OEM Software License Agreement

OEM SOFTWARE LICENSE AGREEMENT


PREAMBLE: This Agreement ("Agreement") is effective as of the date shown on the signature page between Gupta Corporation ("GUPTA"), a California corporation, with offices at 1060 Marsh Road, Menlo Park, CA 94025 and the organization specified on the signature page ("OEM") hereby enter into this agreement whereby GUPTA is engaged in the business of designing and developing database management software and has developed proprietary software products collectively called "THE SQL SYSTEM" and OEM wishes to incorporate one or more of such software products into OEM Products as defined and specified herein, and OEM and GUPTA desire to enter into an agreement pursuant to which GUPTA will provide such products for integration into a OEM Product within the geographic territory specified on the signature page ("Territory") only who will then further such Programs to end users in the Territory for their own use, in accordance with the terms and conditions hereof.


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1. CERTAIN DEFINITIONS


1.1 "Program"


Shall mean the proprietary software programs in object code form specified on the signature page to this Agreement.


1.2 "List Price" and "Territory List Price"


The term "List Price" shall mean the generally published single copy price for the Program for a particular country or territory as found in the then-current applicable Gupta OEM Price List for that specific geographic region if the reference price only refers to that geographic region.


If the reference price of a given Program applicable to OEM is to vary from geographic region to region then the term "Territory List Price" will be used. Then-current applicable, generally published OEM Price Lists for requested territories or countries will be supplied to OEM upon written request to GUPTA.


GUPTA reserves the right to modify or change the List Price or Territory List Price of any Program, or of any other produce or services, at its sole discretion, upon 30 days written notice to OEM.


1.3 "Distributor"


Shall mean any entity who is duly authorized by OEM to sublicense and/or manufacture the Programs.


1.4 "Sublicensee"


Shall mean any entity who has been sublicensed by OEM or by a Distributor to use the Programs.


1.5 "OEM Product"


Shall mean only the OEM programs or products specifically described or listed on the signature page, and shall also include any Derivative Works.


Any OEM Product:


(i) must not provide a general purpose programming interface to the Programs or links to one;


(ii) must not make the SQL/API or the SQL language directly accessible to users;


(iii) must not provide a general purpose capability to users to create or modify tables in the database. The application software may, however, create tables without knowledge of the user for the purpose of storing application specific data (e.g., parts table in an inventory control application) or for storing and manipulating temporary results from queries;


(iv) must not contain a general purpose forms definition, adhoc query, reporting or data analysis tool, except for the sole purpose of providing data entry and reporting facilities for application specific data;


(v) must not function as a general purpose database management system.


1.6 "Derivative Works"


Shall mean a revision, modification, enhancement, abridgement, condensation or expansion of a OEM Product or any form in which such OEM Product may be recast, transformed, or adapted by OEM.


1.7 "License" or "Copy"


Shall mean a single copy of a Program or a OEM Product.


2. GRANT OF RIGHTS


2.1 Manufacturing, Sublicensing, Distribution and Packaging Rights


GUPTA grants to OEM, during the term of this Agreement, a non-exclusive, right to manufacture, sublicense, distribute and package the Programs within the Territory for use in conjunction with and as an embedded component of a OEM Product only. OEM must specifically restrict its sublicensees from using a OEM Product or any components thereof for general purpose application development or for any other purpose that would violate the restrictions specified in this Section 2.1 or Section 1.5 above.


2.2 Technical Restriction


GUPTA shall be permitted to make, or require OEM to make, reasonable technical modifications to the Programs to ensure that the provisions of Section 1.5 and 2.1 regarding the sublicensing and use of the Programs are complied with, provided, however, that the modifications do not unduly affect the legitimate use of the Programs under the terms of this Agreement.


LICENSEE___________ GUPTA ______


[*] IDENTIFIES REDACTED MATERIAL DELETED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION


2 2.3 Sublicense Agreements


OEM agrees to sublicense the Programs only under an enforceable written agreement, which may be shrinkwrapped, between OEM and its Sublicensees, which (i) protects GUPTA's (and/or GUPTA's Licensors) proprietary rights and title to the Programs, and (ii) which expressly prohibits the Sublicensee from using the Programs for any purpose other than that permitted by the OEM Product.


2.4 Distributor Agreements


If OEM appoints a Distributor to market or otherwise sublicense an OEM Product, then OEM will do so only under a written agreement between OEM and Distributor which requires the Distributor to agree to the terms of Section 2.3 above, and to further sublicense the Programs under the same terms. In addition, such agreement must require Distributor to comply with the terms of Section 11.2 below.


