CORIO, INC.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of _______,
_______ by and between Corio, Inc., a Delaware corporation (the "Company"), and
____________________ ("Indemnitee").
WHEREAS, the Company desires to attract and retain the services of
highly qualified individuals, such as Indemnitee, to serve the Company and its
related entities;
WHEREAS, in order to induce Indemnitee to continue to provide services
to the Company, the Company wishes to provide for the indemnification of, and
the advancement of expenses to, Indemnitee to the maximum extent permitted by
law;
WHEREAS, the Company and Indemnitee recognize the continued difficulty
in obtaining liability insurance for the Company's directors, officers,
employees, agents and fiduciaries, the significant increases in the cost of such
insurance and the general reductions in the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, agents and fiduciaries to expensive litigation risks at the same time
as the availability and coverage of liability insurance has been severely
limited; and
WHEREAS, in view of the considerations set forth above, the Company
desires that Indemnitee shall be indemnified and advanced expenses by the
Company as set forth herein;
NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth
below.
1. Certain Definitions.
(a) "Change in Control" shall mean, and shall be deemed to have
occurred if, on or after the date of this Agreement, (i) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended), other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company acting in such capacity or a corporation
owned directly or indirectly by the stockholders of the Company in substantially
the same proportions as their ownership of stock of the Company, becomes the
"beneficial owner" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing more than 50% of the total
voting power represented by the Company's then
1
2
outstanding Voting Securities, (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of the Company and any new director whose election by the Board of
Directors or nomination for election by the Company's stockholders was approved
by a vote of at least two thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, or (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation other than a
merger or consolidation which would result in the Voting Securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into Voting Securities of the
surviving entity) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of (in one transaction or a series of
related transactions) all or substantially all of the Company's assets.
(b) "Claim" shall mean with respect to a Covered Event: any
threatened, pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that Indemnitee
in good faith believes might lead to the institution of any such action, suit,
proceeding or alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other.
(c) References to the "Company" shall include, in addition to
Corio, Inc., any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger to which Corio, Inc. (or any
of its wholly owned subsidiaries) is a party which, if its separate existence
had continued, would have had power and authority to indemnify its directors,
officers, employees, agents or fiduciaries, so that if Indemnitee is or was a
director, officer, employee, agent or fiduciary of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.
(d) "Covered Event" shall mean any event or occurrence related to
the fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any subsidiary of the Company, or is or was serving
at the request of the Company as a director, officer, employee, agent or
fiduciary of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action or inaction on the part of Indemnitee
while serving in such capacity.
2
3
(e) "Expenses" shall mean any and all expenses (including
attorneys' fees and all other costs, expenses and obligations incurred in
connection with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, to be a witness in or to
participate in, any action, suit, proceeding, alternative dispute resolution
mechanism, hearing, inquiry or investigation), judgments, fines, penalties and
amounts paid in settlement (if such settlement is approved in advance by the
Company, which approval shall not be unreasonably withheld) of any Claim and any
federal, state, local or foreign taxes imposed on the Indemnitee as a result of
the actual or deemed receipt of any payments under this Agreement.
(f) "Expense Advance" shall mean a payment to Indemnitee pursuant
to Section 3 of Expenses in advance of the settlement of or final judgement in
any action, suit, proceeding or alternative dispute resolution mechanism,
hearing, inquiry or investigation which constitutes a Claim.
(g) "Independent Legal Counsel" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 2(d) hereof,
who shall not have otherwise performed services for the Company or Indemnitee
within the last three years (other than with respect to matters concerning the
rights of Indemnitee under this Agreement, or of other Indemnitees under similar
indemnity agreements).
(h) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to "serving
at the request of the Company" shall include any service as a director, officer,
employee, agent or fiduciary of the Company which imposes duties on, or involves
services by, such director, officer, employee, agent or fiduciary with respect
to an employee benefit plan, its participants or its beneficiaries; and if
Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan, Indemnitee shall be deemed to have acted in a manner "not opposed to the
best interests of the Company" as referred to in this Agreement.
(i) "Reviewing Party" shall mean, subject to the provisions of
Section 2(d), any person or body appointed by the Board of Directors in
accordance with applicable law to review the Company's obligations hereunder and
under applicable law, which may include a member or members of the Company's
Board of Directors, Independent Legal Counsel or any other person or body not a
party to the particular Claim for which Indemnitee is seeking indemnification.
(j) "Section" refers to a section of this Agreement unless
otherwise indicated.
(k) "Voting Securities" shall mean any securities of the Company
that vote in the election of directors.
2. Indemnification.
3
4
(a) Indemnification of Expenses. Subject to the provisions of
Section 2(b) below, the Company shall indemnify Indemnitee for Expenses to the
fullest extent permitted by law if Indemnitee was or is or becomes a party to or
witness or other participant in, or is threatened to be made a party to or
witness or other participant in, any Claim (whether by reason of or arising in
part out of a Covered Event), including all interest, assessments and other
charges paid or payable in connection with or in respect of such Expenses.
(b) Review of Indemnification Obligations. Notwithstanding the
foregoing, in the event any Reviewing Party shall have determined (in a written
opinion, in any case in which Independent Legal Counsel is the Reviewing Party)
that Indemnitee is not entitled to be indemnified hereunder under applicable
law, (i) the Company shall have no further obligation under Section 2(a) to make
any payments to Indemnitee not made prior to such determination by such
Reviewing Party, and (ii) the Company shall be entitled to be reimbursed by
Indemnitee (who hereby agrees to reimburse the Company) for all Expenses
theretofore paid to Indemnitee to which Indemnitee is not entitled hereunder
under applicable law; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction to
secure a determination that Indemnitee is entitled to be indemnified hereunder
under applicable law, any determination made by any Reviewing Party that
Indemnitee is not entitled to be indemnified hereunder under applicable law
shall not be binding and Indemnitee shall not be required to reimburse the
Company for any Expenses theretofore paid in indemnifying Indemnitee until a
final judicial determination is made with respect thereto (as to which all
rights of appeal therefrom have been exhausted or lapsed). Indemnitee's
obligation to reimburse the Company for any Expenses shall be unsecured and no
interest shall be charged thereon.
(c) Indemnitee Rights on Unfavorable Determination; Binding
Effect. If any Reviewing Party determines that Indemnitee substantively is not
entitled to be indemnified hereunder in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation seeking an initial
determination by the court or challenging any such determination by such
Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and, subject to the provisions of Section 15, the Company hereby
consents to service of process and to appear in any such proceeding. Absent such
litigation, any determination by any Reviewing Party shall be conclusive and
binding on the Company and Indemnitee.
(d) Selection of Reviewing Party; Change in Control. If there has
not been a Change in Control, any Reviewing Party shall be selected by the Board
of Directors, and if there has been such a Change in Control (other than a
Change in Control which has been approved by a majority of the Company's Board
of Directors who were directors immediately prior to such Change in Control),
any Reviewing Party with respect to all matters thereafter arising concerning
the rights of Indemnitee to indemnification of Expenses under this Agreement or
any other agreement or under the Company's Certificate of Incorporation or
Bylaws as now or hereafter in effect, or under any other applicable law, if
desired by Indemnitee, shall be Independent Legal
4
5
Counsel selected by Indemnitee and approved by the Company (which approval shall
not be unreasonably withheld). Such counsel, among other things, shall render
its written opinion to the Company and Indemnitee as to whether and to what
extent Indemnitee would be entitled to be indemnified hereunder under applicable
law and the Company agrees to abide by such opinion. The Company agrees to pay
the reasonable fees of the Independent Legal Counsel referred to above and to
indemnify fully such counsel against any and all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto. Notwithstanding any other provision
of this Agreement, the Company shall not be required to pay Expenses of more
than one Independent Legal Counsel in connection with all matters concerning a
single Indemnitee, and such Independent Legal Counsel shall be the Independent
Legal Counsel for any or all other Indemnitees unless (i) the Company otherwise
determines or (ii) any Indemnitee shall provide a written statement setting
forth in detail a reasonable objection to such Independent Legal Counsel
representing other Indemnitees.
(e) Mandatory Payment of Expenses. Notwithstanding any other
provision of this Agreement other than Section 10 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in defense of any
Claim, Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection therewith.
3. Expense Advances.
(a) Obligation to Make Expense Advances. Upon receipt of a
written undertaking by or on behalf of the Indemnitee to repay such amounts if
it shall ultimately be determined that the Indemnitee is not entitled to be
indemnified therefore by the Company hereunder under applicable law, the Company
shall make Expense Advances to Indemnitee.
(b) Form of Undertaking. Any obligation to repay any Expense
Advances hereunder pursuant to a written undertaking by the Indemnitee shall be
unsecured and no interest shall be charged thereon.
(c) Determination of Reasonable Expense Advances. The parties
agree that for the purposes of any Expense Advance for which Indemnitee has made
written demand to the Company in accordance with this Agreement, all Expenses
included in such Expense Advance that are certified by affidavit of Indemnitee's
counsel as being reasonable shall be presumed conclusively to be reasonable.
4. Procedures for Indemnification and Expense Advances.
(a) Timing of Payments. All payments of Expenses (including,
without limitation, Expense Advances) by the Company to the Indemnitee pursuant
to this Agreement shall be made to the fullest extent permitted by law as soon
as practicable after written demand by
5
6
Indemnitee therefor is presented to the Company, but in no event later than
thirty (30) business days after such written demand by Indemnitee is presented
to the Company, except in the case of Expense Advances, which shall be made no
later than ten (10) business days after such written demand by Indemnitee is
presented to the Company.
(b) Notice/Cooperation by Indemnitee. Indemnitee shall, as a
condition precedent to Indemnitee's right to be indemnified or Indemnitee's
right to receive Expense Advances under this Agreement, give the Company notice
in writing as soon as practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this Agreement. Notice to the
Company shall be directed to the Chief Executive Officer of the Company at the
address shown on the signature page of this Agreement (or such other address as
the Company shall designate in writing to Indemnitee). In addition, Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee's power.
(c) No Presumptions; Burden of Proof. For purposes of this
Agreement, the termination of any Claim by judgment, order, settlement (whether
with or without court approval) or conviction, or upon a plea of nolo
contendere, or its equivalent, shall not create a presumption that Indemnitee
did not meet any particular standard of conduct or have any particular belief or
that a court has determined that indemnification is not permitted by this
Agreement or applicable law. In addition, neither the failure of any Reviewing
Party to have made a determination as to whether Indemnitee has met any
particular standard of conduct or had any particular belief, nor an actual
determination by any Reviewing Party that Indemnitee has not met such standard
of conduct or did not have such belief, prior to the commencement of legal
proceedings by Indemnitee to secure a judicial determination that Indemnitee
should be indemnified under this Agreement under applicable law, shall be a
defense to Indemnitee's claim or create a presumption that Indemnitee has not
met any particular standard of conduct or did not have any particular belief. In
connection with any determination by any Reviewing Party or otherwise as to
whether the Indemnitee is entitled to be indemnified hereunder under applicable
law, the burden of proof shall be on the Company to establish that Indemnitee is
not so entitled.
(d) Notice to Insurers. If, at the time of the receipt by the
Company of a notice of a Claim pursuant to Section 4(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall give
prompt notice of the commencement of such Claim to the insurers in accordance
with the procedures set forth in the respective policies. The Company shall
thereafter take all necessary or desirable action to cause such insurers to pay,
on behalf of the Indemnitee, all amounts payable as a result of such Claim in
accordance with the terms of such policies.
(e) Selection of Counsel. In the event the Company shall be
obligated hereunder to provide indemnification for or make any Expense Advances
with respect to the Expenses of any Claim, the Company, if appropriate, shall be
entitled to assume the defense of
6
7
such Claim with counsel approved by Indemnitee (which approval shall not be
unreasonably withheld) upon the delivery to Indemnitee of written notice of the
Company's election to do so. After delivery of such notice, approval of such
counsel by Indemnitee and the retention of such counsel by the Company, the
Company will not be liable to Indemnitee under this Agreement for any fees or
expenses of separate counsel subsequently retained by or on behalf of Indemnitee
with respect to the same Claim; provided that, (i) Indemnitee shall have the
right to employ Indemnitee's separate counsel in any such Claim at Indemnitee's
expense and (ii) if (A) the employment of separate counsel by Indemnitee has
been previously authorized by the Company, (B) Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Company and
Indemnitee in the conduct of any such defense, or (C) the Company shall not
continue to retain such counsel to defend such Claim, then the fees and expenses
of Indemnitee's separate counsel shall be Expenses for which Indemnitee may
receive indemnification or Expense Advances hereunder.
5. Additional Indemnification Rights; Nonexclusivity.
(a) Scope. The Company hereby agrees to indemnify the Indemnitee
to the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of this
Agreement, the Company's Certificate of Incorporation, the Company's Bylaws or
by statute. In the event of any change after the date of this Agreement in any
applicable law, statute or rule which expands the right of a Delaware
corporation to indemnify a member of its board of directors or an officer,
employee, agent or fiduciary, it is the intent of the parties hereto that
Indemnitee shall enjoy by this Agreement the greater benefits afforded by such
change. In the event of any change in any applicable law, statute or rule which
narrows the right of a Delaware corporation to indemnify a member of its board
of directors or an officer, employee, agent or fiduciary, such change, to the
extent not otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties' rights and
obligations hereunder except as set forth in Section 10(a) hereof.
(b) Nonexclusivity. The indemnification and the payment of
Expense Advances provided by this Agreement shall be in addition to any rights
to which Indemnitee may be entitled under the Company's Certificate of
Incorporation, its Bylaws, any other agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of the State of Delaware,
or otherwise. The indemnification and the payment of Expense Advances provided
under this Agreement shall continue as to Indemnitee for any action taken or not
taken while serving in an indemnified capacity even though subsequent thereto
Indemnitee may have ceased to serve in such capacity.
6. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision
7
8
of the Company's Certificate of Incorporation, Bylaws or otherwise) of the
amounts otherwise payable hereunder.
7. Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses incurred in connection with any Claim, but not, however, for
all of the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such Expenses to which Indemnitee is entitled.
8. Mutual Acknowledgement. Both the Company and Indemnitee acknowledge
that in certain instances, federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company's right under public policy to indemnify Indemnitee.
9. Liability Insurance. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are provided to the most favorably
insured of the Company's directors, if Indemnitee is a director; or of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company's key employees, agents or fiduciaries, if Indemnitee
is not an officer or director but is a key employee, agent or fiduciary.
10. Exceptions. Notwithstanding any other provision of this Agreement,
the Company shall not be obligated pursuant to the terms of this Agreement:
(a) Excluded Action or Omissions. To indemnify or make Expense
Advances to Indemnitee with respect to Claims arising out of acts, omissions or
transactions for which Indemnitee is prohibited from receiving indemnification
under applicable law.
(b) Claims Initiated by Indemnitee. To indemnify or make Expense
Advances to Indemnitee with respect to Claims initiated or brought voluntarily
by Indemnitee and not by way of defense, counterclaim or crossclaim, except (i)
with respect to actions or proceedings brought to establish or enforce a right
to indemnification under this Agreement or any other agreement or insurance
policy or under the Company's Certificate of Incorporation or Bylaws now or
hereafter in effect relating to Claims for Covered Events, (ii) in specific
cases if the Board of Directors has approved the initiation or bringing of such
Claim, or (iii) as otherwise required under Section 145 of the Delaware General
Corporation Law, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification, Expense Advances, or insurance recovery, as
the case may be.
8
9
(c) Lack of Good Faith. To indemnify Indemnitee for any Expenses
incurred by the Indemnitee with respect to any action instituted (i) by
Indemnitee to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each of
the material assertions made by the Indemnitee as a basis for such action was
not made in good faith or was frivolous, or (ii) by or in the name of the
Company to enforce or interpret this Agreement, if a court having jurisdiction
over such action determines as provided in Section 13 that each of the material
defenses asserted by Indemnitee in such action was made in bad faith or was
frivolous.
(d) Claims Under Section 16(b). To indemnify Indemnitee for
Expenses and the payment of profits arising from the purchase and sale by
Indemnitee of securities in violation of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar successor statute.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. Binding Effect; Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), spouses, heirs and
personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial part, of
the business or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such succession had taken place. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as
a director, officer, employee, agent or fiduciary (as applicable) of the Company
or of any other enterprise at the Company's request.
13. Expenses Incurred in Action Relating to Enforcement or
Interpretation. In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the
Company to enforce or interpret any of the terms hereof or thereof, Indemnitee
shall be entitled to be indemnified for all Expenses incurred by Indemnitee with
respect to such action (including, without limitation, attorneys' fees),
regardless of whether Indemnitee is ultimately successful in such action, unless
as a part of such action a court having jurisdiction over such action makes a
final judicial determination (as to which all rights of appeal therefrom have
been exhausted or lapsed) that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous; provided, however, that until such final judicial determination is
made, Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action. In the event of an action
instituted by or
9
10
in the name of the Company under this Agreement to enforce or interpret any of
the terms of this Agreement, Indemnitee shall be entitled to be indemnified for
all Expenses incurred by Indemnitee in defense of such action (including,
without limitation, costs and expenses incurred with respect to Indemnitee's
counterclaims and cross-claims made in such action), unless as a part of such
action a court having jurisdiction over such action makes a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that each of the material defenses asserted by Indemnitee in such action
was made in bad faith or was frivolous; provided, however, that until such final
judicial determination is made, Indemnitee shall be entitled under Section 3 to
receive payment of Expense Advances hereunder with respect to such action.
14. Period of Limitations. No legal action shall be brought and no cause
of action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee's estate, spouse, heirs, executors or personal or legal
representatives after the expiration of two years from the date of accrual of
such cause of action, and any claim or cause of action of the Company shall be
extinguished and deemed released unless asserted by the timely filing of a legal
action within such two year period; provided, however, that if any shorter
period of limitations is otherwise applicable to any such cause of action, such
shorter period shall govern.
15. Notice. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.
16. Consent to Jurisdiction. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.
17. Severability. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
10
11
18. Choice of Law. This Agreement, and all rights, remedies,
liabilities, powers and duties of the parties to this Agreement, shall be
governed by and construed in accordance with the laws of the State of Delaware
as applied to contracts between Delaware residents entered into and to be
performed entirely in the State of Delaware without regard to principles of
conflicts of laws.
19. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
20. Amendment and Termination. No amendment, modification, termination
or cancellation of this Agreement shall be effective unless it is in writing
signed by both the parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed to be or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver.
21. Integration and Entire Agreement. This Agreement sets forth the
entire understanding between the parties hereto and supersedes and merges all
previous written and oral negotiations, commitments, understandings and
agreements relating to the subject matter hereof between the parties hereto.
22. No Construction as Employment Agreement. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company or any of its subsidiaries or affiliated entities.
11
12
IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement as of the date first above written.
CORIO, INC.
A Delaware Corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Address: 700 Bay Road, Suite 210
Redwood City, CA 94063
AGREED TO AND ACCEPTED
INDEMNITEE:
---------------------------------
(signature)
Name:
----------------------------
Address:
-------------------------
12
EX-10.2
8
EXHIBIT 10.2
1
EXHIBIT 10.2
HOSTING LICENSE AGREEMENT
This Hosting License Agreement ("Agreement") is entered into as of June 30, 1999
(the "Effective Date"), by and between Active Software, Inc., a California
corporation with its principal place of business at 3333 Octavius Drive, Santa
Clara, California 95054 ("Active"), and Corio, Inc., a Delaware corporation with
its principal place of business at 700 Bay Road, Redwood City, California 94063
("Partner").
RECITALS
1. Active develops and distributes software (the "Active Materials," as
defined below) which enables the integration of certain third party software
with other third party software.
2. Partner hosts certain third party software (the "Third Party
Software," as defined below) for its customers.
3. Active wishes Partner to integrate certain Active Materials into the
Third Party Software and host the Integrated Hosting Services (as defined
below), and Partner wishes to obtain the right to integrate the Active Materials
and host the Integrated Hosting Services.
AGREEMENT
IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE
PARTIES AGREE AS FOLLOWS:
1. Definitions.
"Active Materials" means the Licensed Materials.
"Adapter" means the adapter and/or agent software described under the heading
"Adapters" in Exhibit A, in Object Code format only, which Active distributes or
develops and which interfaces between the Integration Kit and the Third Party
Software.
