1
EXHIBIT 10.22
IBM DEVELOPER AGREEMENT
STATEMENT OF WORK
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This Statement of Work ("SOW") is a Transaction Document issued under the IBM
Developer Agreement ("IDA") for you to provide a proof of concept for Obsydian
and Synon/2E inter/intranet enablement using a Java generator on the AS/400.
By signing below, each of us agrees that the complete agreement between us
regarding this transaction consists of this SOW Transaction Document and:
a) the IBM Developer Base Agreement (identified below);
b) Exhibit: Travel Expense Reimbursement ("TER"): and
c) Exhibit: Certificate of Originality ("COO").
The following are related agreements between you and IBM:
d) the Agreement for Exchange of Confidential Information ("AECI")
No. 92-0016; and
e) the IBM Purchase Order that references this SOW.
Agreed To: Agreed To:
Synon, Inc. International Business Machines
Corporation ("IBM")
By: /s/ PAUL K. WILDE By: /s/ C L ARNDT
--------------------------- ---------------------------
Authorized Signature Authorized Signature
Name: Paul K. Wilde Name: C L Arndt
-------------------------- -------------------------
Date: 12/20/96 Date: 12/20/96
-------------------------- -------------------------
IDA Base Agreement #: RAL-960509
SOW Transaction. Document #:RAL960509-
ROC01
Developer Address: IBM Office Address:
Synon Inc. IBM Corporation
1100 Larkspur Landing Circle 3605 Highway 52 North
Larkspur CA 94939 Rochester MN 55901-7829
After signing, please return a copy of this SOW to the local "IBM Office
Address" shown above.
Page 1 of 5
SOW00A dated September 30, 1994 IDA Base Agreement # RAL-960509
Dated December 13, 1996
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IBM DEVELOPER AGREEMENT
STATEMENT OF WORK
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TABLE 0F CONTENTS
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PART TITLE PAGE PART TITLE PAGE
- ------------------------------------------------------- -----------------------------------------------
1 DEFINITIONS 2 6 SCHEDULE 4
2 IBM'S RESPONSIBILITIES 2 7 INTELLECTUAL PROPERTY 4
3 YOUR RESPONSIBILITIES 2 8 PAYMENT 4
4 DELIVERABLES 3 9 COORDINATORS 5
5 ACCEPTANCE 4
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PART 1 DEFINITIONS
1.1 JAVA means an object-oriented language designed to support cross-
platform application development.
PART 2 IBM'S RESPONSIBILITIES
2.1 IBM will:
a) review for approval the White Paper and Development Plan for
functional content;
b) participate in scheduled checkpoints as per the agreed upon
Development Plan; and
c) provide AS/400 technical assistance to you, where agreed upon
by the Technical Coordinators.
PART 3 YOUR RESPONSIBILITIES
3.1 You will not begin work under this SOW until IBM Contract Coordinator
has issued you a purchase order.
3.2 You will prepare or provide the Deliverables identified in the Part
entitled Deliverables.
3.3 You will:
a) provide an early proof of concept for Obsydian and Synon/2E
inter/intranet enablement using a Java generator on the
AS/400. This proof of concept will include:
1) a White Paper (Deliverable No. 1) which will document
the Obsydian and Synon/2E inter/intranet and Java
directions and high-level functionality on the AS/400.
You agree that the IBM contract coordinator must
approve any public release or dissemination of the
White Paper or any Derivative Works so as to avoid any
release of any IBM Confidential Information otherwise
protected under AECI #92-0016.;
2) a Development Plan (Deliverable No. 2) which will
include the necessary staffing, schedules and
checkpoints for implementing the functions described in
the White Paper;
3) a functional alpha-level demonstration (Deliverable
Nos. 3, 4, 5, and 6);
4) a Final Report (Deliverable No. 7) supplying IBM
feedback to understand implementation of Java
technology and where IBM can provide additional
features and functions to improve the implementation of
Java technology, and prioritizing prerequisite system
functions and features, such as: AS/400 Java execution
environment, AS/400 web-serving requirements, and
AS/400 development tool requirements. You agree that
all such feedback shall be owned by IBM and shall be
considered and treated as IBM Confidential Information
pursuant to AECT #92-0016.
[ ]*
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SOW00A dated September 30, 1994 IDA Base Agreement # RAL-960509
Dated December 13, 1996
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions have been filed separately with the Commission.
3
c) conduct a minimum of alpha-level demonstrations at
times and events mutually agreed upon by the Technical
Coordinators.
d) attend checkpoint meetings as per the agreed upon
Development Plan either in person or via
teleconference.
e) deliver and install the final documented alpha-level
code to IBM.
IBM will reimburse your travel expenses incurred while
performing these activities according to the Exhibit: Travel
Expense Reimbursement.
PART 4 DELIVERABLES
[ ]*
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Commission.
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SOW00A dated September 30, 1994 IDA Base Agreement # RAL-960509
Dated December 13, 1996
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[ ]*
PART 5 ACCEPTANCE
In order to qualify for acceptance, you must provide each Deliverable according
to the criteria defined below and other requirements of the SOW.
5.1 IBM will accept or reject each Deliverable within 10 business days from
IBM's receipt of the Deliverable. If IBM does not accept or reject a
Deliverable in writing within 10 business days of receipt, that
Deliverable will be considered rejected by IBM.
