OEM Partner Agreement - Callidus Software Inc. and Cezanne Software Inc.
OEM Partner Agreement
CEZANNE PARTNER
Cezanne Software, Inc. Company Name: Callidus Software, Inc.
75 Second Avenue Address: 160 West Santa Clara St.
Suite 710 Suite 1500
Needham, MA 02494 San Jose, CA 95030
Phone: 781-292-1062 Phone: 408-808-6400
Fax: 781-292-1061 Fax: 408-271-2662
Effective Date: July 31, 2002
Executed by Cezanne Executed by Partner
/s/ Alberto Gabbai /s/ Michael Tidd
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Signature Signature
Alberto Gabbai Michael C. Tidd
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Printed Name Printed Name
President and CEO Vice President, Finance & CFO
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Title Title
Cezanne will provide software programs to Partner for enhancement and
subsequent sublicensing and distribution by Partner subject to the terms
and conditions below. Accordingly, this OEM Partner Agreement
("Agreement") is made and entered into as of the Effective Date by and
between Cezanne Software, Inc., a Delaware corporation ("Cezanne") and the
Partner identified above ("Partner").
This Agreement consists of this OEM Partner Agreement and the attached Exhibits
A, B, C, D and E.
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1. DEFINITIONS
(A) "Additional Services" means consulting, training, assistance with
development, additional Technical Support, integration support, and other
services that Partner may order from Cezanne.
(B) "Agreement" refers to and includes this Cezanne OEM Partner Agreement and
the Exhibits, all of which, taken together, govern the rights and obligations of
Cezanne and Partner.
(C) "Contract Year" means a year beginning on the Effective Date and each
succeeding year beginning on each anniversary of the Effective Date during the
term of this Agreement.
(D) "Customer" means a customer of Partner that licenses Partner Enhanced
Products for use in its internal business operations.
(E) "Customer Support Fees" means the fees to be paid by Partner in
consideration of technical support provided by Cezanne to Partner in connection
with Partner's Technical Support of its Customers.
(F) "Documentation" means the operating instructions, user manuals and "read-me"
files for the Software provided by Cezanne.
(G) "Effective Date" means the date first written above.
(H) "Partner Enhanced Product" means Partner's product which bundles Cezanne
Software or elements thereof.
(I) "Software" means the Cezanne software products in object code form and
related Documentation, and any Updates and fixes to such products that may be
provided by Cezanne from time to time. The Software is deemed the confidential
information of Cezanne.
(J) "Software Development Kit" or "SDK" means the set of software tools and
reusable software code that Cezanne has developed for the purpose of making the
development of the Software easier and more efficient, and any Updates and fixes
to such products that may be provided by Cezanne from time to time. The Software
Development Kit is deemed the confidential information of Cezanne.
(K) "Sublicense Fees" means the fees payable by Partner in connection with each
sublicense of the Software granted by Partner in its licensing of the Partner
Enhanced Product.
(L) "Technical Support" means software diagnosis, software problem analysis and
resolution, and the provision of Updates and fixes to Customers.
(M) "Updates" means maintenance releases, improvements, and enhancements to the
Software or Documentation that are generally provided by Cezanne to its current
technical support customers.
2. LICENSE, RESTRICTIONS, AND DISTRIBUTION
(A) DEVELOPMENT LICENSE. During the term of this Agreement and subject to its
terms and conditions, Cezanne grants to Partner the nonexclusive,
nontransferable, limited right to develop, support and maintain the enhancement
and integration of the Software with the Partner Enhanced Product. Within ten
(10) business days of the Effective Date, Cezanne shall deliver to Partner a
master copy of the Software and of its Software Development Kit, to be used in
accordance with this Agreement only. For the Development License Partner will
pay Cezanne the Development License Fee set forth in Exhibit A, paragraph 2.3.
(B) SUBLICENSE OF SOFTWARE LICENSE. During the term of this Agreement and
subject to its terms and conditions, Cezanne grants to Partner the nonexclusive,
nontransferable right to market, sublicense, copy, re-label, modify and
distribute the Software in the Partner Enhanced Product to Customers and to its
distributors and non-US subsidiaries for purposes of sublicensing to Customers.
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(C) DEMONSTRATION LICENSES. Partner may make a reasonable number of copies of
the Software set forth in Exhibit A for the purpose of demonstrating it at
Partner locations and at trade show, user group, or seminar presentations.
Demonstration copies of the Software may not be sold, rented, leased,
transferred, distributed or assigned by Partner in any manner (other than to an
authorized distributor).
(D) SOFTWARE DEVELOPMENT KIT. In order to make the Development license granted
under 2(a) more effective, Cezanne will deliver to Partner its standard Software
Development Kit. The SDK is a set of software tools and reusable software
components that Cezanne has developed for its own internal use, in order to
expedite and render more flexible the development of new functionalities and the
modification, customization, enhancement and integration of existing
functionalities. As an internal tool, the Software Development Kit is not a
complete, fully supported and fully documented product. Partner acknowledges
that the SDK will be delivered by Cezanne "as is", with no warranty of fitness
for any particular purpose. No fee will be charged for the delivery of the
Software Development Kit, and, although Cezanne will strive to respond to
technical defects or inquiries concerning the SDK, none of the provisions of
Exhibit C (Maintenance and Technical Support Schedule) applies to the SDK.
(E) SOFTWARE DEVELOPMENT KIT - RESTRICTIONS OF USE. Partner agrees to use the
Software Development Kit only to develop, support and maintain modifications,
enhancements or customizations to the Software and integrations of the Software
with the Partner Enhanced Product. UNDER THIS AGREEMENT PARTNER IS NOT
AUTHORIZED TO USE THE SOFTWARE DEVELOPMENT KIT FOR THE DEVELOPMENT OF ADDITIONAL
SOFTWARE COMPONENTS, WHETHER RELATED WITH THE SOFTWARE OR NOT. Partner further
agrees that it shall not sell or license the SDK to a third party developer or
to a Customer, without the express written approval of Cezanne. In the case a
third party who is involved in implementations of the Partner Enhanced Product
that contains the Cezanne Software, or an End-User of the same product, should
be interested in using the SDK, Partner and Cezanne will jointly agree about the
price, terms and conditions to offer such third party or End-User a temporary
development license, with the price being based on the scope of use and the
number of developers involved in the use.
