EXHIBIT 10.14
OUTBOUND LICENSE AGREEMENT
Agreement Number: STL98095
STL Reference No. 4997ST2609
This Agreement dated as of December 9, 1998 ("Effective Date") is between
International Business Machines Corporation ("IBM") with an address at 555
Bailey Avenue, San Jose CA 95141, and ShowCase Corporation ("SHOWCASE") with an
address at 4131 Highway 52 North, Suite G111, Rochester, MN 55901-3144. Under
this Agreement, SHOWCASE licenses from IBM program Code known as Relational
Storage Interface ("RSI") which enables SHOWCASE to prepare a Derivative Work
for incorporation into a Product which will be marketed under a SHOWCASE logo
for which SHOWCASE will pay royalties to IBM.
By signing below, the parties agree to the terms of this Agreement. The complete
Agreement between the parties regarding this transaction consists of this
License Agreement and the following Attachments:
1. "Description of Licensed Work;"
2. "Schedule;"
3. "IBM Trademark Guidelines"; and
4. "Certificate of Originality."
The following are related agreements between IBM and SHOWCASE:
1. Agreement for the Exchange of Confidential Information
("AECI") No. M96-2547, as supplemented; and
2. License Agreement No. STL97307.
This Agreement replaces all prior oral or written communications between the
parties relating to the subject matter. Once signed, any reproduction of this
Agreement made by reliable means (for example, photocopy or facsimile) is
considered an original, unless prohibited by local law.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
INTERNATIONAL BUSINESS SHOWCASE CORPORATION
MACHINES CORPORATION
By: /s/ Roy J. Maharaj By: /s/ Ken Holec
- ----------------------------------------- ---------------------------------
Authorized Signature Authorized Signature
Name: Roy J. Maharaj Name: Ken Holec
------------------------------------ -------------------------------
Type or Print Type or Print
Title: STL Mgr. Business Alliances and
Contract Management Title: President and CEO
----------------------------------- ------------------------------
Date: 1/6/99 Date: December 23, 1998
----------------------------------- ------------------------------
December 9, 1998
Outbound License Agreement
1. DEFINITIONS
Capitalized terms in the Agreement have the following meanings.
1.1 Code is computer programming code, including both Object Code and Source
Code.
a. Object Code is Code substantially in binary form, and includes header
files of the type necessary for use or inter-operation with other
computer programs. It is directly executable by a computer after
processing or linking, but without compilation or assembly. Object
Code is all Code other than Source Code.
b. Source Code is Code in a form which when printed out or displayed is
readable and understandable by a programmer of ordinary skills. It
includes related source code level system documentation, comments and
procedural code. Source Code does not include Object Code.
1.2 Deliverable is any item that IBM provides under this Agreement.
1.3 Derivative Work is a work that is based on an underlying work and that
would be a copyright infringement if prepared without the authorization of
the copyright owners of the underlying work. Derivative Works are subject
to the ownership rights and licenses of a party or of others in the
underlying work.
1.4 Distributors are those authorized or licensed by SHOWCASE, SHOWCASE
Subsidiaries or SHOWCASE Distributors to license or distribute Products.
1.5 Enhancements are changes or additions, other than Error Corrections, to the
Licensed Work.
a. Basic Enhancements are all Enhancements, other than Major
Enhancements, including those that support new releases of operating
systems and devices.
b. Major Enhancements provide substantial additional value and are
offered to customers for an additional charge.
1.6 Error Corrections are revisions that correct errors and deficiencies
(collectively referred to as "errors") in the Licensed Work.
1.7 Externals are (1) any pictorial, graphic, and audiovisual works (such as
icons, screens, sounds, and characters) generated by execution of Code, and
(2) any programming interfaces, languages or protocols implemented in Code
to enable interaction with other computer programs or the end user.
Externals do not include the Code that implements them.
1.8 Licensed Work is (1) any material described in or that conforms to the
description in the Attachment entitled "Description of Licensed Work," or
that is delivered to SHOWCASE as the Licensed Work, including (but not
limited to) Code, associated documentation, and Externals, and (2) Error
Corrections and Enhancements provided to SHOWCASE pursuant to this
Agreement.
1.9 Moral Rights are personal rights associated with authorship of a work under
applicable law. They include the rights to approve modifications and to
require authorship identification.
Page 2
December 9, 1998
Outbound License Agreement
1.10 Product is an offering to customers or other users, branded by SHOWCASE or
its Subsidiaries, that includes a Derivative Work of the Licensed Work
along with Essbase technology, all ported to the OS/400 platform.
