1
CONFIDENTIAL AND PROPRIETARY
Agreement No. 94151V
VALUE ADDED RESELLER LICENSE AGREEMENT
FOR UNIFACE SOFTWARE
("Agreement")
THIS AGREEMENT is between:
JDA Software Group, Inc.
14400 North 87th Street
Scottsdale, AZ 85260-3649
hereafter "VAR" and Compuware Corporation, a Michigan corporation, with offices
at 31440 Northwestern Highway, Farmington Hills, MI 48334, United States,
(hereafter "Compuware") effective April 1, 2000, ("Effective Date") and ending
March 31, 2005, ("Term"). This Term may be extended an additional three (3)
years upon mutual consent of VAR and Compuware.
[COMPUWARE LOGO]
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Table of Contents
I. PARTIES............................................................................ 3
II. SCOPE OF THIS AGREEMENT............................................................ 3
III. DEFINITIONS........................................................................ 3
IV. TERMS AND CONDITIONS............................................................... 5
V. ENTIRE AGREEMENT................................................................... 19
VI. EXHIBIT LIST....................................................................... 20
VII. EXHIBIT I. VAR PROFILE............................................................. 21
IX. EXHIBIT II. REMARKETERS LIST....................................................... 24
X. EXHIBIT III. COMPUWARE TRIAL AGREEMENT............................................. 26
XI. EXHIBIT IV. VAR QUARTERLY ROYALTY REPORT........................................... 27
XII. EXHIBIT V. NON-DISCLOSURE AGREEMENT................................................ 28
XIII. EXHIBIT VI. SAMPLE COMPUWARE LICENSE AGREEMENT AND PRODUCT SCHEDULE................ 31
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I. PARTIES
Compuware designs, develops and licenses computer programs and provides
related services. VAR is a "value added reseller", as defined herein,
of computer programs and related services. Each party represents that
it is engaged in the business described herein and that it has all
rights and authority to enter into this Agreement and undertake the
obligations contained herein.
II. SCOPE OF THIS AGREEMENT
Subject to the terms and conditions of this Agreement, including the
Exhibits referenced herein, Compuware agrees to license and provide,
and VAR agrees to license UNIFACE Software and purchase services on a
worldwide basis as defined herein during the term of this Agreement.
Specifically, this Agreement grants VAR the right to incorporate into
the VAR Application Software and distribute to its customers:
- UNIFACE Runtime
- Application Server
- Component Server
- Web Application Server
- Polyserver
This Agreement DOES NOT include right to distribute:
- UNIFACE Development Licenses
- General Use UNIFACE Runtime Licenses
- UNIFACE Mainframe Software
III. DEFINITIONS
(a) "Annual Maintenance Plan" means the Support Services described
herein to be provided by Compuware to VAR for UNIFACE Software
during a one year period.
(b) "VAR Application Software" means the specific computer
software program developed by VAR using UNIFACE Software and
containing UNIFACE Content as described in Exhibit I. VAR
Application Software includes Deployment Software.
(c) "UNIFACE Content" means software developed with the UNIFACE
Development environment or containing elements of the UNIFACE
runtime system. VAR software that meets the following criteria
does not contain UNIFACE Content: (i) sold as a separate line
item by VAR for use with VAR Application Software; (ii) does
not use any UNIFACE data access mechanisms to access data;
(iii) can execute without using any element of UNIFACE; (iv)
can execute on a system on which UNIFACE is not installed; (v)
does not access the UNIFACE meta dictionary; and (vi) was not
built using the UNIFACE development environment.
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(d) "UNIFACE Software" means the object code version of the Compuware
software program "UNIFACE Application Development and Deployment
System", listed in Exhibit I, in such form, version, release and
content as initially licensed to VAR under this Agreement including a
copy of any user documentation normally supplied by Compuware.
(e) "Deployment Software" means the object code, run-time portion of
UNIFACE Software incorporated in the VAR Application Software.
(f) "Development Software" means the development portion of UNIFACE
Software to be accessed and used solely by the VAR only to develop,
maintain or modify the VAR Application Software, including VAR
Application Software development or enhancements for specific End User
installation requirements.
(g) "End User" means a VAR Application Software licensee.
(h) "Proprietary Information" means UNIFACE Software, VAR Application
Software and any other information (including business information)
confidential to Compuware or its licensors, or confidential to VAR or
its licensors which is disclosed to Compuware by VAR or to VAR by
Compuware.
(i) "Severity One Defect" means a defect exclusively within the Deployment
Software that causes the VAR Application Software to: (i) fail to
execute; (ii) malfunction in a manner that adversely affects data
integrity in the database or in the reporting of data; or (iii)
sustain a highly visible error with no available workaround.
(j) "Support Services" as used herein means the standard Compuware
software maintenance services of UNIFACE Software, including all
copies of Development and Deployment Software. Such Support Services
are mandatory for UNIFACE Software licensed to develop and support VAR
Application Software and must be procured on an annual bases. If VAR
permanently discontinues its use of a product it may elect to
discontinue maintenance.
(k) "Royalties" means the monies due to Compuware for each license of VAR
Application Software as set forth in Exhibit I.
(l) "Sales and Marketing Purposes" means Deployment Software used by VAR,
its agents or distributors for sales, benchmarking, or demonstrating
the VAR Application Software. Said use shall be limited to periods of
up to 30 days per perspective End User.
(m) "Major Release" is a new version of UNIFACE Software as defined by
Compuware that includes new functionality. Typically, a Major Release
is indicated by a change in release number to the right of the decimal
point (i.e. the conversion from UNIFACE 7.1 to 7.2).
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(n) "Maintenance Release" is a change made within one Major Release that
may contain bug fixes and/or improvements (e.g., from UNIFACE 6.1.d
to UNIFACE 6.1.e; from UNIFACE 7.1.01 to 7.1.02, etc.).
IV TERMS AND CONDITIONS
1. Value Added Reseller License
(a) Compuware grants VAR a non-exclusive, non-transferable license to use
UNIFACE Software only to market, develop and deploy VAR Application
Software upon the terms and conditions herein contained on the
platforms and in the operating environments at the location identified
on Exhibit I and in Product Schedule(s). Such license for marketing
will be limited for use by VAR, its contractors, agents and
distributors for Sales and Marketing Purposes. Such license for
development will be limited for use by JDA employees or contractors to
develop, modify, enhance and maintain the VAR Application Software
defined in Exhibit I. Such license for deployment will be limited to
an authorized market and territory assignment as defined in Exhibit I.
Except as expressly hereby authorized, VAR is not licensed by this
Agreement to use the UNIFACE Software for any other purpose. VAR
agrees to maintain sufficient development licenses to meet peak usage
requirements, such that at no time are there more development licenses
installed on VARs, VAR's contractors, or VAR's agents machines than
have been purchased by VAR.
(b) The parties hereby agree and undertake at all times during the term of
this Agreement:
- conduct business in a businesslike manner and not engage in
deceptive, misleading, illegal or unethical business practices.
- VAR will accurately represent the VAR Application Software in
terms of function and performance;
- VAR will market the VAR Application Software only pursuant to
terms which are consistent with the terms of this Agreement;
- not make any representations, warranties or guarantees that are
inconsistent with or in addition to those made in this
Agreement;
- VAR will provide End Users with technical and maintenance
support;
- notify the other party immediately of any legal or other
notices which come to such party's knowledge and which may
potentially affect the other party, its licensors and/or
vendors and,
- VAR will promptly respond to any verified complaints regarding
VAR Application Software received from its End Users.
(c) By paying the fees then in effect, minus applicable discounts, the
UNIFACE Software may be licensed for use on qualified alternate
platforms and in additional environments.
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(d) Title to UNIFACE Software will remain with Compuware. VAR will acquire no
rights to any UNIFACE Software, except to the extent VAR acquires the
right to use the UNIFACE Software to market, develop and deploy VAR
Application Software.
(e) Title to VAR Application Software will remain with VAR. Compuware will
acquire no rights to any VAR Application Software.
(f) Except for subsidiaries that are at least fifty-one percent (51%) owned
or controlled by VAR, VAR shall not assign or transfer its rights in, or
obligations under, this Agreement without the prior written consent of
Compuware. In the event of the sale of all or substantially all of VAR's
assets, Compuware will allow the new entity to license the UNIFACE
Software under substantially the same terms contained herein at the then
current published license fee, less the previously paid license fees for
the UNIFACE Software licensed to VAR. Compuware reserves the right to
withhold this option if the new entity is a direct competitor of
Compuware, an entity with which Compuware is involved in litigation, or
an entity with which Compuware has encountered a previous incidence of
intellectual property right infringement. Any assignment or transfer
prohibited by this provision will be void.
(g) In no event is VAR authorized hereunder to enter into an agreement with
others to distribute, remarket or otherwise sub-license VAR Application
Software, other than those distributors identified in Exhibit II, without
the prior, written consent of Compuware, which shall not be unreasonably
withheld. Any such agreement with others shall be limited to the
distribution of VAR Application Software and shall contain no other
rights or provisions that may jeopardize the intellectual property rights
of Compuware.
(h) The VAR Application Software shall not contain Development Software, and
nothing in this Agreement shall authorize, grant or otherwise permit the
transfer or disclosure of Development Software by VAR to others.
