Commercial Application Partner Agreement - Sybase Inc. and Instinctive Technology Inc.
COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Agreement is made effective 31 July 1997 between Sybase, Inc. ("Sybase")
with offices at 6475 Christie Ave, Emeryville, California 94608, and Instinctive
Technology, Inc. ("Partner") with offices at 725 Concord Avenue, Cambridge,
Massachusetts 02138.
1. LICENSE GRANT. Subject to the terms and conditions below, Sybase grants to
Partner a nonexclusive and nontransferable license to market and distribute
copies of unmodified object code versions of those Sybase and/or Powersoft
software products identified in the attached initiated Schedules along with
accompanying documentation ("Programs") to Partner's customers ("End-Users") who
will use the Programs only for the own internal business purposes in the
applicable Territory described in each Schedule A, provided that the Programs
are distributed for use with computer application programs developed by Partner
for commercial distribution to more than one third party and containing
significant added functionality over the Programs ("Application Software").
Partner shall license to each End-User the same number of copies of the Programs
and the same number of Seats/Named Users for such Programs as Partner licenses
to such End-User for its Application Software. In addition to being able to
distribute "full use" copes of the Programs, "full use" Seats and "full use"
Named Users,,,Partner may also distribute, with respect to certain Programs
identified in Sybase's then-current price list, Application Deployment Copies,
Application Deployment Seats and Application Deployment Named Users (which are
restricted licenses defined in the Sybase license agreement accompanying each
copy of the Program ("Sybase Shrinkwrap")). Partner may also sell to End-Users
certain Sybase services as described in the Schedule(s). Notwithstanding the
above, if the Territory includes any of the Prohibited Countries set forth in
Sybase's then current "Prohibited Country List" (a current copy of which has
been provided to Partner), Partner may not market or distribute Programs for use
in such Prohibited Countries. Partner shall not use or allow its End-Users to
use the Programs for timesharing, rental or service bureau purposes or on behalf
of any third party. In connection with the distribution rights granted above,
Partner may appoint distributors to distribute the Programs to End-Users within
the Territory. The appointment of distributors shall be by contracts which
require that the distributor market the Programs only in accordance with the
terms of this Agreement and on a basis which protects the proprietary interests
of Sybase in and to the Programs to the same extent that Partner's proprietary
interests in its own products are protected (but in any event no less than a
reasonable extent). Partner tray order under this Agreement (a) copies of the
Programs for its own internal production purposes and/or developing and
supporting the Application Software ("Internal Use Copies", (b) copies of the
Programs which may only be used for developing and supporting the Application
Software ("Development Copies"), (c) copies of the Programs which may be
distributed to End-Users for evaluation purposes and for up to the number of
days designated in the applicable Schedule A, after which they must be returned
to Partner ("Evaluation Copies', and (d) up to that number of copies of the
Programs shown an Schedule A for purposes of Partner providing demonstrations
and gaining for the Application Software ("Demonstration Copies"). Partner is
authorized to incorporate into the documentation for the Application Software
portions of the documentation for the Program to the extent such portions are
necessary to document usage of the Program in conjunction with the Application
Software.
2. FEES AND PAYMENT TERMS. For the first year of this Agreement, Partner shall
be responsible for paying to Sybase a non-refundable program fee shown in
Schedule A ("Initial Fee"). The Initial Fee is due upon execution of this
Agreement by Partner. For each additional year, a non-refundable annual program
renewal fee ("Annual Renewal Fee") as set forth in such Schedule is due and
payable upon each anniversary of the date of this Agreement. Fees as set forth
in the attached Schedules) shall be due to Sybase for each copy of the Programs
and each service ordered by Partner; such fees shall be based on Sybase's
then-current price list for the country in which the Programs are to he used or
the services are to be delivered ("Price List"). The license fee for Development
Copies is the same as the fee for Internal Use Copies unless Sybase designates
otherwise in its Price List, The license fee for Demonstration Copies, if any,
is set forth in the Schedule(s).
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Notwithstanding the above, there is no charge for authorized Evaluation Copies
distributed to End-Users. License fees for Internal Use Copies, Development
Copies, Demonstration Copies, and copies of the Programs which Sybase ships to
Partner for distribution to End-Users shall be due and payable to Sybase with
Partner's order for the Programs or, upon Sybase credit approval of Partner, 30
days after the date of Sybase's invoice for the Programs. Any past-due invoice
may subject Partner to credit hold at the sole discretion of Sybase. .All fees
under this Agreement are stated in United States dollars.