1.11 SHOWCASE TAG-LINE is the following statement for inclusion by SHOWCASE on
Product media, packaging, installation splash screen, and documentation,
for Products: "Storage Interface Powered by IBM* DB2*Relational
Technology." And the following attribution which must be proximate to the
highlighted trademarks: "IBM and DB2 are registered trademarks of
International Business Machines Corporation, used under license therefrom."
o Such Tag-Line shall be included in Derivative Works in accordance with
Attachment "IBM Trademark Guidelines"
1.12 Subsidiary is an entity during the time that more than 50% of its voting
stock is owned or controlled, directly or indirectly, by another entity. If
there is no voting stock, a Subsidiary is an entity during the time that
more than 50% of its decision-making power is controlled, directly or
indirectly, by another entity.
1.13 Tools include devices, compilers, programming, documentation, media and
other items required for the development, maintenance or implementation of
a Deliverable that are not commercially available.
2 RESPONSIBILITIES OF PARTIES
2.1 IBM will provide the following Deliverables to SHOWCASE according to the
schedule set forth in the Attachment entitled "Schedule":
a. one complete set of the Licensed Work described in the Attachment
entitled "Description of Licensed Work." The Licensed Work includes
Code either delivered on CD-ROM or via an ftp site.
b. a completed Certificate of Originality with the Licensed Work, and
with each Enhancement to the Licensed Work, in the form specified in
the Attachment entitled "Certificate of Originality." SHOWCASE may
suspend payments to IBM for the Licensed Work if IBM does not provide
a properly completed certificate. Payment will resume after SHOWCASE
receives and accepts the certificate.
2.2 IBM will provide SHOWCASE, during the porting exercise, with reasonable
software engineering technical support pertaining to the RSI.
2.3 IBM will provide to SHOWCASE, at no charge, Enhancements and Error
Corrections for the Licensed Work which IBM implements beginning when
SHOWCASE accepts the Licensed Work and continuing for the term of this
Agreement. IBM has no maintenance or support obligations for the Product.
2.4 IBM will:
a. participate in progress reviews, as requested by SHOWCASE, to
demonstrate IBM's performance of IBM's obligations;
Page 3
December 9, 1998
Outbound License Agreement
b. implement a process designed to help prevent contamination by harmful
Code. IBM will promptly provide SHOWCASE notice if IBM suspects
contamination;
c. have agreements with IBM's personnel and third parties to perform
obligations and to grant or assign rights to SHOWCASE as required by
this Agreement;
d. obtain a written agreement not to assert any Moral Rights from any
person or entity having Moral Rights in the Licensed Work. IBM agrees
not to assert any Moral Rights in the Licensed Work;
e. obtain all necessary consents of individuals or entities required for
the use of names, likenesses, voices, and the like in the Licensed
Work;
f. maintain records to verify authorship of the Licensed Work for 4 years
after the termination or expiration of this Agreement. On request, IBM
will deliver or otherwise make available this information in a form
specified by SHOWCASE;
g. not assign or transfer this Agreement or IBM's rights under it, or
delegate or subcontract IBM's obligations, without SHOWCASE's prior
written consent provided, however, that IBM can without SHOWCASE
consent, assign and/or delegate any and all rights and obligations to
any IBM Subsidiary and can assign or transfer its rights under this
Agreement without advice or consent. Any attempt to do so is void;
h. not provide any information to the media, or issue any press releases
or other publicity, regarding this Agreement or the parties'
relationship under it, without SHOWCASE's prior written consent; and
i. not disclose to a third party the terms of this Agreement or the fact
that SHOWCASE has licensed the Licensed Work, without SHOWCASE's prior
written consent. IBM may, however, make such disclosures (i) to its
accountants, lawyers or other professional advisors provided that any
such advisor is under a confidentiality obligation and (ii) as
required by law provided IBM obtains any confidentiality treatment for
it which is available.
2.5 SHOWCASE will:
a. prepare a Derivative Work of the Licensed Work by porting the Licensed
Work to the OS/400 operating system, and
b. perform all maintenance and support for the Licensed Work as part of
Products.
2.6 IBM acknowledges that pursuant to License Agreement No. STL97307 ("License
Agreement") and the related Source Code Custody Agreement ("SCCA") of even
date herewith between the parties, it has the right to obtain release of
certain Source Code (including the right to use such Source Code as
specified in the SCCA) for the Product then-currently escrowed with such
escrow agent if one of the release conditions in the SCCA occurs. In
addition, IBM acknowledges that the OLAP Product (which is defined in the
License Agreement) contains the Essbase Software, which is licensed by
SHOWCASE from Hyperion Solutions Corporation ("Hyperion"), and ported by
SHOWCASE to the AS/400 operating system (the "Essbase AS/400 Port").
