OEM Partner Agreement [Amendment No. 1] - Callidus Software Inc. and Cezanne Software Inc.
Amendment to OEM Partner Agreement
This Amendment to the OEM Partner Agreement ("Amendment") is by and between
CALLIDUS SOFTWARE, INC., a Delaware corporation ("Callidus" or "Partner"), and
CEZANNE SOFTWARE, INC. ("Cezanne"), a Delaware corporation, and amends the OEM
Partner Agreement, dated July 31, 2002, by and between the parties
("Agreement").
WHEREAS, Cezanne will provide software programs to Partner for enhancement and
subsequent sublicensing and distribution by Partner, the Agreement is amended as
follows:
1. The following clauses are added to Section 2 (LICENSE, RESTRICTIONS, AND
DISTRIBUTION) of the Agreement:
(N) INTERNAL USE LICENSE. For the duration of this agreement Partner will
have the right to use the Software products listed on Exhibit A for its
own internal management purposes, subject to the payment of the Internal
Use License Fee set forth in Exhibit A, paragraph 2.4. The Internal Use
License will expire if Partner chooses to discontinue payment of the
Internal Use License Fee. If this Agreement is terminated, the provision
set forth in section 7(g) will apply.
(O) EXTENSION OF THE INTERNAL USE LICENSE TO ADDITIONAL PRODUCTS. The
Internal Use License is extended to include the use of additional software
products owned by Cezanne, which are not listed on Exhibit A, namely
People Management, Competency Management and Competency Evaluation. Said
additional Software products are not part of the Software licensed with
this OEM Partner Agreement. Their inclusion herein for the purpose of the
Internal Use License, and the installation and use of such functionalities
at Callidus for Internal Use, cannot in any way be construed as the
inclusion of such additional Software products or functionalities to the
products listed on Exhibit A as the object of this OEM Partner Agreement.
2. The following clause is added to Section 7 (TERM AND TERMINATION) of the
Agreement:
(G) INTERNAL USE LICENSE AFTER TERMINATION. Upon termination of this
Agreement, for a period of thirty days from termination, Partner will have
the option to keep the Internal Use License in effect by paying Cezanne
the following one-time fee:
- *** for the Software Products listed on Exhibit A (Compensation
Planning and Team Planner), for usage limited to *** employees, plus
*** for each *** employee extension up to *** employees, plus *** for
each *** employee extension over *** employees, and
- *** for the Additional Software Products specified in section 2(o)
(People Management, Competency Management and Competency Evaluation),
for usage limited to *** employees, plus *** for each *** employee
extension up to *** employees, plus *** for each *** employee
extension over *** employees.
A software usage license agreement will be signed by the parties for this
purpose. Upon payment of the one-time fee specified above the Internal Use
License will become perpetual, and the fee set forth in Exhibit A,
paragraph 2.4 will continue uninterrupted, but it will change its nature
and become an annual maintenance fee.
3. The following section is added to Section 2.0 (Sublicense Fee, Training
Royalties, and Development License Fees) of Exhibit A of the Agreement:
2.4 Partner will pay Cezanne an Internal Use License Fee of *** per
annum. The Internal Use license for the first year will be effective
as from October 1st, 2002, then annually at the anniversary of such
date. The above-mentioned Internal Use license will be limited to
the use of the Software for internal purposes of Partner for no more
than *** employees. In case Partner shall exceed the number of ***
employees, the Internal Use License can be upgraded by increasing
the Fee as follows: *** for each ***-employee extension up to ***
employees, and *** for each ***-employee extension over ***
employees. The above-mentioned Internal Use License includes
maintenance and technical support not less than that provided under
the OEM Agreement.
