ALLIANCE AND CO-MARKETING AGREEMENT
This Alliance and Co-Marketing Agreement ("AGREEMENT") is entered
into as of April 20, 2000, (the "EFFECTIVE DATE") by and between Corio Inc., a
Delaware corporation with offices at 959 Skyway Road, Suite 100, San Carlos,
California 94070 ("CORIO"), and the consulting services division of Ernst & Young LLP, as the same may hereafter be constituted as an entity separate from
Ernst & Young LLP, with offices at 750 Seventh Avenue, New York, New York 10019
("EYC").
BACKGROUND
A. Corio is engaged in the business of sublicensing and hosting
proprietary computer software products;
B. EYC is engaged in the business of providing implementation and
consulting solutions and services;
C. EYC is a division of Ernst & Young LLP ("EY") which is engaged in the
business of providing tax, audit and consulting solutions and services;
D. The parties believe that the joint marketing and sales of the services
and solutions of Corio and EYC would benefit such parties; and
E. The parties wish to enter into this Agreement for the purposes of
facilitating the provision of implementation services and solutions involving
Corio-licensed and hosted software products to current and future customers of
the parties.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties agree as follows:
1. DEFINITIONS.
The following terms, for all purposes of this Agreement, shall have the
meanings set forth below:
1.1 "ASP HOSTING SERVICES" means the execution and management of,
and providing certain levels of support (i.e., help desk) for, software
applications on behalf of third party customers over the Internet, via a
dedicated telecommunications link, or other similar broadband offering.
1.2 "CONFIDENTIAL INFORMATION" means information or data in any
form or media 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 other similar information marked confidential or
identified as confidential if disclosed orally.
2
1.3 "CORIO ASP HOSTING SERVICES" has the meaning set forth in
Section 4.1(b).
1.4 "CORIO HOSTING IMPLEMENTATION SERVICES" means the services
provided by Corio to a Customer that properly prepares the Customer and the
Customer's requested Products, so the Customer can utilize those Products on a
hosted basis.
1.5 "CORIO METHODOLOGY" means the processes and practices required
by Corio to properly implement and utilize the Products on a hosted basis some
of which may be proprietary, as set forth in Section 5.4 below.
1.6 "CORIO FOCUS" means a dedicated group of EYC personnel
allocated to: (i) facilitate EYC referrals of Corio Services and coordination
between Corio and EYC, (ii) develop marketing and account strategies to increase
referrals of Corio Services, and (iii) provide implementation consulting
services for Corio Services.
1.7 "CORIO SERVICES" means (i) Corio ASP Hosting Services (as
defined in Section 4.1(b); and (ii) the Corio Technical Support Services (as
defined in Section 1.8 below). The hosting and support services that comprise
the Corio Services offered to future Customers may be changed or abandoned
(subject to ongoing contractual relationships with third parties) or added to by
Corio, in its sole discretion upon 30 days' prior written notice to EYC;
provided, however, Corio shall not add any services that are set forth on
EXHIBIT G without EYC's prior written consent.
1.8 "CORIO TECHNICAL SUPPORT SERVICES" means the following types of
services offered by Corio to its customers: (i) network management and
connectivity; (ii) monitoring; (iii) back-up connection; (iv) data center and
application management and administration; (v) managing interfaces: file
transfers from/to systems; (vi) rolling out Product patches and updates; (vii)
performing back-up and recovery; (viii) performance tuning, measurement and
reporting; (ix) storage and security and (x) customer support.
1.9 "CUSTOMER" means a third-party customer of Corio that obtains
under sublicense the right to use all or any of the Products and also obtains
EYC Services as part of the Value Added Solution, provided such Customer has no
right to further distribute or sublicense such Products or EYC Services.
1.10 "DERIVATIVE WORK(s)" means a revision, modification,
translation, abridgment, condensation or expansion of a Product or Product
Documentation or any form in which a Product or Product Documentation may be
recast, transformed, or adapted, which, if prepared without the consent of Corio
or its licensors, would be a copyright infringement.
1.11 "EYC METHODOLOGY" means the processes and practices required
by EYC to properly implement the Value Added Solution some of which may be
proprietary, as set forth in Section 5.4 below.
1.12 "EYC SERVICES" means those products and services listed in
EXHIBIT B. EYC Services may be changed, abandoned (subject to ongoing
contractual relationships with
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third parties), or added by EYC, in its sole discretion, upon 30 days'
prior written notice to Corio.
1.13 "HIGH GROWTH MIDDLE MARKET (HGMM )" means potential Customers
in the Territory that have less than One Billion Dollars (U.S. $1,000,000,000)
of annual net revenues.
1.14 "MARKS" has the meaning set forth in Section 9.1 below.
1.15 "PARTY" means Corio or EYC (but not EY); "PARTIES" means Corio
and EYC (but not EY).
1.16 "PREFERRED ASP PARTNER" has the meaning set forth in Section
4.1 below.
1.17 "PRODUCT DOCUMENTATION" means standard user manuals, reference
manuals and/or installation guides, or portions thereof, which a third party
software vendor provides with the Products either in hard copy or electronic
copy, as updated by that vendor from time to time.
1.18 "PRODUCTS" means the computer executable version (but not the
source code version) of a third party software vendor's proprietary software
programs set forth in EXHIBIT A (hereinafter references to Exhibit A shall
include collectively all sequentially numbered Exhibits- A (i.e., A-1, A-2, and
A-3)) attached hereto and such additional products as may be added to EXHIBIT A
pursuant to Section 4.1(b) or otherwise by Corio, in its sole discretion upon 30
days' prior written notice to EYC, but subject to ongoing contractual
relationships with third parties; provided, however, at no time may Corio add to
EXHIBIT A any of the third party applications set forth on EXHIBIT G.
1.19 "RULES" means the Corio-EYC Rules of Engagement that describe
the framework and procedures by which EYC will provide the Value Added Solution,
which is attached hereto as EXHIBIT E, which may be amended from time to time by
the parties.
1.20 "SOLUTION" of a party means the Corio Services, or the EYC
Services, as the context requires.
1.21 "TEMPLATE" means an application software specific model
industrialized to accelerate and/or ease the installation of the Products,
including without limitation, industry, reference, business and/or configuration
models.
1.22 "TERRITORY" means the geographic areas of North and South
America.
1.23 "VALUE ADDED SOLUTION" means the services and/or products
offered by EYC and set forth on EXHIBIT B that, when the Products are
implemented therewith, add substantial value to the Products such that the
primary reason for a Customer to acquire the Value Added Solution is other than
the right to receive a sublicense to use the Products in connection with the
Corio Services. Additional Value Added Solutions that meet the foregoing
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requirements may be added to EXHIBIT B upon written agreement of the parties.
The parties agree to refine and modify the scope of the Value Added Solution
during the term of this Agreement, including, without limitation, the products,
services and support each party shall provide hereunder.
2. SCOPE. This Agreement serves to formalize the arrangement between the
parties with respect to the designation of Corio as EYC's exclusive provider of
Corio ASP Hosting Services (as defined in Section 4.1(b)) for HGMM as well as
the appointment of EYC as a non-exclusive referral representative of the
Solution to current and future customers of EYC. To this end, this Agreement
addresses the terms and conditions under which EYC shall be appointed as Corio's
referral representative as well as the terms and conditions for the joint
marketing and promotion of the Solutions, the provision of the Value Added
Solution and terms and conditions for other areas in which the parties may
desire to work together. Corio understands and agrees that the arrangement set
forth in this Agreement applies only to EYC and does not apply to EY as a whole
or to any of the other divisions, subsidiaries or affiliates of EY.