Accordingly, prior to any release of the Source Code for such Essbase
AS/400 Port pursuant to the terms of the SCCA, IBM hereby agrees to inform
Hyperion in writing of such impending release and Hyperion shall have
thirty (30) days to elect in writing, one of the following options:
Page 4
December 9, 1998
Outbound License Agreement
a. modify, in agreement with IBM, that certain (*) by adding the Essbase
AS/400 Port as a Licensed Work under the (*). Provided that SHOWCASE
provides to IBM the Source Code needed for support and assigns to IBM
copyright ownership in the Code ported to OS/400 by SHOWCASE and which
was based on the code licensed to SHOWCASE pursuant to this Outbound
License Agreement Number STL98095 (including any Derivative Works
thereof - all referred to as the "RSI Code"), IBM hereby consents to
assuming the obligation to support all portions of the OLAP Product
that operates on OS/400 (excluding the Essbase AS/400 Port and
Enhancements and Maintenance Modifications thereto). And IBM agrees to
pay any royalties to Hyperion (*) for the Licensed Works thereunder
licensed on other platforms, with a minimum OTC royalty established by
(*); or
b. have assigned to it, and assume on behalf of SHOWCASE, all obligations
of SHOWCASE under the License Agreement Number STL97307, this Outbound
License Agreement Number STL98095, and SCCA of STL97307 with respect
to the OLAP Product, including, without limitation, all necessary
development and support thereof, and IBM hereby agrees to give its
written consent to such assignments.
In the event that IBM assumes support of the RSI Code, then SHOWCASE shall
deliver to IBM all available Source Code necessary for IBM to support it,
and SHOWCASE hereby grants and assigns to IBM, its successors and assigns,
all right, title and interest whatsoever, throughout the world, in and
under copyright in the RSI Code (the Derivative Work of the Code licensed
from IBM and ported to the OS/400 operating system by SHOWCASE pursuant to
the Outbound License Agreement Number STL98095), for the full duration of
all such rights and any renewals or extensions thereof. SHOWCASE agrees to
cooperate with IBM and execute documents reasonably required to support
such assignment and allow IBM to exercise its rights to the Code.
The parties agree that should Hyperion elect option a above, then,
(a) IBM shall do all things reasonably necessary, including, without
limitation, permit SHOWCASE to transfer Source Code and all other
necessary information related to the RSI Code and Essbase AS/400
Port, in order for Hyperion to assume such obligations with
respect to the OLAP Product;
(b) SHOWCASE shall have no continued obligations under Section 2.5 of
this Agreement to support or maintain any existing Derivative
Works of the Licensed Work included in the OLAP Product, or to
create any new Derivative Works of the Licensed Work for
inclusion in the OLAP Product;
(c) the mere occurrence by itself of such release or termination
shall not constitute a breach (although such release may be
triggered by a breach) by SHOWCASE of its obligations under this
Agreement, and this Agreement shall otherwise remain in full
force and effect pursuant to its terms; and
(d) (*) shall be due to SHOWCASE for licensing by IBM of the OLAP
Product.
If Hyperion does not elect in writing one of the above options within
thirty (30) days of receipt of IBM's notice, then IBM may obtain the
escrowed Materials in accordance with the SCCA.
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 5
December 9, 1998
Outbound License Agreement
3 LICENSE
3.1 IBM grants SHOWCASE a nonexclusive, worldwide, irrevocable license to (a)
prepare a Derivative Work of the Licensed Work solely in order to adapt it
to run on the OS/400 operating system, and to use, execute, reproduce,
display, perform such Derivative Work, and (b), in Object Code form only,
transfer, distribute and sublicense such Derivative Work in Products to end
user customers, in any medium or distribution technology whatsoever,
whether known or unknown. IBM grants SHOWCASE the right to authorize or
sublicense others to exercise any of the rights granted to SHOWCASE in
subsection (b) of this Section.
3.2 The grant of rights and licenses to the Licensed Work includes a
nonexclusive, worldwide, irrevocable, paid-up license under any patents and
patent applications that are owned or licensable by IBM now or in the
future and are (1) required to make and use the Licensed Work or its
Derivative Work or (2) required to license or transfer the Licensed Work or
its Derivative Work within the scope of the licenses granted above. This
license applies to the Licensed Work and its Derivative Works operating
alone or in combination with equipment or Code. The license scope is to
make, use, sell, license or transfer items, and to practice and have
practiced methods, to the extent required to exercise the rights granted
hereunder to the Licensed Work.
3.3 Subject to IBM's ownership of the Licensed Work, SHOWCASE will own the
Derivative Work it creates.
3.4 IBM grants SHOWCASE the right to use, and requires SHOWCASE to use, the
SHOWCASE Tag-Line solely for inclusion on software media, an installation
splash screen, packaging, and documentation for Products subject to the
guidelines specified in Attachment, "IBM Trademark Guidelines."
