<PAGE>
Exhibit 10.6
--------------------------------------------------------------------------------
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
----------------------------------------------
This Agreement is made effective June 26, 1996 between SYBASE, INC.
("Sybase") with offices at 6475 Christie Avenue, Emeryville, California 94608
(or SYBASE CANADA LIMITED, with offices at 1 Robert Speck Parkway, Suite 800,
Mississauga, Ontario, Canada L4Z 3M3), and DeskTalk ("Partner"), with offices
at 19401 South Vermont Ave. Torrance, CA 90502.
1. License Grant. Subject to the terms and conditions below, Sybase grants to
Partner a nonexclusive and nontransferable license to market and distribute
copies of unmodified object code versions of those Sybase and/or Powersoft
software products identified in the attached initialed Schedules along with
accompanying documentation ("Programs") to Partner's customers ("End-Users") who
will use the Programs in the applicable Territory described in each Schedule A,
provided that the Programs are distributed for use with computer application
programs marketed by Partner ("Application Software"). Partner may also sell to
End-Users certain Sybase services as describe dint he Schedule(s).
Notwithstanding the above, if the Territory includes any of the Prohibited
Countries set forth in Sybase's then current "Prohibited Country List" (a
current copy of which has been provided to Partner), Partner may not market or
distribute Programs for use in such Prohibited Countries. In connection with
the distribution rights granted above, Partner may appoint distributors to
distribute the Programs to End-Users within the Territory. The appointment of
distributors shall be by contracts which require that the distributor market the
Programs only in accordance with the terms of this Agreement and on a basis
which protects the proprietary interests of Sybase in and to the Programs to the
same extent that Partner's proprietary interests in its own products are
protected (but in any event no less than a reasonable extent). Partner may
order under this Agreement copies of the Programs for (a) its own internal
production purposes and/or developing and supporting the Application Software
("Internal Use Copies") and (b) Partner providing demonstrations and training
for the Application Software ("Demonstration Copies").
2. Fees and Payment Terms. For the first year of this Agreement, Partner shall
be responsible for paying to Sybase a non-refundable program fee shown in
Schedule A ("Initial Fee"). The Initial Fee is due upon execution of this
Agreement by Partner. For each additional year, a non-refundable annual program
renewal fee ("Annual Renewal Fee") as set forth in such Schedule is due and
payable upon each anniversary of the date of this Agreement. Fees as set forth
in the attached Schedule(s) shall be due to Sybase for each copy of the Programs
ordered by Partner for an End-User and for each Internal Use Copy; such fees
shall be based on Sybase's then-current price list for the country in which the
Programs are to be used ("Price List"). The license fee for Demonstration
Copies, if any, is set forth in the Schedule(s). Notwithstanding the above,
there is no charge for authorized Evaluation Copies distributed to End-Users.
("Evaluation Copies" are copies of the Programs made by Partner from Master
Disks (as defined below) which may only be used by End-Users for up to the
number of days designated in the applicable Schedule, after which they must be
returned to Partner.) License fees for copies made from Master Disks and
distributed to an End-User in a particular calendar quarter shall be due and
payable to Sybase within 30 days after the end of such calendar quarter along
with a written report showing the number of copies distributed by Partner during
such quarter. License fees for Internal Use Copies and Demonstration Copies, and
copies of the Programs which Sybase ships to Partner for distribution to End-
Users shall be due and payable to Sybase with Partner's order for the Programs
or, upon Sybase credit approval of Partner, 30 days after the date of Sybase's
invoice for the Programs. Any past-due invoice may subject Partner to credit
hold at the sole discretion of Sybase. All fees under this Agreement are stated
in United States dollars.
3. Ownership. Programs are owned by Sybase or its licensors and are protected
by copyright law, trade secret laws and international conventions. All rights in
and to patents, copyrights, trademarks and trade secrets in the Programs are and
shall remain with Sybase and its licensors. No title to or ownership of the
Programs is transferred to Partner or End-User. Partner shall not translate,
localize or modify any portion of the Programs without the prior written consent
of Sybase.
4. Ordering and Delivery. Internal Use Copies and Demonstration Copies shall
be ordered from Sybase. Copies of the Programs for distribution to End-Users
may either be (a) ordered from Sybase and delivered by Sybase to Partner, or (b)
made by Partner from master disks ("Master Disks") that Sybase will make
available to
1
<PAGE>
Partner. Partner shall ensure that all Sybase copyright and other proprietary
notices which are included in the Master Disks are included on any copies made
from the Master Disks. Partner acknowledges that Master Disks may contain
devices which count or limit the number of copies which can be made and Partner
will not tamper with such devices. Partner shall maintain Master Disks under
lock and key and shall allow only a specified number of its own employees to
make copies from Master Disks. Partner shall fully account for all copies of the
Programs. Partner shall not modify or alter any proprietary rights notice
contained within the Programs. Partner is strictly prohibited from providing
access or transferring the Master Disks to any third party. All shipments are
FOB origin, and Partner is responsible for all shipping charges. Except for
taxes on Sybase's income, Partner shall be responsible for any sales, use,
excise or any other form of taxes resulting from this Agreement.
