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Exhibit 10.61
[GUPTA LOGO]
OEM SOFTWARE LICENSE AGREEMENT
(SIGNATURE PAGES)
PREAMBLE: The following are the Signature Pages of an agreement
("Agreement")
which consists of (i) the General Terms and Conditions and (ii)
these Signature
Pages. The documents are referenced together by the contract
number and are to
be taken together and not separately. THIS AGREEMENT SHALL BE
EFFECTIVE AS OF
THE "EFFECTIVE DATE" SPECIFIED BELOW ONLY WHEN THESE SIGNATURE
PAGES ARE
EXECUTED BY BOTH PARTIES AND ALL PAGES OF BOTH THE GENERAL TERMS
AND CONDITIONS
AND THESE SIGNATURE PAGES ARE INITIALED WHERE INDICATED BY BOTH
PARTIES.
IN CASE OF CONFLICT BETWEEN THE TERMS AND CONDITIONS SPECIFIED
IN THE SIGNATURE
PAGES BELOW AND THE GENERAL TERMS AND CONDITIONS, THE TERMS AND
CONDITIONS OF
THESE SIGNATURE PAGES SHALL CONTROL.
NOTATIONAL CONVENTION: Provisions of the General Terms and
Conditions shall be
referred to as "Section X.Y(z) GTC". Provisions of these
Signature Pages shall
be referred to as "Item A.B(c) SP"
1. UPS
"UPS" shall mean United Parcel Service General Services Co., a
Delaware
corporation with its principal place of business located at 55
Glenlake Pkwy.,
N.E., Atlanta, GA 30328, together with its parent company and
direct and
indirect subsidiaries of such parent company, (collectively
"UPS").
2. EFFECTIVE DATE OF AGREEMENT: September 29,1994
3. TERMINATION DATE: December 31, 1999, subject to the following
agreements and
understandings:
(b) UPS may, at its option, notify GUPTA of its desire to
acquire the rights to
use, sublicense and distribute additional Program Copies (over
and above those
used, distributed and/or sublicensed by UPS during the term of
this Agreement)
for a maximum two-year period (ending December 31, 2001) beyond
the expiration
date of the Agreement subject to the payments specified in Item
5(c) SP below;
(c) UPS shall have the option to extend the maintenance,
support, update and
upgrade provisions of this Agreement through December 31, 2004
subject to the
payments specified in Item 6(e) SP below.
4. PROGRAMS [LIST]: SQLBase Multitasking Engine For Windows
Report Windows (Component of GUPTA Quest)
Quest Query Activity (Component of GUPTA Quest)
SQLBase Server (all versions, subject to 8(b) below)
UPS_____ GUPTA_____
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5. LICENSE FEE PAYMENTS:
(a) As provided in Section 4.1 GTC and solely in consideration
for the rights
granted in Section 3.1 GTC, UPS shall pay to GUPTA upon
execution of this
Agreement the nonrefundable, noncontingent sum of $2,050,000
(Two million fifty
thousand U.S. dollars), such payment to be made by UPS to GUPTA
on or before
September 29, 1994. Such payment shall be considered payment in
full for UPS's
use, sublicensing and/or distribution of the Programs as
provided in the
Agreement through December 31, 1997.
(b) GUPTA shall give UPS written notice at least ninety (90),
but not more than
one hundred and twenty (120), days prior to December 1, 1995, of
UPS's ability
to extend the Agreement as provided herein. Provided that UPS
notifies GUPTA on
or before December 1, 1995 of its intent to extend the Agreement
for an
additional one (1) year period (through December 31, 1998), then
UPS shall make
an additional payment of $1,400,000 (one million four hundred
thousand U.S.
dollars) to GUPTA in two installments:
(i) $700,000 on or before January 15, 1996; and
(ii) $700,000 on or before January 15, 1997
Such payment shall be considered payment in full for UPS's use,
sublicensing
and/or distribution of the Programs as provided in the
Agreement, for the period
January 1, 1998 through December 31,1998.
(c) Provided that UPS notifies GUPTA no later than ninety (90)
days prior to the
expiration date of this Agreement (December 31, 1997 or December
31, 1998 as
applicable) of its intent to acquire the rights to use,
sublicense and
distribute additional Copies of the Programs, then UPS may
acquire such Copies
in minimum increments of 10,000 Copies at $20 per copy, payment
to be made by
UPS to GUPTA in advance.
6. MAINTENANCE FEE:
(a) In consideration for the support and maintenance services,
upgrade and
update rights for the period ending December 31, 1995, UPS shall
pay the sum of
$125,000 to GUPTA on or before September 29, 1994.
(b) In consideration for the support and maintenance services,
upgrade and
update rights for the period beginning January 1, 1996 and
ending December
31,1996, UPS shall pay the sum of $150,000 to GUPTA on or before
September 29,
1994.