3. OWNERSHIP. Programs are owned by Sybase or its licensers and are protected by
copyright law, trade secret laws and international conventions. All rights in
and to patents, copyrights, trademarks and trade secrets in the Programs are and
shall remain with Sybase and its licensers. No title to or ownership of the
Programs is transferred to Partner or End-User. Partner shall not translate,
localize or modify any portion of the Programs without the prior written consent
of Sybase.
4. ORDERING AND DELIVERY. In addition to the terms contained in the SQL Anywhere
Master Disk Addendum dated 31 July 1997 between Partner and Sybase, Internal Use
Copies, Development Copies, Demonstration Copies, Evaluation Copies and copies
of the Programs for distribution directly or indirectly to End-Users shall be
ordered from Sybase and delivered by Sybase to Partner (or in the case of
Evaluation Copies and copies for distribution to End-Users, Sybase shall deliver
the copies directly to the End-Users if so instructed by Partner). Partner will
use the "Exhibit A" form adopted by Sybase from time to time (or a Purchase
Order containing the same information) to order Programs from Sybase. All
shipments are FOB origin, and Partner is responsible for all shipping charges.
Except for taxes or. Sybase's income, Partner shall be responsible for any
sales, use, excise or any other form of taxes resulting from this Agreement.
5. LICENSE ACCOMPANYING PROGRAMS. If Partner uses the Programs, Farmer agrees to
be bound by the terms and conditions of the Sybase Shrinkwrap. Notwithstanding
the above, Development Copies and Demonstration Copies shall only be used for
the purposes outlined in Section 1 above and shall be returned to Sybase upon
expiration or termination of this Agreement. Partner shall ensure that the
End-User's use of the Programs is, either subject to the terms and conditions of
(a) the Sybase Shrinkwrap or (b) an executed license agreement or shrinkwrap
agreement between Partner and End-User which is substantially similar to, and no
less restrictive -in protecting Sybase's interests than, the Sybase Shrinkwrap.
If Evaluation Copies are being licensed, the Sybase Shrinkwrap or license
agreement between Partner and End-User (as applicable) shall be modified by a
written commitment from End-User to use the Programs for a period not to exceed
the number of days designated in the applicable schedule to this Agreement. If a
conflict arises between this Agreement and any such license agreement, the terms
of this Agreement shall prevail. Partner shall undertake reasonable efforts to
enforce the terms of any license agreement between Partner and an End-User as it
relates to the Programs.
6. REPORTS. Partner shall keep or cause to be kept full and accurate accounts
and records of all transactions made by it and by its authorized distributors
under this Agreement (including Evaluation Copies) in form such that all amounts
owing hereunder to Sybase may be readily and accurately determined. Partner
shall undertake to assure that its distributors are (a) accurately reporting to
Partner all sales to End-Users and (b) otherwise complying with this Agreement.
Partner shall allow Sybase to examine its records to determine compliance with
this Agreement, Any examination shall be at the expense of Sybase, shall occur
during regular business hours at Partner's offices and shall not interfere
unreasonably with Partner's regular activities: Sybase shall give Partner 60
days or more prior written notice of the date of each such examination and the
name of a mutually agreed upon accountant who will be conducting the
examination. All information obtained from conducting the examinations shall be
maintained as Confidential Information. Partner agrees to pay Sybase any amounts
owing as a result of Partner's non-compliance with the payment provisions of
this Agreement within 30 days of the date of the examination report which
details such non-compliance. In the event such amounts owed by Partner to Sybase
exceeds 5% of total royalties due, Partner shall pay the costs of such
examination.
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7. SUPPORT & MAINTENANCE. Partner shall be solely responsible for providing
End-User technical support and service of warranty claims for Partner's
Application Software, including the Programs, provided that Partner may also
sell Sybase technical support services for the Programs only, on the terms
described in the attached Schedules. Partner may distribute to End-Users to whom
it has licensed Application Deployment Copies of a Program updates to such
Program which are made generally available by Sybase so long as Partner has paid
Sybase all applicable Application Deployment Maintenance Fees.
8. INDEPENDENT CONTRACTORS. Partner and Sybase are independent contractors and
are not agents or representatives of each other. Partner does not have the right
to bind Sybase and shall not misstate or misrepresent its relationship to
Sybase.