5. License Accompanying Programs. If Partner sues the Programs, agrees to be
bound by the terms and conditions of the Sybase license agreement accompanying
each copy of the Program that the Partner obtains hereunder ("Sybase
Shrinkwrap"). Notwithstanding the above, Demonstration Copies shall only be
used for the purposes outlined in Section 1 above and shall be returned to
Sybase upon expiration or termination of this Agreement. Partner shall ensure
that the End-User's use of the Programs is either subject to the terms and
conditions of (a) the Sybase Shrinkwrap (if Partner is making copies from a
Master Disk, it may reproduce the Sybase Shrinkwrap for such purposes) or (b) an
executed license agreement or shrinkwrap agreement between Partner and End-User
which is substantially similar to, and no less restrictive in protecting
Sybase's interests than, the Sybase Shrinkwrap. If a conflict arises between
this Agreement and any such license agreement, the terms of this Agreement shall
prevail. Partner shall undertake reasonable efforts to enforce the terms of any
license agreement between Partner and an End-User as it relates to the Programs.
6. Reports. Partner shall keep or cause to be kept full and accurate accounts
and records of all transactions made by it and by its authorized distributors
under this Agreement (including Evaluation Copies) in form such that all amounts
owing hereunder to Sybase may be readily and accurately determined. Partner
shall undertake to assure that its distributors are (a) accurately reporting to
Partner all sales to End-Users and (b) otherwise complying with this Agreement.
Partner shall allow Sybase to examine its records to determine compliance with
this Agreement. Any examination shall be at the expense of Sybase, shall occur
during regular business hours at Partner's offices and shall not interfere
unreasonably with Partner's regular activities. Sybase shall give Partner 30
days or more prior written notice of the date of each such examination and the
name of the accountant who will be conducting the examination. All information
obtained from conducting the examinations shall be maintained as Confidential
Information. Partner agrees to pay Sybase any amounts owing as a result of
Partner's noncompliance with the payment provisions of this Agreement within 30
days of the date of the examination report which details such non-compliance.
In the event such amounts owed by Partner to Sybase exceeds 5% of total
royalties due, Partner shall pay the costs of such examination.
7. Support & Maintenance. Partner shall be solely responsible for providing
End-User technical support and service of warranty claims for Partner's
Application Software, including the Programs, provided that Partner may also
sell Sybase technical support services for the Programs only, on the terms
described in the attached Schedules.
8. Independent Contractors. Partner and Sybase are independent contractors and
are not agents or representatives of each other. Partner does not have the right
to bind Sybase and shall not misstate or misrepresent its relationship to
Sybase.
9. Advertising; Trademarks. Sybase may identify Partner as a Commercial
Application Partner in Sybase advertising and marketing materials. Partner shall
not make any representations concerning the Programs which are consistent with
Sybase's marketing materials and advertising. Partner may utilize applicable
Sybase trademarks and logos only in accordance with Sybase's then-current
published guidelines, and trademarks shall remain the exclusive property of
Sybase or its licensors. Partner shall suitably feature the Programs and related
trademarks and Sybase's ownership of the Program in any advertising, marketing
literature, product documentation and packaging of the Application Software.
Partner shall give appropriate recognition in the Application Software of
Sybase's proprietary rights in the Programs in the same manner, places and times
and no less conspicuously than the recognition of the proprietary rights of
others including Partner in the Application Software.
2
<PAGE>
10. Term and Rights Upon Termination. This Agreement will become effective as
of the date first shown above and shall continue in force for a period of 3
years, subject to (a) Partner's payment of all fees owing hereunder, or (b)
termination under Section 11 below. Thereafter, this Agreement shall
automatically renew for additional one-year terms subject to payment of Sybase's
then-current Annual Renewal Fee and provided that Partner is not then in default
of this Agreement, unless written notice of termination is given by either party
at least 30 days prior to the expiration of the term then in effect. No
expiration or termination of this Agreement shall impair or affect (i) Internal
Use Copies, which shall continue so long as Partner is not in breach of the
Sybase Shrinkwrap or (ii) copies of Programs distributed by Partner to End-Users
in accordance with this Agreement prior to the effective date of the expiration
or termination of this Agreement. All Demonstration Copies shall be returned to
Sybase. Termination or expiration shall not release either party from its
liability to pay any fees accruing prior to the date of the termination or
expiration. Sections 3, 5, 10, 11, 12, 13, 14 and 18 of this Agreement shall
survive any expiration or termination of this Agreement.
11. Default. Either party may immediately terminate this Agreement or any
license granted hereunder by written notice to the other if such other party
breaches any term or condition of this Agreement, including but not limited to
failure to pay when due any fee hereunder, and does not remedy such breach
within 30 days of written notice thereof from the nonbreaching party. Each party
will reimburse the other party for all reasonable costs incurred by the other
party (including attorneys' fees) in collecting past due amounts hereunder. Any
non-remedial breach shall entitle the non-breaching party to terminate this
Agreement immediately upon written notice to the other party. This remedy shall
not be an exclusive remedy and shall be in addition to any other remedies which
the non-breaching party may have under this Agreement or otherwise.
12. Confidential Information. Each party will not disclose or use any business
and/or technical information of the other designated orally or in writing as
"Confidential" or "Proprietary" (together, "Confidential Information") without
the prior written consent of the other party. Such restrictions do not extend to
any item of information which (a) is now or later becomes available in the
public domain without the fault of the receiving party; (b) is disclosed or made
available to the receiving party by a third party without restrictions and
without breach of any relationship of confidentiality; (c) is independently
developed by the receiving party without access to the disclosing party's
Confidential Information, (d) is known to the recipient at the time of
disclosure, or (e) is produced in compliance with applicable law or court order,
provided that the disclosing party is given reasonable notice of such law or
order and an opportunity to attempt to preclude or limit such production. Upon
termination or expiration of this Agreement, each party shall immediately return
all copies of Confidential Information received from the other party. Partner
shall not release the results of any benchmark of the Programs to any third
party without the prior written approval of Sybase for each such release.
