{"id":42644,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/original-equipment-manufacturer-agreement-informix-software.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"original-equipment-manufacturer-agreement-informix-software","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/original-equipment-manufacturer-agreement-informix-software.html","title":{"rendered":"Original Equipment Manufacturer Agreement &#8211; Informix Software Inc. and Accrue Software Inc."},"content":{"rendered":"<pre>\nINFORMIX                                            Contract # ________________\n\n\n\n                    ORIGINAL EQUIPMENT MANUFACTURER AGREEMENT\n\n           Informix Software, Inc. ('Informix'), and the person or entity listed\nin the signature block below ('Licensee') hereby agree that, after execution of\nthis agreement (this 'Agreement') by the parties, the terms and conditions of\nPart I and Part II, shall apply to Licensee's use of the Products. All\ncapitalized terms used herein and not otherwise defined are defined in Part II,\nsection H.\n\nPART I.\n\n1.    APPOINTMENT OF LICENSEE:\n\n(a) Informix appoints Licensee to act as an 'Original Equipment Manufacturer' or\n'OEM'. An OEM develops, owns and licenses, to more than one Reseller or End\nUser, an End Item with the OEM's Application and a Product so embedded in the\nEnd Item that the Product is invisible to the End User.\n\n(b) The Products may be distributed worldwide ('Territory').\n\n(c) The term of this Agreement shall commence on January 1, 1999 and continue\nthrough March 31, 2000. Thereafter, the Agreement shall automatically renew for\ntwo additional one year terms unless earlier terminated in accordance with Part\nII, section F.\n\n(d) Licensee shall manufacture the object code portion of the Runtime Products\nin accordance with Part II, section A.7.\n\n2.    SERVICES.\n\nFor Products used by Licensee in accordance with the terms of this Agreement,\nLicensee shall purchase from Informix INFORMIX-OpenLine for Development Products\nand INFORMIX-Assurance for Runtime Products (INFORMIX-Assurance and\nINFORMIX-OpenLine are referred to collectively as 'Services').\n\n3.    PRODUCTS AND SYSTEMS.\n\n(a) The Products as such are made generally commercially available from Informix\nare licensed for use in accordance with the User Documentation and this\nAgreement. The Products and or their successors will be commercially available\nand supported by Informix for the term of the Agreement.\n\n(b) The Products may only be used on the computers on which Informix has made\nthe Products generally commercially available ('Computer Systems').\n\n4.    INFORMIX'S FEES.\n\n(a) (i) For each copy of the Application that Licensee licenses to a reseller or\na customer, Licensee shall pay a fee to Informix [*].\n\n5.    PAYMENT.\n\n(a) During the calendar year of 1999, Licensee will pay Informix the [*], due in\nconnection to the previous license of the Products specified in Exhibit A, for\n calendar years 1997 and 1998, [*]\n\n\n\n             Payment                                    Date\n             -------                                    ----\n                                               \n               [*]                                       [*]\n\n\n(b) Upon execution of the Agreement, Licensee shall report and pay Informix\nlicense fees for the months of January 1999 and February 1999.\n\n(c) The fees for the renewal of the existing support services, which also\ninclude the Services as set forth in Part I, Section 2. above, shall be [*]. \nPayments will be made [*].\n\n\n\n--------------------------------------------------------------------------------\nLICENSEE:\n\nACCRUE SOFTWARE, INC.\n-------------------------------------------------------------------------------\n1275 Orleans Drive\n-------------------------------------------------------------------------------\nSunnyvale, CA. 94089-1138\n-------------------------------------------------------------------------------\nAttn:  C. Lexis King, Controller\n-------------------------------------------------------------------------------\nPhone:  (408) 542-8906\n-------------------------------------------------------------------------------\n\n\n\/s\/ Rick Kreysar\n-------------------------------------------------------------------------------\nSignature\n\nRick Kreysar  CEO\n-------------------------------------------------------------------------------\nPrinted Name\/Title\n\n3\/29\/99\n-------------------------------------------------------------------------------\nDate\n\n\nINFORMIX:\n\nINFORMIX SOFTWARE INC.\n4100 Bohannon Drive\nMenlo Park, California 94025\nAttn: General Counsel\n(650) 926-6300\n\n\n\/s\/ Elizabeth E. Hoyt\n-------------------------------------------------------------------------------\nSignature\n\n\nElizabeth E. Hoyt  Assistant General Counsel and Assistant Secretary\n-------------------------------------------------------------------------------\nPrinted Name\/Title\n\n    3\/31\/99\n----------------\n Effective Date\n\n* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED\n  SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\n\n\n\n\n\n6.    ADDITIONAL PROVISIONS.\n\n(a) Licensee and its authorized resellers shall have 'Demonstration Rights'\nsolely to demonstrate the Runtime version of the Product for use in conjunction\nwith the Application to prospective customers.