3. APPOINTMENT AND LICENSES.
3.1 APPOINTMENT. Subject to the terms and conditions herein, Corio
hereby appoints EYC as Corio's non-exclusive (i) referral representative for the
Corio Services, and (ii) systems integrator to market, promote and provide the
Value Added Solution for the Products, and EYC hereby accepts such appointment.
EYC's sole authority will be to solicit orders for the Corio Services and
contract with that third party for the provision of EYC Services in accordance
with the terms of this Agreement.
3.2 DOCUMENTATION LICENSE. Subject to the terms and conditions of
this Agreement and where permitted by Corio licensors, Corio hereby grants, and
EYC hereby accepts, a nonexclusive and nontransferable right and license to
integrate the Product Documentation or any portion thereof into the
documentation for the Value Added Solution for purposes of facilitating
efficient implementation and to distribute copies of such integrated versions
prepared by EYC to customers in conjunction with the permitted use of the
Products as set forth in this Agreement.
3.3 LICENSE RESTRICTIONS. EYC agrees not to (and agrees not to
knowingly permit or authorize anyone else to): (i) use, copy or distribute the
Products provided to it by Corio hereunder (except as expressly permitted
herein), (ii) make the Products provided to it by Corio hereunder available to
unauthorized third parties, (iii) use the Products provided to it by Corio
hereunder for the processing of internal administrative data or customer data,
(iv) rent, electronically distribute or timeshare the Products provided to it by
Corio hereunder, (v) market the Products provided to it by Corio hereunder by
interactive cable or remote processing services, (vi) create any Derivative
Works or otherwise modify or translate the Products or Product Documentation
provided to it by Corio hereunder (except for implementation with the Value
Added Solution as contemplated by this Section; provided that EYC understands
that no source code rights are granted herein; and except as the parties may
expressly agree in a separate written agreement entered into between the parties
after the Effective Date), or (vii) reverse
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engineer, disassemble or otherwise determine or attempt to determine source code
from the Products provided to it by Corio hereunder. For avoidance of doubt,
nothing in this Section 3.3 shall be construed to restrict EYC's use or resale
of Products obtained from the licensor or other third parties.
3.4 RESERVATION OF RIGHTS. Subject to its exclusivity obligations
set forth in Section 4 below, each of Corio and EYC reserves the right to
license, support, install and service its products, including, without
limitation, the Products and Value Added Solution (as applicable), in the
Territory, either directly to Customers and other third parties or indirectly
through other systems integrators, resellers, distributors and other third
parties or distribution channels. Further, each party reserves the right to (i)
solicit orders directly from and sell directly to any third party, including
Customers, and all distributors or other intermediaries, and (ii) appoint other
sales representatives on a non-exclusive basis to sell its Solution.
4. EXCLUSIVITY.
4.1 By EYC.
(a) For two (2) years following the Effective Date of this
Agreement (the "EXCLUSIVITY TERM"), EYC shall designate and use Corio as its
exclusive provider of Corio ASP Hosting Services for HGMM in the Territory. EYC
agrees that EYC is included in this exclusivity restriction such that EYC itself
shall not offer Corio ASP Hosting Services to HGMM in the Territory.
(b) EYC further agrees that, during the Exclusivity Term, EYC shall
not enter into any agreement with any third party to provide Corio ASP Hosting
Services for HGMM in the Territory or provide referrals to any third party for
Corio ASP Hosting Services for HGMM in the Territory, except as otherwise
permitted herein. For purposes of this exclusivity provision, "CORIO ASP HOSTING
SERVICES" means ASP Hosting Services for the Products listed in EXHIBIT A, Corio
Technical Support Services related to such Products as well as those ASP Hosting
Services for other third party vendor proprietary software programs ("OTHER
PRODUCTS") that Corio intends to offer within six (6) months after receipt by
Corio of a request by EYC for ASP Hosting Services for such Other Products;
provided, Corio provides EYC with a letter of intent within five (5) business
days of receipt of EYC's request stating that it intends to and will be able to
provide such ASP Hosting Services for such Other Products within six (6) months.
For purposes of clarification, if EYC requests any Other Product, or refers a
Customer to Corio and that Customer requires ASP Hosting Services for any Other
Product, if, within five (5) days, Corio elects to state its intent to offer the
ASP Hosting Services for such Other Product within six (6) months of such notice
by EYC, such ASP Hosting Service will be deemed included as a "Corio ASP Hosting
Service" and the Other Product will be added to EXHIBIT A-1 as a Product.
However, if (i) Corio does not state its intent to offer the ASP Hosting Service
for such Other Product within six (6) months in accordance with the immediately
preceding sentence or (ii) Corio does state its intent to offer the ASP Hosting
Service for such Other Product within six (6) months and does not offer such ASP
Hosting Services within the six (6) month period, such ASP Hosting Service will
not be deemed "Corio ASP Hosting Services" and EYC may provide or
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enter into any agreement with a third party to provide such ASP Hosting Services
for such Other Product for the remaining term of this Agreement. With respect to
Other Products for which Corio does not currently offer but, in accordance with
this Section 4.1(b), Corio states its intention to offer ASP Hosting Services
pursuant to this Section 4.1(b), EYC may respond to market conditions through
any means necessary until such time as Corio provides ASP Hosting Services for
such Other Product. EYC and Corio may also mutually agree to identify other
proprietary software programs and specific services for specific market
segments, and territories that Corio is not currently offering and exclude these
proprietary software programs and specific services from "Corio ASP Hosting
Services" and EYC may respond to market conditions through any means necessary
to provide these specific services for specific market segments in specific
territories during the remaining term of this Agreement.
(c) Corio hereby acknowledges and agrees that the third party
vendor proprietary software programs listed on EXHIBIT G and any and all related
services, including, without limitation, ASP Hosting Services (the "EXCLUDED
PRODUCTS AND SERVICES"), shall not, without the prior written consent of EYC, in
its sole discretion, be subject to the exclusivity or Preferred ASP Partner
provisions of this Agreement and EYC shall have no referral obligations with
respect to the Excluded Products and Services.
(d) Corio acknowledges that as of the Effective Date, EYC has
certain agreements in place with third parties for ASP Hosting Services. Corio
agrees that EYC shall not be deemed to be in breach of the terms of this Section
4.1 with respect to those agreements listed on EXHIBIT H hereto.
(e) During the term of this Agreement, following the conclusion of
the Exclusivity Term, EYC agrees to designate Corio as its "Preferred ASP
Partner" for the remainder of the term of this Agreement. As a "PREFERRED ASP
PARTNER," EYC agrees that, so long as Corio has performed at or above the
service level agreements with its Customers and provides market-competitive
rates to EYC customers, (i) the majority of EYC's leads for Corio ASP Hosting
Services that Corio offers in the Territory for HGMM shall be passed through to
Corio and (ii) EYC shall refer to Corio as a "Preferred ASP Partner" in all
public announcements regarding the relationship established by this Agreement.
(f) The obligations of EYC under this Section 4 are subject to the
other terms and conditions herein, including, without limitation, Section 4.2(b)
4.2 By Corio. Corio hereby agrees that, during the Exclusivity Term:
(a) It shall ensure that any Customer referred to Corio by EYC is
referred back to EYC for the provision of the Value Added Solution; and
(b) If, for any reason, (i) it is unable to meet the requirements
of a potential Customer referred to Corio by EYC or (ii) if the potential
Customer is unwilling to engage Corio to provide the ASP Hosting Services the
potential Customer requires or is unwilling to wait until such services are
available from Corio, then Corio shall so notify EYC with respect to that
potential Customer within four (4) business days thereof. In either case, EYC
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may either provide the requested ASP Hosting Services to that customer or may
refer that particular customer to an alternative provider. The parties agree
that these determinations shall be handled on a case by case basis; and
(c) It shall not enter into an agreement substantially similar to
this Agreement with KPMG, Deloitte and Touche, Arthur Andersen, Andersen
Consulting or PricewaterhouseCoopers or their respective successors; provided,
however, notwithstanding the foregoing, Corio shall be free to utilize such and
other consulting partners for implementation and consulting services for
potential and existing Corio customers that are not referred to Corio by EYC.