13. Disclaimer of Warranty; Limitation of Liability. Except as expressly
provided in the Sybase Shrinkwrap, NO EXPRESS OR IMPLIED WARRANTY OR CONDITION
IS MADE WITH RESPECT TO THE PROGRAMS OR SERVICES SUPPLIED BY SYBASE OR ITS
SUBSIDIARIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The aggregate liability to
Sybase and its subsidiaries, if any, for any losses or damages arising out of or
in connection with this Agreement, whether the claim is in contract, tort or
otherwise, shall not exceed the amount paid by Partner to Sybase under this
Agreement for the affected Programs or services. UNDER NO CIRCUMSTANCES SHALL
SYBASE, ITS SUBSIDIARIES OR ITS LICENSORS BE LIABLE FOR SPECIAL, INDIRECT,
EXEMPLARY, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED
TO, LEGAL FEES, LOSS OF PROFITS, LOSS OR INACCURACY OF DATA OR LOSS RESULTING
FROM BUSINESS DISRUPTION, EVEN IF SYBASE HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
14. Indemnification. Partner indemnities and holds harmless Sybase, its
affiliates, directors, employees and agents from all third party claims,
including court costs and reasonable fees of attorneys and expert witnesses,
arising in connection with (a) a breach by Partner of its agreement with an End-
User or distributor (unless such breach was caused by Sybase's breach of this
Agreement or the Sybase Shrinkwrap), or (b) use of the Application Software if
liability is not caused by the Programs as provided by Sybase. Sybase
indemnifies and holds harmless Partner, its affiliates, directors, employees and
agents from all third party claims, including court costs and reasonable fees of
attorneys and expert witnesses, arising in connection with (i) a breach by
Sybase of the Sybase Shrinkwrap or (ii) use of the Programs as provided by
Sybase if liability is not caused by the Application Software.
3
<PAGE>
15. Export Restriction. Partner shall not transfer, directly or indirectly,
any restricted Programs or technical data received from Sybase or its
subsidiaries, or the direct product of such data, to any destination subject to
export restrictions under U.S. law, unless prior written authorization is
obtained from the appropriate U.S. agency.
16. Assignment. This Agreement may not be assigned (by operation of law or
otherwise) or otherwise transferred in whole or in part by Partner unless
Partner has received prior written permission from Sybase, such permission not
to be unreasonably denied by Sybase. To the extent Partner is permitted to
assign this Agreement all provisions of this Agreement shall be binding upon
Partners successors or assigns.
17. Notices. All notices under this Agreement shall be in writing and either
delivered personally, sent by first class mail, express carrier or by confirmed
facsimile transmission to the address of the party set forth above (and if to
Sybase, to the attention of the General Counsel). All notices shall be deemed
given on the business day actually received.
18. Other. This Agreement, the initialed Schedules, and any documents
explicitly referred to therein, -constitute the entire agreement between the
parties, and no representation, condition, understanding or agreement of any
kind, oral or written, shall be binding upon the parties unless incorporated
herein. This Agreement may not be modified or amended, nor will the rights of
either party be deemed waived, except by an agreement in writing signed by
authorized representatives. of-Partner and Sybase. Purchase orders shall be
binding as to the products and services ordered, and the site for delivery of
Programs or performance of services as set forth on the face side of or a
special attachment to the purchase order. Other terms and preprinted terms on or
attached to any purchase order shall be void. This Agreement shall be governed
by, and construed in accordance with, the laws of California if Partner is
located in the United States and the laws of Ontario if Partner is located in
Canada without regard to their conflict of laws rules or the United Nations
Convention on the International Sale of Goods. If any provision of this
Agreement is held to be unenforceable, the parties shall substitute for the
affected provision an enforceable provision which approximates the intent and
economic effect of the provision. The parties have requested that this Agreement
and all documents contemplated hereby be drawn up in English. For Quebec
Province transactions: Les parties aux presentes ont exige que cette entente et
tous autres documents envisages par les presentes soient rediges en anglais.
Accepted and agreed on behalf of:
DeskTalk Systems, Inc.
________________________________ ("Partner) Sybase, Inc. ("Sybase")
(or Sybase Canada Limited, if
applicable)
BY: /s/ PAUL MADICK /s/ GLEN GERMANOWSKI
________________________________ _______________________________
(Authorized Signature) (Authorized Signature)
Paul Madick Glen Germanowski
________________________________ _______________________________
(Printed Name) (Printed Name)
Chief Operations Officer 6/26/96 Senior Corporate Counsel 7/9/96
________________________________ _______________________________
(Title) (Date) (Title) (Date)
4
<PAGE>
SCHEDULE A - SILVER LEVEL
-------------------------
to the Commercial Application Partner Agreement
-----------------------------------------------
Database Partner Fees and Guidelines
------------------------------------
<TABLE>
<S> <C>
---------------------------------------------------------------------------------------------------------------
Territory United States and Canada; however, Partner may sell application-specific
deployment seats worldwide.
---------------------------------------------------------------------------------------------------------------
Initial Fee $ 895; includes up to 5 Demonstration Copies.
Annual Renewal Fee $ 895.
Only one Initial and Annual Fee required per Agreement.
---------------------------------------------------------------------------------------------------------------
Evaluation Copies Entitled to 90-day Evaluation Copies.
---------------------------------------------------------------------------------------------------------------
Discount for Software Programs Sybase will check block and initial if authorized to sell:
[X] Enterprise Databases
[X] Workplace Databases
[X] Design Tools
Discounts for the above software Programs are specified in the then-current
Database Partner Products Price List.