\n\n(b) Licensee and its authorized resellers shall have evaluation sublicensing\nrights, for evaluation purposes only, to sublicense the Runtime version for use\nin conjunction with the Application by prospective customers. [*]\n\n(c) Licensee may elect to have data warehouse consulting services or training\ncourses provided by Informix [*].\n\n(d) Informix and Licensee hereby agree to hold Product update and account review\nmeetings every calendar quarter on a mutually agreed schedule.\n\n(e) The Products and\/or their successors will be commercially available and\nsupported by Informix throughout the term of the Agreement.\n\nPART II\n\nA. Licensee's rights, representations and obligations.\n\n1. Informix hereby grants and Licensee hereby accepts the nonexclusive,\nnontransferable, royalty-bearing right and license within the Territory and in\naccordance with the User Documentation and this Agreement:\n\n(a) to internally use the Products on the Computer Systems to develop its End\nItem; (b) to distribute the Products on the Computer Systems with, and for use\nby End Users Solely as a component in, the End Item and not as a component in or\nfor use with any other end item, solution, or application; and\n\n(b) to manufacture the object code of the Products as specified in Part I.\n\n2. (a) Licensee shall never distribute Products on a stand alone basis. (b) The\nobject code of Products shall be distributed in unaltered form.\n\n3. All fees charged by Licensee shall be in Licensee's sole discretion.\n\n4. Licensee may make 1 back-up copy of Products used internally to develop End\nItems.\n\n5. No Products shall be distributed, either directly or indirectly, to an End\nUser or to a Reseller, prior to Licensee ensuring that both the End User and the\nReseller (at each tier) are bound by provisions which are as equally protective\nof Informix's rights as those set forth in Part II, sections A, 'Licensee's\nRights, Representations and Obligations' (and including limiting the End User to\nusing the Products solely as a component in the End Item and not as a component\nin any other end item, solution, or application), B, 'Confidentiality,' D,\n'Limited Warranties and Remedies, and F, 'Termination.' At Informix's request,\nLicensee shall supply Informix with a copy of the form(s) of each such written\nagreement, including an English translation if the agreement is written in a\nlanguage other than English.\n\n6. Except as specifically permitted by this Agreement, Licensee shall not\ndirectly or indirectly (a) use any Confidential Information of Informix to\ncreate any computer software program or user documentation which is\nsubstantially similar to any Product; (b) reverse engineer, disassemble or\ndecompile, or otherwise attempt to derive the source code for, any Product; (c)\nencumber, time-share, rent or lease the rights granted by this Agreement; or (d)\ncopy, manufacture, adapt, create derivative works of, translate, localize, port\nor otherwise modify any Products or other Confidential Information of Informix\nor grant anyone a license to engage in similar conduct. Results of any benchmark\nor other performance tests run on the Products may not be disclosed to any third\nparty without Informix's prior written consent.\n\n7. As Licensee distributes the Products as part of an End Item such that the\nproprietary notices are not visible to an End User, the manual accompanying the\nEnd Item shall contain the following notice: 'Portions of this product are based\nupon copyrighted materials of Informix Software, Inc.,' or such other phrase as\nthe parties may mutually agree, which states that the Application contains\nLicensed Software.\n\n8. Licensee does not have, and shall not claim that it has, any right in or to\nany of the Products or the Confidential Information received from Informix other\nthan as specifically granted by this Agreement. Licensee shall promptly notify\nInformix of any actual or suspected unauthorized use of the Products or use or\ndisclosure of the Confidential Information received from Informix, and shall\nprovide reasonable assistance to Informix (at Informix's expense) in the\ninvestigation and prosecution of such unauthorized use or disclosure.\n\n9. If Licensee is located in a member state of the European Economic Community,\nit may engage in such conduct as is necessary to ensure the interoperability of\nthe Products in accordance with the European Community's Directive on Protection\nof Computer Software (Brussels 14 May 1991) and local enactment thereof.\nAdditionally, use of the Products as described in the User Documentation,\nincluding creation of an Application, shall not be considered using the Products\nto create derivative works but shall be considered a modification of the\nProducts for purposes of Informix's limited warranty in section D.\n\n10. Licensee shall comply with the Export Laws. Licensee hereby assures Informix\nthat it will not export or re-export directly or indirectly (including via\nremote access) any part of the Product(s) or any Confidential Information to any\ncountry for which a validated license is required under the Export Laws without\nfirst obtaining a validated license. If at any time Informix determines the laws\nof any country are or become insufficient to protect Informix's intellectual or\nproprietary rights in the Products, Informix reserves the right to restrict or\nterminate Licensee's and its Resellers' rights to use or distribute Products or\nConfidential Information in that country. Licensee shall take all actions\nreasonably necessary to enforce this restriction or termination and protect\nInformix's rights.