5.2 Final acceptance criteria for Deliverable Nos. 3, 4, 5, 6 and 7 will be
based on your demonstration to IBM of how each Deliverable functions
relative to the mutually agreed upon Development Plan (Deliverable No.
2).
PART 6 SCHEDULE
[ ]*
PART 7 INTELLECTUAL PROPERTY
7.1 For Licensed Work Deliverable No. 1 you grant IBM a nonexclusive,
paid-up, irrevocable, worldwide copyright license to use, execute,
display, and perform the Licensed Work and its Derivative Works. This
license also applies to associated audio and visual works.
7.2 For Licensed Works Deliverable No. 4, 5, and 6 you grant IBM a
nonexclusive, paid-up, irrevocable, worldwide copyright license to use,
execute, display, and perform for internal evaluation and internal and
external demonstration purposes the Licensed Work and its Derivative
Works. This license also applies to associated audio and visual works.
PART 8 PAYMENT
8.1 For the Deliverables identified above, IBM will pay the fixed price
amounts listed below. You may invoice for the milestone when IBM
accepts the Deliverables.
[ ]*
8.2 For travel that has previously been authorized by IBM in writing, you
will be reimbursed for reasonable and actual costs according to the
Exhibit: Travel Expense Reimbursement.
8.3 You will submit your invoices to the following address:
International Business Machines Corporation
PO Box 9005
Endicott NY 13761-9006
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SOW00A dated September 30, 1994 IDA Base Agreement # RAL-960509
Dated December 13, 1996
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions have been filed separately with the
Commission.
5
Your invoices will include the following information:
a) IBM Developer Agreement Number;
b) this SOW Transaction Document Number;
c) name of your company and "remit to" address;
d) short description of the performance for which payment is due;
and
e) IBM's purchase order number, your invoice number and its date.
PART 9 COORDINATORS
9.1 The Contract Coordinators responsible to receive all notices and
administer this SOW are:
FOR IBM: For you:
Name: C L Arndt Name: Keith Jaeger
Title/Dept: Contracts Administrator Title/Dept: VP Development
Address: IBM Corporation Address: Synon, Inc
3605 Hwy 52 N 1100 Larkspur Landing Circle
Rochester MN 55901-7829 Larkspur, CA 94939
Phone: (507) 253-8776 Phone: (415) 461-5006
Facsimile: (507) 253-4825 Facsimile: (415) 461-2171
9.2 The Technical Coordinators responsible to accept all Deliverables,
coordinate all exchanges of confidential information and to administer
and coordinate the technical matters associated with this SOW are:
FOR IBM For you:
Name: Paul Nordlund Name: Alan Zwiren
Address: IBM Corporation Address: Synon, Inc
3605 Hwy 52 N 1100 Larkspur Landing Circle
Rochester MN 55901-7829 Larkspur CA 94939
Phone: (507) 253-5730 Phone: (415)461-5006
Facsimile: (507) 253-2768 Facsimile: (415)461-2171
Technical Coordinators may propose, accept (by signature or initials) and
implement technical changes to this SOW that do not change dollar amounts or
materially change Deliverables or the schedules of this SOW.
9.3 Notices are effective when received by the appropriate coordinator as
demand by reliable written confirmation (for example, certified mail
receipt, courier receipt or facsimile receipt confirmation sheet.)
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SOW00A dated September 30, 1994 IDA Base Agreement # RAL-960509
Dated December 13, 1996
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IBM DEVELOPER AGREEMENT
BASE AGREEMENT
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The IBM Developer Agreement ("IDA") consists of this Base Agreement and its
Transaction Documents. The IDA covers various transactions in which IBM may
involve you for:
a) providing Services;
b) developing IBM Materials; and
c) licensing other Deliverables.
A specific transaction will be defined by its own Transaction Document. Each
Transaction Document together with this Base Agreement forms a separate
agreement. The IDA is our complete agreement and replaces all prior oral, or
written communications between us regarding the transactions described in the
Transaction Documents.
By signing below for our companies, each of us agrees to the terms of this Base
Agreement. Once signed, 1) both parties agree any reproduction of the IDA made
by reliable means (for example, photocopy or facsimile) is an original unless
prohibited by local law and 2) all Deliverables and Services you provide are
subject to it.
Agreed To: Agreed To:
Synon, Inc. International Business Machines
Corporation ("IBM")
BY:/s/ PAUL K. WILDE By: /s/ C L ARNDT
-------------------------- -------------------------------
Authorized Signature Authorized Signature
Name: Paul K. Wilde Name: C L Arndt
------------------------ -----------------------------
Date:12/20/96 Date:12/20/96
-------- --------
IBM Developer Agreement #RAL-960509
Developer Address: IBM Office Address:
Synon Inc IBM Corporation
1100 Larkspur Landing Circle 3605 Highway 52 North
Larkspur CA 94939 Rochester MN 55901-7829
U.S.A. U.S.A.
After signing, please return a copy of this Base Agreement to the local "IBM
Office Address" shown above.