---------------------------------------------------------------------------------------------------------------
Discount for sale of End-User 10% discount off then-current Price List on technical support subject to
Technical Support End-User's execution of a Sybase support agreement. Partner shall not sell
renewals of technical support.
---------------------------------------------------------------------------------------------------------------
Discount for Partner Technical 10% discount off then-current Price List on any commercially available
Support end-user technical support offering.
---------------------------------------------------------------------------------------------------------------
Discount for Partner Training 20% discount off then-current Price List on any Sybase standard training
rates for Partner employees or agents trained at Sybase public training
centers.
---------------------------------------------------------------------------------------------------------------
</TABLE>
ACCEPTED and AGREED: By: /s/ PM 6/26/96 /s/ GG 7/9/96
______________________________ _________________________
(Partner Initials) (Date) (Sybase Initials) (Date)
5
<PAGE>
ADDENDUM TO COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Addendum (the "Addendum") entered into on _______________ 199_ supplements
and amends the terms of the Commercial Application Partner (CAP) Agreement dated
__________________, 199_ (the "Agreement") between Sybase, Inc. ("Sybase") and
Desktalk Systems, Inc. ("Partner"). Capitalized terms not otherwise defined
shall have the meaning set forth in the Agreement.
Sybase and Partner agree as follows:
Section 1. entitled "License Grant." Insert the following words after the first
sentence:
"Partner shall have the right to embed the Programs with Partner's Application
Software."
Section 10. entitled "Term and Rights Upon Termination." On the fifth line,
delete and replace the term "30 days" with "90 days."
Definitions.
-----------
Terms used in connection with the Agreement mean the following:
The term "Workplace" means a level of Licensed Software which runs with an Intel
based platform, certain "low-end" UNIX based platforms or other platforms which
may be added from time to time, all as specified in the then current Price List,
designated as "Workplace' on an accepted Purchase Order, and subject to the
restrictions in the "Network License' definition set forth below.
The term "Enterprise" means a level of Licensed Software other than an Intel
based platform and certain "low-end" UNIX based platforms, or other platforms
which may be added from time to time, all as set forth in the then current Price
List, designated as "Enterprise" on an accepted Purchase Order, which may be
accessed as specified in the "Network License" definition.
The term "Named User" means a specific named person licensed to use a copy of
Licensed Software. The term "Seat" means a specific identifiable unique accessor
of information such as a terminal, PC, single user workstation or real time
device. Use of software or hardware which reduces the number of Seats directly
accessing the Licensed Software (sometimes called "multiplexing" or "pooling")
does not reduce the number of Seats required to be licensed, but rather the
number of licensed Seats must be equal to the number of distinct inputs to the
multiplexing software or hardware. Each properly licensed Seat or Named User can
access any licensed server on the network, regardless of the operating system.
The term "Networked License" means each copy of the Licensed Software which may
be accessed by any and all Seats or Named Users, that are licensed to access
such Licensed Software subject to the following restrictions: (i) Workplace
Seats and Workplace Named Users licensed to access a particular Licensed
Software may only access the Workplace level of such Licensed Software, and (ii)
Enterprise Seats and Enterprise Named Users licensed to access a particular
Licensed Software may access the Workplace and Enterprise levels of such
Licensed Software. Accordingly, Seats and Named Users in a Networked License are
not tied to a particular copy of the Licensed Software.
The term "Minimum Users" for Enterprise pricing (Networked Model) refers to a
minimum number of User licenses that must be purchased with certain Products
listed within the Sybase Price List. The Sybase Price List is subject to change
from time to time at the sole discretion of Sybase. Each Minimum Users
requirement is on a one time basis only and does not apply to any and all
subsequent Product licenses that are purchased for each Networked Model
environment. For example, if Customer purchases 2 SQL Server Server Licenses and
5 SQL Server Seat Licenses, the 5 Seats can access any of the two Servers. Each
additional Product [like Open Server] would be similarly licensed: 2 Open Server
Server Licenses and 5 Open Server Seat Licenses.
6
<PAGE>
Except as amended above, the Agreement shall remain in full force and effect.
Sybase, Inc. Desktalk Systems, Inc.
By: /s/ GLEN GERMANOWSKI /s/ PAUL MADICK
____________________________ By:____________________________
Name: Glen Germanowski Paul Madick
__________________________ Name:__________________________
Title: Senior Corporate Counsel Chief Operations Officer
_________________________ Title:_________________________
Date: 7/9/96 6/26/96
__________________________ Date:__________________________
7
<PAGE>
ADDENDUM TO COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Addendum (the "Addendum") entered into on 1/20/1998 supplements and amends
the terms of the Commercial Application Partner (CAP) Agreement dated June 26,
1996 (the "Agreement") between Sybase, Inc. ("Sybase") and Desktalk Systems,
Inc. ("Partner"). Capitalized terms not otherwise defined shall have the meaning
set forth in the Agreement.
1. Sybase grants Partner the following additional license rights during the
term of and subject to the terms of the Agreement and the amendment. A "Seat"
is a specific identifiable unique accessor of information such as a terminal,
PC, single workstation or real time device. As used herein, a "Named User" is a
specific named person licensed to use a Program.).
Partner may offer "Data Access Seat Licenses" (as defined below) to its End-
Users for access through the Internet to the Sybase SQL Server Program, along
with copies of Jconnect Program (downloaded by Partner from the Web), provided
End-User has and existing license for Sybase SQL Server Program or will license
Sybase SQL Server for use with the TrendWeb Application Software from Partner.