(i) VAR shall observe all applicable laws and regulations in respect of and
obtain all necessary licenses, consents and permissions required for the
marketing and license of VAR Application Software, (including without
limitation, the U.S. Export Administration Regulations and U.S.
Department of Commerce Regulations and EU dual use legislation and local
import and export regulations regarding the export or transfer of goods),
and VAR shall provide Compuware with all information reasonably necessary
to ensure that the UNIFACE Software complies with local laws and
regulations and promptly advise Compuware of any change or proposed
change in such laws and regulations known to VAR.
(j) VAR and Compuware may modify the Market and Territory Assignment set out
in Exhibit I by prior written agreement.
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(k) VAR acknowledges that each copy of UNIFACE Software and the Deployment
Software included in VAR Application Software licensed to an End-User will
require a software enabling key ("SEK") that will be issued by Compuware
upon receipt of: (i) name and address of End-User, (ii) description of
products, (iii) Royalty, and (iv) description of the End-User's
infrastructure (i.e. Platforms, databases, etc.).
(l) VAR shall include in the VAR Application Software and on the exterior label
of every media, a copyright notice in this form: "Portions of this program,
Copyright 199 , Compuware, All Rights Reserved." In cases where the VAR
Application Software is contained in Read-Only-Memory (ROM) chips, a
copyright notice in the form listed above, must be displayed on the
exterior of the chip and internally in the chip in ASCII literal form.
(m) In order to ensure that VAR will be capable of providing support to End
Users and as a condition to the right of VAR to grant sublicenses to End
Users pursuant to the terms of this Agreement, VAR agrees that, with
respect to each qualified hardware, platform and operating system
configuration set forth on Exhibit I for which VAR intends to grant a
sublicense, VAR shall purchase a license from Compuware for use of the
UNIFACE Software on such designated platform and configurations in the
quantities required by VAR to develop deploy, maintain and support VAR
Application Software, shall install UNIFACE Software on such designated
platforms and configuration and shall obtain and maintain the Support
Services for such UNIFACE Software.
(n) VAR shall have the right to use VAR Application Software incorporating the
Deployment Software, without incurring any obligation to pay royalties to
Compuware in respect thereof, for Sales and Marketing Purposes.
(o) VAR may deliver copies of the VAR Application Software to a prospective End
User on a trial basis for evaluation purposes only after such prospective
End User has signed a trial license with provisions comparable to those
contained in the Compuware Trial Agreement, a copy of which is attached as
Exhibit III hereto. All such evaluation copies of the VAR Application
Software installed by VAR at a prospective End User's site shall be removed
by VAR upon completion of the evaluation period. Any evaluation copies not
removed and returned to VAR at the end of the evaluation period, which
includes any extension of such evaluation period, are deemed to be
licensed, and royalties and related maintenance and support fees in respect
thereof shall become immediately due to Compuware.
(p) Compuware reserves the right to License, support, install and service its
products, including without limitation UNIFACE Software, either directly to
End Users or through other VAR's, representatives, distributors or other
distribution channels. VAR hereby acknowledges that Compuware may
independently develop, or have developed for it, sell and market either
directly or indirectly, products similar to the VAR Application Software
and
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nothing herein shall be deemed to give VAR an exclusive right to develop or
sell products similar to the VAR Application Software. Notwithstanding
anything in this Agreement to the contrary, Compuware shall not market or
license Deployment Software to End Users for incorporation into VAR
Application Software. If Compuware does market Deployment Software to End
Users for incorporation into VAR Application Software, VAR will not owe
Compuware the applicable royalty for the VAR Application Software that VAR
licensed to such End User.
(q) VAR shall maintain accurate books and records of all dealings under this
Agreement including any licensing of UNIFACE Software and VAR Application
Software and the furnishing of support services. Such books and records
shall be prepared and maintained in a manner that will reasonably
facilitate Compuware's verification of each report prepared by VAR. Such
books and records shall be kept and maintained by VAR during the term of
this Agreement and for a period of not less than three years from the date
of the transaction. If this Agreement is terminated, VAR shall transfer
copies of all such books and records to Compuware within a period of thirty
(30) days of such termination upon Compuware's written request.
(r) VAR agrees to provide to Compuware a quarterly report setting out the
licensing and services furnished under the Agreement including a
reconciliation of royalties due Compuware in a form substantially in the
form of Exhibit IV. Such report shall be submitted to Compuware no later
than thirty (30) days after the end of each calendar quarter in which this
Agreement is in effect.
In addition, VAR agrees to provide to Compuware a report of each
installation of VAR Application Software that report shall include details
of End Users (a purchase order that includes End User name and address,
description of products, and description of infrastructure, i.e. platforms,
databases, etc.). Such report shall be submitted to Compuware upon the
installation and/or the license of the VAR Application Software of the End
User, whichever occurs sooner.
(s) Compuware shall have the right, not more than once during each of VAR's
fiscal years, on reasonable notice and during normal business hours to
visit and inspect VAR's place of business and applicable sales records to
attempt to verify VAR's compliance with its obligations under this
Agreement. Additionally, VAR agrees that Compuware shall have the right to
have VAR's books and records of sales audited by an independent auditor of
Compuware's choice not more than once during each of VAR's fiscal years,
but not during the months of January or February. Such auditor's fees shall
be borne by Compuware, unless such audit shows an underpayment of royalties
of 5% or more of the royalties actually owing for the period in question,
in which event, the auditor's fees shall be paid by VAR.
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2. Sublicense of Deployment Software
(a) VAR agrees to use, market and sublicense the Deployment Software solely and
exclusively as part of the VAR Application Software for the exclusive use
by its End Users on supported UNIFACE Software platforms.
(b) VAR will distribute the Deployment Software as incorporated in the VAR
Application Software to End Users only after VAR and such End Users have
entered into a software license agreement containing substantially the
following terms:
(i) End User will not adapt, translate, decompile, disassemble or create
derivative works unless End User licenses Source Code from VAR, in
which case, VAR shall 1) notify Compuware of End User's source code
license, 2) pay Compuware a royalty rate of seven percent (7%) of the
source code license fee, and 3) VAR will require End User to license
appropriate number of Development Licenses.
(ii) End User will not sublicense, rent, lease or otherwise assign or
transfer this Agreement or the VAR Application Software.
Notwithstanding the foregoing, the End User can be permitted to
assign or transfer the license for the VAR Application Software
provided that (i) Compuware receives advance written notification,
and (ii) the assignee or transferee agrees in writing to be fully
bound by the terms and conditions of the software license agreement.
Variance with these terms will result in the automatic termination of
End User's license;
(iii) End User may make a reasonable number of copies necessary to
exercise their license grants. End User shall reproduce and include
the copyright notice of VAR and Compuware on any copy of the VAR
Application Software;
(v) End User acknowledges and understands that portions of the VAR
Application Software are licensed to VAR by Compuware;
(vi) The copyright and other intellectual property rights in the VAR
Application Software except for the Deployment Software are and at
all times shall remain the property of VAR or its licensors and End
Users agrees that the Application Software is for internal data
processing purposes of End Users and agrees not to copy nor disclose
the VAR Application Software to others.
(vii) Compuware regards the UNIFACE Software as proprietary information
and as trade secrets. End User agrees to hold such proprietary
information or trade secrets in strictest confidence, not to disclose
it to any third party and to exercise the same degree of care (but no
less than reasonable care) to safeguard the
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confidentiality of such information as End User would exercise
to safeguard its own proprietary information of a similar nature.
(viii) End User agrees that Compuware shall have the right, as an
intended third-party beneficiary of this Agreement, to rely upon
and directly enforce the terms set forth in this Agreement.
(c) VAR will offer to provide End-User with ongoing support service.
3. Orders, Delivery and Acceptance
(a) All orders for Development Software issued by VAR will be in writing on a
Product Schedule, will refer to and be subject to the terms and conditions
of this Agreement, the Product Schedule and any Exhibits, and will be
forwarded to the Compuware managing office at the address set forth in
Exhibit I. Any additional terms and conditions contained on any purchase
order or other VAR order document are of no force or effect, and Compuware
hereby gives notice of objection to such additional terms. Orders will bind
Compuware only when accepted by written confirmation.
(b) The UNIFACE Software described in the Product Schedule(s) will be deemed
accepted by VAR upon VAR's execution of the Product Schedule(s) or upon
VAR's use of the UNIFACE Software, whichever is earlier.
(c) Compuware will package and ship UNIFACE Software in accordance with its
standard practices. Shipment will be by means selected by Compuware. Risk
of loss and damage will pass to VAR upon delivery to VAR's location.
4. Fees and Royalties
(a) Royalties. In consideration of the rights granted herein, VAR agrees to pay
Compuware the license fees for the UNIFACE Software as set out in Exhibit I
and royalties for each copy of VAR Application Software as set out in
Exhibit I licensed to use or accessed by an End User (except for evaluation
copies under Section IV.1(o), whether or not VAR has received payment from
End User. The royalties will be calculated as set forth in Exhibit I and
payable under the terms of this Agreement.
(b) Support Services Fees for UNIFACE Software and VAR Application Software.
VAR agrees to pay annual Support Services fees on UNIFACE Software and
Deployment Software by paying in advance the Support Services fees set
forth in Exhibit I.
5. Payment terms
(a) Payment of License Fees and Support Services Fees. Invoices will be issued
by Compuware upon execution of the Agreement and subsequent Product
Schedules for all UNIFACE Software and for Support Services.
