Value-Added Reseller License and Services Agreement - Forte Software Inc. and Export Software International Inc.
FORTE SOFTWARE, INC.
VALUE-ADDED RESELLER LICENSE AND SERVICES AGREEMENT
Customer Export Software International
------------------------------------------------------------------------
Address 11800 Sunrise Valley Drive, Suite 820
-------------------------------------------------------------------------
City Reston State VA Zip 22091
------------------------------- ------------ ----------------
This Value-Added Reseller License and Services Agreement (the "Agreement") is
entered into between Forte Software, Inc., a California corporation ("Forte")
and Reseller for the purpose of setting forth the terms and conditions upon
which Forte shall grant to Reseller a license to use the Products listed on
Exhibit B attached hereto.
The Effective Date of this Agreement is July 19, 1996.
FORTE: RESELLER:
FORTE SOFTWARE, INC. Export Software International
--------------------- ------------------------------
Signature: Signature:
--------------------------------- ----------------------------
Name: Name:
--------------------------------- ----------------------------
Title: Title:
--------------------------------- --------------------------
1
<PAGE>
TERMS AND CONDITIONS
Forte Software, Inc. (Forte) and the reseller identified on
the signature page (reseller) hereby agree that the following terms and
conditions will apply to each license granted and to all services provided under
this Agreement.
1. DEFINITIONS
1.1 "Application Specific Licenses" shall mean Licenses which
shall be limited for use solely for the purpose of running the Reseller's
Application Program as specified in the Application Package Attachment. The
Application Specific License may also be used to modify or customize the
Reseller's Application Program to fit the Sublicensee's own particular
operational needs. The Application Specific License is limited for use only on
the specified Reseller Application Program and may not be used for any other
development or deployment purposes with the Reseller or Sublicensees.
1.2 "Client Environment" shall mean a hardware/operating
system/graphical user interface combination on which the Product, or any portion
thereof, is run.
1.3 "Core System" shall mean the Products bundled for Reseller
use, defined and priced as such in the Price List.
1.4 "Designated Reseller Developer" shall mean a arson within
Reseller with a valid user ID issued by Forte for developing applications with
the Product.
1.5 "Designated System" shall mean the computer hardware and
operating system(s) designated on the relevant Order Form for use in conjunction
with a Sublicensed Program or a Development License.
1.6 "Documentation" shall mean the user manual, training manuals,
consulting papers, operator instructions and other written material furnished by
Forte in conjunction with the Products.
1.7 "Effective Date" shall mean the date so specified on the
signature page or the applicable Order Form.
1.8 "Order Form" shall mean Forte's standard form for ordering
Product licenses and services attached as Exhibit B. When completed and signed
by both parties, the Order Forms (including the Signature Page of this
Agreement) shall document the Product licenses which have been granted and the
services which are to be provided under this Agreement.
1.9 "Price List" shall mean Forte's standard product list and fee
schedule that is in effect at the time a Produce license or service is ordered
by the Reseller.
2
<PAGE>
1.10 "Product" or "Products" shall mean the computer software
owned or distributed by Forte for which Reseller is granted a license pursuant
to this Agreement, and subsequent Updates thereto, whether in printed or machine
readable form.
1.11 "Reseller Sublicense Addendum" shall mean the addenda to
this Agreement specifying additional Sublicense terms and Sublicense rates and
fees far the various types of Sublicenses which may be granted by the Reseller.
1.12 "Sewer Environment" shall mean a hardware/operating system
combination (e.g., VAX/VMS or Sequent/Dynix) on which the Product, or any
portion thereof, is run.
1.13 "Standard Technical Support" shall mean the technical
support services specified in Section 3.1 of this Agreement.
1.14 "Sublicense" shall mean a nonexclusive, nontransferable
right to use an Application Specific License granted by the Reseller under a
Reseller Addendum to an end user to use a copy of the Application Specific
Licenses) with the Value-Added Package. "Sublicensee" shall mean a third party
who is granted a Sublicense of the Products) with the Value-Added Package for
such parry's own internal business purposes and not for purposes of any further
distribution.
1.15 "Supported License" shall mean a Product license for which
the Reseller has a current order for annual Standard Technical Support.
1.16 "Updates" shall mean updated versions of the Products and
Documentation which encompass logical improvements, extensions and other changes
to the Products which are generally made available to Product Licensees at no
additional license fee.
1.17 "User" unless otherwise specified in the Order Form, shall
mean a specific individual employed by Reseller who is authorized by Reseller to
use the Product(s), regardless of whether the individual is actively using the
Products) at any given time. With respect to a Sublicense; "User" shall mean
Concurrent Users which is the maximum number of "logged-in" persons of the
Sublicensee that are licensed to use the product at any one period of time.
1.18 "Value-Added Package" shall mean the hardware or software
products or services having Value-Added which are developed, sold, and/or
licensed with the Products to a sublicensee by the Reseller, as provided under
the applicable Attachment, to satisfy such Sublicensee's internal business
requirements and objectives.
2. LICENSE GRANT
2.1 Development License and Trial Licenses. Forte grants to
Reseller a nonexclusive license to use the Development Licenses Reseller obtains
under this Agreement, as follows:
(a) To develop or prototype the Value-Added Package on the
Designated System or on a backup system if the Designated System is inoperative
(b) To demonstrate the Product to potential Sublicenses.
solely in conjunction with the Value-Added Package.
(c) To provide training and technical support to employees
and customers solely in conjunction with the Value-Added Package.
(d) To use the Documentation provided with the Products) in
support of Reseller's authorized use of the Product(s).
(e) To copy the Product(s) for archival or backup purposes;
no other copies shall be made without Forte's prior written consent. All titles,
trademarks, and copyright and restricted rights notices shall be reproduced in
such copies. All archival and backup copies of the Products) are subject to the
terms of this Agreement.
(f) The Reseller may order temporary trial Demonstration
Licenses ("Trial Licenses") for its evaluation purposes only, and not for
development or prototype purposes for use during a period specified in the Order
Form. Each Order Form for Trial Licenses shall clearly state the trial period
and shall identify that the order is for a Trial License.
(g) The number of Designated Developers located at the
specified location is restricted to the number set forth in the applicable Order
Form and is restricted to the particular Client and Server Environment the
Reseller is licensed for as set forth in the Order Form.
2.2 Sublicensing.
(a) License to Sublicense Programs
As further set forth in the applicable Reseller Addendum,
Forte hereby grants the Reseller a nonexclusive, nontransferable license to
market and grant Sublicenses as set forth in such Reseller Addendum. The
Reseller shall only have the right to Sublicense Programs pursuant to an
effective Reseller Addendum between the parties hereto.