A "Data Access Seat License" permits an external Seat to access, via the
Internet, the Sybase SQL Server Program resident on the End-User's servers and
at its site, in conjunction with the TrendWeb Application Software. A Data
Access Seat may be an Enterprise or a Workplace level license. Data Access Seats
may query the database resident with the TrendWeb Application Software but may
not install or download the Sybase SQL Server Program or use the Sybase SQL
Server to develop or modify applications or perform other programming tasks.
Partner understands and will ensure that End-User acknowledges that the Sybase
SQL Server Program is an Application Deployment License.
Under this Addendum, Jconnect will be a full use copy and not an Application
Deployment License. An "Application Deployment License", "Application Deployment
Seat" or "Application Deployment Named User" is a license for a copy of a
Program, a Seat or a Named User (as applicable) which can only be used for the
purpose of (a) an End-User running Noncustom Application Software (excluding any
third party application programs marketed by Partner) and (b) extracting data on
a read only basis from the Application Software for use with other applications;
such extraction may either be through tools within the Application Software or
through third party tools. As used in the prior sentence, "Noncustom Application
Software" means Application Software which Partner distributes without change to
more than one End-User. As used in the prior sentence, the phrase "running
noncustom Application Software" means that the End-User cannot use the Programs
to create or alter columns, tables, schemes or databases unless (i) such
columns, tables, schemes and databases are created or altered by and within the
context of the Application Software (i.e., the Application Software must
generate the commands without the End User itself using the Program's command
verbs) and only include data first captured in the specific Application Software
in which the new columns or tables are created or altered (i.e., not transferred
into such Application Software from other Application Software or applications),
and (ii) the commands to insert, delete or modify data in the new or altered
columns, tables, schemas or databases must be included within existing "begin
1
<PAGE>
transaction" and "commit transaction" statements in the original version of the
Application Software. Moreover, an Application Deployment Copy, Application
Deployment Seat or Application Deployment Named User may not be used to run
copies of Programs which have been modified through a full use license to
include modifications not permitted above. Notwithstanding the above, the End
User may use standard database administration command verbs used for backup,
recovery, space/index management and consistency checking in the course of
systems administration.
2. In addition to license fees owed to Sybase by Partner for distribution of
Sybase SQL Server Program to End-Users, the following fees for Data Access Seats
plus single copy of Jconnect Program shall be paid under terms set forth under
the Agreement. Fees for Jconnect Program have been included in the Data Access
Seat fees below. For each copy of the TrendWeb Application Software distributed
to End-User, End-User shall license or have licensed a copy of Sybase SQL Server
Program per server (together, a "Unit").
Data Access Seat MINIMUM PRICE OF DATA ACCESS SEATS PER UNIT (PER SERVER)
The greater of ***** of the net fees paid for the
Application Software or:
1 *****
2-5 *****
6-10 *****
11-20 *****
21-50 *****
51-100 *****
101-250 *****
251-500 *****
501-750 *****
751+ *****
3. Partner agrees that prior to granting the Data Access Seat License to any
End-User, such End-User will sign an agreement with substantially similar terms
as those set forth in Paragraph 1 above.
4. For the TrendWeb Application Software, Partner will send to Sybase no later
than 30 days after the end of a fiscal month, (a) a written or readable
electronic report showing the number of copies of Programs (including Jconnect
and Sybase SQL Server) distributed to each End-User, total Data Access Seats to
each End-User, Partner's price list price for each distributed product, the net
price, and the total amount owed Sybase and (b) a royalty payment for fees due.
2
__________
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE>
Except as amended above, the Agreement shall remain in full force and effect.
Sybase, Inc. Desktalk Systems, Inc.
By: /s/ GLEN GERMANOWSKI By: /s/ PAUL MADICK
_____________________________ _____________________________
Name: Glen Germanowski Name: Paul Madick
___________________________ ___________________________
Title: Senior Corporate Counsel Title: General Counsel
__________________________ __________________________
Date: 2/2/98 Date: 1/20/98
___________________________ ___________________________
3
<PAGE>
ADDENDUM TO COMMERCIAL APPLICATION PARTNER (CAP) AGREEMENT
This Addendum (the "Addendum") entered into on Jan. 1, 1998 supplements
and amends the terms of the Commercial Application Partner (CAP) Agreement dated
June 26, 1996 (the "Agreement") between Sybase, Inc. ("Sybase") and Desktalk
Systems, Inc. ("Partner"). Capitalized terms not otherwise defined shall have
the meaning set forth in the Agreement.
1. Partner will send Sybase no later than 30 days after a fiscal month end, (a)
a written or readable electronic report showing the number of copies of full use
Programs distributed to End-Users, total Programs distributed to each End-User,
total, Partner's price list price for each distributed product, the net price,
and the total amount owed Sybase and (b) a royalty payment for fees due.
2. Partner shall pay the then current Update fee for the right to pass on
updates for full use Programs to its End-Users.
Except as amended above, the Agreement shall remain in full force and effect.
Sybase, Inc. Desktalk Systems, Inc.
By: /s/ GLEN GERMANOWSKI By: /s/ PAUL MADICK
____________________________ ___________________________
Name: Glen Germanowski Name: Paul Madick
__________________________ _________________________
Title: Senior Corporate Counsel Title: General Counsel
_________________________ ________________________
Date: Feb. 2, 1998 Date: 1/1/98
__________________________ _________________________
4
<PAGE>
AMENDMENT TO
COMMERCIAL APPLICATION PARTNER AGREEMENT
This Amendment (the "Amendment") entered into on Feb. 4, 2000, supplements and
amends the terms of the Commercial Application Partner Agreement dated June 26,
1996 as previously amended (the "Agreement") between Sybase, Inc. ("Sybase") and
Desktalk Systems, Inc. ("Partner"). Capitalized terms not otherwise defined
shall have the meaning set forth in the Agreement.