\n\n11. Products acquired with United States Federal Government funds or intended\nfor use within or for any United States federal agency are provided with\n'Restricted Rights' as defined in DFARS 252.227-7013(c)(l)(ii) or FAR 52.227-19.\n\nB. Confidentiality.\n\n1. Except for the specific rights granted by this Agreement, neither party shall\nuse or disclose any Confidential Information of the other party. A party\nreceiving Confidential Information from the other shall use the highest\ncommercially reasonable degree of care to protect that Confidential Information,\nincluding ensuring that its employees have agreed in writing not to disclose\nConfidential Information. Within fifteen (15) days of the request of the\ndisclosing party, and in its sole discretion, the receiving party shall either\nreturn to the disclosing party originals and copies of any Confidential\nInformation and all information, records and materials developed from them by\nthe\n\n\n---------------\n\n* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED\n  SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\n\n\nreceiving party, or destroy the same. Either party may only disclose the general\nnature, but not the specific financial terms, of this Agreement without the\nprior consent of the other party.\n\n2. Notwithstanding the foregoing, nothing herein shall prevent a receiving party\nfrom disclosing all or part of the Confidential Information which is necessary\nto disclose pursuant to the lawful requirement of a governmental agency or when\ndisclosure is required by operation of law, provided, however, that prior to any\nsuch disclosure, the receiving party shall (a) promptly notify the disclosing\nparty in writing of such requirement to disclose, and (b) cooperate fully with\nthe disclosing party in protecting against any such disclosure and\/or obtaining\na protective order.\n\n3. Money damages will not be an adequate remedy if this section is breached and\ntherefore, either party may, in addition to any other legal or equitable\nremedies, seek an injunction or similar equitable relief against such breach.\n\nC. Services.\n\n1. Regardless of whether a Reseller or an End User purchases a Service, Licensee\nshall provide the appropriate first level of support, skilled instruction and\nassistance to Resellers and End Users using or distributing the End Items. In\nany event, Licensee must provide all support for its Application(s).\n\nD. Limited Warranties and Remedies.\n\n1. Informix warrants that: (a) the use or distribution of unmodified Products\nwill not violate the intellectual property rights of any third party under\ncopyright, trademark or trade secret law of the United States or any country\nwhich is a party to the Berne Convention; (b) it has full power and right to\nenter into this Agreement; (c) during the first ninety (90) days from the date\nLicensee receives an unmodified Product ('Warranty Period') manufactured by\nInformix, the media for those Products will, under normal use, be free of\ndefects in materials and workmanship and the Development Products will\nsubstantially conform to the User Documentation.\n\n2. EXCEPT FOR THESE EXPRESS LIMITED WARRANTIES, LICENSEE ACCEPTS THE PRODUCTS\n'AS IS,' WITH NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND,\nINCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A\nPARTICULAR PURPOSE. INFORMIX MAKES NO WARRANTIES REGARDING THE APPLICATION(S) OR\nTHE MEDIA OF THE PRODUCTS MANUFACTURED BY LICENSEE. Some jurisdictions do not\nallow limitations on how long an implied warranty lasts, so the above limitation\nmay not apply to Licensee.\n\n3. In the case of an alleged breach of sections D.1.(a) or (b), Informix shall,\nat its expense, indemnify, defend, save and hold harmless Licensee from and\nagainst any claim, loss, expense or judgment (including reasonable attorney\nfees) provided (a) Licensee promptly gives Informix written notice of the claim;\n(b) Licensee provides all reasonable assistance to defend against the claim; and\n(c) Informix has the right to control the defense or settlement of the claim.\n\n4. Licensee's sole remedy for Informix's breach of section D.1.(c) shall be that\nduring the Warranty Period, Informix shall, in its sole discretion, provide\nmodifications to keep the Products in substantial conformance with the related\nUser Documentation, replace the Products, or refund the license fees paid to\nInformix for the defective Products.\n\n5.(A) INFORMIX'S LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR A CLAIM OF ANY\nKIND RELATED TO THIS AGREEMENT, ANY PRODUCT OR ANY PRODUCT SERVICE, WHETHER FOR\nBREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, SHALL\nNOT EXCEED THE AGGREGATE OF FEES PAID TO INFORMIX FOR THE PRODUCT OR SERVICE\nINVOLVED IN THE CLAIM. (B) IN NO EVENT WILL INFORMIX BE LIABLE FOR INDIRECT,\nSPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES\nOR PROFITS, LOST DATA, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION), EVEN IF\nADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the\nexclusion or limitation of incidental or consequential damages, so the above\nlimitation or exclusion may not apply to Licensee. NO ACTION, REGARDLESS OF\nFORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY\nLICENSEE MORE THAN 1 YEAR AFTER THE EVENTS WHICH GAVE RISE TO THE CAUSE OF\nACTION OCCURRED.