(F) SOURCE-CODE LICENSE. Based on the timing and conditions set forth in Exhibit
A, paragraph 3.0, Partner may elect to acquire a source-code license by
delivering the one-time payment described in Exhibit A, paragraph 3.0. Upon
receipt of payment, Cezanne will provide a full master copy of the source-code
along with all documentation. The acquisition of the source-code license by the
Partner will not automatically terminate this Agreement. Upon the acquisition of
the source-code license, Partner may use the source-code to copy, create,
modify, enhance products for sub-license to customers. Partner may not
distribute or sublicense native source-code to third parties. Partner may
sublicense source-code pursuant to section 18 Assignment. After the acquisition
of a source-code license, Partner obligations to pay the Sublicense Fees,
Training Royalties and Development License Fees enumerated in Exhibit A,
paragraphs 2.1, 2.2 and 2.3 will cease, provided that any fee that was due
before the acquisition of the source-code license will remain due. Upon the
acquisition of the source-code license, Partner will have the option to select
whether the maintenance and technical support services described in Exhibit C
shall continue to be performed by Cezanne, who would in this case continue to be
entitled to the maintenance and technical support fee specified at paragraph 4.0
of Exhibit A, or otherwise if any such obligations and fees are terminated. The
acquisition of the source-code license by the Partner will not limit in any way
Cezanne's rights, title and interest in the Software, and Cezanne may continue
to sell licenses for the Software with no restrictions.
(G) SOFTWARE SUBLICENSE RESTRICTIONS. Partner agrees to distribute the Software
only under a written and signed Customer software license agreement containing
provisions, particularly limitations of liability, disclaimers of warranty, and
use restrictions, that are at least as protective as those set forth on Exhibit
D, Minimum Customer License Terms. Cezanne reserves the right to pre-approve and
receive a copy of Partner's license agreement upon request, which such approval
shall not be unreasonably withheld. In addition, Partner may not license the
Software to any entity, or the employees or consultants of such entity, which
compete directly with Cezanne. A current list of such competitors is provided in
Exhibit B.
(H) DISTRIBUTION. Partner may distribute the Software through distributors
subject to substantially similar terms and conditions of this agreement.
(I) ENFORCEMENT OF CUSTOMER LICENSES. Partner shall at all times vigorously
enforce the terms and conditions of any Customer software license agreement. In
the event that Partner fails to enforce any such
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Customer software licenses, Partner hereby appoints Cezanne as its true and
lawful attorney-in-fact to do any and all acts necessary and appropriate to
execute the software license agreement in the name of Partner as its
attorney-in-fact, as well as in the name of Cezanne, which may be necessary and
appropriate to preserve, enforce or effect the rights of Cezanne under the
Customer software license agreement. If Cezanne terminates this Agreement in
accordance with Section 7, Cezanne is nevertheless fully authorized to act under
such powers of attorney.
(J) DISTRIBUTION AND SUBLICENSE REPORTS. Partner shall submit quarterly written
reports to Cezanne for all transactions that involve the sale of a license of
the Partner Enhanced Product. Such report shall be made in the form attached
hereto as Exhibit E, and shall be provided within thirty (30) days after the end
of every calendar quarter.
(K) TRADEMARKS AND PROPRIETARY NOTICES. Cezanne hereby grants to Partner a
nonexclusive, worldwide, royalty-free license to use trademarks of Cezanne that
are related to the Cezanne products in connection with the marketing and
distribution of the Cezanne Products under this Agreement. Partner shall include
in its packaging and other media for the Software all proprietary rights notices
contained in the original copy of the Cezanne products obtained from Cezanne.
Cezanne shall have the right to approve that part of Partner package design that
includes Cezanne's logo and the Cezanne product names, such approval not to be
unreasonably withheld; provided that notice of disapproval is not received
within 15 days after submission to Cezanne, the package design shall be deemed
approved.
(L) USE RESTRICTIONS. Partner shall not, nor allow any third party to translate,
disassemble, reverse engineer, decompile or otherwise attempt to reconstruct or
discover any source code or underlying ideas or algorithms of, or embodied in,
the Software. Partner shall not cause or permit unauthorized copying,
reproduction or disclosure of any portion of the Software, or any instructions,
manuals, or other Documentation, or the delivery or distribution of any part of
either the Software or the Documentation, to any third person or entity, for any
purpose whatsoever, including, but not limited to, transmission, uploading,
downloading, leasing, or operating the Software as a timeshare or service bureau
without the prior written consent of Cezanne.
(M) NO DEVELOPMENT OF COMPETING SOFTWARE. During the Term of this agreement,
Partner shall not develop software products competitive to Cezanne Software
products listed on Exhibit A. this provision will automatically expire upon
acquisition of a source-code license.
3. USER DOCUMENTATION AND TRAINING MATERIALS
Cezanne hereby grants to Partner a nonexclusive, worldwide, nontransferable,
royalty-free license to use, re-label, modify and copy the user documentation
and training materials for the Cezanne products and to distribute such user
documentation and training materials, including any modifications or portions
thereof, to End Users with the Cezanne Products. Partner shall not remove any
proprietary notices of Cezanne on such user documentation or training materials
unless such user documentation or training materials are re-labeled and
incorporated into Partner manuals or materials developed specifically for the
Cezanne product, in which case Partner may remove such notices provided such
manuals contain the following legend: "Copyright Cezanne Software Inc. All
rights reserved." Cezanne shall provide such user documentation and training
materials in a mutually agreed electronic format.
4. MARKETING ACTIVITIES
(A) PUBLICITY. Either party may issue any public announcement or publish any
materials that reference or discuss the other party or its products upon the
prior written consent of the other party.
(B) JOINT MARKETING. During the term of this Agreement, Partner and Cezanne may
mutually agree from time to time to engage in joint marketing activities which
promote their products including seminars, press announcements, trade shows,
user groups or other marketing events.
5. SUPPORT AND OTHER SERVICES
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(A) TECHNICAL SUPPORT TO CUSTOMERS. Partner shall be solely responsible for
providing Technical Support to its Customers. Cezanne will have no
responsibility for providing support directly to Partner's Customers, however,
in consideration of the Customer Support Fee, Cezanne shall assist Partner with
its Technical Support of its Customers, as described in Exhibit C.