(d) For twenty-five percent (25%) of the potential customers
generated by EYC hereunder that request software applications or combinations of
applications during a calendar quarter which do not include an application on
EXHIBIT A-1, Corio will either (i) offer that referral to EYT (as defined in
Section 6.3(a) below), so that EYT may contract directly with that referral for
ASP Hosting Services or (ii) offer EYT the opportunity to act as Corio's
subcontractor in providing the ASP Hosting Services to that referral. For
purposes of clarification, if a customer requests an application that is not on
any of EXHIBIT A, EXHIBIT G or EXHIBIT I, EYC shall provide Corio with the
referral in accordance with Section 4.1 above.
(e) For potential customers that request a combination of EXHIBIT
A-3 and EXHIBIT I applications only, EYC may offer all such referrals directly
to EYT; however, such referrals from EYC to EYT shall count as EYC referrals to
Corio and Corio referrals to EYT solely for the purposes of calculating Corio's
obligation to offer EYT twenty-five percent (25%) of the potential customers
generated by EYC and referred to Corio in connection with this section. Such
referrals shall be referred to EYT as "DIRECT EYT REFERRALS." In the case of
such Direct EYT Referrals, EYC shall inform Corio of the referral but not the
identity of the customer that is being referred. If Corio reasonably believes
that a disproportionate number of Direct EYT Referrals are being provided by EYC
to EYT, upon notification by Corio to EYC of such belief, the parties shall
confer and, upon inquiry by Corio, EYC shall inform Corio with respect to each
such Direct EYT Referral of the efforts, if any, that were made by EYC to
present Corio ASP Hosting Services or, if applicable, the reasons why it was
inappropriate to present Corio ASP Hosting Services to the customer. With
respect to Direct EYT Referrals where EYC did not present Corio ASP Hosting
Services to the customer and fails to provide Corio with a bona fide reason why
it did not present Corio ASP Hosting Services to that customer, EYC shall, upon
Corio's request, provide Corio with the name and address of the customer that is
the subject to such EYT Direct Referral and Corio may contact that customer for
the purpose of attempting to establish a business relationship, but shall not
identify itself as having been referred by EYC.
(f) With respect to the referral obligations under Section 4.2(d)
above: (i) the selection of EYC referrals to offer to EYT shall be made by Corio
using bona fide business objectives and shall not be based solely on the amount
of revenue to be generated by the potential customer; (ii) Corio's obligation in
Section 4.2(d) above is contingent upon execution of an agreement by EYT and
Corio on the applicable terms and conditions; and (iii) referrals to EYT in
connection with Section 4.2(d) above may exceed 25%. Corio agrees it shall use
good
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faith negotiating such agreement and that such agreement shall not unreasonably
deviate from generally accepted industry standards.
4.3 BINDING EFFECT. The parties expressly agree that the
exclusivity provisions contained in this Section 4 shall be binding on any
successor or successors to the businesses of EYC or Corio.
4.4 NO FORCE OR EFFECT. The parties understand and agree that if
Corio shall not have completed its initial underwritten offering of securities
to the public (a "QUALIFIED IPO") by December 31, 2000, then at any time during
the Exclusivity Term, EYC may elect, by written notice to Corio, to terminate
the continuing exclusivity and Preferred ASP Partner obligations of EYC pursuant
to Section 4.1 above. If EYC elects to terminate such provisions, (i) EYC
acknowledges that Corio shall thereupon have the right to repurchase a portion
of the shares otherwise issuable under the warrants (or, if the warrants shall
not have been exercised, Corio shall have the right to cancel a portion of the
warrants), all as provided in the Warrant Rights Agreement and the Investors
Rights Agreement between the parties and of even date herewith, and (ii) any
such failure by Corio to so close a Qualified IPO shall not be deemed a breach
of this Agreement, and (iii) Corio's obligations under Section 4.2(d) shall
terminate and (iv) other than the continuing exclusivity and Preferred ASP
Partner obligations of EYC pursuant to Section 4.1 hereof, this Agreement will
continue in full force and effect.
4.5 REMEDY. Notwithstanding the foregoing, if a party breaches its
obligations under either Section 4.1 or 4.2 above, as applicable, the
non-breaching party shall give notice of such breach to the breaching party and
if the breaching party has not cured such breach within thirty (30) days of
receipt of such notice, in addition to any other remedies available to the
non-breaching party hereunder, the exclusivity obligations of the non-breaching
party set forth in this Section 4 shall be deemed terminated and, in the event
EYC is the non-breaching party, the status of Corio as a Preferred ASP Partner,
and the related promotional and referral obligations of EYC, shall be deemed
terminated and if Corio is the non-breaching party, Corio shall no longer be
obligated to offer the additional discounts on Corio Services to referred
customers as set forth on EXHIBIT C, provided that Corio shall be obligated to
continue such discounts for Customer agreements then in effect.
4.6 LEADS. EYC and Corio shall work together to develop the
necessary criteria and processes for jointly reviewing and determining if a
prospect is a potential customer of the Value Added Solution and/or the
Products. During the Exclusivity Term, upon becoming aware of a potential
customer of the Products, EYC shall promptly notify Corio so that Corio may
begin qualification of the sales opportunity and the parties may jointly scope
the Value Added Solution and the Corio Hosting Implementation Services needed by
that customer. The parties shall mutually agree upon a lead and sales generation
process applicable for qualifying and scoping such customers. During the term of
this Agreement following the Exclusivity Term, the parties shall apply such
procedures to leads that are referred pursuant to Section 4.1(d).
4.7 ACCOUNT MANAGEMENT. Account management generally refers to
having primary ownership for a customer relationship. Corio and EYC shall work
together to determine
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the appropriate "account management" structure for a joint Corio-EYC account.
The structure of account management shall be influenced by the following: 1) the
party first identifying the opportunity, 2) the type of ongoing services to be
procured by the customer (e.g., ASP hosting, business process outsourcing,
services, etc.), and 3) the number of contracts signed by the customer for
Corio-EYC services (e.g., a single contract for all services vs. several
contracts for different services). The parties understand and agree that neither
party intends to exclude the other from having appropriate relationships with
joint customers. Therefore, unless otherwise agreed by the parties, (i) when EYC
refers a potential customer to Corio, EYC shall be assumed to be the primary
"account manager" to that potential customer, such that EYC shall be responsible
for the overall management of each potential customer; and (ii) when Corio
refers a potential customer to EYC, Corio shall be assumed to be the primary
account manager to that potential customer, such that Corio shall be responsible
for the overall management of each potential customer. Upon mutual consent of
the parties, either party may elect to appoint the other party as the primary
account manager. The parties understand and agree that in all cases Corio shall
have a direct contractual relationship with the Customer with respect to the
Corio Hosting Implementation Services and the Corio Services. In all contacts
with any potential customers, both EYC and Corio shall represent each other in a
positive manner. EYC and Corio agree that they shall not seek the preferential
favor of any potential customer or make any prejudicial comments that would
detrimentally effect the other party's relationship with any potential customer.
5. VALUE ADDED SOLUTION.
5.1 CORIO FOCUS. EYC agrees to develop a business group dedicated
to supporting the Corio ASP Hosting Services and whose purpose is to market and
promote Corio Services to EYC customers, facilitate referrals from EYC,
coordinate EYC and Corio activities, and provide implementation services offered
by EYC as part of the Value Added Solution.