(c) In consideration for the support and maintenance services,
upgrade and
update rights for the period beginning January 1, 1997 and
ending December 31,
1997, UPS shall pay the sum of $175,000 to GUPTA on or before
September 29,
1994.
(d) In the event that UPS exercises its option to extend the
Agreement through
December 31 1998 (as provided in Item 5(b) SP above) and in
consideration for
the support and maintenance services, upgrade and update rights
for the period
beginning January 1,1998 and ending December 31, 1998, UPS shall
pay the sum of
$200,000 to GUPTA in two installments, as follows:
(i) $100,000 on or before January 15, 1996; and
(ii) $100,000 on or before January 15, 1997
UPS_____ GUPTA_____
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(e) MAINTENANCE CONTINUATION: Provided that this Agreement has
not been renewed
or extended, UPS shall have the right to extend its support,
maintenance update
and upgrade rights subsequent to the expiration of this
Agreement on a yearly
basis through December 31, 2004. Commencing with calendar year
1997 and for each
year that UPS extends this Agreement or its support, maintenance
update and
upgrade rights, GUPTA shall give UPS written notice at least
ninety (90), but
not more than one hundred and twenty (120), days prior to
December 31 st of each
applicable year, of UPS's ability to extend its support,
maintenance update and
upgrade rights as provided herein. In order to exercise this
right, for each
applicable year, UPS shall notify GUPTA in writing at least
sixty (60) days
prior to the beginning of such year. In consideration for such
support,
maintenance, update and upgrade rights in the event that such
option is elected
UPS shall pay GUPTA in advance and no later than January 1 of
the applicable
year as follows:
(i) If the first year of such continuation is calendar year 1998
the fee shall
be $200,000;
(ii) If the first year of such continuation is calendar year
1999, then the fee
shall be $220,000;
(iii) For years subsequent to the first continuation year, the
fee shall be the
lesser of (i) the previous year's fee raised by ten percent
(10%) or (ii) 6% of
the cumulative fees paid by (or due to be paid by) UPS to GUPTA
for Program
Licenses as of September 30 (Items 5(a), 5(b) and 5(c) SP above)
of the
immediate prior year; provided, however, that the fee shall not
be less than the
fee for the immediately preceding calendar year.
7. UPS PRODUCT: For purposes of this Agreement, the "UPS
Product" shall mean the
UPS MaxiShip(R) and a related family of shipping, manifesting,
tracking, and
receiving applications, and their respective successors as
installed for use by
a UPS customer. It is understood by UPS and GUPTA that
applications outside this
family are not covered by this Agreement.
8. OTHER TERMS:
(a) INTERNAL USE LICENSE: Internal use by UPS and its authorized
contractors and
consultants of the Programs is covered by the license fees paid
by UPS at no
additional charge provided that such use is related to the
development and
support of the UPS Product. During the term of this Agreement,
and provided that
all license fees have been paid, UPS shall have the right to
copy and use
internally the Programs as reasonably necessary to support the
current and
future development efforts of Products; training of UPS
personnel in the UPS
Products; UPS Help Desk copies for first and second level
support of the UPS
Products; and external sales and internal demonstrations of the
UPS Products.
All such use shall respect GUPTA's and GUPTA's licensors
intellectual and other
proprietary rights in and to the Programs as provided in this
Agreement.
Internal use by UPS of the Programs or other GUPTA products for
other purposes
is subject to a separate agreement between UPS and GUPTA.
(b) SQLBASE SERVER PROGRAM USAGE: UPS agrees and acknowledges
that the License
Fees paid by UPS hereunder are based on the forecast by UPS that
no more than
20% of its overall user base for the UPS Product(s) shall use or
access the
SQLBase Server Programs. UPS agrees to measure such usage and to
report to GUPTA
on or before September 30, 1996 the exact percentage such user
base accessing
the SQLBase Server Programs as of June 30, 1996. If such
percentage exceeds the
20% forecast UPS agrees to negotiate in good faith with GUPTA no
later than
December 31, 1996 the additional compensation, if any, for such
excess
percentage.
UPS_____ GUPTA_____
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(c) MODIFICATION TO THE QUEST QUERY ACTIVITY PROGRAM:
Independent from UPS and
GUPTA other rights and obligations under this Agreement, GUPTA
agrees to
undertake a minor modification of the Quest Query Activity
Program to ease UPS's
integration of such Program into the UPS Product. Such
modification shall
involve providing a C++ wrapper to such Quest Query Activity
Program and provide
the following functionality:
(i) C++ class tied to Microsoft Foundation Class using the query
engine
dynamic link library. This class will be able to drive the GUPTA
Report
engine class; and
(ii) C++ class tied to Microsoft Foundation Class to provide
query design
and table window preview. This class will integrate into the UPS
Product
as an MDI child window. It would also allow the file save
dialogue to be
overridden and allow query access to be restricted to specific
tables and
columns.