\n\n6. Licensee shall, at its expense, indemnify, defend, save and hold harmless\nInformix from and against any claim, loss, expense, or judgment (including\nreasonable attorneys' fees) which arises (a) from any asserted failure by\nLicensee or a Reseller to act in accordance with this Agreement; (b)\nmisrepresentations made by Licensee or a Reseller; (c) any warranties granted in\nexcess of those made by Informix in this section D.; (d) inadequate\ninstallation, maintenance or support by Licensee or a Reseller; (e) the\nmarketing of the Products by Licensee or a Reseller; or (f) from any other act\nor failure to act by Licensee, its employees or agents.\n\nE. Records, Audits, Payments, Discounts.\n\n1. Licensee shall maintain complete and accurate records ('Copy Records')\n[*]. Licensee shall deliver to Informix the Copy Records [*] accompanied by any\npayment due to Informix relating to such Copy Records.\n\n2. No more than once each year, at Informix's expense and with thirty (30) days'\nprior written notice, Informix may audit all records of Licensee relating to\nthis Agreement during Licensee's normal business hours. If an audit reveals that\nthe amount which should have been paid to Informix is five percent (5%) or more\ngreater than the amount reported by Licensee, Licensee shall pay the cost of the\naudit to Informix. Any shortfall uncovered as a result of an audit, as well as\nthe cost of the audit, if required by the preceding sentence, shall be paid by\nLicensee to Informix within thirty (30) days of the date Informix notifies\nLicensee that an amount is due.\n\n3. Notwithstanding section E.2. above, if Informix reasonably suspects that\nsections B.1. or E1. have been breached, Informix may audit Licensee's Product\nrelated activities upon twenty-four (24) hours notice.\n\n4. (a) Licensee shall pay any amounts owed to Informix on the date specified and\naccording to the terms of this Agreement. If a due date is not specified, that\npayment shall be paid by Licensee within thirty (30) days of the date of\nInformix's invoice. If Informix determines that Licensee's credit rating does\nnot support 'net-30' terms, Licensee shall prepay all fees. Each party is solely\nresponsible for its own expenses\n\n---------------\n\n* CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED\n  SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.\n\n\n                                      -3-\n\n\n\nincurred in the performance of this Agreement. (b) If Licensee fails to make any\npayment when due, Informix may suspend delivery of Products, Services or other\nservices until the past due payment is made.\n\n5. (a) Payments will be in United States dollars. Any overdue amount shall bear\ninterest at the maximum rate allowed by law. Costs of conversion, outside\ncollection and related bank charges shall be paid by Licensee. (b) Licensee\nshall be responsible for all taxes, tariffs and transportation costs related to\nthis Agreement (including any value added or sales taxes) other than taxes on\nInformix's income. All shipments by Informix shall be F.O.B. origin.\n\nF. Termination.\n\n1. This Agreement will terminate: (a) for breach of the terms of this Agreement\nor for failure to pay any amount when due, upon thirty (30) days prior written\nnotice by either party to the other, unless the cause is susceptible of being\nand is cured within the thirty (30) day notice period; (b) immediately upon\nwritten notice to Licensee in the event Licensee breaches sections A.6. or B.1.;\n(c) immediately and automatically if a receiver or other liquidating officer is\nappointed for substantially all of the assets or business of licensee or if\nLicensee makes an assignment for the benefit of creditors or if Licensee becomes\ninsolvent; or (d) upon written notice given by either party to the other at\nleast six (6) months prior to the end of the then current term. The date\ntermination becomes effective is called the 'Termination Date.'\n\n2. (a) If this Agreement is terminated because of a breach of sections A.6. or\nB.1., all rights granted under this Agreement will terminate. (b) If this\nAgreement is terminated for any other reason, all rights granted under this\nAgreement shall terminate, except for (i) Licensee's continued right to use the\nProducts for the sole purpose of fulfilling any contractual obligations for\nServices to Resellers or End Users, and (ii) End Users' continued right to use\nthe Products for which the license fees have been paid to Informix. Use after\nthe Termination Date shall be subject to those provisions of this Agreement\nwhich survive termination.\n\n3. Subject to section F.2.(b), within thirty (30) days of the Termination Date,\nall Products and related materials in Licensee's possession or control shall be\nreturned to Informix, or, upon Informix's written request, destroyed by\nLicensee.\n\n4. On the earlier of the date notice of termination is sent or the Termination\nDate, all outstanding obligations to pay any amounts to Informix will become\nimmediately due and payable.