4. The following language is added to Section 7.0 (Prerequisite third-party
software) of Exhibit A of the Agreement:
Partner will be responsible for obtaining the licenses for all
Prerequisite third-party software required to run the Software provided by
Cezanne under the Development License, the Demonstration Licenses and the
Internal Use license. If such licenses, in the case of WebIntelligence,
are obtained by Cezanne for use by Partner, then Partner will pay Cezanne
a fee equivalent to the fee paid by Cezanne to Business Objects. Cezanne
agrees to provide Partner upon request with appropriate documentation
showing the fee paid by Cezanne to such third party.
5. Section 28 (SOFTWARE ESCROW) of the Agreement is replaced in its entirety
with the following:
*** Confidential treatment has been requested for the redacted portions. The
Confidential redacted portions have been filed separately with the Securities
and Exchange Commission.
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28. SOURCE CODE
(A) DELIVERY OF THE SOURCE CODE. Upon availability of every major release
of the Licensed Software, and in any case at least once every year,
Cezanne will provide two identical copies of the source code in two sealed
packages directly to Partner. One package will be kept by Partner in a
safe location for its own potential use pursuant to the conditions set
forth below in this section, the other package will be used by partner for
deposit in escrow together with its own proprietary software to fulfill
its escrow obligations with Customers.
(B) ACCESS OF PARTNER TO THE SOURCE CODE. Partner will not open the sealed
package without Cezanne's written permission unless one of the instances
described in this clause [(a) to (d) below] becomes true, and only after
giving Cezanne written notice of the intention to open the package and
leaving Cezanne 15 days to respond: (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.
(C) ACCESS OF CUSTOMERS TO THE SOURCE CODE. Partner guarantees that: (a)
it will not deliver the source code directly to a Customer or no any third
party without Cezanne's written permission, (b) the agreement with
Partner's escrow agent in favor of Customers will limit the instances when
the source code is released to Customers to conditions substantially
equivalent to those described above in clause 28(b), (c) that the release
of the source code from the escrow agent to a Customer cannot be
interpreted as a transfer of any intellectual property rights and (d) the
use of the source code by any Customer in case of release from the escrow
agent will be contractually limited (i) to its use directly by the
Customer for the purpose of supporting Customer's own installation and
(ii) to the period of time when the conditions that prompted the release
of the source code remain true.
(D) RETURN OF PREVIOUS SOURCE CODE PACKAGES. Partner can retain the sealed
packages containing the source code of the most current and the immediate
prior release; all packages containing earlier releases will be returned
to Cezanne with their seals still intact.
(E) PRESUMPTION OF DAMAGES. Partner acknowledges that any unauthorized use
of the source code may cause material damages to Cezanne, and accepts
responsibility to indemnify Cezanne for any damages in the event of
unauthorized use. In the case of inadvertent opening of the sealed package
there will be no automatic presumption of damage provided however that
Partner informs Cezanne immediately and returns the package that was
inadvertently opened confirming in writing that the contents was not used.
Capitalized terms defined in the Agreement shall have the same meaning in this
Amendment. Except as explicitly modified, all terms, conditions and provisions
of the Agreement shall continue in full force and effect. If there is any
inconsistency or conflict between the Agreement and this Amendment, the terms,
conditions and provisions of this Amendment shall govern and control. This
Amendment and the Agreement constitute the entire and exclusive agreement
between the parties with respect to this subject matter. All previous
discussions and agreements with respect to this subject matter are superseded by
the Agreement and this Amendment.
Acknowledged and agreed as of the Amendment Effective Date: DECEMBER 18, 2002.
CALLIDUS SOFTWARE, INC.
/s/ Brian E. Cabrera
By: Brian E. Cabrera
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Title: General Counsel & VP of Operations
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Address: 160 W. Santa Clara Street
Suite 1500
San Jose, CA 95113
CEZANNE SOFTWARE, INC.
/s/ Alberto Gabbai
By: Alberto Gabbai
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Title: CEO
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Address: 75 Second Avenue
Suite 710
Needham, MA 02494
*** Confidential treatment has been requested for the redacted portions. The
Confidential redacted portions have been filed separately with the Securities
and Exchange Commission.