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EXHIBIT 10.23
IBM SOFTWARE VENDOR MARKETING PROGRAMS
Software Vendor Marketing Programs Agreement
SOFTWARE VENDOR MARKETING PROGRAMS AGREEMENT
Agreement Number: VMP-505
Date of Agreement: March 7, 1997
This is an Agreement between IBM Corporation ("IBM") and You:
Your Name and Address:
Synon Corporation
1100 Larkspur Landing Circle
Larkspur, CA 94939
You and IBM hereby agree as follows:
1.0 PURPOSE
This Agreement sets forth the terms and conditions under which IBM, for a fee,
will assist You in the marketing of Your Product(s) and shall supersede and
replace Software Solutions Program Agreement number SSP-LJ-047 dated May 1, 1995
upon the IBM announcement to the Marketing Force of Product(s) listed on
Attachment A.
2.0 DEFINITIONS
When used in this Agreement, the capitalized terms listed below will have the
following meanings:
2.1 FEDERAL PROSPECT means a Prospect that is a) an agency or other unit of
the Federal government, b) that You know or should know Is a prospective federal
prime or subcontractor, or c) a Prospect which You otherwise know or have reason
to believe will acquire Product(s) for use in connection with a federal
acquisition or project.
2.2 HARMFUL CODE means any computer CODE or programming instructions that
are constructed with the ability to damage, interfere with or otherwise
adversely affect computer programs, data files or hardware without the consent
or intent of the computer user. This definition includes, but is not limited to,
self-replicating and self-propagating programming instructions commonly called
"viruses" and "worms."
2.3 MARKETING ACTIVITIES means the activities undertaken by the Marketing
Force in identifying Prospects where at a minimum the Marketing Force:
2.3.1 establishes contact with the Prospect;
2.3.2 PROVIDES information regarding the
Product(s) to the Prospect.
2.4 MARKETING FORCE means:
2.4.1 IBM; and
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2.4.2 any IBM Business Partners and IBM Subsidiaries that IBM utilizes in
marketing the Product(s).
2.5 MARKETING PACKAGE means materials provided by You to the Marketing
Force. The Marketing Package shall Include the following:
2.5.1 Software Vendor Marketing Programs Notice means an IBM supplied
description of IBM's responsibilities to Prospects with respect to the
Product(s).
2.5.2 Marketing Materials means Product brochures, technical specification
sheets, demonstration presentations, Product descriptions utilized in
electronic online services, and other marketing sales literature provided by You
to IBM, or prepared by IBM and approved by You, for use by IBM In marketing Your
Products to Prospects. IBM's use of the marketing materials and demonstration
materials may include transmission of them on electronic, online services.
2.5.3 Order Form means an IBM supplied form on which orders for the
Product(s) may be taken by the Marketing Force for You.
2.5.4 Price Schedule means a written statement supplied by You of Your retail
prices for the Product(s), including discounts offered, if any.
2.5.5 User Agreement means the agreement supplied and used by You to sell,
lease and/or license the Product(s) to Prospects.
2.6 PRODUCTS(S) means Your software and documentation and any related
materials, that are listed and described in the Attachment A "Product(s) List."
2.7 Prospect means a potential or actual customer of the Product(s) that is
subject to Marketing Activities.
3.0 APPOINTMENT
Subject to the terms and conditions hereof, You hereby designate and appoint the
Marketing Force as a nonexclusive representative for the marketing of the
Product(s) in the United States and Puerto Rico.
4.0 YOUR RESPONSIBILITIES
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Software Vendor marketing Programs Agreement
4.1 PRICING Notwithstanding anything contained herein, You shall retain
full and absolute freedom and flexibility in pricing Your Product(s), and in
establishing the terms and conditions under which they may be offered to
Prospects.
4.2 MARKETING PACKAGE
4.2.1 You shall provide to IBM a copy of the items in the Marketing Package
provided by You prior to sending the initial Marketing Package to the Marketing
Force. You shall give IBM forty-five (45) days prior written notice should You
elect to change any materials supplied by You In the Marketing Package and shall
provide IBM with a complete copy of the revised Marketing Package at least
thirty days prior to the effective date of the changes. IBM shall have the right
to review all changes to the Marketing Package and to request reasonable
modifications.