(B) ADDITIONAL SERVICES. For an additional fee, Partner may order Additional
Services, including professional services, from Cezanne, as described in Exhibit
A, paragraph 5.0, in connection with Partner's use of the Development License,
or for other related purposes. Cezanne reserves the right to change prices for
Additional Services without notice during the term of this Agreement.
6. FEES AND PAYMENT
(A) DEVELOPMENT LICENSE FEE. Partner shall pay to Cezanne the annual Development
License Fee, stated in Exhibit A, paragraph 2.3. The first time on the effective
date of this agreement, and subsequently at each anniversary date thereof.
(B) SUBLICENSE AND CUSTOMER SUPPORT FEES. Partner shall pay to Cezanne the
Sublicense Fees specified in Exhibit A for each sublicense of Software granted
by Partner. The applicable Sublicense Fee shall be as specified in paragraph 2.1
of Exhibit A. Partner shall also pay the related annual Maintenance and
Technical Support Fee for each customer to which Maintenance and Technical
Support is provided. The applicable Fee shall be as specified in paragraph 4.0
of Exhibit A.
(C) PAYMENT TERMS. Within fifteen (15) days of submission of each quarterly
Sublicense Report, Partner shall pay Cezanne the Sublicense Fees and Customer
Support Fees contained in that report. For all other fees owed by both parties,
payment shall be made thirty (30) days from the date of invoice.
All payments made to Cezanne shall be in U.S. Dollars, unless otherwise
specifically agreed. Partner's obligation to pay Cezanne under this Agreement
shall not be affected by its ability to collect payment from its Customers. In
addition, Partner shall pay all charges reasonably incurred in the handling
and/or shipment of Software to Customers, including transportation charges,
insurance premiums, taxes (except taxes based on Cezanne's net income), duties
and other applicable government assessments.
(D) AUDIT. Partner shall maintain accurate records relating to the performance
of its obligations under this Agreement for at least three (3) years after its
termination. Cezanne may, upon thirty (30) days' written notice and not more
than once in each twelve (12) month period, examine Partner's records related to
the amounts due to Cezanne. Such examination may be done, at Cezanne's expense,
by Cezanne or its accounting firm, provided, however, that if any such audit
uncovers one or more underpayments in excess of five percent (5%) of the total
amount reported by Partner in the preceding 12 month period, Partner shall
reimburse Cezanne for the costs of the audit, and shall immediately pay the full
amount of underpayment, if any, uncovered during the course of the audit.
7. TERM AND TERMINATION
(A) INITIAL TERM. This Agreement and the licenses granted under it shall remain
in effect from the Effective Date of this Agreement for a term of three (3)
years and shall automatically renew for subsequent one (1) year terms unless
terminated in accordance with the terms of the following.
(B) TERMINATION FOR CAUSE. Either party may terminate this Agreement by giving
written notice to the other party if such other party materially breaches the
Agreement. Such termination shall be effective, thirty (30) days after written
notice by the non-breaching party unless the material breach has been cured to
the reasonable satisfaction of the non-breaching party prior to the expiration
of such thirty (30) day period.
(C) TERMINATION WITHOUT CAUSE. At any time, either party may terminate this
Agreement without cause by providing the other with not less than ninety (90)
days notice.
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(D) BANKRUPTCY. Either party may terminate this Agreement if the other party
becomes insolvent or seeks protection under any bankruptcy, receivership, trust
deed, creditors arrangement, composition or comparable proceeding.
(E) EFFECTS OF TERMINATION. Upon termination of this Agreement for any reason,
all rights and licenses granted under this Agreement shall terminate and revert
to Cezanne, except that sublicenses of the Software granted by Partner to
Customers in accordance with Section 2(b) of this Agreement as of the date of
termination will remain in effect in accordance with the terms and conditions of
the Customer software license agreement, and that the Development license will
remain in effect for the time required to complete any implementation projects
with Partner's Customers who already purchased a Partner Enhanced Product, but
in no case for longer than twelve months after termination. Upon termination of
this Agreement for any reason, Partner shall (i) cease using all demonstration
licenses; (ii) cease issuing new sublicenses of the Software; (iii) return to
Cezanne all copies of the Software, sales and marketing literature and other
written information and materials supplied by Cezanne pursuant to this Agreement
or which contain Cezanne's proprietary marks; and (iv) no longer identify or
hold itself out as a partner of Cezanne.
(F) MAINTENANCE AFTER TERMINATION. Maintenance obligations will survive the
termination of this OEM Partner Agreement. So long as Partner pays the
maintenance fees specified in Exhibit A paragraph 4.0, maintenance is not
terminable by Cezanne and all maintenance obligations set forth in Section 1 of
Exhibit C will remain in effect.. Notwithstanding the above, upon termination of
this Agreement Cezanne shall have the right to propose a direct maintenance
agreement to the Customers who purchased a license from Partner, and Partner
will cooperate with Cezanne in all reasonable manners to the transfer of the
existing maintenance agreement to Cezanne.
8. OWNERSHIP
Cezanne retains all right, title and interest in the Software and in any ideas,
know-how, programs, processes, designs, inventions, works, trade secrets, and
other information, which may be developed by Cezanne in the course of providing
any technical services, including any enhancements or modifications made to the
Software (collectively, "Cezanne Materials"), and all patents, copyrights, trade
secrets, and other proprietary rights in or related to the Cezanne Materials,
whether or not specifically recognized or perfected under the laws of the
country where the Cezanne Materials are located. Partner will not remove, alter
or destroy any form of copyright notice, proprietary markings or confidential
legends placed upon or contained within the Cezanne Materials. Further, Partner
will reproduce Cezanne's copyright and other proprietary rights notices on any
copies of the Cezanne Materials it uses, including archival, backup, or
demonstration copies.
9. CONFIDENTIAL INFORMATION
(A) DEFINITION. "Confidential Information" means all information related to the
business of the disclosing party that may be obtained by the receiving party
from any source as a result of this Agreement, provided that if written, the
information is marked as proprietary or confidential, and if oral, shall be
followed by a written summary of such oral communication within fifteen (15)
days of the date of disclosure. Confidential Information includes (but is not
limited to) source code, algorithms, concepts, pricing information, business
methods, business and technical plans, research and test results, including the
results of any performance or benchmark tests or demonstration of the Software.