Reseller shall Sublicense the Products solely through a
written Sublicense agreement as provided under Section 2.2B. Upon Forte's
request, the Reseller shall provide Forte with a copy of the Reseller's standard
Sublicense agreement.
(b) Sublicense Agreement
Every Sublicense agreement shall include, at a minimum,
contractual provisions which:
(1) Restrict use of the Products to object code form on
designated system by a maximum number of Users for the Sublicensee's own
internal data processing only.
(2) Prohibit transfer or duplication of the Products
except for temporary transfer in the event of CPU malfunction and a single
backup or archival copy.
4
<PAGE>
(3) Prohibit assignment, timesharing, or rental of the
Products.
(4) Prohibit use of the Products for any purpose
outside the scope of the Application Specific License used in conjunction with
the Value-Added Package.
(5) Prohibit causing or permitting the reverse
engineering, disassembly, or decompilation of the Programs.
(6) Prohibit title from passing to the Sublicensee.
(7) Disclaim Forte's liability for any damages, whether
direct, indirect, incidental, or consequential arising from the use of the
Products.
(8) Require the Sublicensee, at the termination of the
Sublicense, to discontinue use and destroy or return to the Reseller the
Products, Documentation and all archival or other copies of the Product.
(9) Restrict publication of any results of benchmark
tests run on the Products.
(10) For Programs Sublicensed, for use in the United
States, prohibit transfer of the Products outside the United States; for
Programs Sublicensed for use outside the United States, require the Sublicense
to comply fully with all relevant export laws and regulations of the United
States to assure that neither the Products, not any direct product thereof, are
exported, directly or indirectly, in violation of United States law.
(11) Specify Forte as a third party beneficiary of the
Sublicense agreement.
(12) Allow the Reseller to comply with Section 5.15 of
this Agreement.
(c) Marketing/Sublicensing Practices Products.
(1) Avoid deceptive, misleading, illegal, or unethical
practices that may be detrimental to Forte or to the Products.
(2) Not make any representations, warranties, or
guarantees to Sublicensees concerning the Product that are inconsistent with or
in addition to those made in this Agreement or by Forte.
(3) Comply with all applicable Federal, State, and
Local laws and regulations in performing its duties with respect to the
Products.
2.3 Title. Forte shall retain all title, copyright, and other
proprietary rights in the Products and any modifications or translations
thereof. The Reseller and its Sublicensees do not acquire any rights in the
Products other than those specified in this Agreement.
5
<PAGE>
2.4 Transfer of Products.
(a) Except as otherwise specified in the Order Form, within
the United States, a Development License may be transferred to another computer
system of like configuration (same model and operating system), or the
Designated System may be transferred to another location within Reseller's
organization, upon written notice to Forte. All other transfers, including
transfer of a Product license outside the United States, shall be permitted only
with Forte's prior written consent and shall be subject to Forte's standard
transfer fees in effect at the time of the transfer.
(b) The rights granted herein are restricted for use solely
by the Reseller and may not be assigned or transferred to a third party without
the prior written permission of Forte.
2.5 Verification. On Forte's reasonable request, but not more
frequently than semi-annually, the Reseller shall furnish Forte with a signed
statement verifying that the Products are being used pursuant to the provisions
of this Agreement, and listing the location, type, Designated Developers,
Concurrent Runtime Users and location of the Products.
3. TECHNICAL SERVICES
3.1 Standard Technical Support Services. So long as Forte
continues to offer similar support services to its other general licensees and
subject to payment by the Reseller of the applicable fees, Forte will provide
annual Standard Technical Support for Supported Licenses as follows:
(a) Forte will provide telephone consultation at Forte's
service location, to assist the Reseller in identifying, verifying and resolving
problems in the use and operation of the Product. Telephone assistance services
shall be limited to a written list of Licensee personnel to be separately agreed
upon by Forte and the Reseller as listed in Exhibit B.
(b) Forte will respond to problem reports concerning the
Products submitted by the Reseller to Forte, using the form provided by Forte
where possible, including backup material substantiating the Product problem.
Upon proper notification of a failure of the Product to perform correctly, which
failure can be reproduced at Forte's facility or via remote access to the
Reseller's facility, Forte shall use reasonable efforts to correct the failure
and to provide the Reseller with correcting Product or a work around to the
problem.
(c) Forte will provide the Reseller with Updates. For 6
months after the introduction of a new generally available release, Forte will
use reasonable efforts to support the previous release of the Product. For
Products with annual Update support only, the support services will consist
solely of the service specified in this subsection 3.1(c).
3.2 Renewal of Annual Support Services.
(a) Forte will notify the Reseller at least 60 days before
the annual support period is scheduled to expire. Fees for annual support are
due annually in advance. Such fees will be those in effect at the beginning of
the period for which the fees are paid.
6
<PAGE>
Annual support will terminate unless the Reseller renews for the next year under
Forte's then current policies by providing Forte with a purchase order and/or
payment of the next year's fees prior to the expiration date.
(b) Forte may, where appropriate, prorate annual support
fees so that support for all Products at a specific location are renewable on
the same date, even if all the Products were not ordered at the same time.
(c) Reseller may reinstate lapsed support services only upon
payment of the back support fees specified in the Price List, plus current
year's support fees:
3.3 Rights to Developments. This Agreement will govern the Reseller's
use of any enhancements, data, and information provided by Forte in the course
of providing any technical services. Any ideas, know-how, techniques, and
software which may be developed by Forte, including any enhancements or
modifications made to the Products, shall be the property of Forte.
3.4 Incidental Expenses. With respect to any onsite services requested
by the Reseller, such services will be performed at Forte's standard consulting
rates plus reimbursement of reasonable travel and out-of-pocket expenses
incurred.
4. FEES, INVOICING, PAYMENT & TAXES
4.1 License Fees and Sublicense Fees. The Reseller may order VAR
Kit(s) with all of the associated products at the VAR Kits license fees as
specified on the applicable Order Form on Exhibit B. The Reseller may also order
standard Development and Deployment licenses for internal operations as
specified on the Price List on Exhibit A. For each copy of the Product
Sublicensed by the Reseller, the Reseller agrees to pay Forte a Sublicense fee
as set forth in the applicable Reseller Sublicense Addendum.
