{"id":42337,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/hosting-license-agreement-active-software-inc-and-corio-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"hosting-license-agreement-active-software-inc-and-corio-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/hosting-license-agreement-active-software-inc-and-corio-inc.html","title":{"rendered":"Hosting License Agreement – Active Software Inc. and Corio Inc."},"content":{"rendered":" HOSTING LICENSE AGREEMENT\n\nThis Hosting License Agreement (\"Agreement\") is entered into as of June 30, 1999\n(the \"Effective Date\"), by and between Active Software, Inc., a California\ncorporation with its principal place of business at 3333 Octavius Drive, Santa\nClara, California 95054 (\"Active\"), and Corio, Inc., a Delaware corporation with\nits principal place of business at 700 Bay Road, Redwood City, California 94063\n(\"Partner\").\n\n RECITALS\n\n 1. Active develops and distributes software (the \"Active Materials,\" as\ndefined below) which enables the integration of certain third party software\nwith other third party software.\n\n 2. Partner hosts certain third party software (the \"Third Party\nSoftware,\" as defined below) for its customers.\n\n 3. Active wishes Partner to integrate certain Active Materials into the\nThird Party Software and host the Integrated Hosting Services (as defined\nbelow), and Partner wishes to obtain the right to integrate the Active Materials\nand host the Integrated Hosting Services.\n\n AGREEMENT\n\n IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED IN THIS AGREEMENT, THE\nPARTIES AGREE AS FOLLOWS:\n\n1. Definitions.\n\n\n\"Active Materials\" means the Licensed Materials.\n\n\"Adapter\" means the adapter and\/or agent software described under the heading\n\"Adapters\" in Exhibit A, in Object Code format only, which Active distributes or\ndevelops and which interfaces between the Integration Kit and the Third Party\nSoftware.\n\n\"Confidential Information\" of a party means any information disclosed by that\nparty to the other party pursuant to this Agreement which is in written,\ngraphic, machine readable or other tangible form and is marked \"Confidential,\"\n\"Proprietary\" or in some other manner to indicate its confidential nature.\nConfidential Information may also include oral information disclosed by one\nparty to the other pursuant to this Agreement, provided that such information is\ndesignated as confidential at the time of disclosure or is so designated in\nwriting by the disclosing party within thirty (30) days after its oral\ndisclosure. Notwithstanding the foregoing, all information Active provides to\nPartner that relates to the Active Materials shall be deemed Active's\nConfidential Information.\n\n\"Developer Kit\" means the software described under the heading \"Developer Kit\"\nin Exhibit A, in Object Code format only, which Active distributes to software\ndevelopers to enable such developers to build or modify Adapters and\/or to build\nor modify events, rules, transformations and other integration process\ncomponents used for specific applications.\n\n\n\n* Certain information on this page has been omitted and filed \n separately with the Commission. Confidential treatment has \n been requested with respect to the omitted portions.\n 2\n\n\n\n\n\"Documentation\" means all documentation provided by Active to Partner, as\nfurther described or enumerated in Exhibit A.\n\n\"End User\" means any party that accesses the Integrated Hosting Services through\nPartner's servers.\n\n\"End User License\" means the license agreement (i) pursuant to which Partner\nwill grant the End User access to the Integrated Hosting Services, and (ii)\nwhich shall contain at least the restrictions set forth on Exhibit C.\n\n\"Integrated Hosting Services\" means Partner's hosting services which enable End\nUsers to access the integrated Licensed Materials and the Third Party Software\nhosted on Partner's servers.\n\n\"Integration Kit\" means the software described under the heading \"Integration\nKit\" in Exhibit A, in Object Code format only.\n\n\"Licensed Materials\" means the Integration Kit, the Adapters, the Developer Kit\nand the Documentation, including any modifications Active provides under Section\n10.2, which Partner may host for its End Users in accordance with Section 2.1\nbelow and the terms of this Agreement.\n\n\"Object Code\" and \"Object Code format\" means binary computer codes in executable\nformat and relocatable binary code libraries that can be linked into executable\nprograms.\n\nAll references in this Agreement to the \"purchase\" or \"sale\" of software means\nthe acquiring or granting, respectively, of a license to use such software, and\nto exercise any other rights pertaining to such software which are expressly set\nforth herein.\n\n\"Third Party Software\" means any software not developed by Active that Partner\nhosts for its End Users as listed in Exhibit A.\n\n2. Licenses and Restrictions.\n\n\n 2.1 Hosting License. Subject to the terms and conditions of this\n Agreement, Active hereby grants Partner a non-exclusive license,\n without rights to sublicense, to host the Licensed Materials on\n Partner's servers solely for the purposes of providing the\n Integrated Hosting Services to End Users. Partner is allowed to\n grant End Users the right to access the Licensed Materials\n hosted on Partner's servers pursuant to the terms of this\n Agreement and under the terms specified in the End User License.\n\n 2.1.1 Access to Technology: Active shall provide Corio with\n any pre-release \"Beta\" versions of relevant Updates or\n Upgrades of the Software. Active shall make these\n versions available to Corio to preview at the earliest\n possible date, but in no event later than the date\n Active first publicly releases such products. Active\n shall provide all such Updates and Upgrades to Corio\n free of additional charge and Corio shall, in its sole\n discretion determine when, and if, to offer any such\n Updates and\/or Upgrades to its Customers.