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IDA00A dated September 30, 1994 IBM Developer Agreement # RAL-960509
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IBM DEVELOPER AGREEMENT
BASE AGREEMENT
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TABLE OF CONTENTS
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PART TITLE PAGE PART TITLE PAGE
- ------------------------------------------------------- ------------------------------------------------------
1 DEFINITIONS 2 6 INDEMNIFICATION AND LIABILITY 5
2 AGREEMENT STRUCTURE 3 7 TERM AND TERMINATION 6
3 OUR RELATIONSHIP 3 8 INSURANCE 7
4 INTELLECTUAL PROPERTY 4 9 PAYMENT 7
5 WARRANTY 5 10 GENERAL 7
PART 1. DEFINITIONS
Capitalized terms in the IDA have the following meanings. A Transaction Document
may define additional terms. However, those terms apply only to that Transaction
Document.
1.l APPEARANCE DESIGN is the appearance presented by an object, formed in
hardware or by software, that creates a visual impression on an
observer. Appearance Design refers to ornamental and not the functional
aspects of the object.
1.2 BACKGROUND MATERIALS are items 1) in which the copyrights are owned by
a third party or 2) that you prepared or had prepared outside the scope
of the IDA. Background Materials are contained within a Deliverable.
For purposes of this Agreement # RAL-960509 and Statement of Work
#RAL-960509-ROC01, the Background Materials are Obsyidian and Synon/2E,
which you own.
1.3 DELIVERABLE is any item other than Tools, that you prepare or provide
under a Transaction Document.
1.4 DERIVATIVE WORK is a work that is based on an underlying work and that
would be a copyright infringement if prepared without the authorization
of the copyright owners of the underlying work. Derivative Works are
subject to the ownership rights and licenses of others in the
underlying work.
1.5 DISTRIBUTORS are those authorized by IBM and its Subsidiaries to
license and
distribute products.
1.6 IBM MATERIALS are Deliverables that IBM owns. The term "IBM Materials"
does not include Background Materials, Licensed Work, equipment or
items specifically excluded in a Transaction Document.
1.7 INVENTION is an idea know-how, technique, invention, discovery or
improvement embodied in the Deliverables or methods developed under the
Transaction Document. An Invention must be conceived or reduced to
practice by you or your Personnel in performance of work required under
the Transaction Document. An Invention made by you or your Personnel
with IBM's Personnel is a "Joint Invention."
1.8 LICENSED WORKS are Deliverables that you own and license to IBM. Each
Licensed Work is identified in a Transaction Document. Licensed Works
include Basic Enhancements and Maintenance Modifications to them that
you create or authorize others to create during the period defined in
the Transaction Document.
1.9 MORAL RIGHTS are personal rights associated with authorship of a work
under applicable law. They include the rights to approve modifications
and to require authorship identification.
1.10 PERSONNEL are either party's employees or subcontractors working under
the IDA.
1.11 SERVICES are work you and your Personnel perform to complete the tasks
described in a Transaction Document. Deliverables may result from such
work.
1.12 SUBSIDIARY is an entity during the time that more than 50% of its
voting stock or, if no voting stock, decision-making power is owned or
controlled, directly or indirectly, by another entity.
1.13 TOOLS include devices, compilers, programming documentation, media or
other items required for the development, maintenance or implementation
of a Deliverable.
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PART 2. AGREEMENT STRUCTURE
2.1 The IDA consists of:
a) this BASE AGREEMENT that defines the basic terms and
conditions of our relationship; and
b) TRANSACTION DOCUMENTS that specify the details of a
transaction and may include additional terms and conditions.
Transaction Documents include Statements of Work, Descriptions
of Licensed Work and Descriptions of Exclusive Marketing
Rights. Both parties accept the terms of the Transaction
Document and the identified exhibits, appendices and schedules
by signing the Transaction Document.
2.2 If there is a conflict among the terms of the documents, Transaction
Document terms prevail over Base Agreement terms. Terms in IBM's
purchase orders and your invoices are void unless identified otherwise
in the IDA.
PART 3. OUR RELATIONSHIP
3.1 Each party is an independent contractor. Neither party is, nor will
claim to be, a legal representative, partner, franchisee, agent or
employee of the other except as specifically stated in the IDA. Neither
party will assume or create obligations for the other. Each party is
responsible for the direction and compensation of its employees.
3.2 Each party may have similar agreements with others. Each party may
design, develop, manufacture, acquire or market competitive products
and services and conduct its business in whatever way it chooses
provided there is no conflict with the IDA. IBM is not obligated to
announce or market any products or services. IBM does not guarantee the
success of its marketing efforts. IBM will independently establish
prices for its products and services.
3.3 Both parties will maintain relevant records to support invoices issued
or payments made to the other. The records will be retained and made
available for three years from the date of the related payment or
invoice. If one party requests, the other will make these records
available to an independent auditor chosen and compensated by the
requesting party. Each party's requests will be in writing and will not
occur more than once each year. The auditor will sign a confidentiality
agreement and will only disclose to the requesting party any amounts
due and payable for the period examined.
3.4 The Transaction Document will identify coordinators that represent each
party and where to send all notices which must be in writing, payments
and deliveries. A party will provide notice to the other when
coordinators change.
3.5 No Deliverable or Tool will contain your or any third party's
confidential or proprietary information. Where confidential information
must be exchanged, it will be done under a signed confidentiality
agreement. Except for your preexisting, commercially available
Deliverables, you will not disclose Deliverables to others without
IBM's written approval.