3.5 Any goodwill attaching to SHOWCASE's trademarks, service marks, or trade
names belongs to SHOWCASE and this Agreement does not grant IBM any right
to use them. SHOWCASE may state that IBM has provided the Licensed Work.
4 PAYMENT
4.1 SHOWCASE will pay IBM royalties as follows:
SHOWCASE will pay IBM royalties of (*) for each authorized copy of a
Product licensed to an end user by SHOWCASE, SHOWCASE Subsidiaries or
Distributors.
4.2 SHOWCASE has (*) for:
a. the Licensed Work or its Derivative Works used for:
(1) SHOWCASE's and SHOWCASE Subsidiaries' internal use;
(2) SHOWCASE's and SHOWCASE Subsidiaries' (including third parties
under contract) development, maintenance or support activities;
(3) marketing demonstrations, customer testing or trial periods
(including early support, pre-release, or other similar
programs), Product training or education; or
(4) backup and archival purposes;
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 6
December 9, 1998
Outbound License Agreement
b. a copy of the Product used by a licensed end user at home or on travel
when such Product is stored on both the user's primary machine as well
as another machine, provided that the end user is not authorized to
actively use the Product on both machines at the same time;
c. the Licensed Work (or a functionally equivalent work) that becomes
available generally to third parties without a payment obligation
through no action or fault of SHOWCASE;
d. documentation provided with, contained in, or derived from the
Licensed Work;
e. Error Corrections or Enhancements;
f. warranty replacement copies of the Product; or
g. Externals.
4.3 SHOWCASE, SHOWCASE Subsidiaries, and Distributors may, (*), copy the
Product and distribute it on a CD-ROM, or other media or distribution
technology on or through which the Product is secured (e.g., "encrypted" or
"locked") to limit a customer's access to or use of the Product. SHOWCASE
may allow the customer, under a limited license, a limited preview, trial
or demonstration use of the Product. SHOWCASE will (*) to IBM unless
SHOWCASE, SHOWCASE Subsidiaries, or Distributors license the Product to
such customer for full productive use.
4.4 SHOWCASE may request (*) for the Licensed Work (*). If IBM agrees, both
parties will sign a letter specifying the licensing transaction and (*).
4.5 Royalties are paid against revenue recorded by SHOWCASE in a royalty
payment quarter. In the U.S., a royalty payment quarter ends on the last
business day of the calendar quarter. Outside of the U.S., a royalty
payment quarter is defined according to SHOWCASE's current administrative
practices. Payment will be made by the last day of the second calendar
month following the royalty payment quarter. Royalties will be paid less
adjustments and refunds due to SHOWCASE. SHOWCASE will provide a statement
summarizing the royalty calculation with each payment. All payments will be
made in U.S. dollars. Payments based on foreign revenue will be converted
to U.S. dollars on a monthly basis at the rate of exchange published by
Reuters Financial Service on approximately the same day each month.
4.6 Each party will be solely responsible for any taxes incurred by the party,
directly or indirectly, associated with its performance of this Agreement.
4.7 All payments due and payable by SHOWCASE to IBM under this DLW shall be in
U.S. dollars. Such transfer(s) shall be coordinated through IBM's Account
Administrator, Lynn Kelderhouse at the following address:
International Business Machines Corporation
Branch Office JWQ
Accounts Receivable
Internal Zip 306
150 Kettletown Road
Southbury, CT 06488
Phone: 203-262-5621
Fax: 203-262-2141
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 7
December 9, 1998
Outbound License Agreement
4.8 SHOWCASE shall maintain complete and accurate accounting records, in
accordance with sound and prudent accounting practices, to support and
document royalties payable in connection with an Offering. Such records
shall be retained for a period of at least three (3) years after the
royalties to which such records relate have accrued and been paid. SHOWCASE
shall, upon written request and sixty (60) days notice, during normal
business hours, but not more frequently than once each calendar year,
provide access, for such period as may reasonably be required, and at such
locations where the appropriate records are located, to such records for
the immediately preceding three (3) year period to an independent
accounting firm chosen and compensated by IBM for purposes of audit. Such
accounting firm shall be required to sign an agreement with SHOWCASE
protecting SHOWCASE's confidential information and shall be authorized by
SHOWCASE to report to IBM only the amount of royalties due and payable for
the period examined, along with such related information as is reasonably
necessary to provide IBM with a proper understanding of the basis for its
conclusions, subject to the accounting firm's obligations of
confidentiality.
4.9 The payments defined in this Section fully compensate IBM for its
performance under, and for the rights and licenses granted in, this
Agreement.