(B) EXCEPTIONS. Confidential Information does not include information that the
receiving party can demonstrate (i) is or becomes publicly available through no
act or omission of the receiving party; (ii) the disclosing party discloses to a
third party without restriction on further disclosure; (iii) is rightfully
disclosed to the receiving party by a third party without restriction on
disclosure; (iv) is independently developed by the receiving party without
access to the disclosing party's Confidential Information; (v) is previously
known to the receiving party without nondisclosure obligations; and (vi) is
required to be disclosed pursuant to any court order provided that the receiving
party shall advise the disclosing party of such request in time for the
disclosing party to apply for legal protection.
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(C) NONDISCLOSURE OBLIGATION. Each party agrees that it will not disclose to any
third party any Confidential Information belonging to the other party without
the other party's prior written consent. Each party agrees that it will not use
the Confidential Information of the other party except as authorized in the
Agreement. Each party further agrees that it will maintain the confidentiality
of all Confidential Information of the other party and prevent the unauthorized
disclosure or use of any Confidential Information by its clients, customers,
employees, subcontractors or representatives. Each party further agrees to
notify the other in writing of any misuse or misappropriation of the other
party's Confidential Information that may come to its attention.
10. INDEMNIFICATION BY CEZANNE
(A) PROVIDED BY CEZANNE. Cezanne shall defend and settle at its own expense, and
shall indemnify Partner for any damages or expenses including reasonable
attorneys' fees resulting from any action brought against the Partner to the
extent that it is based on a claim that the Software used in the Partner
Enhanced Product infringes any U.S. patent, copyright, or trade secret of a
third party, provided that: (i) Cezanne is promptly notified in writing of the
claim; (ii) Cezanne has sole control of the defense and any negotiations for its
settlement; and (iii) Partner provides Cezanne, at Cezanne's expense, with all
reasonable assistance, information, and authority necessary to perform the
above.
(B) LIMITATIONS. This indemnity obligation shall not apply with respect to a
claim which arises (i) from the use of a superseded or modified release of the
Software, if the claim would have been avoided by the use of the current or
unmodified release; (ii) from the use, operation, or combination of Software
with programs, data, equipment, or materials not provided or approved by
Cezanne, if the claim would have been avoided by the use of the Software without
such programs, data, equipment, or materials; or (iii) to the extent that
Partner continues the allegedly infringing activity after being informed of and
provided a fix that would avoid the alleged infringement.
(C) REMEDIES. Should the Software become, or in Cezanne's opinion be likely to
become, the subject of any such claim of infringement, then the Partner will
permit Cezanne, at Cezanne's option and expense, either: (i) to procure for
Partner the right to continue using the Software; (ii) replace or modify the
Software so that its use becomes non-infringing; or (iii) refund the license
fees paid by Partner to Cezanne for the allegedly infringing Software, provided
that the amount of fees subject to refund shall be amortized on a straight line
basis over a three (3) year period.
11. INDEMNIFICATION BY PARTNER
Partner will indemnify Cezanne for any and all damages, settlements, reasonable
attorneys' fees and expenses based: (a) on a claim that the Partner Enhanced
Product or the Partner product used in the Partner Enhanced Product infringe any
intellectual property right of a third party or (b) on any action brought
against Cezanne to the extent that the claim is based on misrepresentations made
by Partner about the performance or operation of the Software that differ from
those found in Cezanne's Documentation, provided that: (i) Partner is promptly
notified in writing of the claim; (ii) Partner has sole control of the defense
and any negotiations for its settlement; and (iii) Cezanne provides Partner, at
Partner's expense, with all reasonable assistance, information, and authority
necessary to perform the above.
12. LIMITED WARRANTY AND DISCLAIMER
Cezanne warrants that, when delivered and for a period of one year thereafter,
the Software will materially conform to Cezanne's then current Documentation.
Cezanne further warrants that all Software delivered to Partner hereunder will
accurately process date data from, into and between twentieth and twenty-first
centuries, including leap year calculations, when used in accordance with the
Documentation. The preceding warranty will only apply to problems reported to
Cezanne during the warranty period and will not apply: (i) where the Software is
not used in accordance with the Documentation; (ii) if the Software or any part
thereof has been altered or modified without the prior written consent of
Cezanne; or (iii) where a defect in the Software has been caused by any of
Partner's malfunctioning equipment. EXCEPT FOR ANY EXPRESS WARRANTIES MADE
HEREIN, CEZANNE MAKES NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR IMPLIED, WITH
REGARD TO THE SOFTWARE AND ANY SERVICES COVERED BY THE AGREEMENT, INCLUDING BUT
NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY
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OR FITNESS FOR A PARTICULAR PURPOSE. CEZANNE DOES NOT WARRANT, GUARANTEE, OR
MAKE ANY REPRESENTATIONS THAT THE SOFTWARE IS ABSOLUTELY ERROR-FREE.
13. LIMITATION OF REMEDY
FOR ANY BREACH OF THE SOFTWARE WARRANTY DESCRIBED ABOVE, CEZANNE'S ENTIRE
LIABILITY SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE SOFTWARE OR, IF SUCH
REPAIR OR REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN CEZANNE'S OPINION, NOT
COMMERCIALLY REASONABLE, TO A REFUND OF THE LICENSE FEES PAID FOR THE SOFTWARE.
14. LIMITATION OF LIABILITY
NEITHER CEZANNE NOR PARTNER WILL BE LIABLE, UNDER ANY CONTRACT, TORT, STRICT
LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF OR DAMAGE TO DATA,
LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER
ASSETS, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR: A) INDEMNIFICATION PAYMENTS
REFERRED TO IN SECTION 10, AND B) BODILY INJURY (INCLUDING DEATH) AND DAMAGE TO
REAL AND TANGIBLE PERSONAL PROPERTY, IN NO EVENT SHALL CEZANNE'S LIABILITY UNDER
THE AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO CEZANNE BY PARTNER UNDER
THE AGREEMENT.