3.6 You will not disclose the terms of the IDA to a third party except a)
to your accountants, lawyers or other professional advisors under a
confidentiality agreement or b) as required by law provided you get any
confidential treatment for them which is available.
3.7 Neither party relies on any promises, inducements, representations made
by the other or expectations of more business dealings except as
expressly provided in the IDA. The IDA accurately states our business
agreement.
3.8 IBM may lend you items for use in a transaction. If so, IBM will do so
under a signed equipment and program loan agreement. You will not
disclose the items to others without IBM's written approval.
3.9 IBM may evaluate each Deliverable before accepting it to verify that it
meets the requirements of the IDA. IBM will advise you if it accepts
(in whole or in part) or rejects each Deliverable. IBM will identify
errors or deficiencies that it finds. You will either promptly correct
the errors and deficiencies or obtain IBM's agreement on a plan to
correct them within 10 working days after receiving notification. All
corrections will be made at no charge to IBM. If you do not make the
corrections, IBM may withhold payments due or require you to refund
payments made to you.
3.10 You will:
a) perform Services and provide all Deliverables according to the
Transaction Document. You will have a process-driven approach
to your work efforts that is repeatable and measurable. On
request, you will review the approach with IBM;
b) deliver alpha object code in the form specified in the
Transaction Document for Deliverables that contain code;
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c) maintain records to verify authorship of all Deliverables for
four years after the termination or expiration of the
Transaction Document. On request, you will deliver or
otherwise make available this information in a form specified
by IBM (for example, the Exhibit: Certificate of Originality);
d) provide IBM with relevant financial information about your
business on request;
e) implement a process designed to prevent contamination by
harmful code. You will provide IBM notice if you suspect
contamination;
f) participate in progress reviews to demonstrate your
performance of your obligations. You will do so as specified
in a Transaction Document or as otherwise requested by IBM;
g) adequately train your employees to perform all work;
h) comply with the Exhibit. Activity on IBM's Premises when you
or your Personnel are on IBM's premises;
i) have agreements with your Personnel and third parties to
perform obligations and to grant or assign rights to IBM as
required by the IDA. On request, you will provide IBM copies
of these agreements. The Exhibit. Sample Employee Agreement,
its equivalent, may be used with your Personnel; and
j) inform IBM if you plan to perform IBM work using a former IBM
or IBM Subsidiary employee, IBM reserves the right to deny
such assignment.
3.11 You will not, without IBM's prior written approval:
a) issue press releases or other publicity regarding the IDA or
our relationship under it; or
b) assign or transfer the IDA or your rights under it or delegate
or subcontract your obligations.
3.12 To the extent applicable, each party will comply with Executive Order
11246 of the President of the United States on Equal Employment
Opportunity and the Occupational Safety and Health Act of 1970.
PART 4. INTELLECTUAL PROPERTY
4.1 IBM Materials you create under the IDA are works made for hire under
applicable law. If IBM Materials are not considered works made for hire
owned by IBM by operation of law, you assign the ownership of
copyrights in them to IBM, You will assist IBM to perfect these rights.
You or your Personnel may use copies, intermediate versions, drafts and
partial copies of IBM Materials only for purposes of the IDA. At the
end of the transaction, you will destroy these items unless IBM states
otherwise.
4.2 You will list in the Transaction Document all Background Materials and
their owners. You will not include any Background Materials in a
Deliverable that are not listed.
For Deliverables 4, 5, and 6 identified in the Transaction Document you
grant IBM an irrevocable, nonexclusive, worldwide, paid-up copyright
license to execute, reproduce, display, perform, and use for the
internal evaluation and internal and external demonstration purposes
the Background Materials and their Derivative Works. You grant IBM the
right to authorize others to do any of the above. This license also
applies to associated audio and visual works.
For the remaining Deliverables identified in the Transaction Document
you grant IBM an irrevocable, nonexclusive, worldwide, paid-up
copyright license to us, execute, reproduce, display, perform, and to
prepare Derivative Works of, Background Materials and their Derivative
Works. You grant IBM the right to authorize others to do any of the
above. This House also applies to associated audio and visual works.
4.3 Except for tools IBM provides you, you will list all Tools for each
Deliverable in the Transaction Document. You will deliver the listed
Tools that are not commercially available. You will provide an updated
written list to IBM for all changes and promptly deliver those updated
tools that are not commercially available.
For Deliverables 4, 5, and 6 identified in the Transaction Document you
grant IBM an irrevocable, nonexclusive, worldwide, paid-up copyright
license to execute, reproduce, display and perform, and use for
internal evaluation and internal and external demonstration purposes
all delivered Tools and their Derivative Works. You grant IBM the right
to authorize others to do any of the above. This license also applies
to associated audio and visual works.
For the remaining Deliverables identified in a Transaction Document you
grant IBM an irrevocable, nonexclusive, worldwide, paid-up copyright
license to execute, reproduce, display and perform, and use all
delivered Tools and their
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Derivative Works. You grant IBM the right to authorize others to do any
of the above. This license also applies to associated audio and visual
works.
