal Department
Telecopy: (408) 744-0400
If to Comshare, to:
Comshare, Incorporated
555 Briarwood Circle
Ann Arbor, Michigan 48108
ATTN: President
Telecopy: (313) 994-4140
20. Assignment. The second sentence of Section 16(h) of the
License Agreement is hereby deleted in its entirety and replaced with the
following language:
"Notwithstanding the foregoing, the rights granted to
Comshare under this Agreement are assignable (i) in whole
but not in part without permission in connection with a
merger, consolidation, reorganization, assignment to direct
or indirect subsidiaries or with a sale or exclusive license
of substantially all the Comshare software used in
conjunction with the Software or (ii) in part without
permission in connection with the sale or exclusive license
of a Comshare product or product line used in conjunction
with the Software. In the event that Comshare assigns its
rights in part pursuant to clause (ii) above, Comshare may
not include as part of that assignment its rights under:
Section 6(c) of the Agreement (Comshare Distributors),
Section 9 (Essbase Training Materials) of the Second
Amendment to the Agreement, the provision of Exhibit B
entitled "Ongoing Support," Section 2 (Enhancements) of
Exhibit C, and Sections III (Support and Training Prices)
and V (Mutual Audit Rights) of Exhibit D. Arbor may,
subject to Section 5 (Core Software) of the Second
Amendment, assign its rights and obligations under this
Agreement without permission in connection with a merger,
consolidation, reorganization, assignment to direct or
indirect subsidiaries, or as part of a sale of substantially
all of its assets or substantially all of its intellectual
property rights in the Software."
21. Effect of License Agreement. The First Amendment to License
Agreement, effective March 1, 1994, is replaced in its entirety and
superseded by this Second Amendment and Exhibit D attached hereto. The
Second Amendment shall take effect upon execution hereof; provided, however,
that the provisions of Exhibit D (other than Sections II (Maintenance
Royalties) and V (Mutual Audit Rights) thereof) shall take effect on January
1, 1998. Except as specifically set forth in this Second Amendment, all
terms and conditions set forth in the License Agreement shall remain in full
force and effect and continue to bind the Parties and their respective
successors and permitted assigns. In the event of any inconsistency or
conflict between the provisions of the License Agreement and this Second
Amendment, this Second Amendment shall prevail and govern. This Second
Amendment may be executed in one or more counterparts, by facsimile, each of
which shall be deemed an original, but all of which shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the Parties have caused this Second Amendment to be
executed by their duly authorized representatives as of the date first
written above.
ARBOR SOFTWARE CORPORATION COMSHARE, INCORPORATED
By: By:
Name: Name:
Title: Title:
Date: Date:
EXHIBIT "D"
TO
LICENSE AGREEMENT
Pricing
Comshare shall pay Arbor for sublicenses of Software and for Arbor
services as follows:
I. SOFTWARE SUBLICENSE ROYALTIES.
A. Limited Use Tier.
1. Comshare shall pay Arbor * of Arbor's Commonly
Used Retail Price ("CUR"), as defined in Section IV(A) below, for each unit
of the Software distributed by Comshare or a Comshare Distributor as a
component module of a Comshare- packaged application including, without
limitation, Comshare's Arthur Merchandise Planning, Commander Sales
Analysis, BudgetPLUS (version without "ad hoc" spreadsheet write
capability), and Performance Measurement applications, in each case where
all of the following restrictions are satisfied:
a. No delivery to customer of any of the
following:
(1) Essbase API (except for run-time
dynamic link libraries embedded in
the Comshare application);
(2) Essbase Spreadsheet Toolkit;
(3) Essbase Objects or similar future
application development tools;
(4) Essbase Adjustment Module; or
(5) Essbase Web Gateway.
