OEM Agreement - Hyperion Solutions Corp. and SPSS Inc.
AGREEMENT NUMBER __________
HYPERION SOLUTIONS CORPORATION
OEM AGREEMENT
HYPERION SPSS
Hyperion Solutions Corporation Company Name: SPSS Inc.
1344 Crossman Avenue Address: 233 S. Wacker Drive, 11th floor
Sunnyvale, CA 94089 Chicago, IL 60606-6307
Phone: 408-744-9500 Phone: +1.312.651.3000
Fax: 408-744-0400 Fax: +1.312.651.3668
EFFECTIVE DATE: November 5, 2004
(To be completed by Hyperion)
/s/ Claire Goldbloom /s/ Jack Noonan
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HYPERION SIGNATURE SPSS SIGNATURE
Claire Goldbloom Jack Noonan
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PRINTED NAME PRINTED NAME
Vice President, Corporate Counsel President and Chief Executive
Officer
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TITLE TITLE
SPSS hereby subscribes to be an OEM partner to Hyperion, whereby (1) SPSS will
port the Software (as defined below) to the IBM AS/400 platform (such ported
Software shall be hereinafter referred to as the "ShowCase AS/400 Port"); (2)
SPSS will promote End Users to purchase licenses of the ShowCase AS/400 Port and
related support from SPSS; (3) SPSS will offer licenses of the ShowCase AS/400
Port in an arrangement which identifies SPSS as the licensor and End User as the
licensee; and (4) SPSS will independently set, and be responsible for
collecting, the price it charges End Users for such license and associated
support. Accordingly, this OEM Agreement ("Agreement") is made and entered into
as of the Effective Date by and between Hyperion Solutions Corporation
("Hyperion") and SPSS Inc. ("SPSS").
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1. DEFINITIONS
(a) "AGREEMENT" refers to and includes this OEM Agreement and the Exhibits
hereto.
(b) "DOCUMENTATION" means the operating instructions, user manuals, "read-me"
files, and all technical information and reference materials related to the
Software, in whatever form, provided by Hyperion.
(c) "EFFECTIVE DATE" means the date first written above.
(d) "END USER" means a customer that licenses the ShowCase AS/400 Port or the
Software for use in its internal business operations.
(e) "END USER SUPPORT FEES" means the Support fees as set forth in Exhibit A
payable by SPSS to Hyperion in consideration of the secondary Support services
provided by Hyperion to SPSS in connection with SPSS's Support of its End Users.
(f) "FIRST LEVEL SUPPORT" means the service provided in response to an End
User's initial contact reporting a software problem.
(g) "RESELLERS" means those SPSS-authorized distributors, resellers and other
sales channels whose products and services do not compete with those of Hyperion
and who execute agreements with SPSS with terms at least as restrictive and
protective of Hyperion's rights as the terms of this Agreement.
(h) "SECOND LEVEL SUPPORT" means the service provided to reproduce and correct a
software problem.
(i) "SHOWCASE AS/400 PORT" means the Software ported by SPSS to the IBM AS/400
platform or any direct successor platform and any non-ported Software bundled,
used and distributed solely with the ShowCase AS/400 Port.
(j) "SOFTWARE" means the Hyperion software products and related Documentation as
more fully described in Exhibit A, and any Updates and modifications to such
products that may be provided by Hyperion from time to time.
(k) "SUBLICENSE FEES" means the fees as set forth in Exhibit A payable by SPSS
to Hyperion in connection with each sublicense of the ShowCase AS/400 Port
granted by SPSS.
(l) "SUPPORT" means technical support, software diagnosis, and software problem
analysis and resolution provided over the telephone, by fax, via e-mail, or by
other remote electronic means, and the provision of Updates and bug fixes.
(m) "TECHNICAL INFORMATION" means technical information, including, without
limitation, all algorithms, ideas, structure, organization, source code and
other technical information, about the Software that are portable to the IBM
AS/400 platform or any direct successor platform.
(n) "TERM" means the period from the Effective Date until the expiration or
earlier termination of the Agreement.
(o) "TERRITORY" means the geographical region and/or market segment described in
Exhibit A in which SPSS has rights to market, distribute and sublicense the
ShowCase AS/400 Port.
(p) "THIRD LEVEL SUPPORT" means the service provided to isolate a software
problem at the software component level and to furnish a correction or
circumvention of the software problem.
(q) "UPDATES" means any subsequent releases of the Software that Hyperion makes
generally available to its maintenance customers at no additional license fee
from time to time and that is intended to replace
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a prior Software release. Updates shall not include any releases or future
products, which Hyperion licenses separately.