1. In the Addendum to Commercial Application Partner Agreement dated January
20, 1998, the following changes are made:
Paragraph 3 of Section 1 is replaced with the following new paragraph.
A "Data Access Seat License" permits an external Seat to access, via the
Internet, the Adaptive Server Enterprise Program resident on the End-User's
servers and at its site, embedded in the TrendWeb Application Software. A
Data Access Seat may be an Enterprise or a Workplace level license.
In Section 4, "the TrendWeb" in line 1 is replaced with "all". In line 4
after "Data Access Seats" add "and all other Seats".
2. a. License Fee Payment. Partner shall pay Sybase a non-refundable,
irrevocable amount of ***** in prepaid license fees, due in accordance with
the following schedule: ***** due no later than February 4, 2000; *****
due no later than March 2, 2000, and ***** due no later than March 30, 2000.
Such amount may only be applied to license fees for the Adaptive Server
Enterprise Program ("ASE") Program distributed to End-Users under the Agreement.
Failure to meet such payment terms within the time periods set forth above will
result in termination of this Addendum.
b. Support. In exchange for the fees specified on the Exhibit A, Partner
shall receive the Extended Support Plan for one year from the date of the
Agreement set forth in the attached Extended Support Plan Attachment. Including
the new contacts specified on such Exhibit A, as of the date of this Amendment,
Partner has a total of 10 Extended Support U.S. contacts, and 3 Extended Support
International contacts. Additional Extended Support U.S. contacts may be
purchased at ***** each and additional Extended Support International contacts
may be purchased at ***** each. Such pricing is subject to change, in accordance
with the then current Price List.
3. For the TREND and TREND related Application Software, Partner shall receive
the following pricing for the embedded ASE Program.
a. Partner shall receive (i) a ***** discount off the price of each
Workplace ASE Program Seat and Server and (ii) a ***** discount off the price of
each Enterprise ASE Program Seat and Server.
1
__________
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE>
b. The above discount is in addition to any Partner discount set
forth in the Price List, and is to be calculated after the application of
the standard Partner discount.
4. For the TrendWeb Application Software dependent on ASE, license fee
royalties payable by Partner to Sybase for the Programs distributed under this
Addendum shall be calculated as ***** of Partner's worldwide Net Revenue. "Net
Revenue" shall mean the total license fees paid to Partner by its End User with
respect to the TrendWeb Application Software, excluding sales and similar taxes,
customs duties, shipment charges and other such ancillary items. Net Revenue
shall include the net present value of all installment payments due by the End
User, but shall exclude custom software development and consulting services. For
purposes of determining the amounts payable to Sybase hereunder, no deduction
from Net Revenue shall be made for royalties, commissions, costs of goods sold,
returns or other similar costs incurred without Sybase's express written
agreement. All payments shall be in US Dollars and shall be converted from
foreign currency amounts on the same basis and at the same conversion rates as
Partner generally uses for its own revenue accounting purposes for Partner
revenue transactions. For purposes of determining the Net Revenue from the
Application Software, if the Application Software is bundled with other hardware
or software, the Net Revenue attributable to the Application Software shall be
calculated on the basis of the prices of all components of the bundle. Partner
shall provide Sybase with supporting details of such Net Revenue calculations
upon request by Sybase from time to time. In addition, in no event shall the per
copy royalty payable by Partner to Sybase for any Program be less than the
following:
No. of Partner's
Seats Distributed Minimum Per Copy Royalty
1 *****
2-5 *****
6-10 *****
11-20 *****
21-50 *****
51-100 *****
101-250 *****
251-500 *****
501-750 *****
751+ *****
5. The amount set forth in Section 2, above, shall not be used for Development
Software or support or maintenance fees.
6. Second Level Support/Updates Pricing. For each copy of the Program
distributed by Partner, Partner shall pay Sybase an annual fee, for Second Level
support plus Updates as available, equal to ***** of the total license fees paid
to Sybase for each Program, provided Partner is current on support for its
Development Software.
7. Partner will pass the following terms to the End-User: "A Program
designated as `Workplace' may only run on the operating environment specified in
the order. A Program
2
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***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE>
designated as `Enterprise' may only run on the operating environment specified
in the order, or on a Workplace operating environment."
8. Term. The Agreement is hereby extended to three years from the date of this
Addendum. The Agreement shall not be thereupon automatically extended.
Except as amended above, the Agreement shall remain in full force and effect.
Sybase, Inc. Desktalk Systems, Inc.
By: /s/ GLEN GERMANOWSKI By: /s/ PAUL MADICK
________________________________ _______________________________
Name: Glen Germanowski Name: Paul Madick
______________________________ _____________________________
Title: VP/Associate General Counsel Title: General Counsel
_____________________________ ____________________________
3
<PAGE>
Sybase, Inc. PARTNER EXHIBIT A
NETWORKED AND/OR STANDALONE LICENSED PROGRAMS AND SERVICE
<TABLE>
<CAPTION>
Partner Address: DESKTALK Ship To Address: DESKTALK Contact: ____________
19191 South Vermont Avenue 9th Floor 19191 South Vermont Avenue 9th Floor Phone: ____________
Torrance, CA 90502 Torrance, CA 90502 Contact: ____________
Phone: ____________
(check one) SI ______ CAP [X] Use a separate Exhibit A for each site. (Place Contact
Information on
additional sheets
as needed)
(check one): Licensed Use: Demonstration ____ Evaluation ____ Internal ____ Distribution to End User [X] Outsourcing at Partner's
site ____ Outsourcing at End-User's site: ____
If Partner is ordering Programs as an Outsourcer, provide End-User name and address: _______________________________________________
(Partner may only order copies for Outsourcing if it has signed Outsourcing Addendum.)