2.5 Rights and Title


GUPTA and/or GUPTA's Licensors shall retain all right, title and interest in and to the Programs (including without limitation all improvements, updates, enhancements and copies thereof made by or for GUPTA) subject to a license to OEM granted hereunder. Other than for exercising the rights granted in this Agreement, OEM shall not use, duplicate, transfer, or otherwise modify the Programs for any other purposes. OEM agrees not to, or cause a third party to, dissemble or reverse compile, the Programs.


3. FEES AND PAYMENTS


3.1 Initial Payment and Commitment


In consideration for the rights granted in Section 2 above, upon the execution of this Agreement, OEM agrees to pay to GUPTA the payment as specified on the signature page. This initial payment shall serve as a noncontingent, nonrefundable advance against License Fees that may become due to GUPTA under Section 3.2 below.


3.2 License Fees


For each Copy of a Program distributed, sublicensed and/or shipped to a customer by OEM under the terms of this Agreement, OEM agrees to pay a License Fee equal to the single-copy Territory List Price for such Program, less the applicable discount ("Discount") specified on the signature page.


3.3 Support Fee


In consideration for the support and maintenance services provided by GUPTA as specified in Section 4 below, for each calendar quarter that this Agreement is in effect, OEM agrees to pay GUPTA a quarterly Support Fee as specified on the signature page.


3.4 Product Upgrade Fees


For each Copy of a new Enhancement Release or Major Version of the Programs (as defined in GUPTA's generally published support policies, which may be changed from time-to-time by GUPTA) sublicensed, distributed and/or shipped by OEM to its existing customers for the OEM Products under the terms of this Agreement, OEM shall pay to GUPTA a fee ("Product Upgrade Fee") equal to GUPTA's generally published Territory List Price for such new Enhancement Release or Major Versions less the discount specified on the signature page.


3.5 Reports and Payments


(i) All payments under this Agreement shall be made in U.S. dollars.


(ii) Payments of OEM's initial commitment shall be made as specified in Section 3.1 above.


(iii) During the term of this Agreement and within thirty (30) days of the end of each calendar quarter, OEM shall report ("Report") to GUPTA in writing all copies of OEM Products and the Programs sublicensed, distributed and/or shipped by OEM. Such Report shall also include a calculation of Licensee Fees and Product Upgrade Fees due to GUPTA for such Copies, based upon the fees specified in Sections 3.2 and 3.4, such fee to be based on the gross number of Copies of the Programs distributed, sublicensed and/or shipped by OEM less returned copies and a reasonable number of demonstration and evaluation copies.


OEM shall make payment of the fees specified in each Report, with an adjustment for advances if any are outstanding, along with its submission. Should the calculation of fees due to GUPTA be found to be in error, an adjustment shall be made within fifteen days of the discovery of such error.


(iv) Payment of the Support Fee for any given calendar quarter shall be made on or before the last day of the immediately previous calendar quarter.


3.6 Records and Review


OEM shall keep accurate records necessary to verify compliance with licensing and payment terms of this Agreement, along with reasonable detail. OEM shall, with reasonable advance notice, make such records available to GUPTA for inspection during normal business hours. OEM shall pay GUPTA's reasonable, documented, out-of-pocket expenses incurred in connection with such inspection if and only in the case that such inspection reveals that the payments made by to GUPTA during any applicable period aggregated less than ninety-five percent (95%) of the payments required to be made during such period.


3.7 Shipping Expenses


All prices are ex-works Menlo Park, and OEM shall reimburse GUPTA for any shipping expenses incurred by GUPTA.


3.8 Service Charge


A service charge of 1.5% per month will apply to all delinquent payments.


4. SUPPORT AND MAINTENANCE


4.1 Technical Support


GUPTA shall provide OEM with the applicable technical support services specified on the signature page. GUPTA's support services and maintenance of the Programs shall be consistent with GUPTA's generally published support programs and policies, which may be changed from time-to-time by GUPTA.


4.2 Support of OEM's Sublicensees and/or Distributors


OEM shall be responsible for supporting OEM's Sublicensees and/or Distributors for the Programs.


4.3 Product Updates


Provided that OEM has paid the Support Fee as provided in Section 3.3 above, during the term of this Agreement periodic updates ("Product Updates") to the Programs will be provided to OEM, such Product Updates to include Maintenance Releases. Such Product Updates will be provided to OEM contemporaneously with when GUPTA first makes such Product Updates commercially available to its other OEM customers for the Programs. OEM shall have the right to sublicense and distribute (as provided in Section 2.3 above) such Product Updates to its existing customers for the OEM Products without payment of additional fees to GUPTA.


