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Software Vendor Marketing Programs Agreement

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Software Vendor Marketing Programs Agreement


Agreement Number: VMP-505

Date of Agreement: March 7, 1997

This is an Agreement between IBM Corporation ("IBM") and You:

Your Name and Address:

Synon Corporation

1100 Larkspur Landing Circle

Larkspur, CA 94939

You and IBM hereby agree as follows:


This Agreement sets forth the terms and conditions under which IBM, for a fee, will assist You in the marketing of Your Product(s) and shall supersede and replace Software Solutions Program Agreement number SSP-LJ-047 dated May 1, 1995 upon the IBM announcement to the Marketing Force of Product(s) listed on Attachment A.


When used in this Agreement, the capitalized terms listed below will have the following meanings:

2.1 FEDERAL PROSPECT means a Prospect that is a) an agency or other unit of the Federal government, b) that You know or should know Is a prospective federal prime or subcontractor, or c) a Prospect which You otherwise know or have reason to believe will acquire Product(s) for use in connection with a federal acquisition or project.

2.2 HARMFUL CODE means any computer CODE or programming instructions that are constructed with the ability to damage, interfere with or otherwise adversely affect computer programs, data files or hardware without the consent or intent of the computer user. This definition includes, but is not limited to, self-replicating and self-propagating programming instructions commonly called "viruses" and "worms."

2.3 MARKETING ACTIVITIES means the activities undertaken by the Marketing Force in identifying Prospects where at a minimum the Marketing Force:

2.3.1 establishes contact with the Prospect;

2.3.2 PROVIDES information regarding the Product(s) to the Prospect.


2.4.1 IBM; and 2

2.4.2 any IBM Business Partners and IBM Subsidiaries that IBM utilizes in marketing the Product(s).

2.5 MARKETING PACKAGE means materials provided by You to the Marketing Force. The Marketing Package shall Include the following:

2.5.1 Software Vendor Marketing Programs Notice means an IBM supplied description of IBM's responsibilities to Prospects with respect to the Product(s).

2.5.2 Marketing Materials means Product brochures, technical specification sheets, demonstration presentations, Product descriptions utilized in electronic online services, and other marketing sales literature provided by You to IBM, or prepared by IBM and approved by You, for use by IBM In marketing Your Products to Prospects. IBM's use of the marketing materials and demonstration materials may include transmission of them on electronic, online services.

2.5.3 Order Form means an IBM supplied form on which orders for the Product(s) may be taken by the Marketing Force for You.

2.5.4 Price Schedule means a written statement supplied by You of Your retail prices for the Product(s), including discounts offered, if any.

2.5.5 User Agreement means the agreement supplied and used by You to sell, lease and/or license the Product(s) to Prospects.

2.6 PRODUCTS(S) means Your software and documentation and any related materials, that are listed and described in the Attachment A "Product(s) List."

2.7 Prospect means a potential or actual customer of the Product(s) that is subject to Marketing Activities.


Subject to the terms and conditions hereof, You hereby designate and appoint the Marketing Force as a nonexclusive representative for the marketing of the Product(s) in the United States and Puerto Rico.



Software Vendor marketing Programs Agreement

4.1 PRICING Notwithstanding anything contained herein, You shall retain full and absolute freedom and flexibility in pricing Your Product(s), and in establishing the terms and conditions under which they may be offered to Prospects.


4.2.1 You shall provide to IBM a copy of the items in the Marketing Package provided by You prior to sending the initial Marketing Package to the Marketing Force. You shall give IBM forty-five (45) days prior written notice should You elect to change any materials supplied by You In the Marketing Package and shall provide IBM with a complete copy of the revised Marketing Package at least thirty days prior to the effective date of the changes. IBM shall have the right to review all changes to the Marketing Package and to request reasonable modifications.

4.2.2 You shall at all times during the term of this Agreement ensure that the Marketing Package completely and accurately represents the Product(s) and shall provide reasonable quantities of the most current Marketing Package to the Marketing Force upon request.