4.4 You grant IBM an irrevocable, nonexclusive, worldwide, paid-up license
under any inventions, patents and patent applications that are 1) owned
or licensable by you now or in the future and 2) (i) required to make,
have made, use and have used Deliverables and Tools or (ii) required to
license or transfer a Deliverable or its Derivative Works. This license
applies to Deliverables or their Derivative Works operating alone or in
combination with equipment or software.
4.5 Inventions made by your Personnel are your property except for Joint
Inventions and Inventions relating to an Appearance Design. You will
promptly disclose each Invention to IBM in writing. Your disclosure
will specify the features or concepts that you believe to be new or
different. You will identify all countries in which you will seek
patent protection for each Invention. You authorize IBM to act as your
agent in obtaining patent protection for the Invention in countries
where you do not seek patent protection. You grant IBM an irrevocable,
nonexclusive, worldwide, paid-up license under these Inventions and
patents issuing on and patent applications filed on these Inventions.
The license scope is to make, have made, use, have used, sell, license
or transfer items and to practice and have practiced methods.
4.6 Both parties will jointly own all Joint Inventions and resulting
patents. Either party may license others under Joint Inventions and
patent applications filed on, or patents issuing from, them without
accounting to or consent from the other.
When both parties equally share the costs associated with seeking
patent protection, IBM will prepare the patent application, unless
agreed to otherwise. IBM will advise you of the status of the
application and will consider your proposed comments and suggestions
about it If either party decides not to equally share the costs of
seeking or maintaining patent protection in a Joint Invention, the
other party may do so at its own expense. The paying party will control
the obtaining of, and maintenance of such patents. The non-paying party
will provide reasonable assistance and have required documents signed
at the request and expense of the paying party.
4.7 You assign to IBM all Inventions, and patents issuing on them, relating
to an Appearance Design. You will, at IBM's expense, assist in the
filing of patent applications on these Inventions and have required
documents signed.
4.8 Except as specifically granted, the IDA does not grant either party any
rights in any patents or patent applications.
4.9 You recognize that any goodwill attaching to IBM's trademarks, services
marks ("marks") or tradename belongs to IBM and this Base Agreement
does not grant you any right to use them. IBM may state that you have
provided a Deliverable.
PART 5. WARRANTY
You make the following on-going representations and warranties:
a) you are not under and will not assume any contractual
obligation that conflicts with your obligations or the right
granted in the IDA;
b) there are no claims pending or threatened against you or, to
the best of your knowledge, anyone else that relate to the
Deliverables or Tools;
c) none of the Deliverables or Tools directly or indirectly
infringe any publicity, privacy or intellectual property
rights of a third party including, to the best of your
knowledge, any patents or patent applications;
d) you will perform all work in a skillful, competent and
workmanlike manner;
e) the Deliverables and Tools are not contaminated by harmful
code;
f) the fully commented object code that you provide corresponds
to the current release or version of the Deliverable;
g) all authors have waived their Moral Rights in all Deliverables
to the extent permitted by law; and all software code and/or
hardware microcode licensed to or developed for IBM, are able
to correctly create, process. calculate, manipulate, sort,
store and delete date-related data without resulting in or
causing logical or mathematical inconsistencies.
You will immediately provide IBM notice of any change that may affect your
representations and warranties.
PART 6. INDEMNIFICATION AND LIABILITY
6.1 You will indemnify IBM and its Subsidiaries if a third party makes a
claim against IBM or its Subsidiaries based on an actual or alleged:
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a) failure by you, not caused by IBM, to perform your obligations
under the IDA;
b) improper preparation or design of a Deliverable;
c) breach of your warranties and representations;
d) negligent or willful arts or omissions committed by you;
e) failure by you to comply with governmental laws and
regulations; or infringement by you or the Deliverables of
patents, copyrights, trademarks, trade secrets and other
intellectual property rights.
6.2 If such a claim appears likely or is made, you will promptly provide
IBM notice. You will:
a) obtain the necessary rights for IBM, its Subsidiaries,
Distributors and their respective customers to continue to use
the Deliverables on an uninterrupted basis and exercise all
rights granted in the Deliverables; or
b) modify the Deliverables at your expense to resolve the claim.
If you are not able to do either within a reasonable period of time,
IBM may terminate the related Transaction Document for your breach.
6.3 You will pay any settlement amounts you authorize and all costs,
damages and attorneys' fees that a court finally awards if IBM:
a) promptly provides you notice of the claim; and
b) allows you to control and cooperates with you in the defense
of the claim and settlement negotiations.
IBM may participate in the proceedings at its option and expense.
6.4 Regardless of the type of claim, neither party is liable to the other
for economic consequential damages (including lost profits or savings)
or incidental damages, even if informed that they may occur. This
limitation does not apply to your liabilities for indemnity above to
the extent that such damages are included in settlements and court
awards. IBM's total liability for a transaction is limited to payments
due to you for that transaction.
6.5 You are not liable for indemnification for infringements that result
solely from complying with IBM's detailed instructions or
specifications.
PART 7. TERM AND TERMINATION
7.1 A Transaction Document specifies the effective date of a particular
transaction. The Transaction Document continues until terminated or
completed.
7.2 Either party may terminate a Transaction Document for the other's
breach by providing a 30 day notice that describes the breach. The
termination will not be effective if the breach is cured within the
notice period. A breach of a Transaction Document for a Deliverable is
considered a breach of all Transaction Documents involving that
Deliverable.