\n\n 2.2 Use Licenses. Subject to the terms and conditions of this\n Agreement, Active hereby grants Partner a nonexclusive license,\n without rights to sublicense, to use the Active Materials solely\n for the purposes of: (a) integrating the Licensed Materials into\n the Third Party Software; (b) providing\n\n -2-\n\n\n\n 3\ncustomization services with respect to the Adapters on behalf of End Users upon\nrequest; (c) demonstrating the Integrated Hosting Services to potential End\nUsers; (d) providing training in the use of the Integrated Hosting Services and\nthe Active Materials to Partner's employees and contractors; and (e) providing\nsupport and training to End Users in connection with the Integrated Hosting\nServices.\n\n 2.3 Trademark License. Subject to the terms and conditions of this\nAgreement, Active hereby grants Partner a nonexclusive license to use the Active\ntrademarks, trade names and logos set forth in Exhibit B (as amended from time\nto time by Active) solely in connection with the marketing of the Integrated\nHosting Services. Partner shall comply with any usage guidelines which may be\nprovided to Partner by Active from time to time, and upon request by Active,\nshall furnish Active with samples of Partner's usage of such trademarks, trade\nnames and logos. Partner shall not challenge Active's ownership of such\ntrademarks, trade names and logos or use or adopt any trademarks which might be\nconfusingly similar to such marks.\n\n 2.5 Restrictions. Active reserves all rights in the Active Materials\nwhich are not expressly granted to Partner in this Agreement. Partner shall not\ndecompile, disassemble, reverse engineer or otherwise attempt to derive, obtain\nor modify the source code of the Active Materials. Partner shall not remove any\nActive copyright or other proprietary rights notices from any software or\ndocumentation materials provided by Active to Partner. Partner further agrees to\npermit Active to enter any of Partner's premises during regular business hours,\nupon five (5) days prior written notice, to inspect Partner's use of the Active\nMaterials.\n\n3. Obligations of Partner.\n\n\n 3.1 Promotion of the Integrated Hosting Services. Partner shall use its\nbest efforts to integrate the Licensed Materials into the Third Party Software\nand to promote the sale of and use of, and to stimulate interest in, the\nIntegrated Hosting Services. All marketing efforts and development efforts by\nPartner shall be at Partner's expense.\n\n 3.2 Partner Support. Partner shall provide its personnel involved in the\ndevelopment of the Integrated Hosting Services with training, technical support,\ninformation and other appropriate assistance.\n\n 3.3 Partner Contact. Partner shall designate one person who shall act as\na focal point to coordinate with Active the marketing activities and the\nintegration of the Active Materials, and who shall be authorized to act on\nbehalf of Partner within the scope of this Agreement.\n\n 3.4 Records and Reporting.\n\n\n 3.5.1 Within thirty (30) days following the end of each calendar\nquarter, Partner will provide to Active written reports showing, for such\ncalendar quarter: (a) the number of copies of the Licensed Materials accessed\nand used by each End User through the Integrated Hosting Services, and (b) the\nEnd User contact information, location and any customer usage information with\nrespect to each copy of the Active Materials accessed through the Integrated\nHosting Services.\n\n 3.5.2 Partner will notify Active, in writing, of any claim or\nproceeding, actual or threatened, involving the Active Materials within ten (10)\ndays after Partner learns of such claim or proceeding. Partner will also notify\nActive in writing immediately of all claimed or suspected defects in\n\n -3-\n\n\n\n 4\nthe Active Materials. All such claims, proceedings, and suspected defects shall\nbe deemed Active's Confidential Information.\n\n 3.5.3 Partner shall maintain full and complete records of the use\nof Licensed Materials through the Integrated Hosting Services, including without\nlimitation copies of the reports described in Section 3.5.1, for at least three\n(3) years after such use or sales. Active shall, at any time during the period\nwhen Partner is obliged to maintain such records, be entitled to audit such\nrecords upon thirty (30) days written notice, in order to confirm the accuracy\nof the reports described in Section 3.5.1, provided, that Active may conduct no\nmore than one such audit in any six (6) month period. Any such audit shall be\nperformed at Active's expense during normal business hours; provided, that the\ncost of such audit (in addition to the full amount of any underpayments and\nrelated late charges under Section 6.6) shall be promptly paid by Partner if\nsuch audit reveals an underpayment by Partner of more than five percent (5%) of\nthe amounts payable by Partner to Active in any six (6) month period.\n\n 3.6 Government Approvals. Partner shall be responsible for obtaining all\nnecessary government approvals, consents, licenses or permits to enable it to\npurchase the Licensed Materials, and to provide the Integrated Hosting Services\nto End Users. Partner will bear all costs associated with obtaining such\ngovernment approvals, consents, licenses or permits. Partner shall comply with\nall government regulations.\n\n 3.7 End User License. Partner will obtain an executed End User License\nfrom each End User prior to (i) granting such End User access to the Integrated\nHosting Services.\n\n 3.8 Further Agreements. Partner agrees: (i) to avoid deceptive,\nmisleading or unethical practices detrimental to Active or to the Active\nMaterials, including, without limitation, disparagement of Active or the Active\nMaterials; and (ii) to make no representations, warranties or guaranties to End\nUsers with respect to the specifications, features or capabilities of the Active\nMaterials that are inconsistent with the Documentation supplied by Active.\n\n 3.9 Feedback. Partner shall provide Active with prompt written\nnotification of any problems with the Active Materials or their use that Partner\nbecomes aware of. Such written notification shall be the property of Active, and\nshall be considered Active's Confidential Information hereunder.