4.4 Product Upgrades


Provided that has paid the Support Fee as provided as provided in Section 3.3 above, during the term of this Agreement periodic upgrades ("Product Upgrades") to the Programs will be provided to OEM, such Product Upgrades to include Enhancement Releases and Major Versions to the Programs. GUPTA shall use reasonable efforts to provide information to 3 OEM for such Product Upgrades (4) to (6) months in advance of when such Product Upgrades are commercially available. Furthermore, such Product Upgrades will be provided to OEM contemporaneously with when GUPTA first makes such Product Upgrades commercially available to its other OEM customers for the Programs. OEM shall have the right to sublicense and distribute (as provided in Section 2.1 above) such new Major Versions of the Programs to its existing customers for the OEM Products, subject to the payment of Product Upgrade Fees as provided in Section 3.4 above.


4.5 Training and Consulting


OEM may avail of GUPTA's services for product training and custom development at the then current Territory List Prices for such services, or as contained in the then current GUPTA U.S. and Canada Price List.


5. CONFIDENTIAL


GUPTA AND OEM agree that each of them shall, during the term of this Agreement and for five (5) years thereafter, take all steps which are necessary or reasonable to safeguard the secrecy and confidentiality of, and proprietary rights to, the confidential information of the other party disclosed hereunder (including, but not limited to, product plans, marketing and/or other business plans, technical specifications, the terms and conditions of this Agreement, and, if disclosed, portions of the Programs source code) and shall not, without the prior written consent of the other party, disclose the foregoing to any third party; provided, however, that this provision shall not be construed to restrict the disclosure of information which (a) is publicly known at the time of its disclosure to a party, (b) is lawfully received by a party from a third party not bound in a confidential relationship to GUPTA or OEM, (c) was already known by GUPTA or OEM at the time of disclosure by the other party, or (d) is required by law to be disclosed by such party.


6. WARRANTIES


6.1 Representation and Warranties of GUPTA


GUPTA hereby represents and warrants to OEM that (i) to the best of GUPTA's knowledge, the Program does not infringe any patent, copyright, trade secret or any other proprietary right of any third party, (ii) GUPTA and/or to the best of GUPTA's knowledge GUPTA's Licensors owns all right, title and interest in and to the Program, free and clear of all liens, security interests, charges or encumbrances by third parties; and (iii) GUPTA has full right, power and authority to enter into this Agreement and to carry out its obligations hereunder.


6.2 Limitation of Warranties


OTHER THAN THE REPRESENTATIONS SET FORTH IN THIS AGREEMENT, GUPTA MAKES NO WARRANTIES EXPRESS OR IMPLIED, CONCERNING THE PROGRAMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IT IS EXPRESSLY AGREED THAT GUPTA SHALL NOT BE LIABLE, OR IN ANY WAY RESPONSIBLE FOR THE COMMERCIAL SUCCESS OF THE PROGRAM OR ANY ENHANCEMENT THEREOF.


7. INDEMNIFICATIONS AND LIMITATION OF LIABILITY


7.1 Indemnification by GUPTA


GUPTA agrees to hold OEM harmless from and against any liability whatsoever associated with any claim or suit for infringement of any United States copyright, patent, trade secret or other proprietary right of another as a result of its use or of any version of the Programs. To qualify for indemnity under this Section 7.1 OEM must (i) give GUPTA prompt written notice of any such claim or liability, and (ii) allow GUPTA to control and cooperate with GUPTA (at GUPTA's expense, excluding the time spent by employees or consultants of OEM) in the defense of any such claim and in all related settlement negotiations. In the event that OEM wishes to participate in the defense of any such claim, GUPTA shall allow OEM to participate at its own expense.


GUPTA has no obligations or liability under this Section for any claim based on the use of the Programs or parts thereof with software not delivered by GUPTA or when used in a manner for which it was notdesigned or where modified by or for OEM in a manner to become infringing.


THIS SECTION STATES GUPTA'S ENTIRE LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.


7.2 Indemnification by OEM


OEM agrees to hold GUPTA harmless from and against any liability whatsoever associated with the use of the Programs by OEM or its Sublicensees and/or Distributors except as provided in Section 7.1 and to the extent that such liability does not result from a breach of Section 6.1. To qualify for indemnity under this Section 7.2, GUPTA must (i) give OEM prompt written notice of any such claim or liability, and (ii) allow OEM to control and cooperate with OEM at OEM's expense in the defense of any such claim and in all related settlement negotiations. In the event that GUPTA wishes to participate in the defense of any such claim, OEM shall allow GUPTA to participate at its own expense.