"Confidential Information" of a party means any information disclosed by that
party to the other party pursuant to this Agreement which is in written,
graphic, machine readable or other tangible form and is marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature.
Confidential Information may also include oral information disclosed by one
party to the other pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure or is so designated in
writing by the disclosing party within thirty (30) days after its oral
disclosure. Notwithstanding the foregoing, all information Active provides to
Partner that relates to the Active Materials shall be deemed Active's
Confidential Information.
"Developer Kit" means the software described under the heading "Developer Kit"
in Exhibit A, in Object Code format only, which Active distributes to software
developers to enable such developers to build or modify Adapters and/or to build
or modify events, rules, transformations and other integration process
components used for specific applications.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
2
"Documentation" means all documentation provided by Active to Partner, as
further described or enumerated in Exhibit A.
"End User" means any party that accesses the Integrated Hosting Services through
Partner's servers.
"End User License" means the license agreement (i) pursuant to which Partner
will grant the End User access to the Integrated Hosting Services, and (ii)
which shall contain at least the restrictions set forth on Exhibit C.
"Integrated Hosting Services" means Partner's hosting services which enable End
Users to access the integrated Licensed Materials and the Third Party Software
hosted on Partner's servers.
"Integration Kit" means the software described under the heading "Integration
Kit" in Exhibit A, in Object Code format only.
"Licensed Materials" means the Integration Kit, the Adapters, the Developer Kit
and the Documentation, including any modifications Active provides under Section
10.2, which Partner may host for its End Users in accordance with Section 2.1
below and the terms of this Agreement.
"Object Code" and "Object Code format" means binary computer codes in executable
format and relocatable binary code libraries that can be linked into executable
programs.
All references in this Agreement to the "purchase" or "sale" of software means
the acquiring or granting, respectively, of a license to use such software, and
to exercise any other rights pertaining to such software which are expressly set
forth herein.
"Third Party Software" means any software not developed by Active that Partner
hosts for its End Users as listed in Exhibit A.
2. Licenses and Restrictions.
2.1 Hosting License. Subject to the terms and conditions of this
Agreement, Active hereby grants Partner a non-exclusive license,
without rights to sublicense, to host the Licensed Materials on
Partner's servers solely for the purposes of providing the
Integrated Hosting Services to End Users. Partner is allowed to
grant End Users the right to access the Licensed Materials
hosted on Partner's servers pursuant to the terms of this
Agreement and under the terms specified in the End User License.
2.1.1 Access to Technology: Active shall provide Corio with
any pre-release "Beta" versions of relevant Updates or
Upgrades of the Software. Active shall make these
versions available to Corio to preview at the earliest
possible date, but in no event later than the date
Active first publicly releases such products. Active
shall provide all such Updates and Upgrades to Corio
free of additional charge and Corio shall, in its sole
discretion determine when, and if, to offer any such
Updates and/or Upgrades to its Customers.
2.2 Use Licenses. Subject to the terms and conditions of this
Agreement, Active hereby grants Partner a nonexclusive license,
without rights to sublicense, to use the Active Materials solely
for the purposes of: (a) integrating the Licensed Materials into
the Third Party Software; (b) providing
-2-
3
customization services with respect to the Adapters on behalf of End Users upon
request; (c) demonstrating the Integrated Hosting Services to potential End
Users; (d) providing training in the use of the Integrated Hosting Services and
the Active Materials to Partner's employees and contractors; and (e) providing
support and training to End Users in connection with the Integrated Hosting
Services.
2.3 Trademark License. Subject to the terms and conditions of this
Agreement, Active hereby grants Partner a nonexclusive license to use the Active
trademarks, trade names and logos set forth in Exhibit B (as amended from time
to time by Active) solely in connection with the marketing of the Integrated
Hosting Services. Partner shall comply with any usage guidelines which may be
provided to Partner by Active from time to time, and upon request by Active,
shall furnish Active with samples of Partner's usage of such trademarks, trade
names and logos. Partner shall not challenge Active's ownership of such
trademarks, trade names and logos or use or adopt any trademarks which might be
confusingly similar to such marks.
2.5 Restrictions. Active reserves all rights in the Active Materials
which are not expressly granted to Partner in this Agreement. Partner shall not
decompile, disassemble, reverse engineer or otherwise attempt to derive, obtain
or modify the source code of the Active Materials. Partner shall not remove any
Active copyright or other proprietary rights notices from any software or
documentation materials provided by Active to Partner. Partner further agrees to
permit Active to enter any of Partner's premises during regular business hours,
upon five (5) days prior written notice, to inspect Partner's use of the Active
Materials.
3. Obligations of Partner.
3.1 Promotion of the Integrated Hosting Services. Partner shall use its
best efforts to integrate the Licensed Materials into the Third Party Software
and to promote the sale of and use of, and to stimulate interest in, the
Integrated Hosting Services. All marketing efforts and development efforts by
Partner shall be at Partner's expense.
3.2 Partner Support. Partner shall provide its personnel involved in the
development of the Integrated Hosting Services with training, technical support,
information and other appropriate assistance.
3.3 Partner Contact. Partner shall designate one person who shall act as
a focal point to coordinate with Active the marketing activities and the
integration of the Active Materials, and who shall be authorized to act on
behalf of Partner within the scope of this Agreement.
3.4 Records and Reporting.
3.5.1 Within thirty (30) days following the end of each calendar
quarter, Partner will provide to Active written reports showing, for such
calendar quarter: (a) the number of copies of the Licensed Materials accessed
and used by each End User through the Integrated Hosting Services, and (b) the
End User contact information, location and any customer usage information with
respect to each copy of the Active Materials accessed through the Integrated
Hosting Services.
3.5.2 Partner will notify Active, in writing, of any claim or
proceeding, actual or threatened, involving the Active Materials within ten (10)
days after Partner learns of such claim or proceeding. Partner will also notify
Active in writing immediately of all claimed or suspected defects in
-3-
4
the Active Materials. All such claims, proceedings, and suspected defects shall
be deemed Active's Confidential Information.
3.5.3 Partner shall maintain full and complete records of the use
of Licensed Materials through the Integrated Hosting Services, including without
limitation copies of the reports described in Section 3.5.1, for at least three
(3) years after such use or sales. Active shall, at any time during the period
when Partner is obliged to maintain such records, be entitled to audit such
records upon thirty (30) days written notice, in order to confirm the accuracy
of the reports described in Section 3.5.1, provided, that Active may conduct no
more than one such audit in any six (6) month period. Any such audit shall be
performed at Active's expense during normal business hours; provided, that the
cost of such audit (in addition to the full amount of any underpayments and
related late charges under Section 6.6) shall be promptly paid by Partner if
such audit reveals an underpayment by Partner of more than five percent (5%) of
the amounts payable by Partner to Active in any six (6) month period.
3.6 Government Approvals. Partner shall be responsible for obtaining all
necessary government approvals, consents, licenses or permits to enable it to
purchase the Licensed Materials, and to provide the Integrated Hosting Services
to End Users. Partner will bear all costs associated with obtaining such
government approvals, consents, licenses or permits. Partner shall comply with
all government regulations.
3.7 End User License. Partner will obtain an executed End User License
from each End User prior to (i) granting such End User access to the Integrated
Hosting Services.
3.8 Further Agreements. Partner agrees: (i) to avoid deceptive,
misleading or unethical practices detrimental to Active or to the Active
Materials, including, without limitation, disparagement of Active or the Active
Materials; and (ii) to make no representations, warranties or guaranties to End
Users with respect to the specifications, features or capabilities of the Active
Materials that are inconsistent with the Documentation supplied by Active.
3.9 Feedback. Partner shall provide Active with prompt written
notification of any problems with the Active Materials or their use that Partner
becomes aware of. Such written notification shall be the property of Active, and
shall be considered Active's Confidential Information hereunder.
3.10 Publicity. Within thirty (30) days after the Effective Date, the
parties will issue a joint press release to announce the relationship of the
parties as set forth under this Agreement.
4. Changes in Active Materials. Active shall have the right to modify the
Active Materials at any time upon written notice to Partner or to discontinue
distribution of any of the Active Materials at any time. Receipt by Partner of a
price schedule or other notification from Active reflecting an addition or a
deletion to the Active Materials or receipt of a facsimile specifically adding
or deleting Active Materials shall constitute notice of such an addition or
deletion and, with respect to additions, of the price for the added product.
5. Title.
Active shall own all right, title and interest in and to the originals
and any copies, in whole or in part, of the Active Materials, and all patents,
trade secrets, copyrights and other intellectual property rights pertaining
thereto. Partner acknowledges that the licenses granted pursuant to this
Agreement do
-4-
5
not provide Partner with title or ownership of the Active Materials. Partner
shall keep the Active Materials free and clear of all claims, liens and
encumbrances.
6. Payments, Taxes.
6.1 Payments. Partner will pay Active as set forth in Exhibit D.
6.2 Payment Terms. All Payments are net 30, except as set forth in
Exhibit D.
6.3 Price Changes. Active shall have the right to change its list prices
for the Active Materials at any time.
6.4 Taxes. All prices are exclusive of, and Partner shall pay or
reimburse Active for, all taxes, duties and assessments imposed on Partner or
Active in connection with the license or use of Active Materials under this
Agreement or any services provided hereunder, including without limitation all
sales, use, excise and other taxes and duties, excluding only taxes based upon
Active's net income. Partner shall hold Active harmless from all claims and
liability arising from Partner's failure to report or pay any such taxes, duties
and assessments.
6.5 Late Payments. All amounts that are not paid by Partner as required
by this Agreement shall be subject to a late charge equal to one and one-half
percent (1.5%) per month, or, if less, the maximum amount allowed by applicable
law. In the event that any amount due hereunder is overdue, Active reserves the
right to suspend performance until such delinquency is corrected.
7. Confidential Information.
7.1 Confidentiality. Each party shall treat as confidential all
Confidential Information of the other party, shall not use such Confidential
Information except as set forth herein, and shall use reasonable efforts not to
disclose such Confidential Information to any third party. Without limiting the
foregoing, each of the parties shall use at least the same degree of care which
it uses to prevent the disclosure of its own confidential information of like
importance to prevent the disclosure of Confidential Information disclosed to it
by the other party under this Agreement. Each party shall promptly notify the
other party of any actual or suspected misuse or unauthorized disclosure of the
other party's Confidential Information.
7.2 Exceptions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which: (a) was in the public domain at the time it was disclosed or has entered
the public domain through no fault of the receiving party; (b) was known to the
receiving party, without restriction, at the time of disclosure, as demonstrated
by files in existence at the time of disclosure; (c) is disclosed with the prior
written approval of disclosing party; (d) became known to the receiving party,
without restriction, from a source other than the disclosing party without
breach of this Agreement by the receiving party and otherwise not in violation
of the disclosing party's rights; or (e) is disclosed pursuant to the order or
requirement of a court, administrative agency, or other governmental body;
provided, however, that the receiving party shall use all reasonable efforts to
provide prompt, written, and sufficient advance notice thereof to the disclosing
party to enable the disclosing party to seek a protective order or otherwise
prevent or restrict such disclosure.
-5-
6
7.3 Return of Confidential Information. Each party shall promptly return
the other party's Confidential Information to the other party (i) after
termination of this Agreement, or (ii) upon receipt of written notice from the
other party requesting return of such Confidential Information.
8. Representations and Warranties of Partner.
Partner warrants to Active that the End Users shall be able to access
the Integrated Hosting Services (i) on a twenty-four-hours-per-day,
seven-days-per-week basis, except during scheduled and unscheduled maintenance
downtime, and (ii) on a ninety-nine percent (99%) availability basis.
9. Representations and Warranties of Active.
9.1 Warranty to the End User. Each End User receives a warranty (if any)
on the Active Materials from Partner only to the extent set forth in the End
User License. Active makes no warranties to the End User in connection with the
Active Materials, and expressly disclaims any implied warranties of
merchantability or fitness for a particular purpose to the End User.
9.2 Warranty to Partner. Active warrants to Partner that for a period of
ninety (90) days after the date of delivery of the Licensed Materials to the
Partner, (i) the Integration Kit, the Adapters and the Developer Kit will
substantially achieve the functionality described in the Documentation, and (ii)
the media containing the Licensed Materials will be free from defects in
materials and workmanship. Active's entire liability and Partner's exclusive
remedy under this limited warranty shall be, at Active's option, (y) repair or
replacement of all or the affected portion of the Licensed Materials, or (z) a
refund of the purchase price paid for such Licensed Materials and termination of
the licenses under Section 2 for such Licensed Materials, provided that Active
receives notice of such defect during the warranty period. Active does not
warrant that (a) the Licensed Materials will meet Partner's requirements, (b)
the operation of the Integration Kit, the Adapters or the Developer Kit will be
uninterrupted or error-free, or (c) the Documentation will be error-free.
9.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, ACTIVE
MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR
OTHERWISE, WITH RESPECT TO ANY ACTIVE MATERIALS, INCLUDING THEIR CONDITION,
THEIR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY
LATENT OR PATENT DEFECTS, AND ACTIVE SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. ACTIVE MAKES, AND
PARTNER RECEIVES, NO REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE ACTIVE SUPPORT REFERRED TO
IN SECTION 10.2.
10. Support.
10.1 Support to End Users. Partner is responsible for providing all
support with respect to the Integrated Hosting Services and the Active Materials
to End Users. Active will not be responsible for providing support to End Users.
10.2 Support to Partner. Partner will receive support from Active with
respect to the Licensed Materials under the terms of the Support Agreement
attached as Exhibit E.
-6-
7
10.3 Title. All releases and other changes, improvements, bug fixes or
other modifications to the Licensed Materials provided pursuant to Section 10.2
shall be deemed to be included within the Licensed Materials, and will be
subject to the terms and conditions of this Agreement.
11. Indemnity.
11.1 Indemnity by Active.
11.1.1 Indemnity. Active will defend or settle, at its expense,
any action brought against Partner based upon a claim that the Active Materials
used within the scope of the licenses granted hereunder infringe an issued U.S.
patent or registered U.S. copyright, and Active further agrees to pay all
damages and costs finally awarded against Partner attributable to such claim;
provided that Partner (a) notifies Active promptly in writing of any such claim,
(b) gives Active sole control of the defense and/or settlement of such action,
and (c) gives Active all authority, information and assistance reasonably
necessary to settle or defend such claim. Active shall reimburse Partner for
incidental out-of-pocket expenses incurred by Partner in providing such
assistance. Active shall not be liable for any costs or expenses incurred
without its prior written authorization.
11.1.2 Active Options. If the Active Materials become, or in the
opinion of Active may become, the subject of a claim of infringement of any
issued U.S. patent or registered U.S. copyright, Active may, at its option: (i)
procure for Partner the right to use the Active Materials free of any liability;
(ii) replace or modify the Active Materials to make them non-infringing; or
(iii) remove the Active Materials, or part thereof, and refund the license fees
paid hereunder for such Active Materials, as depreciated over a sixty (60) month
period.
11.1.3 Exclusions from Indemnity. Active assumes no liability
hereunder for any compliance with Partner's specifications. Active shall have no
obligation to defend the Partner or to pay costs, damages or attorney's fees for
any claim based upon: (i) use of other than a current unaltered release of the
Active Materials; or (ii) the combination, operation or use of any Active
Materials furnished hereunder with non-Active programs or data if such
infringement would have been avoided but for the combination, operation or use
of the Active Materials with such programs or data.
11.1.4 Sole and Exclusive Liability. THIS SECTION 11 SETS FORTH
THE SOLE AND EXCLUSIVE LIABILITY OF ACTIVE FOR INFRINGEMENT OF THIRD PARTY
INTELLECTUAL PROPERTY RIGHTS.
11.2 Indemnity by the Partner. Partner agrees to indemnify and hold
Active harmless from and against any loss, cost or expense (including attorneys'
fees) resulting from any and all claims by third parties for loss, damage or
injury (including death) allegedly caused by the negligence, misrepresentation,
misconduct, error, omission or other action of Partner, or of Partner's agents
or employees. In addition, Partner agrees to indemnify and hold Active harmless
from and against any loss, cost or expense (including attorneys' fees) resulting
from any and all claims by third parties alleging that the Integrated Hosting
Services infringes any patent, trade secret, or copyright, provided that Partner
shall have sole control of any such action or settlement negotiations.
Notwithstanding the foregoing, Partner shall have no liability under this
Section 11.2 for any claim alleging that the unaltered Licensed Materials,
standing alone, infringe any third party's intellectual property rights.
12. Limitation of Liability.
-7-
8
Partner agrees that Active's liability hereunder arising from this
Agreement shall in no event exceed the payments received by Active pursuant to
this Agreement. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS,
LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, LOSS OF USE, OR LOSS OF DATA FOR
COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FOR ANY CLAIM OR DEMAND
AGAINST THE OTHER PARTY BY ANY OTHER PARTY OR FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
UNDER OR ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE
AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART UPON THESE LIMITATIONS, AND THAT
THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY.
13. Term and Termination.
13.1 Term. The term of this Agreement and the license granted hereunder
shall commence on the date set forth at the beginning of this Agreement and
shall continue for a term of [*] unless earlier terminated in accordance with
this Section 13.
13.2 Termination for Material Breach. Either party may, at its option,
terminate this Agreement upon written notice to the other party if the other
party materially breaches any of the terms and conditions of this Agreement and
if such material breach has not been cured within thirty (30) days after written
notice to the other party.
13.3 Termination for Insolvency. This Agreement may be terminated by
either party, on notice, (i) if the other party becomes insolvent, (ii) upon the
institution by the other party of insolvency, receivership or bankruptcy
proceedings or any other proceedings for the settlement of its debts, (iii) upon
the institution of such proceedings against the other party, which are not
dismissed or otherwise resolved in such other party's favor within sixty (60)
days thereafter, (iv) upon the other party's making a general assignment for the
benefit of creditors, or (v) upon the other party's dissolution or ceasing to
conduct business in the normal course.
13.4 Surviving Terms. Sections 5, 6, 7, 9, 11, 12, 13 and 14, and all
payment obligations incurred prior to termination of this Agreement, shall
survive termination of this Agreement. Within thirty (30) days after termination
of this Agreement, Partner shall return to Active, at Partner's expense, and
shall make no further use of, any property, materials or other items of Active,
and shall certify in writing to Active, that the originals and all copies, in
whole or in part, in any form, of the Licensed Materials in the possession of
Partner or its affiliates or agents have been destroyed or returned to Active.
13.5 Other Remedies. Nothing contained herein shall limit any other
remedies that Active may have for the default of Partner under this Agreement
nor relieve Partner of any of its obligations incurred prior to termination of
this Agreement.
14. General Provisions.
14.1 Assignment. All the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and to
their respective heirs, successors, assigns and
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-8-
9
legal representatives. Partner may not assign this Agreement in whole or in part
except with Active's prior written consent, excluding the condition that the
Partner shall have the right to assign this Agreement in connection with the
merger or acquisition of such party or the sale of all or substantially all of
its assets related to this Agreement without such consent. Any assignment by
Partner shall not result in an increase in the scope of the license granted
pursuant to this Agreement. Active shall be entitled to assign this Agreement to
a party which agrees to be bound by the terms and conditions of this Agreement.
14.2 Entire Agreement. This Agreement represents the entire agreement
between the parties, and supersedes all prior agreements and understandings with
respect to the matters covered by this Agreement. Partner agrees that it has not
entered into this Agreement based on any representations other than those
contained herein. This Agreement may only be amended by a written agreement
signed by both parties. The terms and conditions of this Agreement shall prevail
in the event of any variance with any purchase order or invoice produced by
Active or Partner.
14.3 Governing Law. This Agreement shall in all respects be governed by
the laws of the State of California without reference to its principles of
conflicts of laws. The parties hereby agree that all disputes arising out of
this Agreement shall be subject to the exclusive jurisdiction of and venue in
the federal and state courts located in San Francisco, California or within
Santa Clara County, California. Partner hereby consents to the personal and
exclusive jurisdiction and venue of these courts.
14.4 Severability. If any of the provisions of this Agreement are held
to be invalid under any applicable statute or rule of law, they are, to that
extent, deemed omitted.
14.5 Waiver. The waiver of any particular breach or default or any delay
in exercising any rights shall not constitute a waiver of any subsequent breach
or default.
14.6 Notices. All notices permitted or required under this Agreement
shall be in writing and shall be delivered in person or mailed by first class,
registered or certified mail, postage prepaid, to the address of the party
specified in this Agreement or such other address as either party may specify in
writing. Such notice shall be deemed to have been given upon receipt.