9. ADVERTISING; TRADEMARKS. Sybase may identify Partner as a Commercial
Application Partner in Sybase advertising and marketing materials. Partner shall
not make any representations concerning the Programs which are inconsistent with
Sybase's marketing materials and advertising. Partner may utilize applicable
Sybase trademarks and logos only in accordance with Sybase's then-current
published guidelines, and trademarks shall remain the exclusive property of
Sybase or its licensors. Partner shall suitably feature the Programs and related
trademarks and Sybase's ownership of the Program in any advertising, marketing
literature, product documentation and packaging of the Application Software.
Partner shall give appropriate recognition in the Application Software of
Sybase's proprietary rights in the Programs in the same manner, places and times
and no less conspicuously than the recognition of the proprietary rights of
others including Partner in the Application Software.
10. TERM AND RIGHTS UPON TERMINATION. This Agreement will become effective as of
the date first shown above and shall continue in force for a period of 3 years,
subject to (a) Partner's payment of all fees owing hereunder, or (b) termination
under Section 11 below. Thereafter, this Agreement shall automatically renew for
additional one-year terms subject to payment of Sybase's then-current Annual
Renewal Fee and provided that Partner is not then in default of this Agreement,
unless written notice of termination is given by either party at least 30 days
,prior to the expiration of the term then in effect. No expiration or
termination of this Agreement shall impair or affect (i) Internal Use Copies,
which shall continue so long as Partner is not in breach of the Sybase
Shrinkwrap or (ii) copies of Programs distributed by Partner to End-Users in
accordance with this Agreement prior to the effective date of the expiration or
termination of this Agreement. All Demonstration Copies shall be returned to
Sybase or destroyed. Termination or expiration shall not release either party
from its liability to pay any fees accruing prior to the date of the termination
or expiration. Sections 3, 5, 10, 11, 12, 13, 14 and 18 of this Agreement shall
survive any expiration or termination of this Agreement.
11. DEFAULT. Either party may immediately terminate this Agreement ox any
license granted hereunder by written notice to the other if such other party
breaches any term or condition of this Agreement, including but not limited to
failure to pay when due any fee hereunder, and does not remedy such breach
within 30 days of written notice thereof from the non-breaching party. Each
party will reimburse the other party for all reasonable costs incurred by the
other party (including attorneys' fees) in collecting past due amounts
hereunder. Any breach which by its nature cannot be remedied shall entitle the
non-breaching party to terminate this Agreement immediately upon written notice
to the other party. This remedy shall not be an exclusive remedy and shall be in
addition to any other remedies which the non-breaching party may have under this
Agreement or otherwise.
12. CONFIDENTIAL INFORMATION. Each party will not disclose or use any business
and/or technical information of the other designated orally or in writing as
"Confidential" or "Proprietary" (together, "Confidential Information") without
the prior written consent of the other party. Such restrictions do not extend to
any item of information which (a) is now or later becomes available in the
public domain without the fault of
<PAGE> 4
the receiving party; (b) is disclosed or made available to the receiving party
by a third party without restrictions and without breach of any relationship of
confidentiality; (c) is independently developed by the receiving party without
access to the disclosing party's Confidential Information, (d) is known to the
recipient at the time of disclosure, or (e) is produced in compliance with
applicable law or court order, provided that the disclosing party is given
reasonable notice of such law or order and an opportunity to attempt to preclude
or limit such production. Upon termination or expiration of this Agreement, each
party shall immediately return all copies of Confidential Information received
from the other party. Partner shall not release the results of any benchmark of
the Programs to any third party without the prior written approval of Sybase for
each such release.
13. DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY. Except as expressly
provided in the Sybase Shrinkwrap, NO EXPRESS OR IMPLIED WARRANTY OR CONDITION
IS MADE WITH RESPECT TO THE PROGRAMS OR SERVICES SUPPLIED BY SYBASE OR ITS
SUBSIDIARIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The aggregate liability to
Sybase and its subsidiaries, if any, for any losses or damages arising out of or
in connection with this Agreement, whether the claim is in contract, tort or
otherwise, shall not exceed the amount paid by Partner to Sybase under this
Agreement for the affected Programs or services. UNDER NO CIRCUMSTANCES SHALL
SYBASE, ITS SUBSIDIARIES OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT,
EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED
TO, LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA OR LOSS RESULTING
FROM BUSINESS DISRUPTION, EVEN IF SYBASE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
14. INDEMNIFICATION. Partner indemnifies and holds harmless Sybase, its
affiliates, directors, employees and agents from all third party claims,
including court costs and reasonable fees of attorneys and expert witnesses,
arising in connection with (a) a breach by Partner of its agreement with an
End-User or distributor (unless such breach was caused by Sybase's breach of
this Agreement or the Sybase Shrinkwrap), or (b) use of the Application Software
if liability is not caused by the Programs as provided by Sybase. Sybase
indemnifies and holds harmless Partner, its affiliates, directors, employees and
agents from all third party claims, including court costs and reasonable fees of
attorneys and expert witnesses, arising in connection with (i) a breach by
Sybase of the Sybase Shrinkwrap or (ii) use of the Programs as provided by
Sybase if liability is not caused by the Application Software.