The Reseller is free to determine unilaterally its own license fees to
its Sublicensees. If the Reseller or a Sublicensee increases the licensed number
of Users, the Reseller will pay additional Sublicense fees to Forte at the rates
specified and in effect at the time the increase occurs.
4.2 Invoicing and Payment of License and Sublicense Fees. Invoices for
payment of license and sublicense fees shall be payable on the Effective Date of
the applicable Order Form. Reseller will provide Forte with a written purchase
order for licenses at the time of execution of an Order Form. All other
applicable fees shall be payable when invoiced at a place of Forte choosing as
specified on the invoice. All fees shall be deemed overdue if they remain unpaid
30 days after they become payable. If the Reseller's procedures require that an
invoice be submitted against a purchase order before payment can be made, the
Reseller will be responsible for issuing such purchase order 30 days before the
payment due date. All overdue amounts shall become interest at the rate of one
and one-half percent (1-1/2%) per month or the maximum legal rate, if less,
however, nothing herein shall limit Forte's right to terminate this Agreement
under Section 6.
7
<PAGE>
4.3 Technical Service Fees. Technical services ordered by Reseller for
Development Licenses will be provided under Forte's Technical Support policies
and rates in effect on the date Technical Support is ordered.
4.4 Invoicing and Payment of Technical Service Fees. Invoices for
payment of the first year of Technical Support fees shall be due and payable 6
months after the Effective Date of the applicable Order Form. Reseller will
provide Forte with a written purchase order for licenses and support at the time
of execution of an Order Form. All other applicable fees shall be payable when
invoiced at a place of Forte's choosing as specified on the invoice. All fees
shall be deemed overdue if they remain unpaid 30 days after they become payable.
If the Reseller's procedures require that an invoice be submitted against a
purchase order before payment can be made, the Reseller will be responsible for
issuing such purchase order 30 days before the payment due date. Technical
Support will terminate unless the Reseller issues payment by said due date.
4.5 Taxes. The fees listed in this Agreement do not include taxes. The
Reseller shall pay or reimburse Forte for all sales, use, excise, property,
value-added, or other federal, state or local taxes or any documentary, stamps
or duties whether withholding or otherwise, or am similar assessments based on
the licenses granted in this Agreement, the services provided under this
Agreement or on the Reseller's use of the Products; provided that, the Reseller
shall have no responsibility for income taxes imposed on Forte by any taxing
authority.
5. RECORDS
5.1 Records Inspection. The Reseller shall maintain books and records
in connection with activity under this Agreement. Such records Shall include
executed Sublicense agreements and the information required under a Reseller
Addendum. Forte may, at its expense, audit the executed Sublicensee lists, the
number of copies of Programs used or Sublicensed by the Reseller, the Computers
on which the Programs are installed, and the number of Users using the Programs
upon reasonable notice to the Reseller. Forte may audit the relevant books and
records of the Reseller to ensure compliance with the terms of this Agreement
Any such audit shall be conducted during regular business hours at the
Reseller's offices and shall not interfere unreasonably with the Reseller's
business activities. If an audit reveals that the Reseller has underpaid fees to
Forte, the. Reseller shall be invoiced for such underpaid fees based on the
Price List in effect at the time the audit is completed. If the underpaid fees
are in excess of five percent (5%), then the Reseller shall pay Forte's
reasonable costs of conducting the audit. Audits shall be made no more than once
annually.
5.2 Notice of Claim. The Reseller mill notify the Forte legal
department promptly in writing of (a) Any claim or proceeding involving the
Programs that comes to its attention; and (b) all claimed or suspected defects
in the Programs; and (c) Any material change in the management or control of the
Reseller.
5.3 Sublicensee Contact List. Every 90 days Reseller. shall provide to
Forte a listing of new Sublicensees that have been contracted during the 90 day
period. The list shall
8
<PAGE>
include company name, contact name, phone number, and address so Forte may
contact customer to address any opportunities outside of the Value-Added Package
solution.
6. TERMS AND TERMINATION
6.1 Term. This Agreement and each license granted hereunder shall
remain in effect perpetually (if not otherwise specified on the Order Form),
unless terminated as provided in Paragraph 6.2 below. The term of each Reseller
Addendum hereunder shall be as forth in such Addendum.
6.2 Termination. The Reseller may terminate this Agreement, any
license, or the Reseller Addendum at any time. Forte may terminate this
Agreement, any license, or the Reseller Addendum upon written notice if the
Reseller breaches this Agreement and fails to correct the breach within thirty
(30) days following written notice specifying the breach.
6.3 Effect of Termination. Upon expiration or termination of a
Reseller Addendum or this Agreement, all the Reseller's right to market,
Sublicense, and use the Programs as set forth in such Reseller Addendum or this
Agreement shall cease.
The termination of this Agreement, a Reseller Addendum, or any
license shall not limit either party from pursuing any other remedies available
to it including injunctive relief, nor shall such termination relieve Reseller's
obligation to pay all fees that have accrued or that Reseller has agreed to pay
under any Order Form or other similar ordering document under this Agreement.
The parties' rights and obligations under Sections 2.3, 2.4, 2.5, and Articles
5, 6, 7, 8 shall survive termination of this Agreement
If Reseller materially breaches this Agreement, including
failing to make any payments required hereunder when due under any Order Form or
other similar ordering document to this Agreement, then Forte may declare all
sums due and to become due hereunder immediately due and payable.
6.4 Return of Products upon Termination. If a license granted in this
Agreement expires or otherwise terminates, the Reseller shall (i) cease using
the applicable Products, and (ii) represent in writing to Forte in writing
within one month after termination that the Reseller has destroyed or has
returned to Forte the Products, Documentation and all copies. This requirement
applies to copies and storage in all forms, partial and complete, in all types
of media and computer memory, and whether or not modified or merged into other
materials.
7. WARRANTIES, REMEDIES, LIMITATION OF LIABILITY
7.1 Infringement Indemnity.
(a) Forte will defend and indemnify the Reseller alt costs
(including reasonable attorneys fees) arising from a claim that Products
furnished and used within the scope of this Agreement infringe a United States
copyright or United States patent provided that (i) the Reseller notifies Force
in writing within 30 days of the claim, (ii) Forte has sole control of the
defense and all related settlement negotiations, and (iii) the Reseller provides
Forte with the
9
<PAGE>
assistance, information, and authority necessary to perform the above;
reasonable out-of-pocket expenses incurred by the Reseller in providing such
assistance will be reimbursed by Forte.
