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[LOGO] "CONFIDENTIAL
TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS
200.80(b)(4), 200.83 AND
240.2b-2."
VALUE ADDED RESELLER AGREEMENT EXHIBIT 99.2
This Agreement is entered into and becomes effective the 27 day of Oct. 1995 by
and between VMARK Software, Inc. ("VMARK"), a Delaware Corporation with its
principal place of business at 50 Washington Street, Westboro, Massachusetts,
01581, and Dataworks Corp. ("VAR") with its principal place of business at 5918
Pacific Center Blvd., San Diego, CA 92121.
Definitions
"APPLICATION" means a computer program which is developed, owned, and
licensed by VAR which substantially uses the features and capabilities
of VMARK Product(s).
"EFFECTIVE DATE" means the date this Agreement is signed by VMARK.
"END USER" means any third party individual, business or governmental
customer of VAR which acquires one or more copies of the products for
personal or internal business use, and not for transfer to others. An
end user may not be an Affiliate of Licensee.
"PRICE LIST" means the VMARK price list in effect (i) at the time VAR
orders Product(s) from VMARK, and (ii) in the country within which VAR
deploys the Product(s).
"SOLUTION" means the combination of the Application and a Product(s).
"STANDARD MAINTENANCE SUPPORT" means the VMARK Standard Maintenance
Support program which provides telephone coverage from 8 AM through 5 PM
local time, Monday through Friday.
"VALUE ADD" is the Application software which substantially uses
features and capabilities of VMARK Product(s).
Now, therefore, VMARK and VAR agree as follows:
1. Territory
VMARK grants VAR the right to distribute Product(s) in the United States
of America and the District of Columbia under the terms and conditions
set forth herein including all schedules attached hereto and by this
reference made part hereof.
2. Term
This Agreement shall continue in effect three years from the date set
forth and shall continue thereunder unless terminated by either party
upon 90 day written notice of such termination to the other subject to
compliance by VAR and VMARK with all the terms and conditions set forth
in this Agreement including all the Schedules and addenda hereto, unless
sooner terminated as provided herein.
3. Product(s)
The software products covered by this agreement are those set forth in
the attached Product Register addendum 1, herein referred to as
"Product(s)". VMARK may add or delete versions or change prices of
Product(s) upon seventy-five (75) days notice to VAR.
4. License
4.1 VMARK hereby grants to VAR a non-exclusive license to
demonstrate, market, promote and copy, for backup purposes only,
Product(s) and to sublicense Product(s) to end users solely in
conjunction with Application on systems designated in the
Sublicense Agreement.
4.2 Each Product(s) license purchased hereunder may be sublicensed
only one time by VAR, otherwise said license is non-transferable.
4.3 Upon execution of this Agreement, payment of the license fee and
completion of the training as set forth in the attached Initial
Order Package, addendum 2, VAR shall have the right to use and
demonstrate Product(s) on a designated system.
Upon payment by VAR of the fee for temporary demonstration
licenses set forth in VMARK's then prevailing Price List, VMARK
shall, upon written request from VAR provide a temporary
demonstration copy of Product(s) under the license provisions of
this Agreement. However, the license for such temporary
demonstration copy of Product(s) shall expire sixty (60) days
after shipment by VMARK.
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5. VAR OBLIGATIONS
5.1 VAR agrees in all cases that Product(s) will be licensed in
conjunction with VAR's Application.
5.2 VAR may never distribute Product(s) on a stand alone basis.
VAR may only distribute Product(s) with its Application.
5.3 VAR shall promptly notify VMARK of any actual or suspected
unauthorized use of disclosure of the Confidential information
received from VMARK, and shall provide reasonable assistance for
VMARK (at VMARK expense) in the investigation and prosecution of
unauthorized use or disclosure.
5.4 VAR shall train and maintain a sufficient number of capable
technical and sales personnel as VMARK reasonably deems
necessary and appropriate for VAR to carry out its obligations
and responsibilities under this contract.
5.5 VAR shall use its best efforts to actively market the
Product(s).
6. SUBLICENSES
6.1 VAR may provide and sublicense Product(s) to end users, but
only pursuant to a non-exclusive, non-transferable sublicense
agreement in a form approved by VMARK. The current approved
sublicense agreement form is attached as Schedule 2, and may be
changed from time to time by mutual agreement between VMARK
and VAR.
6.2 VAR shall provide to VMARK, upon written request, a copy of all
sublicense agreements with an end user granted by VAR hereunder
on or before the fifteenth (15th) day of the month following
receipt by VAR of such written request.
6.3 VAR must secure a new sublicense from end use for any upgrade
version of Product(s), such as increasing the number of users
supported by Product(s) or replacing the Central Processing Unit
on which Product(s) is originally licensed for use.
7. ORDERING
7.1 During the item hereof VAR orders for Product(s) shall be
submitted to VMARK by written purchase order on a form
acceptable to VMARK pursuant to the terms hereof and VMARK
shall notify VAR via telephone or Facsimile within twenty (20)
business days of a rejection of an order. VMARK may refuse
to accept any purchase order(s) if VAR is in breach of this
Agreement including the Schedule and addenda hereto. All
purchase orders submitted to VMARK by VAR must specify that
they are subject to the terms and conditions of this Agreement;
all other terms and conditions of such purchase order shall
have no force or effect. No orders shall be binding upon VMARK
until acceptance by VMARK.
7.2 If at any time subsequent to VMARK's acceptance of the VAR's
purchase order and prior to delivery, the VAR is in default
of any provision of this Agreement or schedule and addendum
hereto, VMARK's acceptance of any purchase order shall be
deemed to be vacated and the purchase order shall be cancelled.