2. SPSS PORTING AND DISTRIBUTION RIGHTS
(a) PORT DEVELOPMENT. Hyperion shall make available to SPSS new releases of the
Software for the purpose of port development no later than the earliest date on
which Hyperion makes such new releases available to its beta test customers. New
releases of the Software are considered Technical Information and are subject to
the confidentiality provisions contained in Section 9(d). SPSS shall use its
best efforts to develop and produce versions of the ShowCase AS/400 Port which
are compatible with such new releases of the Software in a timely manner, so
that the new version of the ShowCase AS/400 Port is available for general
release no later than 180 days after the date of general release by Hyperion of
the new release of the Software. Upon Hyperion's written approval, which shall
not be unreasonably withheld, SPSS (i) may miss a particular release of the
Software or (ii) may not be required to port a feature of the Software.
(b) GRANT OF LICENSE TO DISTRIBUTE SOFTWARE ON AS/400 PLATFORM. Subject to the
terms and conditions of this Agreement, Hyperion grants to SPSS a non-exclusive,
non-transferable, non-sublicensable, license to use Technical Information, but
only as part of, and for the sole purpose of, permitting SPSS to port the
Software to the IBM AS/400 platform or any direct successor platform. Hyperion
also grants to SPSS a worldwide license to distribute, market and sublicense
through Resellers and directly to End Users executable versions of the ShowCase
AS/400 Port in the Territory. The End User shall execute a software license
agreement no less restrictive than, and at least as protective of, Hyperion's
rights and the then-current copy and use restrictions for such Software (the
current version is attached) contained in Hyperion's Software License and
Services Agreement attached to this Agreement as Exhibit B.
(c) CLOSING RESPONSIBILITIES. SPSS will be responsible for closing sales without
substantial field sales support from Hyperion.
(d) DEVELOPMENT/DEMONSTRATION COPIES. SPSS shall have the right to use copies of
the ShowCase AS/400 Port internally and to provide copies to its Resellers at no
charge and subject to no royalty payment, provided that such copies are used by
and on such Resellers' computer equipment solely for the following purposes: (i)
internal development and training of Resellers' employees solely for purposes of
distributing, marketing and supporting the ShowCase AS/400 Port; (ii) marketing
and demonstration of the ShowCase AS/400 Port to prospects; and (iii) providing
implementation services and training for the ShowCase AS/400 Port to End Users.
Under no conditions may such Resellers use copies of the ShowCase AS/400 Port to
run the internal operations of Reseller or for the benefit of any third party,
nor shall such copies be provided to any third party.
(e) TRADEMARK LICENSE. Subject to the terms and conditions of this Agreement,
Hyperion hereby grants to SPSS a non-exclusive, non-transferable license to use
its trademarks (the "Trademarks"), but only in the Territory and in connection
with its marketing and distribution of the Software and any derivative works
thereof expressly authorized under this Agreement. Every copy of the ShowCase
AS/400 Port shall clearly and prominently display "Essbase(R)" or the
appropriate Trademark and shall attribute authorship of the Technical
Information to Hyperion. SPSS shall use "Essbase(R)" or the appropriate
Trademark as part of the primary product name in a manner as least as prominent
as the trademark(s) of SPSS and such Trademarks shall not follow words such as
"of" or "for" or "powered by" (e.g., "ShowCase Widget for Essbase(R)" would not
be permissible). SPSS shall (1) upon Hyperion's request from time to time,
supply to Hyperion fully documented sample copies of the ShowCase AS/400 Port
(in both source code and object code form) and any advertising and marketing
materials, for Hyperion's review and approval, which shall not be unreasonably
withheld; (2) modify the ShowCase AS/400 Port and any such advertising and
marketing materials as may be reasonably requested by Hyperion to give full
attribution to Hyperion, ensuring that the Hyperion corporate and product names
and/or logos are noticeably and prominently identified and displayed in
connection with the marketing and distribution of the ShowCase AS/400 Port.
SPSS' failure to substantially comply with the terms of this provision shall
constitute a material breach. SPSS shall not rename or alter Trademarks,
copyright or other notices on the Software. Any use of
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Hyperion's Trademarks shall be consistent with the Hyperion Trademark Policy set
forth in the Hyperion partner portal at http://www.hyperion.com.
(f) MINIMUM ANNUAL QUOTA. SPSS shall endeavor to achieve the minimum annual
quotas during each annual period specified in Exhibit A. These quotas consist of
Sublicense Fees and End User Support Fees actually paid by SPSS to Hyperion.
SPSS failure to meet such minimum shall not be considered a breach of this
Agreement or a cause for termination.
(g) END USER SUPPORT FEES. SPSS shall provide First, Second and Third Level
Support to End Users and SPSS shall pay Hyperion the End User Support Fees set
forth in Exhibit A.
(h) HYPERION REPUTATION AND GOODWILL. SPSS shall not knowingly make false or
misleading representations with regard to the Software or Hyperion. SPSS further
agrees to conduct business in a professional manner and act in good faith with
respect to the Software and the good reputation of Hyperion.