4.2.2 You shall at all times during the term of this Agreement ensure that
the Marketing Package completely and accurately represents the Product(s) and
shall provide reasonable quantities of the most current Marketing Package to the
Marketing Force upon request.
4.3 MARKETING SUPPORT You shall cooperate with the Marketing Force in the
marketing of the Product(s). Such cooperation shall include the reasonable
provision of technical support services and training to the Marketing Force
(including, but not limited to, telephone support) and reasonable participation
and assistance with the Marketing Force in trade shows and conferences. In
addition, You shall, in a manner reasonably consistent with industry practice,
promote the Product(s) through national and local advertising.
4.4 PROSPECT QUALIFICATION You shall promptly review the qualifications of
each Prospect that has signed an User Agreement. If You determine that You are
unwilling to accept an User Agreement, You shall so notify IBM in writing prior
to notifying the Prospect. Your notice to IBM shall identify the reason for such
rejection.
4.5 PRODUCT(S) In order to ensure that the Product(s) marketed by the
Marketing Force under this Agreement are the most current release or version
offered by You to Your customers, You shall make available for marketing by the
Marketing Force under this Agreement all maintenance modifications, engineering
changes, upgrades, enhancements, or new versions (including any future
adaptations of the Product(s) to current or future IBM operating systems,
systems, and platforms) of the Product(s) that You offer to Your customers.
4.6 YOUR MISCELLANEOUS RESPONSIBILITIES
4.6.1 You shall perform all of Your obligations under accepted an User
Agreements.
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4.6.2 You shall ship or deliver the Product(s) no later than the requested
shipment date contained in the order confirmation notice, as described in
Section 4.9 of this Agreement, or within 7 days of receipt said notice, unless a
different date is specified on an User Agreement. If such shipment date is not
reasonably possible, You shall promptly notify the Prospect and IBM of Your
projected shipment date and shall ship, deliver or provide the Product(s) at the
earliest possible date.
4.6.3 You shall invoice and use reasonable efforts to collect all amounts
payable under each User Agreement accepted by You.
4.6.4 You shall pay to IBM the compensation set forth in Section 6.0,
"PAYMENT," and shall provide IBM with documentation and maintain records as
provided therein.
4.6.5 You shall timely notify IBM when a Prospect's signature on an User
Agreement is independently obtained by You and payment is due IBM under Section
6.0, "PAYMENT."
4.6.6 Throughout the term of this Agreement, You shall amend in writing the
information provided to IBM on the business and product overview forms (provided
to You by IBM and incorporated herein by reference) to ensure that such
information remains accurate and complete.
4.6.7 You shall 1) promptly disclose to all Federal Prospects the existence
of this Agreement, including the existence of the contingent fee payment
arrangement in effect with IBM that would apply to the Federal Prospect's
acquisition of the Product(s), 2) promptly, completely, and accurately execute
any certifications, representations, and disclosure documents that may be
required by any Federal Prospect to comply with federal regulations requiring
certification and disclosure of contingent fee arrangements applicable to the
acquisition of the Product(s).
4.6.8 In order for IBM to market Your Product(s) via an online service, You
must presently have or must obtain a userid (at Your expense) and monitor a
support forum on each service for the purposes of interactive exchange with
Prospects who seek Information relative to Your Product(s) and/or their use.
While IBM may also participate in such an interactive area and respond to
inquires regarding ordering, and sales information, IBM may direct inquires
regarding Your Product(s) specifications, pricing, User Agreement terms and
conditions and other such inquires to You. You will respond to such inquires
from Prospects with best efforts within two (2) business days of receipt.
4.6.9 You will approve in a timely manner all Marketing Materials and
demonstration materials provided by IBM for IBM's use in marketing Your Products
to Prospects. You shall provide written
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Software Vendor Marketing Programs Agreement
approval to IBM for all information included in such Marketing Materials,
including but not limited to, content, descriptions, pricing, technical
information and usage of trademarks, trade names and copyrighted materials.