\n\n5. Sections A.4., 6., 8., 9., 10. and 11.; B.; D.; E.; F.; G.5. and G.7. shall\nsurvive any termination of this Agreement.\n\nG. General Provisions.\n\n1. Informix and Licensee are independent contractors and shall so represent\nthemselves in all regards. Neither party may bind the other in any way.\n\n2. This Agreement may not be assigned by Licensee without the prior written\nconsent of Informix, which consent shall not be unreasonably withheld. Any\npurported assignment in contravention of this section is null and void. A\ntransfer of a controlling interest in the equity of Licensee shall be deemed an\nassignment for purposes of this subsection. Subject to the foregoing, this\nAgreement shall bind and inure to the benefit of any successors or assigns.\n\n3. Neither party will be responsible for failure of performance, other than for\nan obligation to pay money, due to causes beyond its control, including, without\nlimitation, acts of Cod or nature; labor disputes; sovereign acts of any\nfederal, state or foreign government; or shortage of materials.\n\n4. Notices will be delivered to a party's address stated in the signature block\nof this Agreement, or to another address which a party properly notified the\nother that notices should be sent.\n\n5. This Agreement is the complete and exclusive statement of the parties to this\nAgreement on these subjects, and supersedes all prior written or oral proposals\nand understandings relating thereto. This Agreement may only be modified by a\nwriting signed by an officer of the party to be bound. This Agreement takes\nprecedence over any purchase order issued by Licensee, which is accepted by\nInformix for administrative convenience only. If any court of competent\njurisdiction determines that any provision of this Agreement is invalid, the\nremainder of the Agreement will continue in full force and effect. The offending\nprovision shall be interpreted to whatever extent possible to give effect to its\nstated intent.\n\n6. Failure to require performance of any provision or waiver of a breach of a\nprovision does not waive a party's right to subsequently require full and proper\nperformance of that provision. Singular terms will be construed as plural, and\nvice versa. Section headings are for convenience only and will not be considered\npart of this Agreement.\n\n7. This Agreement is governed by the laws of the State of California without\ngiving effect to its conflict of law provisions. The United Nations Convention\non Contracts for the International Sale of Goods will not apply to this\nAgreement. Each party submits to the jurisdiction of the appropriate state or\nfederal courts in California. Informix may seek to enforce or prevent a breach\nof any term of this Agreement in the appropriate courts of any state or country\nin which the Products are deployed by Licensee or in which Licensee maintains an\noffice. The prevailing party in any suit under this Agreement shall recover all\ncosts, expenses and reasonable attorney fees incurred in such action. Nothing in\nthis Agreement will be deemed a waiver by either party of any and all available\nlegal or equitable remedies.\n\n8. This Agreement supersedes any prior or contemporaneous agreement between the\nparties. The agreement dated November 27, 1996, between the parties, is hereby\nterminated.\n\nH. Definitions.\n\n'Affiliate' means any person, corporation or other entity which, directly or\nindirectly, through one or more intermediaries, controls or is controlled by, or\nis under common control with, another person, corporation or entity.\n\n'Aggregate Revenue' means all amounts recognized from initial licensing fees,\nand all renewal, upgrade and\/or transfer fees of the application, excluding\nLicensee's revenue from annual support fee or an Application not incorporating\nthe Products.\n\n'Application' means a value-added application computer program which is\ndeveloped by Licensee.\n\n'Confidential Information' means Informix pricing or information concerning new\nInformix products, trade secrets and other proprietary rights; and any business,\nmarketing or technical information disclosed by Informix or Licensee and\nidentified in writing as confidential by, or proprietary to, the disclosing\nparty. Confidential Information does not include information (a) already in the\npossession of the receiving party without an obligation of confidentiality, (b)\nhereafter rightfully furnished to the receiving party by a third party without a\nbreach of any separate nondisclosure obligation, (c) publicly available without\nbreach\n\n\n\n                                      -4-\n\n\nof this Agreement (i.e., information in the public domain), (d) furnished by the\ndisclosing party to a third party without restriction on subsequent disclosure,\nor (e) independently developed by the receiving party without reliance on the\nConfidential Information.\n\n'Development Product' means the standard proprietary Informix computer software\npackages made generally commercially available by Informix within the Territory,\nwhich include the object code form of the computer programs on magnetic media,\nUser Documentation and an End User Agreement.\n\n'Effective Date' means the date reflected in the signature block of this\nAgreement.