7.3 Limitation of Liability


EXCEPT AS SET FORTH IN SECTION 7.1 ABOVE, GUPTA'S LIABILITY ARISING OUT OF THIS AGREEMENT OR THE USE OR DISTRIBUTION OF ANY LICENSE SHALL BE LIMITED TO THE AMOUNT PAID BY OEM TO GUPTA FOR THAT LICENSE UNDER THE TERMS OF THIS AGREEMENT. IN NO EVENT SHALL GUPTA BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE, NOR WILL GUPTA BE LIABLE FOR SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT GUPTA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE ESSENTIAL PURPOSE OF THIS SECTION IS TO LIMIT THE POTENTIAL LIABILITY OF GUPTA ARISING OUT OF THIS AGREEMENT.


8. PROPRIETARY RIGHTS


8.1 Trademarks


GUPTA hereby warrants that SQLBase, SQLGateway, SQLHost, Quest, SQLTalk, SQLRouter and SQLWindows are registered trademarks of GUPTA in the U.S.A. GUPTA represents that it is applying for numerous other trademarks in the U.S.A. and other jurisdictions. GUPTA hereby authorizes OEM to use GUPTA's trademarks in its product and marketing literature, provided OEM shall adequately acknowledge and publish GUPTA's ownership of such trademarks. GUPTA reserves the right to revoke such authorization, at GUPTA's sole discretion.


8.2 Copyrights


Subject to the rights and licenses granted to OEM by this Agreement, GUPTA shall have sole and exclusive right, title, and interest in and to its copyright in the Programs (including without limitation all improvements, updates, enhancements and copies thereof made by or for GUPTA or OEM). OEM shall reproduce GUPTA's copyright on the title screen or "About Box" of the Programs and on the package and/or media containing the relevant Program.


9. SALE OR ASSIGNMENT


OEM may not assign this Agreement without the prior written consent of GUPTA. 4
10. TERM AND TERMINATION


10.1 Term of Agreement


The initial term of this Agreement shall expire on the date specified on the signature page. Thereafter, it may be renewed, on an annual basis, only upon mutual written agreement.


10.2 Termination for Breach


Either party may terminate this Agreement for material breach of this Agreement upon thirty (30) days prior written notice, if said breach is not cured by the other party within such period (or longer period if the parties agree in writing).


10.3 Continuing Obligations


The termination of this Agreement for any reason shall not relieve any party of (i) its obligations to make payments which may have accrued hereunder, but which remained unpaid as of the date of termination; (ii) to maintain confidentiality; and (iii) to indemnify against certain actions. The termination of this Agreement shall not in any manner terminate, abrogate, or otherwise limit or curtail the rights and licenses previously granted to Sublicensees pursuant to this Agreement, including OEM's right to continue to support its customers for the applications that include or access the Programs.


10.4 Force Majeure


Neither party shall be liable for any delays in the performance of any of its obligations hereunder due to causes beyond its control, including but not limited to, fire, strike, war, riots, acts of any civil or military authority, judicial action, acts of God, or other casualty or natural calamity.


11. MISCELLANEOUS PROVISIONS


11.1 Entire Agreement


This Agreement, together with the Exhibits attached hereto, sets forth the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements, understandings, promises and representations made by either party to the other concerning the subject matter hereof and the terms applicable hereto. This Agreement may not be released, discharged, amended or modified in any manner except by an instrument in writing signed by both parties hereto.


11.2 Import and Export Provisions


OEM shall, at its own expense, pay all import and export licenses and permits, pay customs charges and duty fees, and take all other actions required to accomplish the export and import of the Programs acquired by OEM. In the performance of their respective obligations under this Agreement, Gupta and OEM shall, at all times, strictly comply with all laws, regulations and orders of the United States of America and other applicable jurisdictions. Without limiting the generality of this Section 11.2, the parties specifically acknowledge that the Programs and Confidential Information are subject to United States export controls, including, without limitation, the Export Administration Regulations, 15 C.F.R. Parts 768-799. OEM agrees, and shall cause each end-user and/or reseller to agree, that it will not export or reexport the Programs, the Confidential Information or any direct product thereof, directly or indirectly to, or for use in, any country for which such export is forbidden and/or controlled by the laws of the United States of America or other applicable jurisdictions.