In exchange for the Program licenses and services listed below, including Restricted Release licenses, Partner agrees to pay Sybase
or its assigns the following fees, due Net 30 days from the date of the invoice.
------------------------------------------------------------------------------------------------------------------------------------
Catalog No. Product Name* Version Operating Lic Qty Primary or Total List Disc % Total
System Type** Secondary Price (Use Discounted
Copy list price for License Fee
("P" or "S") country where
** Program will
be used)
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
9700 VAR PREPAY LICENSES () 1 P $ ***** 0.00 *****
10373ns Adaptive Server Enterprise 1192 Sun Solar 1 P $ 0.00 0.00 $ 0.00
98486 Add'l Extended Support $ $
Contact 6
98561 Add'l Basic Global Support
Con 1 $ $
Totals $ *****
<CAPTION>
---------------------------------------------------------
Catalog No. Net First Consulting, Check if
Year Additional Restricted
Support Documentation, Release
Fees Additional
Education and
Other Fees
---------------------------------------------------------
<S> <C> <C> <C>
9700 $ 0.00 $ |_|
10373ns $ 0.00 $ |_|
98486 $ 0.00 $ |_|
98561 $ 0.00 $ |_|
Grand Totals $ *****
</TABLE>
* License Type - (e.g. Server (SR), Seat(ST), Named User (NM), Standalone
Seat (SS), Standalone Named User (SN) or Incremental CPU (IC)). E/W/O = E
is Enterprise, W is Workplace and O is Other.
** All licenses shall be subject to the terms of the Software License
Agreement between the parties referenced above except for Programs licensed
by a Sybase subsidiary or third party pursuant to a license agreement
accompanying the Program media. Partner acknowledges that such license
agreement may contain a different warranty period and that Sybase is not
responsible for support of any Programs of such subsidiaries or third
party. If support for any Sybase subsidiary or third party Programs is
included on this Exhibit A, then the support shall be provided by such
subsidiary or third party in accordance with its then current support
policies.
For each copy of SYBASE SQL Server included on this Exhibit A, Partner is
deemed to have also licensed without further charge one Open Client/C
Developer's Kit for each of the following operating systems: MS-DOS,
Windows, MS Windows 95, MS Windows NT, OS/2 and Macintosh. If an Open
Client/C Developer's Kit or an ODBC Driver has been licensed for a
particular operating system, then Partner may make and Use an unlimited
number of copies of the Open Client/C or ODBC Driver Run-Time Programs (as
applicable) running on such operating system.
*** In the case of Seats and Named Users, a `Primary Copy' is a Seat or Named
User for which a license card is shipped to the Partner and a `Secondary
Copy' is a Seat or Named User licensed without the shipment of card.
Sybase, Inc.: Name of Partner: DeskTalk Systems, Inc
_______________________
By: /s/ GLEN GERMANOWSKI By: /s/ PAUL MADICK
___________________________________ ____________________________________
Name: Glen Germanowski Name: Paul Madick
_________________________________ __________________________________
Title: VP/Associate General Counsel Title: General Counsel
________________________________ _________________________________
Date Exhibit Signed: 2/4/00
___________________
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***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
<PAGE>
Extended Support Attachment
1. SUPPORTED PROGRAMS.
Sybase will provide SupportNow Extended support for the "Supported Programs"
listed on the Sybase quotation and as confirmed by Customer's purchase order or
written acknowledgement and a Sybase invoice. "Supported Programs" shall mean
the then current version of the listed software programs running the specified
operating system software and the immediately preceding version of such sort
program. Sybase will provide two certification test vouches.
2. SUPPORT SERVICES.
2.1 Telephone Technical Support. Sybase will provide telephone technical
support for the Supported Program 24 hours a day, 7 days a week, 365 days a
year. When a Customer calls for technical assistance outside of local normal
business hours or during locally observed holidays, the call is automatically
routed to an open support center. P1 cases will be worked on a 24 x 7 basis
until the System is operational or a reasonable workaround is in place. All
other case levels will be logged for next business day response by the local
support center. For P1 cases to be worked on a 24 x 7 basis, the Customer must
provide Sybase with a contact during this 24 x 7 period, either on site or by
beeper, to assist with data gathering, testing, and applying all fixes to
Customer's environment.
2.2 Electronic Support. Sybase will provide access to its electronic
support services, such as the web-based Technical Library, electronic case
management, electronic software distribution, and Newsgroups.
2.3 Onsite Assistance. Sybase, at its discretion, may provide optional
onsite assistance to Customer at Customer's request. For such optional onsite
assistance, Customer agrees to pay the then current time and materials charges
plus actual travel, living and out-of-pocket expenses reasonably incurred by
Sybase.
3 AUTHORIZED CONTACTS.
Sybase shall provide the Support Services for four Customer contacts. The
Customer may designate other support contacts for an additional annual charge
per contact. The Customer is responsible to designate the support contacts for
all matters related to service. Such contacts shall be knowledgeable in the
Supported Programs and all associated software.