b. Use of the Software is contractually
limited to use by a customer with a single
specified Comshare application. The
Comshare customer license agreement
governing the use of the Software must be
in a hard copy (i.e., paper) form delivered
to and executed by the customer, and must
prominently display the following language:
THE ARBOR ESSBASE SOFTWARE PROVIDED WITH
THIS COMSHARE APPLICATION SOFTWARE IS
LIMITED TO USE ONLY WITH THIS COMSHARE
PRODUCT. WITHOUT LIMITING THE FOREGOING,
LICENSEE MAY NOT (1) USE THE ESSBASE
SOFTWARE OR ANY THIRD-PARTY PROGRAMMING
LANGUAGE, TOOLS, OR PRODUCTS TO CREATE
ADDITIONAL APPLICATIONS DESIGNED TO WORK
WITH THE ESSBASE SOFTWARE, (2) ACCESS DATA
FROM THE ESSBASE SERVER USING THIRD-PARTY
SOFTWARE, OTHER THAN A SPREADSHEET,
COMPATIBLE WEB BROWSER AND THE REPORT
WRITER SOFTWARE INCLUDED WITH THIS SOFTWARE
PACKAGE, OR (3) USE ANY OF THE FOLLOWING:
ESSBASE APPLICATION PROGRAMMING INTERFACE,
ESSBASE SPREADSHEET TOOLKIT, ESSBASE
OBJECTS, ESSBASE ADJUSTMENT MODULE, OR
ESSBASE WEB GATEWAY. USE OF THE ESSBASE
APPLICATION MANAGER IS RESTRICTED TO
LICENSEES OF THE COMSHARE BUILDER PACKS.
* 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.
I(A)(1)(b), provided that the Comshare
customer license agreement governing the
use of the Software must be in a hard copy
(i.e., paper) form delivered to and
executed by the customer, and must
prominently display the following language:
THE ARBOR ESSBASE AND COMMANDER DECISION
SOFTWARE PROVIDED WITH THIS COMSHARE
APPLICATION SOFTWARE ARE LIMITED TO USE
ONLY WITH THIS COMSHARE APPLICATION.
WITHOUT LIMITING THE FOREGOING, LICENSEE
MAY NOT (1) USE THE ESSBASE SOFTWARE OR ANY
THIRD-PARTY PROGRAMMING LANGUAGE, TOOLS, OR
PRODUCTS TO CREATE ADDITIONAL APPLICATIONS
DESIGNED TO WORK WITH THE ESSBASE SOFTWARE,
(2) ACCESS DATA FROM THE ESSBASE SERVER
USING THIRD-PARTY SOFTWARE, OTHER THAN A
SPREADSHEET, COMPATIBLE WEB BROWSER AND THE
REPORT WRITER SOFTWARE INCLUDED WITH THIS
SOFTWARE PACKAGE, OR (3) USE ANY OF THE
FOLLOWING: ESSBASE APPLICATION PROGRAMMING
INTERFACE, ESSBASE SPREADSHEET TOOLKIT,
ESSBASE OBJECTS, ESSBASE ADJUSTMENT MODULE,
OR ESSBASE WEB GATEWAY. USE OF THE ESSBASE
APPLICATION MANAGER IS RESTRICTED TO
LICENSEES OF THE COMSHARE BUILDER PACKS.
c. Comshare and Comshare Distributors shall
not provide or permit end-user access to
data on the Essbase Data Analysis Server
through third-party report writers or other
third-party software, except for report
writers that provide formatted production
reports such as Crystal Info for Essbase
Version 5 (as it exists in its current
version as of the date of this Second
Amendment). Comshare may include future
versions of such report writers so long as
they do not include On Line Analytical
Processing ("OLAP") functionality such as
multidimensional viewing for "ad hoc"
drill-through or pivoting of data.
Comshare may, however, provide access to
data on the Essbase Data Analysis Server
(i) through software technology licensed
from third parties if such software is
embedded in and integrated into the
Comshare application with which the
Software is licensed for use, or (ii)
through a Comshare or third-party web
browser. Comshare may provide or permit
access to data on the Essbase Data Analysis
Server by a customer through a standard
object (e.g., Visual Basic) "container" or
equivalent software included as part of the
Comshare application, so long as such
inclusion does not facilitate "ad hoc"
spreadsheet access or the use, creation or
design of custom Essbase applications.
d. SQL Drill-Through module may be provided to
end users for a period not to exceed six
(6) months after the date Arbor provides
Comshare with an API for it.