7.3 In all situations, VAR may only license VMARK Product(s) with
VALUE ADD. When requested by VMARK in writing, VAR must
demonstrate the licensing or sale of such VALUE ADD to
end-licenses by VAR at the time of the sale of VMARK Product(s).
If such VALUE ADD cannot be demonstrated to VMARK's reasonable
satisfaction within three business days of receipt of written
request, VAR will be considered in breach of the Agreement and
this Agreement will be terminated in accordance with
Section 23.1a.
8. SHIPMENT
VAR shall pay all shipping charges. Unless otherwise agreed, costs
of shipment will be prepaid by VMARK for the VAR, in the absence of
shipping instructions, VMARK will select a common carrier on behalf
of the VAR.
9. TITLE
Title to and ownership of all proprietary rights in Product(s) and all
related proprietary information shall at all times remain with VMARK.
10. COPYRIGHT AND TRADE SECRET NOTICE AND LEGENDS
10.1 VAR shall reproduce on any copies including partial copies of
Product(s) and related material the notice or legend which they
contained when received by VAR. VAR must notify VMARK of the
absence of such notice or legend upon receipt by VAR. VMARK
will instruct VAR on the appropriate notice that VAR should
place on all material objects embodying partial or complete
copies of Product(s) and related material.
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10.2 Each copyright notice shall be reproduced in human-readable form
on the media containers, tapes or other tangible manifestations
in which Product(s) are produced under this Agreement and in
machine readable form embedded in the object code of Product(s)
such that the notice is displayed on the terminal when
Product(s) are first logged on. Such copyright notice shall not
be construed as an admission of or presumption that publication
has occurred.
11. LICENSE FEE
VAR shall pay to VMARK for each copy of Product(s) ordered and shipped
the appropriate license fee set forth in VMARK's then prevailing Price
List less a discount as set forth in the attached Product Discount
Schedule, addendum 3.
11.1 Upon signing of this Agreement, VAR shall pay to VMARK the
amount shown on the Initial Order Package, addendum 2.
12. PAYMENT TERMS
12.1 License fees and other charges payable by VAR to VMARK under
this Agreement are payable net of all taxes, tariffs and other
governmental charges, except taxes based on VMARK's net income,
and if VMARK is required to pay any such tax, tariff or other
charge based on the license granted or services performed under
this Agreement, then such taxes, tariffs or other charges shall
be billed to VAR and payable upon invoice.
12.2 License fees shall be payable in U.S. dollars. All other
payments due hereunder shall be paid in U.S. dollars and as
specified herein. If no payment term is specified, such payments
shall be due within 30 days from date of invoice. Any amount not
paid when due may be subject to a late payment charge at the
rate of 1.5% per month or the maximum rate permitted by law,
whichever is less until such payment is made.
13. WARRANTY
13.1 VMARK warrants that Product(s), when shipped, will conform to
its then current published specification for Product(s). In the
event that Product(s) does not so conform and VAR notifies
VMARK in writing within ninety (90) days from the date of
shipment, then VMARK shall at its option, either correct the
defect or replace Product(s) with a conforming copy.
13.2 EXCEPT FOR THE WARRANTIES SET FORTH HEREIN IN THIS PARAGRAPH 13
ABOVE, VMARK DISCLAIMS ALL WARRANTIES WITH REGARD TO Product(s),
INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE; and the stated express written
warranties are in lieu of all obligations or liabilities on the
part of VMARK for damages, including but not limited to special,
indirect or consequential damages arising out of or in
connection with the use or performance thereof.
14. MAINTENANCE SUPPORT AND SERVICES
14.1 VMARK shall make Maintenance Support and Services available to
VAR and/or to licensees of Product(s) sublicensed by VAR. Such
Maintenance Services shall be provided by VMARK at VMARK's then
prevailing prices, terms and conditions, as defined in Schedule
14 attached to this Agreement, and by this reference
incorporated herein.
14.2 For Product(s) used internally by VAR in accordance with the
terms and conditions of the Agreement, VAR shall purchase from
VMARK Standard Maintenance Support.
14.3 Maintenance Support fees are paid on annual basis at the price
set forth in the then current Price List less a discount as set
forth in Schedule 14.
15. INFRINGEMENT INDEMNIFICATION
15.1 VMARK shall defend any claim, suit or proceeding brought against
VAR so far as it is based on a claim that the use or transfer of
Product(s) and related material delivered hereunder constitutes
an infringement of a United States patent or copyright, so long
as VMARK is notified promptly in writing by VAR as to any such
action and is given full authority, information and assistance
at (VMARK's expense) for the defense of any such claim or
proceeding, VMARK shall pay all damages and costs awarded
therein against VAR but shall not be responsible for any
compromise made without its consent. In the event of a final
judgment which prohibits VARs continued use of Product(s) by
reason of infringement of a United States patent or copyright,
or if at any time VMARK is of the opinion that Product(s) is
likely to become the cause of an action for infringement of a
United States patent or copyright, VMARK shall, at its sole
option and at its expense, either obtain the rights to continued
use of Product(s) or replace or modify Product(s) so that it is
no longer infringing.
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15.2 VAR shall indemnify and hold harmless VMARK from any loss, cost,
or expense suffered or incurred in connection with any claim,
suit or proceeding brought against VMARK so far as it is based
on a claim that Product(s) modified, altered or combined by VAR
with any equipment, device or software not supplied by VMARK
hereunder constitutes such an infringement because of such
modification, alteration or combination.