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Support Service fees renew annually after the initial period. Payment terms
are net thirty (30) days from the date of invoice and payable in US
dollars.
(b) Payment of Royalties and Support Services Fees. VAR shall pay royalties
and Support Services fees due Compuware within thirty (30) days after the
end of each month in which fees for such royalties or End Users support
fees were recognized. Royalty and Support Services payments shall be made
to Compuware in US dollars.
(c) Compuware may impose a late payment charge on all undisputed unpaid fees
and royalties equal to the lesser of (i) 1% per month of the outstanding
amount due or (ii) the maximum rate allowed by law. If VAR becomes
delinquent in the payment of any amount due, Compuware may, among other
remedies available at law or in equity, suspend performance under this
Agreement.
(d) If Compuware fails to remedy Severity One Defects in the UNIFACE Software
within a commercially reasonable period, VAR may, among other remedies
available at law or in equity under this Agreement, with regard to those
End Users who are under a current maintenance program and are experiencing
the Severity One Defects problem:
(i) suspend performance;
(ii) cease to pay maintenance; and
(iii) apply one of the following remedies with respect to each
End User experiencing the Severity One Defects:
a) withhold payment to Compuware in an amount equal to
UNIFACE Software royalties paid by such Severity One
experiencing End User; or
b) receive a credit of royalty for the Severity One
experiencing End User where VAR issues a credit as a
result of Severity One Defects.
(e) If Compuware fails to release a Major Release within 24 months of the
previous Major Release, the then current royalty rate shall decrease (0.5%)
for each year thereafter in which a Major Release is not released
("Adjustment"). If Compuware has not issued a Major Release within 24
months during a prepay royalty period, the prepaid royalty rate will remain
in effect with the Adjustment after the expiration of the pre-paid royalty
period, until such time that a Major Release is issued. At such time, the
royalty rate will revert to the rate specified in Exhibit I (the non-prepay
royalty rate) or JDA may elect to make an additional pre-payment at that
time to reinstate the 7% rate. Compuware will provide a credit to JDA
towards future royalties equivalent to the amount JDA would have paid if no
Adjustment(s) were made, less what JDA actually paid with the
Adjustment(s).
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6. Support and Obligations Of VAR
(a) As between Compuware and VAR, VAR shall be responsible for first line
support to End Users of the VAR Application Software, whether or not
VAR charges End User(s) for support. VAR shall provide End Users on
support for which maintenance service was paid with (i) first line
technical support by maintaining a qualified support group, (ii) a
service to ascertain the nature of problems an End-User may be
experiencing and correct such problems, and (iii) other related
maintenance services.
(b) Annual Maintenance Plan services and fees are mandatory for both
UNIFACE Software and for Deployment Software for the first year.
Thereafter, VAR shall pay Compuware maintenance for each Deployment
Software for which it assesses maintenance fees. Annual Maintenance
Plan fees are set out in Exhibit I and are payable annually in advance.
If an Annual Maintenance Plan is not continued, no support will be
provided, including providing of enhancements, new releases, or fixes
and a new version of ODBMS would require a royalty payment based on the
license fee charged by VAR.
7. Obligations Of Compuware
(a) Compuware will make available upon request, with reasonable notice, to
VAR's sales and technical staff sales collateral materials as
reasonably required regarding UNIFACE Software, to use. Compuware will
also make available upon request, with reasonable notice, and at the
expense of VAR, training services. The type and cost for such training
will be as specified in a Product Schedule.
(b) VAR will be entitled to the following services from Compuware:
- the supply of any available Maintenance Release and/or updates of
the appropriate UNIFACE Software;
- user documentation on payment of a charge for the media,
transportation and handling charges involved;
- copies of Compuware's technical bulletin normally furnished by
Compuware to customers as and when the same are published by
Compuware;
- non-exclusive access to technical hotline support from Compuware.
(c) The technical hotline is only for use by employees or contractors of
VAR who received training in the use of UNIFACE Software. VAR agrees to
have at all times a staff of a minimum of two (2) persons who received
such training. The technical hotline will only be used to resolve
problems stemming from the demonstrable failure of the UNIFACE Software
to work in accordance with Compuware user manuals as updated from time
to time. Any other use of the technical hotline by VAR will be
chargeable by
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Compuware in accordance with Compuware's normal practice and payable by VAR
within thirty (30) days of the date of Compuware's invoice therefor.
(d) VAR acknowledges that the technical hotline is not for use by End Users and
shall not permit any End User to make direct use of the technical hotline.
(e) Compuware will provide VAR with (i) a reasonable quantity of brochures and
other sales promotion material at no charge and (ii) periodic marketing
communications and updates regarding the UNIFACE Software. At VAR's
request, Compuware will furnish additional copies of any available
non-proprietary materials regarding the UNIFACE Software at Compuware's
then current cost.
(f) Additional products and services are available from Compuware at
Compuware's then current rates and terms.
8. Warranties And Disclaimers
(a) Compuware warrants that UNIFACE Software delivered by Compuware to VAR will
operate on designated platforms in substantial accordance with the
specifications set forth in Compuware user manuals.
(b) This warranty does not apply to any UNIFACE Software that: (i) has been
altered; (ii) has not been handled, installed, maintained, or operated in
substantial accordance with Compuware instructions; or (iii) has been
damaged by accident, misuse, negligence, or external factors.
(c) Compuware warrants that any services furnished by it pursuant to this
Agreement will be performed with reasonable skill and care consistent with
industry standards.
(d) Compuware warrants that it has all right, title and interest in the UNIFACE
Software necessary to grant the rights contained herein.
(e) YEAR 2000 WARRANTY:
Provided payment for maintenance is current and Licensee has installed the
latest available Software release, Compuware warrants that all new releases
of the Software licensed hereunder, marketed as "Year 2000 Compliant" and
made generally available after July 1, 1998 are enabled to process post
year 2000 dates. Specifically, Compuware defines year 2000 compliant as the
Software being functional in a post year 2000 environment and will perform
substantially as stated in the Software documentation. Compuware Software
may display dates in either 2 or 4 digit year formats. If 2 digit year
displays are used, it will be clearly evident to the Software user, based
on Software function and documentation, that the 2 digit "00" represents
the year 2000. When required, Software will either process with 4 digit
years and/or implement
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century windowing techniques to handle and process post year 2000 dates.
The above Year 2000 warranty shall be incorporated into the Agreement and
subject to all terms, conditions, restrictions and limitations contained
therein including, but not limited to the Limitation of Liabilities and
Indemnification.
(f) VIRUS: Compuware warrants that it has taken reasonable steps to test any
Software delivered hereunder for Computer Virus and that the Software is
free of Computer Viruses as of the date of delivery by Compuware and that
Compuware will continue to take such steps with respect to future
enhancements or modifications to the Software. "Computer Virus" is defined
as computer instructions that alter, destroy or inhibit the Software and/or
Licensee's processing environment, including, but not limited to, other
programs that self-replicate without manual intervention, instructions
programmed to activate at a predetermined time or upon a specific event,
and/or programs purporting to do a meaningful function but designed for a
different function. Compuware will maintain a master copy of each version
of the Software, to the best of Compuware's knowledge to be free and clear
of any Computer Virus.
(g) VAR is relying on its own skill and judgment in relation to the UNIFACE
Software irrespective of any knowledge it or its servants or agents may
possess as to the purpose for which the UNIFACE Software is supplied and
Compuware makes no warranty that the UNIFACE Software will meet VAR's
requirements or those of any End User.
(h) Notwithstanding the foregoing, Compuware makes no warranty that operation
of the UNIFACE Software will be uninterrupted or error-free, nor that the
UNIFACE Software will be compatible with and/or work in conjunction with
any VAR Application Software or any other software or hardware.
(i) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES,
EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND ALL SOFTWARE,
SERVICES AND OTHER ITEMS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY
KIND. COMPUWARE DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AS TO BOTH COMPUWARE AND NON-COMPUWARE
PRODUCTS. ANY WARRANTIES MADE TO VAR UNDER THIS AGREEMENT EXTEND SOLELY TO
VAR.
9. Limitations Of Liability And Indemnification.
(a) VAR's sole and exclusive remedies for damages from any cause related to or
arising out of this Agreement whether, based on negligence, breach of
contract, warranty or other legal theory, will be those provided in this
Agreement.
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(b) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (I) ANY INCIDENTAL,
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED
TO, LOSS OF USE, LOSS OF GOODWILL OR THE DIMINUTION IN THE VALUE OF
VAR'S BUSINESS, REVENUES, PROFITS OR SAVINGS; OR (II) CLAIMS, DEMANDS
OR ACTIONS AGAINST THE OTHER PARTY BY ANY PERSONS, EXCEPT AS PROVIDED
IN SECTION 10, AND COMPUWARE'S RIGHT TO COLLECT LICENSE FEE'S OR
REVENUE DUE TO UNAUTHORIZED USE OF UNIFACE SOFTWARE. EXCEPT FOR CLAIMS
ARISING OUT OF EACH PARTY'S OBLIGATIONS UNDER SECTION 10, VAR'S MISUSE
OF COMPUWARE'S UNIFACE SOFTWARE, OR VAR'S VIOLATION OF SECTION 12(A):
CONFIDENTIALITY OF UNIFACE, NEITHER PARTY'S LIABILITY FOR ANY AND ALL
CAUSES, WHETHER BASED ON NEGLIGENCE, BREACH OF CONTRACT, WARRANTY OR
OTHER LEGAL THEORY, SHALL EXCEED CHARGES PAID BY VAR TO COMPUWARE FOR
THE UNIFACE SOFTWARE THAT IS THE SUBJECT MATTER OF THE CAUSE OF ACTION
ASSERTED DURING THE TWENTY-FOUR (24) MONTH PERIOD IMMEDIATELY
PRECEDING NOTICE TO THE OTHER PARTY OF SUCH CLAIM OR CAUSE.