15. EXPORT RESTRICTION. Partner shall not transfer, directly or indirectly, any
restricted Programs or technical data received from Sybase or its subsidiaries,
or the direct product of such data, to any destination subject to export
restrictions under U.S. law, unless prior written authorization is obtained from
the appropriate U.S. agency.
16. ASSIGNMENT. This Agreement may not be assigned (by operation of law or
otherwise) or otherwise transferred in whole or in part by Partner unless
Partner has received prior written permission from Sybase, such permission not
to be unreasonably denied by Sybase. To the extent Partner is permitted to
assign this Agreement, all provisions of this Agreement shall be binding upon
Partner's successors or assigns.
17. NOTICES. All notices under this Agreement shall be in writing and either
delivered personally, sent by first class mail, express carrier or by confirmed
facsimile transmission to the address of the party set forth above (and if to
Sybase, to the attention of the General Counsel). All notices shall be deemed
given on the business day actually received.
18. OTHER. This Agreement, the initialed Schedules, and any documents explicitly
referred to therein, constitute the entire agreement between the parties,
supersede any and all previous agreements authorizing
<PAGE> 5
Partner to distribute the Programs to third parties and no representation,
condition, understanding or agreement of any kind, oral or written, shall be
binding upon the parties unless incorporated herein. This Agreement may not be
modified or amended, nor will the rights of either party be deemed waived,
except by an agreement in writing signed by authorized representatives of
Partner and Sybase. Purchase orders shall be binding as to tire products and
services ordered, and the site for delivery of Programs or performance of
services as set forth on the face side of or a special attachment to the
purchase order. Other terms and preprinted terms on or attached to any purchase
order shall be void. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without regard to its
conflict of laws rules or the United Nations Convention on the International
Sale of Goods. If any provision of this Agreement is held to be unenforceable,
the parties shall substitute for the affected provision art enforceable
provision which approximates the intent and economic effect of the provision.
The parties have requested that this Agreement and all documents contemplated
hereby be drawn up in English.
Accepted and agreed on behalf of:
Instinctive Technology, Inc. ("Partner") Sybase, Inc. ("Sybase")
/s/ Jeffrey R. Beir /s/ Glen Germanowski
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(Authorized Signature) (Authorized Signature)
/s/ Jeffrey R. Beir /s/ Glen Germanowski
------------------------------------- ---------------------------------
(Printed Name) (Printed Name)
10/23/97 President & CEO Senior Corporate Counsel
------------------------------------- ---------------------------------
(Title) (Title)
<PAGE> 6
SCHEDULE A - SILVER LEVEL
TO THE COMMERCIAL APPLICATION PARTNER AGREEMENT
DEVELOPMENT TOOL PARTNER FEES AND GUIDELINES
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Territory United States and Canada; however, Partner may sell
application-specific deployment seats worldwide.
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Initial Fee $ * ; includes the right-to-purchase one Demonstration Copy
Annual Renewal Fee at $ * . $ * . Only one Initial and Annual Fee required per
Agreement.
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Evaluation Copies Entitled to 90-day Evaluation Copies.
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Discount for Sybase will check block and initial if authorized to sell
Software the following products (as designated in Sybase's
Programs then-current Partner Price List):
[x] DEVELOPMENT TOOLS
[x] DESIGN TOOLS
[x] WORKPLACE DATABASES
Discounts for the above software Programs are specified in
Sybase's then current Partner Price List.
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Discount for sale * % discount off Sybase's then-current End-User Price List
of End-User on technical support offerings that Sybase makes generally
Technical Support available to its customers.
or Upgrade
Subscriptions * % discount off Sybase's then-current End-User Price List
on upgrade subscriptions.