15. EXPORT
Partner acknowledges that the Software, the Documentation and other technical
information delivered pursuant to the Agreement (collectively, "Technical Data")
are subject to export controls under U.S. laws. Partner agrees to (a) strictly
comply with all legal requirements established under these controls, (b)
cooperate fully with Cezanne in any official or unofficial audit or inspection
that relates to these controls, and (c) not export, re-export, divert, transfer,
or disclose directly or indirectly, any Technical Data to any country, or to the
nationals of any such country, which the U.S. government determines is a country
to which such export, re-export, diversion, transfer, or disclosure is
restricted, without obtaining the prior written authorization of Cezanne and the
applicable U.S. government agency. Any breach of this provision shall be
considered a material breach of the Agreement.
16. GOVERNMENT CONTRACT
Partner agrees that if it sublicenses the Software to agencies of the United
States government or to contractors acquiring sublicenses under government
contracts, then such agencies or contractors acknowledge and agree that the
Software was developed entirely at private expense; that the Software is
"commercial computer software"; and that use, duplication and disclosure rights
are subject to the restrictions stated in the applicable U.S. laws.
17. FORCE MAJEURE
Neither party shall be held responsible for any delay or failure in performance
of any part of this Agreement to the extent such delay or failure is caused by
fire, flood, war, strike, embargo, government requirement, civil or military
authority, act of God, or by reason of any occurrence beyond its reasonable
control and without the fault or negligence of the delayed or non-performing
party.
18. ASSIGNMENT
Partner may not assign, delegate or otherwise transfer the Agreement or any of
its rights or obligations to a third party and any such attempted transfer shall
be void. Notwithstanding the foregoing, either party may assign, upon written
notice to the other party, its rights and obligations under this Agreement to a)
a wholly owned subsidiary or a company wholly owned by the same parent company,
and b) the surviving corporation in any merger or consolidation to which it is a
party or to any entity which acquires all or
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substantially all of its stock or assets, provided that such entity is not a
competitor of other party, as listed in Exhibit B.
19. AMENDMENT AND WAIVER
Any waiver, amendment or modification of any provision of this Agreement must be
in writing. No waiver or consent shall constitute a continuing waiver or consent
or commit a party to provide a waiver in the future except as specifically set
forth in writing. The failure of either party to exercise any right provided for
by this Agreement shall not be deemed a waiver of that right.
20. NOTICES
All notices and other communications required or permitted under this Agreement
shall be in writing, addressed to the Contracts Department of the party being
notified at its address first written above, and shall be deemed given: (a) upon
confirmation of receipt following delivery of registered or certified mail,
return receipt requested, or (b) upon delivery by a recognized overnight courier
service which provides confirmation of delivery.
21. AUTHORITY TO SIGN
Each person signing this Agreement on the cover page represents and warrants
that he or she is duly authorized and has legal capacity to execute and deliver
this Agreement. Each party represents and warrants to the other that the
execution and delivery of this Agreement and the performance of such party's
obligations have been duly authorized and that the Agreement is a valid and
legal agreement binding on the party and enforceable according to its terms.
22. GOVERNING LAW
This Agreement shall be deemed to have been made in, and shall be construed
under, the laws of the State of California without regard to its conflicts of
laws provisions. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this Agreement. In any legal
action relating to this Agreement, Partner agrees that the federal or state
courts of California located in Santa Clara County shall have the sole and
exclusive jurisdiction over the matter.
22. SURVIVAL OF OBLIGATIONS
The following obligations will survive termination of the Agreement for any
reason: (a) all obligations relating to nonuse and nondisclosure of Confidential
Information; (b) all obligations relating to indemnification and protection of
proprietary rights; (c) all obligations to make payments of amounts that are or
become due under this Agreement prior to termination; (d) all obligations
regarding maintenance of records for tracking Sublicense Fees owing to Cezanne;
and (e) all provisions regarding the limitations of warranty, remedy and
liability.
23. SEVERABILITY
If any term or provision of this Agreement is determined to be illegal,
unenforceable, or invalid in whole or in part for any reason, that provision
shall be stricken from this Agreement and shall not affect the legality,
enforceability or validity of the remainder of this Agreement.
24. ENTIRE AGREEMENT
The Agreement, including the attached Exhibits, constitutes the entire agreement
between the parties, and supersedes all prior oral or written agreements or
communications with regard to the subject matters described. No additional or
conflicting term in a purchase order or other document shall have any effect on
the terms of this Agreement.
25. COUNTERPARTS AND EXCHANGES BY FAX
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This Agreement may be executed simultaneously in two (2) or more counterparts,
each of which will be considered an original, but all of which together will
constitute one and the same instrument. The exchange of a fully executed
Agreement (in counterparts or otherwise) by fax shall be sufficient to bind the
parties to the terms and conditions of this Agreement.
26. NON-SOLICIT
During the term of this Agreement and for six (6) months after the expiration or
termination of this Agreement, neither party shall directly solicit for
employment any of the other party's employees who were directly involved in this
OEM partnership without that party's prior written consent. The six-months
extension after termination does not apply to the party that receives notice of
termination without cause as per clause 7(c).
27. NON-COMPETITION
During the term of this Agreement, neither party shall form a similar OEM
partnership with a direct competitor of the other party without that party's
prior written consent. The list of competitors of each party is provided herein
as Exhibit B. Either party can update the list from time to time, as required by
changing competitive market conditions. The consent of the other party to any
change to the list will not be unreasonably withheld.
28. SOFTWARE ESCROW
Cezanne agrees that, within 60 (sixty) days following the Effective Date,
Cezanne will include Partner as a named beneficiary to a SAFE Escrow Services
Agreement which will be established between Cezanne and DSI Technology Services
("Escrow Agreement"), or an equivalent agreement with another escrow agent
approved by partner. Partner will be entitled to a release of the Source Code
for the Licensed Software according to the terms of the Escrow Agreement and
this Section 27. Partner is entitled to a release of the Source Code for the
Licensed Software in the following instances: (a) Cezanne, or its successor in
interest enters voluntary or involuntary petition for bankruptcy during the term
of this Agreement, and such proceedings are not dismissed within sixty (60) days
after such proceedings commence, or (b) is otherwise unable to provide support
and maintenance services for the Licensed Software sufficient to meet its
support obligations to Partner or to Customers; or (c) Cezanne, or its successor
in interest, (i) discontinues to develop and manufacture the Licensed Software,
and (ii) no longer provides support for the most recent and immediate prior
release of the Licensed Software, or (d) Cezanne is acquired by a Partner
competitor listed on Exhibit B, Competitor List.