4 RESOLUTION OF SUPPORT REQUESTS.
4.1 Initiation of Support Request. Customer's contact may contact the
designated Sybase Technical Support Center, or enter a request electronically
via the web, to initiate a software support request referred to as a case. The
Technical Support Center will log the case and assign a reference number to it
called a case number. When requesting service, Customer shall provide the
following information: (a) Customer's name, (b) support ID number, (c) priority
of support request, (d) product and version number of the software Customer is
using, including maintenance release number, (e) platform and operating system,
including version number, (f) front-end (client) product and version numbers,
(g) client machine operating system type and version, (h) description of the
problem, and (i) application program environment.
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<PAGE>
4.2 Priority level. Customer will use its reasonable business judgment to
categorize each support request associated with the Supported Programs as one.
of the following types of priorities:
(a) Priority One ("P1"): The software is not operational and no
workaround is possible, or a workaround exists but is unacceptable became of its
impact on Customer's business. Development or production is halted, or the
problem is having a severe impact on Customer's ability to continue development.
(b) Priority Two ("P2"): The software is operational, but its
functionality is seriously affected. There may be a workaround, but implementing
the workaround is time consuming and will adversely affect Customer's project.
(c) Priority Three ("P3"): The software is useable, but development
or production is impacted. Development/production can continue for a reasonable
amount of time before the problem becomes critical. A workaround is available
and acceptable.
(d) Priority Four ("P4"): The software is useable, but Customer has a
question or would like to submit an enhancement request.
4.3 Response Policy. If, in Sybase's judgment, Customer correctly
identifies a support request u a Priority One severity, Sybase shall use
reasonable efforts to respond to the request within one (1) hour. If, in
Sybase's judgment, Customer correctly identifies a support request as a Priority
Two severity, or a Priority Three/Four severity, Sybase shall use reasonable
effort to respond within two (2) hours, or six (6) hours respectively. After
responding to the call and gathering any additional required information, Sybase
will develop and communicate a plan for addressing the support request, which
may involve providing a fix, developing a workaround, or providing some other
solution.
4.4 Access and Configuration. Customer shall provide Sybase and its
designees with dial-in telephone or Internet access to the applicable system for
servicing under this Agreement, provided that Sybase and its designees comply
with Customer's reasonable security requirements related to such telephone
access. In addition, the Customer will maintain all software, hardware, and
network equipment in the configuration recommended by Sybase or by the
appropriate equipment vendor.
4.5 Escalation Response. If at any point while a case is open the
Customer is not satisfied with the current plan of action, the Customer may
request escalation through the Technical Support engineer. The Technical Support
manager responsible for the team supporting the case will address escalation
requests and develop an action plan. This plan will be mutually agreed upon with
the Customer. Customers may request escalation to a higher level whenever they
feel it is necessary.
5 SOFTWARE SERVICES - PROGRAM REVISIONS.
5.1 Deliverables. Sybase will provide the following updates and
improvements to the Supported Programs, as they are made generally available to
Sybase SupportNow customers. When deploying such updates and improvements, the
Customer will maintain all software, hardware, and network equipment in the
configuration recommended by Sybase or by the appropriate equipment vendor.
(a) Bug Fixes and Workarounds. Sybase will provide bug fixes or workaround
solutions to correct, to the extent reasonably possible, any defects in the
Supported Programs, which cause the Supported Programs not to operate in
accordance with the Supported Programs
2
<PAGE>
published end user documentation. Sybase reserves the right to make corrections
or fixes only to the current or immediately preceding version of the Supported
Programs at Sybase's sole discretion.
(b) New Version Releases. Sybase will provide enhancements to the
Supported Programs, which Sybase designates as "internal improvements". The term
"enhancement" shall mean any program, any part thereof, or any materials not
included in the Supported Programs at the time of execution of this Agreement,
which modify or improve the existing functions of the Supported Programs.
Enhancements do not include any now modules which Sybase designates as software
products and charges separately or any new software products which Sybase
designates by a different product name.
(c) Maintenance Releases. Sybase will provide periodic maintenance
releases with fully tested software fixes.
(d) Limitations. Sybase does not have an obligation to modify the
Supported Programs to run with now versions of the Operating System.
5.2 Delivery Method. Sybase will provide the revisions described under this
Paragraph 5 to Customer upon request by either shipment or electronic
distribution.
6 GLOBAL SUPPORT.
Support is provided only for contacts based in a single country. Sybase may
provide optional geography coverage for support contacts based outside the
primary country at the Customer's request and if suitable Sybase personnel are
available in the requested country. For such global support coverage, Customer
agrees to pay the additional then current annual global support contact fees.
3
<PAGE>
ADDENDUM TO COMMERCIAL APPLICATION PARTNER AGREEMENT
This Addendum (the "Addendum") entered into on August 1, 2000 supplements and
amends the terms of the Commercial Application Partner ("CAP") Agreement dated
June 26, 1996 (the "Agreement") between Sybase, Inc. ("Sybase") and Desktalk
Systems, Inc. ("Partner"). Capitalized terms not otherwise defined shall have
the meaning set forth in the Agreement.
The Schedule A-Silver Level to the Commercial Application Partner Agreement is
modified as follows. "includes up to 5 Demonstration Copies" is deleted. In
exchange for payment of the Annual Renewal Fee, Partner shall hereby have the
right to make a reasonable number of Demonstration Copies.
Except as amended above, the Agreement shall remain in full force and effect.
Sybase, Inc. Desktalk Systems, Inc.
By: /s/ Glen Germanowski By: /s/ Joseph M. Feig
-------------------------------- -------------------------------
Name: Glen Germanowski Name: Joseph M. Feig
------------------------------ -----------------------------
Title: VP/Associate General Counsel Title: Chief Financial Officer
----------------------------- -----------------------------
Date: August 8, 2000 Date: August 1, 2000
------------------------------ ------------------------------
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