Partner shall not sell renewals of either upgrade
subscriptions or technical support.
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Commission When a Partner refers Sybase to a potential sale and has
Incentives significantly influenced the customer decision to purchase
the software Programs, Partner may be eligible to receive a
commission. All commissions shall be in accordance with
Sybase's then-current policy which Sybase may change at its
soft; discretion from time to time.
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Discount for * % discount off Sybase's then-current End-User Price List
Partner Technical on any commercially available end-user technical support
Support offering.
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Discount for * % discount off Sybase's then-current End-User Price List
Partner Training on any Sybase standard training rates for Partner employees
or agents trained at Sybase or Powersoft public training
centers.
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ACCEPTED and AGREED: /s/ JRB 7/31/97 /s/ GG
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(Partner Initials) (Date) (Sybase Initials) (Date)
Partner and End-User Price Lists and all discounts are subject to change upon 30
days prior written notice.
<PAGE> 7
SQL ANYWHERE (TM) MASTER DISK ADDENDUM (PAGE 1 OF 2)
TO THE COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Master Disk Addendum ("Addendum") is made 31 July 1997 between Sybase, Inc.
("Sybase") and Instinctive Technology, Inc. ("Partner"). This Addendum
supplements and amends the terms of the Commercial Application Partner Agreement
("Agreement") between the parties hereto. In the event of a conflict between the
Agreement and this Addendum, the terms and conditions of this Addendum shall
prevail. This Addendum shall expire or terminate with the Agreement. Capitalized
terms not otherwise defined in this Addendum shall have the meanings set forth
in the Agreement.
SQL ANYWHERE MASTER DISK PROGRAM AND GUIDELINES
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LICENSE FEE Upon Partner's signing of this Addendum, Partner shall pay
PAYMENT Sybase the payment designated below ("Payment") as follows:
$ * upon Partner's signing of this Addendum, $ * on or
before 30 August 1997 and * on or before 30 September 1997.
The Payment is non-refundable and irrevocable, and may
only be used as specified in this Addendum.
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REPORTING, Partner shall, within 30 days after each calendar-quarter
LICENSE FEE end, provide Sybase (i) a written report showing the
PAYMENTS cumulative number of SSAs and SSA Updates (including
Evaluation Copies and Demonstration Copies) distributed by
Partner during such preceding calendar quarter along with
the name of the Application Software with which such SSAs
or SSA Updates were distributed and (ii) payment (once the
Prepay Amount is depleted) for any SSA or SSA Update fees
due.
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ACCESS, AD (1) An application deployment seat ("AD Seat")" is a
SEATS, SSA license for a copy of SSA which can only be used for the
AND NET purpose of (1) an End-User running non-custom Application
REVENUE Software (excluding any third party application programs
marketed by Partner) and (2) extracting data on a read only
basis from the Application Software for use with other
applications; such extraction may either be through tools
within the Application Software or through third party
tools. As used in the prior sentence, the phrase "running
non-custom Application Software" means that the End User
cannot use SSA to create or alter columns, tables, schemas
or databases unless (a) such columns, tables, schemas and
databases are created or altered by and within the context
of the Application Software (i.e., the Application Software
must generate the commands without the End-User itself
using the SSA's command verbs) and only include data first
captured in the specific Application Software in which the
new columns or tables are created or altered (i.e., not
transferred into such Application Software from other
Application Software or applications), and (b) the commands
to insert, delete or modify data in the new or altered
columns, tables, schemas or databases must be included
within existing "begin transaction" and "commit
transaction" statements in the original version of the
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<PAGE> 8
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Application Software. Moreover, an AD Seat may not be used
to run copies of SSA which have been modified through a
full-use license to include modifications not permitted
above. Notwithstanding the above, the End User may use
standard database administration command verbs used for
backup, recovery, space/index management and consistency
checking in the course of systems administration. (2) For
purposes of this Addendum only, the term Application
Software means Partner's software product known as "eRoom".
(3) "SSA" shall mean the authenticated edition of the
Sybase SQL Anywhere standalone (not client/server) database
Program. (4) "Authentication Routines" shall mean routines
supplied to Partner by Sybase which when implemented by
Partner as directed by Sybase shall limit full access to
SSA to the Application Software and which permit read-only
access to all other software. Partner shall fully comply
with the Authentication Routines as delivered to, and
directed by, Sybase. (5) "Net Revenue" means tire net
revenue to Partner that is recognized by Partner in
accordance with Partner's standard accounting principles
that results from any sale or distribution of Application
Software that is used with, or includes, the SSA.