(b) Forte shall have no liability for any claim of infringement
based on (i) use of a superseded or altered release of Products if such
infringement would have been avoided by the use of a current unaltered release
of the Products that Forte provides to the Reseller, or (ii) the combination,
operation, or use of any Products furnished under this Agreement with programs
or data not furnished by Forte if such infringement would have been avoided by
the use of the Products without such programs or data.
(c) In the event the Products are held or are believed by Forte
to infringe, Forte shall have the option, at its expense, to (i) modify the
Products to be noninfringing, (ii) obtain for the Reseller a license to continue
using the Products, (iii) substitute the Products with other software reasonably
suitable to Reseller, or (iv) terminate the license for the infringing Products
and refund the license fees paid for those Products, prorated over a five-year
term from the Effective Date of the applicable Order Form. This Section 7.1
states Forte's entire liability for infringement.
7.2 Product Warranty. For each Supported License, Forte warrants for a
period of 30 days from the Effective Date that the Products, unless modified by
tae Reseller, will perform the functions described in the Documentation when
operated on the specified platform. Forte does not warrant that the Products
will meet Reseller's or Sublicensee's requirements, that the Products will
operate in the combinations which Reseller or Sublicense may select for use,
that the operation of the Products will be uninterrupted or error-free, or that
all Product errors will be corrected. Forte will undertake to correct any
reported error condition in accordance with its Technical Support policies. If
Forte is unable to make the Products operate as warranted, the Reseller shall be
entitled to recover the applicable license fees paid to Forte. Such recovery
shall be the Reseller's sole and exclusive remedy for such breach of Product
warranty.
As an accommodation to the Reseller, Forte may supply the Reseller
with preproduction releases of Products, labeled "Alpha" or "Beta." These
releases are not suitable for production use. Forte does not warrant in any
manner preproduction releases; these releases are distributed "as is." If
Reseller does not obtain Technical Services support the Products are distributed
"as is."
The Reseller shall not make any warranty on Forte's behalf.
7.3 Media Warranty. Forte warrants the types, diskettes, or other
media delivered to Reseller to be free of defects in materials and workmanship
under normal use for 90 days from the Effective Date. During the 90-day period,
the Reseller may return defective media to Forte and it will be replaced without
charge. Replacement of media is the Reseller's sole and exclusive remedy in the
event of a media defect.
7.4 Services Warranty. Forte warrants that its technical services will
be of a professional quality conforming to generally accepted industry standards
and practices. This warranty shall be valid for 90 days from completion of
service. If Forte is unable to perform the services as warranted, the Reseller
shall be entitled to recover the fees paid to Forte for such
10
<PAGE>
deficient services. Such recovery shall be the Reseller's sole and exclusive
remedy for such breach of services warranty.
7.5 Limitations of Warranties. THE WARRANTIES ABOVE ARE EXCLUSIVE AND
IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.6 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE
FOR ANY INDIRECT INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT
LIMITED TO COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOSS OF
PROFITS OR REVENUE, LOSS OF DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD
PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF
THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. EXCEPT WITH RESPECT TO SECTION 7.1, FORTE'S LIABILITY FOR DAMAGES
HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER UNDER
THIS AGREEMENT, AND IF SUCH DAMAGES RESULT FROM THE CUSTOMER'S USE OF THE
PRODUCT, SUCH LIABILITY SHALL BE LIMITED TO LICENSE FEES PAID, PRORATED OVER A
FIVE-YEAR TERM FROM THE EFFECTIVE DATE OF THE RELEVANT LICENSE.
The provisions of this Section 6 allocate the risks under this
Agreement between Forte and the Reseller. Forte's pricing reflects this
allocation of risk and the limitation of liability specified herein.
7.7 Indemnification of Forte. The Reseller agrees to enforce the terms
of its Sublicense agreements required by this Agreement and to inform Forte of
any known breach of such terms. The Reseller will defend and indemnify Forte
against:
(a) All claims and damages to Forte arising from any use by the
Reseller or its Sublicensees of any product not provided by Forte but used in
combination with the Programs if such claim would have been avoided by the
exclusive use of the Programs;
(b) All damages to Forte caused by the Reseller's failure to
include the required contractual terms set forth in Section 2.2B hereof in each
Sublicense agreement; and
(c) All damages to Forte caused by Sublicensees' breach of any of
the applicable provisions required by Section 2.2 hereof.
8. GENERAL TERMS
8.1 Nondisclosure. By virtue of this Agreement, the parties may
have access to information that is confidential to one another ("Confidential
Information"). Confidential Information shall be limited to the Products,
information related thereto and all information clearly marked as confidential.
11
<PAGE>
A party's Confidential Information shall not include information
which (i) is or becomes a part of the public domain through no act or omission
of the other party; or (ii) was in the other party's lawful possession prior to
the disclosure and had not been obtained by the other party either directly or
indirectly from the disclosing party; or (iii) is lawfully disclosed to the
other party by a third party without restriction on disclosure, or (iv) is
independently developed by the other party. Results of benchmark tests run by
the Reseller may not be disclosed unless Forte consents to such disclosure in
writing.
The parties agree, both during the term of this Agreement and for
a period of five (5) years after termination of this Agreement and of all
licenses granted hereunder, to hold each other's Confidential Information in
confidence. The parties agree not to make each other's Confidential Information
available in any form to any third party or to use each other's Confidential
Information for any purpose other than the implementation of this Agreement.
Each party agrees to take all reasonable steps to ensure that Confidential
Information is not disclosed or distributed by its employees or __________ in
violation of the provisions of this Agreement.
8.2 Governing Law and Jurisdiction. This Agreement shall be governed
and construed under the laws of the State of California, as applied to
agreements executed and performed entirely in California by California residents
and in no event shall this Agreement be governed by the United Nations
Convention on Contracts for the International Sale of Goods. In any legal action
relating to this Agreement the Reseller agrees (i) to the exercise of
jurisdiction over it by a state or federal court in San Francisco or Alameda
County, California; and (ii) that if the Reseller brings the action, it shall be
instituted in one of the courts specified in subparagraph (i) above. Forte may
institute legal action in any appropriate jurisdiction.
8.3 Copyrights. The Products are copyrighted by Forte. The Reseller
shall retain all Forte copyright notices on the Products used by the Reseller
under its Development Licenses. The Reseller shall include the following on all
copies of the Products distributed by the Reseller:
(a) A reproduction of Forte's copyright notices; or
(b) A copyright notice indicating that the copyright is vested in
the Reseller containing the following:
(1) A "c" in a circle and the word "copyright";
(2) The Reseller's name;
(3) The date of copyright; and
(4) The words "All Rights Reserved."