\n\n 3.10 Publicity. Within thirty (30) days after the Effective Date, the\nparties will issue a joint press release to announce the relationship of the\nparties as set forth under this Agreement.\n\n4. Changes in Active Materials. Active shall have the right to modify the\nActive Materials at any time upon written notice to Partner or to discontinue\ndistribution of any of the Active Materials at any time. Receipt by Partner of a\nprice schedule or other notification from Active reflecting an addition or a\ndeletion to the Active Materials or receipt of a facsimile specifically adding\nor deleting Active Materials shall constitute notice of such an addition or\ndeletion and, with respect to additions, of the price for the added product.\n\n5. Title.\n\n\n Active shall own all right, title and interest in and to the originals\nand any copies, in whole or in part, of the Active Materials, and all patents,\ntrade secrets, copyrights and other intellectual property rights pertaining\nthereto. Partner acknowledges that the licenses granted pursuant to this\nAgreement do\n\n -4-\n\n\n\n 5\nnot provide Partner with title or ownership of the Active Materials. Partner\nshall keep the Active Materials free and clear of all claims, liens and\nencumbrances.\n\n6. Payments, Taxes.\n\n\n 6.1 Payments. Partner will pay Active as set forth in Exhibit D.\n\n 6.2 Payment Terms. All Payments are net 30, except as set forth in\nExhibit D.\n\n 6.3 Price Changes. Active shall have the right to change its list prices\nfor the Active Materials at any time.\n\n 6.4 Taxes. All prices are exclusive of, and Partner shall pay or\nreimburse Active for, all taxes, duties and assessments imposed on Partner or\nActive in connection with the license or use of Active Materials under this\nAgreement or any services provided hereunder, including without limitation all\nsales, use, excise and other taxes and duties, excluding only taxes based upon\nActive's net income. Partner shall hold Active harmless from all claims and\nliability arising from Partner's failure to report or pay any such taxes, duties\nand assessments.\n\n 6.5 Late Payments. All amounts that are not paid by Partner as required\nby this Agreement shall be subject to a late charge equal to one and one-half\npercent (1.5%) per month, or, if less, the maximum amount allowed by applicable\nlaw. In the event that any amount due hereunder is overdue, Active reserves the\nright to suspend performance until such delinquency is corrected.\n\n7. Confidential Information.\n\n\n 7.1 Confidentiality. Each party shall treat as confidential all\nConfidential Information of the other party, shall not use such Confidential\nInformation except as set forth herein, and shall use reasonable efforts not to\ndisclose such Confidential Information to any third party. Without limiting the\nforegoing, each of the parties shall use at least the same degree of care which\nit uses to prevent the disclosure of its own confidential information of like\nimportance to prevent the disclosure of Confidential Information disclosed to it\nby the other party under this Agreement. Each party shall promptly notify the\nother party of any actual or suspected misuse or unauthorized disclosure of the\nother party's Confidential Information.\n\n 7.2 Exceptions. Notwithstanding the above, neither party shall have\nliability to the other with regard to any Confidential Information of the other\nwhich: (a) was in the public domain at the time it was disclosed or has entered\nthe public domain through no fault of the receiving party; (b) was known to the\nreceiving party, without restriction, at the time of disclosure, as demonstrated\nby files in existence at the time of disclosure; (c) is disclosed with the prior\nwritten approval of disclosing party; (d) became known to the receiving party,\nwithout restriction, from a source other than the disclosing party without\nbreach of this Agreement by the receiving party and otherwise not in violation\nof the disclosing party's rights; or (e) is disclosed pursuant to the order or\nrequirement of a court, administrative agency, or other governmental body;\nprovided, however, that the receiving party shall use all reasonable efforts to\nprovide prompt, written, and sufficient advance notice thereof to the disclosing\nparty to enable the disclosing party to seek a protective order or otherwise\nprevent or restrict such disclosure.\n\n -5-\n\n\n\n 6\n 7.3 Return of Confidential Information. Each party shall promptly return\nthe other party's Confidential Information to the other party (i) after\ntermination of this Agreement, or (ii) upon receipt of written notice from the\nother party requesting return of such Confidential Information.\n\n8. Representations and Warranties of Partner.\n\n Partner warrants to Active that the End Users shall be able to access\nthe Integrated Hosting Services (i) on a twenty-four-hours-per-day,\nseven-days-per-week basis, except during scheduled and unscheduled maintenance\ndowntime, and (ii) on a ninety-nine percent (99%) availability basis.\n\n9. Representations and Warranties of Active.\n\n 9.1 Warranty to the End User. Each End User receives a warranty (if any)\non the Active Materials from Partner only to the extent set forth in the End\nUser License. Active makes no warranties to the End User in connection with the\nActive Materials, and expressly disclaims any implied warranties of\nmerchantability or fitness for a particular purpose to the End User.\n\n 9.2 Warranty to Partner. Active warrants to Partner that for a period of\nninety (90) days after the date of delivery of the Licensed Materials to the\nPartner, (i) the Integration Kit, the Adapters and the Developer Kit will\nsubstantially achieve the functionality described in the Documentation, and (ii)\nthe media containing the Licensed Materials will be free from defects in\nmaterials and workmanship. Active's entire liability and Partner's exclusive\nremedy under this limited warranty shall be, at Active's option, (y) repair or\nreplacement of all or the affected portion of the Licensed Materials, or (z) a\nrefund of the purchase price paid for such Licensed Materials and termination of\nthe licenses under Section 2 for such Licensed Materials, provided that Active\nreceives notice of such defect during the warranty period. Active does not\nwarrant that (a) the Licensed Materials will meet Partner's requirements, (b)\nthe operation of the Integration Kit, the Adapters or the Developer Kit will be\nuninterrupted or error-free, or (c) the Documentation will be error-free.