29. PRESS RELEASE
Within 90 days of contract execution, both parties will collaborate to issue a
joint press release announcing the partnership.
30. CUSTOMER LISTS
Partner may refer to Cezanne customers in customer lists. Cezanne may refer to
Partner customers in customer lists. Both parties will collaborate to create
customer selling and press references for mutual benefit.
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EXHIBIT A
BUSINESS TERMS SUMMARY
1.0 SOFTWARE PRODUCTS & DOCUMENTATION
Partner shall receive the following Software to be used in accordance with
this OEM Agreement:
<CAPTION>
Product Units to Partner Partner Ships units to Customer
------- ---------------- -------------------------------
Compensation Planning Master Copy, including Reasonable copies to meet
Back office Compensation development licenses, customer configuration
Analytics and Budgeting with Updates.Delivered requirements.
digitally.
Team Planner Master Copy, including Reasonable copies to meet
Compensation deployment for development licenses, with customer configuration
managers, inclusive of MBO Updates. Delivered requirements.
(performance management) and basic digitally.
functionalities to manage
information about employees and
the organization structure
Software Development Kit As required. Use limited Delivered "as is"; quantity as
to single-customer required by Partner's engineers
modifications or to operate and support product
extensions of Cezanne in production, test and back-up
products. environment.
Sales and Marketing Literature Master Copy, with N/A
Updates. Delivered
digitally.
Technical Documentation Master Copy, with N/A
Updates. Delivered
digitally.
End-User Guides Master Copy, with Reasonable copies to meet
Updates. Delivered customer configuration
digitally. requirements.
Partner Training Materials Master Copy, with N/A
Updates. Delivered
digitally.
Customer Training Materials Master Copy, with Reasonable copies to meet
Updates. Delivered customer configuration
digitally. requirements.
Technical Support Documentation Master Copy, with N/A
Updates. Delivered
digitally.
2.0 SUBLICENSE FEE, TRAINING ROYALTIES, AND DEVELOPMENT LICENSE FEES
2.1 Partner will pay Cezanne a sublicense fee equal to the greater of i)
*** or ii) *** of the net license fee, which Partner receives from
Customer. In the case of indirect sales made through distributors as
provided for in clause 2(h) the basis for the calculation of the
sublicense fee shall be the net license fee that distributor
receives from Customer. For the period beginning on the Effective
Date through December 31, 2002, Partner may offer special
promotional prices to initial reference Customers without regard to
discount constraints. Beginning January 1, 2003, Partner will apply
discounts to the Partner Enhanced Product on a pro-rata basis of
total discounts to list license prices of all modules sold in a
multi-element transaction. Discounts include the imputed value of
free maintenance periods; such implied discount to be deducted from
the sublicense fee for the purpose of calculating the net license to
Partner, and to be treated as a maintenance fee, as per current
revenue recognition rules. Comparative Partner List Price Schedules
will be provided to Cezanne within 60 days of the effective date of
this agreement, with updates provided when changes occur.
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2.2 Partner will pay Cezanne an end-user training royalty equivalent to
*** of Cezanne product class revenues.
2.3 Partner will pay Cezanne an annual Development license fee of ***
per annum. The Development license for the first year will be due at
the effective date of this OEM Agreement, then annually at the
anniversary of the effective date.
3.0 OPTION TO ACQUIRE A SOURCE-CODE LICENSE.
Starting from January 1, 2004, for the duration of this agreement, Partner
has an option to acquire a source-code license at the following
conditions:
- If the option is exercised no later than December, 31st, 2004 a
one-time payment equal to the greater of *** or *** times the
cumulative License Fees reported to Cezanne on the Sublicense Report
(Exhibit E) inclusive of all Sublicense Fees and Maintenance Fees
accrued for the past *** quarters, for a total not to exceed ***.
- If the option is exercised after December, 31st, 2004 a one-time
payment equal to the greater of *** or *** times the cumulative
License Fees reported to Cezanne on the Sublicense Report (Exhibit
E) inclusive of all Sublicense Fees and Maintenance Fees accrued for
the past *** quarters, with no upper limit.
Source-code license will cover all Cezanne Software products and Documentation
specified in this Exhibit under 1.0, except Software Development Kit.
4.0 CEZANNE TECHNICAL SUPPORT
<CAPTION>
CEZANNE SERVICES DESCRIPTION PRICING
Standard Maintenance and Technical a. Fees payable from Partner to Cezanne
Support shall be *** of standard maintenance
(See Exhibit C) & technical support services fee
Partner (or Distributor, in case of
an indirect sale) receives from
Customer.
b. Maintenance Fees will
commence at the same date as
the Customer license. Free
maintenance periods granted
to a Customer at the
beginning of the license will
be treated as discounts on
the license, and the amount
of the implied maintenance
will be treated as
maintenance as far as fees
payable to Cezanne are
concerned.
c. Any portion of the
maintenance fees paid by
Customer to Partner in excess
of *** of the license fee
will be considered premium
maintenance fees, reflecting
value added services provided
by Partner to Customer with
no involvement of Cezanne,
and shall not be subject to
any payment to Cezanne.
5.0 ADDITIONAL CEZANNE SERVICES
Cezanne makes available the following additional services to Partner
for the prices set forth below. In the event Partner elects to purchase
such services, a separate statement of work shall be provided by
Cezanne, and attached hereto or if at a later time, attached as an
addendum.
<CAPTION>
CEZANNE SERVICES DESCRIPTION PRICING
Partner Engineering Support - *** for product enhancement support
for first twelve months of
agreement.
- Thereafter at agreed rates.
- Reasonable travel expenses paid by Partner
Partner Training - *** training at no charge, to be applied for:
- Sales & Marketing
- Technical Support
- Train-the-Trainer and Documentation
- Reasonable travel expenses paid by Partner
Partner end-Customer Training - *** after closing each of first two accounts
- Thereafter at agreed rates.
- Reasonable travel expenses paid by Partner Services
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<CAPTION>
CEZANNE SERVICES DESCRIPTION PRICING
Professional - *** for product enhancement
support for first
twelve months of agreement.
- Thereafter at agreed rates.
- Reasonable travel expenses paid by Partner
- Customizations at quote
6.0 PERMITTED TERRITORIES
Worldwide, with the limitations set forth in clause 15.