\n\n'End Item' means an Application together with a Product where the Product(s)\nis(are) deeply imbedded such that the Product(s) is(are) not visible to the End\nUser.\n\n'End User' means any third party individual, business or governmental customer\nof Licensee or Licensee's Reseller which acquires one or more copies of the\nProducts for personal or internal business use, and not for transfer to others.\nAn End User may not be an Affiliate of Licensee.\n\n'Export Laws' means all laws, administrative regulations, and executive orders\nof any applicable jurisdiction relating to the control of imports and exports of\ncommodities and technical data, including, without limitation, the Export\nAdministration Regulations of the U.S. Department of Commerce, the International\nTraffic in Arms Regulations of the US. Department of State, and the Enhanced\nProliferation Control Initiative.\n\n'INFORMIX-Assurance' means The North America INFORMIX-Assurance Program, the\nterms of which are attached hereto as Exhibit B.\n\n'INFORMIX-OpenLine' means The North America INFORMIX-OpenLine Program, the terms\nof which are attached hereto as Exhibit C.\n\n'New Product' means a release and any associated User Documentation which\nInformix in its sole discretion designates as a New Product; is made generally\ncommercially available by Informix; and is marketed by Informix as a New Product\neven if it is capable of being integrated with a Product.\n\n'Price List' means the Informix price list for the United States and Canada, in\neffect at the time Licensee orders Products from Informix. The price for\nProducts deployed within the United States and Canada shall be as set forth in\nthe Price List. The price for Products deployed outside the United States and\nCanada shall be 1.25 times the price set forth in the Price List.\n\n'Product' means the Products set forth in Exhibit A.\n\n'Reseller' means, as the context requires, either Licensee or a third party\nappointed by Licensee or a third party appointed by Licensee's Resellers\npursuant to this Agreement, which distributes computer software to other\nResellers or to End Users. A Reseller may not be an Affiliate of Licensee and\nmay only distribute Products within the Territory.\n\n'Run-rate' means Licensee's total net Product license fees paid by Licensee\nduring the 12 month period preceding Informix's review.\n\n'Runtime Product' means a portion of a Development Product which is composed of\nvarious modules and libraries made generally commercially available by Informix\nwithin the Territory as either runtime files or files which are included only in\na linked form.\n\n'User Documentation' means the Informix user manual(s) and other written\nmaterials on proper installation and use of, and which are normally distributed\nwith, the software portion of the Products.\n\n\n\n                                      -5-\n\n\n                                    EXHIBIT A\n                                LICENSED PRODUCTS\n\nSets forth below are those Informix and\/or Red Brick products to be provided to\nlicensee under the terms and conditions set forth in the Agreement:\n\nProducts                                               \n\nRed Brick Warehouse VPT                                \nPlatforms, Red Brick Warehouse                         \nbecome available.\nAdministration Utilities:\n      Auto Aggregate Load Option\n      RISQL Reporter\n      Backup\/Restore\n      SQL-BackTrack\n      Enterprise Control &amp; Coordination\n      Parallel TMU\n\nRed Brick Warehouse Connect\n\nThe above products shall include only the U.S. versions of such products.\n\nAdditional products may be added to this list as they become available.\n\n\nOperating System Platform            \n                                                 \nAll supported Unix (excluding MPP) &amp; Windows NT  \n   Other Red-Brick-supported platforms as they      \n   become available.\n                                                 \n                                                 \n\n\n\n                                      -6-\n\n\n                                    EXHIBIT B\n                  THE NORTH AMERICA INFORMIX-ASSURANCE PROGRAM\n                                   ('PROGRAM')\n\n\nInformix Software, Inc. ('INFORMIX') is engaged in the business of designing,\ndeveloping, marketing, licensing, supporting, and maintaining computer software\nprograms and related user manuals ('Products'). The terms and conditions of the\nProgram follow.\n\n1. DEFINITIONS.\n\n'ENHANCEMENT RELEASE' means a new version of a Product that contains feature\nadditions, and may contain new fixes to software defects. An Enhancement Release\nincludes features and defect fixes from the prior version of the Product and is\ndesignated as 1.1, 1.2, etc.\n\n'MAINTAINED SOFTWARE' means the Product(s) designated on the Maintenance Serial\nNumber Label that accompanies this Program description.\n\n'MAINTENANCE SERIAL NUMBER LABEL' means the label that accompanies this Program\ndescription and that specifies the Maintained Software, the serial number(s),\nand the Effective Date (as defined below).\n\n'MAINTENANCE RELEASE' means a new version of Product that contains fixes to\nsoftware defects and is designated as 1.01, 1.02, etc.