16. USE OF VMARK'S NAME
16.1 VMARK expressly prohibits any direct or indirect use, reference
to, or other employment of its name, trademarks or trade names
or of any name, trademark or trade name exclusively licensed to
VMARK, except in this Agreement.
16.2 All VAR advertising and other promotional material for
Product(s) shall identify VMARK and will be submitted to VMARK
for approval prior to release by VAR. VMARK acknowledges that
its consent may not be unreasonably withheld.
16.3 VMARK hereby authorizes VAR's use of the legend VMARK AUTHORIZED
VAR. If utilized by VAR, said legend shall appear in conjunction
with, and after, VAR's name and shall not be more prominent than
VAR's name. VAR shall submit to VMARK the full particulars as to
any requested use of the authorized legend in any manner and
shall not utilize the same unless and until VMARK's written
approval is obtained.
16.4 Upon termination of this Agreement, VAR shall discontinue the
use of such legend in any manner and thereafter shall not use,
either directly or indirectly, such legend or any similar
legend, the use of which might confuse or deceive the public
and/or potential VARs.
16.5 VMARK agrees that the Product(s) identified on the then
prevailing Price List and/or on the Product Register and the
name VMARK are owned by VMARK, and VAR shall upon request from
VMARK and at VMARK's cost and expense, assist VMARK in taking
appropriate steps to protect its rights in said names.
16.6 VMARK grants VAR right to use, in unaltered form and strictly in
accordance with VMARK's then current Corporate Graphic Standard
Manual, the VMARK trademarks, service marks or marketing logos
solely to promote the Product(s).
17. MARKETING SUPPORT
VMARK shall have the right to participate with VAR in user meetings,
advertisement and newsletters primarily concerning Product(s).
18. DOCUMENTATION
VMARK will provide VAR with an initial complement of sales literature
at no additional charge to VAR. VMARK shall also provide one (1) set of
system manuals with the initial version of Product(s) licensed by VAR.
VAR may purchase additional manual(s) at VMARK's then prevailing prices
for such manual(s).
19. EXCUSABLE DELAYS
VMARK shall not be liable for any loss, damage or penalty for delay in
delivery or for failure to give notice of delay when such delay is due
to causes beyond the reasonable control of VMARK, such as, but not
limited to, acts of God, fire or explosions, war or civil disturbances,
labor disturbances, delays in transportation or unreasonable delay in
delivery by VMARK's vendors. The time for performance hereunder shall
be extended by a period of time equal to the time lost because of any
such delay.
20. RELATIONSHIP OF PARTIES
20.1 VAR acknowledges that both parties hereto are independent
contractors and that VAR will solicit orders for Product(s)
only as an independent contractor. VAR shall in no way represent
itself as a partner, joint-venture, agent, employee or general
representative of VMARK. VAR acknowledges that its only
authorized representation to third parties is to identify itself
as a VMARK AUTHORIZED VAR. VAR further acknowledges that it
shall have no right, power or authority to in any way obligate
VMARK to any contract, term or condition.
20.2 VAR agrees to indemnify and hold VMARK free and harmless from
any and all claims, damages and expenses of every kind and
nature, including reasonable attorneys fees, arising from acts
of commission or omission by VAR in relation to licenses sold
by VAR under this Agreement.
21. SOLICITATION OF EMPLOYEES
Neither VMARK nor VAR shall solicit the services of employees of the
other during the term of this Agreement.
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22. Assignment
This Agreement is personal to VAR and the Agreement, or any part
thereof, may not be transferred or assigned by VAR without the prior
written consent of VMARK.
23. Termination
23.1 Unless terminated pursuant to Paragraph 2, this Agreement shall
remain in full force and effect except if terminated as follows:
a. If either party neglects or fails to perform, observe or cure
within thirty (30) days of written notice of such failure to
perform any of its existing or future obligations.
b. If VAR attempts to assign this Agreement or any of its rights
hereunder.
23.2 Termination of this Agreement shall not affect any of VAR's
pre-termination obligations hereunder and any such termination is
without prejudice to the enforcement of any undischarged
obligations existing at the time of termination.
23.3 In the event of termination of this Agreement, VAR shall have no
further right to use Product(s) or VMARK's trademarks and trade
names, and immediately after the termination date shall return to
VMARK all originals and copies of Product(s), including all
compilations, translations, and partial copies, whether or not
modified or merged into other software or documentation. VAR shall
certify in writing within ten (10) days following termination that
it has complied with this paragraph. VAR acknowledges that it
shall not be entitled to any compensation by reason of allegedly
having contributed to VMARK's goodwill during the term of this
Agreement.
23.4 All licenses granted by VMARK to VAR under this Agreement shall
immediately terminate, but such termination shall not affect the
right of existing end user sublicensees granted by VAR to use
Product(s).
23.5 Sections 9 and 10 shall survive the termination or expiration of
this Agreement.
24. Notice
Unless otherwise agreed to by the parties, all written notices required
hereunder shall be made by either registered mail or certified mail,
return receipt requested and all written notices shall be addressed to
the attention of the party executing this Agreement or its successor.
25. General
25.1 Either party's lack of enforcement of any provision in this
Agreement in the event of a breach by the other shall not be
construed to be a waiver of any such provision and the
non-breaching party may elect to enforce any such provision in the
event of any repeated or continuing breach by the other.
25.2 A valid contract binding upon the parties hereto shall come into
being only upon execution of this Agreement by a duly authorized
agent, officer or representative of both parties.