5 TESTING
5.1 IBM will perform the following tests prior to each delivery of the Licensed
Work:
a. component testing;
b. functional verification testing; and
c. system testing.
Upon SHOWCASE's request, the details of such testing will be mutually
agreed to by the parties.
5.2 IBM will provide to SHOWCASE at SHOWCASE's request, concurrent with each
delivery of the Licensed Work, all test results, test scenarios, test
cases, and test reports associated with the pre-delivery testing.
5.3 Upon receipt of the Licensed Work by SHOWCASE, SHOWCASE may evaluate the
Licensed Work for a period of 30 days and perform such tests as SHOWCASE
deems appropriate to determine if:
a. the Licensed Work meets the specifications described in the Attachment
entitled "Description of Licensed Work;"
b. the Licensed Work executes repetitively within the system environment
described in the Attachment entitled "Description of Licensed Work;"
and
c. SHOWCASE can successfully execute to completion all functional and
system test scenarios developed by SHOWCASE.
SHOWCASE's testing does not relieve IBM of its obligations under this
Agreement.
6 REPRESENTATIONS AND WARRANTIES
6.1 IBM makes the following ongoing representations and warranties:
Page 8
December 9, 1998
Outbound License Agreement
a. IBM has full legal rights to grant the rights granted herein;
b. IBM is not under, and will not assume, any contractual obligation that
prevents IBM from performing its obligations or conflicts with the
rights and licenses granted in this Agreement;
c. there are no liens, encumbrances or claims pending or threatened
against IBM, or to IBM's knowledge, anyone else, that relate to the
rights and licenses granted in this Agreement;
d. the Licensed Work does not contain libelous matters nor does it
directly or indirectly infringe any publicity, privacy or intellectual
property rights of a third party including, to IBM's knowledge, any
patents or patent applications;
e. the Licensed Work and the Tools will perform in accordance with the
requirements set forth in this Agreement, including the Attachment
entitled "Description of Licensed Work", and will conform to IBM's
user documentation, and any sales and marketing materials provided by
IBM;
f. the fully commented Source Code that IBM provides corresponds to the
current release or version of the Licensed Work provided by IBM under
this Agreement;
g. the Licensed Work supports the Year 2000;
h. the Licensed Work is not contaminated by harmful code; and
i. all authors have waived their Moral Rights in the Licensed Work to the
extent permitted by law.
IBM will immediately provide SHOWCASE written notice of any change that may
affect its representations and warranties.
6.2 Except as provided above, anything either party provides to the other
related to this Agreement is "AS IS", without warranty of any kind.
7 INDEMNIFICATION AND LIABILITY
7.1 IBM will defend and indemnify SHOWCASE and SHOWCASE's Subsidiaries if a
third party makes a claim against SHOWCASE or its Subsidiaries based on an
actual or alleged:
a. failure by IBM, to the extent not caused by SHOWCASE, to perform IBM's
obligations under this Agreement;
b. breach of IBM's representations and warranties;
c. failure by IBM to comply with government laws and regulations; or
d. infringement by IBM, the Licensed Work or Tools of patents,
copyrights, trademarks, trade secrets, and other intellectual property
rights.
7.2 SHOWCASE will:
a. promptly provide IBM notice of any such claim; and
Page 9
December 9, 1998
Outbound License Agreement
b. allow IBM to control, and will cooperate with IBM in the defense of,
the claim and settlement negotiations.
SHOWCASE may participate in the proceedings at its option and expense.
7.3 In addition, if an infringement claim appears likely or is made, IBM will:
a. obtain the necessary rights for SHOWCASE, SHOWCASE Subsidiaries and
Distributors and their respective customers to continue to distribute,
license, otherwise transfer and use the Licensed Work on an
uninterrupted basis and exercise all rights granted in the Licensed
Work and Tools; or
b. modify the Licensed Work and Tools at IBM's expense to resolve the
claim. This modified Licensed Work will comply with the Attachment
entitled "Description of Licensed Work."
If IBM is not able to do either within a reasonable period of time,
SHOWCASE may terminate this Agreement for IBM's breach.
7.4 In addition to any remedies specified in this Agreement, SHOWCASE may
pursue any other remedy it may have in law or in equity.
7.5 Regardless of the type of claim, neither party is liable to the other for
indirect, incidental, special, or consequential damages including, but not
limited to, lost profits or revenues, under any part of this Agreement,
even if informed that they may occur. This limitation does not apply to (a)
IBM's liabilities for indemnity to the extent that damages claimed by a
third party might be characterized as damages of the type listed above or
(b) any obligations of either party to make a payment which is due under
this Agreement. SHOWCASE's total liability is limited to payments due to
IBM under this Agreement.