\n\n'MAJOR RELEASE' means a new version of a Product that contains major feature\nadditions that may require architectural changes to the Product and is\ndesignated as 1.0, 2.0, etc.\n\n'NEW PRODUCT' means a Product which is designated and marketed by INFORMIX, in\nits sole discretion, as a separate and distinct computer program, even if the\nNew Product is capable of being integrated with other Products, or is similar to\nthe Maintained Software.\n\n'TECHINFO CENTER' means the interactive information service provided\nelectronically by INFORMIX.\n\n2. RESPONSIBILITIES OF INFORMIX.\n\nUPDATE. On your request, you will receive one (1) copy at no additional charge\nof each Enhancement Release and Maintenance made generally commercially\navailable for UNIX, XENIX, Windows, or NetWare Maintained Software, including\nshipping and handling, or one (1) copy of each Enhancement Release and\nMaintenance made generally commercially available for DOS Maintained Software at\na nominal fee for media, documentation, shipping and handling. INFORMIX will\nissue updates, as it determines are needed, at its sole discretion.\n\nUPGRADE. On your request, you will receive one (1) copy of each Major Release\nmade generally commercially available for UNIX, XENIX, DOS, Windows, or NetWare\nMaintained Software in accordance with INFORMIX's then current upgrade policy.\nINFORMIX will issue upgrades, as it determines are needed, at its sole\ndiscretion.\n\nTECHINFO CENTER. INFORMIX will provide you, at no additional fee, with access to\nTech Info Center via the worldwide web.\n\nMISCELLANEOUS. If you increase the number of users, move to a larger hardware\nplatform, or move to a different operating system within three (3) years of\noriginal purchase, INFORMIX will provide you with a new license of the\nMaintained Software in accordance with INFORMIX's standard policies. However,\nINFORMIX reserves the right to modify or rescind this option in its sole\ndiscretion upon 90 days prior written notice to you.\n\n3. LIMITATIONS OF SOFTWARE MAINTENANCE.\n\nINFORMIX has no obligation to provide telephone technical support or product\nproblem resolution under this Program, but will accept software defect reports\nvia telephone to INFORMIX's technical support department. INFORMIX can provide\ntelephone technical support and product problem resolution under a separate\nINFORMIX-OpenLine Program.\n\n4. FEES.\n\nUnless otherwise agreed to in writing by you and INFORMIX, you agree to pay\nINFORMIX the current list price for INFORMIX-Assurance services for the\nMaintained Software. INFORMIX reserves the right to change the list price at any\ntime, without prior notice to you, but no change made after the Effective Date\n(as defined below) shall be applicable to you unless the Program is extended for\na subsequent term.\n\n\n\n                                      -7-\n\n\n                                    EXHIBIT C\n             THE NORTH AMERICA INFORMIX-OPENLINE PROGRAM ('PROGRAM')\n\nInformix Software, Inc. ('INFORMIX') is engaged in the business of designing,\ndeveloping, marketing, licensing, supporting, and maintaining computer software\nprograms and related user manuals ('Products'). The terms and conditions of the\nProgram follow.\n\n1. DEFINITIONS.\n\n'ENHANCEMENT RELEASE' means a new version of a Product that contains feature\nadditions, and may contain new fixes to software defects. An Enhancement Release\nincludes features and defect fixes from the prior version of the Product and is\ndesignated as 1.1, 1.2, etc.\n\n'MAINTENANCE RELEASE' means a new version of a Product that contains fixes to\nsoftware defects and is designated as 1.01, 1.02, etc.\n\n'MAJOR RELEASE' means a new version of a Product that contains major feature\nadditions that may require architectural changes to the Product and is\ndesignated as 1.0, 2.0, etc.\n\n'NEW PRODUCT' means a Product which is designated and marketed by INFORMIX, in\nits sole discretion, as a separate and distinct computer program, even if the\nNew Product is capable of being integrated with other Products, or is similar to\nthe Supported Software.\n\n'PRODUCT PROBLEM' means Supported Software which is not functioning according to\nthe specifications in the user manual.\n\n'SUPPORT CONTACT' means the persons you select in North America to communicate\nwith INFORMIX technical support. You may designate up to four (4) individuals,\nand change the names at any time by written notice to INFORMIX technical\nsupport. Support Contacts must be knowledgeable about how the Supported Software\nis being used and the operating environment.\n\n'SUPPORTED SOFTWARE' means the development version of Product(s) designated on\nthe Support Serial Number Label that accompanies this Program.\n\n'SUPPORT SERIAL NUMBER LABEL' means the label that accompanies this Program and\nthat specifies the Supported Software, the serial number(s), and the Effective\nDate (as defined below).\n\n'TECHINFO CENTER' means the interactive information service provided\nelectronically by INFORMIX.\n\n2. RESPONSIBILITIES OF INFORMIX.\n\nTELEPHONE SUPPORT. INFORMIX will provide your Support Contact(s) telephone\naccess to technical support engineers in North America during normal business\nhours between 7:00 am and 7:00 pm CST for assistance in the proper installation\nor usage of the Supported Software, and to report and resolve Product Problems.