14.7 Force Majeure. Neither party will be responsible for any failure to
perform its obligations (other than payment obligations) under this Agreement
due to reasons beyond its reasonable control, including without limitation acts
of God, war, riot, embargoes, acts of civil or military authorities, fire,
floods or accidents.
14.8 Export Laws and Regulations. Any obligation of Active to provide
the Active Materials under this Agreement shall be subject in all respects to
all United States laws and regulations governing the license and delivery of
technology and products abroad by persons subject to the jurisdiction of the
United States. Partner shall not export, directly or indirectly, any Active
Materials or related information without first obtaining all required licenses
and approvals from the appropriate government agencies.
14.9 Independent Contractors. Notwithstanding the use of the word
"partner" in marketing materials, the relationship of Active and Partner is that
of independent contractors, and nothing contained in this Agreement shall be
construed to (i) give either party the power to direct or control the day-to-day
activities of the other, (ii) constitute the parties as partners, joint
venturers, co-owners or otherwise as participants in a joint undertaking, or
(iii) allow the Partner to create or assume any obligation on behalf of Active
for any purpose whatsoever.
-9-
10
14.10 Headings. The headings of the several sections of this Agreement
are intended for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
14.11 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one instrument.
-10-
11
AGREED AND ACCEPTED:
ACTIVE SOFTWARE, INC. CORIO, INC./s/ Signature
Illegible>
By: /s/ Signature Illegible By: HASAN G. RIZVI
----------------------------- ----------------------------
Title: CFO Title: DIRECTOR OF ENGG.
-------------------------- -------------------------
7/1/99
12
EXHIBIT A
LICENSED MATERIALS
1. Active Software.
1.1 Integration Kit.
Information Broker
Integration Logic Agent
7/1/99
PeopleSoft Application Adapter
Siebel Application Adapter
Oracle Database Adapter
Java Language Adapter
1.2 Developer Kit.
Includes 6 Non Production Instances of the following products to
be used for prototyping, development and testing integration
systems.
Active Works Information Broker and its Associated Options
Secure Sockets Layer
Multi-Broker Option
Active Works Information Broker Agents: All
ActiveWorks Integration Tools: All
ActiveWorks Adapters:
Language Adapters All
Middleware Adapters All
Database Adapters All
Application Adapters All
2. Documentation.
All associated product documentation shipped with the Active Software
listed above.
3. Third Party Software-
PeopleSoft
Octane 99
Siebel 99
and any other apps that coris may include.
Hasan G. Rizvi 6/30/99
13
EXHIBIT B
LICENSED TRADEMARKS, TRADE NAMES AND LOGOS
Active Software, ActiveWorks, Activesw, and
Active Database Adapter are registered
trademarks of Active Software, Inc.
14
EXHIBIT C
END USER LICENSE AGREEMENT REQUIREMENTS
All End User licenses of the Active Materials shall be in writing and
executed and include at least the following provisions:
(1) the End User is granted only a personal, nontransferable, and
nonexclusive right to use the Active Materials only for its internal business
purposes;
(2) Active or its licensors retain all of their intellectual property
rights in the Active Materials, and no title to such intellectual property is
transferred to the End User;
(3) the End User agrees not to reverse assemble, decompile, or otherwise
attempt to derive source code form the Active Materials;
(4) the Active Materials are the confidential information of Active and
the End User shall keep such Active Materials in confidence and shall not use or
disclose such Active Materials, except as permitted by the license, without
Active's prior written consent;
(5) the End User agrees to comply with all export and re-export
restrictions and regulations of the Department of Commerce or other United
States agency or authority, and not to transfer, or authorize the transfer, of
the Active Materials to a prohibited country or otherwise in violation of any
such restrictions or regulations;
(6) the End User receives a warranty on the Active Materials from
Partner, and Active makes no warranties to the End User in connection with the
Active Materials, and expressly disclaims any implied warranties of
merchantability or fitness for a particular purpose;
(7) Active shall not be liable to the End User for any indirect,
consequential, incidental or special damages arising out of the use or license
of the Active Materials, regardless of the theory of liability (including
negligence and strict liability);
(8) Active may terminate the licensed use of Active's Licensed Products
upon written notice of failure by the End User to comply with the terms of such
license;
(9) within five (5) days after termination of the license, the End User
shall destroy the Active Materials or return them to Active or to Partner at the
End User's expense; and
(10) Active is a third-party beneficiary of the license agreement.
15
EXHIBIT D
PAYMENTS
1. Integrated Hosting Services.
Corio shall pay the following monthly fees for each of their customers
accessing the Integration Kit through the Integrated Hosting Services as
per the table below.
Customer # Of Customers Initial Sign Up Fee Annual Service Fee
Definition
Tier 1 1st 150 Customers [*] [*]
Up to $375MM
Tier 1 All Other Tier 1 [*] [*]
Up to $375MM
Tier 2 All [*] [*]
Above $375MM
Up to $1 Billion
Tier 3 All [*] [*]
Above $1 Billion
2. Corio Agrees to pay Active Software [*] for the licensed materials on
Exhibit A including prepayments of the fees for the first 23 Tier 1
customers. Payment will be in two increments: [*] Payable Net 30 Days,
[*] Payable Net 60 Days.
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
16
EXHIBIT E
ACTIVE SOFTWARE, INC.
ACTIVESERVICE PLAN
This Plan sets forth the terms and conditions under which Active Software, Inc.
("Active"), provides the following Support and Maintenance program known as
("ActiveService") to Corio for the programs (the "Software") and documentation
specified in Exhibit A.
This Plan sets forth the terms and conditions under which Active Software, Inc.
("Active"), provides the following Support and Maintenance program known as
("ActiveService") to the licensee ("Customer") for the programs (the "Software")
and documentation specified in Exhibit A hereto.
1. Definitions.
a. Documentation. "Documentation" shall mean the
documentation that Active provides to its customers for
the Software.
b. Error. "Error" shall mean any verifiable and
reproducible failure of the Software to substantially
conform to the Specifications for such Software.
Notwithstanding the foregoing, "Error" shall not include
any such failure that is caused by: (i) the use or
operation of the Software with any other software or
programming languages or in an environment other than
that intended or recommended by Active, (ii)
modifications to the Software not made by Active, or
(iii) any bug, defect or error in software used with the
Software or any other failure of such software to
conform to its published specifications.
c. "Error Correction(s)" shall mean either a modification
or addition to or deletion from the Software that
substantially conforms such Software to the then-current
Specifications or a procedure or routine that, when
observed in the regular operation of the Software
eliminates any material adverse effect on Customer of
such Error.
d. License Agreement. "License Agreement" shall mean the
license agreement under which the Software was licensed
to Customer.
e. Specifications. "Specifications" shall mean the
published description of the Software, as set forth in
the Documentation for the Software.
f. Update. "Update" means additional or replacement code or
Documentation for the Software that is provided by
Active to remedy an Error.
g. Upgrade. "Upgrade" means any additional or replacement
code or Documentation for the Software provided by
Active Software that adds incremental capabilities or
functionality and that is designated by Active, in its
sole discretion, as a new version of the Software.
h. Major Release. "Major Release" means any additional or
replacement code or Documentation for the Software
provided by Active Software that adds major new
capabilities or functionality and that is designated by
Active, in its sole discretion, as a new Major Release
of the Software. Major Release does not include new
Options that are added to the Software to provide
optional capabilities or functionality.
i. Option. "Option" means any additional or replacement
code that can be added to an existing product to provide
optional capability or functionality to that product.
Optional capabilities are those that some customers may
require and other customers may not.
17
J Authorized Contact. "Authorized Contact" means the
individual designated by Customer to be responsible for
contacting Active's Support organization. Customer may
assign two named Authorized Contacts in Exhibit A per
ActiveService plan. Additional Authorized Contacts may
made available for an additional fee.
2. Maintenance Services.
a. New Software Releases. During the term of this Plan,
Active will provide software updates to the Customer as
they become generally available. An update is a new
release of the licensed software product that is made
available to the general public. This includes both
minor and major release numbers. In general this
software may contain both bug fixes and enhancements to
the product. Maintenance does not cover new products
being added to a product line or new functionally that
is sold as a separate option and price. Active Software
will provide a single copy of media for each update to
the Customer. If additional copies are require they will
be made available for a fee.
b. Current Release. Active's obligations under this Plan
shall apply only to those releases of the applicable
Software that are then currently being shipped by
Active. Active shall have the right, at any time after a
particular release has been superseded by another
release, to terminate support with respect to the
superseded release upon giving not less than ninety (90)
days notice. Notwithstanding the foregoing, Active will
support a superseded release for no less than one year
after a new release is shipped.
c. Error Correction. During the term of this Plan, Active
shall use commercially reasonable efforts to provide
Error Corrections for Errors in the Software reported by
Customer to Active.
d. Limitations. Active shall have no obligation under this
Plan to correct Errors which result from the breach by
Customer of this Plan or the License Agreement, or which
cannot be remedied due to any modifications of the
Software made by Customer or any third party. If Active
agrees to remedy any errors or problems not covered by
the terms of this Plan, Customer shall pay Active for
all such work performed at Active's then-current
standard rates. Customer acknowledges that Active is
under no obligation to perform services with respect to
any hardware or any software which is not Software.
3. Support Services.
a. Telephone Support. During the term of this Plan, Active
will provide telephone consultation and advice to
Authorized Contacts regarding technical support of the
Licensed Software between the hours of 6:00 a.m. and
6:00 p.m., Pacific Time, Monday through Friday,
excluding holidays. Response times are based upon
severity of the problem. Optional 24x7 telephone
consultation and advice for emergency situations of
Severity 1 problems may be purchased for an additional
fee.
b. Email and Fax Support. During the term of this Plan,
Active will respond to email and fax messages sent to
Support by Authorized Contacts between the hours of 6:00
a.m. and 6:00 p.m., Pacific Time, Monday through Friday,
excluding holidays within 6 business hours and whenever
possible within the same business day.
c. Limitations. Customer acknowledges that Active is under
no obligation to perform services with respect to any
hardware or any software which is not Active Software's
Licensed product.
d. Supported Releases. Active Software will provide
technical support for the current shipping release of
software and the one previous release for up to one year
after the release stopped shipping. In order to correct
or trouble shoot certain problems the Customer may be
required to update said software to the then current
release.
18
4. Service Expectations.
a. Problem Classification. The following Problem
Classification Table definitions are used for
classifying customer issues. These classifications
insure consistent treatment of problems handled by
support. Severity 3 (Degraded Operations) is the default
severity level that all cases are initially set to
unless otherwise specified by the customer or the
support engineer. The support engineer handling the case
will work with the customer to establish what severity
should be assigned. The following are the four levels
used by Active Software to prioritize a customer's
problem.
Problem Classification Table
Error Classification Criteria
The problem is affecting time-critical applications with
production work at a standstill. The system is completely
Severity 1 (Critical) unusable and no work around is currently known. The
affected system must be for production purposes.
The system is significantly impaired such that key business
Severity 2 (Serious) processes can not be conducted and no known work around is
currently available.
Severity 3 (Degraded) The system can not function as designed however key business
processes are not interrupted.
Severity 4 (Minimal) Problems are low-impact. Little or no impact to daily
business process.
b. Response Expectations. In the event that an error is
discovered in the Licensed Software which causes the
software not to operate in conformance with the
published specifications or applicable documentation,
Customer shall notify Active Software in writing (email
or fax) of the error (including a reasonable description
and the severity level based on the Problem
Classification Table). Active shall respond to such
notice and will make reasonable efforts to assign
engineers to resolve problems at the level of effort
indicated by the Response Expectation table. If
unspecified most new cases will be set to a severity
level of 3 until a clearer determination can be made.
The following Response Expectation table specifies
the level of response that will be given to a
customer issue at each step of the process based
upon the assigned severity of the problem. The
table specifies the maximum amount of time elapsed
to complete each step.
Step 1 represents the acknowledgment of a
customer's problem and the beginning of
information gathering process.
Step 2 represents the time frame by which the
problem is being actively addressed and a
temporary patch, correction, or workaround
is provided. The goal will be to provide a
fix or a work-around for a problem as soon
as possible. Critical issues will be worked
on continually during the business day until
a satisfactory problem resolution can be
reached. To have work continue on problems
during non-business hours requires the
purchase of a 24x7 coverage plan and the
commitment by the customer to make their
resources available on an after hours basis
as well.
Step 3 represents when a permanent solution will
be available. This may be in the form of a
tested permanent patch or a completely new
release depending upon what the problem
requires and time allows. When possible
permanent fixes will be provided in the next
scheduled release.
19
RESPONSE EXPECTATION TABLE
SEVERITY STEP 1 STEP 2 STEP 3
1 (Critical) 2 business Immediate and Within 60
hours continuing calendar
effort during days.
the business
day.
2 (Serious) 4 business 1 to 5 business Within 90
hours days calendar
days.
3 (Degraded) 8 business Within 10 Next
hours business days scheduled
release of
software.
4 (Minimal) 16 business Worked on a As
hours time available appropriate
basis
c. Escalation Process. All new cases will initially
be taken and handled by the support
representatives on duty at the time of the call.
All problems with a severity level of 1 to 3
will be escalated if a solution or plan of
resolution cannot be achieved within the
designated amount of time as described below. To
ensure that progress can continue, Customers
with Severity 1 (Critical) issues must provide
Active with a highly available contact during
this period who will assist the Support and
Development organizations with data gathering,
testing, and applying all fixes to their
environment. If Active cannot duplicate the
problem in-house, then Support may request
access to the Company's computing environment.
Support management will be made aware of issues
according to the following timeframes. Active
requires that as succeeding levels of Active
management become involved in the resolution
process, the Customer must provide contacts at
similar levels within their organizations, to
ensure that the level of management involvement
matches the decision-making level dictated by
the resolution requirements of the problem.
Elapsed time represents the number of business
hours (not clock hours) that have passed since
the issue was first opened by Active Software
Support.
ESCALATION TABLE
Elapsed Time Severity 1 Severity 2 Severity 3
(Critical) (SERIOUS) (DEGRADED
OPERATIONS)
Immediately Support Group
Leader
2 hours Support Manager
4 hours Support Director Support Group
Leader
8 hours
16 hours VP of Development Support Manager
24 hours Support Group Leader
32 hours Support Director
40 hours CEO Support Manager
80 hours VP of Development Support Director
5 Fees.
a. Plan Fees. No additional Fees are ascribed to service,
Partner will pay Active as set forth in Exhibit D.
6. Term and Termination.
a. Term and Termination. The term of this Service Plan
shall begin on the Effective Date and shall continue
unless earlier terminated pursuant to Section 13 of the
Hosting Agreement.
b. Survival. The following provisions shall survive any
termination, expiration or cancellation of this Plan: 6
and 7.
7. Proprietary Rights.
Any corrections, additions or modifications to the
Software or Documentation effected or delivered under
this Plan and any Updates or Upgrades supplied under
this Plan shall be deemed part of the applicable
Software and subject to all of the provisions of the
License Agreement.
EX-10.3
9
EXHIBIT 10.3
1
Exhibit 10.3
MASTER AGREEMENT
BY AND AMONG
CORIO, INC. AND BROADVISION, INC.
NOVEMBER 8, 1999
This MASTER AGREEMENT (the "Master Agreement") is made by and among
Corio, Inc., a Delaware corporation, with offices at with offices at 700 Bay
Road, Suite 210, Redwood City, California 94063 (hereinafter referred to as
"Corio" or "Reseller"), and BroadVision, Inc., a Delaware corporation, with
offices at 585 Broadway, Redwood City, California (hereinafter referred to as
"BroadVision" or "BV") and is dated as of November 8, 1999.
RECITALS
1. BV is the market leader in the field of Net-based applications solutions
for personalized marketing, selling, and support for customers,
partners, and employees. BV provides a suite of intelligent one-to-one
extended enterprise relationship management ("XRM") products known as
BroadVision One-To-One Enterprise, BroadVision One-To-One Commerce
Retail, and BroadVision One-To-One Commerce Business. In addition,
BroadVision provides certain tools software commonly known as
BroadVision One-To-One Command Center, BroadVision One-To-One Publishing
Center, BroadVision One-To-One Instant Publisher, and BroadVision
One-To-One Design Center (collectively, the "Tools").
2. BV would like to expand its sales opportunities for XRM by expanding the
development activities for current and planned products, by having its
products incorporated into various Corio products and service offerings,
and by leveraging Corio's technical, field consulting, marketing, and
sales resources. Specifically, BV desires to enter the small and medium
business market through its relationship with Corio.
3. Corio is the leading application service provider for high-growth
companies. Corio provides a total solution including application
recommendation, quick implementation, secure hosting and network
infrastructure, 24x7 application support and ongoing application
management. Solutions are targeted for emerging and mid-market companies
needing to implement key applications that support their complex,
dynamic operation requirements.
4. Corio would like to expand its offering by including the Software in its
portfolio of solutions that it offers to the emerging and middle
markets.
5. Corio and BV intend to form a non-exclusive alliance under which Corio
will develop, market, license, install, integrate, host and manage
one-to-one extended enterprise relationship management solutions to ASP
Customers and to End-Users that combine the Software with the services
and technologies of Corio.
6. Corio and BV are executing a Reseller Agreement concurrently with the
execution of this Master Agreement. A copy of the Reseller Agreement is
attached to this Master Agreement
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
-1-
2
and incorporated herein by this reference. All terms not otherwise
defined in this Master Agreement shall have the respective meanings
ascribed to them in the Reseller Agreement.
7. Additional Definitions: The following terminology is defined for use
throughout this Agreement:
"ASP Customer" is an entity which either (a) uses the Software
under a rental or other access only arrangement with Corio and
where Corio is the owner of the Software license or (b) acquires
sublicenses to the Development System Software for one or more
of the Software programs but uses the Deployment System for such
Software programs under a rental or other access only
arrangement with Corio where Corio owns the Deployment System
license. Any rental or other access only arrangement will
provide for payments to Corio by the ASP Customer on a monthly
basis.
"Consolidated Revenue" means the actual revenue recognized by a
Customer on a consolidated basis in accordance with generally
accepted accounting principles for the 12 months prior to the
date of Corio's initial transaction with the Customer for which
a fee will become payable to BroadVision in accordance with
Section 4 below. A Customer's Consolidated Revenue for purposes
of this Agreement shall not change by virtue of the Customer
being acquired by a third party; provided, however, that the
parties will negotiate in good faith the manner in which the
third party acquiring company will be sold Software licenses if
the third party acquiring company's actual revenue recognized by
it on a consolidated basis in accordance with GAAP for the 12
months prior to the acquisition is $750,000,00 or more.
"Customer" means any ASP Customer or End-User.
"Development System" means a Development System license to use
the specified Software product.
"Development Pool" means the SDKs that may be used by Corio in
accordance with the Licensing Practices defined in Section 2
below.
"Deployment System" means a Deployment System license to operate
a production system of the specified Software product.
"Corio Revenue" means the gross revenue payable to Corio by a
Customer for the right to access the Software, for support and
maintenance of the Software and for basic infrastructure support
(e.g., hardware, database software, and operating system
software) related to the Software included in Application minus
sales, use or similar taxes attributable of Customer's use or
access to the Software, freight, insurance, refunds or credits
arising from Customer's termination of its rights with respect
to the Software or other similar charges to the Customer so long
as they are related to the Software. Corio Revenue will not
include any fees charged by Corio for consulting, design,
network and network management or for third party applications
that are managed independently of the Software. Except for the
items specified in the previous sentence, all other fees of
Corio related to operational support of the Software will be
included within Corio
-2-
3
Revenue. It is the intent of Corio that the amount it charges
ASP Customers will reflect a reasonable margin for the Software
and its maintenance. As part of the parties' quarterly Executive
Reviews, the parties may review the level of Revenue Fees paid
under this Agreement.
"SDK" means a software development kit comprised initially of
one copy of each of the products that comprise the Software.
NOW, THEREFORE, the parties agree as follows:
1. SCOPE OF AGREEMENT. Corio will design, develop, market, host and
manage Internet-based solutions incorporating the Software. The Corio hosted
solution is also known as the Application. BroadVision and Corio will work
together to identify leads appropriate for the Application. Notwithstanding the
use of the term "End-User", BroadVision and Corio agree that Corio shall have
the right to use the Software acquired hereunder and under the Reseller
Agreement to provide the Application to ASP Customers.
