<PAGE> 1
EXHIBIT 10.1
NOTE: Portions of this exhibit are the subject of a Confidential Treatment
Request by the Registrant to the Securities and Exchange Commission. Such
portions have been redacted and are marked with a "[*]" in place of the redacted
language.
[IBM LETTERHEAD]
DEVELOPER MARKETING PARTNERSHIPS
--------------------------------------------------------------------------------
SOFTWARE REMARKETING AGREEMENT
This Agreement amends and restates, effective on the date both parties sign, the
Software Remarketing Agreement dated as of March 9, 2000, as amended by a
Amendment 1 dated as of 30 June, 2000.
This is a Software Remarketing Agreement ("SRA") between Versata, Inc. ("you")
and International Business Machines Corporation ("IBM") dated 9th March 2000 .
The complete Agreement between the parties consists of this SRA and the
following Exhibits:
o Exhibit - Your End User Price List
o Exhibit - Your End User License
o Exhibit - Certificate of Originality
If there is a conflict among the terms of this SRA and any of its Attachments,
the terms of the SRA prevail unless the Attachment expressly indicates that
particular terms within the Attachment prevail. This Agreement replaces all
prior oral or written communications between the parties relating to the subject
matter hereof. Both parties accept the terms of this Agreement and identified
Attachments and Exhibits by signing below. Once signed, any reproduction of this
Agreement made by reliable means (for example, photocopy or facsimile) is
considered an original, unless prohibited by local law. This Agreement may only
be modified by a writing signed by both parties.
AGREED TO: AGREED TO:
International Business Machines Corporation Versata Inc.
By: /s/ Jon Regitsky By: /s/ Glen Livingston
------------------------------------- ---------------------------
Jon Regitsky Glen Livingston
Program Director, Global DMP
Date September 21, 2000 Date September 27, 2000
Any notice required or permitted under this Agreement will be sent to the
representative named below, and shall be effective upon receipt as demonstrated
by reliable written confirmation (for example, certified mail receipt, courier
receipt, facsimile receipt confirmation sheet.) Each party will notify the other
if their representative changes.
IBM's Representative: Lee Sage Your Representative: T.B.A.
IBM United Kingdom Limited
PO Box 41, North Harbour
Portsmouth, Hampshire PO6 3AU
England
Tel: 0044 (0) 23 92 564 996
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1. DEFINITIONS
Capitalized terms in this Agreement have the following meanings:
CODE is computer programming code including both Object Code and Source Code:
a) OBJECT CODE is computer programming code in substantially binary form, and
includes header files of the type necessary for use or interoperation with other
computer programs. It is directly executable by a computer after processing or
linking, but without compilation or assembly.
b) SOURCE CODE is computer programming code that may be displayed in a form
readable and understandable by a programmer of ordinary skill. It includes
related source code level system documentation, comments and procedural code and
all "Error" corrections and "Enhancements". Source Code does not include Object
Code.
ENHANCEMENTS are changes or additions to the Products:
a) BASIC ENHANCEMENTS are all Enhancements, other than Major Enhancements,
including those that support new releases of operating systems and devices, and
correct Errors. b) MAJOR ENHANCEMENTS provide substantial additional value and
are normally offered to customers for an additional charge (e.g., upgrades).
ERROR is a) any mistake, problem or defect that causes a Product to malfunction
or fail to meet its specifications; or b) any incorrect or incomplete statement
or diagram in the related documentation that causes a Product to be materially
inaccurate or inadequate.
IBM REVENUE is the revenue (excluding local taxes) due IBM from its customers
and/or business partners, for Products and/or Services from the effective date
of this Agreement.
MARKETING MATERIALS are Product brochures, manuals, technical specification
sheets, demonstration presentations, and other marketing sales literature
provided by you to IBM for IBM's use in performance of marketing activities.
IBM's use of Marketing Materials may include transmission of them through
electronic marketing services.
NEW PRODUCTS include a) all Major Enhancements to your Products; or b) any
substitute and/or replacement products for the Products licensed hereunder , and
which you make generally available in the marketing territory.
PRODUCTS are your computer programs in Object Code form, including documentation
included in whatever format you provide to your customers and accompanying the
computer program, related materials and any security devices or "locks" that are
listed in this Agreement.