(i) BUSINESS PLAN. SPSS shall submit to Hyperion a detailed business plan
("Business Plan") outlining SPSS's go-to-market plan within thirty (30) days of
the Effective Date of this Agreement.
3. HYPERION DISTRIBUTION RIGHTS
(a) GRANT OF LICENSE TO DISTRIBUTE SHOWCASE AS/400 PORT. Hyperion shall have the
right to distribute and sublicense the ShowCase AS/400 Port directly and through
its distributors, resellers and other partners. Hyperion may not without SPSS'
prior written approval distribute and sublicense the ShowCase AS/400 Port to any
of SPSS' Named Accounts set forth on Exhibit E as modified in writing by SPSS
from time to time upon written notice to Hyperion. The End User shall execute a
software license agreement containing terms no less restrictive than those
contained in the Software License Agreement attached to this Agreement as
Exhibit B. Hyperion shall submit written orders to SPSS and SPSS shall fulfill
such orders by promptly delivering and providing Hyperion with evidence of
delivery to the End User (in no event later than the last business day local
time) of the calendar quarter in which the order is submitted.
(b) TRADEMARK LICENSE. Subject to the terms and conditions of this Agreement,
SPSS hereby grants to Hyperion a non-exclusive, non-transferable license to use
the name "ShowCase" (the "Trademark"), but only in connection with its marketing
and distribution of the ShowCase AS/400 Port and in accordance to SPSS' written
trademark polices, a copy of which is attached hereto as Exhibit G. Every copy
of the ShowCase AS/400 Port shall clearly and prominently display the Trademark.
4. TERM AND TERMINATION
(a) TERM. This Agreement shall become effective on the Effective Date and shall
remain in effect for an initial term of [*] years ("Initial Term") and shall
automatically renew for subsequent one-year terms ("Renewal Term") unless sooner
terminated as provided below.
(b) TERMINATION FOR CAUSE. If either party breaches this Agreement, the
non-defaulting party may give written notice to the defaulting party of the
beach. The defaulting party shall have thirty (30) days from the date of such
notice in which to cure the breach. If the default is not cured during the
thirty day period, this Agreement shall automatically terminate at the end of
that period.
(c) TERMINATION WITHOUT CAUSE. Either party may terminate this Agreement without
cause effective as of the end of the Initial Term or any Renewal Term by
providing the other with not less than twelve (12) months written notice prior
to the end of the Initial Term or such Renewal Term.
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* Confidential information has been omitted from this sentence and such
confidential information has been separately filed with the Securities and
Exchange Commission.
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(d) REMEDIES. Termination of this Agreement shall not limit or restrict any of
the remedies otherwise available to the parties hereunder or at law.
(e) EFFECTS OF TERMINATION. Upon termination of this Agreement for any reason,
all rights and licenses granted to SPSS under this Agreement shall terminate and
revert to Hyperion, except that sublicenses of the ShowCase AS/400 Port- granted
by SPSS to End Users in accordance with this Agreement as of the date of
termination will remain in effect in accordance with their terms and conditions.
Upon termination of this Agreement for any reason, SPSS shall (i) immediately
return to Hyperion all Hyperion Confidential Information including the Technical
Information, catalogues and literature in its possession, custody or control in
whichever form held (including all copies or embodiments thereof); (ii) cease
using any trademarks, service marks and other designations of Hyperion; (iii)
cease issuing new sublicenses of the ShowCase AS/400 Port; (iv) no longer
identify or hold itself out as a distributor of the ShowCase AS/400 Port or the
Software; and (v) without additional consideration, assign, convey and transfer
to Hyperion all right, title and interest in and to the ShowCase AS/400 Port.
Notwithstanding the foregoing and provided that the Agreement was not terminated
for violations of Hyperion's intellectual property rights, SPSS may, at its
discretion, retain a limited use license to use the ShowCase AS/400 Port and
related Documentation solely as required to fulfill its contractual duties to
support End Users for the remaining duration of the annual term of End User
Support agreements existing as of termination of this Agreement, provided that
SPSS has paid Hyperion the applicable End User Support Fees. Prior to the end of
the then-annual term of such End User Support agreements, SPSS may if it chooses
to, at its sole discretion, inform the End User to contact Hyperion to contract
directly with Hyperion for such software license and maintenance for the
ShowCase AS/400 Port. In addition to the foregoing, upon termination of this
Agreement, Hyperion may contact End Users using the End User information
provided by SPSS to Hyperion pursuant to Section 5(b) and Section 8 below and
arrange for such End Users to terminate their software license and maintenance
agreements with SPSS as of the end of the then-annual term and to contract
directly with Hyperion for such software license and maintenance for the
ShowCase AS/400 Port.