2. LICENSE PRACTICES. BroadVision's Licensing Terms as described in
Attachment B to the Reseller Agreement will apply to Software license as used by
Corio for its Customers or as sublicensed to Customers with the following
exceptions:
(a) Any Development System that is part of the Development Pool may be
used by multiple individuals provided no more than one individual is using any
Development System License at any given time for any ASP Customer. This
modification also includes the stipulation that at no time may the total number
of current developer individuals assigned to Customers using Development
Licenses exceed the total number of Development System Licenses purchased by
Corio, its Customers, and its professional services partners.
(b) Corio may allow ASP Customers to rent or have other access to the
Deployment System Software for that ASP Customer's use of the Application on a
periodic basis as described in Section 4 below.
If Corio transfers Software licenses to an ASP Customer so the Customer
becomes an End-User, the Licensing Terms as described in Attachment B shall
apply to the licenses being transferred. The parties agree to amend this
Agreement to define the terms under which such an ASP Customer is transitioned
to an End-User, including without limitation fixing at the date of transfer the
number of profiles for Deployment System licenses transferred to the Customer.
3. DEVELOPMENT LICENSES AND FEES.
(a) Initial Development Pool Purchases. Corio agrees to purchase ten
SDKs for a total license fee of [*]. These SDKs will be the initial SDKs in the
Development Pool. The license fee represents a [*] from BroadVision's current
list price for those products. The license fee does not include applicable taxes
or annual maintenance fees. The initial annual maintenance fee for these ten
SDKs will be [*].
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-3-
4
The charges (including the license and maintenance fees) for these ten SDKs is
payable "net thirty days" from time of signing.
(b) Subsequent Purchases of Development System Licenses. During the term
of this Agreement, Corio may purchase additional copies of Development System
licenses whether for use in connection with the Application for an ASP Customer
or for sublicense to an End-User (or to an ASP Customer as contemplated in
Section 4(a)(ii)(B) below). The amount Corio will pay BroadVision for each such
additional license purchased will be a percentage of BroadVision's local list
price for the particular Software product at the time the Software is shipped by
BroadVision. The percentage is determined as follows and depends on the
cumulative license fees that have been paid by Corio to BroadVision at the time
BroadVision ships the additional Software license:
Cumulative Percent
License Fees of List
------------ -------
[*] [*]
provided, that with respect to the sublicense of Development System licenses to
a BroadVision lead pursuant to Section 4(b), the percent of list will be [*].
(c) BroadVision will also provide Corio six additional SDKs at no
additional charge for use by Corio solely for purposes of demonstrating the
Software to prospective Customers. Corio will immediately notify BroadVision if
Corio uses any such SDK for any other purpose and Corio will be deemed to have
purchased such SDK for development purposes and will pay BroadVision the license
and annual maintenance fees determined in accordance with Sections 3(b) and 4 of
this Agreement.
4. DEPLOYMENT LICENSES AND FEES. With respect to transactions between Corio
and Customers, Corio will pay BroadVision fees as follows:
(a) Deployment Licenses (Corio Developed Leads): For leads that Corio
develops resulting in an Application sale to an ASP Customer, Corio will pay
BroadVision fees based on the Consolidated Revenue of the ASP Customer:
(i) ASP Customer with less than $750,000,000 of Consolidated Revenue: If
the ASP Customer has Consolidated Revenue less than US$750,000,000, then Corio
will use any available SDKs from the Development Pool to develop the resultant
Application for that Customer. Corio will pay BroadVision [*] of the Corio
Revenue due from the ASP Customer (the "Revenue Fee"). Fees relating to the use
of Deployment System licenses used in connection with the Application (including
the use of the Tools) to that ASP Customer and for maintenance relating to the
Deployment
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-4-
5
System licenses will be included in the Revenue Fee.
(ii) ASP Customer with $750,000,000 or more of Consolidated Revenue: If
the ASP Customer has Consolidated Revenue of US$750,000,000 or more, then.
(A) ASP Customer for whom Corio Retains Ownership of
Development System License. If the ASP Customer does not
initially wish to purchase a Development System license,
Corio shall purchase at least two additional Development
System licenses from BroadVision for use solely in
developing the Application for that ASP Customer. Corio
will pay BroadVision the Revenue Fee. Fees relating to
the use of Deployment System licenses used in connection
with the Application (including the use of the Tools) to
that ASP Customer and for maintenance relating to the
Deployment System licenses will be included in the
Revenue Fee.
(B) ASP Customer which Sublicenses Development System
License from Corio. If the ASP Customer wishes to
purchase Development System licenses, Corio shall
purchase at least two additional Development System
licenses from BroadVision and sublicense them to the ASP
Customer. Corio will pay BroadVision the Revenue Fee.
Fees relating to the use of Deployment System licenses
used in connection with the Application (including the
use of the Tools) for that ASP Customer and for
maintenance relating to the Deployment System licenses
will be included in the Revenue Fee.
(b) BroadVision Developed Leads: For customer leads that BroadVision
develops, BroadVision, at its sole discretion, may offer that lead to Corio.
BroadVision will provide Corio with a list of the Software licenses proposed to
be sold to the lead and the price at which BroadVision proposed to license the
Software. If BroadVision and Reseller agree to the Software to be licensed
(including the number of Development System licenses to be obtained for the
lead) and any other special provisions applicable to the lead, Reseller will
provide the Software to the lead either as an ASP Customer or as an End-User
pursuant to an agreement to be entered into between the lead and Corio. Corio
will purchase the number of Development System licenses so agreed to for use by
or for the lead at a price equal to [*] of the BroadVision's then current local
list price for the Software being ordered.
(i) In addition, if the Lead becomes an ASP Customer, then Corio
will pay BroadVision the Revenue Fee. Fees relating to the use
of Deployment System licenses used in connection with the
Application (including the use of the Tools) to that ASP
Customer and for maintenance relating to the Deployment System
licenses will be included in the Revenue Fee.
(ii) If the Lead becomes an End-User, the amount to be paid by
Reseller to BroadVision for the sublicense will be determined in
accordance with Section 3(b).
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-5-
6
(c) Sublicenses of Deployment Systems Licenses to other End-Users. If
Corio sublicenses Deployment System licenses to any other End-User, Corio will
pay BroadVision a license fee determined in accordance with Section 3(b) above.
(d) Any exception or waiver to the foregoing will be can be made in any
of the above cases provided it is given in writing and signed by Vice-Presidents
of both Corio and BroadVision.
4A. MAINTENANCE FEES. Maintenance fees for Software licensed and sublicensed
under the Master Agreement will be determined as follows:
(a) Software in the Development Pool: The annual maintenance fee for the
first year for the ten SDK's that comprise the initial Development Pool will be
[*]. After the first year, the annual maintenance fee for any renewal
maintenance period for each Software product in the Development Pool will be an
amount equal to the applicable percentage set forth in Section 3(b) at the time
of such renewal times [*] of BroadVision's then current local list price for
such Software product.
(b) Development System License Purchased by Corio for use for ASP
Customers: Corio will pay BroadVision an annual maintenance fee for each
Development System license that Corio purchases for use for an ASP Customer that
is not part of the Development Pool. The amount of such annual fee will be an
amount equal to the applicable percentage set forth in Section 3(b) at the time
of such renewal times [*] of BroadVision's then current local list price for
such Development System license.
(c) Development System Software Sublicensed. Corio will pay BroadVision
an annual maintenance fee for each Development System license that Corio
sublicenses for use by an ASP Customer or an End-User. The amount of such annual
fee will be an amount equal to [*] of BroadVision's then current local list
price for such Development System license.
(d) Deployment System Licenses used for an ASP Customer. Maintenance
fees for Deployment System licenses used by an ASP Customer will be paid through
the payment of the Revenue Fee.
(e) Additional Deployment System Licenses Purchased by Corio. Corio will
pay BroadVision an annual maintenance fee for each additional Deployment System
license that Corio purchases other than for sublicensing. The amount of such
annual fee will be an amount equal to the applicable percentage set forth in
Section 3(b) at the time of such renewal times [*] of BroadVision's then current
local list price for such Deployment System license.
(f) Deployment System Software Sublicensed. Corio will pay BroadVision
an annual
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-6-
7
maintenance fee for each Deployment System license that Corio sublicenses for
use by an End-User. The amount of such annual fee will be an amount equal to
[*] of BroadVision's then current local list price for such Deployment System
license.
5. APPLICATION FEES. Corio may charge ASP Customers or End-Users any price
for the Application.
6. REPORTING. Corio will submit a report within fifteen (15) days after
each calendar quarter with respect to Corio's Customer-related activities during
that quarter. The report will be in such form as the parties will agree to
promptly after execution of this Agreement. The report will include, without
limitation, a list of all Corio's Customers, the month the Customer signed an
agreement with Corio, the amount of Software each Customer has licensed, the
amount of Corio Revenue charged to the Customer, a status of the implementation
of the Application for the Customer (including the anticipated or actual date on
which the Customer began accessing the Software for production purposes), the
date Corio first charged Customer for Corio Revenue purposes, the inventory and
project assignment of the Development Pool, and the amount due to BroadVision.
Revenue Fees will begin accruing with respect to an ASP Customer when the ASP
Customer begins accessing the Software for production purposes. Within thirty
(30) days after each quarter, Corio will pay any Revenue Fees due for the
calendar quarter being reported. All other amounts will be due and payable, and
will be overdue if not paid within, thirty (30) days after BroadVision issues an
invoice therefor.
7. MARKETING ACTIVITIES. During the term of this Agreement, Corio and
BroadVision will participate in a number of joint marketing activities. These
are expected to include but are not limited to:
* Distributing each other's marketing collateral.
* Joint press release upon signing of this agreement.
* Development of joint data sheet
* Co-branding of BroadVision collateral and listing of Corio in
BroadVision corporate materials.
* Joint participation in selected marketing events such as trade shows,
targeted customer briefings, seminars and annual user group meetings.
* Feature on each other's respective Web sites.
* Leverage existing BroadVision 'partner' field marketing account
managers.
In addition, BroadVision will provide sales and marketing presentations, as well
as demonstration copies that are available. These copies may be tailored to
Corio's use. BroadVision will provide electronic source of marketing materials
directly to Corio.
8. MARKETING DEVELOPMENT FUND. BroadVision will create a Marketing
Development Fund to support the efforts described in Section 8 above. The amount
to be contributed by BroadVision into this Fund will be an amount equal to the
sums spent by Corio in marketing the Application and Software but will not
exceed on a cumulative basis five percent (5%) of the license fees paid by Corio
to BroadVision. Determination of the specific co-marketing fund amounts and
their
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
-7-
8
usage will be determined by the partnership managers of Corio and BroadVision
who will co-manage, budget and report on a quarterly basis.
9. TRAINING. Corio may purchase training from BroadVision's training
catalog at a [*] of the then current local list price. BroadVision Channel Sales
agrees to support Corio with reasonable sales training as needed.
10. EXECUTIVE REVIEWS. Corio and BroadVision agree to hold executive reviews
on a quarterly basis. These quarterly meetings will review overall sales
pipeline and success, the state of the relationship and suggested improvements,
and opportunities to expand into new markets and geographies.
11. RULES OF ENGAGEMENT. Corio and BroadVision agree to assign relationship
owners within each company, and to document rules of engagement for both sales
forces. Initially, the respective relationship owners are Scott Albro for Corio
and Jon Peppler for BroadVision.
12. TERM AND TERMINATION. The initial term of this Agreement and the
Reseller Agreement will be [*] from the date hereof (unless terminated earlier
as provided in the Reseller Agreement).
13. CONFIDENTIAL INFORMATION. During the term of this Agreement, either
party may receive or have access to technical information, as well as
information about product plans and strategies, promotions, customers and
related non-technical business information which the disclosing party considers
to be confidential ("Confidential Information"). In the event such information
is disclosed, the parties shall first agree to disclose and receive such
information in confidence. If then disclosed, the information shall (i) be
marked as confidential at the time of disclosure, or (ii) if disclosed orally
but stated to be confidential, be designated as confidential in a writing by the
disclosing party summarizing the Confidential Information disclosed and sent to
the receiving party within a reasonable period of time after such oral
disclosure.
Nondisclosure. Confidential Information may be used by the receiving party only
with respect to performance of its obligations under this Agreement, and only by
those employees of the receiving party who have a need to know such information
for purposes related to this Agreement. The receiving party shall protect the
Confidential Information of the disclosing party by using the same degree of
care (but no less than a reasonable degree of care) to prevent the unauthorized
use, dissemination or publication of such Confidential Information, as the
receiving party uses to protect its own confidential information of like nature.
The foregoing obligation shall not apply to any information which is: (i)
already known by the receiving party prior to disclosure; (ii) publicly
available through no fault of the receiving party; (iii) rightfully received
from a third party without a duty of confidentiality; (iv) disclosed by the
disclosing party to a third party without a duty of confidentiality on such
third party; (v) independently developed by the receiving party prior to or
independent of the disclosure; (vi) disclosed under operation of law; or (vii)
disclosed by the receiving party with the disclosing party's prior written
approval.
-8-
9
The receiving party's obligation under this Section shall be for a period of
five (5) years from the date this agreement is terminated or expires.
14. COUNTERPARTS; FACSIMILES. This Agreement may be executed in two or more
counterparts, all of which shall constitute one and the same Agreement and
become effective when one or more counterparts have been signed by each party
and delivered to each other party. The execution and delivery of this Agreement
by any party by facsimile shall constitute effective execution thereof.
CONFLICT OF PROVISIONS. This Master Agreement is intended to set forth certain
business terms that are specific to Corio's application service provider
business. In the event of a conflict between the provisions of this Master
Agreement and the Reseller Agreement and the Attachments thereto (other than the
provisions of the Master Preferred Escrow Agreement) with respect to a
particular matter covered by this Master Agreement, the applicable provision of
this Master Agreement will control. This Master Agreement, including the
Reseller Agreement and all Attachments hereto and thereto, constitute a single
agreement and are the complete and exclusive agreement between the parties with
respect to the subject matter hereof and supersedes all proposals, oral or
written, all previous negotiations, and all other communications between the
parties with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused this Master Agreement to be executed
as of the day and date first set forth above.
CORIO, INC. BROADVISION, INC.
/s/ Signature Illegible /s/ Signature Illegible
Signed Signed
------------------------------ ----------------------------
Name: Laurent Pacalin Name: Randall Bolten
Title: VP Business Development Title: Chief Financial Officer
Date: 11/8/99 Date: 11/8/99
-9-
EX-10.4
10
EXHIBIT 10.4
1
Exhibit 10.4
Contract No ____________
RESELLER AGREEMENT
This Reseller Agreement ("Agreement") is made and entered into as of this 8th
day of November 1999, between BroadVision, Inc. ("BroadVision") and
Company Corio, Inc.
("Reseller")
Address 700 Bay Road, Suite 210
Redwood City, CA 94063
This Reseller Agreement is attached to and incorporated by reference into that
certain Master Agreement dated the date hereof between Reseller and BroadVision
(the "Master Agreement"). Terms defined in the Master Agreement and used herein
shall have the respective meanings ascribed to them in the Master Agreement. In
consideration of the mutual covenants and conditions contained in this Agreement
and in the Master Agreement, the parties agree as stated herein. The following
attachments, required when applicable, are also part of this Agreement:
A. Scope of License
B. Current Licensing Practices
C. Required Provisions of Sublicenses
D. Support Escalation Procedure
E. Master Preferred Escrow Agreement
1. LICENSE.
A. DEVELOPER LICENSE. BroadVision hereby grants to Reseller a
nonexclusive and nontransferable license ("Developer License"),
subject to the terms and conditions of this Agreement, to use
the object code for the Software. For the purpose of this
Agreement, "Software" shall mean the software products set forth
in Attachment A, including all versions, including current,
previous, and subsequent versions, of all software products,
together with operating instructions, user manuals, training
material, and other documentation as BroadVision supplies to
Reseller. Reseller's sole permitted uses of a Developer License
shall be to develop and demonstrate the application software
products and/or systems listed in Attachment A ("the
Application") that it intends to license to end-user customers
("End-Users"). Reseller's use of Developer Licenses shall be in
a manner consistent with Attachment B. Developer Licenses may
not be used to operate production versions of the Application,
or any other Reseller or End-User programs on a production
basis.
B. END-USER LICENSE. BroadVision also grants to Reseller a
nonexclusive and nontransferable license to sublicense and
distribute the Software to its End-Users, on a nonexclusive and
nontransferable basis ("End-User License"), on Reseller's
servers in a hosted environment for use solely in conjunction
with the Application, in the geographic areas specified in
Attachment A ("Territory"). Reseller shall require each
End-User, before it may use or install the Application, to
execute a written license agreement containing, at a minimum,
the required provisions specified in Attachment C. Reseller
shall indemnify BroadVision for all damages caused by Reseller's
failure to include required terms in its sublicense agreements
with its End-Users. Reseller may also obtain End-User Licenses
for its own use, in the event that it itself intends to operate
production versions of the Software; such End-User Licenses
shall be governed by the terms and conditions of this Agreement,
as if Reseller had sublicensed to an End-User.
C. PROHIBITED USES. Reseller may not (a) rent, lease, or loan the
Software other than allowed for in this Agreement; (b)
electronically transmit the Software over a network except as
necessary for Reseller's licensed use of the Software; (c) use
run-time versions of third-party products embedded in the
Software, if any, for any use other than the intended use of the
Software, (d) modify, disassemble, decompile, or reverse
engineer the Software; (e) transfer possession of any copy of
the Software to another party, except as expressly permitted
herein; (f) sublicense or permit the Software to be sublicensed
to any governmental entity without BroadVision's prior written
consent; or (g) use the Software in any way not expressly
provided for in this Agreement. There are no implied licenses.
Reseller agrees not to exceed the scope of the licenses granted
herein. Reseller acknowledges and agrees that BroadVision may,
at any time without notice, incorporate license management
software into the Software to prevent Reseller or End Users from
exceeding the scope of their respective licenses.
2. PAYMENT, PRICES. Except as set forth in the Master Agreement:
A. For Developer Licenses, consulting, training, and documentation,
invoices shall be issued upon delivery of the products or
services, unless agreed to the contrary, and shall be due and
payable in United States currency upon receipt by Reseller.
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
Page 1 of 8
2
Payment shall be overdue thirty (30) days after the delivery
date specified on the invoice.
B. Within thirty (30) days of delivery of each copy of the Software
from BroadVision to Reseller or the End-User, or from Reseller
to the End-User if Reseller has reproduction rights as set forth
in Section 2.D below, Reseller shall pay BroadVision the
applicable license or sublicense fee as set forth in the Master
Agreement and as reported in Section 3 herein. Reseller is free
to determine unilaterally its own sublicense fees to its
End-Users. RESELLER'S OBLIGATION TO PAY SUBLICENSE FEES TO
BROADVISION IS NOT CONTINGENT UPON RESELLER'S COLLECTION FROM
ITS END-USERS.
C. Technical support fees are due annually in advance of the
anniversary date of each Developer License and End-User License,
including the first year, since BroadVision's technical support
fees are not bundled together with license fees. The annual
price for technical support for Developer Licenses shall be
BroadVision's then-current price for such services. Reseller
may, at its option, make all technical support fees payable a
common anniversary date, in which case only a prorated portion
of the technical support fee shall be due immediately upon
delivery of the license or sublicense.
D. Software will be shipped FOB BroadVision's facility in Redwood
City, California, U.S.A., by commercial surface transportation.
Transportation charges in excess of such rates will be billed to
Reseller. Except to the extent prohibited by law or contract,
BroadVision will permit Reseller to obtain its initial copy of
the Software by FTP transfer over the Internet in accordance
with instructions provided by BroadVision. Reseller will
download the initial copy of the Software promptly after
execution of this Agreement and will thereafter download any
separately priced version of Software promptly after the
issuance of its purchase order to BroadVision for such version.
Reseller will promptly notify BroadVision if it makes any copies
of the Software as downloaded if such copy would require the
payment of additional fees to BroadVision. Software shall be
deemed accepted upon delivery. Reseller may produce its own
copies of the Software for delivery to End-Users from a master
copy provided by BroadVision so long as it notifies BroadVision
in writing of any copies that it makes for such purpose and pays
any applicable fees.