PRODUCT MAINTENANCE is the provision of both Basic Enhancements and Major
Enhancements for Products to a customer for a fee.
PRODUCT SUPPORT is a service provided when a customer identifies a possible
Error in Products. There are three levels:
a) LEVEL 1 is the Service provided in response to the customer's initial contact
identifying an Error.
b) LEVEL 2 is the Service provided to reproduce and attempt to isolate the
Error, or to find that the Service provider cannot reproduce the Error.
c) LEVEL 3 is the Service provided to isolate the Error at the component level
of the Products. The Service provider distributes the Error correction or
circumvention, or gives notice if no correction or circumvention is found.
SERVICES are Product Maintenance and Product Support.
INTERNATIONALIZATION shall mean that a Product has the ability to implement
national functions and the facility to be translated to other languages. This
includes three (3) categories which correspond to characteristics of various
languages: (a) single byte character set (SBCS), left-to-right languages (U.S.
English, German, Greek, etc.); (b) single byte bi-directional languages (Hebrew,
Arabic); and (c) double byte character set (DBCS) or multi-byte character set
(MBCS) languages (Japanese, Korean, simplified and traditional Chinese). The
Products shall avoid hardcoding language dependent codepages and character sets.
NATIONAL LANGUAGE SUPPORT (NLS) shall mean that the Products have the ability to
enter, store, process, retrieve, distribute, display and print character data in
the foreign language of choice. NLS includes Internationalization
characteristics.
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2. TERRITORY
The territory for this Agreement shall consist of all the countries in the world
in which IBM is directly or indirectly conducting business "Territory".
3. LICENSE GRANTS
3.1 You grant IBM the non-exclusive right and license to: (1) use your
trademarks and trade names in conformance with your trademark standards only for
the purpose of marketing and reselling your Products in accordance with terms of
this Agreement; (2) resell your Products under the terms of your end user
license agreement "End User License, " a copy of which is attached to this
Agreement as an exhibit; (3) use, copy, display, perform, market and distribute
Marketing Materials; (4) use, copy, display, and perform the Products for
demonstration, marketing and training purposes, or to provide Product Support or
additional services for the Products; and (5) use the Products internally
("Internal Use").
3.2 In certain situations or in certain geographies it may be advantageous
to allow IBM to provide the Products and Services to customers under an IBM end
user license agreement. In such situations, IBM will, on a case-by-case basis,
obtain your authorization to sublicense the Products to customers under the
terms of an IBM end user license agreement. IBM is responsible for all licensing
terms offered to its customers when IBM sublicenses the Products under its end
user license. Hereafter, every reference in this Agreement regarding IBM's right
to license the Products shall also include IBM's right to sublicense the
Products only as described in this subsection 3.2.
3.3 You acknowledge that licensees of the Products, whether obtained from
IBM, you or a third party, may retain IBM to perform outsourcing services on
their behalf. Notwithstanding any other provision of this Agreement or of any
license agreement, when IBM provides outsourcing services to licensees of the
Products, you will permit IBM to access, use, and/or take assignment of the
licensee's license to such Products, without IBM or the licensee being required
to acquire additional licenses or incur a fee. In addition, IBM and the licensee
will not owe you a fee to transfer the applicable Products to an IBM or third
party computer system which is of like configuration as the computer system for
which the Products were licensed. The Products will be used only on behalf of
the licensee. Upon expiration or termination of the agreement to provide
outsourcing services to the licensee, IBM's right to use the Products will
terminate and the licenses will revert to the licensee or another outsourcing
firm designated by the licensee.
3.4 IBM customers may include agencies or other units of a government, or
third parties under contract with a government ("Public Sector"). In the event a
Public Sector customer requires modifications to your End User License
Agreement, you agree to negotiate in good faith such requested modifications
with the Public Sector customer, including the possibility of authorizing IBM to
become the licensor of the Products as permitted in subsection 3.2.
3.5 Except for the Internal Use license granted to IBM in this Section, IBM
may perform any of its rights, licenses and obligations under this Agreement
through subsidiaries provided that IBM is responsible for all acts and omissions
of such subsidiaries. The use of such entities by IBM does not relieve it of its
obligations under this Agreement. This Agreement does not grant IBM or any such
entities any ownership to any of the copyright rights in the Products.