5.2 SERVICES AND RULES OF ENGAGEMENT. This Section 5.2 sets forth
the terms and conditions under which Corio shall engage EYC to perform
implementation services, and does not cover any joint development activities
that the parties may choose to undertake pursuant to a separate written
agreement entered into after the Effective Date. EYC agrees to coordinate with
the Corio Hosting Implementation Services team in connection with the provision
of the Value Added Solution to any EYC referral that becomes a Customer.
Further, EYC agrees to use commercially reasonable efforts to perform or cause
to be performed for Corio the EYC Services described in the Rules. The Rules
shall, when executed by EYC and Corio, be attached to this Agreement as EXHIBIT
E and be subject to the terms and conditions set forth herein. EYC and Corio
shall develop appropriate procedures to facilitate timely and appropriate
coordination of efforts. Such appropriate procedures shall include, among other
things, detailed task level project plans (including appropriate milestones and
deliverables) accepted in writing by the parties, project management approach,
staffing, escalation policy and procedure, project status tracking and
reporting, and acceptance and testing criteria. Corio shall provide such
information and assistance as is reasonably required to permit EYC to complete
the Value Added Solution in accordance with the Rules.
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5.3 TEMPLATES. During the term of this Agreement the parties may,
independently or jointly, develop Templates to be used in conjunction with the
Value Added Solution. At any such time, either Corio or EYC may request the
input or assistance of the other such party in developing Templates. Each such
party shall own all right, title, and interest in and to the Templates that it
creates. Without limiting the generality of the foregoing, each of Corio or EYC
shall grant the other party a non-exclusive, non-transferable, perpetual right
and license (with no right to sublicense) to freely use the Templates, whether
developed independently or jointly, in connection with that party's business.
Further, the parties shall attempt to determine in advance which Templates will
be jointly developed (the "JOINT TEMPLATES"), provided, however, if, by
agreement of the parties, one party contributes a significant amount of
assistance or input to a Template primarily created by the other party pursuant
to this Agreement, that Template shall be deemed a Joint Template. The Joint
Templates shall be jointly owned by the parties, each of whom may exploit such
templates without any duty to account to the other. Authorship, inventorship,
and other indicia of which such party developed the Templates shall be
determined in accordance with United States intellectual property laws in effect
at the time of such development. In the event any Joint Template is patentable,
the parties shall each pay one half of the expenses of seeking and maintaining
patent protection, provided that either such party may elect at its own expense
to seek and maintain patent protection if the other party declines to pay its
share of the expenses. The parties may each license third parties to use Joint
Templates, applications filed thereon, and patents issuing therefore without
accounting to the other.
5.4 METHODOLOGY.
(a) Methodology. All implementation services provided by EYC to
Customers as part of the Value Added Solution shall be in accordance with the
Corio Methodology and/or EYC Methodology, as mutually determined by Corio and
EYC.
(b) Modifications to Methodology. During the term of this
Agreement, EYC and Corio may work together to modify the Corio Methodology with
best practices from the EYC Methodology and the EYC Methodology with the best
practices from the Corio Methodology. For purposes of this Section 5.4, the term
"Modifications" means all inventions, improvements, works of authorship and
other innovations of any kind, including, without limitation, any improvements
or modifications to a party's Methodology or Rules, that one party, or personnel
working for or at the request of that party, may make, conceive, develop or
reduce to practice, alone or jointly with others, in the course of this
Agreement, whether or not they are eligible for patent, copyright, trademark,
trade secret or other legal protection. The parties may jointly "brand" the
Modifications to the Corio Methodology with the trademarks of both parties
(collectively, the "CORIO MODIFIED METHODOLOGY"). The parties specifically agree
that the portion of the Corio Modified Methodology that is confidential or
otherwise not generally known in, or used by, the industry, as indicated by
Corio, shall not be disclosed to third parties without the mutual consent of
both EYC and Corio, which consent shall not be unreasonably withheld or delayed,
provided that such authorized third party enters into an agreement that protects
the confidentiality of the Corio Modified Methodology. Further, the parties may
jointly "brand" the Modifications to the EYC Methodology with the trademarks of
both parties (collectively, the "EYC MODIFIED METHODOLOGY"). The parties
specifically agree that the portion of the EYC
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Modified Methodology that is confidential or otherwise not generally known in,
or used by, the industry, as indicated by EYC, shall not be disclosed to third
parties without the mutual consent of both EYC and Corio, which consent shall be
not be unreasonably withheld or delayed, provided that such authorized third
party enters into an agreement that protects the confidentiality of the EYC
Modified Methodology. Except as set forth in Section 5.4(c), nothing in this
Agreement is intended, nor shall grant EYC ownership interests in and to the
Corio Methodology or the Corio Modified Methodology, whether jointly branded or
otherwise and EYC shall not use the Corio Methodology for the benefit of third
parties. Except as set forth in Section 5.4(c), nothing in this Agreement is
intended, nor shall grant Corio ownership interests in and to the EYC
Methodology or the EYC Modified Methodology, whether jointly branded or
otherwise and Corio shall not use the EYC Methodology for the benefit of third
parties.
(c) Ownership. The terms of this Section 5.4(c) shall apply unless
the parties expressly agree otherwise in the Rules that references this Section
5.4(c). EYC agrees that all Modifications as they relate to the Corio
Methodology and Corio Modified Methodology shall be the property of Corio
(subject to EYC's underlying rights in and to any EYC-Created Modification) and
EYC hereby assigns all of its rights in the Corio Methodology and Corio Modified
Methodology (except with respect to any EYC Marks or any EYC-Created
Modification) and in all related patents, patent applications, copyrights, mask
work rights, trademarks, trade secrets, rights of priority and other proprietary
rights to Corio. Notwithstanding the foregoing, any Modifications created by EYC
prior to or during the term of this Agreement which have applicability beyond
the Corio Methodology ("EYC-Created Modifications") shall be owned by EYC.
Corio, in its sole discretion, shall have the unrestricted right to license any
Modifications to the Corio Methodology (including EYC-Created Modifications),
and/or incorporate any Modifications to the Corio Methodology into the Corio
Methodology or Corio Modified Methodology, for use by other licensees or
customers of Corio. Without limiting the generality of the foregoing, Corio
shall grant EYC a non-exclusive, non-transferable right and license (with no
right to sublicense) to use the Corio Modified Methodology solely in connection
with EYC's provision of the Value Added Solution to Customers. Corio agrees that
all Modifications as they relate to the EYC Methodology and EYC Modified
Methodology shall be the property of EYC (subject to Corio's underlying rights
in and to any Corio-Created Modification) and Corio hereby assigns all of its
rights in the EYC Methodology and EYC Modified Methodology (except with respect
to any Corio Marks or any Corio-Created Modification) and in all related
patents, patent applications, copyrights, mask work rights, trademarks, trade
secrets, rights of priority and other proprietary rights to EYC. Notwithstanding
the foregoing, any Modifications created by Corio prior to, or during the term
of this Agreement which have applicability beyond the EYC Methodology
("Corio-Created Modifications") shall be owned by Corio. EYC, in its sole
discretion, shall have the unrestricted right to license any Modifications to
the EYC Methodology (including Corio-Created Modifications), and/or incorporate
any Modifications to the EYC Methodology into the EYC Methodology or EYC
Modified Methodology, for use by other licensees or customers of EYC. Without
limiting the generality of the foregoing, EYC shall grant Corio a non-exclusive,
non-transferable right and license (with no right to sublicense) to use the EYC
Modified Methodology solely in connection with Corio's provision of the Corio
ASP Hosting Services to Customers.