25.3 This Agreement is the exclusive statement of the entire agreement
between VMARK and VAR and supersedes all prior oral or written
representations or agreements between the parties as to the
subject matter hereof. No change, termination or attempted waiver
of any of the provisions hereof shall be binding unless in writing
and signed by the party against whom the same is sought to be
enforced.
25.4 The parties hereto agree that the terms and conditions contained
herein shall prevail notwithstanding any variations on any orders
submitted by VAR.
25.5 This Agreement shall be governed by, subject to and construed in
accordance with the laws of the Commonwealth of Massachusetts.
25.6 The particular provisions of this Agreement shall be deemed
confidential in nature and neither VAR nor VMARK shall divulge any
of its provisions as set forth herein to any third parties except
as may be required by law.
25.7 VAR understands that VMARK is subject to regulation by agencies of
the U.S. Government, including the U.S. Department of Commerce,
which prohibit export or diversion of VMARK products to certain
countries, and agrees it will not knowingly assist or participate
in any such diversion or other violation of applicable U.S. laws
and regulations. VAR warrants that it shall not license Product(s)
in countries or to users not approved to receive classified
technical equipment under applicable U.S. laws and regulations and
that it will abide by such laws and regulations. VAR shall hold
harmless and indemnify VMARK for any damages resulting to VMARK
from a breach of this paragraph by VAR.
VAR shall include in all sublicenses the name and location of the
end user.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument to be
effective as of the date first written above on the first page hereof.
VMARK SOFTWARE, INC. VAR: Data Works, Corp.
/s/ Alec Stern /s/ Rick Russo
- --------------------------- ------------------------------
By By
Alec Stern
- --------------------------- ------------------------------
Printed Name Printed Name
VP Indirect Sales VP Finance
- --------------------------- ------------------------------
Title Title
January 22, 1996 12-27-95
- --------------------------- ------------------------------
Date Date
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* CONFIDENTIAL TREATMENT REQUEST
SCHEDULE 14
VANTAGE MAINTENANCE SUPPORT AND SERVICES
Definitions
"VANTAGE SERVICE PROVIDER" is a relationship agreed-to between VAR and
VMARK, as elected below, consisting of certain terms and conditions as
contained herein.
"VANTAGE RESELLER" is a relationship agreed-to between VAR and VMARK as
elected below, consisting of certain terms and conditions as contained
herein.
"LIST MAINTENANCE PRICE" is VMARK's then current, per end user and/or
per copy. Maintenance list price for a given license of Product as
shown in VMARK's then prevailing Price List.
"MAINTENANCE CHARGE" for a given license of Product is equal to the
LIST MAINTENANCE PRICE multiplied by the number of users and/or
number of copies associated with that license.
"TOTAL MAINTENANCE CHARGE" is the sum of the MAINTENANCE CHARGES for
all licenses of VMARK products sold by VAR under this VAR Agreement,
and any prior Agreement(s), between VAR and VMARK.
"COMMITMENT LEVEL" is that category of items and conditions specified
herein and elected by VAR under which VAR commits to act as a VMARK
VANTAGE SERVICE PROVIDER.
"LICENSE PERCENTAGE" is that percentage of all licenses of Product(s)
sold by VAR under this VAR Agreement, and any prior Agreement(s),
between VAR and VMARK deemed to be subject to MAINTENANCE CHARGES,
determined by and associated with each COMMITMENT LEVEL, and used
to calculate quarterly payments due to VMARK by VAR as a VANTAGE
SERVICE PROVIDER.
"VANTAGE PERCENTAGE" is that share of a MAINTENANCE CHARGE that is
payable to VMARK by VAR, determined by and associated with each
COMMITMENT LEVEL, and used to calculate quarterly payments due to
VMARK by VAR as a VANTAGE SERVICE PROVIDER.
"QUARTERLY MINIMUM" is that minimum dollar amount, which VAR is
obligated to pay each calendar quarter to VMARK as a VANTAGE SERVICE
PROVIDER which is determined by and associated with each COMMITMENT
LEVEL.
"PRODUCT SUBLICENSE COMMITMENT" is that minimum dollar amount,
determined by COMMITMENT LEVEL, which is paid to VMARK by VAR for all
licenses of Product(s) in each product category (Database,
Connectivity, and Tools) as defined in Addendum 1 made under this
VAR Agreement, between VAR and VMARK during each twelve-month period
beginning with the Effective Date, and each anniversary thereof.
License revenue for products in one product category do not apply to
COMMITMENT LEVEL of other product categories.
"FIRST LINE MAINTENANCE SUPPORT" is the level of maintenance support
described in the then prevailing Valued Partner Handbook of this
Agreement between VAR and VMARK provided directly to the end user
in execution of a Maintenance Agreement with the end user.
"SECOND LINE MAINTENANCE SUPPORT" is the level of maintenance support
described in the then prevailing Value Partner Handbook of this VAR
Agreement between VAR and VMARK provided by VMARK to VAR should VAR
elect herein to assume FIRST LINE SUPPORT duties to end-VAR's.
"IN GOOD STANDING" is a consistent positive payment record with
respect to VMARK's then prevailing payment plan.
VANTAGE MAINTENANCE SUPPORT OPTIONS
VAR shall elect, as of the effective date of this Agreement, the form of
Vantage Maintenance Support from VMARK that shall be provided to VAR. VAR
elects either VANTAGE SERVICE PROVIDER, or VANTAGE RESELLER, but not both,
of these two options set forth below.