Such notices shall be placed on the Documentation, the sign-on screen
for any application package incorporating the Products, and the diskette or tape
labels. Notwithstanding any copyright notice by the Reseller to the contrary,
the copyright to the Product included in any such application package shall
remain in Forte. Other than as specified above, on any
12
<PAGE>
reproduction or translation of any Products, Documentation, or promotional
material, the Reseller agrees to reproduce Forte copyright notices intact.
8.4 Trademarks. "Forte" and any other trademarks and service marks
adopted by Forte to identify the Products and other Forte products and services
belong to Forte; the Reseller will have no rights in such marks except as
expressly set forth herein and a specified in writing from time to time.
Reseller's use of Forte's trademarks shall be under Forte's trademark policies
and procedures in effect from time to time. The Reseller agrees not to use the
trademarks "Forte," or any other mark likely to cause confusion with the
trademark "Forte" as any portion of the Reseller's tradename, trademark for the
Reseller's Application Packages, or trademark for any other products of the
Reseller. The Reseller shall have the right to use the trademark "Forte" and
other Forte trademarks solely to refer to Forte Programs, products and services.
The Reseller agrees with respect to each registered trademarks of
Forte, to include in each advertisement, brochure, or other such use of the
trademark. the trademark symbol "circle R" and the following statements:
_______ is a registered trademark of Forte Software Inc., Oakland,
California.
Unless otherwise notified in writing by Forte, the Reseller agrees,
with respect to every other trademark of Forte, to include in each
advertisement, brochure, or other such use of the trademark, the symbol "TM" and
the following statements:
_______ is a trademark of Forte Software Inc., Oakland, California.
The Reseller shall not market the Forte Programs in any way which
implies that the Forte Programs are the proprietary product of the reseller or
any party other than Forte. Forte shall not have any liability to the Reseller
for any claims made by third parties relating to the Reseller's use of Force's
trademarks.
8.5 Relationship between Parties. In all matters relating to this
Agreement, the Reseller will act as an independent contractor. The relationship
between Forte and the Reseller is that of licenser/licensee. Neither party will
represent that it has any authority to assume or create any obligation, express
or implied, on behalf of the party, nor to represent the other party capacity.
Nothing in this Agreement shall be construed to limit either party's right to
independently develop or distribute software which is functionally similar to
the other party's product, so long as proprietary information of the other party
is not used in such development.
8.6 Notice. All notices, including notices of address change, required
to be sent hereunder shall be in English and in writing and shall be deemed to
have been received ten (10) days after having been properly mailed, postage
prepaid, to the first address listed in the relevant Price List (if the
Reseller) or to the Forte address on the Price List (if to Forte).
To expedite order processing, the Reseller agrees that Forte may treat
documents faxed by the Reseller to Forte as original documents: nevertheless,
either party may require the other to exchange original signed documents.
13
<PAGE>
8.7 Severability. In the event any provision of this Agreement is held
to be invalid or unenforceable, the remaining provisions of this Agreement will
remain in full force and effect.
8.8 Waiver. The waiver by either party of any default or breach of
this Agreement shat not constitute a waiver of any other or subsequent default
or breach.
8.9 Export Administration and U.S. Government Rights. If the Products
are far use outside the United States, the Reseller agrees to comply fully with
all relevant regulations of the United States Department of Commerce and with
the United States Export Administration Act to assure that the Products and
media are not exported in violation of United States law. Products and
Documentation are provided with Restricted Rights. Use, duplication or
disclosure by the U.S. government is subject to restrictions as set forth in
Subparagraph (c)(1)(i) of the Rights in Technical Data and Computer Software
Clause at 252.227-7013.
8.10 Federal Government Sublicenses. If the Reseller grants a
Sublicense to the Unites States Government, the Programs shall be provided with
"Restricted Rights" and the Reseller will place a lend, in addition to
applicable copyright notices, on the documentation, and on the tape or diskette
label, substantially similar to the following:
8.11 Restricted Rights Legend. "Use, duplication or disclosure by the
Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of
the Department of Defense Regulations Supplement ("DFARS") 252.227-701, Rights
in Technical Data and Computer Software (October 1988) and Federal Acquisition
Regulations ("FAR") 52.227-14, Rights in Data General, including Alternate III
(June 1937), as applicable. Force Software Inc., 1800 Harrison Street, 15th
Floor, Oakland, California 94612."
8.12 Nonassignability and Binding Effect. Any attempted assignment of
the rights or delegation of the obligations under this Agreement shall be void
without the prior written consent of the nonassigning or nondelegating parry. In
the case of any permitted assignment or transfer of or under this Agreement,
this Agreement or the relevant provisions shall be binding upon, and inure to
the benefit of, the successors, executors, heirs, representatives,
administrators and assigns of the parties hereto.
8.13 Force Majeure. Neither party shall be liable to the other for its
failure to perform any of its obligations under this Agreement or any Exhibit,
except far payment obligations, during any period in which such performance is
delayed because rendered impracticable or impossible due to circumstances beyond
its reasonable control, provided that the party experiencing the delay promptly
notifies the other of the delay.
8.14 Remedies. The parties stipulate that the legal remedies of Forte
in the event of any default or threatened default by Reseller in the performance
of or compliance with any of the terms of this Agreement are not and shall not
be adequate, and that such terms may be specifically enforced by a decree for
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms of this Agreement or otherwise. No
remedies in this Agreement are exclusive of any other remedies but shall be
cumulative and shall
14
<PAGE>
include all remedies available hereunder or under any other written agreement or
in law or equity, including rights of offset.
8.15 Attorney's Fees. In the event that any legal action, including
arbitration, is required in order to enforce or interpret any of the provisions
of this Agreement, the prevailing party in such action shall recover all
reasonable costs and expenses, including attorney's fees, incurred in connection
therewith.
8.16 Inherently Dangerous Applications. The Products are not
specifically developed, or licensed for use in any nuclear, aviation, mass
transit, or medical application or in any other inherently dangerous
applications. The Reseller agrees to notify each Sublicensee of the Reseller of
this limitation. The Reseller hereby agrees, and each Sublicensee shall agree,
that Forte shall not be liable for any claims or damages arising from such use
if the Reseller or its Sublicensees use the Products for such applications. The
Reseller agrees to indemnify and hold Forte harmless from any claims for losses,
costs, damages, or liability arising out of or in connection with the use of the
Products in such applications.