GUPTA shall use all commercially reasonable efforts to provide
such modification
to UPS before December 31, 1994. In consideration for GUPTA's
separate agreement
to undertake such work, UPS agrees to pay GUPTA $100,000 net
thirty (30) days
from delivery to UPS of such modification; provided, however,
that if GUPTA
fails to deliver such modification to UPS on or before January
5, 1995, UPS
shall not be obligated to acquire the modification in which case
GUPTA shall be
relieved of any obligation to provide such modification to UPS.
Such
modification shall remain GUPTA's sole and exclusive property
and shall have the
same licensing rights in the modification as it does to the
Programs, (i.e.,
licensed by GUPTA to UPS for use, sublicensing and distribution
in conjunction
with its rights to the Programs under this Agreement)
(d) TECHNICAL COOPERATION: GUPTA shall use all commercially
reasonable efforts
to incorporate UPS Product test scripts as part of GUPTA's
quality assurance
efforts for the Programs.
IN WITNESS WHEREOF, the parties hereby confirm that this
Agreement is effective
at the date set forth above and that all terms and conditions
have been agreed
to:
UPS: GUPTA:
By: /s/ Jerome F. Avrelio By: /s/ Richard M. Noling
-------------------------------
-----------------------------
Name: Jerome F. Avrelio Name: Richard M. Noling
Title: I.S. Administrations Manager Title: Senior Vice President
& CFO
Date: 9/23/94 Date: 9/21/94
UPS_____ GUPTA_____
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EXHIBIT A
TRADEMARK USE POLICY
GUPTA CORPORATION
GUIDELINES FOR DISTRIBUTORS, OEMS, RESELLERS, BUSINESS
PARTNERS
AND OTHER LICENSEES REGARDING USE OF GUPTA'S TRADEMARKS,
SERVICE MARKS, TRADE NAMES AND LOGOS IN YOUR PRODUCT
AND MARKETING MATERIALS
EFFECTIVE JANUARY 1, 1994
Gupta claims trademark and service mark rights in the stylized
"GUPTA" and
"GUPTA POWERED" logos and all of its product names. Gupta also
claims copyrights
in each of its products, manuals and associated packaging.
Your agreement with Gupta does not give you any ownership rights
in our
trademarks, service marks or copyrights. All trademarks, service
marks, trade
names and logos under which Gupta markets or promotes its
various products and
services are and shall remain the exclusive property of Gupta
Corporation. You
only have the limited licenses granted in your agreement. All
goodwill arising
out of your use of our marks pursuant to your agreement inures
to Gupta's
benefit. Your limited right to use the Gupta marks immediately
ceases upon
termination or expiration of your agreement with Gupta.
As part of your relationship with Gupta, you are required to
follow the
guidelines set out below regarding trademarks and copyrights.
Gupta intends to
update these Guidelines from time to time. You must immediately
use best efforts
to update your advertising materials to conform to the updated
Guidelines and in
any event must do so within sixty (60) days of Gupta's release
of an update to
the Guidelines.
1. WHAT YOUR UNITED STATES MATERIALS MUST INCLUDE REGARDING
GUPTA'S FEDERALLY
REGISTERED MARKS
Gupta is the owner or exclusive authorized user of the
federally
registered marks set out below. You may use these marks in your
advertising,
subject to the limitations below. You may use any font you wish,
you may use
UPPER CASE only (NOTE: CERTAIN LETTERS MUST BE LARGER THAN
OTHERS IF YOU USE
UPPER CASE) or you may use UPPER CASE and lower case (NOTE:
CERTAIN LETTERS MUST
ALWAYS BE IN UPPER CASE). Set out below is the manner in which
you must depict
Gupta's federally registered marks.
UPS_____ GUPTA_____
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IF UPPER CASE IS USED:
QUEST(R)
SQLBASE(R)
SQLGATEWAY(R)
SQLHOST(R)
SQLROUTER(R)
SQLTALK(R)
SQLWINDOWS(R)
IF UPPER CASE AND LOWER CASE IS USED:
Quest(R)
SQLBase(R)
SQLGateway(R)
SQLHost(R)
SQLRouter(R)
SQLTalk(R)
SQLWindows(R)
When referring to these names in printed materials, you
must:
(1) Identify the mark in either UPPER CASE or UPPER CASE and
lower case as
shown above and include the (R) symbol in the manner
depicted
above at least once in the first most prominent usage of the
mark.
(2) Include the following statement:
"[insert mark] is a United States registered trademark of
Gupta Corporation." (NOTE: IN THE CASE OF SQLWINDOWS, THIS
STATEMENT MUST STATE "SQLWINDOWS IS A REGISTERED MARK
EXCLUSIVELY LICENSED TO GUPTA CORPORATION").
(3) You may use any font you wish but the first letter (and some
other
letters) in these names must appear capitalized in UPPER CASE
to
make it recognizable from the surrounding text.