11.3 Parties Independent


In making and performing this Agreement, the parties act and shall act at all times as independent contractors and nothing contained in thisAgreement shall be construed or implied to create an agency, partnership or employer and employee relationship between OEM and GUPTA or between any party hereto and any officer or employee of the other party. At no time shall either party make commitments or incur any charges or expenses for or in the name of the other party.


11.4 Severability


The invalidity or unenforceability of one or more provisions of this Agreement shall not affect the validity or enforceability of any of the other portions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.


11.5 Governing Law


This Agreement shall be construed and enforced in accordance with the laws of the U.S.A. and the state of California. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the California State courts, San Mateo County, California (or, if there is exclusive federal jurisdiction, the United States District Court for the Northern District of California), and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.


11.6 Injunctive Relief


Each party acknowledges that the other believes that its confidential information is unique property of extreme value to the other party, and the unauthorized use or disclosure thereof would cause the other party irreparable harm that could not be compensated by monetary damages. Accordingly, each party agrees that the other may seek injunctive and preliminary relief to remedy any actual or threatened unauthorized use or disclosure of the other party's confidential information.


11.7 Waivers


The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this Agreement, shall not be constructed as a waiver or relinquishment of the future performance of any such term, covenant or condition, but the obligations of the other party with respect to such future performance shall continue in full force and effect.


11.8 Headings


The headings of the articles and sections used in this Agreement are included for convenience only and are not to be used in construing or interpreting this Agreement.


11.9 Notices


Any notice required to be made or given to either party hereto shall be made by personal delivery, to a designated FAX number, telegram, telex, mailgram, certified or registered mail return receipt requested, postage prepaid, and addressed to such party at its address set forth on the first page of this Agreement or to such other address of such party shall designate by written notice. Written notice shall be deemed to have been given (48) hours after posting when sent by first class mail, on delivery when sent by hand, and when to a designated FAX number.


11.10 Counterparts


This Agreement may be executed in two counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.


11.11 Taxes


OEM shall pay or reimburse GUPTA for all national, federal, state, local or other taxes and assessments of any jurisdiction, including sales or use taxes, property taxes, withholding taxes as required by international tax treaties, customs or other import or export taxes,value added taxes, and amounts levied in lieu thereof based on charges set, services performed or to be performed or payments made or to be made under this Agreement. In no case shall OEM be liable for taxes based on GUPTA's net income. 5 11.12 Marketing and Promotional Activities


As soon as practicable after the effective date of this Agreement, both parties will issue a joint press release announcing OEM's rights to distribute and market the Programs, but in no case shall such press release be issued without the consent of both parties. GUPTA shall have the right to use the OEM name in customer lists or promotional documents that incorporate such lists. During the term of this Agreement, both parties agree to cooperate in ongoing joint promotional and marketing activity with respect to the Programs and to respect the other party's reasonable policies with respect to use of its corporate or product names. 6
OEM SOFTWARE LICENSE AGREEMENT
(Signature Pages)


IN CASE OF CONFLICT BETWEEN THE TERMS AND CONDITIONS SPECIFIED ON THE SIGNATURE PAGES BELOW AND THE TERMS AND CONDITIONS CONTAINED IN THE BODY OF THE AGREEMENT, THE TERMS AND CONDITIONS OF THESE SIGNATURE PAGES SHALL CONTROL.


1. OEM: For purposes of this Agreement, OEM shall be the following organization at the designated address:


Organization Name: Deltek


Organized Under the laws of: Virginia


Headquarters Address: 8280 Greensboro Drive
Suite 300
McLean, VA 22102


Phone: (703) 734-8606 FAX: (703) 734-0346
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2. TERRITORY: Worldwide


3. EFFECTIVE DATE OF AGREEMENT: March 1, 1993


4. TERMINATION DATE: March 31, 1996


5. PROGRAMS (PLEASE LIST): SQLBASE FOR SUN UNIX (UNLIMITED USERS)
SQLBASE FOR SUN UNIX (5 USERS)
SQLBASE NLM (UNLIMITED USERS)
SQLBASE NLM (20 USERS)
SQLBASE NLM (5 USERS)
SQLBASE FOR OS/2 (UNLIMITED USERS)
SQLBASE FOR OS/2 (5 USERS)
SQLBASE FOR OS/2 (SINGLE USER)
SQLBASE FOR DOS (UNLIMITED USERS)
SQLBASE FOR DOS (5 USERS)
SQLBASE FOR DOS (SINGLE USER)
SQLBASE SERVER FOR WINDOWS
SQLBASE ENGINE FOR WINDOWS
SQLWINDOWS RUNTIME F ...