4. YOUR RESPONSIBILITIES
4.1 LICENSE AGREEMENT: Except in sublicensing situations, IBM will license
the Products to customers under the terms of your End User License. You may
agree to modify your End User License to provide that either i) execution of the
End User License by the customer or ii) use of the Product by the customer, will
constitute agreement with the terms and conditions contained in the End User
License. You may also use other means (such as providing the customer with a
Product "password/key" to "unlock the software"), which indicates customer
agreement with the terms and conditions contained in the End User License. IBM
will not be responsible for ensuring that the customer demonstrates agreement
with the End User License terms and condition. IBM is not a party to your End
User License and does not assume any obligation for violations of it. You agree
to modify your End User License, if necessary, to comply with the terms and
conditions of this Agreement. In the event IBM reasonably requests that you
modify your End User License to comply with the law, state commercial terms,
and/or ordering and payment terms of a country in the Territory, you agree to 1)
consider such a request on a timely basis and 2) not unreasonably withhold your
consent to such changes. In addition, you agree to provide a reasonable number
of copies of your End User License to IBM at no additional charge.
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4.2 IBM APPLICATION FRAMEWORK FOR E-BUSINESS: You agree to use commercially
reasonable efforts to integrate and optimize your Products on IBM's Application
Framework for e-Business, an open, multi-vendor approach to building and
deploying e-Business applications. You will also use commercially reasonable
efforts to ensure that, during the term of this Agreement,: 1) the Products are
compatible with the version of IBM WebSphere Application Server currently
distributed with the Products; and 2) an end-user of the Products (including
WebSphere Application Server) who upgrades to a new version/release of the
Products (including the then-current version/release of WebSphere Application
Server) is provided with an automated migration to the new version/release. For
customers who do not wish to upgrade to the most current version/release of
WebSphere Application Server, you also agree to offer: 1) for at least six
months after the general availability of a new point release of a Product, the
previous point release of that Product; and 2) for at least one year after the
general availability of a new version of a Product, the previous version of that
Product.
4.3 NEW PRODUCTS: You represent that the Products available to IBM under
this Agreement are always the most current release or version that is available
to your customers. If you make New Products available to your customers, IBM may
offer such New Products to its customers under the terms of this Agreement. You
will give IBM at least six months notice prior to withdrawing any Product
(including any version) from marketing or support.
4.4 PRODUCT RETURNS: In the event that a customer returns a Product to IBM,
(i) in accordance with the terms of the warranty offered by you in your license
agreement for the applicable Product; (ii) because your Product is found to
infringe a patent, copyright, trademark or trade secret or any other
intellectual property of any third party; or (iii) because your Product contains
a virus or other harmful code, and IBM refunds the customer for the amount paid
for the Product, you agree that you will refund to IBM the applicable amount per
IBM's reasonable instructions. Further, should IBM elect to accept a customer
return of a Product that does not meet the aforementioned conditions, IBM shall
be free to either internally use or resell such returned Product(s) with no
further obligation of payment to you pursuant to Section 6 hereunder.
4.5 MARKETING MATERIALS/NOT-FOR-RESALE PRODUCTS: You agree to provide to
IBM at no additional charge, copies of the Marketing Materials related to the
Products in Adobe Acrobat format, as well as an agreed to number of hard copies.
You authorize IBM to alter the Marketing Materials to indicate that IBM has the
authority to market, price, license the Products. You also agree to provide IBM
with an electronic copy of each version/release of the Products and you
authorize IBM to copy and distribute such copies of your Products for
demonstration and training purposes. You will, at IBM's request, provide a
reasonable number of copies of Products to potential customers for trial use and
customer evaluation purposes; You will be responsible for the distribution and
return of such trial use and customer evaluation copies. [*]
4.6 SERVICES: You agree to offer Services to IBM customers on terms at
least as favorable as those you generally offer to your own customers for the
Products. This offer shall be available to IBM customers during the term of this
Agreement and for at least one year after delivery of each Product licensed to
an IBM customer under your End User License.
4.7 PRODUCT SUPPORT AND MAINTENANCE: You shall provide Level 1, Level 2 and
Level 3 Product Support to IBM's customers for the Products during your warranty
period, and for the term of any additional Product Support Services purchased
from you by the IBM customer. You shall also provide Product Maintenance to
IBM's customers for the Products during your warranty period, and for the term
of any additional Product Maintenance purchased from you by the IBM customer.