4.7 LICENSE You hereby grant IBM a worldwide, royalty-free, non-exclusive
license to use, execute, perform, display, copy and distribute in tangible or
electronic form all, or any portion of the Product(s) and any copyrighted
material, including but not limited to graphics, pictures, drawings, screen
layouts, text, icons, and any other related items owned by You for use by IBM in
marketing Your Product(s) to Prospects and to authorize others to do any of the
foregoing. Upon request by IBM, You shall deliver to IBM one complete copy of
the Product(s) within 15 days of said request.
4.8 PROSPECT REGISTRATION The Marketing Force will provide You with
Prospect registrations for sales leads identifying, at a minimum, the Prospect's
name and location. You shall, upon receipt of the registration, promptly review
and reply to IBM in ten (10) business days or less from date of receipt whether
You will accept or reject the registration. If You accept the registration, You
will respond to the electronic registration notice and contact the Marketing
Force representative to provide information on your plans to contact the
Prospect. If You reject said Prospect registration, You will provide in writing
to IBM the reason(s) for rejection.
4.9 ORDER CONFIRMATION IBM may provide You with order confirmation notices
identifying Product(s) licensed by Prospects. You shall confirm in writing
within ten (10) working days from date of receipt, the Product(s) licensed by a
Prospect, the dollar value of the related User Agreement(s) and the estimated
date You will pay to IBM the associated fees as described in Section
6.1 of this Agreement.
5.0 IBM'S RESPONSIBILITIES
5.1 MARKETING SUPPORT ACTIVITIES IBM will, at its sole cost, undertake the
following market support activities for the Product(s):
5.1. provide to You the IBM Business Partner Program emblem as described in
Section 11.3 "Advertising and Trademark Usage" of this Agreement; and
5.12 issue an availability notice to the Marketing Force that describes the
Products) and announces that the Marketing Force may solicit and obtain orders
for the Product(s) on Your behalf; and
5.1.3 make available to You a registration process whereby You may accept or
reject a Prospect; and
5.1.4 include Your Product(s) (identified as Software Vendor Marketing
Programs offerings) in IBM National Solution Center database.
5.2 IBM may solicit and obtain orders from Prospects on the Order Form,
obtain the Prospect's signature on an User Agreement, and forward or facilitate
the forwarding of the same to You.
5.3 IBM may participate in joint sales calls with You.
5.4 IBM will, in its Marketing Activities, rely on the information supplied
by You and contained in the Marketing Package, training, and instruction
received from You, and information otherwise provided by You regarding the
Product(s).
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5.5 IBM may, in a manner and amount that it deems appropriate, compensate
the Marketing Force based upon fees received by IBM from You under this
Agreement.
5.6 Notwithstanding anything contained herein, IBM shall have full freedom
and flexibility in its marketing effort for the Product(s), including whether to
market or discontinue marketing. IBM makes no guarantee or commitment that the
Product(s) will be marketed nor does IBM guarantee the financial or other
success of any marketing effort engaged in.
6.0 PAYMENT
6.1 FEE In consideration for the Marketing Activities (as defined in
Section 2.3) and Market Support Activities (as described in Section 5.1), You
shall owe IBM a fee equal to the applicable percentage (as listed In the
Attachment A - "Product(s) List") of the total revenue received by You for
Product(s) under
6.1.1 User Agreements with Prospects obtained as a result of Marketing
Activities (with or without an order confirmation notice as described in Section
19; and
6.1.2 User Agreements with Prospects rejected by You under Section 4.4,
"Prospect Qualification," provided You subsequently accept a User Agreement(s)
for the Product(s) from such Prospects during the term of this Agreement and for
six (6) months after IBM's withdrawal of the Products from marketing by the
Marketing Force ; and
6.1.3 Additional User Agreements for Product(s) issued to Prospects by You
within one (1) year of the initial installation of the Product(s) during the
term of this Agreement and six (6) months after IBM's withdrawal of the Products
from marketing by the Marketing Force which are a direct or follow-on result of
Marketing Activities; and
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Software Vendor Marketing Programs Agreement
6.1.4 User Agreements with Prospects obtained as a result of Marketing
Activities initiated before the IBM's withdrawal of the Product(s) from
marketing by the Marketing Force and three (3) months following said withdrawal.