II. WHAT YOUR UNITED STATES MATERIALS MUST INCLUDE REGARDING
GUPTA
UNREGISTERED MARKS
Gupta is the owner or exclusive authorized user of the
unregistered marks
set out below. You may use these marks in your advertising,
subject to the
limitations below. You may use any font you wish. You may use
UPPER CASE or you
may use UPPER CASE and lower case (NOTE: CERTAIN LETTERS MUST
ALWAYS BE IN UPPER
CASE). Set out below is the manner in which you must depict
Gupta's unregistered
marks.
UPS_____ GUPTA_____
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IF UPPER CASE IS USED:
EDITWlNDOWS(TM)
FAST FACTS(TM)
GUPTA(TM)
QUICKOBJECTS(TM)
SQLCONSOLE(TM)
TEAMWINDOWS(TM)
IF UPPER CASE AND LOWER CASE ARE USED:
EDITWindows(TM)
Fast Facts(TM)
GUPTA(TM)
QuickObjects(TM)
SQLConsole(TM)
TEAMWindows(TM)
When referring to these names in printed materials, you
must:
(1) Identify the mark in either UPPER CASE or UPPER CASE and
lower case as
shown above and include the (TM) or (SM) symbol (NOTE: DO NOT
USE A
CIRCLE) in the manner depicted above at least once in the first
most
prominent usage of the mark.
(2) Include the following statement for all the unregistered
marks above:
"[insert mark] is a trademark of Gupta Corporation." (NOTE:
IN
THE CASE OF EDITWINDOWS AND TEAMWINDOWS THIS STATEMENT MUST
STATE "[INSERT MARK] IS A TRADEMARK EXCLUSIVELY LICENSED TO
GUPTA CORPORATION").
(3) You may use any font you wish but the first letter (and some
other
letters) in these names must appear capitalized in UPPER CASE
to
make it recognizable from the surrounding text.
Gupta may obtain federal registrations of all or some of the
currently
unregistered marks. You will be advised of any such registration
in an update to
these Guidelines. You then must identify the newly registered
mark in the manner
described above under II.
III. USE OF GUPTA MARKS IN MATERIALS DISTRIBUTED OUTSIDE THE
UNITED STATES
(1) You may not use any Gupta mark or name in printed
advertising or other
materials distributed outside the United States unless you
are
permitted to distribute in such jurisdictions pursuant to
your
agreement with Gupta.
UPS_____ GUPTA_____
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(2) If you are permitted to distribute outside the United
States, you may
only advertise Gupta products in the jurisdictions noted in
your
agreement with Gupta.
(3) Gupta has international registrations for several of its
marks and is
in the process of applying for registration for many other marks
in
certain foreign jurisdictions.
(4) When referring to a Gupta mark in printed advertising or
other
materials intended solely for distribution outside the
United
States, you must:
(a) Include the (R) symbol as applicable in the manner
depicted in I.
(b) Include the (SM) or (TM) symbol as applicable in the
manner depicted in II.
(c) Include the following statement for all marks except for
SQLWindows, EDITWindows, and TEAMWindows:
"[insert mark] is a [and where applicable 'registered']
trademark of Gupta Corporation."
(d) Include the following statement for SQLWindows,
EDITWindows, and TEAMWindows:
"[insert mark] is a [and where applicable 'registered']
trademark exclusively licensed to Gupta Corporation."
IV. OUR LOGOS
(1) "GUPTA" Company Logo: Upon request and provided you have
been
authorized to use the "GUPTA" logo, We will provide you with
camera-ready art of the latest version of the logo. You must
discontinue use of all previous versions of our logo. The
following
design rules will apply to the use of the GUPTA logo:
(a) The GUPTA logo must be accurately shown in standard
proportions and placement and must NEVER be distorted,
superimposed, reversed, outlined or rotated;
(b) The GUPTA logo must not be incorporated into any other
symbol
or mark or be used as a border on any ad;
(c) If the GUPTA logo is used on store signage, stationery
or
business cards, care must be taken to create the overall
impression that the advertising is for Gupta products and/or
services, not that you are Gupta or that the logo belongs to
you.
(2) "GUPTA POWERED" Logo: If you are interested in using this
logo and
satisfy the criteria, you must enter into a separate Logo
License
Agreement with Gupta.
UPS_____ GUPTA_____
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V. GENERAL RULES FOR PRINTED MATERIALS
(1) The marks must be used as an adjective to identify Gupta's
products
(trademarks) or services (service marks). They should never be
used
as a noun or verb; the mark must modify a product or
service.
For example: You may state You may not state
SQLBase(R) Server SQLBase(R) [by itself]
(2) The marks should never appear in the plural or
possessive:
For example: You may state You may not state
SQLBase(R) Server's SQLBase(R)'s
(3) The marks should never be abbreviated or made into an
acronym:
For example: You may state You may not state
SQLWindows(R) Software SQLWin Software
(4) The marks or the Gupta company name should never be used as
or
incorporated into another company's name (whether a corporate
name
or d/b/a) to avoid confusion in the marketplace
For example: You may not state
SQLWindows Solutions, Inc.