\n\n 9.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 9, ACTIVE\nMAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR\nOTHERWISE, WITH RESPECT TO ANY ACTIVE MATERIALS, INCLUDING THEIR CONDITION,\nTHEIR CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY\nLATENT OR PATENT DEFECTS, AND ACTIVE SPECIFICALLY DISCLAIMS ALL IMPLIED\nWARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND\nNONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. ACTIVE MAKES, AND\nPARTNER RECEIVES, NO REPRESENTATIONS OR WARRANTIES OF ANY KIND EITHER EXPRESS,\nIMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE ACTIVE SUPPORT REFERRED TO\nIN SECTION 10.2.\n\n10. Support.\n\n 10.1 Support to End Users. Partner is responsible for providing all\nsupport with respect to the Integrated Hosting Services and the Active Materials\nto End Users. Active will not be responsible for providing support to End Users.\n\n 10.2 Support to Partner. Partner will receive support from Active with\nrespect to the Licensed Materials under the terms of the Support Agreement\nattached as Exhibit E.\n\n -6-\n\n\n\n 7\n 10.3 Title. All releases and other changes, improvements, bug fixes or\nother modifications to the Licensed Materials provided pursuant to Section 10.2\nshall be deemed to be included within the Licensed Materials, and will be\nsubject to the terms and conditions of this Agreement.\n\n11. Indemnity.\n\n 11.1 Indemnity by Active.\n\n 11.1.1 Indemnity. Active will defend or settle, at its expense,\nany action brought against Partner based upon a claim that the Active Materials\nused within the scope of the licenses granted hereunder infringe an issued U.S.\npatent or registered U.S. copyright, and Active further agrees to pay all\ndamages and costs finally awarded against Partner attributable to such claim;\nprovided that Partner (a) notifies Active promptly in writing of any such claim,\n(b) gives Active sole control of the defense and\/or settlement of such action,\nand (c) gives Active all authority, information and assistance reasonably\nnecessary to settle or defend such claim. Active shall reimburse Partner for\nincidental out-of-pocket expenses incurred by Partner in providing such\nassistance. Active shall not be liable for any costs or expenses incurred\nwithout its prior written authorization.\n\n 11.1.2 Active Options. If the Active Materials become, or in the\nopinion of Active may become, the subject of a claim of infringement of any\nissued U.S. patent or registered U.S. copyright, Active may, at its option: (i)\nprocure for Partner the right to use the Active Materials free of any liability;\n(ii) replace or modify the Active Materials to make them non-infringing; or\n(iii) remove the Active Materials, or part thereof, and refund the license fees\npaid hereunder for such Active Materials, as depreciated over a sixty (60) month\nperiod.\n\n 11.1.3 Exclusions from Indemnity. Active assumes no liability\nhereunder for any compliance with Partner's specifications. Active shall have no\nobligation to defend the Partner or to pay costs, damages or attorney's fees for\nany claim based upon: (i) use of other than a current unaltered release of the\nActive Materials; or (ii) the combination, operation or use of any Active\nMaterials furnished hereunder with non-Active programs or data if such\ninfringement would have been avoided but for the combination, operation or use\nof the Active Materials with such programs or data.\n\n 11.1.4 Sole and Exclusive Liability. THIS SECTION 11 SETS FORTH\nTHE SOLE AND EXCLUSIVE LIABILITY OF ACTIVE FOR INFRINGEMENT OF THIRD PARTY\nINTELLECTUAL PROPERTY RIGHTS.\n\n 11.2 Indemnity by the Partner. Partner agrees to indemnify and hold\nActive harmless from and against any loss, cost or expense (including attorneys'\nfees) resulting from any and all claims by third parties for loss, damage or\ninjury (including death) allegedly caused by the negligence, misrepresentation,\nmisconduct, error, omission or other action of Partner, or of Partner's agents\nor employees. In addition, Partner agrees to indemnify and hold Active harmless\nfrom and against any loss, cost or expense (including attorneys' fees) resulting\nfrom any and all claims by third parties alleging that the Integrated Hosting\nServices infringes any patent, trade secret, or copyright, provided that Partner\nshall have sole control of any such action or settlement negotiations.\nNotwithstanding the foregoing, Partner shall have no liability under this\nSection 11.2 for any claim alleging that the unaltered Licensed Materials,\nstanding alone, infringe any third party's intellectual property rights.\n\n12. Limitation of Liability.\n\n\n -7-\n\n\n\n 8\n Partner agrees that Active's liability hereunder arising from this\nAgreement shall in no event exceed the payments received by Active pursuant to\nthis Agreement. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS,\nLOSS OF BUSINESS, INTERRUPTION OF BUSINESS, LOSS OF USE, OR LOSS OF DATA FOR\nCOSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FOR ANY CLAIM OR DEMAND\nAGAINST THE OTHER PARTY BY ANY OTHER PARTY OR FOR INDIRECT, INCIDENTAL,\nCONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY\nTHEORY OF LIABILITY, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,\nUNDER OR ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF\nTHE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE\nAMOUNTS PAYABLE HEREUNDER ARE BASED IN PART UPON THESE LIMITATIONS, AND THAT\nTHESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE\nOF ANY LIMITED REMEDY.\n\n13. Term and Termination.\n\n 13.1 Term. The term of this Agreement and the license granted hereunder\nshall commence on the date set forth at the beginning of this Agreement and\nshall continue for a term of three (3) years unless earlier terminated in\naccordance with this Section 13.