5. FEES AND PAYMENT
(a) SUBLICENSE FEES PAYMENT TO HYPERION. For each sublicense of the ShowCase
AS/400 Port granted by SPSS, SPSS shall report and pay to Hyperion the
applicable Sublicense Fees stated in Exhibit A payable in accordance with
Section 5(b) below. Unless otherwise expressly stated in Exhibit A, the
applicable Sublicense Fees will be Hyperion's then-current local list price for
such Software in effect in the Territory, less the applicable discount specified
in Exhibit A for the type of sublicense granted. In the event discount levels
are changed, such changes will apply prospectively only and not retroactively.
Any prepaid Sublicense Fees paid by SPSS will be credited only against future
Sublicense Fees. Hyperion shall have the right to change its price lists at any
time, provided that any such change shall be effective under this Agreement upon
a minimum of sixty (60) days' written notice to SPSS.
(b) REPORTING OF SUBLICENSE FEES AND END USER SUPPORT FEES. Within thirty (30)
days following the end of each calendar month, SPSS shall provide to Hyperion a
written report detailing the information set forth in Exhibit C for all
sublicenses of the ShowCase AS/400 Port delivered and first year End User
Support sold to End Users by SPSS in the just completed month. Within thirty
(30) days following the end of each calendar quarter, SPSS shall provide to
Hyperion a written report detailing the information set forth in Exhibit C for
all anniversaries of all sublicenses sold (except for those sublicenses for
which the End User notifies SPSS that annual maintenance will not be renewed)
under this Agreement and the previous License Agreement between the parties
hereto dated April 1, 1998 as amended that occurred in the just completed
quarter. Such report shall include any credits for incorrectly reported
maintenance renewals on the prior quarter's report.
(c) HYPERION ROYALTY PAYMENT TO SPSS. Hyperion shall pay SPSS a royalty for each
copy of the ShowCase AS/400 Port distributed by Hyperion or its resellers. Such
royalty shall be equal to [*]
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* Confidential information has been omitted from this sentence and such
confidential information has been separately filed with the Securities and
Exchange Commission.
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percent ([*]%) of SPSS's then-current local list price. The parties agree to
negotiate in good faith regarding discounts for large transactions. SPSS agrees
to provide Hyperion with sixty (60) days' prior written notice of any change in
its list price. Hyperion agrees to pay and report any license sale under this
Section 5(c) within thirty (30) days of the quarter in which the license sale
occurs.
(d) HYPERION eLICENSING REQUIREMENT. During the term of this Agreement, SPSS
acknowledges and agrees to support and incorporate Hyperion's eLicensing
strategy that will require the ShowCase AS/400 Port to incorporate technology
that can enforce software licensing restrictions substantially similar to the
technology that Hyperion incorporates in the Software. For avoidance of doubt,
if Hyperion subsequently incorporates technology in the Software that can
enforce software licensing restrictions at the component level (i.e., beyond the
server level), SPSS shall promptly, provided that the parties may mutually agree
on an extended period because of any technical or practical issues, support and
incorporate such technology in the ShowCase AS/400 Port or other technology
developed or licensed by SPSS that can enforce software licensing restrictions
at the component level. Failure by SPSS to promptly, provided that the parties
may mutually agree on an extended period because of any technical or practical
issues, incorporate such additional technology into the ShowCase AS/400 Port
shall be deemed a material breach.
(e) MAINTENANCE OF BOOKS AND RECORDS. SPSS shall maintain accurate books and
records relating to the performance of its obligations under this Agreement for
at least three (3) years after expiration or termination of this Agreement.
(f) TERMS OF PAYMENT. All fees due under this Agreement are payable and due
within thirty (30) days of date of invoice. Late payments will bear interest at
the rate of one and one-half percent (1.5%) per month (or the maximum rate
allowed by law, whichever is lower). In addition, the payor will pay all charges
reasonably incurred in the purchase and/or shipment of Software, including
transportation charges, insurance premiums, taxes (except taxes based on
seller's net income), duties and other government assessments, except to the
extent expressly prohibited by law. Payor's obligation to pay the other party
shall not be affected by its ability to collect payment from its customers. All
fees charged by a party and payable by the other party do not include taxes. The
parties agree that all taxes shall be paid in accordance with Section 9 (j)
below.
(g) AUDIT. Hyperion may at any time, upon five (5) business days' written notice
and not more than once in each twelve month period, examine SPSS's books and
records related to the amounts due to Hyperion. Such examination may be done by
a certified public accounting firm, at Hyperion's expense, provided, however,
that if any such audit uncovers one or more underpayments in excess of five
percent (5%) of the total amount determined by the audit to be payable to
Hyperion for the audited period, SPSS shall immediately reimburse Hyperion for
the full costs of such audit and the amount of underpayment uncovered during the
course of the audit.