If IBM terminates a Transaction Document for your breach, you are
liable for any costs incurred by IBM and other damages. In addition,
IBM may require:
a) you to return advance payments and deliver work in progress to
IBM. IBM may complete the work and offset payments due by
IBM's completion costs and other damages. You will provide
reasonable training to IBM or its designees to enable
completion; or
b) you to reimburse IBM for all payments made to date plus any
reprocurement costs if IBM determines that it will not
complete the work.
7.3 Either party may, for its convenience, terminate this Base Agreement on
30 days' notice. However, the Base Agreement will continue for
Transaction Documents already in place until the Transaction Documents
are terminated or completed.
7.4 IBM may, for its convenience, terminate a Transaction Document on 30
days' notice to you. If IBM does so; you will stop work in an orderly
manner. You will provide IBM with all Deliverables including work in
progress (such as notes, drafts and sketches). IBM will pay you, on a
prorated basis, for Services and Deliverables that IBM accepts.
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7.5 Termination or expiration of the IDA or any Transaction Document does
not mean previously granted paid-up rights and licenses to IBM or
product users. Any terms of the IDA that by their nature extend beyond
termination or expiration (for example, Intellectual Property,
INDEMNIFICATION and LIABILITY and Term and TERMINATION) will survive.
These terms will apply to either party's successors and assigns.
PART 8. INSURANCE
8.1 You will maintain the following minimal insurance coverage at your own
expense:
a) Worker's Compensation, including Employees Liability, for the
statutory required amounts;
b) Commercial General Liability for two years following
expiration or termination of the IDA in the amount of
$1,000,000 per event including coverage for
1) "Premises Operations;"
2) "Contractual Liability" you are responsible for under
the IDA; and
3) "Products and Completed Operations."
c) Comprehensive Automobile Liability for vehicles used in
performance of work under the IDA in the amount of $250,000
per person / $500,000 per event for personal injury and
$200,000 per event for property damage.
You remain liable for any damages above the stated minimums.
8.2 The insurance will provide that the insurer notify IBM at least 30 days
before any non-renewal, cancellation or other material change in your
coverage, You will name IBM as an additional insured under b) and c)
above. You will provide IBM with a certificate of insurance as proof of
this minimal coverage on request.
PART 9. PAYMENT
9.1 IBM will pay you for a transaction according to the IDA. All payments
will be made in U.S. dollars. Your applicable taxes, expenses and
payments to third parties are included in the compensation, unless
identified otherwise in a Transaction Document.
9.2 You will invoice IBM for amounts due unless the Transaction Document
states otherwise. You will submit invoices within 30 days after
completion of work specified in a Transaction Document. IBM will pay
you within 30 days of receiving your acceptable invoice. The
Transaction Document will define the information required for your
invoice.
9.3 If you offer another party lower rates, prices or royalties or
equivalent Services or Deliverables during the term of the IDA, you
will promptly offer the same to IBM.
PART 10. GENERAL
10.1 Each party will comply with all applicable laws and regulations at its
expense. This includes all export and import laws and regulations.
10.2 IBM may transfer or license any of its rights under the IDA to its
Subsidiaries, who may transfer or license their Subsidiaries,
successors or assigns. IBM may delegate its obligations to its
Subsidiaries.
10.3 If any provision of the IDA is unenforceable at law, the rest of the
provisions remain in effect. The headings in the IDA are for reference
only. They wi11 not affect the meaning or interpretation of the IDA,
10.4 Neither party will bring a legal action against the other more than two
years after the cause of action arose. This does not apply to actions
brought to enforce Indemnification and Liability or intellectual
property rights. Both parties will act in good faith to resolve
disputes. Each party waives its rights to a jury trial in any resulting
litigation. Litigation will only be commenced in the State of New York.
10.5 For a change to the IDA to be valid, both parties must sign it. No
approval, consent or waiver will be enforceable unless signed by be
granting party. Failure to insist on strict performance or to exercise
a right when entitled does not prevent a party from doing so later for
that breach or a future one.
10.6 You will submit to personal jurisdiction in any forum where IBM is sued
for claims related to the IDA.
Page 7 of 8
IDA00A dated September 30, 1994 IBM Developer Agreement #RAL-960509
Dated December 13, 1996
13
10.7 The substantive laws of the State of New York govern the IDA. The
United Nations' Convention on International Sale of Goods does not
apply.
Page 8 of 8
IDA00A dated September 30, 1994 IBM Developer Agreement #RAL-960509
Dated December 13, 1996
14
IBM DEVELOPER AGREEMENT
EXHIBIT: TRAVEL EXPENSE REIMBURSEMENT
- --------------------------------------------------------------------------------
The terms of the IBM Developer Agreement (or any equivalent agreement signed by
both of us) ("IDA") apply. The following terms apply when IBM authorizes and
reimburses your travel expenses associated with the IDA. You accept them by
signing the IDA Transaction Document that references this Exhibit.
IBM will reimburse you for reasonable and actual travel and living expenses
incurred while performing Services under the IDA according to this Exhibit
provided you have obtained IBM's prior written approval and submitted acceptable
invoices to IBM with supporting documentation.