8 TERM AND TERMINATION
8.1 This Agreement begins on the Effective Date and will remain in effect for
ten (10) years with automatic one (1) year renewal terms, unless terminated
sooner under the terms of this Agreement. After the ninth (9) year, IBM may
terminate the Agreement by providing notice of intent to not renew twelve
(12) months prior to any term expiration date.
8.2 Either party may terminate this Agreement for the other's material breach
by providing the breaching party with a written notice that describes the
breach. The termination will become effective 90 days after receipt of the
notice unless the breach is cured within that 90 day period.
8.3 SHOWCASE may terminate this Agreement without cause on 12 months written
notice to IBM, provided that the effective date of any such termination may
only be on a date which is at least twelve (12) months after the fourth
(4th) anniversary of the date on which a Product has been made generally
available; provided, however, that SHOWCASE may terminate without cause at
any time on ninety (90) days written notice in the event that IBM does not
satisfactorily meet its obligations under Section 2.0 of this Agreement.
8.4 IBM may terminate this Agreement without cause on ninety (90) days written
notice in the event that IBM's license to the SHOWCASE licensed work
licensed under License Agreement STL97307 is (i) terminated by SHOWCASE for
any reason other than IBM's material breach of the contract or (ii)
terminated by either party pursuant to section 10.04 of STL97307.
Page 10
December 9, 1998
Outbound License Agreement
8.5 If, at the end of four (4) years and six (6) months from the Effective Date
of this Agreement, IBM notifies SHOWCASE, in writing, that the business
parameters supporting distribution of the Licensed Works hereunder has
changed significantly, both parties agree to renegotiate royalties in
Section 4.0 above. If no agreement has been reached within ninety (90) days
of SHOWCASE's receipt of the notification, either party may give notice of
termination of this Agreement which will be effective six (6) months from
receipt by the other party of such notice of termination. This process may
be invoked a maximum of one (1) time per year thereafter if required.
8.6 Expiration or termination of this Agreement does not affect any Product
licenses granted to end user customers pursuant to rights under this
Agreement for the Licensed Work. In the event of termination by SHOWCASE
for breach by IBM, SHOWCASE will not be obligated to make any payments that
would have become due under this Agreement on or after the effective date
of termination, other than per copy royalty payments incurred, if any.
8.7 Subject to Subsection 8.5, any provisions of this Agreement that by their
nature extend beyond termination or expiration will survive in accordance
with their terms. These include License, Representations and Warranties,
Indemnification and Liability, and General. These terms will apply to
either party's successors and assigns.
9 COORDINATORS
9.1 Any notice required or permitted to be made by either party to this
Agreement must be in writing. Notices are effective when received by the
appropriate coordinator as demonstrated by reliable written confirmation
(for example, certified mail receipt or facsimile receipt confirmation
sheet).
9.2 The Contract Coordinators responsible to receive ail notices and administer
this Agreement are:
For For
SHOWCASE: IBM:
Name: Tom Rydz Name: Robert L. Elliott
Title: Director of Business Alliances Title: Contract Manager
Address: ShowCase Corporation Address: IBM Corporation
9700 W. Higgins Rd, Ste 1100 555 Bailey Ave.
Rosemont, IL 60018-4796 San Jose, CA 95141
Phone: (847) 685-6505 Phone: (408) 463-2232
Fax: (847) 685-6570 Fax: (408) 463-5605
Page 11
December 9, 1998
Outbound License Agreement
9.3 The Technical Coordinators responsible to accept all Deliverables,
coordinate all exchanges of confidential information, and administer and
coordinate the technical matters associated with this Agreement are:
For For
SHOWCASE: IBM:
Name: Jon Otterstatter Name: Ms. Cathy Grape
Title: Vice President, Title: DB2 OLAP Server
Development Product Manager
Address: ShowCase Corporation Address: IBM Corporation
4131 Highway 52 North 555 Bailey Ave.
Rochester, MN San Jose, CA 95141
55901-3144
Phone: (507) 287-2865 Phone: (408) 463-2156
Fax: (507) 287-2803 Fax: (408) 463-4763
Technical Coordinators may propose, accept (by signature or initial), and
implement technical changes to this Agreement that do not change dollar
amounts or materially change Deliverables or the schedules of this
Agreement.
9.4 A party will provide written notice to the other when its coordinators
change.
10 GENERAL
10.1 Independent Contractor. Each party is an independent contractor. Neither
party is, nor will claim to be, a legal representative, partner,
franchisee, agent or employee of the other except as specifically stated
in the Subsection entitled "Copyright" below. Neither party will assume or
create obligations for the other. Each party is responsible for the
direction and compensation of its employees.