8.17 Entire Agreement. This Agreement constitutes the complete
agreement between the parties and supersedes all previous agreements or
representations, written or oral, with respect to the Products and services
specified herein. This Agreement may not be modified or amended except in a
writing signed by a duly authorized representative of each party.
It is expressly agreed that any term and conditions of the Reseller's
purchase order shall be superseded by the terms and conditions of this Agreement
This Agreement shall also supersede the terms of any unsigned license agreement
included in a package for Forte-furnished microcomputer software.
15
<PAGE>
RESELLER APPLICATION SPECIFIC SUBLICENSE ADDENDUM A
This document (the "Addendum") is between Forte Software Inc. (Forte)
and Export Software International (the "Reseller") shall be governed by the
terms of the Reseller Agreement between the Reseller and Forte effective
____________, 19___ (the "Agreement") and the terms set forth below.
1. SUBLICENSES
1.1 Sublicense Programs and Terms. The Reseller may only Sublicense
Application Specific Programs for which the Reseller has previously acquired a
Supported Development License for the applicable Designated System. The Reseller
shall have the right to market and grant Sublicenses of Application Specific
Programs under the conditions set forth in the Agreement and under the following
restrictions:
(a) Sublicense Application Specific Programs with the Application
Program in the Application Package for use on Designated Systems to
Sublicensees. Each copy of the Application Specific Program distributed shall be
for the Sublicensee's own internal use in the Territory only on the Designated
System(s) limited to a maximum number of Users;
(b) Make and deliver to the Sublicensee a single copy of the
Application Specific Programs in the Application Package for each Sublicense
granted; and
The Reseller shall use all practical means available, both contractual
and technical, to control the restricted use of each Application Specific
Program Sublicense. If a Sublicensee uses the Application Specific Program
beyond the limited functionality described in Section 1.2 hereof, the Reseller
or Distributor shall immediately notify the Sublicensee of such unauthorized use
and if the Sublicensee fails to discontinue such unauthorized use following
notification either terminate the Sublicense or forward to Forte one hundred
percent (100%) of the applicable Full Use standard Product license fees in
effect at the time the payment is made to Forte together with a written request
by the Sublicensee for a Full Use Product license from Forte. Forte must
approve, in writing, the Sublicensee's request before continued use of the
Programs by the Sublicensee shall be deemed authorized.
1.2 Application Specific Licenses. For the purposes of this Addendum,
"Application Specific Licenses" shall mean Licenses which shall be limited for
use solely for the purpose of running the Resellers Application Program as
specified in the Application Package Attachment. The Application Specific
License may also be used to modify or customize the Resellers Application
Program to fit the Sublicensee's own particular operational needs. The
Application Specific License is limited for use only on the specified Reseller
Application Program and may not be used for any other development or deployment
purposes with the Reseller or Sublicensees.
1.3 Value-Added Package. For the purposes of this Addendum,
"Application Program(s)" shall mean the Reseller's value-added application
software, described in the attached Application Package Attachment with which
the Application Specific Programs are coupled. "Application Package(s)" shall
mean the Application Specific Programs coupled with the
<PAGE>
Application Programs. For purposes of the Agreement, the Application Program
shall be regarded as the Reseller's Value-Added Package.
1.4 Trial Sublicenses. The Reseller and its Distributors shall be
entitled to grant, at no charge, up to a maximum combined total of ten (10)
temporary Trial Sublicenses of the Application Package at any one time. Such
Sublicenses shall be far evaluation purposes only and shall be for a period not
to exceed thirty (30) days. The Reseller shall pay Forte Sublicense fees for any
Trial Sublicenses in excess of thirty (30) days. Each such Trial Sublicense
shall be Sublicensed under a Sublicense agreement.
1.5 Distributors. Forte grants the Reseller the right to appoint third
parties (. Distributors") to market and' Sublicense the Application Specific
Programs in the Territory, under the terms of the Agreement and this Addendum.
However, Distributors shall have no right to make copies of the Programs for
Sublicensing and shall obtain all such Programs from the Reseller. Each
Distributor shall execute a written agreement with the Reseller binding the
Distributor to provisions substantially similar to those contained in Sections
2.2, 2.3, 2.4, 5.1, 5.2, 6.1, 6.2, 6.3, 7.2, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7,
8.8, 8.9, 8.10, 8.11, 8.12, 8.13, and 8.15 of the Agreement and to those
contained in Sections 1 (except 1.5), 3, 4, 5, and 6 of this Addendum Each
obligation of the Reseller under such provisions shall also be applicable to
each Distributor. Each Distributor agreement shall also contain any other
provisions necessary for the Reseller to satisfy its commitments under the
Agreement. .
In addition, the Reseller shall keep executed Distributor agreements
and records of the Distributor information required under the Reseller's
Sublicense reports, and shall allow Forte to inspect such information as
specified under the Agreement. The Reseller will defend and indemnify Forte
against all damages to Forte caused by (i) the Distributors' failure to include
the required contractual terms set forth in Sections 2.2B of the Agreement in
each Sublicense agreement, and (ii) the Distributors' breach of any of the
applicable provisions required by in its Distributor agreement.
1.6 Documentation. The Reseller shall be responsible for providing
documentation for Sublicensees. The Reseller shall have the right to incorporate
portions of the Documentation into the Reseller's documentation subject to the
provisions of Section 8.3 of the Agreement
2. SUBLICENSE FEES
2.1 Sublicense Fees and Rate. For each copy of the Programs
Sublicensed by the Reseller, the Reseller agrees to pay Forte a Sublicense fee
equal to fifteen percent (15%) of the Reseller Application Package List Price.
The Sublicense fee shall be calculated effective the date the Application
Package is shipped.
As further specified in Section 6 of this Addendum, Sublicense fees
shall be due and payable with each applicable Sublicense report.
Within thirty (30) days after each anniversary during the Term of this
Addendum, Forte and the Reseller shall renegotiate the Sublicense fee percentage
rate set forth above based on the actual amount of cumulative Sublicense fees
received by Forte hereunder. If the parties
<PAGE>
have not agreed in writing on the Sublicense fee percentage rate for the next
annual period, the Reseller's right to Sublicense Application Specific Programs
shall cease until the parties hereto mutually agree in writing on a new
Sublicense fee rate percentage for Sublicenses of Application Specific Programs.
2.2 Price List for Sublicenses. Notwithstanding any other provision of
the Agreement, the applicable Reseller Price List for determining Sublicense
fees shall be the standard Forte Sublicense Fee rate as a percentage of the
Reseller Application Package List Price in effect at the time the Application
Package is Sublicensed.