VAR elects to become a _________*____________ or all sublicenses of Product(s)
identified in attached Product Register, addendum 1.
A. Vantage Service provider Terms and Conditions
1. Definition
As a VANTAGE SERVICE PROVIDER, VAR directly provides FIRST LINE
MAINTENANCE SUPPORT for each Product(s) sublicensed by VAR. VMARK
provides SECOND LINE MAINTENANCE SUPPORT to VAR only.
As a VANTAGE SERVICE PROVIDER, VAR may request, and VMARK will
provide, service and/or maintenance support which require greater
expertise and knowledge of VMARK Product(s) than VAR is trained
or certified to provide. Such service will be provided by VMARK
at VMARK's then current prices, terms and conditions.
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*CONFIDENTIAL TREATMENT REQUESTED
2. VANTAGE SERVICE PROVIDER CRITERIA
In order to qualify as a VANTAGE SERVICE PROVIDER, VAR must, on an
annual basis, demonstrate sufficient business with VMARK to meet the
following criteria:
- PRODUCT SUBLICENSE COMMITMENT for the elected COMMITMENT LEVEL
- Possess a maintenance support infrastructure as described in the then
prevailing Partner Handbook.
- VAR Support Engineers shall be certified for each Product(s) by VMARK
at all times for the term of the Agreement.
- VAR's account must remain in GOOD STANDING with VMARK.
- VAR cannot sell maintenance support for any Product(s) that VAR did
not originally sublicense.
3. VANTAGE SERVICE PROVIDER COMMITMENT LEVEL
a. As a VANTAGE SERVICE PROVIDER, VAR shall elect one and only one
COMMITMENT LEVEL, with accompanying terms and conditions, of the
following set out below:
VANTAGE PROVIDER COMMITMENT LEVELS
PRODUCT
SUBLICENSE VANTAGE QUARTERLY LICENSE
INITIAL COMMITMENT PERCENTAGE MINIMUM PERCENTAGE
* $200,000-$399,999 50% $ 5,000 85%
* $400,000-$599,999 45% $ 7,500 85%
* $600,000-$799,999 40% $10,000 90%
* $800,000 or > 30% $17,500 90%
b. As a VANTAGE SERVICE PROVIDER, VAR's COMMITMENT LEVEL and
accompanying criteria, shall be reviewed each year. If VAR fails to
meet any of the above criteria appropriate to the VAR's COMMITMENT
LEVEL, VMARK may provide written notice, effective upon receipt by
VAR, that VAR shall be treated under the terms and conditions of a
different COMMITMENT LEVEL or shall be required to select VANTAGE
RESELLER terms and conditions.
c. Upon each anniversary of the Effective Date of this Agreement, VAR
may elect to change its VANTAGE SERVICE PROVIDER COMMITMENT LEVEL or
change to a VANTAGE RESELLER status. Such election may only be done
by 90 days written notice from VAR to VMARK. If VAR elects to change
to a VANTAGE RESELLER status, the terms and conditions and payments
to VMARK for all Product licenses sold prior to the effective date
of change shall be those in effect for the VANTAGE SERVICE PROVIDER
COMMITMENT LEVEL prior to the elected status change.
d. VANTAGE SERVICE PROVIDERS will provide 1st level support to their end
users as described in the then prevailing Valued Partner Handbook.
VANTAGE SERVICE PROVIDERS will request 2nd level support from VMARK
only after all reasonable efforts to resolve customer problems in a
timely manner have been exhausted. In the event that on-site support
by VMARK is a result of VANTAGE SERVICE PROVIDERS actions, then
VANTAGE SERVICE PROVIDER will be responsible for all expenses
incurred by VMARK.
4. VANTAGE SERVICE PROVIDER PAYMENTS
VMARK, at the beginning of each quarter, shall invoice VAR for the
greater of either:
a. The QUARTERLY MINIMUM appropriate to the COMMITMENT LEVEL as
elected by VAR herein, or
b. The result of the following calculation:
Quarterly VMARK Charge = (VANTAGE PERCENTAGE times LICENSE
PERCENTAGE times TOTAL MAINTENANCE CHARGE) divided by 4
The first Quarterly VMARK Charge shall be invoiced upon the Effective
Date of this Agreement and shall be prorated based upon the number of
days remaining within VMARK's business quarter as a percentage of a
ninety (90) day quarter. Payments are due and payable within thirty
(30) days after invoice date.
B. VANTAGE RESELLER
As a VANTAGE RESELLER, for each Maintenance Agreement with the sub-
license VAR procures for VMARK for Product(s) licensed by VAR, VMARK
shall credit to the VAR's account a sales commission equal to the
following percentages of the MAINTENANCE CHARGE, net of any discounts,
e.g., for multi-year contracts, prepayments, etc., paid to VMARK:
- 1st year *
- 2nd year *
- 3rd year *
To qualify for these commissions, VAR must procure the Maintenance
Agreement with the sub-licensee at point of sale of license. Such
commission credits shall be made by VMARK to VAR each quarter for
MAINTENANCE CHARGE payments made by VAR's sub-licensee(s) to VMARK
during the prior quarter. Commission credits will be made to VAR
within forty-five (45) days following the end of each quarter in which
VMARK receives payment.
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[LOGO]
ADDENDUM 1
PRODUCT REGISTER
This Addendum is entered into and becomes effective 12-27-95 by and between
VMARK Software, Inc. ("VMARK"), a Delaware Corporation with its principal place
of business at 50 Washington Street, Westboro, MA 01581, and Dataworks Corp.
("VAR") with its principle place of business at 5910 Pacific Center Blvd., San
Diego, CA 92121.