\n\n 13.2 Termination for Material Breach. Either party may, at its option,\nterminate this Agreement upon written notice to the other party if the other\nparty materially breaches any of the terms and conditions of this Agreement and\nif such material breach has not been cured within thirty (30) days after written\nnotice to the other party.\n\n 13.3 Termination for Insolvency. This Agreement may be terminated by\neither party, on notice, (i) if the other party becomes insolvent, (ii) upon the\ninstitution by the other party of insolvency, receivership or bankruptcy\nproceedings or any other proceedings for the settlement of its debts, (iii) upon\nthe institution of such proceedings against the other party, which are not\ndismissed or otherwise resolved in such other party's favor within sixty (60)\ndays thereafter, (iv) upon the other party's making a general assignment for the\nbenefit of creditors, or (v) upon the other party's dissolution or ceasing to\nconduct business in the normal course.\n\n 13.4 Surviving Terms. Sections 5, 6, 7, 9, 11, 12, 13 and 14, and all\npayment obligations incurred prior to termination of this Agreement, shall\nsurvive termination of this Agreement. Within thirty (30) days after termination\nof this Agreement, Partner shall return to Active, at Partner's expense, and\nshall make no further use of, any property, materials or other items of Active,\nand shall certify in writing to Active, that the originals and all copies, in\nwhole or in part, in any form, of the Licensed Materials in the possession of\nPartner or its affiliates or agents have been destroyed or returned to Active.\n\n 13.5 Other Remedies. Nothing contained herein shall limit any other\nremedies that Active may have for the default of Partner under this Agreement\nnor relieve Partner of any of its obligations incurred prior to termination of\nthis Agreement.\n\n14. General Provisions.\n\n 14.1 Assignment. All the terms and provisions of this Agreement shall be\nbinding upon and inure to the benefit of the parties to this Agreement and to\ntheir respective heirs, successors, assigns and\n\n\n -8-\n\n\n\n\n 9\nlegal representatives. Partner may not assign this Agreement in whole or in part\nexcept with Active's prior written consent, excluding the condition that the\nPartner shall have the right to assign this Agreement in connection with the\nmerger or acquisition of such party or the sale of all or substantially all of\nits assets related to this Agreement without such consent. Any assignment by\nPartner shall not result in an increase in the scope of the license granted\npursuant to this Agreement. Active shall be entitled to assign this Agreement to\na party which agrees to be bound by the terms and conditions of this Agreement.\n\n 14.2 Entire Agreement. This Agreement represents the entire agreement\nbetween the parties, and supersedes all prior agreements and understandings with\nrespect to the matters covered by this Agreement. Partner agrees that it has not\nentered into this Agreement based on any representations other than those\ncontained herein. This Agreement may only be amended by a written agreement\nsigned by both parties. The terms and conditions of this Agreement shall prevail\nin the event of any variance with any purchase order or invoice produced by\nActive or Partner.\n\n 14.3 Governing Law. This Agreement shall in all respects be governed by\nthe laws of the State of California without reference to its principles of\nconflicts of laws. The parties hereby agree that all disputes arising out of\nthis Agreement shall be subject to the exclusive jurisdiction of and venue in\nthe federal and state courts located in San Francisco, California or within\nSanta Clara County, California. Partner hereby consents to the personal and\nexclusive jurisdiction and venue of these courts.\n\n 14.4 Severability. If any of the provisions of this Agreement are held\nto be invalid under any applicable statute or rule of law, they are, to that\nextent, deemed omitted.\n\n 14.5 Waiver. The waiver of any particular breach or default or any delay\nin exercising any rights shall not constitute a waiver of any subsequent breach\nor default.\n\n 14.6 Notices. All notices permitted or required under this Agreement\nshall be in writing and shall be delivered in person or mailed by first class,\nregistered or certified mail, postage prepaid, to the address of the party\nspecified in this Agreement or such other address as either party may specify in\nwriting. Such notice shall be deemed to have been given upon receipt.\n\n 14.7 Force Majeure. Neither party will be responsible for any failure to\nperform its obligations (other than payment obligations) under this Agreement\ndue to reasons beyond its reasonable control, including without limitation acts\nof God, war, riot, embargoes, acts of civil or military authorities, fire,\nfloods or accidents.\n\n 14.8 Export Laws and Regulations. Any obligation of Active to provide\nthe Active Materials under this Agreement shall be subject in all respects to\nall United States laws and regulations governing the license and delivery of\ntechnology and products abroad by persons subject to the jurisdiction of the\nUnited States. Partner shall not export, directly or indirectly, any Active\nMaterials or related information without first obtaining all required licenses\nand approvals from the appropriate government agencies.\n\n 14.9 Independent Contractors. Notwithstanding the use of the word\n\"partner\" in marketing materials, the relationship of Active and Partner is that\nof independent contractors, and nothing contained in this Agreement shall be\nconstrued to (i) give either party the power to direct or control the day-to-day\nactivities of the other, (ii) constitute the parties as partners, joint\nventurers, co-owners or otherwise as participants in a joint undertaking, or\n(iii) allow the Partner to create or assume any obligation on behalf of Active\nfor any purpose whatsoever.