Notwithstanding any other provision of this Agreement, if the Reseller
issues a written Sublicense quote and such quote accepted by the applicable
Sublicensee, for a period of ninety (90) days after the date of submission of
the quote to the Sublicensee, the Sublicense fee applicable to the Programs
identified in the quote shall be based on the Reseller Price List in effect on
such date.
2.3 Users. The Sublicense fee for a Program shall be based and priced
on the applicable User Level for the maximum number of Users for such Program,
as specified in the Reseller Price List. The Reseller shall have the right to
Sublicense Programs on any User basis specified in the Reseller Price List in
effect at the time the applicable Program is Sublicensed.
3. TERM
This Addendum shall become effective on the Effective Date of
this Addendum and shall be valid for three (3) years (the "Term") from the
Product Shipment Date, unless terminated as provided in the Agreement. For the
purposes of this Section, the term "Product Shipment Date" shall mean the
earlier of the date on which an Application Package is first shipped by the
Reseller or the first anniversary of the Effective Date of this Addendum. Any
renewal of this Addendum shall be subject to re-negotiation of terms and fees.
Unless the expiration or termination is for default by the Reseller, the
Reseller may continue using the release of the Programs then in the Reseller's
possession on the Designated Systems for which Development Licenses were
granted, solely for the purpose of continuing technical support for Sublicenses
granted prior to termination. Such continued use of the Programs shall be
subject to all the provisions of this Agreement, including, without limitation,
payment of the Technical Support Fees specified herein.
4. TERRITORY
The Reseller shall have the right to market and grant
Sublicenses of Programs in the United States only (the "Territory").
5. TECHNICAL SUPPORT
5.1 Technical Support for Sublicensees
(a) Installation. The Reseller or its Distributors will be
responsible for any assistance needed to install the Application Package at
Sublicensee sites.
<PAGE>
(b) Sublicensing Support. The Reseller is responsible for
providing all technical support, training and consultations to its Sublicensees
and Distributors. In consideration of the payments specified in Section 5.2, the
Reseller shall have the right to use the Forte Technical Support services
acquired for its Supported Development Licenses to provide technical support
services to its Sublicensees as further set forth in the Agreement. The Reseller
shall continuously maintain Forte Technical Support services for the Development
Licenses during the period during which Reseller provides technical support
services to any Sublicensees. Any questions from the Reseller's Sublicensees or
Distributors will be referred by Forte to the Reseller.
5.2 Technical Support Fees. For Technical Support services far
Sublicensees, each September 1 on an accrued basis, the Reseller agrees to pay
Forte annual Technical Support Fees for the cumulative Sublicenses ordered up
and through that years September 1 effective date. The Reseller agrees to pay
Forte annual Technical Support Fees for each Application Specific Program
Sublicensed under this Addendum, a previous Reseller Addendum, or a previous
distribution agreement between the parties hereto where the Sublicensee received
technical support services for such Application Specific Program during the
applicable support period (up and to September 1 on an annual basis).
Annual Technical Support Fees for a Program shall be equal to the
applicable Sublicense Technical Support percentage rate of Reseller cumulative
Sublicense Fees accrued to Forte up and to September 1 annually. Technical
Support Fees payable hereunder for a Application Specific Program are payable to
Forte annually, on September 1 of each year.
6. SUBLICENSE REPORTS
Within thirty (30) days of the last day of each month, the Reseller
shall send Forte a report detailing for the month:
(a) For each Sublicensed Application Package shipped during the prior
month, Sublicensee name, address, make/model and operating system of the
Designated System, date of shipment, Application Specific Programs shipped,
maximum number of licensed Users, whether the Sublicense is a Trial Sublicense,
and total Sublicense fees and Technical Support Fees due to Forte;
(b) For each Application Program licensed to end-users to be used with
previously installed software licensed by Forte in conjunction with the
Application Program, Sublicensee name, address, make/model and operating system
of the cpu, and date of installation; and
(c) The Distributor agreements executed during the prior month,
including names and addresses of the Distributors. The Reseller shall require
its Distributors to report this information to the Reseller on a monthly basis
and will include it in the report for the month in which the Reseller received
the information. The Reseller shall provide Forte with payment of all fees
required under the monthly report with such report in the form of a check made
out in the amount of such fees.
<PAGE>
7. ADDITIONAL LICENSES
During the Term, the Reseller may order production release versions of
Forte off-the-shelf Products available as production release as of the Effective
Date of this Addendum and listed on the Price List in effect as of such date.
The license fee for Development Licenses shall be equal to Forte's standard
Reseller list license fees in effect when an order is placed. The Reseller may
obtain Technical Support services form Forte for such Products under Forte's
applicable Technical Support fees and policies in effect when such services are
ordered.
The Effective Date of this Addendum shall be July 19, 1996.
Executed by Forte Software, Inc. Executed by Reseller:
Signature: Signature:
---------------------------- --------------------------
Name: Name:
------------------------------- --------------------------
Title: Title:
------------------------------- ---------------------------
Forte Software, Inc.
1800 Harrison Street, 15th Floor
Oakland, CA 94065
(510) 869-3400
Forte is a registered trademark of Forte Software, Inc.
<PAGE>
ADDENDUM C to
VALUE-ADDED RESELLER LICENSE AND SERVICES AGREEMENT
BETWEEN Vastera, Inc. (formerly Export Software International)
AND
Forte Software, Inc.
This Addendum C shall amend the value-added Reseller License
and Services Agreement dated July 19, 1996 and Reseller Application Specific
Sublicense. Addendum A thereto (collectively, the "Agreement") between Vastera
Inc. (formerly Export Software International) ("Reseller") and Forte Software,
Inc. ("Forte") as of the Effective Date indicated below. Other than the
amendments listed below, the terms and conditions of the Agreement remain
unchanged and in full force and. effect. In the event of any conflict between
the Agreement and this Addendum C, Addendum C shall govern. Capitalised terms
herein shall have the same meaning as in the Agreement, unless otherwise
indicated.
1. Reseller shall pay Forte a nonrefundable license fee of $750,000 payable
as follows: $250,000 due upon execution of the agreement, $250,000 due on or
before March 1, 1999 and $250,000 tine on or before June 1, 1999. Upon execution
of this Addendum, such payment obligation is noncancellable. In consideration
for such license fee:
A. Forte agrees to extend the term of the Agreement for 3 years from
the Effective Darn below ("Extended Term").