XYZ Gupta Ltd.
(5) You may not at any time or in any way indicate ownership of
or any
rights in Gupta's marks or logos. For example, you MAY NOT
say
"SQLBase Server for NetWare by [name of distributor, OEM,
Reseller
Business Partner or other licensee]."
(6) You may not attached, remove or disfigure any Gupta marks on
our
software products or advertising literature and may not attach
any
additional marks to our software products or advertising
materials.
You may not attached the Gupta marks to any other products
other
than our products unless you have a specific license agreement
to do
so.
(7) You may not alter or remove or obscure any copyright or
other
proprietary notices on or in our products or related
documentation
or materials.
(8) You may not use any Gupta mark or logo as part of your
business name
and must at all times conduct business only under your own
name.
(9) You may not use Gupta's marks and logos in violation of any
federal,
state or local law, or any regulation or order of any
administrative
agency or governmental authority.
UPS_____ GUPTA_____
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(10) You may not use Gupta's trademarks, service marks, trade
names or
logos in a manner which is misleading in any manner (e.g.,
price,
product features or specifications).
(11) You may not use Gupta's marks and logos to advertise
another
vendors' products -- even if they are compatible with
Gupta's
products. Also, they may not be used for general promotion that
are
not specifically related to Gupta products.
VI. COMPLIANCE
(1) Gupta reserves the right to require you to submit to Gupta
for its
prior approval any and all of your advertising and sales
literature
which refer to Gupta or include any of the Gupta marks, trade
names
or logos. If Gupta has not notified you of its disapproval of
such
materials within five (5) business days or receipt, the
materials
shall be deemed approved. You must make all modifications to
the
materials deemed necessary by Gupta to protect the goodwill of
the
Gupta marks, trade names and logos.
(2) Misuse of our marks, logos and copyrights is a violation of
your
agreement with Gupta.
(3) IF THERE ARE ANY QUESTIONS RELATING TO THE MATERIAL
CONTAINED WITHIN
THESE GUIDELINES, CONTACT THE LEGAL DEPARTMENT, GUPTA
CORPORATION
(415) 321-9500.
UPS_____ GUPTA_____
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Exhibit B
GUPTA STAR Support Services to UPS
For purposes of this Agreement, and subject to payment by UPS of
the Maintenance
Fees as provided in Item 6 SP above, GUPTA shall provide UPS
with the following
services:
1. Two designated senior support contacts available during the
Prime Coverage
hours set forth in 3 below, subject to personnel changes upon
written
notification by GUPTA to UPS.
2. Two business hour maximum response time to all support
calls.
3. Prime coverage hours from 6:00 A.M. to 6:00 P.M. Pacific
Time, Monday through
Friday, excluding holidays. Off hours are 3:00 A.M. to 6:00 A.M.
Pacific Time
and 6:00 P.M. to 9:00 P.M. Pacific time, Monday through Friday,
excluding
holidays, where senior technical support representatives may be
contacted for
emergency situations (i.e., Priority 1 problems as defined in
Exhibit C) via a
designated telephone or beeper number.
4. Priority escalation (according to the defined Escalation
Procedures and Call
Priorities set forth in Exhibit C) and product update service
(covered products
only).
5. Monthly conference calls and tracking and bug status
reports.
6. Periodic management conferences.
The approach is defined to provide UPS with access to a team of
support
professionals knowledgable in the Programs and UPS's use thereof
and to expedite
resolution of problems.
UPS_____ GUPTA_____
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Exhibit C
Escalation Procedures and Call Priorities
It is important for customers to understand the call flow
process within the
Technical Services organization and throughout the company. This
escalation
process is designed to make sure that support resources are
leveraged to best
serve our customers (i.e., calls) with the severest problems
given immediate
attention. Below are two charts outlining the escalation
procedure followed for
any call placed into a GUPTA Technical Support facility. The way
in which a
specific situation is handled depends on the severity of the
call logged into
Technical Services. GUPTA's call priority rankings are detailed
in the first
chart. GUPTA will use its commercially reasonable efforts to
escalate calls
throughout the organization as reflected in the second
chart.