e. "Ad hoc" spreadsheet access to the data on
the Essbase Data Analysis Server may be
provided only through a third-party
spreadsheet used in conjunction with the
Essbase Spreadsheet Add-In. As used in
this Exhibit D, "ad hoc" spreadsheet access
generally means the loading, retrieval or
viewing of data through a generic or
application non-specific spreadsheet
interface. In this Limited Use Tier,
however, such ad hoc end-user spreadsheet
access shall be read-only (i.e., no writing
or loading of data), with the "lock and
send" and "calculation" functions
programmatically disabled from the Essbase
Spreadsheet Add-In. The foregoing shall
not preclude or restrict Comshare from
providing to its customers read and write
access to the Essbase data through a
predefined Comshare spreadsheet-based,
application-specific user interface
template included in the Comshare
application.
f. The Essbase Data Analysis Server delivered
to the customer is programmatically
restricted to permit establishment of a
single application "folder" in the Essbase
Application Management/Data Management
hierarchy, so as to permit the end user to
administer only a single application
through the Essbase Application Manager.
Any sample databases provided by Arbor with
the Software shall be delivered by Arbor in
the single application folder. This
restriction shall not limit the number of
databases that may be created for a single
application.
g. The Software sold for use with a Comshare
application in its "basic offering"
configuration as stated on Comshare's price
list may represent no more than * of the
combined value of the Comshare and Arbor
software sold. For purposes of determining
value, the Parties shall use their
respective U.S., European, and Japanese
list prices for software (i.e., the
Comshare list price for Comshare software
and the Arbor list price for fully
functional versions of the Arbor software),
provided that in no event shall this be
interpreted as setting a list price for
either Comshare or Arbor software. In
cases where a programmatically restricted
version of the Software is involved, the
applicable Arbor list price shall be the
list price of the fully functional version
of the Software.
2. Comshare's (i) failure to comply with any of the
restrictions in Subsections I(A)(1)(a), (c), (d), (e), (f), or (g) above, or
(ii) its compliance with Subsection I(B)(1) and not with Subsection
I(A)(1)(b), will result in the sublicense being subject to the royalty rate
of the Application Specific Use Tier in Section I(B) below. Comshare's
failure to comply with any of the restrictions in either Subsection
I(A)(1)(b) above or I(B)(1) below will result in the sublicense being
subject to the royalty rate of the Full Use Tier in Section I(C) below.
*
* 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.
3. The Limited Use sublicense royalty in Subsection
I(A)(1) shall be further subject to the volume discounts in Section I(D)
below.
4. Comshare is not obligated to pay royalties to Arbor
for any past or future upgrades from (i) single processor to multi-processor
platforms, or (ii) for Software exchanges between versions on different
operating system platforms, provided that Software on the new operating
system platform delivered has the same or lower Arbor list price than
Software on the operating system platform being exchanged.
5. In the event that Comshare assigns to a third party
its rights under the License Agreement in connection with the sale or
exclusive license of a particular Comshare product or product line, the
applicable Limited Use royalty rate under this Section I(A) for the
distribution or sublicense of the Software by such third party assignee
shall be * of Arbor's then current local country list price for the
Software. Such royalty rate shall not be subject to any volume discounts.
B. Application Specific Use Tier.
1. Comshare shall pay Arbor * of Arbor's CUR, as
defined in Section IV(A) below, for each unit of the Software distributed by
Comshare or a Comshare Distributor as a component of a Comshare-packaged
application, including without limitation the current versions of Comshare's
BudgetPLUS (ad hoc spreadsheet read/write version) and Commander Decision
(general purpose) applications, in each case where all of the following
requirements are satisfied:
a. The Software provided does not qualify for
the Limited Use royalty rate in Subsection
I(A)(1) above.
b. Where a single Comshare-packaged
application is delivered to the customer,
use of the Software is contractually-
limited to use by the customer with the
single Comshare application delivered. The
Comshare customer license agreement
governing the use of the Software must be
in a hard copy (i.e., paper) form delivered
to and executed by the customer, and must
prominently display the following language:
THE ARBOR ESSBASE SOFTWARE PROVIDED WITH
THIS COMSHARE APPLICATION SOFTWARE IS
LIMITED TO USE ONLY WITH THIS COMSHARE
PRODUCT.