B. Reseller shall have a license for 50 additional Designated
Developers to be used in accordance with the Agreement.
C. The Sublicense fee rate of Section 2.1 will lx reduced as provided
below.
2. Replace the fast paragraph of Section 2.1 with the following:
"For each copy of the Application Package Sublicensed by the Reseller
to a New Customer for use worldwide, the Reseller agrees to pay Forte a
Sublicense fee equal to two percent (2%) of the Reseller's Base System List
Price. The Sublicense fee will be based on the number of licensed users of the
Base System up to a maximum of 8 users. The Sublicense fee shall be calculated
effective the dace the Application Package is delivered to the Sublicensee.
For each copy of the Base System Sublicensed by the Reseller to an
Existing Customer, the Reseller agues to pay Forte a Sublicense fee equal to two
percent (2%) of the net license fees received from such Existing Customer for
such Sublicense."
Definition of Base Product -- Base product will be defined as the
Vastera base product of module for Import Management and for Export Management,
or if the two should ever be combined it will be deed as the Base module price
for the combination. Base shall exclude current add-on's such as, but not
limited to; any (current or future) country modules, technical extensions such
as email, fax or Internet capabilities, languages, 3rd party interfaces,
additional users beyond, the initial 8, or any other capabilities not packaged
and priced as part of the Base module(s). Royalty will be payable should Vastera
develop any new products based on the Forte product.
<PAGE>
Where no legal license has transferred including but not limited to
demonstration copies, outsourcing, or service bureau operation no payment to
Forte shall be due. In the event of a service bureau the company offering the
service must have executed a valid royalty bearing agreement. If they have not,
a royalty which is equal to the than current import, export or combined price
will be assessed and payable to Forte. If Vastera should license software on a
per transaction Basis to an end user Vastera shall pay 2 % of the then current
list price for export, import or the combination of the two.
3. Distributors/Resellers
Vastera resellers and their Distributors shall have the right to
distribute Forte products along with our product under a legally binding license
agreement protecting both Vastera and Forte's proprietary interest and the
reporting by the reseller/distributor to Vastera shall be sufficient reporting
for Vastera to Forte. Royalty will be paid on the net revenue (up to 50%
discount) to Vastera relating to the Base product module(s) as defined above and
up to 8 users.
4. Forte agrees to list Vastera, Inc. an additional assured on their escrow
agreement and provide Vastera documented evidence.
Forte represents that it has deposited with an escrow agent
copies of the source code and reasonable technical documentation for all
Products licensed under the Agreement, pursuant to a Technology Escrow Agreement
with such escrow agent. Upon Reseller's execution of an instrument enrolling
Reseller as a party to the Technology Escrow Agreement, Reseller shall be
entitled to receive a copy of the escrowed source code and, documentation from
the escrow agent in the event Forte files for bankruptcy, ceases business
operations generally or ceases to make available maintenance or support services
for the then-current version of the licensed Product. Forte shall pay all
relevant escrow fees to the escrow agent arid reserves the right to invoice
Reseller for reimbursement of such fees. In the event Reseller receives the
escrowed source code and documentation, Reseller shall have the royalty-free,
nonexclusive, perpetual right to use such source code solely for internal use in
maintaining and supporting the licensed Products, All such source code, as
delivered or modified, shall constitute Confidential Information of Forte for
purposes of the Agreement, and Reseller shall not disclose the source code or
its modifications to others or permit others to copy the source code or
modifications thereof. Forte shall update the deposited material promptly after
each major update to the licensed Product."
The parties have executed this Addendum C as of __________, 1998 (the
"Effective Date").
Executed by Vastera Software Executed by Forte Software, Inc.
Signature: Signature:
-------------------------- -----------------------
Name: Name:
------------------------------ ---------------------------
Title: Title:
------------------------------ ----------------------------
<PAGE>
Exhibit 10.1
ADDENDUM D to
VALUE-ADDED RESELLER LICENSE AND SERVICES AGREEMENT
between
Vastera, Inc. (formerly Export Software International)
and
Forte Software, Inc.
This Addendum D shall amend the Software License and Services Agreement dated
July 19, 1996, and Reseller Application Specific Sublicense Addenda A, B and
C thereto, (collectively, the "Agreement") between Vastera, Inc. (formerly
Export Software International) ("Reseller") and Forte Software, Inc.
("Forte") as of the Effective Date indicated below. Other than the amendments
listed below, the terms and conditions of the Agreement remain unchanged and
in full force and effect. In the event of any conflict between the Agreement
and this Addendum D, Addendum D shall govern. Capitalized terms herein shall
have the same meaning as in the Agreement, unless otherwise indicated.
1. Reseller shall pay Forte an irrevocable, nonrefundable license fee of
$300,000 (Three Hundred Thousand Dollars) due and payable upon execution
of this Addendum. In consideration for payment of such license fee:
A. the Term of the Agreement and any related addendums shall be extended
for thirty months following the Effective Date of this Addendum
("Extended Term");
B. Forte grants Reseller a nonexclusive, limited, paid-up license to
use the MQ Adaptor binary code software pursuant to section 2.1 of
the Agreement on any currently supported platform on up to up to
twenty-five CPUs. Forte will provide one master copy of the MQ
Adaptor and related user documentation which may be copied by
Reseller up to the licensed number of CPU's;
C. Reseller is excused from the payment of the 2% license fees due under
Addendum C, Subsection 2 during the Extended Term, provided however
that all record keeping and reported requirements shall remain in
full force and effect;
D. Maintenance fees for the MQ Adaptor licensed hereunder shall be
charged on an annual basis in the amount of $13,500. This is
calculated at 18% of 1 MQ Adaptor, Class 6/7 Server, list price of
$75,000; and
E. During the Extended Term, Technical Support Fees under the Reseller
Application Specific Sublicense Addendum A, Section 5.2 shall be as
follows:
Year 1 - $12,000 due and payable on the Effective Date hereof;
Year 2 - $12,000 due and payable on the first anniversary of the
Effective date hereof; and
Balance of Extended Term: $6,000 due and payable on the second
anniversary of the Effective Date hereof.
The parties have executed this Addendum D as of June 23, 2000 (the "Effective
Date").
Vastera, Inc. Forte Software, Inc.
Signature: /s/ Philip J. Balsamo Signature:
--------------------- -----------------------
Name: Philip J. Balsamo Name:
-------------------------- ----------------------------
(Please Print) (Please Print)
Title: CFO Title:
------------------------- ---------------------------