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5.5 FURTHER ASSURANCES. Each party shall, and shall cause its
employees and agents to sign, execute and acknowledge or cause to be signed,
executed and acknowledged without costs, but at the expense of the other party,
any and all documents and to perform any such acts as may be reasonably
requested by the other party for the purposes of perfecting any of the foregoing
assignments and obtaining, enforcing, and defending intellectual property rights
related thereto.
6. SALES, MARKETING, AND PROMOTIONAL ACTIVITIES.
6.1 CORIO FOCUS LEADERS. EYC shall appoint a dedicated employee in
the Territory where EYC and Corio are marketing and promoting the Value Added
Solution to act as the Territory Corio Focus leader ("FOCUS LEADER"). This Focus
Leader shall be responsible for managing and overseeing the success of sales,
scoping and Customer IMPLEMENTATION. The Focus Leader may appoint dedicated
employees in each region of the Territory to act as the regional Focus Leader.
6.2 JOINT STRATEGIC ACTIVITIES.
(a) Press Releases. Promptly following the Effective Date, the
parties shall issue a mutually agreed joint press release regarding this
Agreement and the relationship contemplated herein. Further, each party may use
the name of the other party in press releases, product brochures and financial
reports indicating the relationships contemplated by this Agreement. Any use
beyond the foregoing shall be subject to the prior written approval of the other
party. Public relations and press releases regarding the Products shall be the
sole and exclusive responsibility of Corio.
(b) Joint Marketing Plan. The parties shall engage in the joint
marketing and promotion activities described in EXHIBIT D, which shall include
without limitation, participation by relevant members of all parties during
Corio's public presentations during the IPO process at Corio's discretion ("ROAD
SHOW"). Each party agrees to provide the other with appropriate sales tools
(e.g., slide presentations, marketing collateral, etc.) to better enable each
firms sales force to sell the Value Added Solution and Corio Services. Each
party agrees to designate a "RELATIONSHIP MANAGER" who shall be responsible for
the overall management and support of the alliance described in this Agreement.
The Relationship Managers shall be those parties set forth on EXHIBIT D. The
Relationship Managers shall meet, either in person or by telephone, at mutually
agreeable times and no less than once per quarter, to review and coordinate
sales efforts, review customer response, and address other topics related to the
successful marketing and distribution of the Solutions.
(c) Technical Support. The parties shall meet, either in person, or
by teleconference, no less than a calendar quarterly basis (or otherwise as
reasonably requested by a party) to ensure that each party receives adequate and
necessary technical support for its sales, marketing and promotional activities.
(d) Additional Services. During the term of this Agreement, the
parties agree to discuss in good faith the possibility of marketing, selling and
implementing other
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enterprise application solutions to HGMM that may become available in the
future, in addition to the initial Value Added Solution.
(e) Executive Meetings. The parties shall participate in executive
review meetings as mutually agreed upon by the parties.
(f) Facilities. Each party shall provide itself with, and be solely
responsible for, (i) such facilities, employees, and business organization, and
(ii) such permits, licenses, and other forms of clearance from governmental or
regulatory agencies, if any, as it deems necessary for the conduct of its
business operations in accordance with this Agreement.
(g) Joint Development. From time to time the parties may present to
each other possible joint development activities for product solutions to
customer requirements, and the parties may enter into a separate agreement for
such activities pursuant to such terms and conditions as they shall agree.
6.3 EYC OBLIGATIONS. During the term of this Agreement, EYC shall:
(a) introduce Corio to personnel at E&Y Technologies, Inc. ("EYT")
so that Corio can attempt to negotiate agreements with EYT that (i) will provide
Corio with access to the catalog of software packages and offerings to which EYT
has reseller rights, including, but not limited to, the products of Oracle
Corporation, JD Edwards, Baan, and I2 and (ii) will detail the subcontracting
relationship contemplated under Section 4.2(e) above. The parties understand,
however, that any such agreements must be separately negotiated between Corio
and EYT and that EYC can offer no assurances that EYT will be interested in
entering into such agreements;
(b) maintain staff and facilities which in the reasonable judgment
of Corio are capable of achieving sales goals jointly agreed upon by Corio and
EYC, which will be set forth in the Marketing Plan. Every six (6) months after
the Effective Date, the sales goals for the preceding six (6) months will be
reviewed by the parties and the parties will mutually agree on the sales goals
for the following six (6) month period;
(c) at its own cost and expense, exert commercially reasonable
efforts to promote and otherwise create a market for the Value Added Solution
for HGMM within the Territory, which may include, without limitation, sales
calls, direct mail solicitation, advertising and participation in trade shows
and exhibits and the purchase and display of Product demonstration units. All
marketing and promotional activities and materials used by EYC with respect to
Products and the Value Added Solution, other than those provided by Corio, that
bear Corio Marks shall conform to Corio's written Mark guidelines and EYC shall
provide samples of any such materials to Corio upon Corio's request, in order to
protect Corio's rights in its Marks. EYC shall avoid deceptive, misleading,
illegal and unethical practices in connection with marketing and promotion of
the Value Added Solution;
(d) make no representations, guarantees or warranties (i) on behalf
of Corio or any of its suppliers or (ii) regarding the performance or functional
characteristics of the Products beyond those stated in Corio's then current
customer hosting and subscription
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agreements. EYC shall use commercially reasonable efforts to protect Corio's and
its licensors' copyrights, shall notify Corio of any breach of a material
obligation under any such agreement, and will cooperate with Corio in any legal
action to prevent or stop unauthorized use, reproduction or distribution of the
Products;
(e) use all commercially reasonable efforts to either attain, or
train consultants with the skills necessary to meet EYC's obligations, as Corio
adds new services to its offering of Corio ASP Hosting Services, and provided
EYC does not have consultants skilled or trained to perform the Value Added
Solution associated with these new services. If after a reasonable amount of
time EYC still does not have the necessary trained consultants, Corio may seek
other suppliers for the Value Added Solution services and such action shall not
be deemed a breach of Corio's obligations under Section 4.2 above;
(f) keep and maintain accurate books and records in connection with
EYC's activities under this Agreement and as reasonably required for
verification of amounts to be paid hereunder;
(g) comply with all laws, regulations and other legal requirements
that apply to this Agreement, including tax and foreign exchange legislation,
and laws, rules and regulations relating to the export of technical data,
including, without limitation, any regulations of the United States Office of
Export Administration and other applicable government agencies. EYC will provide
Corio with the assurances and official documents (to the extent that such
documents are in EYC's files) that Corio periodically may request to verify
EYC's compliance with this subsection;
(h) notify Corio promptly in writing of (i) any claim or proceeding
involving the Products that comes to its attention, and (ii) any material change
in control of EYC;
(i) introduce Corio to EY personnel so that Corio can attempt to
negotiate and execute a complementary operating agreement between EY and Corio;
provided, however, that EYC can offer no assurances that EY will be interested
in entering into such an agreement;
(j) develop the capabilities to market and sell Corio Services and
EYC Services and implement the Value Added Solution effectively with Corio
Hosting Implementation Services, including, without limitation, having the EYC
Corio Focus Group receive training from Corio, having EYC and EYC personnel
attend any training provided by the EYC Corio Focus Group or by Corio, learning
how to use the sales tools that Corio provides and having EYC engagement
managers attend training to learn the requirements Corio has to host effectively
the Corio Services.