Where Commander Decision (or any successor
product) is delivered to the customer
solely for use with a Comshare-packaged
application, such as BudgetPLUS, such
combination shall be deemed a single
Comshare-packaged application for purposes
of this Subsection I(B)(1)(b), provided
that the Comshare customer license
agreement governing the use of the Software
must be in a hard copy (i.e., paper) form
delivered to and executed by the customer,
and must prominently display the following
language:
* 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.
THE ARBOR ESSBASE AND COMMANDER DECISION
SOFTWARE PROVIDED WITH THIS COMSHARE
APPLICATION SOFTWARE ARE LIMITED TO USE
ONLY WITH THIS COMSHARE APPLICATION.
c. Where Commander Decision (or any successor
product) is delivered to the customer as a
general purpose application or non-
application specific development platform,
use of the Software is contractually-
limited to use by a customer with Commander
Decision and for the development and use of
a single application. The Comshare
customer license agreement governing the
use of the Software must be in a hard copy
(i.e., paper) form delivered to and
executed by the customer, and must
prominently display the following language:
THE ARBOR ESSBASE SOFTWARE PROVIDED WITH
THIS COMSHARE APPLICATION SOFTWARE IS
LIMITED TO USE ONLY WITH COMMANDER DECISION
FOR THE DEVELOPMENT AND USE OF A SINGLE
APPLICATION.
d. The Essbase Data Analysis Server delivered
to the customer is programmatically
restricted to permit establishment of a
single application "folder" in the Essbase
Application Management/Data Management
hierarchy, so as to permit the end user to
administer only a single application
through the Essbase Application Manager.
Any sample databases provided by Arbor with
the Software shall be delivered by Arbor in
the single application folder. This
restriction shall not limit the number of
databases that may be created for a single
application.
2. Any distribution or sublicense of the Software
(whether or not as a component module of a Comshare application including
without limitation Comshare's Arthur Merchandise Planning, Commander Sales
Analysis, BudgetPLUS (version without "ad hoc" spreadsheet write
capability), or Performance Measurement applications) which in any manner
does not meet the requirements set forth either in Section I(A) or
Subsections I(B)(1)(b), (c), or (d) above will result in the sublicense
being subject to the royalty rate of the Full Use Tier in Section I(C)
below. *
*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.
3. The Application Specific Use sublicense royalty in
Subsection I(B)(1) above shall be further subject to the volume discounts in
Section I(D) below.
4. In the case of a customer that has previously
purchased from Comshare or a Comshare Distributor a Limited Use sublicense,
the royalty for an upgrade to an Application Specific Use sublicense for
each server shall be the difference between the royalty 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. For customers of
Comshare or a Comshare Distributor that have purchased a sublicense that was
granted by Comshare prior to January 1, 1998 and reported to Arbor as a
"Limited Use" sublicense, the purchase of Software that is licensed as
Application Specific Use in full compliance with the terms of this Section
I(B) shall not require such customer to upgrade or pay any additional
amounts for such "Limited Use" sublicenses purchased before the date of
execution of the Second Amendment unless Comshare or the Comshare
Distributor charges such customer an upgrade fee in connection with such
purchase. Comshare will provide the customer with the appropriate
registration number/key to reflect the upgrade of the license. In the event
that Comshare has previously paid Arbor higher fees for the Limited Use
sublicenses on a server that would be due for the substituted Application
Specific Use sublicense, Comshare shall not be entitled to a refund.
5. Arbor will provide Comshare with all copies of the
Software and documentation required for Application Specific Use
sublicenses. 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.
If Comshare produces the documentation itself, then Comshare may subtract
its reasonable costs of producing the documentation from amounts otherwise
owed by Arbor; provided, however, that such costs shall not exceed Arbor's
own costs by more than * . Arbor will deliver to Comshare (at locations
designated by Comshare): three (3) copies of the Software on appropriate
media and three (3) hard copies and one (1) electronic media copy of the
documentation and training materials as it changes from time to time.