7.0 PREREQUISITE THIRD-PARTY SOFTWARE.
The Software provided by Cezanne under this Agreement is based on a
technological architecture that requires the availability of certain
third-party software products to function. Namely, in the current version,
a partial list of the software prerequisites to run the Cezanne Software
products includes Microsoft Windows and Microsoft Explorer on the client,
Microsoft Windows NT with appropriate options on the Web server and on the
application server, Microsoft SQL server or Oracle on the database server,
and WebIntelligence by Business Objects for the on-line reporting
services. Cezanne shall deliver Partner a full and detailed list of all
such systems software prerequisites, with the indication of the supported
versions and the required optional functions. Cezanne shall inform Partner
of any changes to such list that may occur from time to time, reflecting
the evolution of the market. It is the responsibility of Partner to make
sure that Customers have, or are prepared to obtain, all necessary
third-party software components upon the installation of the Cezanne
Software product(s).
Sublicenses of WebIntelligence
Based on an agreement with Business Objects Cezanne can provide to its
Customers licenses of WebIntelligence, the Internet reporting product by
Business Objects, limited to use within the Cezanne application only,***.
An excerpt of Cezanne's agreement with Business Object containing at least
all pricing and configuration information will be provided to Partner for
reference, along with any changes to said agreement that might occur from
time to time. If and when requested by Partner, Cezanne will buy a
WebIntelligence license for a specific Customer for a stated
configuration. For the license Cezanne shall charge Partner***. Same rule
will apply to the annual maintenance fee. Partner will not be obligated to
buy the WebIntelligence license from Cezanne. As alternatives (i) Partner
may negotiate an agreement with B.O. and buy the required licenses
directly, or (ii) Customer may use a WebIntelligence license that he
already bought and that doesn't preclude the use within Cezanne.
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EXHIBIT B
COMPETITORS LIST
(Effective July 31, 2002)
CEZANNE
- ***
- ***
- ***
- ***
- ***
PARTNER (CALLIDUS)
- Incentive Systems,
- Synygy,
- Motiva
- Kadiri
- PeopleSoft, Inc.
- AmDocs
- AIM
- Computer Sciences Corporation (CSC)
Note: Either party may update this list from time-to-time as required by
competitive market conditions. Consent of other party not to be
unreasonably withheld.
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EXHIBIT C
MAINTENANCE AND TECHNICAL SUPPORT SCHEDULE
1.0 CEZANNE MAINTENANCE OBLIGATIONS
1.1 Telephone Support. Cezanne provides telephonic support for the
Software during business hours in Europe and U.S. (from 6 a.m. to 6
p.m. Pacific Time), Monday through Friday (holidays excluded). Asia
business hours will be covered by telephone support provided from
either Europe or U.S. territories for Priority 1 and Priority 2
defects only.
1.2 Maintenance Support. Cezanne will be responsible for providing all
Maintenance Services to Partner, which shall include but not be
limited to, providing direct support and Updates to Partner. Cezanne
will use best commercial efforts to respond, based on the severity
of the problem and in accordance with its Service Level Objectives
set forth below, to Partner's request for assistance in fixing
problems with the Software. In order to provide Maintenance Services
to Partner, Cezanne agrees to have an appropriate number of trained
personnel available to provide, in a competent manner and consistent
with industry practice, maintenance support of the Software to
Partner.
1.3 Updates. So long as Partner is current on payment of Maintenance
Fees, Cezanne will deliver to Partner, upon Partner's request, all
Updates, which Cezanne makes generally available. Cezanne agrees to
support a given revision of the Software for twelve (12) months from
the date the next sequential Major Update supersedes such revision.
(For example, Cezanne will support version 2.1 for the shorter of 12
months from the date version 3.0 (if 3.0 is the next sequential
release) is released by Cezanne, or until version 2.1 is superseded
by 2 sequential releases (2.2 and 2.3 or 2.2 and 3.0, as the case
may be). Maintenance obligations will survive the termination of the
OEM Partner Agreement.
1.4 The following table summarizes Cezanne's Service Level Objectives:
<CAPTION>
SERVICE LEVELS PRIORITY 1 PRIORITY 2 PRIORITY 2 PRIORITY 3 PRIORITY 4
DEPLOYMENT DEVELOPMENT
Acknowledgment 15 Minutes 15 Minutes 2 Hours 4 Hours 4 Hours
Response 30 Minutes 1 Hour 4 Hours 4 Hours 4 Hours
Status Frequency Every Day Every Day Every Day Every 2 Days Every 2 Days
Temporary Fix 1 Day 1 Day 2 Days 3 Days 4 Days if
Applicable
Note: All Priority 1 (P1's) and Priority 2 Deployment Stoppage (P2's) must
be logged via a phone call to the designated support center for the
Service Level Objectives to be obtainable.
1.5 Cezanne will bill Partner for end-user annual maintenance services on
the anniversary of the end-user contract effective date reported by
Partner in the Sublicense Report.
2.0 PARTNER MAINTENANCE OBLIGATIONS
2.1 Partner will be responsible for providing all Maintenance Services to
End Users and its distributors (collectively "End Users") which shall
include but is not limited to, providing direct support and Updates to
End Users. In order to provide Maintenance Services to End Users,
Partner agrees to provide:
2.2 Trained Staff. Partner will provide an appropriate number of trained
personnel available to provide, in a competent manner and consistent
with industry practice, first line support of the Software to End
Users. Partner shall at its own expense, use whatever resources or
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steps it deems necessary to ensure its staff is appropriately trained
to perform its maintenance obligations.
2.3 Case Tracking. Partner will log and archive all communication between
the Partner and the End User. For those cases requiring escalation to
second line support, Partner will provide a summary of that
communication to date, as well as facts on problem determination and a
reproducible test case, whenever possible. Second Line Support cases
between Partner and Cezanne will be logged and archived at Cezanne.
2.4 Problem Determination. Problem determination includes identification of
the root cause of a problem. Whenever possible, a reproducible test
case that manifests the problem should be made available when reporting
a problem to Cezanne. If a reproducible test case is not available, a
detailed description of the End User's environment and problem will
suffice.
2.5 Reproducible Test Cases. Partner will supply a minimal, reproducible
test case for each problem submitted to Cezanne, whenever possible.