PART 1. REIMBURSABLE EXPENSES
1.1 IBM will reimburse you for:
a) tolls, parking fees, taxis, buses or auto rentals. For auto
rentals, you will obtain prior instructions from IBM regarding
the rental company and rates to be used. If you use your
personal automobile or travel, IBM will reimburse you under
the applicable automobile allowance plan for the most direct,
practical route. IBM will not reimburse expenses of normal
commutation;
b) air transportation at the economy, tourist or coach class rate
for the most direct route of a scheduled airline;
c) lodging charges commensurate with the average rates charged or
in immediate area. You will obtain prior instructions from IBM
regarding its negotiated rates that may extend to your travel;
d) reasonable and actual meal expenses up to $25.00 per day;
e) necessary business calls made on IBM's behalf;
f) reasonable tipping; and
g) reasonable valet and laundry charges if a trip extends beyond
four days.
1.2 IBM will not reimburse you for personal expenses such as hotel shop
purchases, alcoholic beverages and sundry items. IBM will not reimburse
you for charges associated with any personal side trips. If such
expenses appear on receipts, you will deduct them from your invoice.
PART 2. REQUIRED DOCUMENTATION
2.1 The following information must be included with all invoices:
a) IBM Developer Agreement number;
b) Transaction Document number;
c) expenses incurred;
d) receipts for lodging costs, airline travel, rental cars and
all other expenditures of $25 or more;
e) name of your company and "remit to" address;
f) the name of the IBM representative who authorized the expense;
and
g) IBM's purchase order number (if applicable), your invoice
number and its date.
2.2 You will address all invoices for expenses to the IBM Corporation as
identified in the Transaction Document. You will send a copy of your
invoice to the IBM representative that authorized the expense. IBM will
pay you 30 days after IBM receives an acceptable invoice.
Page 1 of 1 IDA Transaction Document #RAL-60509-TOC01 dated December 13, 1996
15
DEVELOPER AGREEMENT
EXHIBIT: CERTIFICATE OF ORIGINALITY
- --------------------------------------------------------------------------------
The term of the IBM Developer Agreement (or any equivalent agreement signed by
both of us) ("IDA") apply. This Certificate of Originality is a deliverable
under the IDA. You agree to provide it as a deliverable by signing the IDA
Transaction Document that references this Exhibit.
If you provide IBM any program product, offering, related documentation,
microcode or other software material, (collectively, "Software Material") you
must complete this questionnaire and send it to IBM's Contract Coordinator for
this transaction. You will provide IBM with any additional information needed
for copyright registration or enforcement of legal rights relating to the
Software Material.
One questionnaire can cover one complete product even if that product includes
multiple modules. A separate questionnaire must be completed for code and
another for its related documentation. Significant changes to the Software
Material will require completion of a new questionnaire.
Please do not leave any questions blank. Write "not applicable" or "N/A" if a
question is not relevant to the Software Material. If you need additional space
to complete any question, please attach a separate sheet of paper that
identifies the question number.
PART 1. QUESTIONNAIRE
0.1 Identify the IDA under which you provide Software Material to IBM:
a) IDA Number ____________________________________________________
Date: __________________________________
b) Transaction Document Number: __________________________________
Date: ___________________________________
0.2 Name of the Software Material (provide complete identification
including version, release and modification numbers for programs and
documentation):
0.3 Was the Software Material or any portion of it:
a) written by any third parties other than you or your employees
working within their job assignments?
YES_____NO_____(If YES, answer the following. If NO, skip
to 1.4)
1) How did you acquire title to the Software Material or
the right to grant licenses to IBM?
2) Did the third parties write ALL or PART of the
Software Material?
ALL_____PART_____
If PART, state the percentage written by the third
parties _____%
Page 1 of 6 IDA Transaction Document #RAL-960509-ROC01 dated 12/13/96
16
b) Were the third parties that provided the Software Material to
you COMPANIES, INDIVIDUALS or both?
COMPANIES_____(complete c) below) INDIVIDUALS_______ (complete
d) below) BOTH_______ (complete c) and d) below)
c) For each COMPANY, provide the following information:
1) Name:
2) Address:
3) How did the COMPANY acquire title to the Software
Material? (For example, the Software Material was
written by the COMPANY'S employees as part of their
job assignment):
4) Did the COMPANY have each non-US contributor to the
Software Material sign a waiver of their moral
rights?
YES_____NO_____
d)
For each INDIVIDUAL, provide the following information:
1)
Name:
2)
Citizenship:
3)
Address:
4)
Did the INDIVIDUALS create the Software Material
while employed by, or under a contractual
relationship with another Party?
YES_____NO_____ (If YES, provide name and address of
the other party below)
i) Name:
ii) Address:
5)
Did the INDIVIDUALS create or first publish the
Software Material in a country other than the US?
YES_____NO_____
i) If YES, did the INDIVIDUALS sign a waiver of
moral rights?
YES___NO___(If YES, please attach a copy)
Page 2 of 6 IDA Transaction Document #RAL-960509-ROC01 dated 12/13/96
17
0.4 Was any part of the Software material registered at any copyright
office?
YES_____NO____ (If YES, provide the following registration information)
a)
Claimant Name:
b)
Registration Number:
Date of Registration:
c) Title of Work:
0.5 Was any part of the Software Material published?
YES_____NO_____ (If YES, answer the following)
a)
When and where was it published?
b)
Was there a copyright notice on the published materials?