6. In the event that Comshare assigns to a third party
its rights under the License Agreement in connection with the sale or
exclusive license of a particular Comshare product or product line, the
applicable Application Specific Use royalty rate under this Section I(B) for
the distribution or sublicense of the Software by such third party assignee
shall be * of Arbor's then current local country list price for the
Software. Such royalty rate shall not be subject to any volume discounts.
C. Full Use Tier.
1. Comshare shall pay Arbor * of Arbor's CUR, as
defined in Section IV(A) below, for each of the following distributed by
Comshare or a Comshare Distributor:
a. Any distribution or sublicense of the
Software that is not contractually-limited
to use with a Comshare application in the
manner prescribed by Subsections I(A)(1)(b)
or I(B)(1)(b) or (c) above.
b. Any distribution or sublicense of the
Software on a stand-alone basis. For
purposes of this Subsection I(C)(1)(b), an
"add-on" sale of additional ports or
components of the Software for use with an
Essbase Data Analysis Server previously
licensed to a customer in accordance with
the requirements of Sections I(A) or I(B)
above is not a "stand-alone" sale.
2. The Full Use sublicense royalty in Subsection
I(C)(1) above shall be further subject to the volume discounts in Section
I(D) below.
3. Notwithstanding the above, Comshare shall pay Arbor
* of the applicable CUR for all Full Use sublicenses distributed by
Comshare through its agents, resellers, and distributors located outside the
United States (provided that such agents', resellers', or distributors' fee
is at least * of the applicable CUR), but not for sublicenses distributed
through Comshare's subsidiaries or Comshare's direct sales force. This *
royalty rate shall not be subject to any volume discounts.
4. Arbor will provide Comshare with all copies of the
Software and documentation required for Full Use sublicenses. 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. If Comshare produces the
documentation itself, then Comshare may subtract its reasonable costs of
producing the documentation from amounts otherwise owed by Arbor; provided,
* 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.
however, that such costs shall not exceed Arbor's own costs by more than *.
Arbor will deliver to Comshare (at locations designated by Comshare): three
(3) copies of the Software on appropriate media and three (3) hard copies
and one (1) electronic media copy of the documentation and training
materials as it changes from time to time.
5. In the case of a customer that has previously
purchased from Comshare or a Comshare Distributor (i) a sublicense granted
by Comshare prior to January 1, 1998 and reported to Arbor as a "Limited
Use" sublicense, (ii) a Limited Use sublicense as defined in Section I(A)
above, or (iii) an Application Specific Use sublicense as defined in Section
I(B) above, the royalty for upgrade to a Full Use sublicense for each server
shall be the difference between the royalty as calculated in this Section
I(C) and the amount Comshare has previously paid to Arbor for that
customer's sublicense on that server. Comshare will provide the customer
with the appropriate registration number/key to reflect the upgrade of the
license. In the event that Comshare has previously paid Arbor higher fees
for the Limited Use or Application Specific Use sublicense on a server that
would be due for the substituted Full Use sublicense, Comshare shall not be
entitled to a refund.
6. In the event of (i) a sale, transfer or other
disposition of all or substantially all of Comshare's assets, (ii) a sale or
exclusive license of substantially all the Comshare software used in
conjunction with the Software, (iii) acquisition by a single person, entity
or group acting in concert of greater than fifty percent (50%) of the voting
securities of Comshare, (iv) a merger, consolidation or reorganization of
Comshare in which Comshare is not the surviving entity, (v) a merger in
which Comshare is the surviving entity but in which ownership of fifty
percent (50%) or more of the outstanding voting securities of Comshare is
transferred to holders different from those that held the stock immediately
prior to such merger, or (vi) the sale, transfer or other disposition of all
or substantially all the Comshare software used in conjunction with the
Software (each, a "Corporate Transaction"), the Full Use royalty rate set
forth in Subsection I(C)(1) shall increase to * of Arbor's CUR, as defined
in Section IV(A) below. There shall be no reduction from this rate for
volume discounts. Comshare or its successors or permitted assigns, however,
shall be permitted to continue to sell Full Use sublicenses to existing
customers (as of the effective date of the Corporate Transaction) at the
applicable royalty rate in effect immediately prior to the Corporate
Transaction, and to continue to provide maintenance and add-on sales to the
existing Comshare customers, in accordance with the terms of the License
Agreement. For purposes of this Subsection, a "customer" is the legal
entity or entities that are party to a Comshare license agreement governing
the use of Software.