(c) Each party acknowledges that any breach of its obligations with
respect to proprietary rights of the other party may cause such party
irreparable injury for which there are inadequate remedies at law and
that Compuware shall be entitled to seek equitable relief in addition
to all other remedies available to it.
(d) Except for the remedies provided to VAR in this Agreement, and subject
to the limitations set forth in 9(b), and provided Compuware provides
VAR with prompt written notice, reasonable assistance, and authority
to defend or settle all non-UNIFACE product or intellectual property
right disputes, VAR will indemnify and hold Compuware harmless against
any claims, costs, damages and liabilities arising out of or in any
way connected with: (i) any breach of this Agreement by VAR, its
employees or agents; and (ii) any claim by End Users or other third
parties with respect to VAR's products (excluding claims based
exclusively upon UNIFACE components independent of their use with VAR
Application Software) or other non-Compuware products provided,
recommended or referred by VAR. Such indemnification will include all
reasonable legal fees and other costs incurred by Compuware in
defending any such claims. Termination or cancellation of this
Agreement will not affect VAR's indemnification obligations.
(e) Compuware software licensors shall have no liability with respect to
any claim of VAR or a third party on account of, resulting from, or
arising out of the use of any software, services or products provided
by such licensor or derived from such licensor's software. Compuware
software licensors shall have no obligation to furnish any assistance,
information or documentation with respect to any software, services or
products.
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CONFIDENTIAL AND PROPRIETARY
(f) Any legal proceeding, regardless of form, arising out of this Agreement
must be commenced within two (2) years after the cause of action first
occurs or shall forever thereafter be barred.
10. Patent, Copyright and Trade Secret Indemnification
(a) Compuware, at its own expense, will defend VAR against claims that the
UNIFACE Software furnished under this Agreement infringe upon any patent,
copyright, trade secret or other intellectual property rights, provided
VAR; (i) gives Compuware prompt written notice of such claims pursuant to
Section 14(g), (ii) permits Compuware to defend or settle the claims, and
(iii) provides all reasonable assistance to Compuware in defending or
settling the claims. Termination or cancellation of this Agreement will
not affect Compuware's indemnification obligations.
(b) Compuware shall have no obligation for or with respect to claims, actions,
or demands alleging infringement by VAR Application Software based on any
of the following:
- unauthorized modification of the UNIFACE Software;
- a Major Release of the UNIFACE Software other than the current or one
prior Major Release if the current or prior Major Release would be
non-infringing;
- use of the UNIFACE Software in combination with non-Compuware programs;
- third party-software which form part of, or is bundled with, the UNIFACE
Software.
(c) As to any UNIFACE Software which is in and of itself, in the opinion of
Compuware, subject to a claim of infringement or misappropriation,
Compuware may elect to; (i) obtain the right of continued use and
remarketing of the UNIFACE Software for VAR as provided under this
Agreement, or (ii) replace or modify such UNIFACE Software to avoid such
claim. If neither alternative is, in the opinion of Compuware, available
on commercially reasonable terms and costs, then any applicable license to
VAR will terminate and Compuware will provide a refund of the applicable
royalty percentage rate equal to the percentage of the VAR Application
License Fee VAR refunds to End User as determined by its negotiated End
User agreements.
(d) Compuware will not defend or indemnify VAR and shall have no liability or
responsibility for any claim of infringement or misappropriation asserted
by a parent or subsidiary of VAR.
(e) This Section 10 states the entire liability of Compuware and VAR's sole
and exclusive remedies for patent or copyright infringement and trade
secret misappropriation.
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CONFIDENTIAL AND PROPRIETARY
11. Trademarks And Trade Names; Advertising
(a) As a value added reseller, VAR shall have the right to use the legend
"UNIFACE Software Valued Added Reseller - Compuware Corporation" in
advertising, correspondence, proposals or other materials provided
that such legend appears in type smaller and less prominent than VAR's
own name or mark.
(b) Compuware may provide VAR with formats for use by VAR in advertising
and promoting the VAR Application Software. In using the formats, VAR
will comply with all related instructions provided by Compuware. In
addition, Compuware will provide VAR with written guidelines to
assist VAR in developing other advertising and promotional programs
and materials. All such programs and materials must be submitted to
and approved in writing by Compuware (except as to price and terms of
sale VAR intends to offer) before use.
(c) No right or license is granted by Compuware to VAR to use Compuware
trademarks or trade names except as they appear on VAR Application
Software marketed by VAR or as authorized by Compuware. VAR will not
affix any Compuware trademarks, logos or trade names to any software
and will not disturb any legend, notice, label, or designation of any
Compuware trademark, logo or trade name.
12. Protection Of Proprietary Information
(a) VAR information that has not been released publicly and considered to
be confidential will be treated in accordance with the terms and
conditions of the Non-Disclosure Agreement set out in Exhibit V. The
parties will keep in confidence and protect Proprietary Information
of the other party from disclosure to third parties and use
Proprietary Information only for the purpose of performing under this
Agreement. Each party acknowledges that unauthorized disclosure of
Proprietary Information may cause substantial economic loss to the
non-disclosing party or its licensors. Each party will inform its
employees of their obligations under this Section 12 and instruct them
so as to insure such obligations are met. This Section 12 will not be
construed to grant to either party any license or other rights in the
other party's Proprietary Information, except as expressly set forth
in this Section. Upon termination or cancellation of this Agreement,
Each party will destroy (and, in writing, certify destruction) or
return to the other party all copies of the other party's Proprietary
Information in such party's possession. VAR's obligations under this
Section 12 will survive termination or cancellation of this Agreement.
13. Term, Termination and Cancellation
(a) This Agreement will begin on the Effective Date, specified on the
first page of this Agreement, and continue in effect to the stated
Termination
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CONFIDENTIAL AND PROPRIETARY
Date, unless extended in accordance with Exhibit I, or canceled or
terminated as provided below.
(b) Except as provided in Sections 13(d) if either party materially
breaches this Agreement, the other may cancel it upon 30 days written
notice unless the breach is cured within the notice period.
(c) Compuware may cancel this Agreement at any time upon written notice,
without providing VAR with any opportunity to cure, if VAR breaches
any of its obligations under Sections IV.1, or IV.12 or if VAR
- enters into liquidation whether compulsory or voluntarily
otherwise than for the purpose of amalgamation or reconstruction
without insolvency;
- compound or make any arrangement with creditors;
- have a receiver or manager appointed in respect of any or any
part of its assets; or
- be the subject of any application for an administration order.
(d) Orders outstanding on the effective date of termination or
cancellation will be subject, at the reasonable discretion of
Compuware, to acceptance, rejection or performance as if this
Agreement remained in force. Payment terms for orders accepted after
the date of notice of termination or cancellation will be as
specified by Compuware.
(e) Upon the effective date of termination or cancellation VAR will pay
Compuware for all undisputed UNIFACE Software, Royalties, and Support
Services irrespective of the date of delivery, and all other
undisputed amounts then owed Compuware. VAR will also discontinue use
of its designation as a value added reseller of Compuware.
(f) No damages (whether direct, consequential, special or incidental and
including expenditures and loss of profit and goodwill or other
diminution in the value of VAR's business), indemnities, except as
required under Section 10, or other compensation will be due or
payable to VAR by reason of termination or cancellation of this
Agreement.
14. Other Provisions
(a) This Agreement will be governed by the laws of the State of Michigan.
(b) Either party retains the option with respect to the right to apply to
a court of competent jurisdiction for equitable relief.
(c) The parties shall attempt to resolve claims or controversies arising
out of or related to this Agreement in the following manner:
A Vice President for each party with full authority to negotiate and
resolve issues in question shall meet and attempt to settle all
outstanding disputes within ten (10) business days of time dispute
arose. After such
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CONFIDENTIAL AND PROPRIETARY
initial meeting, if the dispute is not resolved within the next thirty
(30) days, the parties shall pursue alternate remedies.
(d) The relationship of Compuware and VAR under this Agreement is that of
licensor and licensee only and neither is authorized to act as the
agent of the other. In all matters relating to this Agreement, VAR
will act as an independent contractor. No franchise is intended or
created by the relationship of Compuware and VAR under this Agreement.
Neither party will make representations purportedly on behalf of the
other party, otherwise than as precisely set forth in this Agreement
and as set forth in Compuware's supplied user materials.
(e) Any failure or delay by either party in exercising any right or remedy
will not constitute a waiver. The waiver of any one default will not
waive subsequent defaults of the same or different kind.
(f) Neither party will be liable for any failure to fulfill its
obligations due to causes beyond its reasonable control including,
without limitation, the bankruptcy of any supplier or commercial
impossibility.