6. MAINTENANCE SUPPORT
(a) SUPPORT FOR SPSS'S END USERS. SPSS shall provide First Level Support, Second
Level Support and Third Level Support to those customers who have purchased
licenses for the ShowCase AS/400 Port from SPSS or its Resellers. Hyperion will
provide secondary support in accordance with Exhibit H directly to SPSS (and not
to its Resellers or End Users) with respect to all such sales. Hyperion will
also provide Software Upgrades to SPSS. For such support, SPSS shall pay
Hyperion the End User Support Fees as set forth in Exhibit A.
(b) SUPPORT FOR SHOWCASE AS/400 PORT SALES BY HYPERION. Hyperion or its partner
can collect or cause to be collected and promptly pay to SPSS an annual
maintenance fee equal to 15 percent of the then-current SPSS local list price
for the ShowCase AS/400 Port when Hyperion originally licenses the ShowCase
AS/400 Port. The End User shall contract directly with SPSS for Support of the
ShowCase
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* Confidential information has been omitted from this sentence and such
confidential information has been separately filed with the Securities and
Exchange Commission.
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AS/400 Port, and then SPSS will provide First, Second and Third Level
support directly to such End Users. After the first year of maintenance for a
customer, SPSS will handle all renewals and will extend its maintenance contract
to the customers at SPSS's then current rates.
7. MARKETING ACTIVITIES
(a) PUBLICITY. Unless a party is required by law or due to an SEC requirement in
such party's reasonable judgment, neither party will issue any public
announcement nor publish any materials that reference or discuss the other party
or its products without the prior written consent of the other party. Each party
grants the other party the right to use the other party's name and logo for
marketing purposes.
(b) JOINT MARKETING. During the Term of this Agreement, SPSS and Hyperion 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 events.
8. ESCROW OF SHOWCASE AS/400 PORT AND CURRENT END USER LIST. Promptly after
the release of each version of the ShowCase AS/400 Port, SPSS will put into
escrow the ShowCase AS/400 Port and all proprietary software, instructions and
notes necessary to recreate the development environment. Promptly after the
Effective Date of this Agreement, SPSS will put into escrow its current list of
End Users. Upon the termination of this Agreement, Hyperion shall be entitled to
have access to and use the source code form of the ShowCase AS/400 Port for the
purposes set forth in this Agreement and Hyperion shall be entitled to have
access to and use the list of End Users. The fees for this escrow arrangement
shall be paid by Hyperion and shall not exceed $650 per year.
9. GENERAL TERMS AND CONDITIONS
(a) OWNERSHIP OF SOFTWARE. Hyperion 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 Hyperion in the course of providing any technical services, including any
enhancements or modifications made to the Software (collectively, "Hyperion
Materials"), and all patents, copyrights, trade secrets, and other proprietary
rights in or related to the Hyperion Materials, whether or not specifically
recognized or perfected under the laws of the country where the Hyperion
Materials are located. SPSS will not remove, alter or destroy any form of
copyright notice, proprietary markings or confidential legends placed upon or
contained within the Hyperion Materials. Further, SPSS will reproduce Hyperion's
copyright and other proprietary rights notices on any copies of the Hyperion
Materials it uses, including archival and backup copies.
(b) OWNERSHIP OF SPSS AS/400 PORT. SPSS will own the ShowCase AS/400 Port, but
will not own (and hereby quitclaims and assigns to Hyperion any rights or
interests in or to) any of the Technical Information licensed hereunder and any
derivative works thereof. SPSS will own any attachments or add on products or
modules to the ShowCase AS/400 Port, which have been or are developed by or for
SPSS without use of any source code of the ShowCase AS/400 Port.
(c) RESTRICTIONS. SPSS shall not 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. SPSS 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 Hyperion.
(d) CONFIDENTIAL INFORMATION.
(i) "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 clearly identified as proprietary or confidential, and if oral,
shall
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be followed by a written summary of such oral communication within a reasonable
number of 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 evaluation of the
Software, or a potential acquirer of SPSS or the SPSS ShowCase AS/400 Port
business, or the fact that SPSS may be acquired or is looking to divest the SPSS
ShowCase AS/400 Port business, which shall be deemed Confidential Information
without being marked.
(ii) WHAT IS NOT "CONFIDENTIAL INFORMATION". Confidential Information does
not include information that the receiving party can demonstrate through written
documentation (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 or (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.
(iii) NONDISCLOSURE. 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. In no event shall any party use
less care to maintain the Confidential Information of the other party than it
uses to maintain the confidentiality of its own similar non-public information.
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.
(e) INDEMNIFICATION BY HYPERION.