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THIS ADDENDUM IS CONTINUED ON THE NEXT PAGE
<PAGE> 9
SQL ANYWHERE (TM) MASTER DISK ADDENDUM (PASTE 2 OF 2)
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RESTRICTIONS/ (1) For purposes of this Addendum, Partner's Application
CONDITIONS Software shall not be an application software development
tool without Sybase's prior express written permission.
(2) Partner shall distribute SSA only bundled with the
Application Software. Partner represents and warrants that
the Application Software is designed to ensure that no more
than ten (10) connections at any one time are made to the
SSA that is bundled with the Application Software.
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MASTER DISK Partner and its distributors are authorized to distribute
AD Seats (as defined above) and Partner, but not its
distributors, is authorized to make Evaluation Copies and
Demonstration Copies of the Programs and copies of the
Programs to be licensed as AD Seats from Master DISKS
("Master Disks") that Sybase will make available to
Partner. Partner may make as many Evaluation Copies and
Demonstration Copies as it reasonably requires. Partner
shall ensure that all Sybase copyright and other
proprietary notices which are included in the Master Disks
are included on any copies made from the Master Disks.
Partner acknowledges that Master Disks may contain devices
which count or limit the number of copies which can be made
and Partner will not tamper with such devices. Partner
shall maintain Master Disks under lock and key and shall
allow only a specified number of its own employees to make
copies from Master Disks. Partner shall fully account for
all copies of the Programs. Partner shall not modify or
alter any proprietary rights notice contained within the
Programs. Partner is strictly prohibited from providing
access or transferring the Master Disks to any third party.
If Partner elects under Section 5 of the Agreement to
utilize the Sybase Shrinkwrap in connection with its
distribution of the Programs, Partner may reproduce the
Sybase Shrinkwrap for such purposes.
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PARTNER Partner shall fulfill and/or support the following
MARKETING marketing obligations: Visibly recognize SQL Anywhere in
OBLIGATIONS marketing literature, product documentation and packaging
of the Application Software.
The SQL Anywhere logo, as provided by Sybase, shall be
prominently displayed on the exterior of each package that
contains your Application Software.
Recognize Sybase's proprietary rights in SQL Anywhere in
the same manner, places and times. and no less
conspicuously than, the recognition of others proprietary
rights including Partner's. Publicize SQL Anywhere by
specifically promoting it in all press releases, press
tours, consultant and/or analyst briefings relating to
Application Software when appropriate.
Specifically reference SQL Anywhere in a positive light and
framework in any seminars involving the Application
Software provided SQL Anywhere's performance is positive.
Promote SQL Anywhere to Partner reseller distribution
channel through appropriate mailings.
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<PAGE> 10
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A Partner senior executive shall provide Sybase a positive
testimonial regarding SQL Anywhere provided SQL Anywhere's
performance is positive. Include in all shipments of the
Application Software the SQL Anywhere start-up install
banner displaying Sybase's copyright information or the SQL
Anywhere engine icon in each display of the Application
Software's start-up install banner.
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SSA BEING ACQUIRED: The current version for Windows 3.1, Windows'95, Windows NT,
DOS, OS/2 and Netware.
ROYALTY FEE DUE SYBASE DER SSA
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DISTRIBUTED WITH EROOM
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PAYMENT THE GREATER OF * % OF LICENSE TYPE
------- ------------
$ * Net Revenue OR $ *.
UPDATES: Sybase may make certain major corrections, enhancements, etc.
("Update") to SSA. Partner may provide an Update to new or existing users of SSA
in accordance with the royalty fee contained above.
Except as amended above, the Agreement shall remain in full force and effect.
Instinctive Technology, Inc. ("Partner") Sybase, Inc. ("Sybase")
/s/ Jeffrey R. Beir /s/ Glen Germanowski
------------------------------------- ---------------------------------
(Authorized Signature) (Authorized Signature)
/s/ Jeffrey R. Beir /s/ Glen Germanowski
------------------------------------- ---------------------------------
(Printed Name) (Printed Name)
President & CEO Senior Corporate Counsel
------------------------------------- ---------------------------------
(Title) (Title)
<PAGE> 11
AMENDMENT NO. 1
TO THE SYBASE/INSTINCTIVE SOL ANYWHERE MASTER DISK ADDENDUM
TO THE COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Amendment No. 1 ("Amendment") is made 14 October 1997 between Sybase, Inc.