(g) All notices required by this Agreement to be given to VAR will be sent
by certified or registered mail addressed to its address on the first
page of this Agreement. Notices to be given to Compuware will be sent
by certified or registered mail addressed to the Compuware Vice
President of Sales as identified in Exhibit I.
Requests for information and all other notices to Compuware will be
sent to the separate Compuware address set out in Exhibit I.
(h) Each provision of this Agreement is severable and if one or more
provisions are declared invalid, the remaining provisions of the
Agreement will remain in full force and effect.
V. ENTIRE AGREEMENT
This Agreement, including any Product Schedule(s) hereto, and Exhibits
referenced herein, contain the entire understanding and agreement of the
parties with respect to the matters contained herein, and supersede any prior
oral or written agreements relating to the subject matter hereof. This
Agreement supercedes all previous agreements between Compuware and JDA or JDA
subsidiaries, including but not limited to, UNIFACE Corporation Canada License
Agreement, dated May 12, 1995, (reference client #95492) between JDA Software
and UNIFACE Corporation Canada, and Standard Value-Added Reseller Agreement
dated June 27, 1994, between LIOCS Corporation (a wholly-owned subsidiary of
VAR, client #94183) and UNIFACE Corporation. This Agreement may be modified
only in writing signed by an authorized representative of each party.
Additional supplements relating to specific products and services may be added
from time to time as such products and services are offered by Compuware.
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CONFIDENTIAL AND PROPRIETARY
VI. EXHIBIT LIST
The following Exhibits are attached hereto and incorporated by reference:
Exhibit I. VAR Profile
Exhibit II. Remarketers List
Exhibit III. Compuware Trial Agreement
Exhibit IV. VAR Quarterly Royalty Report
Exhibit V. Non-Disclosure Agreement
Exhibit VI. Sample Compuware License Agreement and Product Schedule
VAR ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND ALL
ATTACHED EXHIBITS, AND THAT IT IS NOT ENTERING INTO THIS AGREEMENT ON THE BASIS
OF ANY REPRESENTATIONS NOT EXPRESSLY SET FORTH HEREIN.
Accepted by: Accepted by VAR:
COMPUWARE CORPORATION JDA SOFTWARE GROUP, INC.
/s/ W. Alan Cantrell /s/ James D. Armstrong
- ----------------------------------- -----------------------------------
Authorized Signature Authorized Signature
W. ALAN CANTRELL James D. Armstrong
- ----------------------------------- -----------------------------------
Name Name
Vice President Enterprise Solutions Chief Executive Officer
- ----------------------------------- -----------------------------------
Title Title
June 23, 2000 June 23, 2000
- ----------------------------------- -----------------------------------
Date Date
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CONFIDENTIAL AND PROPRIETARY
EXHIBIT I.
VAR PROFILE
1. The "Payment Address" is:
Compuware Corporation
Drawer 64376
Detroit, MI 48264-0376
2. Market and Territory assignment: Worldwide
3. UNIFACE Software:
*UNIFACE Six
-UNIFACE Developer;
-UNIFACE PolyServer;
-UNIFACE DBMS, GUI and Network drivers & Binders;
*UNIFACE Seven
Development: -UNIFACE Enterprise Development
Deployment -UNIFACE PolyServer;
-UNIFACE Application Server;
-UNIFACE Enterprise Server;
-UNIFACE DBMS, GUI and Network drivers & Binders;
-Solid;
Web Application Server
-Component Server
-Java and Com URBA connectivity options
-Across all databases and platforms (except mainframes)
5. License fees/Royalties:
LICENSE FEES
[***]
ROYALTIES
[***]
[***] - Portions of this exhibit have been redacted pursuant to a request
for confidential treatment.
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CONFIDENTIAL AND PROPRIETARY
[***]
6. All fees and royalties are exclusive of Value-Added Tax (VAT). VAR shall
pay all VAT taxes due where applicable.
7. Annual Support Service Fees
---------------------------
- - VAR DEVELOPMENT AND INTERNAL USE DEPLOYMENT LICENSES
Annual Support Service fees will be fifteen percent (15%) of the license fee
as provided in Section 5 of this Exhibit I.
- - END USER DEPLOYMENT LICENSES SUPPORT SERVICES (the first year support service
fee is included in the royalty rate calculation).
Thereafter, for End User(s) under support for the VAR Application Software,
the annual Support Service fees will be 0.6% percent of the applicable
royalty fee as provided in Section 5 of this Exhibit I.
8. VAR Application Software:
-------------------------
a. ODBMS
Application modules within the ODBMS package that utilize the UNIFACE
development and deployment environments:
Interactive Base System Maintenance
Interactive Buyers Workbench (purchase order management)
Interactive Pricing
Interactive Advanced Expert Pricing
Interactive Inventory & Cycle Count Management
Interactive Merchandise Category Analysis
Interactive Rebate Management
Interactive Stock Ledger
Interactive Sales Audit
Interactive Tax Management
Interactive Vendor Submissions
Interactive Automated Replenishment Management
Interactive Invoice Matching
Interactive Signs, Labels, Ticketing
Interactive Warehouse Control Center
ODBMS is a market-leading open, client/server merchandising system,
ODBMS delivers deep, rich merchandising functionality and usability to
automate a retailer's information management and operational
requirements. Retailers can depend on ODBMS to help them optimize
inventory, maintain a profitable product mix, improve price strategies
and automate replenishment. By providing
[***] PORTIONS OF THIS EXHIBIT HAVE BEEN REDACTED PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT.
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CONFIDENTIAL AND PROPRIETARY
flexibility, adaptability and scalability, ODBMS enables retailers to
manage multiple operations without sacrificing data integrity or ease
of use.
b. Additional VAR Application Software developed by VAR may be
incorporated herein upon written notice to Compuware as required for
reporting purposes. In the event that VAR acquires another Compuware
Value Added Reseller's VAR Application Software, upon notice to
Compuware JDA may incorporate the acquired VAR Application Software
into this Agreement at the then current JDA royalty rate by prepaying
royalties to Compuware. The amount of the prepayment will be two (2)
times the amount of royalties the VAR, from which the VAR Application
Software was acquired, paid to Compuware in the previous twelve (12)
months.
c. VAR shall notify Compuware in writing of any new products, new
functionalities, or new versions to the VAR Application Software
Compuware. Any new products will be incorporated to this Exhibit by
Amendment.
9. Hardware, Operating Systems and location(s) VAR:
------------------------------------------------
JDA Software Group, Inc.
14400 North 87th Street
Scottsdale, AZ 85260-3649
10. Development Address VAR:
------------------------
JDA Software Group, Inc.
14400 North 87th Street
Scottsdale, AZ 85260-3649
11. Discount on UNIFACE Education:
------------------------------
VAR will receive up to 25% discount on UNIFACE Education.
12. Compuware Managing Office
Attn: Sally Knoll, ISV Account Manager
Compuware Corporation
31440 Northwestern Highway
Farmington Hills, MI 48334
13. Notice Address
Contracts Manager
Compuware Corporation
31440 Northwestern Highway
Farmington Hills, MI 48334
14. Information Address
Compuware Corporation
Products Division
Contract Administration
31440 Northwestern Highway
Farmington Hills, MI 48334
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CONFIDENTIAL AND PROPRIETARY
EXHIBIT II
REMARKETERS LIST
CURRENT (AS OF 4/6/00)
JDA CORPORATE ORGANIZATION
JDA Software Group, Inc.
(Delaware)
JDA Software, Inc. JDA Arthur Software Ltd.
(Arizona) (Bermuda)
(license all products worldwide except MMS
alone outside No. & So. America)
JDA Software Australia (Pty.) Ltd. JDA Software Brasil Ltda.
(Australia) (Brazil)
JDA Software Canada Ltd. JDA Chile S.A.
(Canada) (Chile)
(authority to license all products in Canada
with a 35% (previously 10%) royalty to U.S.)
JDA Software France, S.A. JDA Software GmbH
(France) (Germany)
JDA Software Hong Kong JDA Software Italy S.V.
Limited (Italy)
(Hong Kong)
JDA Software Japan Ltd. HDA Software Malaysia SDN. Bgd.
(Japan) (Malaysia)
JDA de Mexico S.A. de C.V. JDA Software Benelux B.V.
(Mexico) (The Netherlands)
LIOCS Corporation JDA Software South Africa (PTY) Ltd.
(Nevada) (South Africa)
JDA Software Nordic AB JDA Asia Pte. Ltd.
(Sweden) (Singapore)
JDA International Limited JDA Worldwide Inc.
(England & Wales) (Arizona)
(sublicense license MMS alone outside No. & So.
America with a 35% (previously 50%) royalty)
JDA Software Spain JDA UK Branch
(Representative Office) (United Kingdom)
- -------------------------------------------------------------------------------
REMARKETER DETAILS
Company Name __________________________________________________________________
Contact person ______________________________ Email address ___________________
Telephone ___________________________________ Fax _____________________________
- -------------------------------------------------------------------------------
APPLICATION DETAILS
Application name ___________ No. of end users _______[ ] Named [ ] Concurrent
State deployed modules ________________________________________________________
Application list price _________ Invoiced application license price __________
- -------------------------------------------------------------------------------
END USER ORGANIZATION DETAILS
Company Name ___________________________ Division _____________________________
Contact Person _________________________ Email address ________________________
- -------------------------------------------------------------------------------
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CONFIDENTIAL AND PROPRIETARY
________________________________________________________________________________
Main company address ___________________________________________________________
City _____________ State/province _______ Postal Code/ZIP ______ Country _______
Telephone _______________________________ Fax ______________________________
________________________________________________________________________________
UNIFACE LICENSING DETAILS
UNIFACE license type
________________________________________________________________________________
________________________________________________________________________________
UNIFACE TECHNICAL DETAILS
UNIFACE version details:
[ ] UNIFACE 5.2........[ ] UNIFACE Six........[ ] UNIFACE Seven........
