Commercial Application Partner Agreement [Addendum] - Sybase Inc. and Instinctive Technology Inc.
ADAPTIVE SERVER ANYWHERE MASTER DISK ADDENDUM
TO THE COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Master Disk Addendum ("Addendum") for Adaptive Server Anywhere (formerly
named SQL Anywhere) database software is made as of March 28, 2000 between
Sybase, Inc. ("Sybase") and Instinctive Technology, Inc. ("Partner"). This
Addendum supplements and amends the terms of the Commercial Application Partner
Agreement ("Agreement") between Sybase and Partner. Capitalized terms not
otherwise defined in this Addendum shall have the meanings set forth in the
Agreement.
1. PREPAID LICENSE FEES. Net thirty (30) days from the date of this Addendum,
Partner shall pay Sybase the Prepaid License Fees designated below. The Prepaid
License Fees are non-refundable and irrevocable, and may only be applied towards
the ASA Application Deployment Licenses for eRoom distributed by Partner
pursuant to the Agreement and this Addendum.
PREPAID LICENSE FEES
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*
- Only Application Deployment License Fees can be applied against the
Prepaid License Fees. The Prepaid License Fees may not be applied towards Update
fees. All amounts are in U.S. Dollars.
2. TERM. The term of the Agreement, including all attached Exhibits and Addenda
is hereby extended to March 31, 2001. The second sentence in Section 10 (Term
and Rights Upon Termination) of the Agreement, shall no longer apply.
3. PROGRAMS. The Program to be distributed with the Application Software is
Adaptive Server Anywhere ("ASA") Application Deployment License for use on the
NT platform. In the definition of AD Seat in the Master Disk Addendum to the
Agreement, every occurrence of "AD Seat" is changed to "Application Deployment
License".
4. APPLICATION SOFTWARE. The Application Software is eRoom, and is described as
a project management application.
5. LICENSE FEES. In the Master Disk Addendum dated October 23, 1997,the text in
subsection (3) to read as follows: "Net Revenue" means the net revenue license
fees to Partner that are recognized by Partner in accordance with Partner's
standard accounting principles from any sale or distribution of (i) Application
Deployment License or (ii) the Application Software that is used with, or that
includes Adaptive Server Anywhere." The following text in subsection "(4)" is
deleted: "Partner hereby represents and warrants that eRoom is licensed for
revenue on a Seat basis and not on a server basis." In consideration of the
above Prepaid License Fees, the License Fees shall be based on Partner's Net
Revenue, as Net Revenue is defined in such Master Disk Addendum dated October
23, 1997 on page 1 and modified herein, at the following rate:
<PAGE> 2
NET REVENUE RATE (LICENSE FEES) UPDATE FEES
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*% of Net Revenue ("Royalty") *% of Royalties received by Sybase from
Partner for Partner's End Users who
elect to purchase Updates.
The floor of $* per AD Seat specified in such Master Disk Addendum is hereby
removed.
6. ASPS AND OEMS. The phrase "who will use the Programs only for their own
internal business purpose" contained in the first sentence of Section 1. License
Grant of the Agreement shall not be construed to apply to ASPs and OEMs. In
addition to the right to appoint distributors as specified in Section 1 of the
Agreement, Partner may sublicense the ASA Application Deployment Licenses for
use only with eRoom to Application Service Providers ("ASPs") and Original
Equipment Manufacturers ("OEMs"), provided such ASPs and OEMs sign an agreement
with Partner with substantially similar terms as the Agreement. Partner shall
use all reasonable efforts to enforce the terms of any such agreement and shall
promptly inform Sybase of any breach thereof.
7. TERRITORY. The territory for distribution of the ASA Program is worldwide,
provided such version is a Application Deployment License and such distribution
is subject to the Export Control terms in Section 15 of the Agreement.
8. ASSIGNMENT. Notwithstanding the Assignment clause in the Agreement, Partner
may assign the Agreement to an entity that acquires all or substantially of
Partner's assets, provided such entity is not
* . In the event Partner wishes to
make an assignment to one of these competitors, Partner will request such
assignment in writing to Sybase and the parties will negotiate whether such
assignment is appropriate.
Except as amended above, the Agreement shall remain unchanged and in full force
and effect. In the event of a conflict between the Agreement and this Addendum,
the terms and conditions of this Addendum shall prevail with respect to the
subject matter hereof.
Sybase, Inc. Instinctive Technology, Inc.
By: /s/ Glen Germanowski By: /s/ Robert L. Lentz
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By: /s/ Glen Germanowski By: /s/ Robert L. Lentz
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Title: Senior Corporate Counsel Title: Senior Vice President of
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Finance and CFO
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