7. In the event that Comshare assigns to a third party its
rights under the License Agreement in connection with the sale or exclusive
license of a particular Comshare product or product line, the applicable
Full Use royalty rate under Section I(C) for the distribution or sublicense
of the Software by such third party assignee shall be * of Arbor's then
current list price for the Software. Such royalty rate shall not be subject
to any volume discounts.
D. Volume Discounts.
The sublicense prices described in Subsections I(A)(1) and I(B)(1)
above shall be further reduced in each contract Year as follows in the event
that the amounts payable by Comshare to Arbor for Software sublicenses under
Sections I(A), I(B), and I(C) above in the aggregate reach the following
levels in that 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.
SECTION I(A) SECTION I(B)
RATES RATES
For Amounts Rdctn. Royalty Rdctn. Royalty
in Excess of: Pctge. Rate Pctge. Rate
* * * * *
The sublicense prices described in Subsection I(C)(1) above shall be further
reduced in each Contract Year as follows in the event that the amounts
payable by Comshare to Arbor for Software sublicenses under Section I(C)
above reach the following levels in that Year:
For Amounts Rdctn. Royalty
in Excess of: Pctge. Rate
* * *
Each reduction percentage in the tables above applies only to sublicenses
granted after the corresponding amount in the table has been achieved.
These royalty rates also apply to upgrades of Software from (i) Limited Use
to Application Specific Use or to Full Use, and (ii) from Application
Specific Use to Full Use.
E. Related Works.
For each unit of a Related Work (as defined in Section 2(b) of the
Second Amendment) distributed to a customer by Comshare, Comshare shall pay
Arbor a royalty in the amount of (i) the applicable royalty as provided in
Subsection I(A)(1), I(B)(1) or I(C)(1) above plus (ii) * Arbor shall bear
any one time payment or lump sum fee payable by Arbor to a third party for
distribution rights to a Related Work where the rights obtained include
distribution rights for any party in addition to Comshare.
II. MAINTENANCE ROYALTIES.
A. For the maintenance services described on Exhibit C to the
License Agreement, Comshare shall pay, for each of the sublicensees that
purchase or renew annual maintenance of the Software on or after the date of
execution of the Second Amendment, a maintenance rate of * times the
royalties actually paid to Arbor for the sublicensed Software under
maintenance.
B. Comshare shall provide its quarterly royalty reports to
Arbor via e-mail in electronic form in an Excel or similar computer
spreadsheet.
III. SUPPORT AND TRAINING PRICES.
For the support and training services described on Exhibit B to the
License Agreement, Comshare 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 at the time Comshare requests Arbor to
provide the services.
* 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.
IV. COMMONLY USED RETAIL PRICE.
A. "Commonly Used Retail Price" ("CUR") means the average
discounted price which Arbor realizes for the corresponding units of
Software sublicensed by Comshare. Comshare shall pay royalties to Arbor
under Sections I(A), I(B), and I(C) of this Exhibit D based on Arbor's
average discounted price rather than Arbor's list price of software. The
CUR provides the mechanism to determine Arbor's average discounted sales
price for different-sized transactions during different periods of time.
The CUR shall be calculated as follows:
1. Arbor shall consider each transaction involving the
sale of a Software license and shall allocate the revenue among different
revenue types (e.g., software license fees, maintenance, training and
consulting) as required by SOP 91-1 and successor accounting pronouncements.
For purposes of this calculation, only the revenue from the transaction
attributable to software license fees under such SOP shall be considered
revenue from Software license sales.
2. Arbor shall then segregate based on Arbor's
applicable country or regional list price, all of its Software license
sales, both direct and through local country distributors, within * bands
ranging from * to * with bands of * thereafter.