(please specify exact version)
Client system(s) details:
________________________________________________________________________________
CPU make & model (1) Operating system, version & user interface (1)
________________________________________________________________________________
CPU make & model (2) Operating system, version & user interface (2)
________________________________________________________________________________
Network driver(s)
________________________________________________________________________________
Database make & version
Server(s) details:
[ ]PolyServer [ ]Appl.Server [ ]WebEnabler
________________________________________________________________________________
CPU make & model (1) Operating system & version(1) UNIFACE Component
[ ]PolyServer [ ]Appl.Server [ ]WebEnabler
________________________________________________________________________________
CPU make & model (2) Operating system & version (2) UNIFACE Component
________________________________________________________________________________
Network driver(s)
________________________________________________________________________________
Database make & version (1) Database make & version (2)
________________________________________________________________________________
________________________________________________________________________________
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EXHIBIT III.
COMPUWARE TRIAL AGREEMENT
Client No.:_________________________
Salesperson No.:_________________________
SOFTWARE TRIAL AGREEMENT
In order to better evaluate the benefits available from using the Software
product(s) indicated below ("Software"), COMPUWARE agrees to license the
Software on a FREE in-house trial under the following conditions:
A. The trial period will be for sixty (60) days after installation of the
Software from COMPUWARE.
B. There will be no charge for the sixty (60) day evaluation period.
C. Company will respect and protect COMPUWARE's proprietary rights to the
Software and will not distribute or otherwise disclose the Software to
third parties. All materials and copies of the Software will be returned
to COMPUWARE at the expiration of the sixty (60) day trial period, and
Company will also certify in writing that the Software has been removed
from the system and is no longer in use, if the Software is not licensed.
If Company continues to use the Software after the expiration of the trial
period, the Software will be deemed to be accepted by Company under the
terms and conditions of COMPUWARE's License Agreement and Company shall
pay the license fee then in effect.
D. PC SOFTWARE - If applicable, Company may make up to _________ copies of
the PC component of the Software during the trial period. Company will
return all copies of the Software at the conclusion of the trial period,
if the Software is not licensed.
E. Company will use its best efforts to protect the confidentiality and
proprietary rights of COMPUWARE's Software.
F. This Trial Agreement is for the following COMPUWARE Software:_____________
__________________________________________________________________________
G. Company operating system is ______________________________________________
The undersigned signatories are authorized to execute this Trial Agreement.
Accepted by Compuware: Agreed by Licensee:
___________________________________ _______________________________________
Authorized Signature Authorized Signature
___________________________________ _______________________________________
Name Name
___________________________________ _______________________________________
Title Title
___________________________________ _______________________________________
Date Date
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EXHIBIT IV.
VAR QUARTERLY ROYALTY REPORT
This reporting form should be used by VAR to comply with quarterly royalty
reporting obligations as set forth in the Agreement. Please complete and return
to: Compuware Corporation, Contract Administration Dept., 31440 Northwestern
Highway, Farmington Hills, Michigan 48334-2564, Tel: (248) 737-7300;
Fax (248) 737-0750.
- --------------------------------------------------------------------------------
COMPANY NAME:
ADDRESS (Street Address;
City/State; Zip):
CONTACT NAME & PHONE:
REPORTING PERIOD:
PURCHASE ORDER #:
- --------------------------------------------------------------------------------
The following must be completed for all VAR Application Software (sub)licensed
during the reporting period:
Name UNIFACE Hardware User User Ship Date Quantity Royalty
Application Product(s) Make/Model Name Address/City,
State/Country
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
The undersigned certifies that the information contained on this reporting form
has been derived from VAR's records and is true and correct.
Accepted by:
- ------------------------ ------------------------
Authorized Signature Authorized Signature
- ------------------------ ------------------------
Name Name
- ------------------------ ------------------------
Title Title
- ------------------------ ------------------------
Date Date
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28
EXHIBIT V
NONDISCLOSURE AGREEMENT
THIS AGREEMENT (the "Agreement"), is made as of , 2000, (the
"Effective Date") by and between JDA SOFTWARE, INC., an Arizona corporation
("JDA") and COMPUWARE CORPORATION, a Michigan corporation ("Compuware").
RECITALS
1. In connection with the evaluation or pursuit of certain mutually beneficial
business opportunities, JDA and Compuware may disclose valuable proprietary
information to each other relating to their respective operations and
businesses.
2. JDA and Compuware would like to protect the confidentiality of, maintain
their respective rights in and prevent the unauthorized use and disclosure
of such information.
AGREEMENT
JDA and Compuware hereby agree:
1. CONFIDENTIAL INFORMATION. As used in this Agreement, "Confidential
Information" means all information of either party that is not generally
known to the public, whether of a technical, business or other nature
(including, without limitation, trade secrets, know-how and information
relating to the technology, software, designs, specifications and
prototypes, customers, business plans, promotional and marketing
activities, finances and other business affairs of such party), that is
disclosed by one party (the "Disclosing Party") to the other party (the
"Receiving Party"), and that has been identified as being proprietary
and/or confidential or that by the nature of the circumstances surrounding
the disclosure ought to be treated as propriety and confidential.
Confidential Information also includes all information concerning the
existence and progress of the parties' dealings.
2. USE OF CONFIDENTIAL INFORMATION. The Receiving Party, except as expressly
provided in this Agreement, will not disclose it to anyone without the
Disclosing Party's prior written consent. The Receiving Party will not use,
or permit other to use, Confidential Information for any purpose other than
to pursue discussion and evaluation of potential business dealings between
the parties in accordance with the nature of discussions between the
parties. The Receiving Party will take all reasonable measures to avoid
disclosure, dissemination or unauthorized use of Confidential Information,
including, at a minimum, those measures it takes to protect its own
confidential information of a similar nature.
3. EXCEPTIONS. The provisions of Section 2 will not apply to any information
that (i) is or becomes publicly available without breach of this Agreement;
(ii) can be shown by documentation to have been known to the Receiving
Party at the time of its receipt from the Disclosing Party; (iii) is
rightfully received from a third party who did not acquire or disclose such
information by a wrongful or tortuous act; or (iv) can be shown by
documentation to have been independently developed by the Receiving Party
without reference to any Confidential information.
4. RECEIVING PARTY PERSONNEL. The Receiving Party will restrict the
possession, knowledge, development and use of Confidential Information to
its employees, agents, subcontractors and entities controlled by or
controlling it (collectively, "Personnel") who have a need to know
Confidential Information in connection with the purposes set forth in
Section 2. The Receiving Party's Personnel will have access only to the
Confidential Information they need for such purposes. The Receiving Party
will ensure that its personnel comply with this Agreement.
5. DISCLOSURES TO GOVERNMENTAL ENTITIES. If the Receiving Party becomes
legally obligated to disclose Confidential Information by any governmental
entity with jurisdiction over it, the Receiving Party will give the
Disclosing Party prompt written notice sufficient to allow the Disclosing
Party to seek a protective order or other appropriate remedy. The Receiving
Party will disclose only such information as is legally required and will
use its reasonable best efforts to obtain confidential treatment for any
Confidential Information that is so disclosed.
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29
6. OWNERSHIP OF CONFIDENTIAL INFORMATION. All Confidential Information will
remain the exclusive property of the Disclosing Party, and the Receiving
Party will have no rights, by license or otherwise, to use the
confidential Information except as expressly provided herein.
7. RETURN OF CONFIDENTIAL INFORMATION. Upon the Disclosing Party's written
request, the Receiving Party promptly will return all tangible material
embodying Confidential Information (in any form and including, without
limitation, all summaries, copies and excerpts of Confidential
Information).
8 GOVERNING LAW; ETC. This Agreement will be governed by internal laws of
the State of Arizona, without reference to its choice of law rules, and
may be executed in counterpart copies. If a provision of this Agreement is
held invalid under any applicable law, such invalidity will not affect any
other provision of this Agreement that can be given effect without the
invalid provision. All terms and conditions of this Agreement will be
deemed enforceable to the fullest extent permissible under applicable law,
and, when necessary, the court is requested to reform any and all terms or
conditions to give them such effect. Further, the venue for arbitration or
litigation will be in Phoenix, Arizona, and the parties consent to such
jurisdiction.
9. NONWAIVER. Any failure by either to enforce the other party's strict
performance of any provision of this Agreement will not constitute a waiver
of its right to subsequently enforce such provision or any other provision
of this Agreement.
10. TERMINATION. This Agreement will terminate automatically upon the
completion or termination of dealings between JDA and Compuware; provided,
however, that each party's obligations with respect to the other party's
Confidential Information will survive completion or termination of the
dealings between the parties.