<TABLE>
<CAPTION>
Priority Description
----------
--------------------------------------------------------------
<S> <C>
Priority 1 Production system is down and unable to continue
Priority 2 Development system is down and unable to continue
Priority 3 Installation problem or serious software problem that
not stop
production or does development
Priority 4 Less serious software problem or product usage
question or
documentation bug
</TABLE>
<TABLE>
<CAPTION>
Priority 1 Priority 2 Priority 3 Priority 4
Steps Call Call Call Call Escalation Path
----------------------- ------------ --------------
------------- ------------ ---------------
<S> <C> <C> <C> <C> <C>
1 . Initial Customer Within 2 Within 2 Within 2 Within 2 Star
Manager
Contact hours hours hours hours
2. Diagnosis/Recreation
Determine if bug or
user error - may
involve Engineering
at this point
2a. Frequency of At Least: At Least At least At least Star
Manager
customer contact: every other once every
day 5 days
Up and running Daily Every other
day
Not up and Twice Daily
running Daily
2b. Backline TSE Within 5 days Within 10 Star Manager
involved days
Up and running Within 1 day Within 2 days Backline Manager
Not up and running Within 4 Within 1 day
hours
2c Escalate after Star Manager
Up and running Within 1 day Within 3 days Backline Manager
Not up and running Within 1/2 Within 1 day Engineering
day
VP Tech Services.
</TABLE>
UPS_____ GUPTA_____
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[GUPTA LOGO]
OEM SOFTWARE LICENSE AGREEMENT
(GENERAL TERMS AND CONDITIONS)
PREAMBLE: The following are the general terms and conditions of
an agreement
("Agreement") which consists of (i) these General Terms and
Conditions and (ii)
the Signature Pages. The documents are referenced together by
the contract
number and are to be taken together and not separately. THIS
AGREEMENT SHALL BE
EFFECTIVE AS OF THE "EFFECTIVE DATE" SPECIFIED ON THE SIGNATURE
PAGES ONLY WHEN
THE SIGNATURE PAGES ARE EXECUTED BY BOTH PARTIES AND ALL PAGES
OF BOTH THE
GENERAL TERMS AND CONDITIONS AND THESE SIGNATURE PAGES ARE
INITIALED WHERE
INDICATED BY BOTH PARTIES.
IN CASE OF CONFLICT BETWEEN THE TERMS AND CONDITIONS SPECIFIED
IN THE GENERAL
TERMS AND CONDITIONS BELOW AND THOSE OF THE SIGNATURE PAGES, THE
TERMS AND
CONDITIONS OF THE SIGNATURE PAGES SHALL CONTROL.
NOTATIONAL CONVENTION: Provisions of these General Terms and
Conditions shall be
referred to as "Section X.Y(z) GTC". Provisions of the Signature
Pages shall be
referred to as "Item A.B(c) SP".
1. PURPOSE OF THIS AGREEMENT
This Agreement is between GUPTA Corporation ("GUPTA"), a
California corporation,
with offices at 1060 Marsh Road, Menlo Park, CA 94025 and United
Parcel Service
General Services Co., 55 Glenlake Pkwy., N.E., Atlanta, GA 30328
("UPS"). GUPTA
is engaged in the business of designing and developing database
management
software and has developed proprietary software programs
collectively called
"SQL" and UPS wishes to incorporate one or more of such software
programs into
UPS Products as provided herein. GUPTA and UPS desire to
establish the terms and
conditions under which GUPTA will provide such software programs
for
manufacturing and integration into UPS Product(s) for subsequent
sublicensing
and distribution by UPS and its distributors to end users for
their own internal
use and to UPS employees and others for development, training,
demonstration,
and other internal uses related to the UPS Product(s).
2. CERTAIN DEFINITIONS
2.1 "Distributor" shall mean a UPS affiliate, value added
reseller, dealer,
software developer or other third party which is granted certain
non-exclusive
rights by UPS in accordance with the terms of this Agreement
such as the right
to distribute the Programs.
2.2 "End User" shall mean an individual, business or
governmental customer of
UPS (or a Distributor) who acquires a valid license to use the
UPS Product (and
the Programs as an embedded component) for personal or internal
business
purposes in accordance with the End User License Agreement, and
not for transfer
to others.
2.3 "End User License Agreement" shall mean the standard UPS
license agreement
accompanying each copy of the UPS Product which specifies the
terms and
conditions of the license to use the UPS Product and the
Programs as an embedded
component.
UPS_____ GUPTA_____
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2.4 "Maintenance Release(s)" shall mean any modification of the
Programs which
is denoted by GUPTA by changing a number to the right of the
second decimal
point in then-current version number, e.g., a change from
version 3.1.1 to
3.1.2.
2.5 "Major Version Release(s)" shall mean any modification of
the Programs which
is denoted by GUPTA by changing a number to the left of the
first decimal point
in then-current version number, e.g., a change from version
3.1.2 to 4.0.
2.6 "Marks" shall mean the trademarks, service marks and logos
of GUPTA and /or
its licensors identified in the attached Exhibit A.
2.7 "Minor Version Release(s)" shall mean any modification of
the Programs which
is denoted by GUPTA by changing a number to the right of the
first decimal point
in then-current version number, e.g., a change from version
3.1.2 to 3.2.
2.8 "UPS Product" shall mean only the UPS software programs or
products
specifically described or listed on the Signature Pages, and
shall also include
any Derivative Works.