("Sybase") and Instinctive Technology, Inc. ("Partner"). This Amendment amends
the terms of the SQL Anywhere Master Disk Addendum dated 31 July 1997 ("MDA") to
the Commercial Application Partner (CAP) Agreement dated 31 July 1997
("Agreement") between Sybase and Partner. In the event of a conflict between
this Amendment and the Agreement, the terms and conditions of this Amendment
shall prevail. This Amendment shall expire or terminate with the Agreement.
Capitalized terms not otherwise defined in this Amendment shall have the meaning
set forth in the Agreement.
Sybase and Partner agree as follows:
The MDA is replaced with the SQL Anywhere Master Disk Addendum, dated 14 October
1997, attached hereto.
Except as amended above, the Agreement shall remain in full force and effect.
Instinctive Technology, Inc. ("Partner") Sybase, Inc. ("Sybase")
/s/ Jeffrey R. Beir /s/ Glen Germanowski
------------------------------------- ---------------------------------
(Authorized Signature) (Authorized Signature)
/s/ Jeffrey R. Beir /s/ Glen Germanowski
------------------------------------- ---------------------------------
(Printed Name) (Printed Name)
President & CEO Senior Corporate Counsel
------------------------------------- ---------------------------------
(Title) (Title)
<PAGE> 12
SQL ANYWHERE(TM) MASTER DISK ADDENDUM (PAGE 1 OF 2)
TO THE COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Master Disk Addendum ("Addendum") for SQL Anywhere database server software
("SQL Anywhere") is made 14 October 1997 between Sybase, Inc. ("Sybase"), and
Instinctive Technology, Inc. ("Partner"). This Addendum supplements and amends
the terms of the Commercial Application Partner Agreement dated 31 July 1997
("Agreement") between the parties hereto. In the event of a conflict between the
Agreement and this Addendum, the terms and conditions of this Addendum shall
prevail. This Addendum shall expire or terminate with the Agreement. Capitalized
terms not otherwise defined in this Addendum shall have the meanings set forth
in the Agreement. For purposes of this Addendum, the term Application Software
means Partner's software product known as "eRoom".
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LICENSE FEE Partner shall pay Sybase $ * ("Payment") as follows: $ *
PREPAYMENT on or before 31 July 1997 and $ * on or before 20 October
1997. The Payment is non-refundable and irrevocable, and
may only be used as specified in this Addendum. The
Payment shall be depleted in accordance with the royalty
fees designated at the bottom of page 2 of this Addendum.
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REPORTING Partner shall, within 30 days after each calendar-quarter
AND OTHER end, provide Sybase (i) a written report showing the
PAYMENTS cumulative number of AD Seats and AD Seat Updates
(including Evaluation Copies (at no charge to Partner) and
Demonstration Copies) distributed by Partner during such
preceding calendar quarter along with the name of the
Application Software with which such AD Seats or AD Seat
Updates were distributed and (ii) payment (once the Payment
is depleted) for any AD Seat fees or AD Seat Update fees
due.
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ACCESS, AD (1) An application deployment seat ("AD Seat")" is a
SEATS & NET license for a copy of a Program or a Seat (as applicable)
REVENUE which can only be used for the purpose of (1) an End-User
running non-custom Application Software (excluding any
third party application programs marketed by Partner) and
(2) extracting data on a read only basis from the
Application Software for use with other applications; such
extraction may either be through tools within the
Application Software or through third party tools. As used
in the prior sentence, the phrase "running non-custom
Application Software" means that the End User cannot use
the Programs to create or alter columns, tables, schemas or
databases unless (a) such columns, tables, schemas and
databases are created or altered by and within the context
of the Application Software (i.e., the Application Software
must generate the commands without the End-User itself
using the Program's command verbs) and only include data
first captured in the specific Application Software in
which the new columns or tables are created or altered
(i.e., not transferred into such Application Software from
other Application Software or applications), and (b) the
commands to insert, delete or modify data in the new or
altered columns, tables, schemas or databases must be
included within existing "begin transaction" and "commit
transaction" statements in the original version of the
Application Software. Moreover, an AD Seat may not be used
to run copies of Programs which have been modified through
a full-use license to include modifications not permitted
above. Notwithstanding the above, the End User may use
standard database administration command verbs used for
backup, recovery, space/index management and consistency
checking in the course of systems administration. (2) For
purposes of this Addendum, a "Seat" means a specific person
licensed by Partner to use SQL Anywhere in conjunction with
the eRoom server as a licensed user of eRoom. (3) "Net
Revenue" means the net revenue to Partner that is
recognized by Partner in accordance with Partner's standard
accounting principles that results from any sale or
distribution of (i) an AD Seat or (ii) the Application
Software that is used with, or that includes, SQL Anywhere.