6.2 PAYMENT OBLIGATION Your payment to IBM shall accrue when the
Prospect's fee for the Product(s) becomes payable to You.
6.3 REMITTANCE Payment shall be made to IBM within thirty (30) days after
the conclusion of each calendar month for the amounts received by You in such
calendar month. Payment shall be accompanied by an activity report summarizing
the basis for the payment to IBM. For months in which no payment is due IBM, You
will send an activity report so stating.
6.3.1 For Products, the report should include the names of each of the
Prospects, the identification, quantity, and unit price of each Product(s), the
order confirmation control number, the IBM feature and/or program number, the
total due You from Prospect, the total payments received from Prospect, total
due IBM, total fees paid to IBM to date under each User Agreement and the amount
of fee to IBM included in this payment.
6.3.2 Rejection or Refund In addition, in the event You reject an User
Agreement, a Prospect cancels prior to making payment to You, or You grant a
refund to a Prospect, the activity report shall contain detailed information
identifying the reasons for and amounts of any resulting adjustment in payment
due IBM.
6.4 AUDIT You shall maintain records in accordance with generally accepted
methods of accounting of all transactions which are the subject of this
Agreement for three years from the date revenue from the Product(s) accrues to
You. If IBM deems it necessary, IBM (or an accounting organization retained by
IBM) shall have access to such records, upon reasonable notice, for the purposes
of audit during normal business hours, for so long as such records are required
to be maintained.
6.5 FEE DISPUTE In the event IBM determines that additional payment is due,
IBM will issue an invoice for such additional amount with supporting
documentation. Except for disputed fees, You agree to pay such invoice within 30
days of receipt. In the event a dispute arises over fees due to IBM, IBM and You
agree to work in good faith toward a mutually agreeable resolution of the
dispute.
7.0 WARRANTY
You represent and warrant, as a present and ongoing affirmation of the facts,
that:
7.1 You have all intellectual property rights to the Product(s) that are
necessary to perform Your obligations under this Agreement and all agreements
entered into with Prospect(s); and
7.2 The Product(s) and all related materials (including Marketing Materials
and demonstration materials) do not infringe any intellectual property right
(including but not limited to patents, copyrights, trademarks and trade secrets)
of any third party; and
7.3 The Product(s) conform to the statements and representations made by
You in the Marketing Package or otherwise provided by You to Prospects and the
Marketing Force; and
7.4 Your performance of Your obligations hereunder do not conflict with
any agreement between You, the Prospects or any third party; and
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7.5 You, in entering into this Agreement, have not relied on any promises,
inducements, or representations by IBM except those expressly stated in this
Agreement; and
7.6 The Product(s) comply with all applicable governmental regulations,
rules and guidelines.
7.7 The Product(s) and all related materials do not contain any Harmful
CODE.
8.0 INDEMNIFICATION
8.1 You hereby agree to defend, indemnify, and hold harmless IBM against
any and all claims, losses, and expenses, including reasonable attorney fees and
other costs of litigation, based on or arising out of any claim related to Your
Product(s) including but not limited to claims that:
8.1.1 the Product(s) infringe any third party's intellectual property rights;
8.1.2 You negligently performed, or failed to perform, Your obligations under
an User Agreement or this Agreement;
8.1.3 You breached Your representations or warranties under any agreement
with Prospects or this Agreement
8.2 The foregoing indemnities are conditioned on the following:
8.2.1 prompt written notice to You of the claim or proceeding subject to
indemnification; and
8.2.2 cooperation by IBM at Your expense in the defense and agreement of any
such claim; and
8.2.3 IBM's obtaining Your prior consent to settlement or resolution of any such
claim, which consent shall not unreasonably be withheld.
PAYMENT 4
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8.3 IBM hereby agrees to defend, indemnify, and hold harmless You against
any and all claims, losses, and expenses, including reasonable attorney fees and
other costs of litigation, to the extent that such claims, losses and expenses
arise out of the intentional misrepresentation of the Product(s) by IBM;
provided, however, that any such misrepresentation is not caused by Your acts or
omissions.