6.4 CORIO OBLIGATIONS. During the term of this Agreement, Corio shall:
(a) use commercially reasonable efforts to promptly pursue leads
generated by EYC for Corio ASP Hosting Services and to provide such Corio ASP
Hosting Services to all EYC customers;
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(b) conduct training sessions from time to time at its California
location, or at another location with EYC paying for reasonable travel, lodging
and meal expenses, for the Products in a manner sufficient for EYC to satisfy
its implementation and Solution obligations under this Agreement;
(c) provide support to EYC as set forth in EXHIBIT F attached
hereto. Corio and EYC agree to work together to ensure the quality of the Value
Added Solution, if applicable. The foregoing does not constitute a warranty from
Corio to EYC or Customers;
(d) market, sell and manage the Corio Services on a
post-implementation basis. These management responsibilities include, without
limitation, hardware/software/network provisioning, application support,
database administration, hosting, upgrades, training, customer services and
other services related to the day to day management and support of the Products;
(e) keep and maintain accurate books and records in connection with
Corio's activities under this Agreement and as reasonably required for
verification of amounts to be paid hereunder;
(f) maintain reasonable staff and facilities capable of providing
the Corio Services based on the sales goals jointly agreed upon by Corio and
EYC, which will be set forth in the Marketing Plan. Every six (6) months after
the Effective Date, the sales goals for the preceding six (6) months will be
reviewed by the parties and the parties will mutually agree on the sales goals
for the following six (6) month period;
(g) at its own cost and expense, exert commercially reasonable
efforts to promote and otherwise create a market for the Corio Services for HGMM
within the Territory, which may include, without limitation, sales calls, direct
mail solicitation, advertising and participation in trade shows and exhibits and
the purchase and display of Product demonstration units. All marketing and
promotional activities and materials used by Corio with respect to Products and
the Value Added Solution, other than those provided by EYC, that bear EYC Marks
shall conform to EYC's written Mark guidelines and Corio shall provide samples
of any such materials to EYC upon EYC request, in order to protect EYC's rights
in its Marks. Corio shall avoid deceptive, misleading, illegal and unethical
practices in connection with marketing and promotion of Corio Services;
(h) comply with all laws, regulations and other legal requirements
that apply to this Agreement, including tax and foreign exchange legislation,
and laws, rules and regulations relating to the export of technical data,
including, without limitation, any regulations of the United States Office of
Export Administration and other applicable government agencies. Corio will
provide EYC with the assurances and official documents that EYC may periodically
may request to verify Corio's compliance with this subsection;
(i) notify EYC promptly in writing of any material change in
control of Corio;
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(j) assist EYC to develop the capabilities to market and sell Corio
Services and EYC Services and implement the Value Added Solution effectively
with Corio Hosting Implementation Services, including training the EYC Corio
Focus Group, assisting the EYC Corio Focus Group as they train EYC personnel,
providing sales tools, and providing training at market rates to EYC engagement
managers so they can learn the requirements Corio has to host effectively the
Corio Services; and
(k) make no representations, guarantees or warranties on behalf of
EYC or any of its suppliers. Corio shall use commercially reasonable efforts to
protect EYC's and its licensors' copyrights, shall notify EYC of any breach of a
material obligation under any such agreement, and will cooperate with EYC in any
legal action to prevent or stop unauthorized use, reproduction or distribution
of the Value Added Solution.
7. COMPENSATION AND INCENTIVES.
7.1 COMPENSATION. EYC's sole compensation for the performance of
its obligations under this Agreement with respect to Corio shall be the
provision of a discount to EYC's customers that enter into agreements with Corio
for the Corio Services, or some equivalent value, unless otherwise mutually
agreed. The discounts for such customers are set forth on EXHIBIT C. These
customer discounts shall be provided only as long as EYC or EYC personnel are
precluded from receiving direct payments from Corio.
7.2 INCENTIVES. EYC agrees that it shall, within forty-five (45)
days of the Effective Date, establish the internal organization and incentive
plans to provide significant incentives to the applicable EYC senior executives
to market and promote Corio's Services. The parties agree to mutually agree to
such plans and to attach such plans to this Agreement as sequentially numbered
attachments to EXHIBIT C when complete (i.e. C-1, C-2, C-3 etc.). EYC agrees
that these plans shall include, without limitation, EYC's establishment of
incentives for such executives so that the Corio preferred pricing will impact
compensation measurements, which in turn directly affects compensation of the
relevant executives. If and when such EYC executives are not precluded from
receiving direct payments, the incentive compensation plans for such executives
shall include the necessary provisions to permit Corio sales to directly affect
such compensation. EYC agrees that it shall not provide any such or similar
incentive arrangements or referrals for any other third party providing Corio
ASP Hosting Services during the term of this Agreement. As used herein, the term
"senior executives" means personnel who are currently EY partners or principals.
7.3 CUSTOMER PAYMENTS. Each party will be solely responsible for
entering into the appropriate agreements with a customer for provision of the
Corio Services or the Value Added Solution, as applicable and such party shall
also be solely responsible for billing and collecting any amounts payable by
such customer to either Corio or EYC, as applicable. Further, neither party
shall be obligated to share any such revenue received from a customer with
respect to its provision of the Solution, with the other party.
8. TERM AND TERMINATION
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8.1 TERM. The Agreement will commence in force and effect on the
Effective Date and continue for a period of seven (7) years and the exclusivity
set forth in Section 4 above shall continue in full force and effect for the
Exclusivity Term, unless terminated earlier in accordance with the terms of this
Section 8. The term of this Agreement may be renewed upon the mutual agreement
of the parties.
8.2 TERMINATION.
(a) Mutual Consent/Voluntary Termination. This Agreement may
be terminated at any time upon mutual consent of the parties, evidenced by a
written agreement signed by an authorized officer or representative of EYC and
by an officer of Corio.
(b) For Cause. If a party defaults in the performance of any
material provision of this Agreement, then the non-defaulting party may give
written notice to the defaulting party that if the default is not cured within
30 days the Agreement will be terminated. If the non-defaulting party gives such
notice and the default is not cured during the 30-day period, then the Agreement
shall automatically terminate at the end of that period.
(c) Bankruptcy. Any party shall have the right to terminate
this Agreement if either of the other parties ceases to do business in the
normal course, becomes or is declared insolvent or bankrupt, is the subject of
any proceeding relating to its liquidation or insolvency which is not dismissed
within ninety (90) calendar days, or makes an assignment for the benefit of its
creditors.
8.3 EFFECT ON RIGHTS. Termination of this Agreement by a party
shall not act as a waiver of any breach of this Agreement and shall not act as a
release of any party from any liability for breach of such party's obligations
under this Agreement. Except where otherwise specified, the rights and remedies
granted to a party under this Agreement are cumulative and in addition to, and
not in lieu of, any other rights or remedies which the party may possess at law
or in equity, including, without limitation, rights or remedies under applicable
patent, copyright, trade secrets, or proprietary rights laws, rules or
regulations.
8.4 EFFECT OF TERMINATION. Upon termination or expiration of this
Agreement, all licenses set forth and granted in Section 3 above shall
terminate. Within thirty (30) calendar days after any termination of this
Agreement, EYC shall either deliver to Corio or destroy all copies of the
Products and other Corio Confidential Information and any other materials
provided by Corio to EYC hereunder in its possession or under its control, and
shall furnish to Corio an affidavit signed by an officer of EYC certifying that,
to the best of its knowledge, such delivery or destruction has been fully
effected. Notwithstanding the foregoing, the obligations of EYC to return Corio
Confidential Information shall not be applicable to any Corio Confidential
Information that has been incorporated into EYC Modified Methodology. Within
thirty (30) calendar days after any termination of this Agreement, Corio shall
either deliver to EYC or destroy all copies of the EYC Confidential Information
and any other materials provided by EYC to Corio hereunder in its possession or
under its control, and shall furnish to EYC an affidavit signed by an officer of
Corio certifying that, to the best of its knowledge, such delivery or
destruction has been fully effected. Notwithstanding the foregoing, the
obligations of Corio to
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return EYC Confidential Information shall not be applicable to any EYC
Confidential Information that has been incorporated into Corio Modified
Methodology. Within thirty (30) calendar days of termination of this Agreement,
each party shall pay to the other party, as applicable, all sums then due and
owing. The covenants contained in this Agreement which, by their terms, require
or contemplate performance by the parties after the expiration or termination of
this Agreement shall be enforceable notwithstanding said expiration or
termination.