\n\n -9-\n\n\n\n 10\n 14.10 Headings. The headings of the several sections of this Agreement\nare intended for convenience of reference only and are not intended to be a part\nof or to affect the meaning or interpretation of this Agreement.\n\n 14.11 Counterparts. This Agreement may be executed in counterparts, each\nof which shall be deemed an original and all of which together shall constitute\none instrument.\n\n -10-\n\n\n\n 11\nAGREED AND ACCEPTED:\n\nACTIVE SOFTWARE, INC. CORIO, INC.\/s\/ Signature\nIllegible>\n\nBy: \/s\/ Signature Illegible By: HASAN G. RIZVI\n ----------------------------- ----------------------------\n\nTitle: CFO Title: DIRECTOR OF ENGG.\n -------------------------- -------------------------\n\n\n7\/1\/99\n\n\n\n 12\n EXHIBIT A\n\n LICENSED MATERIALS\n\n1. Active Software.\n\n\n 1.1 Integration Kit.\n\n Information Broker\n Integration Logic Agent\n 7\/1\/99\n PeopleSoft Application Adapter\n Siebel Application Adapter\n Oracle Database Adapter\n Java Language Adapter\n\n 1.2 Developer Kit.\n\n Includes 6 Non Production Instances of the following products to\n be used for prototyping, development and testing integration\n systems.\n\n Active Works Information Broker and its Associated Options\n\n\n<\/pre>\n
\n
\n Secure Sockets Layer
\n Multi-Broker Option
\n Active Works Information Broker Agents: All
\n ActiveWorks Integration Tools: All
\n ActiveWorks Adapters:
\n Language Adapters All
\n Middleware Adapters All
\n Database Adapters All
\n Application Adapters All
\n<\/c><\/s><\/table>\n2. Documentation.<\/p>\n
All associated product documentation shipped with the Active Software
\n listed above.<\/p>\n
3. Third Party Software-<\/p>\n
PeopleSoft
\n Octane 99
\n Siebel 99
\n and any other apps that coris may include.<\/p>\n
Hasan G. Rizvi 6\/30\/99<\/p>\n
13
\n EXHIBIT B<\/p>\n
LICENSED TRADEMARKS, TRADE NAMES AND LOGOS<\/p>\n
Active Software, ActiveWorks, Activesw, and
\n Active Database Adapter are registered
\n trademarks of Active Software, Inc.<\/p>\n
14
\n EXHIBIT C<\/p>\n
END USER LICENSE AGREEMENT REQUIREMENTS<\/p>\n
All End User licenses of the Active Materials shall be in writing and
\nexecuted and include at least the following provisions:<\/p>\n
(1) the End User is granted only a personal, nontransferable, and
\nnonexclusive right to use the Active Materials only for its internal business
\npurposes;<\/p>\n
(2) Active or its licensors retain all of their intellectual property
\nrights in the Active Materials, and no title to such intellectual property is
\ntransferred to the End User;<\/p>\n
(3) the End User agrees not to reverse assemble, decompile, or otherwise
\nattempt to derive source code form the Active Materials;<\/p>\n
(4) the Active Materials are the confidential information of Active and
\nthe End User shall keep such Active Materials in confidence and shall not use or
\ndisclose such Active Materials, except as permitted by the license, without
\nActive’s prior written consent;<\/p>\n
(5) the End User agrees to comply with all export and re-export
\nrestrictions and regulations of the Department of Commerce or other United
\nStates agency or authority, and not to transfer, or authorize the transfer, of
\nthe Active Materials to a prohibited country or otherwise in violation of any
\nsuch restrictions or regulations;<\/p>\n
(6) the End User receives a warranty on the Active Materials from
\nPartner, and Active makes no warranties to the End User in connection with the
\nActive Materials, and expressly disclaims any implied warranties of
\nmerchantability or fitness for a particular purpose;<\/p>\n
(7) Active shall not be liable to the End User for any indirect,
\nconsequential, incidental or special damages arising out of the use or license
\nof the Active Materials, regardless of the theory of liability (including
\nnegligence and strict liability);<\/p>\n
(8) Active may terminate the licensed use of Active’s Licensed Products
\nupon written notice of failure by the End User to comply with the terms of such
\nlicense;<\/p>\n
(9) within five (5) days after termination of the license, the End User
\nshall destroy the Active Materials or return them to Active or to Partner at the
\nEnd User’s expense; and<\/p>\n
(10) Active is a third-party beneficiary of the license agreement.<\/p>\n
15
\n EXHIBIT D<\/p>\n
PAYMENTS<\/p>\n
1. Integrated Hosting Services.<\/p>\n
Corio shall pay the following monthly fees for each of their customers
\n accessing the Integration Kit through the Integrated Hosting Services as
\n per the table below.<\/p>\n
\n\n Customer # Of Customers Initial Sign Up Fee Annual Service Fee
\n Definition
\n
\n Tier 1 1st 150 Customers [*] [*]
\n Up to $375MM <\/p>\n Tier 1 All Other Tier 1 [*] [*]
\n Up to $375MM <\/p>\n
Tier 2 All [*] [*]
\n Above $375MM
\n Up to $1 Billion <\/p>\n
Tier 3 All [*] [*]
\n Above $1 Billion
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
2. Corio Agrees to pay Active Software [*] for the licensed materials on
\n Exhibit A including prepayments of the fees for the first 23 Tier 1
\n customers. Payment will be in two increments: [*] Payable Net 30 Days,
\n [*] Payable Net 60 Days.<\/p>\n
[*] Certain information on this page has been omitted and filed separately with
\n the Commission. Confidential treatment has been requested with respect to
\n the omitted portions.
\n 16
\n EXHIBIT E
\n ACTIVE SOFTWARE, INC.<\/p>\n
ACTIVESERVICE PLAN<\/p>\n
This Plan sets forth the terms and conditions under which Active Software, Inc.
\n(“Active”), provides the following Support and Maintenance program known as
\n(“ActiveService”) to Corio for the programs (the “Software”) and documentation
\nspecified in Exhibit A.<\/p>\n
This Plan sets forth the terms and conditions under which Active Software, Inc.
\n(“Active”), provides the following Support and Maintenance program known as
\n(“ActiveService”) to the licensee (“Customer”) for the programs (the “Software”)
\nand documentation specified in Exhibit A hereto.<\/p>\n
1. Definitions.<\/p>\n
a. Documentation. “Documentation” shall mean the
\n documentation that Active provides to its customers for
\n the Software.<\/p>\n
b. Error. “Error” shall mean any verifiable and
\n reproducible failure of the Software to substantially
\n conform to the Specifications for such Software.