4.8 MARKET SUPPORT: You agree to provide the following pre-sales market
support services to IBM as reasonably requested during the term of this
Agreement, at no additional charge. All of your personnel providing market
support will have sufficient Product knowledge and skills to adequately perform
the support services requested.
o MARKETING EVENTS: You agree to participate in trade shows, executive
conferences, and other marketing events, on dates and at locations mutually
agreed to by the parties.
o TELEPHONE SUPPORT: You agree to provide telephone consulting services
during your normal business hours to address technical questions related to
demonstration, marketing, operation, use and installation of the Products as
mutually agreed between the parties .
o PRE-SALES SUPPORT: You agree to provide pre-sales technical support
services and demonstration assistance for the Products to IBM customers on dates
and at locations mutually agreed to by the parties.
o TRAINING: All training shall be conducted on dates and at locations to be
mutually agreed to by the parties.
* Confidential treatment requested for redacted portion.
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o PRODUCT TRAINING MATERIALS: In order to allow IBM to better provide training
on the Products, you agree to deliver to IBM, in a common electronic file
format, your existing training materials associated with the Products (the
"Product Training Materials"). [*]
o SALES REP SUPPORT: You agree to have your Sales team cooperate, on an as
needed basis, with IBM in the sale of your Products to IBM customers as mutually
agreed between the parties.
4.9 [*]
5. IBM'S RESPONSIBILITIES
5.1 MARKETING ACTIVITIES: IBM will use reasonable efforts to develop and
implement a market support plan for the Products. The market support plan may
include, at IBM's sole discretion, the following marketing activities for the
Products:
o identify and qualify customers for the Products;
o demonstrate the Products to customers;
o develop sales proposals;
o advertise your Products in various trade magazines and other publications;
o include your Products in trade shows, executive conferences, and other
marketing events;
o implement telemarketing or direct mail campaigns;
o electronically publish information about your Products.
5.2 OTHER ACTIVITIES: IBM is responsible for licensing, pricing, ordering,
billing and accounts receivable activities related to the Products it sells to
customers. IBM shall have full freedom and flexibility in pricing your Products.
5.3 PRODUCT SUPPORT AND MAINTENANCE: At some point during the term of this
Agreement, the parties intend that IBM will take over Level 1 and Level 2
Product Support responsibilities and resell Level 3 Product Support and Product
Maintenance to its customers. Before any such transition occurs, the parties
will amend this Agreement to reflect the details of any changed
responsibilities.
6. PAYMENTS
6.1 IBM will pay you the amount set forth in the following table ("IBM
Rate") for each Product (including New Products, if applicable) IBM sells or
distributes to a customer. The IBM Rate for New Products shall be calculated at
the same percentage of revenue for existing Products. Payment will be made in
local currency, within 30 days following the close of the calendar month during
which the Product is licensed. A calendar month is normally based on a US
calendar month; however, the actual start and end date of the calendar month may
differ by country based on IBM's current administration practices for that
country. IBM's payments to you will be based on IBM's Net Revenue for the
Products; Net Revenue is revenue subject to any withholding tax requirement
and/or any applicable transaction based taxes (including, without limitation,
sales and value-add taxes), and net of refunds as described in subsection 4.4
and adjustments reasonably granted to customers (e.g., for special bids or
customer concessions). IBM will maintain relevant records to support all
payments for a period of one (1) year from the date a payment is made.
For Internal Use Products, IBM will pay you the IBM Internal Use Rate set forth
in the following table.
Payment will be made by either electronic funds transfer or by mail, and is
deemed to be made on the date of transfer or mailing, as applicable. IBM is not
obligated to sell any minimum quantities or make any other payments to you
related to the Products and/or Services (for example, under any IBM business
partner Agreement). The royalty payments set forth in this Section fully
compensate you for your performance under, and for the rights and licenses
granted in, this Agreement.
Quarterly, thirty (30) days following the end of the prior calendar quarter, IBM
will calculate the aggregate amount of all royalties that would have been
payable to you in such prior calendar quarter if the applicable Minimum IBM Rate
(i.e., floor) per license had been used to calculate quarterly payments, instead
of the applicable percent of IBM revenue specified herein. If the aggregate
amount of royalties paid to you for such calendar quarter was less than the
floor amount, IBM will pay you the difference, as a quarterly minimum royalty
adjustment, with the next scheduled payment.