8.5 LIMITATION OF LIABILITY UPON TERMINATION. IT IS FURTHER AGREED
AND UNDERSTOOD THAT NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY IN THE EVENT OF
TERMINATION, EXPIRATION OR FAILURE TO AGREE UPON AN EXTENSION OF THE TERM OF
THIS AGREEMENT, FOR COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE
LOSS OF PROSPECTIVE PROFITS, OR ANTICIPATED SALES, OR ON ACCOUNT OF
EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS IN CONNECTION WITH THE BUSINESS
OR GOODWILL OF ANY OTHER PARTY.
8.6 RETURN OF MATERIALS. All Marks, patents, copyrights, designs,
drawings, formulas or other data, photographs, demonstrators, literature, and
sales aids of every kind shall remain the property of their respective owner.
Within 30 days after the termination of this Agreement, each party shall prepare
all such tangible items of the other party in its possession for shipment and
shall promptly deliver such material to the other party; provided, however, each
party may retain one (1) copy of any such Confidential Information for the sole
purpose of evidence of ownership and disclosure or for use in the case of a
dispute related to this Agreement. Effective upon the termination of this
Agreement, each party shall cease to use all trademarks, marks, and trade names
of the other parties.
8.7 SURVIVAL OF CERTAIN TERMS. The provisions of Sections 1, 3.3,
3.4, 5.3, 5.4(c), 5.5, 6.3(f), 6.4(e), 8.3, 8.4, 8.5, 8.6, 8.7,9.3, 9.4, 10, 12,
13, 14 and 15 will survive the expiration or termination of this Agreement for
any reason. All other rights and obligations of the parties will cease upon
termination of this Agreement.
9. TRADEMARK LICENSES
9.1 TRADEMARK LICENSE. Each party ("LICENSOR") grants to the other
party (each a "LICENSEE") a non-exclusive, non-transferable, royalty-free right
to display, the trademarks, trade names, service marks and logos adopted by
Licensor from time to time ("MARKS"), solely to perform Licensee's obligations
under this Agreement.
9.2 REVIEW. All representations of a Licensor's Marks that the
Licensee intends to use shall be exact copies of those used by Licensor or shall
first be submitted to Licensor for approval (which shall not be unreasonably
withheld) of design, color, quality, presentation and other details. Once
Licensor grants its approval, Licensor shall not unreasonably withdraw its
approval, and Licensee will not be obligated to seek further approval for
substantially similar uses of the Mark. In addition, Licensee shall fully comply
with all reasonable guidelines, if any, communicated by Licensor concerning the
use of Licensor's Marks and Licensee will not use the Marks in any manner that
is misleading.
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9.3 RESTRICTIONS. Licensee shall not alter or remove any of
Licensor's Marks affixed to any material provided by Licensor. Except as set
forth in this Section 9, nothing contained in this Agreement shall grant or
shall be deemed to grant to Licensee any right, title or interest in or to
Licensor's Marks. Each party hereby reserves all intellectual property rights
not explicitly granted in this Agreement
9.4 ASSIGNMENT OF GOODWILL. If Licensee, in the course of
performing its services hereunder, acquires any goodwill or reputation in any of
the Marks, all such goodwill or reputation will automatically vest in Licensor
when and as, on an on-going basis, such acquisition of goodwill or reputation
occurs, as well as at the expiration or termination of this Agreement, without
any separate payment or other consideration of any kind to Licensee, and
Licensee agrees to take all such actions necessary to effect such vesting.
Licensee shall not, nor shall assist others to contest the validity of any of
the Marks or Licensor's exclusive ownership of them. During the term of this
Agreement, Licensee shall not adopt, use, or register, whether as a corporate
name, trademark, service mark or other indication of origin, any of the Marks,
or any word or mark confusingly similar to them in any jurisdiction.
10. WARRANTIES.
10.1 PRODUCT WARRANTY. With respect to any Customer, any warranty
for the Solutions will run directly from the applicable party to such Customer.
Corio's licensors make no representations or warranties to EYC and neither Corio
nor its licensors makes any warranty to any Customer pursuant to this Agreement.
10.2 LIMITED WARRANTY. EYC hereby represents and warrants to Corio
that the Value Added Solution will be performed in a good and workmanlike manner
by EYC employees and, that such services shall materially conform to the Corio
hosting requirements set forth in Exhibit E. Corio hereby represents and
warrants to EYC that the Corio Services and the Corio Hosting Implementation
Services will be performed in a good and workmanlike manner.
10.3 DISCLAIMER. THE PARTIES AGREE THAT EXCEPT FOR THE EXPRESS
WARRANTIES CONTAINED HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ANY OTHER WARRANTY,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THE PARTIES EXPRESSLY
DISCLAIM THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
11. LIMITATION ON LIABILITY. EACH PARTY'S AGGREGATE LIABILITY
ARISING OUT OF THIS AGREEMENT OR THE SALE, LICENSE OR OTHER DISTRIBUTION OF ITS
SOLUTION WILL BE LIMITED TO ONE MILLION DOLLARS ($1,000,000). IN NO EVENT WILL
ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR LOST PROFITS, LOSS OF BUSINESS, OR
ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS. IN NO EVENT WILL ANY PARTY BE
LIABLE TO ANY OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL,
PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED ON ANY THEORY OF
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LIABILITY. THESE LIMITS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
12. CONFIDENTIALITY.
12.1 OBLIGATION. Each party shall treat as confidential all
Confidential Information received from any other party, shall not use such
Confidential Information except as expressly permitted under this Agreement, and
shall not disclose such Confidential Information to any third party without the
other party's prior written consent. Each party shall protect the Confidential
Information of the other party using the same degree of care it uses for its own
trade secret information, but in no event less than reasonable measures to
prevent the disclosure and unauthorized use of Confidential Information of the
other parties.
12.2 EXCEPTIONS. Notwithstanding the above, the restrictions of
this Section shall not apply to information that: (a) was independently
developed by the receiving party without any use of the Confidential Information
of the other party and by employees or other agents of (or independent
contractors hired by) the receiving party who have not been exposed to the
Confidential Information; (b) becomes known to the receiving party, without
restriction, from a third party without breach of an obligation of
confidentiality and who had a right to disclose it; (c) was in the public domain
at the time it was disclosed or becomes in the public domain through no act or
omission of the receiving party; (d) was rightfully known to the receiving
party, without restriction, at the time of disclosure, as evidenced by the
receiving party's records; 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 provide notice as soon as is
reasonably practicable to the disclosing party and shall provide reasonable
assistance to the disclosing party to obtain a protective order or otherwise
prevent public disclosure of such Confidential Information and such Confidential
Information shall only lose its confidentiality protection for purposes of such
legal disclosure.