\n Notwithstanding the foregoing, “Error” shall not include
\n any such failure that is caused by: (i) the use or
\n operation of the Software with any other software or
\n programming languages or in an environment other than
\n that intended or recommended by Active, (ii)
\n modifications to the Software not made by Active, or
\n (iii) any bug, defect or error in software used with the
\n Software or any other failure of such software to
\n conform to its published specifications.<\/p>\n
c. “Error Correction(s)” shall mean either a modification
\n or addition to or deletion from the Software that
\n substantially conforms such Software to the then-current
\n Specifications or a procedure or routine that, when
\n observed in the regular operation of the Software
\n eliminates any material adverse effect on Customer of
\n such Error.<\/p>\n
d. License Agreement. “License Agreement” shall mean the
\n license agreement under which the Software was licensed
\n to Customer.<\/p>\n
e. Specifications. “Specifications” shall mean the
\n published description of the Software, as set forth in
\n the Documentation for the Software.<\/p>\n
f. Update. “Update” means additional or replacement code or
\n Documentation for the Software that is provided by
\n Active to remedy an Error.<\/p>\n
g. Upgrade. “Upgrade” means any additional or replacement
\n code or Documentation for the Software provided by
\n Active Software that adds incremental capabilities or
\n functionality and that is designated by Active, in its
\n sole discretion, as a new version of the Software.<\/p>\n
h. Major Release. “Major Release” means any additional or
\n replacement code or Documentation for the Software
\n provided by Active Software that adds major new
\n capabilities or functionality and that is designated by
\n Active, in its sole discretion, as a new Major Release
\n of the Software. Major Release does not include new
\n Options that are added to the Software to provide
\n optional capabilities or functionality.<\/p>\n
i. Option. “Option” means any additional or replacement
\n code that can be added to an existing product to provide
\n optional capability or functionality to that product.
\n Optional capabilities are those that some customers may
\n require and other customers may not.<\/p>\n
17
\n J Authorized Contact. “Authorized Contact” means the
\n individual designated by Customer to be responsible for
\n contacting Active’s Support organization. Customer may
\n assign two named Authorized Contacts in Exhibit A per
\n ActiveService plan. Additional Authorized Contacts may
\n made available for an additional fee.<\/p>\n
2. Maintenance Services.<\/p>\n
a. New Software Releases. During the term of this Plan,
\n Active will provide software updates to the Customer as
\n they become generally available. An update is a new
\n release of the licensed software product that is made
\n available to the general public. This includes both
\n minor and major release numbers. In general this
\n software may contain both bug fixes and enhancements to
\n the product. Maintenance does not cover new products
\n being added to a product line or new functionally that
\n is sold as a separate option and price. Active Software
\n will provide a single copy of media for each update to
\n the Customer. If additional copies are require they will
\n be made available for a fee.<\/p>\n
b. Current Release. Active’s obligations under this Plan
\n shall apply only to those releases of the applicable
\n Software that are then currently being shipped by
\n Active. Active shall have the right, at any time after a
\n particular release has been superseded by another
\n release, to terminate support with respect to the
\n superseded release upon giving not less than ninety (90)
\n days notice. Notwithstanding the foregoing, Active will
\n support a superseded release for no less than one year
\n after a new release is shipped.<\/p>\n
c. Error Correction. During the term of this Plan, Active
\n shall use commercially reasonable efforts to provide
\n Error Corrections for Errors in the Software reported by
\n Customer to Active.<\/p>\n
d. Limitations. Active shall have no obligation under this
\n Plan to correct Errors which result from the breach by
\n Customer of this Plan or the License Agreement, or which
\n cannot be remedied due to any modifications of the
\n Software made by Customer or any third party. If Active
\n agrees to remedy any errors or problems not covered by
\n the terms of this Plan, Customer shall pay Active for
\n all such work performed at Active’s then-current
\n standard rates. Customer acknowledges that Active is
\n under no obligation to perform services with respect to
\n any hardware or any software which is not Software.<\/p>\n
3. Support Services.<\/p>\n
a. Telephone Support. During the term of this Plan, Active
\n will provide telephone consultation and advice to
\n Authorized Contacts regarding technical support of the
\n Licensed Software between the hours of 6:00 a.m. and
\n 6:00 p.m., Pacific Time, Monday through Friday,
\n excluding holidays. Response times are based upon
\n severity of the problem. Optional 24×7 telephone
\n consultation and advice for emergency situations of
\n Severity 1 problems may be purchased for an additional
\n fee.<\/p>\n
b. Email and Fax Support. During the term of this Plan,
\n Active will respond to email and fax messages sent to
\n Support by Authorized Contacts between the hours of 6:00
\n a.m. and 6:00 p.m., Pacific Time, Monday through Friday,
\n excluding holidays within 6 business hours and whenever
\n possible within the same business day.<\/p>\n
c. Limitations. Customer acknowledges that Active is under
\n no obligation to perform services with respect to any
\n hardware or any software which is not Active Software’s
\n Licensed product.<\/p>\n
d. Supported Releases. Active Software will provide
\n technical support for the current shipping release of
\n software and the one previous release for up to one year
\n after the release stopped shipping. In order to correct
\n or trouble shoot certain problems the Customer may be
\n required to update said software to the then current
\n release.<\/p>\n
18
\n4. Service Expectations.<\/p>\n
a. Problem Classification. The following Problem
\n Classification Table definitions are used for
\n classifying customer issues. These classifications
\n insure consistent treatment of problems handled by
\n support. Severity 3 (Degraded Operations) is the default
\n severity level that all cases are initially set to
\n unless otherwise specified by the customer or the
\n support engineer. The support engineer handling the case
\n will work with the customer to establish what severity
\n should be assigned. The following are the four levels
\n used by Active Software to prioritize a customer’s
\n problem.<\/p>\n
Problem Classification Table<\/p>\n
\n\nError Classification Criteria
\n
\n The problem is affecting time-critical applications with
\n production work at a standstill. The system is completely
\nSeverity 1 (Critical) unusable and no work around is currently known. The
\n affected system must be for production purposes.<\/p>\n The system is significantly impaired such that key business
\nSeverity 2 (Serious) processes can not be conducted and no known work around is
\n currently available.<\/p>\n
Severity 3 (Degraded) The system can not function as designed however key business
\n processes are not interrupted.<\/p>\n
Severity 4 (Minimal) Problems are low-impact. Little or no impact to daily
\n business process.