[*]
* Confidential treatment requested for redacted portion.
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<TABLE>
<CAPTION>
------------------- ---------------------------- ------------------- -------------------
PRODUCT TYPE PRODUCT NAME IBM RATE IBM MINIMUM RATE
------------------- ---------------------------- ------------------- -------------------
<S> <C> <C> <C>
------------------- ---------------------------- ------------------- -------------------
------------------- ---------------------------- ------------------- -------------------
------------------- ---------------------------- ------------------- -------------------
------------------- ---------------------------- ------------------- -------------------
------------------- ---------------------------- ------------------- -------------------
---------------------------------------- -----------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
PRODUCT TYPE PRODUCT NAME IBM INTERNAL USE RATE
------------------------------ -------------------------------- ------------------------
<S> <C> <C>
------------------------------ -------------------------------- ------------------------
Products Versata Developer Studio [*]
Versata Logic Server
------------------------------ -------------------------------- ------------------------
</TABLE>
For the purposes of this Agreement, the Versata Logic Server Product will
include Versata Presentation Server.
[*]
6.2 You agree to give IBM 90 days prior written notice of any changes to
your list price for the Products.
6.3 ROYALTY EXCEPTIONS: IBM has no payment obligation for Products used for
the following purposes:
o marketing, demonstrations, customer evaluations and trial use, provided
that IBM does not charge for such use;
o Product training and education;
o Product Support; or
o warranty replacement copies of the Products provided in accordance with
subsection 4.4.
6.4 For the purposes of this Agreement, your "Versata Studio" Product
refers to your current version of that Product packaged with (and under the
terms of the IBM-Versata OEM Software Agreement #4900S60605) the current
versions of: i) the IBM WebSphere Application Server, Advanced Edition, Single
Developer product; and ii) the IBM WebSphere Studio product.
7. [*]
8. WARRANTY
You represent and warrant on an ongoing basis that:
o (a) you have sufficient rights to the Products (including associated marks
and names) to grant IBM the rights specified in this Agreement, and to grant
customers the rights specified in your End User License agreement;
o (b) the Products conform to their published specifications;
o (c) the Products (including but not limited to Marketing Materials) do not
infringe any patent, copyright, trademark or trade secret or any other
intellectual property rights of any third party, and do not contain any virus or
other harmful code;
o (d) at the time of signing this Agreement, you are not aware of any claims
against you regarding the Products;
o (e) you comply with any and all laws and/or regulations, including but not
limited to, export laws and/or regulations regarding (i) the classification of
the Products; and (ii) distribution of encrypted code contained in the Products;
and
o (f) the Products, when used in accordance with their associated
documentation, are capable of correctly processing, providing and/or receiving
date data within and between the twentieth and twenty-first centuries, provided
that all products (for example, hardware, software and firmware) used with the
Products properly exchange accurate date data with the Products.
9. INDEMNIFICATION
You will defend or settle any suit, third party claims, or proceedings brought,
or threatened, against IBM based upon a claim that any Product furnished
hereunder or part thereof, alone and not in combination with any other software
or product constitutes an actual or alleged infringement or misappropriation of
any copyrights, trade secrets and/or patents worldwide, as well as any actual,
alleged, or threatened infringement of any trademark, provided that: (i) you are
notified promptly in writing of such claim; (ii) you control the defense or
settlement of the claim; and (iii) IBM cooperates reasonably and gives all
necessary authority, information and assistance (at your expense). You will pay
all damages and costs finally awarded against IBM, but you will not be
responsible for any costs, expenses or compromise incurred or made by IBM
without your prior written consent. If the use of such Product is permanently
enjoined, you will, in your sole discretion and at your own expense, procure for
IBM the right to continue using said Product, replace same with non-infringing
Product, modify it so that it becomes non-infringing, or if you are unable to
* Confidential treatment requested for redacted portion.
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do any of the above on a commercially reasonable basis and if IBM is enjoined
from distributing the Product, you will credit IBM the sum paid to you by IBM
for the infringing Product which is on order . The obligations set forth in this
Section shall not apply to the extent that any claim arises from modification of
the Product after delivery, except for any modification mutually agreed to by
the Parties or made pursuant to your unilateral, mandatory written direction.