8.3.1 The foregoing indemnities are conditioned on the following:
8.3.1.1. Prompt written notice to IBM of any claims of proceeding subject to
indemnity: and
8.3.1.2. cooperation by You In the defense and settlement of such claim at the
expense of IBM: and
8.3.1.3 prior written approval by IBM of any settlement, which approval shall
not be unreasonably withheld.
9.0 TERM AND TERMINATION
9.1 This Agreement shall be effective for a period of two years from the
date IBM issues the first availability notice for the Product(s) and shall be
automatically renewed on a yearly basis thereafter unless terminated under this
Section.
9.2 Either party may elect to terminate this Agreement with or without
cause by written notification to the other party. Termination will be effective
ninety (90) days after such notice.
9.3 In the event of any termination or expiration of this Agreement in
whole or in part:
9.3.1 the provisions of Sections 2.0, "DEFINITIONS," 7.0, "WARRANTY," 8.0,
"INDEMNIFICATION," 10.0, "INFORMATION," and 11.0, "GENERAL" shall survive and
continue until they expire in accordance with their terms; and
9.3.2 any obligation under Section 6.O, "PAYMENT" shall survive and continue
until satisfied.
10.0 INFORMATION
10.1 Unless otherwise agreed to in writing by the authiorized representative
of both parties, neither party shall provide the other party with information
that is confidential to itself or any third party Accordingly, In the absence of
such a writing, no obligation of confidentiality of any kind is assumed by, or
shall be implied against, either party by virtue of its discussions and/or
correspondence with the other party or with respect to any information received
(in whatever form and whenever received) from the other party under this
Agreement or in activities related hereto notwithstanding any legend or
statement to the contrary.
10.2 Notwithstanding the foregoing, You agree to use the methods and
procedures You use to protect Your own information that You do not wish to
disclose, to avoid disclosure of the provisions of the terms and conditions of
this Agreement and its amendments. You may not disclose the terms and conditions
of this Agreement and its amendments to any third party without the prior
written consent of IBM. Such consent shall not be unreasonably withheld. You may
refer to this Agreement solely by stating IBM has been granted the right to
market and take orders for the Product(s).
11.0 GENERAL
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11.1 FREEDOM OF ACTION Nothing in this Agreement shall be construed as
prohibiting or restricting either party from independently developing,
acquiring, and marketing products, services, and other materials which are
competitive in any form with the Product(s).
11.1.2 EXPENSES Each party shall bear its own expenses.
11.3 ADVERTISING AND TRADEMARK USAGE
11.3.1 IBM hereby grants You the use of the IBM Business Partner Program
emblem ("Emblem") in Your advertising and promotional materials In the United
States and Puerto Rico for the Product(s) ("Advertising Materials"). You shall
not use the Emblem prior to IBM's initial announcement of the availability of
the Product(s) to the Marketing Force. Any use must comply with the instructions
set forth in guidelines Issued by IBM from time to time entitled "IBM
Advertising and Promotion Guidelines"("Guidelines").
A copy of the Guidelines shall be provided to You and is incorporated herein by
reference. You may not use the IBM logotype other than as part of the Emblem.
Except for Your press releases and as otherwise specified in the Guidelines, You
do not need to provide to IBM for IBM's prior review and approval Your
Advertising Materials incorporating trademarks or trade names of IBM or that
which refers to You as a participant in the IBM Software Vendor Marketing
Program if such use complies with the Guidelines. You must provide to IBM for
IBM's prior review and approval Your press releases if such release makes any
reference to the IBM Software Vendor Marketing Program. You shall make no
reference to IBM, IBM equipment and IBM products that may be misleading. You
agree to change, at Your expense, any Advertising Materials which IBM, In Its
sole judgment, determines to be inaccurate, objectionable, misleading, or a
misuse of IBM trademarks or trade names. You, on written demand by IBM, shall
immediately cease the use of any materials that IBM deems to be in violation of
this Section.