13. INDEMNIFICATION. Each party shall indemnify, defend and hold the
other party, its officers, directors, employees, and licensees harmless from and
against any and all liability, damage, loss, or expense, including reasonable
attorneys' fees) arising from any third party claim, demand, action or
proceeding based upon (i) the provision of the Corio ASP Hosting Services or the
Value Added Solution, as applicable, or (ii) the actual or alleged breach of any
term of this Agreement or (iii) any false or misleading sales or advertising
methods used by such party; or (iv) the actual or alleged infringement of any
copyright or trademark right of a third party in connection with the Corio
Methodology, or any Corio Modified Methodology, in the case of Corio, or the EYC
Methodology or any EYC Modified Methodology, in the case of EYC; provided,
however, that any party seeking indemnification under this Section 13 (the
"Indemnitee") shall (i) promptly notify the indemnifying party (the
"Indemnitor") in writing of the claim, (ii) provide the Indemnitor sole control
over the defense and/or settlement of such claim, at Indemnitor's expense and
with Indemnitor's choice of counsel, and (iii) at the Indemnitor's request and
expense, provide full information and reasonable assistance to Indemnitor with
respect to such claim. Indemnitee may join in defense of a claim with counsel of
its choice, however, such counsel shall (1) be at the expense of Indemnitee, (2)
not be enabled
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to make any representations, decisions, or binding agreements
related to the action, and (3) not hinder the actions of or contradict
Indemnitor's counsel.
14. DISPUTE RESOLUTION.
14.1 GENERAL. The following procedures shall be used to resolve any
controversy or claim ("DISPUTE") as provided in this Agreement and shall be the
exclusive means for settling disputes, if any. If any of these provisions are
determined to be invalid or unenforceable, the remaining provisions shall remain
in effect and binding on the parties to the fullest extent permitted by law.
14.2 ARBITRATION
(a) If a dispute has not been resolved by the parties within 10
business days after each party becomes aware of the potential dispute (or a
longer period, as agreed to by the parties), the dispute may be settled by
arbitration. The arbitration will be conducted in accordance with the procedures
in this document and the Arbitration Rules for Professional Accounting and
Related Services Disputes of the AAA ("AAA RULES"). In the event of a conflict,
the provisions of this document will control.
(b) The arbitration will be conducted before a panel of three
arbitrators, regardless of the size of the dispute, to be selected as provided
in the AAA Rules. Any issue concerning the extent to which any dispute is
subject to arbitration, or concerning the applicability, interpretation, or
enforceability of these procedures, including any contention that all or part of
these procedures are invalid or unenforceable, shall be governed by the Federal
Arbitration Act and resolved by the arbitrators. No potential arbitrator may
serve on the panel unless he or she has agreed in writing to abide and be bound
by these procedures.
(c) Unless provided otherwise in the Agreement, the arbitrators may
not award non-monetary or equitable relief of any sort. They shall have no power
to award (i) damages inconsistent with the Agreement or (ii) punitive damages or
any other damages not measured by the prevailing party's actual damages, and the
parties expressly waive their right to obtain such damages in arbitration or in
any other forum. In no event, even if any other portion of these provisions is
held to be invalid or unenforceable, shall the arbitrators have power to make an
award or impose a remedy that could not be made or imposed by a court deciding
the matter in the same jurisdiction.
(d) No discovery will be permitted in connection with the
arbitration unless it is expressly authorized by the arbitration panel upon a
showing of substantial need by the party seeking discovery.
(e) All aspects of the arbitration shall be treated as
confidential. Neither the parties nor the arbitrators may disclose the
existence, content or results of the arbitration, except as necessary to comply
with legal or regulatory requirements. Before making any such disclosure, a
party shall give written notice to all other parties and shall afford such
parties a reasonable opportunity to protect their interests.
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(f) The result of the arbitration will be binding on the parties,
and judgment on the arbitrators' award may be entered in any court having
jurisdiction.
15. GENERAL PROVISIONS.
15.1 GOVERNING LAW AND JURISDICTION. This Agreement will be
governed by and construed under the laws of the State of California, without
reference to conflict of law principles. The parties hereby expressly consent to
the exclusive jurisdiction and venue of the federal and state courts within the
State of California to adjudicate any dispute arising out of this Agreement.
15.2 INDEPENDENT CONTRACTORS. The relationship of the parties
established by this Agreement is that of independent contractors, and nothing
contained in this Agreement should be construed to give any party the power to
direct and control the day-to-day activities of any of the other parties. All
financial and other obligations associated with each party's business are the
sole responsibility of such party.
15.3 PARTNERSHIP. During the term of this Agreement, should the
term "partnership," "Partner" or "EYC" be used to describe the cooperative
marketing and sales relationship, each party agrees to make it clear to third
parties that these terms refer only to the spirit of cooperation between the
parties and do not describe or create the legal status of partners or joint
venturers.
15.4 NOTICES. All notices, demands or consents required or
permitted under this Agreement shall be in writing. Notice shall be considered
delivered and effective when (a) personally delivered; (b) the day following
transmission if sent by telex, telegram or facsimile followed by written
confirmation by registered overnight carrier or certified United States mail; or
(c) one (1) day after posting when sent by registered private overnight carrier
(e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent
by certified United States mail. Notice shall be sent to the parties at the
addresses set forth on the first page of this Agreement or at such other address
as shall be given by a party to any other in writing.
15.5 FORCE MAJEURE. Nonperformance of either party will be excused
to the extent that performance is rendered impossible by strike, fire, flood,
governmental acts, orders or restrictions, or any other reason where failure to
perform is beyond the control and not caused by the negligence of the
non-performing party.
15.6 ASSIGNMENT. Neither party may assign this Agreement or assign
any of its rights or delegate any of its obligations under this Agreement,
whether by operation of law or otherwise, without the prior express written
consent of the other party. Notwithstanding the foregoing, it is expressly
understood that (i) Corio may assign this Agreement without consent to a
successor to all or substantially all of its business assets to which this
Agreement relates, provided that such successor agrees to be bound by all of the
provisions of this Agreement; and (ii) (a) this Agreement is being entered into
by the consulting services division of EY, as the same may hereafter be
constituted as an entity separate from EY, (b) EY may transfer its consulting
services division into a limited liability company, corporation or other entity
separate
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from EY, (c) EY may thereafter sell, transfer or otherwise assign its interest
in such entity to Cap Gemini, and (d) this Agreement may be assigned to any of
the foregoing specified entities as a successor to the business and assets of
the consulting services division of EY upon written notice to Corio, but without
any required consent of Corio, provided that the successor (including, in the
case of any sale, transfer or assignment to Cap Gemini, Cap Gemini and all of
its affiliated companies) agrees to be bound by all of the provisions of this
Agreement, the Investors Rights Agreement, and the Warrant Rights Agreement. Any
attempted assignment in violation of this Section 15.6 is null and void. Subject
to the foregoing, this Agreement will bind and inure to the benefit of the
parties, their respective successors and permitted assigns.
15.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original.
15.8 SEVERABILITY. If any provision or part of this Agreement is
found to be invalid, unlawful or unenforceable, such provision or part will be
severed from this Agreement and the remainder of the provisions, terms and
conditions of this Agreement will continue to be valid and enforceable. The
parties shall make reasonable and good faith efforts to amend any severed
provision or part of this Agreement so as to preserve the intentions of the
Agreement as much as possible.
15.9 WAIVER AND AMENDMENT. No modification, amendment, or waiver of
any provision of this Agreement shall be effective unless in writing and signed
by the party to be charged. No failure or delay by either party in exercising
any right, power or remedy under this Agreement, unless specifically provided
herein, shall operate as a waiver of any such right, power or remedy.
15.10 ENTIRE AGREEMENT. Each of the parties acknowledges that it
has read this Agreement, understands it, and agrees to be bound by its terms.
This Agreement (including the attached Exhibits) is the complete agreement
between the parties with respect to the subject matter hereof and supersedes all
prior or contemporaneous agreements or representations, written, or oral,
concerning the subject matter of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
Alliance and Co-Marketing Agreement - Corio Inc. and Ernst & Young LLP
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