Notwithstanding the foregoing, you shall have no obligation to Indemnify IBM
pursuant to this Section for any "Open Source" software included in the Product,
which has been identified as Open Source software by you and accepted by IBM
hereunder.
10. LIMITATION OF LIABILITY
Except for claims arising under Section 9, entitled "Indemnification", neither
party shall be liable to the other for any economic consequential damages
(including lost profits or savings) or incidental damages, even if advised that
they may occur. Except for claims arising under Section 9, entitled
"Indemnification", each party's liability for any claim will be limited to the
amounts due or paid by IBM under this Agreement.
11. TERM AND TERMINATION
11.1 This Agreement shall be effective when signed by both parties and shall
remain in effect until 12/31/2002, but may be extended by an Amendment, unless
terminated as set forth below.
11.2 Either party may terminate this Agreement for convenience on 180 days
prior written notice to you. The effective date of termination will be specified
in such prior written notice.
11.3 Either party may terminate this Agreement if the other materially
breaches its obligations; nonpayment may be considered a material breach under
this Agreement. The termination must be by written notice specifically
identifying the breach upon which it is based and will become effective 90 days
after the notice, unless the breach is corrected during the 90 days.
11.4 At the effective date of terminaton of the Agreement IBM will either
pay you for, return to you, or destroy, any copies of the Products which IBM has
in its inventory. IBM may continue marketing any Products in its inventory, that
it has on order, or in distribution channels at the time of termination and will
continue to make payments as described in Section 6.
11.5 Any terms of this Agreement which by their nature extend beyond the day
this Agreement ends remain in effect until fulfilled, and apply to respective
successors and assignees. Except as otherwise provided for in a related
agreement, upon termination and/or expiration of this Agreement, all rights and
licenses granted by you to IBM shall cease, except IBM shall continue to have
all necessary rights and licenses to perform the following activities: (a) IBM
may sell, lease, license and distribute any inventory of Products, (b) IBM may
continue to exercise the rights and licenses granted under this Agreement for up
to six months after termination to fill customer orders IBM receives before the
termination date, and (c) for as long as necessary to provide Product Support to
IBM customers and (d) continue to use the Products for internal use. Any payment
obligations by either party shall survive and continue. All rights and licenses
granted to IBM's customers and to IBM for internal use shall survive and
continue and shall in no way be affected by the termination of this Agreement.
Notwithstanding the foregoing, this Section 11.5 is not intended to prohibit and
does not restrict your ability to seek or obtain injunctive relief or other
remedies at law or in equity in the event that you terminate the Agreement for
IBM's material breach.
12. INFORMATION
All information exchanged under this Agreement is non-confidential. Neither
party shall disclose the terms of this Agreement or the identity of any IBM
customer to any third party without the other party's prior written consent,
except: 1) to your suppliers and contractors; 2) to the extent necessary to
establish each party's rights hereunder, or 3) as required by applicable law or
regulations. You agree not to issue press releases or other publicity regarding
this Agreement or the relationship under it without IBM's prior written
approval.
13. TAXES
Each party is responsible for complying with the collection, payment, and
reporting of all taxes imposed by any governmental authority applicable to its
activities in connection with the sale, lease, delivery or license of the
Products under this Agreement. Neither party is responsible for taxes that may
be imposed on the other party. Situations may arise where governmental
authorities require IBM to withhold from amounts payable to you. In such cases,
IBM may withhold the amount of taxes due from payments to be made to you under
this Agreement and remit
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the taxes withheld to the governmental authority. Upon request, IBM will provide
you with documentation justifying the withholding amount. As a reseller of your
Products, IBM is not required to pay you, and you agree not to charge IBM for,
taxes for the Products which are sold by you to IBM in the Territory. You are
not required to pay taxes due on IBM's income.
14. PRIVACY
In the course of conducting its business, IBM collects and processes certain
personal information about its customers, Business Partners, prospects,
suppliers and other business contacts. This might include an individual's name,
business or home address, telephone number, e-mail address, and other
information about the individual. As a global company, IBM's business processes
extend to more than one country and may result in worldwide processing and use
of such personal data internally, and in appropriate circumstances, outside IBM.
Subject to any rights and obligations of either party with respect to
confidential information exchanged under the terms of a separate written
confidentiality agreement between us, you agree that IBM may use and share such
personal information within its enterprise and with other third parties in
connection with this Agreement to the extend allowable by the applicable law.