E. The prices stated in BroadVision quotations are exclusive of any
federal, state, municipal, value-added, foreign withholding or
other governmental taxes, duties, fees, excises, or tariffs now
or hereafter imposed on the production, storage, licensing,
sale, transportation, import, export, or use of the Software or
any improvements, alterations, or amendments to the Software.
Reseller shall be responsible for, and if necessary reimburse,
BroadVision for all such taxes, duties, fees, excises, or
tariffs, except for governmental or local taxes imposed on
BroadVision's corporate net income. Overdue payments shall be
subject to a finance charge of one and one-half percent (1 1/2%)
for each month or fraction thereof that the invoice is overdue,
or the highest interest rate permitted by applicable law,
whichever is lower. BroadVision shall also be reimbursed for its
collection costs in the event of late payments, including
reasonable attorney's fees.
3. REPORTING.
Except as set forth in the Master Agreement, each month Reseller, within
fifteen (15) days following the end of such month, shall provide
BroadVision a report including the following:
i. a list of each End-User License delivered and each
End-User agreement executed, specifying the name and
location of the sublicensee;
ii. a detailed account of all fees due to BroadVision under
this Agreement.
4. SOFTWARE MAINTENANCE.
A. BroadVision agrees to provide Reseller with software maintenance
subject to the provisions and conditions listed below. Reseller
shall be solely responsible for installing and supporting its
Customers; BroadVision will refer back to Reseller any questions
BroadVision receives from Customers.
i. Software maintenance shall include (i) telephone and
electronic mail support provided during BroadVision's
normal working hours, and (ii) standard releases
containing improvements or modifications to the Software
that BroadVision provides to its maintenance customers
generally where such improvements or modifications are
not priced as separate new products or options
("Standard Release"). A copy of BroadVision's support
escalation
Page 2 of 8
3
procedure, including targeted response times, is set
forth in Attachment D hereto.
ii. BroadVision shall provide software maintenance for any
Standard Release only until one year after shipment of
the subsequent Standard Release.
iii. Reseller shall designate one Support Contact Person for
each Customer, who shall be responsible for
communicating support issues to BroadVision; provided,
that in no event may the total number of such Support
Contact Persons exceed eight (8) unless otherwise agreed
by BroadVision. Reseller agrees to provide BroadVision
with timely written notification containing all details
of software problems necessary for BroadVision to
diagnose such problems. Reseller agrees to cooperate
fully in providing BroadVision with Reseller's source
code, in machine-readable form, and other materials
necessary to reproduce a reported software problem.
Subject to Reseller's security requirements, Reseller
agrees to provide BroadVision reasonable direct or
remote access and test time on Reseller's BroadVision
system, for the purpose of diagnosing reported software
problems. If BroadVision provides on-site services at
Reseller's request in connection with software
maintenance, Reseller shall reimburse BroadVision for
all travel and other reasonable out-of-pocket expenses
incurred with respect to such services.
iv. Software maintenance will also include any patch
releases ("Patch Releases") that BroadVision makes
available to its maintenance customers generally. Patch
Releases are intended to address material deviations
between the Software and its published specifications
until a Standard Release can be made available. Reseller
may install Patch Releases at its option.
v. BroadVision shall not be responsible for maintaining
Software that fails to comply with its published
specifications if such non-compliance is the result of
modification of the Software by Reseller or third
parties. If BroadVision expends its time on a
noncompliance found to be the result of any of the
preceding or due to the operation of the Application,
Reseller shall pay BroadVision for such time at
BroadVision's then-current hourly consulting rate.
B. BroadVision will give Reseller at least sixty days advance
notice of the expiration of the applicable annual maintenance
period and the annual maintenance fees for the ensuing annual
maintenance period. Such prices will be determined in accordance
with the Master Agreement and this Agreement. Reseller may renew
maintenance for all (but not less than all) copies of the
Software licensed to it by giving BroadVision written notice of
such renewal on or before the beginning of the applicable
maintenance renewal period. In the event of termination for
Reseller's breach or Reseller's convenience, all maintenance
fees shall be immediately due and payable without notice; in the
event of termination for any other reason, Reseller shall be
entitled to a refund of maintenance fees already paid, prorated
for the unused portion of such fees. If BroadVision determines
that it is in its best interests to cease providing its
customers generally with maintenance for any or all of the
Software, BroadVision may discontinue its maintenance
obligations to Reseller (and to Reseller's Customers if
BroadVision exercises its rights under Section 12 hereof) with
respect to such Software by giving Reseller at least one year's
prior written notice of such discontinuance.
C. Annual software maintenance fees are due and payable in advance;
in all other respects payments are subject to the terms and
conditions of the Agreement.
D. If Reseller initially declines software maintenance and then
subsequently elects to commence maintenance, or if maintenance
for an item of Software is discontinued at Reseller's request
and then subsequently renewed, Reseller shall pay the
maintenance fees that would have been due for the period during
which maintenance was not provided.
5. CONDUCT.
A. Reseller shall employee the highest reasonable professional
standards in selling and supporting the Application, and shall
avoid deceptive, misleading, or unethical practices that may be
detrimental to BroadVision or to the Software. Reseller
personnel shall obtain training from BroadVision, at
BroadVision's then-current standard rates, in the proper use of
the Software, and shall provide, or arrange for BroadVision to
provide, such training to Customers where appropriate. Reseller
and BroadVision shall
Page 3 of 8
4
comply with all laws applicable to the subject matter of this
Agreement. Failure to honor the terms of this section shall
constitute a material breach of this Agreement; provided,
however, that prior to BroadVision terminating this Agreement
for any such failure, BroadVision and Reseller will promptly
attempt to resolve any disagreement over such failure in good
faith.
B. Subject to the terms and conditions of this Agreement,
BroadVision hereby grants to Reseller a non-exclusive,
non-transferable, non-sublicenseable license to use the
BroadVision trademarks, trade names, and logos (the "Marks") to
advertise the Software in the Territory. Reseller acknowledges
BroadVision's ownership and exclusive rights in the Marks.
Reseller's use of the Marks shall inure to the benefit of
BroadVision. Reseller shall not attempt to register the Marks or
adopt, use or attempt to register any confusingly similar marks.
BroadVision may immediately terminate this trademark license if
Reseller's use of the Marks does not conform to BroadVision's
then-current standards and usage policy. Reseller shall state at
the first instance of each use of a Mark that the Mark is
BroadVision's trademark and include the symbols TM or (R) as
appropriate. Reseller shall not use any trademark, word, symbol,
letter or design in combination with the Marks in any manner
which would create a combination mark.
C. Unless otherwise requested by BroadVision, Reseller shall ensure
that the phrase "Personalized by BroadVision One-To-One" shall
appear on the logon screen, splash screen, or other first view
of the Application seen by consumers or other end-users when
they enter the Application and will use all commercially
reasonable efforts to obtain the consent of Customers to the
foregoing in connection with their respective uses of the
Application. The above phrase shall be a hypertext link to a URL
specified by BroadVision. Reseller's use of the phrase shall be
in accordance with BroadVision's guidelines for use of the mark.
6. TITLE TO SOFTWARE.
Reseller shall include BroadVision's copyright or proprietary rights
notice on any copies of the Software or associated documentation,
including copyright or proprietary rights notices of third parties that
are included on media or in documentation provided by BroadVision.
Reseller acknowledges that the Software is the property of BroadVision
or its licensors.
Subject to BroadVision's ownership of any materials or technology
provided to Reseller, including without limitation the Software, the
results of all development efforts made solely by Reseller, including
all intellectual property rights in any software interface coding or
programs created solely by Reseller during the term of this Agreement to
enable the Software to operate within Reseller's hosted environment
("Developments"), shall be owned by Reseller, unless otherwise agreed or
unless such Developments are supported on an ongoing basis by
BroadVision, in which case BroadVision will have or retain all ownership
rights, including intellectual property rights in the Developments. To
the extent that BroadVision would otherwise have a claim of ownership in
Developments, BroadVision hereby assigns all rights in and to such
Developments to Reseller.
7. WARRANTY.
BroadVision warrants that the Software will conform in all material
respects to its written specifications when installed and for 90 days
thereafter. For purposes of this Agreement, the sole source of such
specifications shall be BroadVision's written user documentation as
provided to Reseller concurrently with the delivery of the Software.
BroadVision further warrants that the Software is and shall be "Year
2000 Compliant". For purposes of this Section 7, the term "Year 2000
Compliant" means that, through January 31, 2001 (a) no value for a
current date will cause any interruption in operation; (b) date-based
functionality will behave consistently for dates prior to, during, and
after year 2000; (c) in all interfaces and data storage, the century in
any date must be specified either explicitly or by unambiguous
algorithms or inferencing rules; and (d) year 2000 must be recognized as
a leap year. BroadVision further warrants, so long as Reseller is
purchasing maintenance services pursuant to Section 4 hereof, that its
maintenance services will be performed in a professional and workmanlike
manner. Reseller will notify BroadVision during or within thirty (30)
days after the expiration of the applicable warranty period set forth
above of any nonconformity. Where a material nonconformity exists within
the warranty period, and proper notice has been given to BroadVision,
BroadVision will use due diligence to correct the nonconformity and
provide Reseller with one copy of any such corrected version of the
Software, or, if BroadVision is unable to correct such nonconformance
within a reasonable period of time, refund all license fees paid to it
for the Software, or the most recent software maintenance fee paid for
the Software, if the nonconformity relates to a Standard
Page 4 of 8
5
Release or maintenance services delivered pursuant to Section 4 herein.
THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESSED OR IMPLIED, AND BROADVISION EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
OR NONINFRINGEMENT.
8. LIMITATION OF LIABILITY.
Except for a party's liability under Section 9 hereof and for breaches
of Section 13 of the Master Agreement and Section 10 hereof, each
party's liability to the other under this Agreement or for any other
reason relating to the products and services provided under this
Agreement, including claims for contribution or indemnity, shall be
limited to the amount paid to BroadVision under this Agreement.
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY UNDER
THIS AGREEMENT, EACH PARTY AGREES THAT IN NO EVENT SHALL THE OTHER PARTY
BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING
LOST PROFITS OR LOSS OF USE, HOWEVER ARISING INCLUDING NEGLIGENCE;
PROVIDED, HOWEVER, THAT LOST REVENUE OR LOST PROFITS ARISING FROM A
PARTY'S UNAUTHORIZED USE, DISCLOSURE OR DISTRIBUTION OF THE OTHER
PARTY'S CONFIDENTIAL INFORMATION (INCLUDING WITHOUT LIMITATION THE
SOFTWARE) SHALL BE DEEMED A DIRECT DAMAGE.
9. INTELLECTUAL PROPERTY RIGHTS INDEMNITY.
A. BroadVision will defend any action against Reseller claiming
that the Software constitutes infringement or misappropriation
of any patent, copyright, trademark, trade secret or
intellectual property right. BroadVision shall indemnify
Reseller for any reasonable expense incurred by Reseller in
connection with the foregoing. BroadVision's obligations under
this section are conditioned upon BroadVision having sole
control of any such action, and upon Reseller notifying
BroadVision immediately in writing of the claim and giving
authority, information, and assistance necessary to settle or
defend such claim. If the use of the Software infringes or is
enjoined, or BroadVision believes it is likely to infringe or be
enjoined, BroadVision may, at its sole option, (i) procure for
Reseller the right to continue use of the licensed Software as
furnished; (ii) replace the licensed Software; (iii) modify the
licensed Software to make it non-infringing, provided that the
Software still substantially conforms to the applicable
specifications; or (iv) if BroadVision, after using all
commercially reasonable efforts, is unable to accomplish the
foregoing remedies, terminate the license and refund the license
fee for the Software, less a proportional adjustment for the
time the Software was used by Reseller, equal to the ratio of
the time elapsed since the delivery date to five (5) years. The
indemnity provided herein shall not apply if the alleged
infringement arises from: (a) the use of other than a currently
supported, unaltered release of the licensed Software; (b) the
use of Software that has been modified or merged with other
programs by Reseller; or (c) the use of the licensed Software in
combination with software or hardware not provided under this
Agreement or with the Application. The foregoing states
BroadVision's sole and exclusive liability for patent,
copyright, or other proprietary rights infringement or for
breach of any express or implied warranty of title, ownership or
non-infringement.
B. Reseller will defend any action against BroadVision (a) claiming
that any software provided by Reseller to Customers (other than
the Software) infringes or misappropriates any patent,
copyright, trademark, trade secret or intellectual property
right; or (b) resulting from Reseller's acts, omissions, or
misrepresentations. Reseller shall indemnify BroadVision for any
reasonable expense incurred by BroadVision in connection with
the foregoing. Reseller's obligations under this section are
conditioned upon Reseller having sole control of any such
action, and upon BroadVision notifying Reseller immediately in
writing of the claim and giving authority, information, and
assistance necessary to settle or defend such claim.
10. CONFIDENTIALITY OF SOFTWARE AND DOCUMENTS.
A. Except to the extent permitted in the Master Agreement, Reseller
shall not reproduce, duplicate, copy, sell, or otherwise
disseminate the Software, including operating instructions, user
manuals, and training materials, in any medium except as
authorized herein.
B. Reseller acknowledges that the Software is BroadVision's
extremely valuable trade secret. With respect to any copies of
the Software retained by Reseller for its internal use, Reseller
shall not disclose the Software to any third parties
Page 5 of 8
6
(other than onsite contractors who are subject to confidentiality
and use restrictions similar to those contained in this
Agreement) nor use the Software for any purpose other than as
expressly stated in this Agreement. With respect to copies of the
Software that Reseller procures or makes for redistribution, such
copies may only be redistributed so long as the recipient
satisfies the requirements of this Agreement and, without
limiting the foregoing, is subject to the use and disclosure
restrictions of Attachment C.
C. Reseller shall not release the results of any benchmark of the
Software, or of any third party products embedded in the
Software, without BroadVision's prior written approval.
11. AUDIT RIGHTS.
No more than once annually, BroadVision may audit Reseller's records to
ensure that license and other fees have been properly paid in compliance
with this Agreement. Any such audit will be conducted during regular
business hours at Reseller's offices and shall not interfere
unreasonably with Reseller's business activities. If an audit reveals
that Reseller has underpaid its total fees by more than five percent
(5%), then Reseller shall pay BroadVision's reasonable costs of
conducting the audit, in addition to the underpaid amount.
12. TERM/TERMINATION.
A. This Agreement shall be for an initial term of [*] unless the
Agreement is terminated previously as provided herein.
B. BroadVision may terminate this Agreement upon 30 days prior
written notice and an opportunity for Reseller to cure within
such 30 days: (a) any material breach of this Agreement by
Reseller; or (b) failure by Reseller to pay license fees for
Software under the payment terms specified in this Agreement or
as stated on BroadVision's invoice for such Software. Reseller
may terminate this Agreement upon 30 days written notice and an
opportunity for BroadVision to cure any material breach of this
Agreement by BroadVision with such 30 days.
C. Upon termination of this Agreement for any reason, the following
shall occur:
i. Reseller's rights under this Agreement shall
automatically cease, provided that all sublicenses shall
continue according to their terms. Reseller may continue
using the release of the Software then in its possession
solely for the purpose of continuing technical support
for sublicenses granted prior to termination.
ii. Reseller shall return to BroadVision or destroy the
Software and other marketing materials, software, and
data, except as required for the operation of Section
12.C.i above.
iii. BroadVision shall, within sixty (60) days after the
effective date of termination of this Agreement have the
option to assume the responsibility of providing
maintenance and support for the Software to any or all
of Reseller's customers pursuant to BroadVision's
standard terms and conditions for the performance of
such services, provided such customer requests such
assumption and BroadVision consents. Reseller shall
provide BroadVision with copies of all maintenance
agreements in force with End-Users. Reseller shall pay
to BroadVision a prorated portion of the maintenance
fees paid by such customers and retained by Reseller for
the remaining terms of such agreements. Notwithstanding
the foregoing, so long as Reseller is paying BroadVision
Revenue Fees and annual maintenance fees for other
copies of Software licensed to Reseller (including
Software subsequently sublicensed to Customers),
BroadVision will continue to provide maintenance
services to Reseller pursuant to Section 4 hereof
following termination or expiration of this Agreement
unless BroadVision terminates this Agreement (a) because
Reseller has not made payments under the Master
Agreement or this Agreement when due, or (b) for
Reseller's use, reproduction, disclosure or distribution
of any of the Software in a manner not authorized by
this Agreement or the Master Agreement.
iv. Reseller's obligations under Sections 2 (to the extent
that any amounts are owed to BroadVision as of the
termination date), and Sections 4, 6, 7, 8, 9, 10, 12,
and 13 will survive the termination of this Agreement.
All other rights and obligations of the parties will
cease upon termination of this Agreement.
13. GENERAL.
A. WAIVER/AMENDMENT. No waiver, amendment, or modification of any
provision of this Agreement shall be effective unless in writing
and signed by the party against whom such waiver, amendment, or
modification is sought to be enforced. No failure or delay by
either party in exercising any
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Page 6 of 8
7
right, power or remedy under this Agreement, except as
specifically provided herein, shall be deemed as a waiver of any
such right, power, or remedy.
B. ASSIGNMENT. Either party may assign this Agreement to an entity
acquiring substantially all of its assets or merging with it,
provided that such assignee agree in writing to assume all
obligations under this Agreement. Except as set forth above,
neither party may assign any of its rights or delegate any of
its obligations under this Agreement to any third party without
the express written consent of the other. Any attempted
assignment in violation of the foregoing shall be void and of no
effect. Subject to the above, this Agreement shall be binding
upon and inure to the benefit of the successors and assigns of
the parties hereto.
C. DISPUTES. The rights of the parties hereunder shall be governed
by the laws of the State of California without giving effect to
principles of conflicts of laws. Any suits brought hereunder may
be brought in the federal or state courts in Santa Clara County,
California, and Reseller submits to the jurisdiction thereof.
The parties expressly exclude the application of the 1980 United
Nations Convention on Contracts for the International Sale of
Goods, if applicable.
Reseller acknowledges that the Software contains trade secrets,
the disclosure of which would cause substantial harm to
BroadVision that could not be remedied by the payment of damages
alone. Accordingly, BroadVision will be entitled to seek
preliminary and permanent injunctive relief and other equitable
relief for any breach of BroadVision's intellectual property
rights in the Software.
D. SEVERABILITY. If any provision of this Agreement shall be held
by a court of competent jurisdiction to be contrary to law, the
remaining provisions of this Agreement shall remain in full
force and effect.
E. EXPORT. Reseller acknowledges that the laws and regulations of
the United States restrict the export of the Software. Reseller
agrees that it will not export or re-export the Software in any
form without first obtaining the appropriate United States and
foreign government approvals.
F. NOTICE. Any notice, consent, or other communication hereunder
shall be in writing, and shall be given personally, by confirmed
fax or express delivery to either party at their respective
addresses:
(i) to BroadVision at:
BroadVision, Inc.
585 Broadway
Redwood City, CA 94063, USA
Attn: Chief Financial Officer
(ii) to Reseller at:
Corio, Inc.
700 Bay Road, Suite 210
Redwood City, CA 94063
Attn: Roger Lee
or such other address as may be designated by written notice of
either party. Notices shall be deemed given when delivered or
transmitted, or seven days after deposit in the mail.
G. INDEPENDENT CONTRACTORS. The parties' relationship shall be
solely that of independent contractor and nothing contained in
this Agreement shall be construed to make either party an agent,
partner, joint venturer, or representative of the other for any
purpose.
H. FORCE MAJEURE. If the performance of this Agreement, or any
obligation hereunder, except the making of payments, is
prevented, restricted, or interfered with by reason of any act
or condition beyond the reasonable control of the affected
party, the party so affected will be excused from performance to
the extent of such prevention, restriction, or interference.
I. ENTIRE AGREEMENT. All products and services delivered by
BroadVision to Reseller are subject to the terms of this
Agreement, unless specifically addressed in a separate
agreement.
14. ESCROW. If Reseller so elects within ninety (90) days after the
execution of this Agreement, Reseller may become a party to the
agreement pursuant to which BroadVision has deposited the source code to
the Software. Such escrow agreement is attached hereto as Attachment E.
Reseller shall bear the costs of opening and maintaining such escrow
account.
Page 7 of 8
8
AGREED TO BY: BROADVISION, INC.
/s/ Signature Illegible
Signature
Randall Bolten
--------------
Printed Name
CFO
---
Title
RESELLER: CORIO, INC.