\n<\/c><\/s><\/caption>\n<\/table>\n
b. Response Expectations. In the event that an error is
\n discovered in the Licensed Software which causes the
\n software not to operate in conformance with the
\n published specifications or applicable documentation,
\n Customer shall notify Active Software in writing (email
\n or fax) of the error (including a reasonable description
\n and the severity level based on the Problem
\n Classification Table). Active shall respond to such
\n notice and will make reasonable efforts to assign
\n engineers to resolve problems at the level of effort
\n indicated by the Response Expectation table. If
\n unspecified most new cases will be set to a severity
\n level of 3 until a clearer determination can be made.<\/p>\n
The following Response Expectation table specifies
\n the level of response that will be given to a
\n customer issue at each step of the process based
\n upon the assigned severity of the problem. The
\n table specifies the maximum amount of time elapsed
\n to complete each step.<\/p>\n
Step 1 represents the acknowledgment of a
\n customer’s problem and the beginning of
\n information gathering process.<\/p>\n
Step 2 represents the time frame by which the
\n problem is being actively addressed and a
\n temporary patch, correction, or workaround
\n is provided. The goal will be to provide a
\n fix or a work-around for a problem as soon
\n as possible. Critical issues will be worked
\n on continually during the business day until
\n a satisfactory problem resolution can be
\n reached. To have work continue on problems
\n during non-business hours requires the
\n purchase of a 24×7 coverage plan and the
\n commitment by the customer to make their
\n resources available on an after hours basis
\n as well.<\/p>\n
Step 3 represents when a permanent solution will
\n be available. This may be in the form of a
\n tested permanent patch or a completely new
\n release depending upon what the problem
\n requires and time allows. When possible
\n permanent fixes will be provided in the next
\n scheduled release.<\/p>\n
19
\n RESPONSE EXPECTATION TABLE<\/p>\n
\n\n SEVERITY STEP 1 STEP 2 STEP 3
\n
\n 1 (Critical) 2 business Immediate and Within 60
\n hours continuing calendar
\n effort during days.
\n the business
\n day.<\/p>\n 2 (Serious) 4 business 1 to 5 business Within 90
\n hours days calendar
\n days.<\/p>\n
3 (Degraded) 8 business Within 10 Next
\n hours business days scheduled
\n release of
\n software.<\/p>\n
4 (Minimal) 16 business Worked on a As
\n hours time available appropriate
\n basis
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
c. Escalation Process. All new cases will initially
\n be taken and handled by the support
\n representatives on duty at the time of the call.
\n All problems with a severity level of 1 to 3
\n will be escalated if a solution or plan of
\n resolution cannot be achieved within the
\n designated amount of time as described below. To
\n ensure that progress can continue, Customers
\n with Severity 1 (Critical) issues must provide
\n Active with a highly available contact during
\n this period who will assist the Support and
\n Development organizations with data gathering,
\n testing, and applying all fixes to their
\n environment. If Active cannot duplicate the
\n problem in-house, then Support may request
\n access to the Company’s computing environment.<\/p>\n
Support management will be made aware of issues
\n according to the following timeframes. Active
\n requires that as succeeding levels of Active
\n management become involved in the resolution
\n process, the Customer must provide contacts at
\n similar levels within their organizations, to
\n ensure that the level of management involvement
\n matches the decision-making level dictated by
\n the resolution requirements of the problem.
\n Elapsed time represents the number of business
\n hours (not clock hours) that have passed since
\n the issue was first opened by Active Software
\n Support.<\/p>\n
ESCALATION TABLE<\/p>\n
\n\n Elapsed Time Severity 1 Severity 2 Severity 3
\n (Critical) (SERIOUS) (DEGRADED
\n OPERATIONS)
\n
\n Immediately Support Group
\n Leader
\n 2 hours Support Manager
\n 4 hours Support Director Support Group
\n Leader
\n 8 hours
\n 16 hours VP of Development Support Manager
\n 24 hours Support Group Leader
\n 32 hours Support Director
\n 40 hours CEO Support Manager
\n 80 hours VP of Development Support Director
\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n5 Fees.<\/p>\n
a. Plan Fees. No additional Fees are ascribed to service,
\n Partner will pay Active as set forth in Exhibit D.<\/p>\n
6. Term and Termination.<\/p>\n
a. Term and Termination. The term of this Service Plan
\n shall begin on the Effective Date and shall continue
\n unless earlier terminated pursuant to Section 13 of the
\n Hosting Agreement.<\/p>\n
b. Survival. The following provisions shall survive any
\n termination, expiration or cancellation of this Plan: 6
\n and 7.<\/p>\n
7. Proprietary Rights.<\/p>\n
Any corrections, additions or modifications to the
\n Software or Documentation effected or delivered under
\n this Plan and any Updates or Upgrades supplied under
\n this Plan shall be deemed part of the applicable
\n Software and subject to all of the provisions of the
\n License Agreement.<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6562,7212],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9613,9616],"class_list":["post-42337","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-active-software-inc","corporate_contracts_companies-corio-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42337","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42337"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42337"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42337"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42337"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}