15. [*]
16. TRANSLATION OF PRODUCTS: You agree to provide IBM the Products
translated into languages other than the English language promptly upon the
Products becoming generally commercially available. In the event that IBM
requests a language translation on an accelerated schedule or a language
translation not in your Product Plan, you agree to enter into good faith
negotiations to reach a mutual agreement on providing such translation and
double-byte enablement.
17. GENERAL
17.1 Neither party guarantees the success of any marketing effort it engages
in for the Products. Either party may independently develop, acquire, and market
materials, equipment, or programs that may be competitive with (despite any
similarity to) the other party's products or services. Each party is responsible
for its own costs, including all business, travel and living expenses incurred
by the performance of this Agreement.
17.2 Neither party has relied on any promises, inducements or
representations by the other, except those expressly stated in this Agreement.
This Agreement is not to be construed as a commitment or obligation, express or
implied, on the part of IBM that IBM will market, sell, purchase, or license any
Products under this Agreement.
17.3 You may only assign this Agreement to a Subsidiary or in connection
with the sale of all or a substantial portion of your business. Any other
attempted assignment is void.
17.4 Neither party will bring a legal action against the other more than two
years after the cause of action arose. Each party waives a jury trial in any
dispute. Failure by either party to demand strict performance or to exercise a
right does not prevent either party from doing so later.
17.5 The parties are independent contractors. Personnel you supply are
deemed your employees and are not for any purpose considered employees or agents
of IBM. Each party assumes full responsibility for the actions of its personnel
while performing its obligations under this Agreement and is solely responsible
for their direction and compensation. This Agreement does not create any
obligations for IBM in any way limiting or restricting the assignment of its
employees. IBM and its employees are free to use any information, processing
ideas, concepts or techniques disclosed in the Products for any purpose
whatsoever, subject to your statutory patent and copyright rights.
17.6 The laws of New York govern this Agreement. The United Nations'
Convention on the International Sale of Goods does not apply.
17.7 IBM may not export any Product in violation of any export laws of the
United States or any country.
17.8 Neither party will be liable for failure to perform any of its
obligations under this Agreement (except payment obligations) when such failure
is caused by the occurrence of any contingency beyond the reasonable control of
such party.
17.9 Failure to enforce any provision of this Agreement may not be construed
as a waiver.
* Confidential treatment requested for redacted portion.
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17.10 If any provision of this Agreement is void or unenforceable, the
remaining provisions shall continue in full force and effect.
17.11 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and may not be modified or amended
except by an instrument in writing signed by the authorized representative of
both parties.
17.12 Except as permitted by applicable law, IBM agrees not to reverse
engineer, decompile or disassemble the Products.
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VERSATA PRICE LIST:
RE: Version 5 of the Versata Developer Studio and Versata Logic Server Products.
In the following IBM Geography's and currencies.
<TABLE>
<CAPTION>
North America, Latin America, India
------------------------- --------------------------- -------------------------
INVENTORY SKU PRODUCT DESCRIPTION UNIT SALES PRICE (US$)
------------------------- --------------------------- -------------------------
<S> <C> <C>
vstudio-ejb50 Versata Studio $3,000.00
------------------------- --------------------------- -------------------------
vmedia-ejb50 Additional Media N/C
------------------------- --------------------------- -------------------------
vdoc-ejb50 Versata Documentation $200.00
------------------------- --------------------------- -------------------------
Versata Logic Server $45,000.00 per CPU
------------------------- --------------------------- -------------------------
vis-ent-aix-ejb50 AIX
------------------------- --------------------------- -------------------------
vis-ent-nt-ejb50 NT
------------------------- --------------------------- -------------------------
vis-ent-sol-ejb50 Solaris
------------------------- --------------------------- -------------------------
</TABLE>
<TABLE>
<CAPTION>
Korea
------------------------- --------------------------- -------------------------
INVENTORY SKU PRODUCT DESCRIPTION UNIT SALES PRICE (US$)
------------------------- --------------------------- -------------------------
<S> <C> <C>