11. EXPORTATION/TRANSMISSION OF CONFIDENTIAL INFORMATION. The Receiving Party
acknowledges that the Confidential Information and any related materials
or information provided hereunder are subject to the export control laws
and regulations of the U.S., and any amendments thereof. The Receiving
Party confirms that it will not export or re-export these items, directly
or indirectly, either to (i) any countries that are subject to U.S. export
restrictions (currently including, but not necessarily limited to, Cuba,
the Federal Republic of Yugoslavia (Serbia and Montenegro), Iran, Iraq,
Libya, North Korea, and Syria); and (ii) any development production of
nuclear, chemical or biological weapons; or (iii) any third party who has
been prohibited from participating in the U.S. export transactions by any
federal agency of the U.S. government.
12. INDEPENDENT DEVELOPMENT. The Disclosing Party acknowledges that the
Receiving Party may currently or in the future be developing information
internally, or receiving information from other parties, that is similar
to the Confidential Information. Accordingly, nothing in this Agreement
will be construed as a representation or agreement that the Receiving
Party will not develop or have developed for its products, concepts,
systems or techniques that are similar to or compete with products,
concepts, systems or techniques contemplated by or embodied in the
Confidential Information, provided that the Receiving Party does not
violate any of its obligations under this Agreement in connection with
such development.
13. INJUNCTIVE RELIEF. The Receiving Party acknowledges that disclosure or use
of Confidential Information in violation of this Agreement could cause
irreparable harm to the Disclosing Party for which monetary damages may be
difficult to ascertain or an inadequate remedy. The Receiving Party
therefore agrees that the Disclosing Party will have the right, in addition
to its other rights and remedies, to seek injunctive relief for any
violation of this Agreement.
14. LIMITED RELATIONSHIP. This Agreement will not create a joint venture,
partnership or other formal business relationship or entity of any kind,
or an obligation to form any such relationship or entity. Each party will
act as an independent contractor and not as an agent of the other party
for any purpose, and neither will have the authority to bind the other.
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15. CUMULATIVE OBLIGATIONS. Each party's obligations hereunder are in addition
to, and not exclusive of, any and all of its other obligations and duties
to the other party, whether express, implied, and in fact or in law.
16 INTEGRATION/PURCHASE ORDER. This Agreement constitutes the entire agreement
between the parties with respect to the Confidential Information and
supersedes all previous proposals (both oral and written), negotiations,
representations, commitments, writings, agreements, and all other
communications between the parties. This Agreement may only be altered or
modified by written instrument duly executed by both parties. In the event
of any conflict between the terms and conditions of this Agreement and the
terms and conditions of any purchase order, the terms and conditions of
this Agreement will control.
The undersigned represent that they are duly authorized representatives of the
parties and have full authority to bind the parties, including any indicated
affiliates of the parties, by execution of this Agreement. The parties have
executed and delivered this Agreement, and it will be effective as of the
Effective Date.
COMPUWARE CORPORATION JDA SOFTWARE, INC.
Signature____________________________ Signature____________________________
Name_________________________________ Name_________________________________
Title________________________________ Title________________________________
Date_________________________________ Date_________________________________
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EXHIBIT VI.
SAMPLE COMPUWARE LICENSE AGREEMENT
AND PRODUCT SCHEDULE
Agreement No.___________
LICENSE AGREEMENT
This License Agreement (Agreement), is between COMPUWARE CORPORATION (Compuware)
and Licensee:
Licensee Name:__________________________________________________________________
Street Address:_________________________________________________________________
_________________________________________________________________
City:________________________________________ State:_________ Zip:______________
1. GRANT OF LICENSE
(a) Upon Compuware's acceptance of each product schedule (Product Schedule(s)),
Compuware grants to Licensee a non-exclusive, non-transferable, personal
license to use the proprietary software product(s) and related user manuals
provided under this Agreement (collectively referred to as Software). The
Software may be used on the computer(s) as described on the Product
Schedule(s) (Licensed Computer(s)) at the location(s) as described on the
Product Schedule(s) (Licensed Location(s)), for the term and license type
specified, subject to the terms and conditions of this Agreement and the
Product Schedule(s).
(b) The Software will be supplied to Licensee in machine readable object code
for use on the Licensed Computer(s).
(c) A copy of each user manual for the Software will be supplied to Licensee
without additional charge, unless otherwise specified on the Product
Schedule(s).
(d) The Software may be used only (i) by Licensee, (ii) to process Licensee's
own data and (iii) for Licensee's own internal operations. Licensee may not
use the Software to offer data processing services to third parties,
including but not limited to timesharing, facilities management,
outsourcing or service bureau use, or other third party commercial purpose
or gain unless Licensee either executes, and pays the fees associated with,
an appropriate Compuware license for third party use or the specific third
party use is otherwise authorized in writing by Compuware. All restrictions
applicable to Licensee will also apply to any authorized third party user.
(e) Licensee shall not make or allow others to make copies or reproductions of
the Software in any form without Compuware's prior written consent, except
for a machine readable copy for archival purposes to exercise the license
granted. All copies or reproductions of the Software made by Licensee shall
display the same Compuware legends and notices and shall be subject to the
same conditions and restrictions as the original. Licensee shall not
sublicense, distribute, modify or create derivative works of, reverse
assemble or reverse compile, the Software.
(f) By paying the fee(s) then in effect, the Software may be licensed for:
additional users, use on additional computers, use on alternate platforms
or, subject to maintenance being current, use on upgraded computers.
Alternate locations and computers may be utilized temporarily only for back
up and disaster recovery purposes for a reasonably necessary time period.
Licensee may change the facility location(s) of the Software with prior
written consent from Compuware, and shall notify Compuware in writing that
all copies of the Software at the previous location(s) have been destroyed
or transferred to the new location(s).
(g) At Compuware's request, Licensee shall promptly furnish Compuware with
written certification verifying that the Software is being used in
accordance with this Agreement, including the number of users and the
location, platform, model and serial number of the computer(s) on which the
Software is installed. Licensee shall give Compuware reasonable access to
Licensee's records and systems to verify that the Software is being used
pursuant to this Agreement.
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(h) If the actual number of users exceeds the actual number of licensed
users of the Software or the Software has been installed on unlicensed
computers or platforms, Compuware may, at its option, terminate this
Agreement or allow Licensee to pay the license fee then in effect,
retroactive to the initial date of unauthorized use.
2. PAYMENTS
Licensee shall pay to Compuware the total amount set forth in the
applicable Product Schedule(s) (Total Amount) upon invoice. Compuware may
impose a late payment charge equal to the lesser of 1-1/2% per month or the
maximum rate allowed by law.
3. ACCEPTANCE
The Software described on a Product Schedule(s) will be deemed to be
accepted by Licensee upon Licensee's execution of that Product Schedule(s)
or upon Licensee's use of the Software in a production environment,
whichever is sooner. Licensee shall conduct its evaluation procedures
between the time the Software is delivered and Licensee's execution of the
Product Schedule(s).
4. ENTIRE AGREEMENT
HAVING READ BOTH SIDES OF THIS AGREEMENT, THE PARTIES AGREE TO BE BOUND AND
ABIDE BY ITS TERMS AND CONDITIONS. THIS AGREEMENT, INCLUDING ALL PRODUCT
SCHEDULES, CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
UNDERSTANDING BETWEEN THEM, AND SUPERSEDES ALL PRIOR PROPOSALS AND ALL
OTHER PRIOR COMMUNICATIONS BETWEEN THEM RELATING TO THIS LICENSE AND THE
USE OF THE SOFTWARE, WHETHER ORAL OR WRITTEN, AND THE TERMS AND CONDITIONS
OF ANY PRIOR, CONCURRENT OR SUBSEQUENT PURCHASE ORDER(S) PROVIDED BY
LICENSEE. THIS AGREEMENT IS BINDING UPON EXECUTION BY AN AUTHORIZED
REPRESENTATIVE OF LICENSEE AND ACCEPTANCE BY AN AUTHORIZED REPRESENTATIVE
OF COMPUWARE, AND MAY ONLY BE ALTERED OR MODIFIED BY A WRITTEN AGREEMENT
SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH PARTY.
5. TITLE, PROPRIETARY RIGHTS AND NON-DISCLOSURE
(a) Title and full ownership rights to the Software furnished under this
Agreement and all intellectual property rights including patent,
copyright, trademark and trade secret rights remain with Compuware or
its third party providers where applicable. This Agreement does not
transfer title to Licensee of the intellectual property contained in
the Software.
(b) Licensee acknowledges and agrees that the Software is the property of
and contains trade secrets of Compuware and agrees that Licensee will,
and Licensee will cause its employees, to keep in confidence and
protect the Software from disclosure to third parties and restrict its
use as provided in this Agreement. Licensee acknowledges that
unauthorized disclosure may cause substantial economic loss to
Compuware or its third party providers. Compuware reserves all rights
granted to it under the copyright, patent and other intellectual
property laws of the United States and all other statutory and common
laws.
(c) Licensee shall not be liable to Compuware for disclosure of the
Software if the same is (i) now in or subsequently comes into the
public domain without breach of this Agreement, (ii) known to Licensee
without obligation of confidentiality prior to receipt of the
proprietary material from Compuware, (iii) independently developed by
the Licensee without breach of this Agreement, (iv) disclosed by
Licensee with the prior written approval of an authorized Compuware
officer, or (v) rightfully received by Licensee from a third party
without breach of this Agreement or accompanying secrecy obligations.