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Software Vendor Marketing Programs Agreement
11.3.2 The authorization granted in this Section 11.3, "Advertising and
Trademark Usage" shall terminate immediately upon the termination or expiration
of this Agreement. IBM reserves the right to modify or revoke the authorization
granted to You hereunder effective upon thirty (30) days written notice. Such
revocation shall be effective immediately upon written notice in the event of
any violation by You of the Guidelines or breach of this Agreement. Upon
revocation of the rights granted in this Section 11.3, "Advertising and
Trademark Usage" on page 5, or upon termination or expiration of this Agreement,
You shall cease using the Emblem, and shall destroy any and all Advertising
Materials.
13.3.3 Except as expressly provided herein, this Agreement grants You no right
to use IBM's trademarks or trade names in connection with any product,
promotion, or publication without the prior written consent of IBM.
11.3.4 You hereby authorize IBM to use Your trademarks, trade names and
copyrighted materials for the Product(s) solely in performing Marketing
Activities.
11.4 ASSIGNMENT AND DELEGATION You shall not sell, transfer, assign, or
subcontract any right or obligation hereunder without the prior written conset
of IBM. Any act in derogation of the foregoing shall be null and void. In no
event may You use the services of an IBM dealer or an IBM remarketer for the
performance of any obligation hereunder.
11.5 LIMITATIONS Except, for claims arising under the Sections entitled 7.0,
"WARRANTY" and 8.0, "INDEMNIFICATION. neither party shall be entitled to
indirect, incidental or consequential damages, including lost profits, based on
any breach or default under this Agreement.
11.6 NATURE OF THE RELATIONSHIP IBM is acting under this Agreement solely as
Your marketing representative. Nothing herein shall be deemed to create any
other relationship, including that of partnership. Neither You nor any employee
of Yours shall be considered an employee or agent of IBM for any purpose.
11.7 Notice Any notice required or permitted under this Agreement shall be
sent to:
In the case of IBM:
IBM Corporation
Vendor Marketing Programs
Department BAR (WG09A)
3200 Wndy Hill Road
Atlanta, GA 30339
In the case of You:
Synon Corporation
1100 Larkspur Landing Circle
Larkspur, CA 94939
11.8 PAYMENT
11.8.1 Any payment to IBM under this Agreement shall be sent to:
IBM Corporation
Vendor Marketing Programs Control Desk
Department BAR (WG09A)
12
3200 Windy Hill Road
Atlanta, GA 30339
11.9 GOVERNING LAW The validity, construction, and performance of this
Agreement will be governed by the substantive law of the State of New York.
11.10 AMENDMENTS IN WRITING No amendment, modification or waiver of any
provision of this Agreement shall be effective unless it is set forth in a
writing which refers to the provisions so affected and is executed by an
authorized representative of both parties. No failure or delay by IBM in
exercising any right, power or remedy will operate as a waiver of any such
right, power, or remedy.
11.11 ENTIRE AGREEMENT The provisions of this Agreement constitute the entire
agreement between the parties and supersede all prior agreements, oral or
written, relating to the subject matter of this Agreement. Any payments due IBM
under this Agreement shall be separate from, and in addition to, any due IBM
under any other agreement between the parties.
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Software Vendor Marketing Programs Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective Authorized Representatives.
International Business Machines Corporation Synon Corporation
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
By:/s/ Jeff Mason By:/s/ Richard Goldberg
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Jeff Mason Richard Goldberg
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Print Name Print Name
GM, Solution Provider Programs CEO
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Title Title
4/7/97 3/11/97
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Date Date
GENERAL 7
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Software Vendor Marketing Programs Agreement
ATTACHMENT A - PRODUCT(S) LIST
List in the table below or attach separately in table form the Products and
applicable percentage due IBM. A more detailed description of the product(s) may
follow below the table or attached separately.
1.0 PRODUCTS AND APPLICABLE PERCENTAGE:
PRODUCT(S) PERCENTAGE
Obsydian [ ]*
* Confidential treatment has been requested from the Securities and Exchange
Commission. Omitted portions have been filed separately with the Commission.
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