Whereas, VMARK and VAR entered into a Value Added Reseller Agreement dated
12-27, 1995.
VAR shall have the right to sublicense the following products initialed below:
DATABASE
(r) X uniVerse
__
(r) X uniVerse NT/Server Edition*
__
(r) X uniVerse for NT/Workgroup Edition*
__
(r) X uniVerse for SCO
__
__ uniVerse for UnixWare
(r) X interCALL*
__
(r) X uV/NET II*
__
__ uV/SQL Client Option*
__ SequeLink Server*
(r) X Client/Server DBMS uniVerse/ODBC*
--
__ CompuSheet+ for uniVerse*
__ JET for uniVerse*
__ uniVerse SIMPLE*
CONNECTIVITY
__ HyperSTAR Server for Prime INFORMATION
(r) X HyperSTAR Server for PI/Open
__
(r) X HyperSTAR Server for uniVerse
__
__ HyperSTAR Server for Oracle
__ HyperSTAR Server for Informix
__ HyperSTAR Server for Sybase
__ HyperSTAR Server for Ingres
__ HyperSTAR Server for DB2
__ Star/View Standard Edition
__ Star/View Professional Edition
__ HyperSTAR Developer Package/Windows
__ HyperSTAR Developer Package/UNIX
TOOLS
__ TERMITE*
*Vantage Percentage for these products is 100%.
Addendum 1 1
Value Added Reseller Agreement
10
[ SOFTWARE LOGO] * CONFIDENTIAL TREATMENT REQUESTED
ADDENDUM 2
INITIAL ORDER PACKAGE FOR A VAR
This order is issued in accordance with the terms and conditions of the
Agreement between VMARK Software, Inc. and Data Works Corp. dated 12-27-95. The
VMARK Product(s) purchased hereunder are for internal use only, not for resale,
life of agreement licenses.
I. DATABASE
Partner Price Extended
Lin. Price Partner Extended Annual Annual
VAR Product Price Partner Standard Standard
Initials Qty. Product License Price Maintenance Maintenance
- -------- ---- ------- ---------- ------- ------- ------------- -----------
[unreadable] [unreadable]
_____ 2 16-user UniVerse License $6,960.00 * * $672.00 $ Note 1
CPU ____________________
_____ 1 16-user ???Verse for NT/Server Edition $6,960.00 * * $672.00 $ Note 1
CPU ____________________
____ 1 16-user ????CALL License [unreadable] $2,064.00 * * $218.00 $ ________
____ 1 16-user ??V/NET $1,840.00 * * $193.00 $ Note 1
____ 1 1 user copy a V/SQL Client $ 215.00 * * $ 23.00 $ ________
____ 1 2-user copy SequeLink Server $ 1628.00 * * $171.00 $ ________
____ 1 16-user client/server (or uniVerse/ODBC) $ 3360.00 * * $412.00 $ ________
____ 1 4-user copy CompuSheet+ for uniVerse $ 495.00 * * N/C
____ 1 10-user copy JET for uniVerse $ 795.00 * * N/C
____ 1 4-user copy uniVerse SIMPLE $ 700.00 * * $ 74.00 $ ________
____ Up to 4, 2-user life of agreement $ 120.00 (per CPU) * * $ 84.00 (per CPU) $ ________
demo licenses for uniVerse
CPU ____________ CPU ______________
CPU ____________ CPU ______________
____ 40 Up to 4, 2-user life of agreement $ 120.00 (per CPU) $6.00 per CPU * $ 84.00 (per CPU) $ Note 2
demo licenses for NT
CPU ____________ CPU ______________
CPU ____________ CPU ______________
Totals for Database products and Maintenance * $ _______
VAR Note 3 Time Units # of Employees Amt to
Initials Qty. Required Personnel Certification Courses Required Attending be Paid
- -------- ---- --------------------------------------------- ---------- -------------- --------
____ 1 Salesperson: Intro to PRDBMS 2 days = $990 x ___ (Min. 1) $ __________
____ 1 Developer: Intro to PRDBMS 2 days = $990 x ___ (Min. 1) $ __________
uniVerse DB Query 3 days = $1295 x ___ (Min. 1) $ __________
uniVerse/SQL 3 days = $1295 x ___ (Min. 1) $ __________
uniVerse SYS Admin 3 days = $1295 x ___ (Min. 1) $ __________
(This training is required for VAR employees and is available at open enrollment
VMARK education sties. All T&L to be paid by VAR.)
Total Database Training $ __________
II. CONNECTIVITY
List Price Partner Price
VAR Hyper STAR MyperSTAR
Initials Qty. Product/Training Package Package
- -------- ---- ---------------- ---------- -------------
____ 1 8-user HyperSTAR Server license for a database $27,000.00 *
CPU _________________________________ (plus T&L) *
Database ____________________________ *
2 HyperSTAR Developer Package/Windows *
1 Single-user HyperSTAR Developer Package/UNIX *
1 One-year standard maintenance *
/ / Up to 4, 4-user life of agreement demo licenses for HyperSTAR *
CPU ____________ CPU ______________ *
CPU ____________ CPU ______________ *
1 HyperSTAR consulting package to increase HyperSTAR to VAR application,
and provide installation and troubleshooting consultation, ODBC and
API technical training. Total of 10-days, on-site. T&L to be paid
by VMARK. *
Total HyperSTAR $
------------
Addendum 2
Value Added Reseller Agreement 1
Note 1: Vantage Provider Maintenance Percentage
Note 2: No Maintenance Charge - Dataworks will take first call.