3. Arbor shall further segregate, its Software license
sales by country or region including * or more countries, for each country
or region that includes * or more Software licenses to * or more
customers during the previous twelve (12) months. Arbor shall determine the
configuration of regions. Once determined, the regions are fixed except
that regions may be subdivided once * transactions are completed.
4. Direct sales of development or similarly restricted
Software licenses by Arbor to Arbor application partners, original equipment
manufacturers ("OEMs"), systems integrators, and other strategic partners or
customers shall be excluded from the transaction bands.
5. For each country- or region-specific transaction
band, Arbor shall aggregate Arbor Software license sales during the prior
twelve (12) months at list price (either U.S. or appropriate local country
list price for particular country or region) and at actual sales price. By
comparing the aggregate actual sales price and the aggregate list price,
Arbor shall determine the "average discounted price percentage" ("ADPP") for
each country- or region-specific transaction band. Stated otherwise, if the
average sales price in a transaction band is * less than the average list
price, the ADPP for that transactional band would be * .
6. Comshare shall then segregate the Software license
sales of Comshare and the Comshare Distributors in the quarter by the
regions and transaction bands reported by Arbor using the applicable Arbor
list price (U.S. or local foreign price) for such Software license sales.
The ADPP for each country- or region-specific transaction band multiplied by
the appropriate Arbor list price (U.S. or local foreign price) for each
Software license sale by Comshare or a Comshare Distributor in that country-
or region-specific transaction band constitutes the CUR for that Software
license sale. For countries or regions that include less than * Software
transactions in the prior twelve (12) months, the U.S. ADPP shall be used
for the applicable CUR.
7. If Arbor changes its list price, the ADPP will be
calculated using the revised list price and actual sales price for those
transactions that occur on or after the effective date of the price change.
The CUR will be calculated using the price list in effect at the time of the
transaction; provided that during the first six (6) months following the
effective date of any new Arbor price list, Comshare may, at its option, use
either the new price list or the most recent prior price list in calculating
the CUR. If the effective date of the new price list occurs after the first
day of a month, the six (6) month period shall begin on the first day of 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.
following month. If at any time during such six (6) month period Comshare
chooses to use the new price list, Comshare shall use the new price list for
the remainder of the period.
8. The Parties agree that for transaction bands in
which no sales occurred in the applicable country or region within the prior
twelve (12) months, Arbor shall extrapolate the ADPP. In order to perform
such extrapolation, the surrounding transaction bands for that country or
region immediately above and below the transaction band with no sales must
have sales during the prior twelve (12) months. The extrapolated ADPP shall
be calculated from the surrounding transaction bands by use of linear
regression analysis. If there are no sales in both surrounding transaction
bands, the ADPP from the transaction band from the most recent past quarter
shall be applied.
9. Until the earlier of (i) twelve (12) months from
the first day of the first full calendar quarter following the date of
execution of the Second Amendment or (ii) such point as there are *
Software license sales transactions in Japan, the parties agree that the
applicable CUR for Japan in any quarter shall equal * of the U.S. CUR for
that period. At such point as there are * Software license sales
transactions in Japan, with respect to those transactions on which Comshare
has paid a royalty based on a predetermined CUR equal to * of the U.S. CUR,
Arbor shall credit Comshare for the amount actually paid by Comshare using
* of the U.S. CUR in excess of the amount, if any, that would have been
owed by Comshare using the Japanese CUR for that period.
B. Arbor shall calculate the ADPP as described in Section IV(A)
above and report it to Comshare on a quarterly basis, no later than sixty
(60) days after the end of each quarter.
C. Comshare shall use the ADPP to determine the CUR and the
appropriate royalty to pay Arbor for sales of Software within each
transaction band by multiplying the appropriate royalty rate (Limited Use,
Application Specific Use, or Full Use) by the CUR for each transaction in a
particular transaction band. Comshare shall use only the Essbase Software
portion at list price for each Comshare sale to determine the appropriate
transaction band to use in calculating the royalties owed to Arbor.
