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EXHIBIT 10.50
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