vstudio-ejb50 Versata Studio $3,900.00
------------------------- --------------------------- -------------------------
vmedia-ejb50 Additional Media N/C
------------------------- --------------------------- -------------------------
vdoc-ejb50 Versata Documentation $260.00
------------------------- --------------------------- -------------------------
Versata Logic Server $58,500.00 per CPU
------------------------- --------------------------- -------------------------
vis-ent-aix-ejb50 AIX
------------------------- --------------------------- -------------------------
vis-ent-nt-ejb50 NT
------------------------- --------------------------- -------------------------
vis-ent-sol-ejb50 Solaris
------------------------- --------------------------- -------------------------
</TABLE>
<TABLE>
<CAPTION>
Japan
------------------------- --------------------------- -------------------------
INVENTORY SKU PRODUCT DESCRIPTION UNIT SALES PRICE (US$)
------------------------- --------------------------- -------------------------
<S> <C> <C>
vstudio-ejb50 Versata Studio $4,200.00
------------------------- --------------------------- -------------------------
vmedia-ejb50 Additional Media N/C
------------------------- --------------------------- -------------------------
vdoc-ejb50 Versata Documentation $280.00
------------------------- --------------------------- -------------------------
Versata Logic Server $63,000.00 per CPU
------------------------- --------------------------- -------------------------
vis-ent-aix-ejb50 AIX
------------------------- --------------------------- -------------------------
vis-ent-nt-ejb50 NT
------------------------- --------------------------- -------------------------
vis-ent-sol-ejb50 Solaris
------------------------- --------------------------- -------------------------
</TABLE>
<TABLE>
<CAPTION>
Taiwan, Hong Kong, China, SE Asia, New Zealand, Australia
------------------------- --------------------------- -------------------------
INVENTORY SKU PRODUCT DESCRIPTION UNIT SALES PRICE (US$)
------------------------- --------------------------- -------------------------
<S> <C> <C>
vstudio-ejb50 Versata Studio $3,750.00
------------------------- --------------------------- -------------------------
vmedia-ejb50 Additional Media N/C
------------------------- --------------------------- -------------------------
vdoc-ejb50 Versata Documentation $250.00
------------------------- --------------------------- -------------------------
Versata Logic Server $56,250.00 per CPU
------------------------- --------------------------- -------------------------
vis-ent-aix-ejb50 AIX
------------------------- --------------------------- -------------------------
vis-ent-nt-ejb50 NT
------------------------- --------------------------- -------------------------
vis-ent-sol-ejb50 Solaris
------------------------- --------------------------- -------------------------
</TABLE>
<TABLE>
<CAPTION>
EMEA
------------------------- --------------------------- -------------------------
INVENTORY SKU PRODUCT DESCRIPTION UNIT SALES PRICE (US$)
------------------------- --------------------------- -------------------------
<S> <C> <C>
vstudio-ejb50 Versata Studio $3,448.00
------------------------- --------------------------- -------------------------
vmedia-ejb50 Additional Media N/C
------------------------- --------------------------- -------------------------
vdoc-ejb50 Versata Documentation $229.00
------------------------- --------------------------- -------------------------
Versata Logic Server $40,227.00 per CPU
------------------------- --------------------------- -------------------------
vis-ent-aix-ejb50 AIX
------------------------- --------------------------- -------------------------
vis-ent-nt-ejb50 NT
------------------------- --------------------------- -------------------------
vis-ent-sol-ejb50 Solaris
------------------------- --------------------------- -------------------------
</TABLE>
<TABLE>
<CAPTION>
UK
------------------------- --------------------------- -------------------------
INVENTORY SKU PRODUCT DESCRIPTION UNIT SALES PRICE (US$)
------------------------- --------------------------- -------------------------
<S> <C> <C>
</TABLE>
Page 10
<PAGE> 11
<TABLE>
<S> <C> <C>
vstudio-ejb50 Versata Studio $7,290.00
------------------------- --------------------------- -------------------------
vmedia-ejb50 Additional Media N/C
------------------------- --------------------------- -------------------------
vdoc-ejb50 Versata Documentation $364.00
------------------------- --------------------------- -------------------------
Versata Logic Server $65,610.00 per CPU
------------------------- --------------------------- -------------------------
vis-ent-aix-ejb50 AIX
------------------------- --------------------------- -------------------------
vis-ent-nt-ejb50 NT
------------------------- --------------------------- -------------------------
vis-ent-sol-ejb50 Solaris
------------------------- --------------------------- -------------------------
</TABLE>
Page 11