10.2 Freedom of Action. Each party may have similar agreements with others.
Each party may design, develop, manufacture, acquire or market competitive
products and services, and conduct its business in whatever way it
chooses. SHOWCASE is not obligated to announce or market any products or
services. SHOWCASE does not guarantee the success of its marketing
efforts. SHOWCASE will independently establish prices for its products and
services.
10.3 Reliance. Neither party relies on any promises, inducements or
representations made by the other or expectations of more business
dealings, except as expressly provided in this Agreement. This Agreement
accurately states the parties' agreement.
10.4 Compliance With Applicable Laws. Each party will comply with all
applicable laws and regulations at its expense including, to the extent
applicable, Executive Order 11246 on Equal Employment Opportunity, as
amended, the Occupational Safety and Health Act of 1970, as amended, and
the Americans With Disabilities Act of 1990, as amended. This also
includes all applicable government export and import laws and regulations.
Page 12
December 9, 1998
Outbound License Agreement
10.5 Confidential Information. The parties agree that information exchanged
under this Agreement that is considered by either party to be confidential
information will be subject to the terms of the AECI, referenced on the
first page of this Agreement, and its Supplements. In addition, IBM will
not provide SHOWCASE with any information which may be considered
confidential information of any third party unless provided under the
AECI. The obligations set forth in the AECI with regard to confidential
information will not limit or preclude the exercise of the licenses
granted in this Agreement.
10.6 Copyright. Any publication by SHOWCASE of the Licensed Work or the
Derivative Work thereof may contain an appropriate copyright notice, as
determined by SHOWCASE.
IBM will enforce and maintain its copyright protection in the Licensed
Work. SHOWCASE is not responsible for enforcing and maintaining such
copyright protection.
10.7 Order of Precedence. If there is a conflict among the terms of this base
License Agreement and its Attachments, the terms of this base License
Agreement prevail over those of the Attachments, unless the parties
expressly indicate in the Attachments that particular terms within the
Attachments prevail. Terms in SHOWCASE's purchase orders and IBM's
invoices or acknowledgments, if any, are void.
10.8 Headings. The headings of this Agreement are for reference only. They will
not affect the meaning or interpretation of this Agreement.
10.9 Counterparts. This Agreement may be signed in one or more counterparts,
each of which will be considered an original, but all of which together
form one and the same instrument.
10.10 Amendment and Waivers. For a change to this Agreement to be valid, both
parties must sign it. No approval, consent or waiver will be enforceable
unless signed by the granting party. Failure to insist on strict
performance or to exercise a right when entitled does not prevent a party
from doing so later for that breach or a future one.
10.11 Actions. Neither party will bring a legal action relating to the subject
matter of this Agreement, against the other more than 2 years after the
cause of action arose, except in the case of indemnification for
infringement, in which case this period runs for 2 years after the award
or settlement was made.
10.12 Dispute Resolution. Both parties will act in good faith to resolve
disputes prior to instituting litigation. Each party waives its rights to
a jury trial in any resulting litigation. Litigation will only be
commenced in the State of New York.
10.13 Governing Law. This Agreement will be governed by the substantive law of
the State of New York applicable to contracts executed in and performed
entirely within that State. The United Nations Convention on Contracts for
the International Sale of Goods does not apply. IBM will, upon written
notice from SHOWCASE, submit to personal jurisdiction in any forum where
SHOWCASE is sued for claims related to IBM's indemnification obligations.
Page 13
December 9, 1998
Outbound License Agreement
Description of Licensed Work
1.0 General description of Licensed Work: Relational Storage Interface
1. Relational Data Store Component ("RDSC") version consistent with the
version of Essbase which SHOWCASE has ported to the OS/400 operating
system
2. Education Materials Source (soft-copy) for IBM's RDSC introductory
education classes
2.0 Specific description of Licensed Work:
Relational Data Store Component ("RDSC") version consistent with all
versions 5.0 of Essbase which SHOWCASE has ported to the OS/400 operating
system, and all future modifications to and Derivative Works of RDSC
applicable to the OS/400 operating system.
* format ( Source Code, either on CD-ROM or via ftp site).
* RDSC Functions - The purpose of the RDSC is to replace the Essbase
multidimensional data store with a relational data store. Generally,
the RDSC is intended to be functionally equivalent to the then current
Essbase multidimensional store. In particular, index (.ind) and page
(.pag) data files will be replaced by a number of relational tables.
When implemented, the relational schema is intended to serve as an
efficient multidimensional store. The outline file (.otl) lists the
data elements (members and dimensions) of an Essbase database and
defines their relationships (e.g., hierarchical and mathematical).
Although the RDSC will not replace the outline file with relational
tables, the outline data will be mirrored as read-only reference data
in relational tables that are part of the relational store.