\nAlternatively, your Support Contact(s) may use mail, e-mail, facsimile (fax), or\nTech Info Center to communicate with INFORMIX.\n\nPRODUCT PROBLEM RESOLUTION. INFORMIX will investigate and resolve all Product\nProblems reported by Support Contact(s). INFORMIX requires detailed Product\nProblem descriptions from Support Contacts. Product Problem resolution may be,\nbut is not limited to, a description of the Supported Software functional\noperation, suggested alternative uses of the Supported Software, a temporary\nmethod of circumventing the Product Problem, or a recommendation of the\ninstallation of a Enhancement Release or Maintenance that corrects the Product\nProblem. When requested to resolve a Product Problem, INFORMIX may require\naccess to your computer system via modem and telephone lines.\n\nUPDATE. On your request, you will receive one (1) free copy of each Enhancement\nRelease and Maintenance made generally commercially available for UNIX, XENIX,\nWindows, or NetWare Supported Software, including shipping and handling, or one\n(1) copy of each Enhancement Release and Maintenance made generally commercially\navailable for DOS Supported Software at a nominal fee for media, documentation,\nshipping and handling. INFORMIX will issue updates, as it determines are needed,\nat its sole discretion.\n\nUPGRADE. On your request, you will receive one (1) copy of each Major Release\nmade generally commercially available for UNIX, XENIX, DOS, Windows, or NetWare\nSupported Software in accordance with INFORMIX's standard policies. INFORMIX\nwill issue upgrades, as it determines are needed, at its sole discretion.\n\nTECHINFO CENTER. INFORMIX will provide you, at no additional fee, with access to\nTech Info Center via the worldwide web.\n\n\n\n\n                                      -8-\n\n\n\nMISCELLANEOUS. If you increase the number of users, move to a larger hardware\nplatform, or move to a different operating system within three (3) years of\noriginal purchase, INFORMIX will provide you with a new license of the Supported\nSoftware in accordance with INFORMIX's standard policies. However, INFORMIX\nreserves the right to modify or rescind this option in its sole discretion upon\nninety (90) days prior written notice to you.\n\n3. YOUR RESPONSIBILITIES.\n\nSupport Contacts agree to use INFORMIX support services when the Supported\nSoftware fails to function as described in the user manuals. Support Contacts\nagree to provide required Product Problem descriptions in a detailed form\nacceptable to INFORMIX in its sole DISCRETION. Support Contacts agree to provide\nreasonable assistance to INFORMIX in duplicating and\/or correcting the Product\nProblem, which includes providing an INFORMIX technical support engineer with\naccess to your computer system via telephone and modem.\n\n4. LIMITATIONS OF SOFTWARE SUPPORT.\n\nINFORMIX has no obligation to provide support services for:\n\nA. Altered or modified Supported Software;\nB. Derivative works;\nC. Third party software or application being used in conjunction with the\nSupported Software;\nD. Product Problems which arise as a result of your negligence or fault, or from\nmalfunctions of your computer or its operating system;\nE. Product Problems that result from changes to your operating environment which\nmake it incompatible with the operating environment for the Supported Software\nwhen they were originally licensed. This could include, but is not limited to,\nadditions or changes to hardware, operating system, compilers, or co-resident\nsoftware.\n\nINFORMIX has no obligation to provide support services under this Program for\nany New Product, nor to assist you in developing or debugging applications which\nuse the Supported Software.\n\n5. FEES.\n\nUnless otherwise agreed to in writing by you and INFORMIX, you agree to pay\nINFORMIX the current list price for INFORMIX-OpenLine services for the Supported\nSoftware. INFORMIX reserves the right to change the list price at any time,\nwithout prior notice to you, but no change made after the Effective Date(as\ndefined below) shall be applicable to you unless this Program is extended for a\nsubsequent term.\n\nBoth INFORMIX and you will bear the cost of all normal communications to each\nother, whether by telephone, mail or fax. INFORMIX, however, reserves the right\nto charge you for unusual or excessive costs incurred by INFORMIX for telephone,\nshipping, handling, media, user manuals or other expenses arising out of the\nservices to be provided under this Program. In all cases, INFORMIX will provide\nyou with advance notice of these costs.\n\n\n\n\n\n                                      -9-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6556,7886],"corporate_contracts_industries":[9508,9513],"corporate_contracts_types":[9613,9616],"class_list":["post-42644","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-accrue-software-inc","corporate_contracts_companies-international-business-machines-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__software","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42644","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42644"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42644"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42644"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42644"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}