Note 3: Dataworks does not need any uniVerse Training.
uniVerse Training has been conducted under separate contract.
11
* CONFIDENTIAL TREATMENT REQUESTED
III. TOOLS
List Price Annual
VAR Product Former Standard
Initials Qty. Product License Price Maintenance
- -------- ---- ------- ----------- ------- ------------
___ 1 1-User copy Enhanced CoSTAR license $ 230.00 * N/C
Totals for CoSTAR Products *
VAR Time Units # of Employees Amt. to
Initials Qty. Required Personnel Certification Courses Required Attending be Paid
- -------- ---- ---------------------------------------- ---------- -------------- -------
____ 1 Salesperson: Intro to CoSTAR 1 = $495 x ___ (Min. 1) $_______
____ 1 Developer: Intro to CoSTAR 1 = $495 x ___ (Min. 1) $_______
GUI Applications 1 = $495 x ___ (Min. 1) $_______
(This training is required for VAR employees
and is available at open enrollment VMARK
eduction sites. All T&L to be paid by VAR.)
Total CoSTAR Training $_______
___ 1 Valued Partner Handbook I $ N/C
___ 1 Valued Partner Handbook II $ N/C
(a) Enter subtotal of all "Product Licenses" *
(b) Enter subtotal of all "Standard Maintenance" *
(c) Enter HyperSTAR Package, if applicable *
(d) Enter subtotal of all "Training" $________ less 20% discount*
TOTAL (a) through (d) as Initial Order Package Fee *
Initial Order Package Fee of $ * is payable upon contract execution by the
VAR.
Subject to prior written credit approval by VMARK; license fees and other
charges are payable as provided for in Section 11. Payment Terms of the
Agreement. Shipping charges are the responsibility of the VAR and will be added
to VAR invoice for the Initial Order.
Requested shipping date for Licenses and Documentation ASAP
----------------
Purchase Order Number ____________________
THE FOREGOING ORDER IS ACCEPTED.
VAR: VMARK Software, Inc.
Dataworks Corp.
- ----------------------------- -------------------------------------
Company Name Company Name
Rick Russo Alec Stern
- ----------------------------- -------------------------------------
Name (Printed) Name (Printed)
/s/ Rick Russo /s/ Alec Stern
- ----------------------------- -------------------------------------
Signature Signature
12-27-95 January 22, 1996
- ----------------------------- -------------------------------------
Date Date
2
12
* CONFIDENTIAL TREATMENT REQUIRED
SOFTWARE
ADDENDUM 3
VMARK PROGRAM DISCOUNT SCHEDULE
VAR shall elect, as of the Effective Date of this Agreement, the discount from
VMARK that shall be provided to VAR. VAR elects either one Standard Product
Discount level or Annual Minimum Commitment, but not both, of these two options
set forth below.
ANNUAL MIN. SCHEDULED
STANDARD PRODUCT PRODUCT CONSULTING EDUCATIONAL
PRODUCT DISCOUNT DISCOUNT LICENSE SERVICES TRAINING
LEVEL CLASS I CLASS II REVENUE DISCOUNT DISCOUNT
Premier Reseller * * * * *
Reseller * * * * *
SCHEDULED
ANNUAL PRODUCT CONSULTING EDUCATIONAL
MINIMUM DISCOUNT SERVICES TRAINING
COMMITMENT CLASS I* CLASS II QRTYL. MIN. DISCOUNT* DISCOUNT
$400,000-$599,999 * * * * *
$600,000-$799,999 * * * * *
$800,000+ * * * * *
* Discount off single-user list price as set forth in prevailing Price List at
time of order.
VAR hereby elects the following discount level initialed below:
* Standard Discount - Premier Reseller
* Standard Discount - Reseller
* Annual Minimum Commitment of *
VAR level shall be reviewed each year. If VAR fails to meet the above criteria
appropriate to the VAR level selected, VMARK shall provide written notice,
effective upon receipt by VAR, that VAR shall be treated under the terms and
conditions of a different VAR level.
The discount level selected above is in effect from 1/1/96 through to 12/3/96.
- --------------------------------------------------------------------------------
Addendum 3 1
13
Annual Minimum Commitment Terms and Conditions
1. The foregoing Annual Minimum Commitment chosen by VAR shall be for a
period of twelve months from the date of this Agreement and shall
continue for each twelve (12) month period thereafter during the term
of the Agreement unless modified by written notice from VAR to VMARK
sixty (60) days prior to the end of the twelve (12) month period and any
anniversary thereof.
2. At the end of any twelve (12) month minimum commitment period, should
VAR choose to eliminate the Annual Minimum Commitment for the following
twelve (12) month period, the discount received by VAR shall be VMARK'S
then prevailing discount then in effect for VAR license revenue level.
3. At the end of the first and subsequent twelve (12) month minimum
commitment period, should VAR choose an Annual Minimum Commitment
different from that in affect, then the discount received by VAR shall
be the appropriate discount set forth above based on such Minimum Annual
Commitment.
4. During any twelve (12) month minimum contract period VAR shall have the
right upon written notice and adjusted payment to VMARK to increase the
amount of the Annual Minimum Commitment and receive the appropriate
discount associated with the larger Annual Minimum Commitment. Such
increase shall be in effect for and begin a new twelve (12) month period
unless modified pursuant to the terms of this paragraph 4.
5. The appropriate discount shall be effective from the date of payment of
one fourth (1/4) of the new Annual Minimum Commitment.