(i) PROVIDED BY HYPERION. Hyperion shall defend and hold SPSS harmless
from any claim by a third party that the Software infringes any patent, trade
secret or copyright of that third party in any jurisdiction in which SPSS is
licensed by Hyperion to use or distribute the Software, provided (i) Hyperion is
promptly notified in writing of the claim; (ii) Hyperion has sole control of the
defense and any negotiations for its settlement; and (iii) SPSS provides
Hyperion, at Hyperion's expense, with all reasonable assistance, information,
and authority necessary to perform the above.
(ii) LIMITATIONS. This indemnity obligation shall not apply with respect
to a claim which arises (1) 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 (the parties agree that the porting of the Software by SPSS
under the terms of this Agreement is not considered a modification; (2) from the
use, operation, or combination of Software with programs, data, equipment, or
materials not provided by Hyperion, if the claim would have been avoided by the
use of the Software without such programs, data, equipment, or materials; or (3)
to the extent that SPSS continues the allegedly infringing activity after being
informed of and provided modifications that would avoid the alleged
infringement.
(iii) OPTIONS FOR REMEDY. Should the Software become, or in Hyperion's
opinion be likely to become, the subject of any such claim of infringement, then
the SPSS will permit Hyperion, at Hyperion's option and expense, either: (1) to
procure for SPSS the right to continue using the Software; (2) replace or modify
the Software so that its use becomes non-infringing without loosing substantial
functionality; or (3) refund the fees paid by SPSS to Hyperion for the allegedly
infringing Software, provided that the amount of fees subject to refund shall be
amortized on a straight line monthly basis over a five (5) year period.
(f) INDEMNIFICATION BY SPSS. SPSS shall defend and hold Hyperion harmless from
(a) any claim by a third party that the SPSS AS/400 Port infringes any patent,
trade secret or copyright of that third party or (b) on any action brought
against Hyperion to the extent that it is based ona claim based on
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misrepresentations made by SPSS about the performance or operation of the
Software that differ from those found in Hyperion's Documentation and marketing
material, provided that: (i) SPSS is promptly notified in writing of the claim;
(ii) SPSS has sole control of the defense and any negotiations for its
settlement; and (iii) Hyperion provides SPSS, at SPSS's expense, with all
reasonable assistance, information, and authority necessary to perform the
above.
(g) LIMITED WARRANTY AND DISCLAIMER. Hyperion warrants that for a period of
ninety (90) days following delivery of the Software by SPSS to an End User, the
Software, excluding Updates for purposes of this Section 9(g), will materially
conform to Hyperion's then-current Documentation. The preceding warranty will
only apply to problems reported to Hyperion 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 of thereof has been altered or
modified without the prior written consent of Hyperion; or (iii) where a defect
in the Software has been caused by any of the End Users' or SPSS' malfunctioning
equipment. SPSS warrants that for a period of ninety (90) days following
delivery of the ShowCase AS/400 Port by Hyperion to an End User, the ShowCase
AS/400 Port, excluding Updates for purposes of this Section 9(g), will
materially conform to SPSS' then-current Documentation. The preceding warranty
will only apply to problems reported to SPSS during the warranty period and will
not apply: (i) where the ShowCase AS/400 Port is not used in accordance with the
Documentation; (ii) if the ShowCase AS/400 Port or any part of thereof has been
altered or modified without the prior written consent of SPSS; or (iii) where a
defect in the ShowCase AS/400 Port has been caused by any of the End Users' or
Hyperion's malfunctioning equipment. EXCEPT FOR ANY EXPRESS WARRANTIES MADE
HEREIN, HYPERION AND SPSS MAKE NO WARRANTIES WHATSOEVER, EITHER EXPRESS OR
IMPLIED, WITH REGARD TO THE SOFTWARE, THE SHOWCASE AS/400 PORT, AND ANY SERVICES
COVERED BY the AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY WARRANTS,
GUARANTEES, OR MAKES ANY REPRESENTATIONS THAT THE SOFTWARE OR SHOWCASE AS/400
PORT is ERROR-FREE OR REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE
SOFTWARE OR SHOWCASE AS/400 PORT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY
OR OTHERWISE.
(h) LIMITATION OF REMEDY. FOR ANY BREACH OF THE WARRANTIES DESCRIBED ABOVE IN
SECTION 9(G), THE ENTIRE REMEDY AND ENTIRE LIABILITY OF EACH PARTY TO THE OTHER
SHALL BE LIMITED TO PROMPT REPAIR OR REPLACEMENT OF THE SOFTWARE OR SHOWCASE
AS/400 PORT OR, IF SUCH REPAIR OR REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN
HYPERION'S OR SPSS' OPINION (AS APPLICABLE), NOT COMMERCIALLY REASONABLE, TO A
REFUND OF THE LICENSE FEES PAID TO THE OTHER PARTY FOR THE SOFTWARE OR THE
SHOWCASE AS/400 PORT.