/s/ Signature Illegible
Signature
Laurent Pacalin
---------------
Printed Name
VP Business Development 11/8/99
-------------------------------
Title
Page 8 of 8
9
Contract No. _____________________
ATTACHMENT A TO
RESELLER AGREEMENT
SCOPE OF LICENSE
The following BroadVision products may be licensed to and sublicensed by
Reseller under the terms and conditions of the Agreement, and are collectively
referred to as the "Software" in the Agreement:
BroadVision One-To-One Development System (aka BroadVision
One-To-One Enterprise)
BroadVision One-To-One Commerce Retail
BroadVision One-To-One Commerce Business
BroadVision One-To-One Deployment System
BroadVision One-To-One Command Center
BroadVision One-To-One Publishing Center
BroadVision One-To-One Instant Publisher
BroadVision One-To-One Design Center
Reseller may use the Software to develop the following programs, collectively
referred to as the "Application" in the Agreement, intended to be licensed to,
or operated on behalf of, End-Users:
Application is an eCommerce solution offering hosted and managed by
Reseller on behalf of its customers. The Reseller's eCommerce solution
is the Software integrated with the hardware, software, and services
that Reseller provides to its Customers on a hosted basis. Application
includes functionality related to multiple eCommerce businesses, malls,
and business to business applications. Reseller may use third parties in
development of the Application, provided they abide with this Agreement.
Reseller may sublicense the Software in the following geographic areas,
collectively referred to as the "Territory" in the Agreement:
[*]
Any request by Reseller to expand the Territory is subject to BroadVision's
agreement, which agreement will not be unreasonably withheld. BroadVision will
not condition such expansion on the payment of any expansion fee or to a change
in the Revenue Fee methodology described in the Master Agreement. If BroadVision
consents to any such expansion of the Territory and BroadVision offers a
localized version of all or part of the Software on its local price list,
Reseller will have the right to acquire licenses for such localized versions on
the terms set forth in the price list, subject to the discount structure set
forth in the Master Agreement.
Notwithstanding anything to the contrary herein, Reseller may not sublicense
Software or permit Software to be sublicensed to the following countries,
corporations and their affiliates:
(a) in the countries of [*] prior to December 1, 1999;
(b) to the following financial services End-Users, prior to July 1, 2000,
for applications relating to consumer or corporate financial services:
[*]
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Page 1 of 2
10
[*]
(c) [*]
Initialed by: BroadVision
Reseller
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Page 2
11
Contract No. _____________
ATTACHMENT B TO
RESELLER AGREEMENT
BROADVISION LICENSING PRACTICES
BroadVision's current standard licensing practices are as follows for the
products listed below. These practices are in effect as of June 15, 1999.
* ONE-TO-ONE DEVELOPMENT SYSTEM -- licensed on a per-user basis.
In other words, each individual who will use the One-To-One
Development System to develop BroadVision One-To-One
applications must be separately licensed. Customer may reassign
One-To-One Development System licenses within reason, for
example as employees terminate employment or transfer to other
departments. One-To-One Development System products include:
* ENTERPRISE DEVELOPMENT SYSTEM -- the basic BroadVision
development system
* APPLICATION DEVELOPMENT SYSTEM -- includes the
Enterprise Development System and the objects and other
products necessary to develop ONE of the BroadVision
Applications (Retail Commerce, Financial, or Knowledge)
* TWO APPLICATION DEVELOPMENT SYSTEM -- same as the
Application Development System, but for TWO of the
BroadVision Applications
(NOTE: Business Commerce by itself is counted as a Two
Application Development System)
THREE APPLICATION DEVELOPMENT SYSTEM -- same as the
Application Development System, but for THREE of the
BroadVision Applications
* ONE-TO-ONE DEPLOYMENT SYSTEM -- licensing is based on the
maximum number of Profiled Users permitted to be tracked by
BroadVision One-To-One applications. A Profiled User corresponds
to a record in the BroadVision user profile database. The record
maintains information about the user's profile and may refer to
external sources for additional profile information. The number
of Profiled Users represents the number of one-to-one
relationships that Customer wants to maintain with its users. By
licensing a number of profiled users the customer is paying for
the right to keep that many records in the BroadVision user
profile database at any point in time. Examples of Profiled
Users include, but are not limited to customers, partners and
employees.
* ONE-TO-ONE TOOLS -- licensed on a per-user basis, similar to the
One-To-One Development System products. One-To-One Tools
include:
* ONE-TO-ONE COMMAND CENTER, formerly known as the
Dynamic Command Center, or DCC
* ONE-TO-ONE PUBLISHING CENTER, formerly known as
the Content Management Center, or CMC
* ONE-TO-ONE INSTANT PUBLISHER
* ONE-TO-ONE DESIGN CENTER, formerly known as the
Visual Design Center, or VDC
[NOTE: The One-To-One Command Center, the One-To-One Publishing Center,
and the One-To-One Instant Publisher may be sublicensed to third parties
using Customer's application software in accordance with the terms of
this Agreement.]
Page 1 of 1
12
Contract No ________________________
ATTACHMENT C TO
RESELLER AGREEMENT
REQUIRED PROVISIONS OF SUBLICENSE AGREEMENTS
This Attachment C is incorporated into the Reseller Agreement (the "Agreement")
dated the 8th day of November, 1999 between BroadVision, Inc. ("BroadVision")
and Corio, Inc. ("Reseller"). The terms and conditions contained herein are
subject in all respects to the terms and conditions of that Agreement, except
that in the event of a conflict between the terms of this Attachment C and the
Agreement, the terms of this Attachment C shall govern.
Each agreement sublicensing the Software entered into between Reseller and its
End-Users shall contain provisions that are at least as protective of
BroadVision's interests as the following:
1. End-Users shall be licensed to use the object code of the Software only
in accordance with BroadVision's licensing practices. Unless stated
otherwise in the licensing practices, End-Users shall have the right to
duplicate the Software only for backup or archival purposes and as
necessary to transfer the Software to a backup computer in the event of
computer malfunction.
2. End-Users shall not (i) rent, lease, or loan the Software; (ii)
electronically transmit the Software over a network except as necessary
for End-User's licensed use of the Software; (iii) use run-time versions
of third-party products embedded in the Software, if any, for any use
other than the intended use of the Software, (iv) modify, disassemble,
decompile, or reverse engineer the Software; (v) sublicense or transfer
possession of any copy of the Software to another party, except as
expressly permitted by BroadVision; or (vi) use the Software in any way
not expressly provided for.
3. Title to the Software shall not pass to the End-User. End-User shall
include BroadVision's copyright or proprietary rights notice on any
copies of the Software or associated documentation, including copyright
or proprietary rights notices of third parties that are included on
media or in documentation provided by BroadVision. End-User shall
acknowledge that the Software is the property of BroadVision or its
licensors.
4. End-User may be permitted to grant nontransferable sublicenses to
portions of the Software, where such grants are explicitly permitted by
BroadVision's licensing practices. End-User shall require each such
sublicensee, before it may use or install the sublicensed Software, to
execute a written license agreement containing, at a minimum, the
required provisions specified in this Attachment. End-User shall
indemnify BroadVision for all losses, costs, damages, expenses, and
liabilities caused by a sublicensee's failure to honor the terms of such
sublicense, or by End-User's failure to include required terms in its
sublicense agreements with its sublicensees.
5. Unless otherwise requested by BroadVision, End-User shall ensure that
the phrase "Personalized by BroadVision One-To-One" shall appear
prominently on the logon screen, splash screen, or other first view of
the End-User's application seen by consumers or other end-users when
they enter such application. The above phrase shall be a hypertext link
to a URL specified by BroadVision. End-User's use of the phrase shall be
in accordance with BroadVision's guidelines for use of the mark.
6. BroadVision disclaims all warranties, express or implied, to End-Users.
7. BroadVision shall not be liable for any damages, whether direct,
indirect, incidental, or consequential, arising from the use of the
Software.
8. End-User shall not reproduce, duplicate, copy, sell, or otherwise
disclose, or disseminate the Software, including operating instructions,
user manuals, and training materials, in any medium except as expressly
permitted pursuant to BroadVision's licensing practices or this
Attachment. End-User expressly undertakes, using reasonable efforts not
less than it exercises for its own confidential materials, to retain in
confidence, and to require its employees or consultants to retain the
Software in confidence, and will make no use of such information, except
under the terms and during the existence of its Agreement with Reseller,
and only to the extent that such use is necessary to End-User's
employees or consultants in the course of their employment.
9. At the termination of the End-User License, the End-User shall
discontinue use and shall destroy or return
Page 1 of 2
13
the Software to BroadVision, including all archival or other copies.
10. BroadVision is a third-party beneficiary of the End-User License
agreement with Reseller.
11. The End-User shall not publish any result of benchmark tests run on the
Software.
12. End-User may assign its license to the Software only to an entity
acquiring substantially all of its assets or merging with it, provided
that such assignee agree in writing to assume all associated
obligations. Otherwise, End-User may not assign its rights in the
Software to any third party, and any attempted assignment in violation
of the foregoing shall be void and of no effect.
13. The End-User shall comply fully with all relevant regulations of the
United States Department of Commerce and with the U.S. Export
Administration to assure that the Software is not exported in violation
of the code and regulations.
Page 2 of 2
14
Attachment D
To Software License and Services Agreement
BROADVISION SUPPORT POLICY
Case tracking is the procedure of tracking customer-reported problems.
BroadVision support engineers open cases in the order in which they are
received. Cases have different priorities and will be treated accordingly.
Standard support is provided from 9am to 6pm PT in America, and 9am to 6pm GMT
in Europe. (For enhanced support coverage see the section below concerning
After-hours support.) If a case hasn't been opened after 1 day the Support
manager will be notified. After 2 days the Support Director will be notified.
CASE ESCALATION AND 'HOT SITE' STATUS
The support engineer opening a case will set case priority. A customer may
request that a case be escalated at any time by contacting the Support engineer
or the Support Manager.
Unusually important site problems will be considered 'hot sites'. This includes
such issues as serious reliability problems or significant performance problems
on production systems. To escalate a case, the customer may notify their Support
engineer or the Support Manager. A 'hot site' will gain Executive level
attention and all necessary resources to resolve the issue as quickly as
possible.
A hot site will have a dedicated Support engineer until it is resolved. The
customer is expected to provide technical resources, remote access and
reproducible cases as necessary. BroadVision will manage a list of issues to be
resolved in the escalation to be communicated daily by the assigned Support
engineer. Once all the issues are resolved, the escalation to 'hot site' will be
closed.
The response and turnaround times indicated below are BroadVision's most
reasonable estimates of such times. Such times may be impacted by a number of
factors beyond BroadVision's reasonable control, including without limitation
the fact that the source of the problem may exist with a component not provided
by BroadVision. BroadVision will not be deemed to be in breach of its
maintenance obligations to Reseller if it fails to meet such response or
turnaround times due to factors beyond BroadVision's reasonable control.
PRIORITY 1
The highest level is reserved for site-down type failures. Once BroadVision
support is notified that a site is down they will start work to restore the site
as soon as possible. If a site is not restored after 4 hrs of work the Support
engineer will move the site to 'hot site' status. The WPSO engineer who worked
on the site will be contacted and Support Director notified of escalation. After
1 day of escalation VP WPSO and VP Engineering will be notified. The VPs will
identify additional resources to work on the problem. After 2 days of escalation
the CEO will be notified.
PRIORITY 2
Level 2 is for serious problems on a site not causing total failure. BroadVision
Support will start work on the site as soon as they are aware of the problem. If
a workaround has not been developed after 1 day of work by Support then the
Support Director will be notified. After 3 days of work VP WPSO and VP
Engineering will be notified.
PRIORITY 3
The third level is for general issues on a site not causing serious problems. If
a case isn't resolved after 2 days the Support Manager will be notified. After 3
days the Support Director will be notified.
15
PRIORITY 4
The lowest level is for questions or issues on a site not requiring immediate
action. If a case isn't resolved after 3 days the Support Manager will be
notified. After 5 days the Support Director will be notified.
AFTER-HOURS SUPPORT
An optional support package is available to provide support 7 days a week, 24
hrs a day for assistance with serious problems on live-sites. It will not
support development questions/issues. Customers with this support will be
provided with a single pager number to contact the on-call Support person in the
case of a priority 1 support call. It is preferred that the customer must
provide BroadVision dialup access to the site in order to for support to able to
provide assistance in the recovery process. The Support engineer on call will
have a laptop so that he/she can then dial into the website and help effect
system recovery.
DOCUMENTING KNOWN PROBLEMS
This note is to announce BroadVision's policy of sharing bug lists with
customers. Several customers and the field have requested that we share an
edited version of the bug list with our customers. The intent is to pro-actively
let the customers know about known problems and document workarounds. Support,
engineering and product management will decide which problems to report.
Today we publish some of this information in the Known Problems section of the
Release Notes. The following is our policy of enhancing this information as well
as updating the known bugs every month and making it available through the
support section of the BroadVision web site.
1. Currently we provide the following information in the Known Problems
section of the Release Notes. The Release Notes will be updated upon
every release.
Bug Information: problem ID, brief description, any known workaround
2. Starting with version 4.1 Technical Support will update the Known Bugs
section to include known bugs reported since the last release. This will
be updated once a month. Since the updates will be written by Technical
Support, it will be directed to an engineering audience. At product
release time, Tech Pubs will roll them into the formal Release Notes.
3. We will also make the following patch information available on our Tech
support site:
Patch Number:
Date released:
Required previous patches:
Resolved problems:
PRODUCT ENHANCEMENT REQUEST PROCEDURE
TO SUBMIT AN ENHANCEMENT REQUEST
Log in to Broadvision.com\login.html. Select Support, and then click "Submit a
new ticket". Include the text "Enhancement" in the description before submitting
the request, and the product you wish to submit an enhancement request for.
PM will review enhancements on a weekly basis and respond to you, the submitter,
with the status
16
GETTING ENHANCEMENTS INTO AN UPCOMING PRODUCT RELEASE
At the start of each project Product Manager will go through the enhancement
list with ISG and engineering to determine which should be included in the next
release. If there are specific features that need to be included to satisfy a
project need, please include that information in the ER when submitted, and
email the appropriate Product Manager.
17
COMPATIBILITY POLICY
This note clarifies BroadVision's policy on compatibility between production
releases. BV will provide a migration path between the objects, templates, and
scripts, components and content that customers have created with a production
release of One-To-One to the next production release of One-To-One. Addressing
these in turn:
1. BroadVision Standard objects - if we change the tag syntax of BV standard
objects we will provide tools and procedures needed to migrate those objects
from one release to the next. This will provide migration path for templates
using BV standard objects.
2. BroadVision Standard components - if we change the signature of BV standard
components we will provide tools and procedures needed to migrate scripts from
one release to the next. This will provide migration path for scripts using BV
standard components.
3. BroadVision APIs - we will in general maintain backward compatibility between
BroadVision APIs. In cases, where this is not possible or desirable we will
provide tools and procedures to migrate the APIs. This will provide migration
path for custom dynamic objects that use our APIs.
4. Database - when we make the schema changes we will provide migration tools to
update older schema and content from one production release of One-To-One to the
next.
Please note that we do not guarantee compatibility between Beta and FCS versions
of any given release. However, we will strive to not have major API, tag-syntax
or schema changes between Beta and FCS releases.
If you have any questions or suggestions please send email to
bv-pm@broadvision.com.
SUPPORT POLICY FOR THIRD-PARTY SOFTWARE PRODUCTS
Broadvision's policy is to certify One-To-One products against the versions of
third-party products that are released and available sufficiently in advance of
Broadvision's release date to allow for complete testing. This often means that
third-party vendors will release new versions of their products prior to the
next release of One-To-One. While Broadvision would prefer that customers use
the software versions with which One-To-One was tested, we also understand that
customers will, for various reasons, want to use these new versions of
third-party products.
Broadvision will support customers who use newer versions of third-party
products as long as the vendor guarantees forward compatibility. One-To-One
products should work on these new versions. By support we mean that we will work
with the customer to resolve compatibility problems with the third-party vendor.
Broadvision will also consider, at our option, developing and releasing minor
fixes for our products in order to resolve problems with new versions of
third-party products.
Broadvision will usually test and certify these newer versions of third-party
products in the next release of One-To-One. This can be a good indicator that
the newer versions will work with the current release of One-To-One. In
exceptional cases Broadvision may determine that the newer version of a
third-party product can not be used with One-To-One because it fails in some way
during the testing cycle. In this case we will continue to certify the older
version.
18
Contract No ________
ATTACHMENT E TO RESELLER AGREEMENT
MASTER PREFERRED ESCROW AGREEMENT
Master Number _____________________
THIS ESCROW AGREEMENT is effective June ______, 1996 among DATA
SECURITIES INTERNATIONAL, INC. ("DSI"), BROADVISION, INC. ("BroadVision") and
any party signing the Acceptance Form attached to this Agreement ("Licensee").
WHEREAS, BroadVision and Licensee have entered or will enter into a
License Agreement or other agreement pertaining to BroadVision software (the
"License Agreement");
WHEREAS, BroadVision desires to avoid disclosure of its software except
under certain limited circumstances;
WHEREAS, Licensee may need access to the software under certain limited
circumstances;
WHEREAS, BroadVision and Licensee desire to establish an escrow with DSI
to provide for the retention of, administration of and access to specified
BroadVision software; and
WHEREAS, the parties desire this Agreement to be supplementary to the
License Agreement pursuant to 11 United States [Bankruptcy] Code, Section
365(n).
1. DEPOSITS.
1.1 OBLIGATION TO MAKE DEPOSIT. Upon the signing of this Agreement by
the parties, including the signing of the Acceptance Form, BroadVision shall
deliver to DSI the software and other materials ("Deposit Materials") required
to be deposited by the License Agreement or, if the License Agreement does not
identify the materials to be deposited with DSI, then the materials identified
on an Exhibit A. If Exhibit A is applicable, BroadVision and Licensee shall sign
it. DSI shall have no obligation with respect to the preparation, signing or
delivery of Exhibit A.
1.2 IDENTIFICATION OF TANGIBLE MEDIA. Prior to the delivery of the
Deposit Materials to DSI, BroadVision shall conspicuously label for
identification each document, magnetic tape, disk, or other tangible media upon
which the Deposit Materials are written or stored. Additionally, BroadVision
shall complete Exhibit B to this Agreement by listing each such tangible media
by the item label description, the type of media and the quantity. The Exhibit B
must be signed by BroadVision and delivered to DSI with the Deposit Materials.
Unless and until BroadVision makes the initial deposit with DSI, DSI shall have
no obligation with respect to this Agreement, except the obligation to notify
the parties regarding the status of the deposit account as required in Section
2.2 below.
1.3 DEPOSIT INSPECTION. When DSI receives the Deposit Materials and the
Exhibit B, DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on the Exhibit B.
1.4 ACCEPTANCE OF DEPOSIT. At completion of the deposit inspection, if
DSI determines that the labeling of the tangible media matches the item
descriptions and quantity on Exhibit B, DSI will date and sign the Exhibit B and
mail a copy thereof to BroadVision and Licensee. If DSI determines that the
labeling does not match the item descriptions or quantity on the Exhibit B, DSI
will (a) note the discrepancies in writing on the Exhibit B; (b) date and sign
the Exhibit B with the exceptions noted; and (c) provide a copy of the Exhibit B
to BroadVision and each Licensee. DSI's acceptance of the deposit occurs upon
the signing of the Exhibit B by DSI. Delivery of the signed Exhibit B to
Licensee is Licensee's notice that the Deposit Materials have been received and
accepted by DSI. Licensee understands and agrees that it will receive the most
recent copy or copies of Exhibit B, which may predate the License Agreement.
1.5 DEPOSIT UPDATES. Unless otherwise provided by the License Agreement,
BroadVision shall update the Deposit Materials within 30 days of each standard
release (as defined in the License Agreement) of the Deposit Materials. Such
updates will be added to the existing deposit. All deposit updates shall be
listed on a new Exhibit B and the new Exhibit B shall be signed by
Page 1 of 10
19
BroadVision. Each Exhibit B will be held and maintained separately within the
escrow account. An independent record will be created which will document the
activity for each Exhibit B. The processing of all deposit updates shall be in
accordance with Sections 1.2 through 1.4 above. All references in this Agreement
to the Deposit Materials shall include the initial Deposit Materials and any
updates.