4.3 MARKETING SUPPORT You shall cooperate with the Marketing Force in the marketing of the Product(s). Such cooperation shall include the reasonable provision of technical support services and training to the Marketing Force (including, but not limited to, telephone support) and reasonable participation and assistance with the Marketing Force in trade shows and conferences. In addition, You shall, in a manner reasonably consistent with industry practice, promote the Product(s) through national and local advertising.

4.4 PROSPECT QUALIFICATION You shall promptly review the qualifications of each Prospect that has signed an User Agreement. If You determine that You are unwilling to accept an User Agreement, You shall so notify IBM in writing prior to notifying the Prospect. Your notice to IBM shall identify the reason for such rejection.

4.5 PRODUCT(S) In order to ensure that the Product(s) marketed by the Marketing Force under this Agreement are the most current release or version offered by You to Your customers, You shall make available for marketing by the Marketing Force under this Agreement all maintenance modifications, engineering changes, upgrades, enhancements, or new versions (including any future adaptations of the Product(s) to current or future IBM operating systems, systems, and platforms) of the Product(s) that You offer to Your customers.


4.6.1 You shall perform all of Your obligations under accepted an User Agreements.

4 4.6.2 You shall ship or deliver the Product(s) no later than the requested shipment date contained in the order confirmation notice, as described in Section 4.9 of this Agreement, or within 7 days of receipt said notice, unless a different date is specified on an User Agreement. If such shipment date is not reasonably possible, You shall promptly notify the Prospect and IBM of Your projected shipment date and shall ship, deliver or provide the Product(s) at the earliest possible date.

4.6.3 You shall invoice and use reasonable efforts to collect all amounts payable under each User Agreement accepted by You.

4.6.4 You shall pay to IBM the compensation set forth in Section 6.0, "PAYMENT," and shall provide IBM with documentation and maintain records as provided therein.

4.6.5 You shall timely notify IBM when a Prospect's signature on an User Agreement is independently obtained by You and payment is due IBM under Section 6.0, "PAYMENT."

4.6.6 Throughout the term of this Agreement, You shall amend in writing the information provided to IBM on the business and product overview forms (provided to You by IBM and incorporated herein by reference) to ensure that such information remains accurate and complete.

4.6.7 You shall 1) promptly disclose to all Federal Prospects the existence of this Agreement, including the existence of the contingent fee payment arrangement in effect with IBM that would apply to the Federal Prospect's acquisition of the Product(s), 2) promptly, completely, and accurately execute any certifications, representations, and disclosure documents that may be required by any Federal Prospect to comply with federal regulations requiring certification and disclosure of contingent fee arrangements applicable to the acquisition of the Product(s).

4.6.8 In order for IBM to market Your Product(s) via an online service, You must presently have or must obtain a userid (at Your expense) and monitor a support forum on each service for the purposes of interactive exchange with Prospects who seek Information relative to Your Product(s) and/or their use. While IBM may also participate in such an interactive area and respond to inquires regarding ordering, and sales information, IBM may direct inquires regarding Your Product(s) specifications, pricing, User Agreement terms and conditions and other such inquires to You. You will respond to such inquires from Prospects with best efforts within two (2) business days of receipt.

4.6.9 You will approve in a timely manner all Marketing Materials and demonstration materials provided by IBM for IBM's use in marketing Your Products to Prospects. You shall provide written


Software Vendor Marketing Programs Agreement

approval to IBM for all information included in such Marketing Materials, including but not limited to, content, descriptions, pricing, technical information and usage of trademarks, trade names and copyrighted materials.

4.7 LICENSE You hereby grant IBM a worldwide, royalty-free, non-exclusive license to use, execute, perform, display, copy and distribute in tangible or electronic form all, or any portion of the Product(s) and any copyrighted material, including but not limited to graphics, pictures, drawings, screen layouts, text, icons, and any other related items owned
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