(i) LIMITATION OF LIABILITY. OTHER THAN FOR IMDEMNIFICATION UNDER SECTIONS
9(E) AND 9(F) ABOVE AND FOR VIOLATIONS OF EITHER PARTY'S INTELLECTUAL PROPERTY
RIGHTS, NEITHER HYPERION NOR SPSS 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 AS STATED IN
SECTION 9(E) ABOVE, IN NO EVENT SHALL HYPERION'S LIABILITY UNDER THE AGREEMENT
EXCEED THE GREATER OF $1,000,000 OR THE TOTAL AMOUNT ACTUALLY PAID TO HYPERION
BY SPSS UNDER THE AGREEMENT.
(j) TAXES. All fees charged by the parties are in U.S. dollars and do not
include taxes. If a party is required to pay any sales, use, consumption, VAT,
GST or other taxes and all applicable export and import fees, customs duties and
similar charges based on transactions under this Agreement (other than taxes
based on such party's income), such taxes shall be billed to and paid for by the
other party. The party that licenses or sublicenses the ShowCase AS/400 port
shall pay for all taxes and fees associated with the sale of such product,
excluding any fees associated with the net income of the other party.
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<PAGE>
(k) EXPORT. SPSS acknowledges that the Technical Information and the
Confidential Information of Hyperion delivered pursuant to the Agreement
(collectively, "Technical Data") are subject to export controls under U.S. laws
including but not limited to the Export Administration Act and the regulations
promulgated thereunder. SPSS agrees to (a) comply strictly with all legal
requirements established under these controls, (b) cooperate fully with Hyperion
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 Hyperion and the applicable U.S.
government agency. Any breach of this provision shall be considered a material
breach of the Agreement.
(l) FORCE MAJEURE. Neither party shall be responsible for any delay in its
performance due to causes beyond its reasonable control.
(m) ASSIGNMENT. SPSS may not assign, delegate or otherwise transfer the
Agreement or any of its rights or obligations to a third party and such
attempted transfer shall be void except that SPSS may assign the Agreement to a
successor following a merger, consolidation, sale of all or substantially all of
its business or the business related to the ShowCase AS/400 Port, operation of
law, or otherwise only upon the prior written consent of Hyperion, which consent
shall not be withheld unless: (1) the proposed assignee is a competitor of
Hyperion (a current list of such competitors is provided in Exhibit F, which
Hyperion reserves the right to make changes upon written notice to SPSS) or (2)
Hyperion has evidence demonstrating that the proposed assignee will be unable to
comply with the terms of the Agreement. Hyperion shall deliver such consent, or
inform SPSS that such consent shall not be granted, within five (5) business
days after the date that such consent is requested by SPSS.
(n) 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.
(o) NOTICES. All notices and other communications required or permitted under
this Agreement shall be in writing, addressed to the Legal Department of the
party being notified at its address first written above, and shall be deemed
given: (a) upon receipt when delivered personally, (b) upon confirmation of
receipt following delivery of registered or certified mail, return receipt
requested, or (c) upon delivery by a recognized overnight courier service which
provides confirmation of delivery.
(p) ATTORNEYS' FEES. If either party to this Agreement shall bring any action,
suit, counterclaim, appeal, arbitration or mediation against the other regarding
the terms of this Agreement, the losing party shall pay to the prevailing party
a reasonable sum for attorneys' fees and costs as determined by the Court,
arbitrator or mediator.
(q) AUTHORITY TO SIGN. Each person signing this Agreement 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.
(r) 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. Neither this
Agreement, nor any terms and conditions contained herein, shall be construed as
creating a partnership, joint venture, agency, or franchise relationship.
(s) SURVIVAL OF OBLIGATIONS. The following obligations will survive
termination of the Agreement for any reason: (a) all obligations relating to
non-use and nondisclosure of Confidential Information; (b) all
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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 Hyperion; and (e) all
provisions regarding the limitations of warranty, remedy and liability.
(t) SEVERABILITY. Wherever possible, each provision of the Agreement shall be
interpreted in such a way as to be enforceable and valid under applicable law.
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.
(u) 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. Notwithstanding
the foregoing, the parties agree to comply with the terms of the License
Agreement between the parties hereto dated April 1, 1998, amended, until the
Effective Date of this Agreement, at which time this Agreement shall control.
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EXHIBIT A
BUSINESS TERMS SUMMARY
I. SOFTWARE
SPSS shall receive the following Software, in all available localized versions,
in accordance with Section 2(a) of the Agreement. Notwithstanding anything to
the contrary in this Agreement, SPSS shall not receive source code for Software
that SPSS will not port to the IBM AS/400 platform as identified below.