1.6 REMOVAL OF DEPOSIT MATERIALS. The Deposit Materials may be removed
or exchanged only on written instructions signed by BroadVision and Licensee, or
as otherwise provided in this Agreement.
2. CONFIDENTIALITY AND RECORD KEEPING.
2.1 CONFIDENTIALITY. DSI shall maintain the Deposit Materials in a
secure, environmentally safe, locked receptacle which is accessible only to
authorized employees of DSI. DSI shall have the obligation to reasonably protect
the confidentiality of the Deposit Materials. Except as provided in this
Agreement, DSI shall not disclose, transfer, make available, or use the Deposit
Materials. DSI shall not disclose the content of this Agreement to any third
party. If DSI receives a subpoena or other order of a court or other judicial
tribunal pertaining to the disclosure or release of the Deposit Materials, DSI
will immediately notify the parties to this Agreement. It shall be the
responsibility of BroadVision and Licensee to challenge any such order;
provided, however, that DSI does not waive its rights to present its position
with respect to any such order. DSI will not be required to disobey any court or
other judicial tribunal order.
2.2 STATUS REPORTS. DSI will issue to BroadVision and each Licensee a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 AUDIT RIGHTS. During the term of this Agreement, BroadVision and
Licensee shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
3. GRANT OF RIGHTS TO DSI.
3.1 TITLE TO MEDIA. BroadVision hereby transfers to DSI the title to the
media upon which the Deposit Materials are written or stored. However, this
transfer does not include the ownership of the proprietary information and
materials contained on the media, such as any copyright, trade secret, patent or
other intellectual property rights.
3.2 RIGHT TO MAKE COPIES. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, nondisclosure and other proprietary notices and titles
contained on the Deposit Materials onto any copies made by DSI. With all Deposit
Materials submitted to DSI, BroadVision shall provide any and all instructions
as may be necessary to duplicate the Deposit Materials, including but not
limited to the hardware and/or software needed.
3.3 RIGHT TO SUBLICENSE UPON RELEASE. BroadVision hereby grants to DSI a
non-exclusive, irrevocable, perpetual, and royalty-free license to sublicense
the Deposit Materials to Licensee upon the release, if any, of the Deposit
Materials in accordance with Section 4.5 below. Except upon such a release, DSI
shall not sublicense or otherwise transfer the Deposit Materials.
4. RELEASE OF DEPOSIT.
4.1 RELEASE CONDITIONS. As used in this Agreement, "Release Conditions"
shall mean the following:
(a) BroadVision's failure to perform maintenance services as
specified in the applicable attachment to the License Agreement, which failure
has not been cured within the applicable cure period specified in the License
Agreement; or
(b) BroadVision's failure to continue to do business in the
ordinary course.
4.2 FILING FOR RELEASE. If Licensee believes in good faith that a
Release Condition has occurred, Licensee may provide to DSI written notice
20
of the occurrence of the Release Condition and a request for the release of the
Deposit Materials. Upon receipt of such notice, DSI shall provide a copy of the
notice to BroadVision, by a nationally recognized overnight courier.
4.3 CONTRARY INSTRUCTIONS. From the date DSI mails the notice requesting
release of the Deposit Materials, BroadVision shall have ten business days to
deliver to DSI Contrary Instructions. "Contrary Instructions" shall mean the
written representation by BroadVision that a Release Condition has not occurred
or has been cured. Upon receipt of Contrary Instructions, DSI shall send a copy
to Licensee by a nationally recognized overnight courier. Additionally, DSI
shall notify both BroadVision and Licensee that there is a dispute to be
resolved pursuant to Section 7.3. Subject to Section 5.2, DSI will continue to
store the Deposit Materials without release pending (a) joint instructions from
BroadVision and Licensee, (b) resolution pursuant to Section 7.3, or (c) order
of a court.
4.4 RELEASE OF DEPOSIT. If DSI does not receive Contrary Instructions
from the BroadVision, DSI is authorized to release the Deposit Materials to
Licensee or, if more than one beneficiary is registered to the deposit, to
release a copy of the Deposit Materials to the Licensee. However, DSI is
entitled to receive any fees due DSI before making the release. This Agreement
with respect to a particular Licensee will terminate upon the release of the
Deposit Materials held by DSI to such Licensee.
4.5 USE LICENSE FOLLOWING RELEASE. Unless otherwise provided in the
License Agreement, upon release of the Deposit Materials in accordance with this
Section 4, BroadVision hereby grants to Licensee a non-exclusive,
non-transferable, non-sublicenseable license to use the Deposit Materials to
maintain and support the Software (as defined in the License Agreement) in order
for Licensee to continue using the Software in accordance with the terms of the
License Agreement. Licensee may not reproduce, distribute, create derivative
works of, publicly perform, publicly display or digitally perform the Deposit
Materials. Licensee shall not have the right to enhance the Software or add any
new functionality to the Software. Licensee shall continue to pay all royalties
which accrue under the License Agreement based on continued use of the Software
(including without limitation any fees attributable to the number of profiled
users), and Licensee's failure to make such payments when due shall terminate
this license. The Deposit Materials shall be deemed Confidential Information
under the License Agreement, and all confidentiality obligations therein shall
apply to the Deposit Materials in perpetuity.
5. TERM AND TERMINATION.
5.1 TERM OF AGREEMENT. The initial term of this Agreement is for a
period of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) with respect to a Licensee, BroadVision and such
Licensee jointly instruct DSI in writing that the Agreement is terminated; or
(b) the Agreement is terminated by DSI for nonpayment in accordance with Section
5.2. If the Acceptance Form has been signed at a date later than this Agreement,
the initial term of the Acceptance Form will be for one year with subsequent
terms to be adjusted to match the anniversary date of this Agreement. If the
deposit materials are subject to another escrow agreement with DSI, DSI reserves
the right, after the initial one year term, to adjust the anniversary date of
this Agreement to match the then prevailing anniversary date of such other
escrow arrangements.
5.2 TERMINATION FOR NONPAYMENT. In the event of the nonpayment of fees
owed to DSI, DSI shall provide written notice of delinquency to all parties to
this Agreement. Any party to this Agreement shall have the right to make the
payment to DSI to cure the default. If the past due payment is not received in
full by DSI within one month of the date of such notice, then DSI shall have the
right to terminate this Agreement at any time thereafter by sending written
notice of termination to all parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 DISPOSITION OF DEPOSIT MATERIALS UPON TERMINATION. Upon termination
of this Agreement by joint instruction of BroadVision and a Licensee, DSI shall
destroy, return, or otherwise deliver the Deposit Materials in accordance with
such instructions. Upon termination for nonpayment, DSI may, at its sole
discretion, destroy the Deposit Materials or return them to BroadVision. DSI
shall have no obligation to return or destroy the Deposit
Page 3 of 10
21
Materials if the Deposit Materials are subject to another escrow agreement with
DSI.
5.4 SURVIVAL OF TERMS FOLLOWING TERMINATION. Upon termination of this
Agreement, Sections 3.3, 4.5, 6.2 and 7 of this Agreement shall survive:
6. DSI'S FEES.
6.1 FEE SCHEDULE. Each Licensee shall pay to DSI its standard fees and
expenses applicable to the services provided for Licensee. DSI shall notify
Licensee at least 90 days prior to any increase in fees. For any service not
listed on DSI's standard fee schedule, DSI will provide a quote prior to
rendering the service, if requested.
6.2 PAYMENT TERMS. DSI shall not be required to perform any service
unless the payment for such service and any outstanding balances owed to DSI are
paid in full. All other fees are due upon receipt of invoice. If invoiced fees
are not paid, DSI may terminate this Agreement in accordance with Section 5.2.
Late fees on past due amounts shall accrue at the lesser of the rate of one and
one-half percent per month (18% per annum) from the date of the invoice or the
maximum rate allowable under applicable law.
7. LIABILITY AND DISPUTES.
7.1 RIGHT TO RELY ON INSTRUCTIONS. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI shall
not be responsible for failure to act as a result of causes beyond the
reasonable control of DSI.
7.2 INDEMNIFICATION. DSI shall be responsible to perform its obligations
under this Agreement and to act in a reasonable and prudent manner with regard
to this escrow arrangement. Provided DSI has acted in the manner stated in the
preceding sentence, BroadVision and Licensee each agree to indemnify, defend and
hold harmless DSI from any and all claims, actions, damages, arbitration fees
and expenses, costs, attorney's fees and other liabilities incurred by DSI
relating in any way to this escrow arrangement.
7.3 DISPUTE RESOLUTION. Any dispute relating to or arising from this
Agreement shall be resolved by arbitration under the Commercial Rules of the
American Arbitration Association. Unless otherwise agreed by BroadVision and
Licensee, arbitration will take place in Palo Alto, California, U.S.A. Any court
having jurisdiction over the matter may enter judgment on the award of the
arbitrator(s). Service of a petition to confirm the arbitration award may be
made by nationally recognized overnight courier to the attorney for the party
or, if unrepresented, to the party at the last known business address.
7.4 CONTROLLING LAW. This Agreement is to be governed and construed in
accordance with the laws of the State of California, without regard to its
conflict of law provisions.
7.5 NOTICE OF REQUESTED ORDER. If any party intends to obtain an order
from the arbitrator or any court of competent jurisdiction which may direct DSI
to take, or refrain from taking any action, that party shall:
(a) Give DSI at least two business days' prior notice of the
hearing;
(b) Include in any such order that, as a precondition to DSI's
obligation, DSI be paid in full for any past due fees and be paid for the
reasonable value of the services to be rendered pursuant to such order; and
(c) Ensure that DSI not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if DSI may need to retain the
original in its possession to fulfill any of its other escrow duties.
8. GENERAL PROVISIONS.
8.1 ENTIRE AGREEMENT. This Agreement, which includes the Acceptance Form
and the Exhibits described herein, embodies the entire understanding between all
of the parties with respect to its subject matter and supersedes all previous
communications, representations or understandings,
Page 4 of 10
22
either oral or written. No amendment or modification of this Agreement shall be
valid or binding unless signed by all the parties hereto, except Exhibit A need
not be signed by DSI and Exhibit B need not be signed by Licensee.
8.2 NOTICES. All notices, invoices, payments, deposits and other
documents and communications shall be given to the parties at the addresses
specified in the attached Exhibit C and Acceptance Form. It shall be the
responsibility of the parties to notify each other as provided in this Section
in the event of a change of address. The parties shall have the right to rely on
the last known address of the other parties. Unless otherwise provided in this
Agreement, all documents and communications may be delivered by certified mail,
return receipt requested.
8.3 SEVERABILITY. In the event any provision of this Agreement is found
to be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the validity of
this Agreement nor the remaining provisions herein, and the provision in
question shall be deemed to be replaced with a valid and enforceable provision
most closely reflecting the intent and purpose of the original provision.
8.4 SUCCESSORS. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the parties. However, DSI shall
have no obligation in performing this Agreement to recognize any successor or
assign of BroadVision or Licensee unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
BROADVISION, INC. DATA SECURITIES INTERNATIONAL, INC.
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
Page 5 of 10
23
ACCEPTANCE FORM
Account Number _________________________
__________________ hereby (i) acknowledges that it is a Licensee referred to in
the Master Preferred Escrow Agreement effective June ____, 1996 with Data
Securities International, Inc. as the escrow agent and BroadVision, Inc. as the
Depositor and (ii) agrees to be bound by all provisions of such Agreement.
[Licensee]
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
Date:
------------------------------
Notices and communications
should be addressed to: Invoices should be addressed to:
Licensee Name:
----------------------- -----------------------------------
Address:
----------------------------- -----------------------------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
Designated Contact: Contact:
------------------ ---------------------------
Telephone:
--------------------------- -----------------------------------
Facsimile:
--------------------------- -----------------------------------
BroadVision hereby enrolls Licensee to the following account(s):
Account Name Account Number
------------ --------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
BROADVISION, INC. DATA SECURITIES INTERNATIONAL, INC.
By: By:
---------------------------------- --------------------------------
Name: Name:
-------------------------------- ------------------------------
Title: Title:
------------------------------- -----------------------------
Date: Date:
-------------------------------- ------------------------------
Page 6 of 10
24
EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number ______________________
BroadVision represents to Licensee that Deposit Materials delivered to DSI shall
consist of the following:
BROADVISION, INC. LICENSEE
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
Page 7 of 10
25
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Account Number:_______________________________
Company Name: BROADVISION, INC.
DEPOSIT TYPE: _________Initial__________ Supplemental
ENVIRONMENT
Host System CPU/OS_____________________ Version_______________
Backup________________ Source System CPU/OS___________________
Version_______________ Compiler________________ Special
Instructions:_____________________________________
DEPOSIT COPYING REQUIREMENT:
Hardware needed:________________________________________________________________
Software needed/Instructions:___________________________________________________
DEPOSIT MATERIALS:
Exhibit B Name________________________________ Version__________________________
Item label description Media Quantity
For BroadVision, I certify that the above For DSI, I certify that the deposit
described Deposit Materials have been inspection has been completed transmitted
to DSI: (any exceptions are noted above):
By By
------------------------------- -------------------------------
Print Name Print Name
----------------------- -----------------------
Date Date of Acceptance
----------------------------- ---------------
ISE EX. B#
------------ -----------
Send materials to: DSI, 9555 Chesapeake Dr. #200, San Diego, CA 92123
Page 8 of 10
26
EXHIBIT C
DESIGNATED CONTACT
Master Number ___________________________
Notices and communications
should be addressed to: Invoices should be addressed to:
Company Name: BroadVision, Inc. 333 Distel Circle
Address: 333 Distel Circle Los Altos, CA 94022
Los Altos, CA 94022 Contact: Chief Financial Officer
Designated Contact: Controller
Telephone: (415) 943-3600
Facsimile: (415) 943-____
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Deposit Materials and notices Invoice inquiries and fee remittances
to DSI should be addressed to: to DSI should be addressed to:
DSI DSI
Contract Administration Accounts Receivable
Suite 200 Suite 1450
9555 Chesapeake Drive 425 California Street
San Diego, CA 92123 San Francisco, CA 94104
Telephone: (619) 694-1900 (415) 398-7900
Facsimile: (619) 694-1919 (415) 398-7914
Date:
-------------------------------
Page 9 of 10
27
ADDITIONAL ESCROW ACCOUNT AMENDMENT
TO MASTER PREFERRED ESCROW AGREEMENT
Master Number __________________
New Account Number _________________
BroadVision, Inc. ("BroadVision") has entered into a Master Preferred Escrow
Agreement with Data Securities International, Inc. ("DSI"). Pursuant to that
Agreement, BroadVision may deposit certain Deposit Materials with DSI.
BroadVision desires that new Deposit Materials be held in a separate account and
be maintained separately from the existing account. By execution of this
Amendment, DSI will establish a separate account for the new Deposit Materials.
The new account will be referenced by the following name:____________________.
BroadVision hereby agrees that all terms and conditions of the existing Master
Preferred Escrow Agreement previously entered into by BroadVision and DSI will
govern this account. The termination or expiration of any other account of
BroadVision will not affect this account.
BROADVISION, INC. DATA SECURITIES INTERNATIONAL, INC.
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
Date: Date:
----------------------------- -----------------------------
Page 10 of 10
EX-10.6
11
EXHIBIT 10.6
1
Exhibit 10.6
CONCENTRIC NETWORK CORPORATION
10590 N. TANTAU AVENUE, CUPERTINO, CA 95014
CONCENTRIC HOST SERVER SOLUTIONS SERVICE AGREEMENT
This Concentric Host Server Solutions Service Agreement ("Agreement") is made
and entered into on this 29th day of January, 1999 ("Effective Date"), by and
between Concentric Network Corporation, Inc., a Delaware corporation
("Concentric"), and Corio Corporation ("Customer"), a Delaware corporation with
its principal place of business at 700 Bay Road, Suite 210, Redwood City, CA
94063.
The Parties hereto agree as follows:
1.0 SERVICES
Subject to the terms and conditions of this Agreement, during the term of this
Agreement, Concentric will provide to Customer the goods and services
(collectively, the "Services") as described and selected in the applicable
Co-location Order Form(s), and/or the Managed Server Order Form(s) (each an
"Order Form") attached hereto as Exhibit A.
2.0 PAYMENT AND INVOICES
2.1 Fees. Customer shall pay Concentric all fees indicated on the applicable
Order Form. These fees and charges may include a one-time set-up charge, as well
as certain monthly fees. During the term of this Agreement the fees shall be
fixed; however, should Concentric's general fees for the Services decrease
during the term, Customer's fees will be adjusted accordingly.
2.2 Payment Terms. Concentric shall invoice Customer monthly, at the end of
each month, for the fees payable under this Agreement pursuant to the applicable
Order Form, and Customer shall pay Concentric such fees no later than thirty
(30) days after the invoice date. If Concentric does not receive payment in full
for each invoice within thirty (30) days after the invoice date, Concentric may
add to Customer's account a late charge of 1.5% per month, or the maximum amount
allowed by law, whichever is less.
2.3 Taxes. All fees are in United States dollars and exclude any applicable
taxes. Customer shall pay, indemnify and hold Concentric harmless from all
sales, use, value added or other taxes of any nature, other than taxes on
Concentric's net income, including penalties and interest, and all government
permit or license fees assessed upon or with respect to any fees due under this
Agreement (except to the extent Customer provides Concentric with a valid tax
exemption certificate). If any applicable foreign law requires Customer to
withhold amounts from any payments to Concentric hereunder: (a) Customer shall
affect such withholding, remit such amounts to the appropriate taxing
authorities and promptly furnish Concentric with tax receipts evidencing the
payments of such amounts; and (b) the sum payable by Customer upon which the
deduction or withholding is based shall be increased to the extent necessary to
ensure that, after such deduction or withholding, Concentric receives and
retains, free from liability for such deduction or withholding, a net amount
equal to the amount Concentric would have received and retained in the absence
of such required deduction or withholding.
3.0 REPRESENTATIONS AND WARRANTIES
3.1 General. Each party represents and warrants that it has the right and
authority to enter into this Agreement, and that by entering into this
Agreement, it will not violate, conflict with or cause a material default under
any other contract, agreement, indenture, decree, judgment, undertaking,
conveyance, lien or encumbrance to which it is a party or by which it or any of
its property is or may become subject or bound. Each party shall, at its own
expense, make, obtain, and maintain in force at all times during the term of
this Agreement, all applicable filings, registrations, reports, licenses,
permits and authorizations necessary to perform its obligations under this
Agreement.
3.2 Compliance with Laws. Customer represents and warrants that no consent,
approval or authorization of or designation, declaration or filing with any
governmental authority is required in connection with the valid execution,
delivery and performance of this Agreement. Each party shall, at its own
expense, comply with all laws, regulations and other legal requirements that
apply to it and this Agreement, including copyright, privacy and communications
decency laws.
3.3 Acceptable Use.
(a) Customer is solely responsible for the content of any postings, data or
transmissions using the Services, or any other use of the Services by Customer
or by any person or entity Customer permits to access the Services. Customer
represents and warrants that it will: (a) not use any Concentric equipment or
services in a manner that: (i) is prohibited by any law or regulation or
Concentric policy, or to facilitate the violation of any law or regulation or
such policy; or (ii) will disrupt third parties' use or enjoyment of any
communications service or outlet; (b) not violate or tamper with the security of
any Concentric computer equipment or program; and (c) enter into an agreement
with each of its end-users sufficient to comply with the terms herein. If
Concentric has reasonable grounds to believe that Customer is utilizing the
Services for any such illegal purpose, as stated above in (a)(i), or disruptive
purpose, as stated above in (a)(ii) or (b), Concentric may suspend or terminate
Services immediately upon notice to Customer. Except for actions requiring
immediate action as required by government regulation or by law, or required to
protect Concentric's network, Concentric will make best efforts to notify
Customer in advance of actions it may take to limit Customer's or its User's
access to the network.
(b) Customer acknowledges and expressly agrees that Concentric will not be
liable to Customer or its customers for any action Concentric takes to remove or
restrict access to obscene, indecent or offensive content made available by
Customer, not for
* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.
ServerSolutions092298 Confidential Page 1 of 5
2
any action taken to restrict access to material made available in violation of
any law, regulation or rights of a third party, including but not limited to,
rights under the copyright law and prohibitions on libel, slander and invasion
of privacy.