YES_____NO_____ (If YES, provide the copyright notice below)
0.6
Was any part of the Software Material distributed for you to any
outside person or company other than IBM?
YES_____NO_____(If YES, answer the following)
a)
When and where was the Software Material distributed?
b)
To whom was the Software Material distributed?
c)
Why was the Software Material distributed?
d)
Under what conditions was the Software Material distributed
(for example, under a contract)?
0.7 Was any part of the Software Material derived from preexisting
materials?
YES___NO___ (If YES, provide the information in a)-f) below for each of
the preexisting materials)
Page 3 of 6 IDA Transaction Document #RAL-960509-ROC01 dated 12/13/96
18
If the Software Materials contain any object-oriented software, are any
objects derived from or inherited from other objects or classes
("parent classes")?
YES___NO___ (If YES, provide the information in a) - f) below for each
of the parent classes)
a) Name of the preexisting material or parent class:
b) Author (if known):
c) Owner (if known):
d) Copyright notice appearing on the preexisting material or
parent class (if any):
e) Was any new function added to the preexisting material or
parent class?
YES_____NO_____(If YES, answer the following)
Briefly describe the new functions below:
_____% of preexisting material or parent class used
_____% of preexisting material or parent class modified
_____% of new material consisting of or deriving from
preexisting materials or parent classes
f) Briefly describe how the preexisting materials or parent
classes have been used:
0.8 Were any part of the display screens data formats, instruction or
command formats, operator messages, interfaces etc. (collectively
called "External Characteristics") of the Software Material copied or
derived from the External Characteristics of another program or product
of yours or a third party?
YES___NO___(If YES, provide the following information)
a) Name of your or third party's program or product:
b) Author (if known):
c) Owner (if known):
d) Copyright notice relating to the preexisting External
Characteristics (if any):
e) Have the preexisting External Characteristics been modified?
YES___NO___(If YES, describe how they have been modified below)
0.9
Identify below any other circumstances that may affect IBM's ability to
reproduce and market the Software Material
Page 4 of 6 IDA Transaction Document #RAL-960509-ROC01 dated 12/13/96
19
including:
a) confidentiality or trade secrecy of preexisting materials:
b) known or expected royalty obligations to others:
c) preexisting materials developed for another party or customer
(including government) where you may not have retained full
rights to the materials:
d) materials acquired from a person or company possibly having no
title to them:
e) agreements under which you grant rights to others under all or
some of the Software Materials or documentation:
0.10 EMPLOYEE IDENTIFICATION. You recognize that, for purposes of copyright
registration or enforcement of legal rights relating to the Software
Material, IBM may need to know the names addresses and citizenship's of
all persons who wrote or contributed to the writing of the Software
Materials. You agree to keep accurate records of all such information
according to the IDA and to provide them to IBM on its request.
0.11 ICON. An "ICON" is generally defined as a symbol on a display screen
that a user can point to with a device such as a mouse in order to
select a particular operation or software application. Except for ICONs
that have been used in other IBM products, you will have the creator of
each ICON contained in the Software Materials complete an ICON
IDENTIFICATION FORM and submit them as appendices to this Certificate
of Originality.
PART 2. CERTIFICATION
By signing below, you certify that except for those portions of the Software
Materials identified in Part 1.3 of this Certificate of Originality, the
Software Materials are original and you are the author of them. You further
certify that all information contained in this Certificate of Originality,
including any attachments or appendices to it, are accurate and complete.
--------------------------------------------------
(Developer Name)
By:
--------------------------------------------------
(Authorized Signature)
Name:
-------------------------------------------------
Title:
------------------------------------------------
Date:
------------------------------------------------
Address:
------------------------------------------------
------------------------------------------------
------------------------------------------------
------------------------------------------------
Page 5 of 6 IDA Transaction Document #RAL-960509-ROC01 dated 12/13/96
20
APPENDIX: CERTIFICATE OF ORIGINALITY
ICON IDENTIFICATION FORM
- --------------------------------------------------------------------------------
A. ICON REPRESENTATION
Words, function or thing represented by the ICON:
B. CREATOR OF ICON
1) Name:
2) Job Title:
3) Business Address:
Business Telephone:
4) Citizenship:
C. ICON DEVELOPMENT
1) Date the ICON was created in tangible form:
2) Was the attached ICON created as an assigned work task?
YES_____NO_____
3) Was the attached ICON created without reference to any
preexisting ICONs or other works authored or owned by another?
YES_____NO_____ (If NO, identify the preexisting ICONs or
other works that were referenced and attach copies)
4) If the ICON was created for inclusion in a specific product,
identify the product in which it will be (or was) used and
provide the planned availability date and country of first
publication:
5) Identify or describe any known preexisting ICONs that
represent the same word or function or that are similar in
appearance to the ICON (attach copies):
6) Attach a copy of the ICON and, for identification purposes,
include on the drawing the information you provided irk
response to B above.
Signature:
-------------------------------------------------
-------------------------------------------------
(Creator Name)
Date:
------------------------------------------------------
Page 6 of 6 IDA Transaction Document #RAL-960509-ROC01 dated 12/13/96