D. Comshare may request a special royalty quote intended to
override the CUR for a specific transaction, and shall specify the requested
royalty to be paid on the specific transaction. In order for such special
royalty quote to be effective, Arbor and Comshare must agree in writing to
the royalty amount to be paid on the transaction. If any substantive
element of the transaction changes Comshare must request a new special
royalty quote. Arbor's consent to the special royalty quote must be
provided in writing to Comshare within thirty (30) days of agreement to the
special quote. Comshare must execute and return the written consent to the
Arbor legal department within thirty (30) days of receipt of Arbor's written
consent.
E. Comshare shall provide its quarterly royalty reports to
Arbor via e-mail in electronic form in an Excel or similar computer
spreadsheet.
F. Arbor shall deliver its new price lists for each of its
territories to Comshare * days in advance of the effective date of such
price list, to Comshare's chief financial officer by the means and at the
address as indicated in Section 16(c) of the License Agreement, as amended
in
Section 19 of the Second Amendment.
* 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.
V. MUTUAL AUDIT RIGHTS
A. By Arbor. Upon twenty (20) days' written notice and not
more than one (1) time per calendar year, Arbor may examine Comshare's (or,
if Comshare has merged or been acquired, the surviving entity's) books and
records related to the calculation or payment of royalties owed by Comshare
to Arbor hereunder, at Arbor's own expense, using Arbor's internal auditor,
internal staff, or its certified public accounting firm; provided, however,
that if any such examination uncovers an underpayment by Comshare in excess
of * , then Comshare shall be liable for the full costs of such audit.
Comshare shall reasonably cooperate with Arbor during the performance of any
such examination. Comshare is not required to provide Arbor with the names
of its customers for purposes of such examination, but must provide an
auditable list of customer numbers. Comshare may, however, provide customer
names to Arbor's finance department on a confidential basis, not to be
disclosed to third parties or to Arbor personnel outside of that department.
B. By Comshare. Upon twenty (20) days' written notice and not
more than one (1) time per calendar year, Comshare may examine Arbor's (or,
if Arbor has merged or been acquired, the surviving entity's) books and
records related to the calculation of CUR and maintenance royalties
hereunder, at Comshare's own expense, using Comshare's internal auditor,
internal staff, or its certified public accounting firm; provided, however,
that if any such examination uncovers an overpayment amount in excess of *,
then Arbor shall be liable for the full costs of such audit. Arbor shall
reasonably cooperate with Comshare during the performance of any such
examination. Arbor is not required to provide Comshare with the names of
its customers for purposes of such examination, but must provide an
auditable list of customer numbers. Arbor may, however, provide customer
names to Comshare's finance department on a confidential basis, not to be
disclosed to third parties or to Comshare personnel outside of that
department.
C. Notwithstanding anything to the contrary contained in the
License Agreement and the Second Amendment, the Software sublicenses that
were granted prior to January 1, 1998 and reported by Comshare to Arbor as
"Limited Use" shall not be subject to additional royalty payments, except as
provided in Subsections I(B)(4) and I(C)(5) above, and are not in any event
subject to question or audit by Arbor; provided, however that if Comshare
lessens or cancels the contractual restrictions with respect to the use of
the Software in any "Limited Use" sublicense granted prior to January 1,
1998, such sublicense shall be subject to reclassification and royalty
payments under Section I(B) or I(C) above, as applicable, and may be deemed
an upgrade of such sublicense in accordance with the terms of those
Sections. Comshare shall not be required to implement any additional
restrictions set forth in Sections I(A) or I(B) above with respect to
Software shipped as an update to Software licensed as "Limited Use" prior to
January 1, 1998 under a maintenance contract.
D. Notwithstanding anything to the contrary contained in this
Exhibit D, all information provided by Arbor to Comshare related to the CUR
prior to the execution of the Second Amendment and with respect to periods
prior to execution of the Second Amendment shall be deemed to have been
accurate and proper and are not subject to question or audit by Comshare.
VI. MISCELLANEOUS
A. 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 payment to Arbor becomes due, less any
exchange fees actually incurred. Any tax, duty or withholding on such
funds, except for any tax on Comshare's income, shall be the responsibility
of Arbor, and all payments will be net thereof.
* 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.