3.4 Facilities
Concentric warrants that the data center facilities in which Customer's
server(s) reside will maintain the following features:
* Secure, scalable areas including cabinets, racks, shelves, locked cages
and suites
* Telco hardened
* Environmental controls
* Redundant heating, ventilation and air condition systems'
* Physically secure with escorted access at all times
* Fire Master 200 Fire Suppression System
* Redundant, built-in, clean, continuous power distribution units to
servers
* Redundant power: UPS and diesel generator power back-up
3.5 DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY
WARRANTIES MADE BY CONCENTRIC. CONCENTRIC MAKES NO OTHER WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO ITS SERVICES, ANY RELATED SERVICE OR
SOFTWARE, OR THE FITNESS OF THE SPACE FOR CUSTOMER'S USE CONCENTRIC HEREBY
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES ARISING FROM A
COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN
BY CONCENTRIC, ITS EMPLOYEES, LICENSORS OR THE LIKE WILL CREATE A. WARRANTY.
4.0 LIMITATION OF LIABILITY
EXCEPT FOR CUSTOMER'S OBLIGATIONS TO PROVIDE NON LIABILITY FOR CONCENTRIC
PURSUANT TO SECTION 3.3(b), UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL
(A) EITHER PARTY OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR
PROVIDING THE SERVICES, OR (B) WITH REGARD TO THIRD-PARTY SOFTWARE, THE
APPLICABLE LICENSOR, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE
SERVICES, OR, IF APPLICABLE, THE THIRD-PARTY SOFTWARE, INCLUDING BUT NOT LIMITED
TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES,
OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES,
DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION
OR UNAUTHORIZED ACCESS TO CONCENTRIC'S RECORDS, PROGRAMS OR SERVICES, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF
ANY BREACH BY CONCENTRIC OF THIS AGREEMENT, CONCENTRIC'S LIABILITY TO CUSTOMER
WILL NOT EXCEED THE AMOUNT PAID TO CONCENTRIC BY CUSTOMER DURING THE PREVIOUS
TWELVE MONTHS. IN THE EVENT OF ANY BREACH BY THE THIRD-PARTY LICENSOR OF THIS
AGREEMENT, SUCH LICENSOR'S LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT PAID
FOR SUCH THIRD-PARTY SOFTWARE.
5.0 CONFIDENTIAL INFORMATION
5.1 Definition. For purposes of this Agreement "Confidential Information"
shall mean information including, without limitation, computer programs, code,
algorithms, names and expertise of employees and consultants, know-how,
formulas, processes, ideas, inventions (whether patentable or not), schematics
and other technical, business, financial and product development plans,
forecasts, strategies and information marked "Confidential", or if disclosed
verbally, is identified as confidential at the time of disclosure. In addition
to the foregoing, with respect to Third-Party Software (as defined below),
Confidential Information shall also include any source or object codes,
technical data, data output of such software, Documentation (as defined below),
or correspondence owned by the applicable Licensor. Confidential Information
excludes information that: (i) was or becomes publicly known through no fault of
the receiving party; (ii) was rightfully known or becomes rightfully known to
the receiving party without confidential or proprietary restriction from a
source other than the disclosing party; (iii) is independently developed by the
receiving party without the participation of individuals who have had access to
the Confidential Information; (iv) is approved by the disclosing party for
disclosure without restriction in a written document which is signed by a duly
authorized officer of such disclosing party; and (v) the receiving party is
legally compelled to disclose; provided, however, that prior to any such
compelled disclosure, the receiving party will (a) assert the privileged and
confidential nature of the Confidential Information against the third party
seeking disclosure and (b) cooperate fully with the disclosing party in
protecting against any such disclosure and/or obtaining a protective order
narrowing the scope of such disclosure and/or use of the Confidential
Information. In the event that such protection against disclosure is not
obtained, the receiving party will be entitled to disclose the Confidential
Information, but only as, and to the extent, necessary to legally comply with
such compelled disclosure.
5.2 Nondisclosure. Until the later of three (3) years from the Effective
Date, or the expiration of the then current term as set forth on the Order From,
each party agrees to maintain all Confidential Information in confidence to the
same extent that it protects its own similar Confidential Information, but in no
event less than reasonable care, and to use such Confidential Information only
as permitted under this Agreement; in addition, with respect to the Confidential
Information of the Third-Party Software Licensor, Customer agrees that it shall
not use or disclose such information at any time either during the Term or after
the termination of this Agreement, except as required by law. Each party agrees
to take all reasonable precautions to prevent any unauthorized disclosure or use
of Confidential Information including, without limitation disclosing
Confidential Information only to its employees: (a) with a need to know to
further permitted uses of such information: (b) who are parties to appropriate
agreements sufficient to comply with this Section 5; and (c) who are informed of
the nondisclosure/non-use obligations imposed by this Section 5; and both
parties shall take appropriate steps to implement and enforce such
non-disclosure/non-use obligations.
5.3 Terms of Agreement Confidential. Subject to Section 7.1, each of the
parties agrees not to disclose to any third party the terms of this Agreement
without the prior written consent of the other party hereto, except to advisors,
investors and others on a need-to-know basis under circumstances that reasonably
ensure the confidentiality thereof, or to the extent required by law.
5.4 Injunctive Relief. In the event of an actual or threatened breach of the
above confidentiality provisions, the nonbreaching party will have no adequate
remedy at law and will
ServerSolutions092298 Confidential Page 2 of 5
3
be entitled to immediate injunctive and other equitable relief, without bond and
without the necessity of showing actual money damages.
6.0 TERM AND TERMINATION
6.1 Term. The term of this Agreement will commence on the Effective Date and
continue for the term for [*]. Upon written notice thirty (30) days or more
prior to the expiration of the initial term, Customer will indicate whether to
extend the term for an additional [*] or such term as Customer may request, or
let the Agreement expire. Absent written notice by either party thirty (30) days
prior to the end of the initial term, this Agreement will automatically renew
for successive one (1) year terms under the prices then in effect for the
Services.
6.2 Termination. A party may terminate this Agreement upon written notice to
the other party;
(a) For any material breach of this Agreement, which the defaulting party
fails to cure within thirty (30) days following written notice by the
non-defaulting party of such breach; or
(b) Upon the other party's insolvency or liquidation as a result of which
such party ceases to do business for a continuous period of at least three (3)
months.
6.3 Effect of Termination.
(a) If Customer terminates this Agreement for its convenience prior to the
expiration of the initial term or any renewal term, Customer will be liable for
and pay Concentric the difference between the fees paid and calculated at the
discount level corresponding to the term elected by Customer and the fees paid
and calculated at the discount level earned.
(b) Customer shall comply with all applicable procedures related to
equipment removal upon termination. The obligations of Sections 3, 4, 5, 6.3 and
9 will survive any expiration or earlier termination of this Agreement. In the
event of any expiration or earlier termination of this Agreement, Customer will
(a) if applicable, immediately stop using the Third-Party Software, and in the
applicable Licensor's sole discretion, return or destroy all copies of the
Third-Party Software, Documentation (each as defined below) and data output of
such software; and (b) be obligated to pay to Concentric fees and charges
incurred prior to termination. In addition, if Customer fails to pay any
invoice(s) for forty five (45) days or more from the date of such invoice,
Customer shall be denied access to the Space (as defined below) until such time
as the invoice(s) has been paid in full. Finally, within ten (10) days after the
termination of this Agreement, if requested, Customer shall return to the
disclosing party all originals and copies of all Confidential Information which
has been fixed in any tangible medium of expression. If return of digital copies
is impractical, Customer may destroy the digital copies and send the disclosing
party written certification of such destruction.
7.0 MARKETING AND PROMOTION
7.1 Press Release. The parties may agree to cooperate to prepare and release
a joint press release regarding this Agreement, subject to the approval of each
party, which must not be unreasonably withheld or delayed.
8.0 FACILITIES
8.1 The following terms and conditions will apply only if Customer has
filled out the Co-Location Order Form:
(a) License to Occupy. For purposes of this Agreement, "Space" means the
Concentric facilities where Customer's hardware and software are stored and
operated. Concentric grants to Customer a non-exclusive license to occupy the
Space. Customer acknowledges that it has been granted only a license to occupy
the Space and that it has not been granted any real property interests in the
Space.
(b) Services. Concentric will provide Customer with the services
("Services") as specified in the Order Form (i.e., "Remote Hands").
(c) Exclusions. Services shall not include services for problems arising out
of modification, alteration or addition or attempted modification, alteration or
addition of hardware undertaken by persons other than Concentric or Concentric's
authorized representatives.
(d) Material and Changes. Customer shall comply with all applicable rules
and regulations, including equipment installation or de-installation, and
alteration of the Space. Customer shall not make any changes or material
alterations to the interior or exterior portions of the Space, including any
cabling or power supplies for its hardware. Customer agrees not to erect any
signs or devices to the exterior portion of the Space.
(e) Damage. Customer agrees to reimburse Concentric for all reasonable
repair or restoration costs associated with damage or destruction caused by
Customer's personnel, Customer's agents, Customer's suppliers/contractors, or
Customer's visitors during the term or as a consequence of Customer's removal of
its hardware or property installed in the Space.
(f) Insurance. Unless otherwise agreed, Customer shall maintain, at
Customer's expense, (i) Comprehensive General Liability Insurance in an amount
not less than one million dollars ($1,000,000) per occurrence for bodily injury
or property damage; (ii) Employer's Liability in an amount not less than one
million dollars ($1,000,000) per occurrence, (iii) Worker's Compensation in an
amount not less than that prescribed by statutory limits and (iv) Property
Insurance on an "all risk" form covering equipment and personal property owned
or leased by Customer and used or stored on Concentric's premises. Such
Comprehensive General Liability Insurance shall have an additional insured
endorsement naming Concentric Network Corporation, and shall be primary and
non-contributing with any insurance policies carried by Concentric. Customer
shall also maintain insurance covering the equipment or property owned or leased
by Customer against loss or physical damage. If so requested, Customer will
provide CNC written evidence of insurance coverage consistent with the
requirements of this subsection.
(g) Customer Duties. Customer shall document and promptly report all errors
or malfunctions of the hardware to Concentric. Concentric shall take all steps
necessary to carry out procedures for the rectification of errors or
malfunctions within a reasonable time. Customer shall maintain a current backup
copy of all programs and data. Customer shall properly train its personnel in
the use of the hardware.
ServerSolutions092298 Confidential Page 3 of 5
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4
(h) Third-Party Software. For purposes of this Agreement, "Third-Party
Software" means those products indicated as such on the Order Form. If Customer
purchases any Third-Party Software, Customer hereby agrees to be bound by the
following terms and conditions, and further agrees to enter into all applicable
agreements, if any, which such third-party requires of Concentric:
i. Customer is granted a non-exclusive, nontransferable right to install
and use the Third-Party Software in object code form only, accompanying
documentation ("Documentation"), and data output of such software solely for
Customer's internal use. Such license is not transferable or assignable by
Customer, in whole or in part, whether voluntarily or by merger, consolidation
or sale, or otherwise by operation of law. Customer may make one backup copy of
the Third-Party Software for archival purposes only.
ii. Title to the Third-Party Software shall be retained by the applicable
Licensor of such software. No right, title, or interest in the Third-Party
Software or Documentation is granted or conveyed to Customer by implication or
otherwise.
iii. Customer acknowledges that the applicable Licensor can only control such
Licensor's servers and therefore such Licensor cannot guarantee delivery of all
data output requested by Customer in any given time period.
iv. Except for any backup archival copies permitted herein, Customer may
not, and shall not allow others to, copy, modify, translate, disassemble,
decompile, reverse engineer or create derivative works of the Third-Party
Software, Documentation or data output of such software.
v. Customer shall not disclose the results of any, benchmark tests of the
Third-Party Software or data output of such software to any third party; provide
third parties access to the Third-Party Software, Documentation or data output;
sublicense, rent, lease, barter, sell, or otherwise distribute the Third-Party
Software, Documentation or any data output; or use any technical information in
any way related to or acquired by use of the Third-Party Software for the
prospective economic advantage of any third-party. Notwithstanding the
foregoing, Customer may publish and disseminate summaries of the data output
performed and transmitted by the Third-Party Software provided that Customer
attributes the applicable Licensor as the source of the data output or
information on which such summaries are based.
vi. CUSTOMER HEREBY ACCEPTS THE SOFTWARE AND DATA "AS IS" WITH NO EXPRESS OR
IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE
APPLICABLE LICENSOR NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME
FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SOFTWARE, DATA OR ANY OTHER
INFORMATION, INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING OUT OF THE
DELIVERY, INSTALLATION, SUPPORT OR USE OF THE SOFTWARE, INFORMATION OR DATA.
SUCH LICENSOR DOES NOT WARRANT THE RESULTS OF ANY PROGRAM OR SERVICE OR THAT ANY
ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL MEET
CUSTOMER'S REQUIREMENTS OR EXPECTATIONS. SUCH LICENSOR CANNOT GUARANTEE AND DOES
NOT WARRANT THE ACCURACY OF THE DATA DELIVERED TO CUSTOMER OR THAT DATA IS
TRANSMITTED TO CUSTOMER WITHOUT INTERRUPTION OR DELAY. Customer asserts and
acknowledges that prior to execution of this Agreement, Customer had sufficient
opportunity to evaluate the Third-Party Software, Documentation, and data output
delivery of such software to become familiar with their performance and
operation.
8.2 The following terms and conditions will apply only if Customer has
filled out the Managed Server Order Form:
(a) Services, Concentric will provide Customer with the services as
specified in the Order Form.
(b) Service Level Agreement. Concentric agrees that its Managed Server
downtime will not exceed 4.33 minutes per day, or 30.3 minutes per week, or 130
minutes per month. If in any calendar month. Customer's server is down for more
than 130 minutes (exclusive of (i) scheduled maintenance windows and (ii)
customer enabled faults), Concentric will credit to Customer's account
twenty-five percent (25%) of such month's Managed Server fee, as set forth in
the Order Form.
8.3 Regulations. Customer shall comply with all applicable operational rules
and regulations, while on Concentric's premises and while under Concentric
escort. Concentric may, in its sole discretion, limit Customer's access to a
reasonable number of authorized Customer employees or designees. Customer shall
not interfere with any other customers of Concentric, or such other customers'
use of Concentric's facilities.
8.4 Assumption of Risk. Customer hereby assumes any and all risks associated
with Customer, its agents (including contractors and sub-contractors) or
employees' use of the Space and shall indemnify, defend and hold harmless
Concentric from any and all claims, liabilities, judgments, causes of action,
damages, costs, and expenses (including reasonable attorneys' and experts'
fees), caused by or arising in connection with such use.
9.0 GENERAL PROVISIONS
9.1 Assignment. This Agreement will be binding upon, and inure to the
benefit of, the parties hereto and their respective successors and assigns.
Notwithstanding the above, neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other party. Any
assignment in violation of this Section shall be null and void. Notwithstanding
the above, either party, without approval from the other party, may reassign
this Agreement through merger or acquisition where a third party acquires a
majority interest in the assets of such party.
9.2 Independent Contractors. The parties will have the status of independent
contractors, and nothing in this Agreement should be deemed to place the parties
in the relationship of employer-employee, principal-agent, or partners or in a
joint venture.
9.3 Waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement, or the failure to require at any time performance
by the other party of any of the provisions of this Agreement, should in no way
be construed to be a present or future waiver of such provisions, nor in any way
affect the right of either party to enforce each and every such provision
thereafter. The express waiver by either party of any provision, condition or
requirement of this Agreement will not constitute a waiver of any future
obligation to comply with such provision, condition or requirement.
ServerSolutions092298 Confidential Page 4 of 5
5
9.4 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, or unenforceable under present or
future laws, such provision will be struck from the Agreement and the remaining
provisions of this Agreement shall remain in full force and effect.
9.5 Indemnity.
(a) Customer shall indemnify, defend and hold harmless Concentric, and/or,
if applicable, the Licensor of the Third-Party Software, from any and all
damages, liabilities, costs and expenses (including but not limited to
reasonable attorneys' fees) incurred (a) by Concentric as a result of any
threatened or actual suit against Concentric arising out of or in connection
with information or content provided, accessed or made available by Customer on
Concentric's network; and (b) by the applicable Third-Party Software Licensor as
a result of any threatened or actual suit against such Licensor arising from
Customer's use, summarization, or dissemination of any data output of such
software, including, without limitation, trade libel and slander.
(b) Each of Concentric and Customer shall indemnify, defend and hold
harmless the other, from any and all damages, liabilities, costs and expenses
(including but not limited to reasonable attorneys' fees) incurred by the other
party's gross negligence or deliberate wrongdoing in performance under this
Agreement.
9.6 Force Majeure. Either party will be excused from any delay or failure to
perform any obligation under this Agreement if such failure is caused by the
occurrence of any event beyond the reasonable control of such party, including
but not limited to, acts of God, earthquake, labor disputes and strikes, riots
or war. The obligations and rights of the party so excused shall be extended on
a day-to-day basis for the period of time equal to that of the underlying cause
of the delay.
9.7 Governing Law. This Agreement will be deemed to have been made in the
State of California, and the provisions and conditions of this Agreement will be
governed by and interpreted in accordance with the laws of the State of
California, without regard to conflict of laws principles thereof.
9.8 Arbitration. Any dispute or claim arising out of or in connection with
this Agreement or the performance, breach or termination thereof, will be
finally settled by binding arbitration in San Jose, California under the Rules
of Arbitration of the American Arbitration Association by an arbitrator
appointed in accordance with those rules. Judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, either party may apply to any court of competent
jurisdiction for equitable relief without breach of this arbitration provision.
9.9 Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
supersedes all prior agreements and understandings between the parties, whether
written or oral with respect to the subject matter hereof. No modification of
this Agreement shall be binding upon the parties hereto unless evidenced in
writing duly signed by authorized representatives of the respective parties
hereto.
9.10 Notices. Any required notices hereunder shall be given in writing via
electronic mail and by certified mail or overnight express delivery service
(such as DHL) at the address of each party above or as indicated on the
applicable Order Form, or to such other address as either party may from time to
time substitute by written notice. Notice shall be deemed served when delivered
or, if delivery is not accomplished by reason of some fault of the addressee,
when tendered.
Customer and Concentric's authorized representatives have read the foregoing and
all documents incorporated therein and agree and accept such terms.
CUSTOMER REPRESENTATIVE CONCENTRIC NETWORK CORPORATION
(Corio Corporation)
By: /s/ Signature Illegible By: /s/ Signature Illegible
(Authorized Signature) (Authorized Signature)
Print Name: Jonathan Lee Print Name: W.C. Etheredge
------------------- -------------------------
Title: CEO Title: Sr. V.P.
----------------------- -----------------------------
ServerSolutions092298 Confidential Page 5 of 5
6
Exhibit A - Products and Services Quotation
Server Co-location
Enterprise 5 year
Issue Date: 1/27/99
Expiration Date: 2/27/99
Customer Information
Corio VAR Torry Da La Cruz Quota ID:
Source Email
Voice URL
Scott Albro Fax Voice
Fax
Site Information
Site Location
NPA/NXX
One Time Set Up Fees List Price Qty Subtotal Discount Total
Installation
------------
Co-location Server Setup [*] [*] [*] [*] [*]
Options Setup
-------------
Aquas Bazaar 2.0 [*]
Balanced Server - Setup [*]
Dally System Back-up [*] [*]
Monthly Recurring Fees List Price Qty Subtotal Discount Total
Monthly Fees
------------
500Kbps Bandwidth [*] [*] [*] [*] [*]
Burstable Service* 500Kbps - 10Mbps [*]
Rack space [*] [*] [*] [*] [*]
Options
-------
Keynote 10 City [*]
Keynote 25 City [*]
Balanced Server - Local [*]
Balanced Server - Global [*]
[*]
Other Fees List Price Discount Net Price
Remote Hands
------------
Service Level 1000 [*]
Service Level 2000 [*]
Service Level 3000 [*]
[*] [*]
Add 1.5 hours/month [*] [*]
Add 1.10 hours/month [*] [*]
Add 1.15 hours/month [*] [*]
These discounts shall apply to the Burstable pricing.
Order Volume Discount Applied
<$160k/month [*]
$161K/month - $750K/month [*]
$751K/month - $1.5M/month [*]
>$1.5M/month [*]
Signature: /s/ Signature Illegible
Date: 1-29-99
[*] Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.