(4) Partner represents and warrants that eRoom is licensed
for revenue on a Seat basis and not on a server basis.
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RESTRICTION For purposes of this Addendum, Partner's Application
Software shall not be an application software development
tool without Sybase's prior express written permission.
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THIS ADDENDUM IS CONTINUED ON THE NEXT PAGE
<PAGE> 13
SQL ANYWHERE(TM) MASTER DISK ADDENDUM (PAGE 2 OF 2)
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MASTER DISK Partner and its distributors are authorized to distribute
AD Seats (as defined above) and Partner, but not its
distributors, is authorized to make Evaluation Copies and
Demonstration Copies of the Programs and copies of the
Programs to be licensed as AD Seats from Master Disks
("Master Disks") that Sybase will make available to
Partner. Partner may make as many Evaluation Copies and
Demonstration Copies as it reasonably requires. Partner
shall ensure that all Sybase copyright and other
proprietary notices which are included in the Master Disks
are included on any copies made from the Master Disks.
Partner acknowledges that Master Disks may contain devices
which count or limit the number of copies which can be made
and Partner will not tamper with such devices. Partner
shall maintain Master Disks under lock and key and shall
allow only a specified number of its own employees to make
copies from Master Disks. Partner shall fully account for
all copies of the Programs. Partner shall not modify or
alter any proprietary rights notice contained within the
Programs. Partner is strictly prohibited from providing
access or transferring the Master Disks to any third party.
If Partner elects under Section 5 of the Agreement to
utilize the Sybase Shrinkwrap in connection with its
distribution of the Programs, Partner may reproduce the
Sybase Shrinkwrap for such purposes.
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PARTNER Partner shall fulfill and/or support the following
MARKETING marketing obligations:
OBLIGATIONS
Visibly recognize SQL Anywhere in marketing literature,
product documentation and packaging of the Application
Software.
The SQL Anywhere logo, as provided by Sybase, shall be
prominently displayed on the exterior of each package that
contains your Application Software.
Recognize Sybase's proprietary rights in SQL Anywhere in
the same manner, places and times, and no less
conspicuously than, the recognition of others proprietary
rights including Partner's.
Publicize SQL Anywhere by specifically promoting it in all
press releases, press tours, consultant and/or analyst
briefings relating to Application Software when
appropriate.
Specifically reference SQL Anywhere in a positive light and
framework in any seminars involving the Application
Software provided SQL Anywhere's performance is positive.
Promote SQL Anywhere to Partner reseller/distribution
channel through appropriate mailings.
A Partner senior executive shall provide Sybase a positive
testimonial regarding SQL Anywhere provided SQL Anywhere's
performance is positive.
Include in all shipments of the Application Software the
SQL Anywhere start-up install banner displaying Sybase's
copyright information or the SQL Anywhere engine icon in
each display of the Application Software's start-up install
banner.
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VERSION OF SOL ANYWHERE BEING ACQUIRED: The current release of SQL Anywhere AD
Seats for Windows 3.1, Windows'95, Windows NT, DOS, OS/2 and Netware.
PAYMENT ROYALTY FEE DUE SYBASE
------- ----------------------
$ * The greater of * % of Net Revenue
OR $ * per AD Seat.
<PAGE> 14
UPDATES: Sybase may make certain major corrections, enhancements, etc.
("Update") to SQL Anywhere. Partner may provide an Update to new or existing
users of SQL Anywhere in accordance with the royalty fee stated above.
Except as amended above, the Agreement shall remain in full force and effect.
Instinctive Technology, Inc. ("Partner") Sybase, Inc.
/s/ Jeffrey R. Beir /s/ Glen Germanowski
------------------------------------- ---------------------------------
(Authorized Signature) (Authorized Signature)
Jeffrey R. Beir Glen Germanowski
------------------------------------- ---------------------------------
(Printed Name) (Printed Name)
President and CEO Senior Corporate Counsel
------------------------------------- ---------------------------------
(Title) (Title)