Such test cases manifest the reported problem in an environment that
can be duplicated by Cezanne. Cases that cannot be reproduced may
require dial-up access to the End User.
3.0 RENEWAL OF MAINTENANCE AND SUPPORT SERVICES. Maintenance and Support
Services renewal will occur automatically, unless earlier terminated by
either party with at least sixty (60) days written notice prior to the
expiration of the current term.
4.0 CUSTOMER SUPPORT DEFINITIONS
PRIORITY 1: DOWN PRODUCTION SYSTEM
The Cezanne system is failing in a production environment resulting in a
complete loss of productive capability. This type of problem severely
impacts the customer's business objectives and requires rapid response and
resolution. Examples of a down production environment are a non-recoverable
server crash or the complete failure of one of the Cezanne system
components.
PRIORITY 2: DEPLOYMENT STOPPAGE
The Cezanne system is failing in a pre-deployment environment, which will
result in a significant delay in the deployment of the customer's system
into production. This type of problem severely impacts the schedule of the
roll-out of the customer's production system. Typically, the problem will
have to occur in a period where all implementations have been completed and
the customer is in the process of testing the production environment or the
staging environment just prior to going into production.
In addition, if the customer has any problem during the first installation
of a Cezanne product, the problem will fall into this priority. Installation
problems, typically, encompass situations where install scripts or programs
failed to run or the product failed to start after the installation process
completed.
PRIORITY 2: DEVELOPMENT STOPPAGE
One of the major functions or features of the Cezanne system is failing.
This type of problem also requires rapid response and resolution. Examples
of a major feature failure are the failure of reports to run or the return
of incorrect results by a Cezanne API function.
PRIORITY 3: FEATURE IS NOT WORKING AS DOCUMENTED
A feature in the Cezanne software is not behaving as documented by Cezanne.
Productive work can continue but the Cezanne software is not performing to
specification and a remedy is required.
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PRIORITY 4: GENERAL QUESTIONS
These problems are of a general nature and pertain to how the Cezanne
software should operate in both a production and development environment.
This category also includes feature requests for subsequent releases.
ACKNOWLEDGMENT
Acknowledgment is defined as contact by either email or phone by a Cezanne
Customer Support professional to advise of the receipt of a customer support
issue.
INITIAL RESPONSE
Initial response is defined as contact by either email or phone by a Cezanne
Customer Support professional to gather additional information about a
customer support issue and to determine the steps to reproduce the problem.
STATUS FREQUENCY
This is the frequency with which Cezanne Customer Support will update our
customers on their open support issues. This frequency may be extended by
mutual agreement between the customer and Cezanne Customer Support.
TEMPORARY FIX
This is a relief from the experienced behavior. It may take the form of a
workaround, a patch or an alternate design approach.
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EXHIBIT D
MINIMUM CUSTOMER LICENSE TERMS
1. The Customer is only granted a nonexclusive, nontransferable, and
non-sublicensable license to use the Cezanne Software for its internal
business purposes; and shall not provide, lease, lend, use for timesharing,
application service provider or service bureau purposes, or otherwise use
or allow others to use the Cezanne Software for the benefit of third
parties.
2. The Customer may not: (a) modify, translate, decompile, reverse engineer,
disassemble, or otherwise determine or attempt to determine source code
from the Cezanne Software; (b) create any derivative works based upon the
Cezanne Software or Documentation; (c) allow any third party to conduct any
benchmarking of the Cezanne Software, without prior written permission of
Cezanne; or (d) disclose the results of any benchmarking of the Cezanne
Software, without the prior written permission of Cezanne.
3. The Customer must agree to confidentiality obligations, including the
disclosure of Cezanne Software or Documentation to any third party.
4. Customer must agree that Partner and its suppliers retain all right, title
and interest in and to the Partner Enhanced Product and Documentation and
all intellectual property rights thereto.
5. Customer must agree to comply with all relevant export laws and
regulations.
6. If the Customer is an agency or entity of the U.S. Government, inclusion of
appropriate notices required by the U.S. Government that precludes the
acquisition of unlimited rights in the Partner Enhanced Product and
Documentation.
7. Partner shall not obligate its suppliers to Partner's warranties or
indemnities.
8. No assignment of the rights and obligations under the Customer License
Agreement shall be permitted, except in the case of a merger or
consolidation to which the Customer is a party or to any entity which
acquires all or substantially all of its stock or assets with written
notice to Partner.
9. The liability of Partner and its suppliers must be limited to exclude any
special, punitive, indirect, incidental or consequential damages, and must
be capped for any direct damages to the amount actually paid by Customer
for the affected software.
10. Upon termination of the Customer License Agreement for any reason, the
software licenses granted thereunder must also terminate, and Customer's
use of such software must cease.
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EXHIBIT E
FORM OF SUBLICENSE REPORT
Callidus Software Inc.
QUARTERLY SUBLICENSE REPORT
to Cezanne Software , Inc.
For the Quarter ended March 31, 2002
Reference: OEM Partner Agreement
<CAPTION>
Current Period Callidus Cezanne Cezanne Callidus Cezanne Cezanne Total
Product Billable License License Billable Maintenance Maintenance Fees Due
Callidus Licensee Address Ship Date License Rate Fee Maintenance Rate Fee Cezanne
----------------- ------- --------- -------- ------- ------- ----------- ----------- ----------- --------
1 *** ***
2 *** ***
3 *** ***
4 *** ***
5 *** ***
6 *** ***
7 *** ***
8 *** ***
9 *** ***
10 *** ***
-------- ------- ------- ----------- ----------- ----------- --------
$0 $0 $0 $0 $0
======== ======= ======= =========== =========== =========== ========
<CAPTION>
Next Period Forecast Callidus Cezanne Cezanne Callidus Cezanne Cezanne Total
Product Billable License License Billable Maintenance Maintenance Fees Due
Customer Industry (if known) Ship Date License Rate Fee Maintenance Rate Fee Cezanne
--------------------------- --------- -------- ------- ------- ----------- ----------- ----------- --------
1 *** ***
2 *** ***
3 *** ***
4 *** ***
5 *** ***
6 *** ***
7 *** ***
8 *** ***
9 *** ***
10 *** ***
-------- ------- ------- ----------- ----------- ----------- --------
$0 $0 $0 $0 $0
======== ======= ======= =========== =========== =========== ========
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