Any UPS Product:
(a) must not provide a general purpose programming interface to
the Programs or
links to one;
(b) must not intentionally make GUPTA's SQL/API (as described in
GUPTA's SQL/API
documentation which accompanies the SQLBase Programs when
delivered in package
form) or the SQL language (as described in GUPTA's SQL Language
guide which
accompanies the SQLBase Programs when delivered in package form)
directly
accessible to users.
2.9 "Product Update(s)" shall mean all Maintenance Releases and
certain other
modifications to the Programs designed to provide bug fixes or
minor function
improvements which may be denoted as such by GUPTA from time to
time in its
generally published programs and policies, or which may be
otherwise provided
generally to GUPTA licensees.
2.10 "Product Upgrade(s)" shall mean all Minor Version Releases
and Major
Version Releases, product successors, and certain other
modifications to the
Programs which may be denoted as such by GUPTA from time to time
in its
generally published programs and policies.
2.11 "Program(s)" shall mean only the proprietary GUPTA software
program(s),
including Product Updates and Product Upgrades, and their
successors, in object
code form specified on the Signature Pages to this
Agreement.
2.13 "Trademark Use Policy" shall mean the written guidelines,
as amended by
GUPTA from time-to- time, which contains GUPTA's policies and
procedures
describing the proper usage of the Marks. The current version of
such policy is
attached as Exhibit A.
2.14 "Derivative Works" shall mean a revision, modification,
enhancement,
abridgment, condensation or expansion of a work or any form in
which such work
may be recast, transformed, or adapted.
2.15 "UPS" shall mean United Parcel Service General Services
Co., a Delaware
corporation with its principal place of business located at 55
Glenlake Pkwy.,
N.E., Atlanta, GA 30328, together with its parent company and
direct and
indirect subsidiaries of such parent company, (collectively
"UPS").
UPS_____ GUPTA_____
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2.16 "STAR Support" shall be the services provided to UPS under
the support
provisions of this Agreement. The specific levels of service are
as defined in
Exhibit B.
3. GRANT OF RIGHTS
3.1 Nonexclusive License Grant
GUPTA hereby grants UPS, during the term of this Agreement, the
following
nontransferable, nonexclusive, rights and licenses which may be
exercised during
the term of this Agreement and provided the Program is for use
only in
conjunction with and as an embedded component of a UPS
Product:
(a) To manufacture and package copies of the Programs.
(b) To distribute (including electronic distribution, e.g., via
bulletin board)
and sublicense UPS manufactured copies of the Programs to End
Users directly and
through Distributors.
(c) To grant Distributors the right to distribute UPS
manufactured copies of the
Programs to End users.
(d) To use, in unaltered form, the Maries solely to promote the
UPS Product and
as otherwise agreed in writing by both parties.
3.2 License Restrictions and Requirements
The rights and licenses granted in Section 3.1 GIC are expressly
limited and
restricted by the following:
(a) GUPTA's Intellectual property and Proprietary Rights
(1) GUPTA and/or its licensors shall retain all and sole right,
title and
interest in and to the programs.
(2) Other than for exercising the rights expressly granted to
UPS hereunder, UPS
shall not, nor shall UPS cause a third party (except as required
by law with
written notice to GUPTA) to, copy, manufacture, adapt, rent,
lease, lend,
trade-in, translate, reverse engineer, disassemble or decompile
or otherwise
modify the Programs.
(3) UPS must ensure that the End User License Agreement contains
a provision
prohibiting End Users from using a UPS Product or any components
thereof for
general purpose application development.
(4) UPS shall not, nor shall UPS cause a third party to, delete
GUPTA's
copyright notice as it appears anywhere in the Programs.
(5) UPS agrees to sublicense the Programs to End Users directly
and through
Distributors only under an End User License Agreement, which may
be
shrinkwrapped (or which may be posted and distributed
electronically in the
event that UPS elects to distribute the UPS Products and the
Programs in an
electronic format, e.g., via a bulletin board), between UPS and
End Users, which
(i) acknowledges GUPTA's (and/or any of GUPTA's licensors')
intellectual
property and proprietary rights and title to the Programs, and
(ii) which
contains a provision that expressly prohibits the End User from
using the
Programs for any purpose other than that permitted by the UPS
Product.
UPS_____ GUPTA_____
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(6) UPS agrees to provide reasonable assistance to GUPTA, at
GUPTA's sole
expense, in protecting the Marks and GUPTA's copyrights in the
Programs. UPS
further agrees that it will, at GUPTA's request, execute any
documents
reasonably required by GUPTA in perfecting its intellectual and
proprietary
rights in the Marks. UPS agrees to promptly notify GUPTA of any
improper or
unlawful use of the Marks or any intellectual property rights of
GUPTA in the
Programs which comes to the attention of UPS.