- Hyperion Essbase Classic Server (Named or Concurrent), which
includes Essbase Analytic Services, Java API, Hyperion Essbase API,
Hyperion Business Rules, the Java API portion of Essbase Deployment
Services and Administration Services Server
- Hyperion Essbase Spreadsheet Toolkit - SPSS WILL NOT PORT. NO SOURCE
CODE PROVIDED
- Hyperion Essbase Currency Conversion
- Hyperion Essbase Partitioning Option
- Hyperion Essbase SQL Interface
- Hyperion Essbase Integration Services
- Hyperion Visual Explorer - SPSS WILL NOT PORT. NO SOURCE CODE
PROVIDED
- Hyperion Analyzer (including API toolkit)
- In the event that SPSS requires source code for 3rd party code in
the Software in order to port the Software, and SPSS is unable to
obtain such source code, or is required to pay a fee for such code,
Hyperion will work with SPSS to obtain such code and Hyperion shall
pay for such code. The foregoing shall not apply to Section 5(d) of
this Agreement.
SHIP TO: BILL TO:
Leave blank if same as shipping information
SPSS: SPSS:
Address: Address:
City, State, Zip: City, State, Zip:
Contact: Contact:
Phone: Phone:
Fax: Fax:
E-mail: E-mail:
II. SOFTWARE AVAILABLE FOR SUBLICENSING
SPSS shall have the right to sublicense the following Software products,
including subsequent Updates and enhancements to such Software products
commercially released by Hyperion during the term of this Agreement in
accordance with the terms of the Agreement:
HYPERION PRODUCTS AVAILABLE FOR SUBLICENSING PLATFORM & OPERATING SYSTEM
---------------------------------------------------- ---------------------------
- The Software products listed in Section I above All available platforms
supported by Hyperion
III. SUBLICENSE FEES
SPSS shall pay to Hyperion Sublicense Fees for each license of the ShowCase
AS/400 Port granted by SPSS. The applicable Sublicense Fees will be Hyperion's
then-current local list price for the ShowCase AS/400 Port in effect in the
Territory less the applicable discount specified below. For the purposes of this
Agreement, the then-current local list price for the ShowCase AS/400 Port is the
same as the then-current local list price for the Software in effect in the
Territory.
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OPTION 1
ANNUAL TOTAL SUBLICENSE FEES PAID TO HYPERION
(RESET AMOUNT TO ZERO EACH ANNUAL PERIOD) SUBLICENSE FEES
--------------------------------------------- ---------------------------------------
[ * ] Local List price, less [ * ] discount**
[ * ] Local List price, less [ * ] discount**
OPTION 2
PREPAID ANNUAL SUBLICENSE FEES
(PAYABLE YEARLY IN ADVANCE OF THE PERIOD FOR
WHICH THEY APPLY) SUBLICENSE FEES
-------------------------------------------- ---------------------------------------
[ * ]* Local List price, less [ * ] discount**
* Prepaid Annual Sublicense Fees are
nonrefundable, irrevocable and shall only be
applied against Sublicense Fees in the
one-year period for which they apply.
** HYPERION VISUAL EXPLORER. The royalty discounts above shall not apply to
Hyperion Visual Explorer. SPSS shall pay to Hyperion Sublicense Fees for each
license of Hyperion Visual Explorer granted by SPSS hereunder equal to the local
list price, less [ * ] discount.
Notwithstanding the foregoing Sublicense Fees, if SPSS identifies an opportunity
to market the ShowCase AS/400 Port to an End User in a transaction, and a deeper
discount is required for SPSS to be competitive, SPSS may request a deeper
discount from Hyperion for such transaction. Hyperion shall use commercially
reasonable efforts to respond to SPSS' request in a timely manner given SPSS'
time constraints made known to Hyperion. If and only if Hyperion agrees to such
deeper discount, which shall not be unreasonably withheld, for the transaction,
Hyperion shall send a letter to SPSS, executed by a duly authorized manager or
executive of Hyperion, specifying such deeper discount.
IV. END USER SUPPORT FEES
In consideration of SPSS providing End User Support in accordance with Section
6(a) of the Agreement, annual End User Support Fees payable by SPSS to Hyperion
shall be equal to [ * ] of the Sublicense Fees payable by SPSS.
V. MINIMUM ANNUAL FEES
The following is a summary of the minimum amounts of Sublicense Fees and End
User Support Fees expected during the Term of this Agreement in accordance with
Section 2(f) of the Agreement:
ANNUAL SALES QUOTA PERIOD ACTUAL SUBLICENSE FEES PAID
------------------------------------------ ---------------------------
First 12 months from Effective Date [ * ]
Each successive 12 month period thereafter [ * ]
---------------
* Confidential information has been omitted from this sentence and such
confidential information has been separately filed with the Securities and
Exchange Commission.
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VI. APPROVED TERRITORY
The following is a summary of the geographical and/or market region(s) where
SPSS may sublicense the ShowCase AS/400 Port to End Users:
TERRITORY RESTRICTIONS
--------- ------------
Worldwide Subject to applicable U.S. export laws.
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