(d) This section 5 shall survive the termination of this Agreement.
6. TAXES AND DUTIES
Licensee shall pay all applicable taxes due under this Agreement, including
but not limited to federal, state or local sales, use, tariffs, duties and
value added taxes, excluding taxes based on Compuware's net income.
Licensee is responsible for personal property and similar taxes on any
Software from the date the Software is shipped to
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Licensee. Written proof of exempt status must be provided to Compuware for
exemption from any tax, tariff or duty.
7. ASSIGNMENT AND TRANSFER
Licensee shall not assign or transfer its rights or obligations under this
Agreement without the prior written consent of Compuware. Any authorized
assignment or transfer of the Software shall be subject to Licensee paying the
license and maintenance fees due up to the date of assignment or transfer and
under the terms of the most current Compuware license agreement. Compuware
reserves the right to charge a fee for any assignment or transfer. Any
assignment or transfer prohibited by this provision will be void.
8. INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
(a) In the event of an intellectual property right claim, Compuware agrees to
indemnify and hold Licensee harmless provided Licensee (i) gives Compuware
prompt written notice of such claim, (ii) permits Compuware to defend or
settle the claim and (iii) provides all reasonable assistance to Compuware
in defending or settling the claim.
(b) In the defense or settlement of such claim, Compuware may (i) obtain for
Licensee the right to continue using the Software or (ii) replace or modify
the Software so that it avoids such claim or (iii) if such remedies are not
reasonably available, accept the return of the infringing Software and
provide Licensee with a pro-rata refund of the license fees paid for such
Software based on a five (5) year use period.
(c) Compuware shall have no liability if the alleged infringement is based on
(i) a modification of the Software by anyone other than Compuware, (ii) use
of the Software on other than the Licensed Computer(s) or (iii) a patent
claim for which the existing U.S. patent issue date is subsequent to the
date of this Agreement. This section states the entire liability of
Compuware and Licensee's sole and exclusive remedies with respect to
misappropriation or infringement of intellectual property rights.
9. LIMITED WARRANTIES AND REMEDIES
(a) Compuware warrants and represents that (i) it has the authority to grant
the license described in the Agreement, (ii) the Software will operate on
the Licensed Computer(s) in substantial accordance with the specifications
set forth in the user manuals applicable to the Software at the time the
Software is accepted, and (iii) any service rendered by Compuware will be
performed by qualified personnel. Compuware will make reasonable efforts to
correct significant deviations from such specifications.
(b) THE WARRANTIES GIVEN IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES
WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY
(a) Except as provided in Section 8 of this Agreement, the entire liability of
Compuware and Licensee's exclusive remedy for damages from any cause
related to or arising out of this Agreement, regardless of the form of
action, whether in contract or in tort, will not exceed the charges paid by
Licensee to Compuware FOR THE SOFTWARE WHICH IS THE SUBJECT MATTER OF THE
CAUSE OF ACTION ASSERTED during the TWELVE (12) month period immediately
preceding Licensee's notice to Compuware of such claim or cause.
(b) In no event will Compuware be liable for any incidental, indirect, special
or consequential damages, including, but not limited to, loss of use,
revenues, profits or savings, even if Compuware knew or should have known
of the possibility of such damages; claims, demands or actions against
Licensee by any third party, except as provided in Section 8; or loss of or
damage to Licensee's data from any cause.
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11. SOFTWARE MAINTENANCE SERVICE
If Licensee is current in the payment of all license and maintenance fees,
Compuware will maintain unaltered Software in an operable condition and in
substantial accordance with the specifications set forth in the user manuals.
Compuware will also make available to Licensee any generally incorporated
improvements and enhancements to the Software which are not designated as
options. Software maintenance service will be provided at no additional charge
for the period specified, if any, on the Product Schedule(s). Licensee may
continue Software maintenance services on an annual basis by paying in advance
the Software maintenance fees then in effect. Compuware will use its best
efforts to make any correction, replacement or other service after Licensee
has identified an error and notified Compuware in accordance with the reporting
procedures outlined in the user manuals. If a malfunction corrected by Compuware
was attributable to Licensee, Licensee agrees to pay Compuware the fair market
value of the services Compuware provided in making the change or correction.
Unless Licensee provides written notice to Compuware at east sixty (60) days
prior to the renewal period to discontinue Software maintenance service, such
Software maintenance will be renewed.
12. DEFAULT
Either party may terminate the Agreement if the other fails to cure any
material default within thirty (30) days of written notice. Notwithstanding the
above, Compuware may terminate the Agreement upon written notice for any
failure of Licensee to protect Compuware's intellectual property rights in the
Software. Failure to pay any delinquent amount shall cause all unpaid fees, and
fees which would have become due under this Agreement, to become immediately
due and payable and may cause Compuware to suspend any Software maintenance
services. Any terms of this Agreement which by their nature extend beyond its
termination remain in effect until fulfilled, and apply to respective successors
and assignees. Upon termination of any license granted under this Agreement,
Licensee shall immediately either return the Software to Compuware, or destroy
the Software, and certify in writing to Compuware that all copies of the
Software have been destroyed.
13. GENERAL
Failure or delay by either party in exercising any right or remedy will not
constitute a waiver. In the event that any provision of this Agreement shall be
declared invalid, the entire Agreement shall not fail on its account, and that
provision shall be severed, with the balance of this Agreement continuing in
full force and effect. Product Schedule(s) may be submitted under this
Agreement for a period of three (3) years from the date this Agreement is signed
by Compuware, unless otherwise agreed to in writing by the parties. All Product
Schedule(s) are subject to acceptance by Compuware. Certain Software products
contain product security keys. All agent code for client server software
outside specifications is external to the Software and is the responsibility of
Licensee. Compuware may provide professional services, including technical and
consultant services other than Software maintenance services, at Compuware's
then current rates on a timely basis subject to availability of qualified
personnel. In no event may Software be assigned or transferred outside of
country boundaries. This Agreement shall be governed by the laws of the State
of Michigan and the parties agree to submit to the jurisdiction of the federal
or state courts in the State of Michigan.
Revised: July, 1995
ACCEPTED BY COMPUWARE: AGREED BY LICENSEE:
_____________________________________ _____________________________________
Authorized Signature Authorized Signature
_____________________________________ _____________________________________
Name Name
_____________________________________ _____________________________________
Title Title
_____________________________________ _____________________________________
Date Date
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PRODUCT SCHEDULE NO. ONE
This Product Schedule will be affixed to and become a part of AGREEMENT NO.
94151V (the "Agreement").
Licensee shall be licensed to use the Software specified below. Such use shall
be governed by the terms and conditions of the Agreement. By paying the fee then
in effect, the Software may be licensed for: additional users, use on additional
computers, use on alternate platforms or, subject to maintenance being current,
use on upgraded computers. In the event that this Product Schedule conflicts
with previous Product Schedule(s) for the specified Software, the most current
Product Schedule(s) will control. In the event that this Product Schedule
conflicts with the Agreement, the Agreement will control.
LICENSEE: JDA Software Group, Inc.
SITE NO.: 1 14400 N. 87th Street
Scottsdale, AZ 85260
AUTHORIZED LICENSED OS SUPPORT
SOFTWARE LICENSES AMOUNT COMPUTER(S) PLATFORM SERVICE FEES
-------- ---------- ------ ----------- -------- ------------
VAR Application Deployment *c $1,250,000*a *c *c *b
*b Support Service fees will be calculated in accordance with Section 6 of
Exhibit I to the Agreement.
*c Licensee shall, upon execution of this Product Schedule, pay Compuware
royalties of $1,250,000 ("Minimum Royalty Payment"). As Licensee deploys
VAR Application Software to End Users, the Minimum Royalty Payment shall be
reduced by an amount equal to the VAR Application Software license fee
multiplied by .07 (6.4% royalty + .6% first year maintenance). The Minimum
Royalty Payment is a non-refundable payment that must be depleted by March
31, 2002. Thereafter, except as provided in Section IV, 5(e) of the
Agreement, any unused portion shall be forever forfeited, with no right of
refund or set off. After March 31, 2002, Licensee has the option to make an
additional Minimum Royalty Payment of $1,250,000 to extend the 7% royalty
rate for an additional twenty-four (24) months. Except as provided in
Section IV, 5(e) of the Agreement, if Licensee does not exercise said
option, the royalty rate will increase to a level not to exceed 10%
(including first year maintenance).
SCHEDULE PRICE AND TERMS VALID THROUGH JUNE 30, 2000
*a Licensee hereby accepts the Software upon execution of this Product Schedule
and agrees to pay Compuware the Total Amount of $1,250,000 U.S. Dollars in
accordance with the payment terms specified as follows: $625,000 due and
payable with the signing of this Product Schedule and $625,000 due and payable
on or before June 30, 2000.
Accepted By Compuware: Agreed By Licensee:
/s/ W. Alan Cantrell /s/ James D. Armstrong
- ------------------------------ ------------------------------
Authorized Signature Authorized Signature
W. ALAN CANTRELL James D. Armstrong
- ------------------------------ ------------------------------
Name Name
Vice President
Enterprise Solutions Chief Executive Officer
- ------------------------------ ------------------------------
Title Title
June 23, 2000 June 23, 2000
- ------------------------------ ------------------------------
Date Date