(7) The use of the Marks by UPS and Distributors shall strictly
adhere to the
terms and conditions of GUPTA's Trademark Use Policy attached
hereto as Exhibit
A, and to reasonable written instructions GUPTA may issue from
time to time. UPS
will not in any way identify itself as the owner of, or register
or attempt to
register the Marks in UPS's name or any other namet. GUPTA
reserves the right to
(i) review, upon request, UPS's use of the Marks in advertising
and other
materials, and (ii) revoke UPS's license to use the Marks, at
GUPTA's sole
discretion.
(8) UPS acknowledges GUPTA's representation that (i) Quest,
SQLBase, SQLGateway,
SQLRouter, SQLHost, and SQLTalk are registered trademarks of
GUPTA Corporation,
(ii) SQL/API, SQLNetwork and the GUPTA logo are trademarks of
GUPTA Corporation,
and (iii) SQLWindows is a registered trademark and TeamWindows,
ReportWindows
and EditWindows are trademarks exclusively used and licensed by
GUPTA
Corporation. UPS agrees that all use of the Marks by UPS or its
Distributors
will inure to the benefit of GUPTA.
(b) Distributors
(1) UPS shall have no authority to grant any rights to a
Distributor other than
those set forth in Section 3.1(c) GTC.
(2) Each agreement between UPS and Distributor shall (i) contain
provisions
which are fully consistent with the terms of this Agreement and
do not exceed
the distribution rights granted to UPS herein, (ii) include the
provisions of
Sections 3, 6, 7, 8, 9, 10 and 11 GTC in substantially similar
terms, and (iii)
provide that the Distributor shall be obligated pursuant to
terms substantially
similar to UPS's relevant obligations under this Agreement. UPS
shall make
commercially reasonable efforts to ensure that each Distributor
respects GUPTA's
intellectual property and proprietary rights in and to the
Programs (and other
GUPTA proprietary material licensed to UPS by GUPTA hereunder),
do not make
unauthorized copies of the Programs, and otherwise comply with
the Distributor's
obligations under its agreement with UPS.
(3) UPS agrees that none of its obligations under this
Agreement, including, but
not limited to its payment obligations to GUPTA, are conditioned
in any way on
any Distributor's performance of its payment or other
obligations to UPS.
4. FEES AND PAYMENTS
4. Payments of License Fees
(a) In consideration for the rights granted in Section 3.1 GTC,
upon the
execution of this Agreement, UPS shall make the nonrefundable,
noncontingent
payment to GUPTA as provided on the Signature Pages.
(b) Additional payments of License Fees may be made by UPS as
provided in the
Signature Pages.
UPS_____ GUPTA_____
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4.2 Maintenance Fee
In consideration for the STAR Support, the delivery by GUPTA of
Updates and
Upgrades, and Maintenance services provided by GUPTA as
specified in Section 5
GTC, upon execution of this Agreement, UPS shall make the
nonrefundable,
noncontingent payment to GUPTA as specified on the Signature
Pages.
4.4 Reports and Payments
(a) All payments under this Agreement shall be made in U.S.
dollars.
(b) Initial Payments shall be made as specified on the Signature
Pages.
(c) Payments other than the Initial Payments or other payments
for which payment
terms have been agreed to by UPS and GUPTA shall be paid by UPS
to GUPTA within
thirty(30) days after receipt of a valid invoice from GUPTA.
4.6 Records and Review
UPS shall keep accurate records reasonably designed to verify
compliance with
the licensing and payment terms of this Agreement, along with
reasonable detail.
UPS shall upon reasonable advance request from GUPTA not more
than once annually
send copies of these records to GUPTA for review.
4.7 Shipping Expenses
All prices specified are FOB UPS's designated destination, and
UPS shall (i)
reimburse GUPTA for reasonable and actual shipping and insurance
expenses
incurred by GUPTA under this Agreement for the transportation of
Programs, and
(ii) bear the risk of loss damage or theft of the physical
property while the
Programs are in transit to UPS.
5. SUPPORT AND MAINTENANCE
5. Technical Support
GUPTA shall provide UPS with STAR Support as provided in this
Agreement
5.2 Support of UPS's End Users and/or Distributors
UPS shall be responsible for supporting UPS's End Users and/or
Distributors.
5.3 Product Updates
Provided that UPS has paid the Maintenance Fee as provided in
Section 4.2 GTC,
during the term of this Agreement Product Updates will be
provided to UPS as and
when made available by GUPTA to any of its other OEM's or
licensees. UPS shall
have the right to sublicense and distribute (on the same basis
as provided in
Section 3.1 GTC) such Product Updates to its existing customers
for the UPS
Products without payment of additional fees to GUPTA.
UPS_____ GUPTA_____
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5.4 Product Upgrades
Provided that UPS has paid the Maintenance Fee as provided in
Section 4.2 GTC,
during the term of this Agreement, Product Upgrades will be
provided to UPS as
and when made available by GUPTA to any of its other OEM's or
licensees GUPTA
shall use reasonab
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