6. During the twelve (12) month Annual Minimum Commitment period VAR shall
not have the right to reduce the Annual Minimum Commitment then in
affect.
7. One fourth (1/4) of the Annual Minimum Commitment shall be due and
payable upon election of the appropriate Annual Minimum Commitment with
subsequent one fourth (1/4) payments due each ninety (90) days
thereafter until such time as the then applicable Annual Minimum
Commitment is reached.
8. Any discounts due by VAR for licenses sold prior to the effective date
hereof shall remain due based on the discount in effect on the date of
such sale.
9. Discount and/or required Annual Minimum Commitment may be changed by
VMARK upon ninety (90) days prior written notice, effective at the end
of the then current 12 month period.
10. All license fees paid by VAR during the Annual Minimum Commitment period
shall be applied toward the Annual Minimum Commitment then in effect.
All other terms and conditions of the Agreement not modified herein shall
remain in full force and effect.
VAR: VMARK SOFTWARE:
Dataworks Corp.
- ------------------------------ ------------------------------------
Company Name Company Name
Rick Russo Alec Stern
- ------------------------------ -------------------------------------
Name (printed) Name (printed)
/s/ Rick Russo /s/ Alec Stern
- ------------------------------ -------------------------------------
Signature Signature
12-27-95 January 22, 1996
- ------------------------------ -------------------------------------
Date Date
2
14
* CONFIDENTIAL TREATMENT REQUESTED
VALUE ADDED RESELLER AGREEMENT AMENDMENT
This Amendment is entered into and becomes effective 12-27-95 by and between
VMARK Software, Inc. ("VMARK"), a Delaware Corporation with its principle place
of business at 50 Washington Street, Westboro, MA 01581 and the Value Added
Reseller DataWorks Corporation, ("VAR") with its principle place of business at
5910 Pacific Center Boulevard, Suite 300, San Diego, CA 92121.
WHEREAS, VMARK and VAR entered into a Value Added Reseller Agreement dated
12-27-1995 ("AGREEMENT"); and
WHEREAS, VMARK and VAR wish to amend said AGREEMENT.
NOW, THEREFORE, the parties agree as follows:
1. Replace section 6.3 with the following:
6.3 VAR must secure an EXHIBIT 1 to the sublicense form from the end user
for any upgrade version of Product(s), such as increasing the number of
users supported by Product(s) or replacing the Central Processing Unit
on which Product(s) is originally licensed for use.
2. Remove the following from paragraph 12; section 12.2:
12.2 Any amount not paid when due may be subject to a late payment charge at
the rate of 1.5% per month of the maximum rate permitted by law,
whichever is less until such payment is made.
3. Replace the SECOND LINE MAINTENANCE SUPPORT definition in Schedule 14 with
the following:
"SECOND LINE MAINTENANCE SUPPORT" is the level of maintenance support,
described in the then current Valued Partner Handbook, provided by VMARK
to VAR should VAR elect herein to assume FIRST LINE SUPPORT duties to
End User.
4. Replace the second paragraph in Schedule 14; section A with the following:
As a VANTAGE SERVICE PROVIDER, VAR may request, and VMARK will provide,
service and/or maintenance support which require greater expertise and
knowledge of VMARK Product(s) than VAR is trained or certified to
provide. Such service will be provided by VMARK at VMARK's then current
prices, terms and conditions. VAR agrees that VMARK may charge for other
services and/or programs that may exist or be announced from time to
time as long as such programs and/or services do not include items
included in SECOND LINE MAINTENANCE SUPPORT.
5. Replace section 3a on page 2 of Schedule 14 with the following:
As a VANTAGE SERVICE PROVIDER, VAR shall commit to the following
COMMITMENT LEVEL, with accompanying terms and conditions, from the
effective date of this agreement to no later than ********.
15
* CONFIDENTIAL TREATMENT REQUESTED
Quarter AMC Price per User Vantage/License Quarterly Minimum
Percentage
Q1 96 * * * *
Q2 96 * * * *
* VMARK is providing an * PRODUCT SUBLICENSE COMMITMENT
license price in good faith with the understanding that VAR will
potentially commit to COMMITMENT LEVEL * .
** VMARK has waived the * payment for * . However,
VAR shall be billed the TOTAL MAINTENANCE CHARGE with the VANTAGE
PERCENTAGE and LICENSE PERCENTAGE applied for * /AR shall be
billed the QUARTERLY MINIMUM every quarter, at the beginning of
each quarter, starting with * for all licenses sublicensed to
data.
The Q1 96 AMC payment shall be made to VMARK on or before * .
Subsequent quarters, the AMC will be invoiced to the VAR within the first week
of the first month of each new quarter and payable according to the terms of
this Agreement.
VAR shall notify VMARK in writing on or before * as to which of
the following COMMITMENT LEVEL VAR shall commit to for the remainder of this
agreement. *
COMMITMENT LEVEL OPTION 1: $800,000 Product Sublicense Commitment
Quarter AMC Price per User Vantage/License Quarterly Minimum
Percentage
Q3 96 * * * *
Q4 96
to
Q4 98 * * * *
COMMITMENT LEVEL OPTION 2: $600,000 Product Sublicense Commitment
Quarter AMC Price per User Vantage/License Quarterly Minimum
Percentage
Q3 96 * * * *
Q4 96
to
Q4 98 * * * *
COMMITMENT LEVEL OPTION 3: $400,000 Product Sublicense Commitment
Quarter AMC Price per User Vantage/License Quarterly Minimum
Percentage
Q3 96 * * * *
Q4 96
to
Q4 98 * * * *