All other Essbase database elements are intended to be unaffected by
the implementation of the RDSC.
Although the objective of the RDSC is to be substantially similar in
function to the Essbase multidimensional store, there will be some
architectural and operational differences. The key differences (known
at this time) are listed below. As design and implementation proceed
other significant differences may arise.
o In order to provide an efficient and natural relational
representation of an Essbase database, the RDSC must ensure that
one dimension is defined as the measures dimension. The measures
dimension generally corresponds to the accounts dimension in an
Essbase database. While Essbase currently provides for some
special handling of dimensions labeled as accounts dimensions, it
does not require one. In the vast majority of business models,
this additional restriction should not pose a problem.
o Relational databases generally limit the number of columns
permitted in tables and views; this may have an impact on the
number of members allowed in the measures dimension.
o Whenever possible, the RDSC will use dimension and measures
member names as view and column names in the appropriate elements
of the relational schema. However, differences in naming rules
between Essbase and a given RDBMS will not always permit this
simple mapping. For example, Essbase member names can be up to
eighty characters in length, whereas DB2 column names are limited
Page 14
December 9, 1998
Outbound License Agreement
to eighteen characters. A given RDBMS may not allow some
characters in table and column names that Essbase does permit in
dimension and member names. When a conflict arises the RDSC must
construct a valid view or column name. Essbase applications will
be generally unaffected by this problem. SQL applications may
have to use dimension tables to look-up the derived table or
column name.
o Performance of the RDSC is expected to be similar to the Essbase
multidimensional store, but it will be slower. In terms of
response time, the target is to complete queries in no more than
three (3) times the amount of time required by the Essbase
multidimensional store. Furthermore, the RDSC will generally not
be able to support the same number of active client connections
that the Essbase server can support on a given hardware and
software platform.
* documentation:
* internal (i.e., if requested by SHOWCASE, development
documentation, Source Code documentation, etc.)
* external (i.e., end-user documentation, on-line documentation,
etc.)
* other materials (as requested):
* test results
* test cases
* maintenance and support reports (including information required
and format)
* education/training material
Page 15
December 9, 1998
Outbound License Agreement
Attachment
Schedule Page 1 of 1
Milestones
----------
Date
----
a. Execution of this Agreement (*)
b IBM's delivery of the Licensed Work which (*)
substantially complies with its specifications
c. Successful completion of SHOWCASE's testing of the (*)
Licensed Work
d. Receipt of the completed Certificate of Originality for (*)
the Licensed Work
(*) Denotes confidential information that has been omitted and filed separately,
accompanied by a confidential treatment request, with the Securities and
Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as
amended.
Page 16
December 9, 1998
Outbound License Agreement
Attachment
Maintenance and Support Page 1 of 1
1.0 IBM has no maintenance or support obligations
Page 17
December 9, 1998
Outbound License Agreement
Attachment
Attachment - IBM Trademark Guidelines Page 1 of 1
IBM (R) is a registered trademark of the IBM Corporation. These guidelines
were developed to help you use them consistently and appropriately on
advertising, packaging, documentation, and products. Following these guidelines
will build an identity for the product in the marketplace and establish an image
of quality. It will also protect and maintain these valuable trademark assets.
Legal rights for the trademarks are owned by IBM and licensed to others.
Usage is encouraged, as long as it conforms to licensing agreements and these
guidelines.
1. Usage Basics
a. You are not authorized to use the eight-bar IBM logotype.
b. IBM (R) is a registered trademark available to you for use under
your license grant from IBM.
c. The registered trademark designator (R) must appear in readable
form with the most prominent usage of the trademark. The
designator may be superscripted. Outside the U.S., an asterisk
may replace the trademark designator, and in some countries a
translation of the attribution may be required. Check with your
legal department about local laws and customs.
d. Never attempt to translate the IBM trademark into other
languages. The English characters create a unique symbol and,
therefor, constitute the only acceptable version.
e. Do not create plural or possessive forms of the IBM trademark.
f. The IBM trademark should be sufficiently spaced apart from your
product logo and should have sufficient clear space around it -
minimally the height of one capital letter. Do not pair the
trademark with any type, such as a tag line, or combine it with
another logo or symbol.
g. The IBM trademark should appear in a single color, preferably
black, that provides sufficient contrast to any background colors
to be clearly visible.
h. You may not use the IBM trademark on promotional items without
express authorization.
i. Usage of the IBM trademark requires the following attribution:
"IBM is a registered trademark of International Business Machines
Corporation, used under license therefrom."
j. IBM retains the right to review and approve all uses of the IBM
trademark, and to require reasonable modification thereof.
Improper application may result in loss of the right to use this
trademark.
Page 18