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EXHIBIT 10.23
[The following agreement is an English translation of a German language
document. The original German document controls in the event that there are
differences between the original and this translation.]
Cooperation Agreement
between
[logo:] i-Cube
I-CUBE(R)
International Integration, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
(hereinafter called "i-Cube")
and
[logo:] debis Systemhaus
debis Systemhaus MEB
Mercedes EDV Beratung GmbH
Xxxxxxxxxx 0
X-00000 Xxxxxxxxxx-Xxxxxxxxxxxx
Xxxxxxx
(hereinafter called "MEB")
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I-Cube/MEB Agreement 07/09/97
1 Object of the Agreement 3
2 Introduction 4
2.1 Positioning within debis Systemhaus 4
2.2 Service Portfolio 4
3 Marketing / Sales 5
4 Organizational Requirements 5
4.1 Employee Training 5
4.2 Bid Handling 5
4.3 Order Handling 6
4.4 Project Handling 6
4.5 Escalation Authorities 6
4.6 Procedural Model 7
4.7 Regular Communication 7
5 Services of MEB 7
6 Services of i-Cube 7
7 Reciprocal Obligations 8
7.1 Joint Obligations 8
7.2 Obligations of i-Cube 8
7.3 Obligations of MEB 9
8 Compensation 10
8.1 Compensation for Projects 10
8.2 Brokering of Orders 10
8.3 Goal Agreement for MEB Sales 10
9 Reciprocal Liability of Parties 11
10 Separability Clause 11
11 Term 11
12 Confidentiality 12
12.1 Confidential Information 12
12.2 Exceptions 12
12.3 Disclosure based on Law 12
12.4 General Protection of Confidential Information 12
12.5 Protection of Software of the Parties and of Ownership Rights 13
12.6 Effectiveness of No. 12.1 13
13 Other Provisions 14
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I-Cube/MEB Agreement 07/09/97
Preamble
In the Memorandum of Understanding dated 01/29/97, i-Cube and debis Systemhaus
MEB Mercedes-EDV-Beratung GmbH declared their intention to work together in
future on the issues of rearchitecting, migrations, and customized
applications. The following contract contains the individual terms and
conditions under which a future cooperation between the two parties shall take
place. i-Cube and MEB have agreed as follows.
1 Object of the Agmement
The object of this Agreement is a partnering cooperation in sales and
implementation of projects.
The cooperation relates essentially to joint preparation and processing of the
German market in the first stage, and of the European market in the second
stage, joint targeted handling of interested parties from initial acquisition
until contract signing,and handling of projects until the delivery of the
finished solution to the end user.
The concrete obligations of MEB and i-Cube toward the end users shall be
determined according to the specific contract with the particular end user,
which is to be concluded under this cooperation agreement.
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I-Cube/MEB Agreement 07/09/97
2 Introduction
2.1 Positioning within debis Systemhaus
MEB shall market the services both in the debis Systemhaus and at Daimler-Benz
AG. For this purpose, MEB shall establish a Center of Competence,hereinafter
called CoC, for migrations, rearchitecting, and customized applications. This
CoC shall not be a legally independent entity and shall be a new unit within
debis Systemhaus MEB GmbH. All sales and project handling related activities
shall be managed through this center. This center shall include sales agents as
well as consultants and technicians.
The marketing of i-Cube services throughout debis Systemhaus shall be promoted
via this CoC. Thus MEB shall coordinate all activities within debis Systemhaus.
This Agreement ensures for i-Cube that via the Center of Competence there will
be only one coordinating office in debis Systemhaus.
In reciprocation, i-Cube guarantees to MEB that
- i-Cube shall not initiate or conclude agreements for general
cooperation with debis Systemhaus entities or entitles of the
Daimler-Benz Group without prior consent.
- i-Cube shall inform MEB if debis Systemhaus entities or entities of
the Daimler-Benz Group approach i-Cube with such intentions,
If MEB is not in a position to exercise the coordination within the DB Group,
then both parties shall mutually decide how to proceed further.
2.2 Service Portfolio
This cooperation is to be developed for the purpose of gaining joint customers
and realizing joint projects with them. The activities of MEB shall not be
limited only to purely acquisitional or sales-related tasks, but shall also
encompass project activities, It is the goal of the partnership that by a
certain time MEB shall be in a position to realize projects based on the
i-structure independently, without the collaboration of i-Cube.
The so-called i-structure of i-Cube is a set of tools and methods used for
migrations of legacy systems and for the development of customized applications.
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I-Cube/MEB Agreement 07/09/97
The cooperation between MEB and i-Cube is based on this i-structure. The
i-structure and the tools appear in Annex 1.
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3 Marketing / Sales
The description of the sales process is defined in the procedural model. The
acquisition occurs either with the customer directly (case of MBAG) or through
the sales channels of debis Systemhaus. An important starting point here is
constituted primarily by the so-called MDUs (market development units). These
units are set up according to industries and have the important
customers/interested parties defined as named accounts.
i-Cube and MEB shall review on an ongoing basis whether acquisition activities
have not already been initiated by third parties with respect to an interested
party who calls. This refers in particular to partnerships which i-Cube has
entered into with others,
i-Cube and MEB hereby agree that information shall be exchanged in regularly
held status meetings.
4 Organizational Requirements
4.1 Employee Training
MEB shall prepare jointly with i-Cube a training or education plan for employees
from the Center of Competence.
In this, MEB shall guarantee that
- qualified employees are provided
- these employees are released for training measures.
i-Cube shall guarantee that
- MEB is supported in the selection of qualified employees
- these employees receive a qualified education with respect to the
i-structure (this education shall be at no charge for MEB as part of
the jointly developed and agreed-on education plan).
4.2 Bid Handling
In general, MEB shall prepare a bid to the particular interested party for
issues relating to the i-structure or the CoC, and shall offer the services of
i-Cube in conjunction with i-Cube. However, it must be decided according to the
desire of the customer how the individual bids will be prepared, and who shall
assume which responsibility or even the management of the bid.
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I-Cube/MEB Agreement 07/09/97
In general it shall be true that all bids from i-Cube to MEB shall be prepared
in DM (German marks) or Euros.
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During the acquisition or bid phase, MEB may call on employees of i-Cube at no
charge (in the scope adequate for the particular case of acquisition) to clarify
technical issues regarding the i-structure, including visits to customers and
interested parties.
Both parties shall agree in the procedural model on a guideline regarding the
regulation of bid signing.
4.3 Order Handling
If a plan leads to an order, then it must be defined on a case-by-case basis who
the contract partners shall be or what contract relationships shall be
established. MEB will assume a coordinating role in this.
All payments from or to i-Cube shall be made in DM (German marks) or Euros. Any
currency risks must be taken into account in the bids from i-Cube.
4.4 Project Handling
The handling of individual projects shall be done jointly with MEB and/or the
particular debis Systemhaus companies. According to the requirements of the
project, of the particular company, or of the customer, employees from the
Center of Competence may be deployed in the implementation/coordination of
projects. This shall occur in consultation with i-Cube.
Both parties shall stipulate in the procedural model a project management
process for handling joint projects.
4.5 Escalation Authorities
i-Cube and MEB am stipulating a partnering cooperation in this Agreement. The
persons in charge of this cooperation are, on the MEB side, the director of the
Center of Competence and, on the i-Cube side, the director of Europe.
If situations or problems arise from the cooperation which cannot be solved
mutually by the two persons in charge (CoC director and director of Europe),
then the parties shall call upon an escalation committee.
This committee shall be composed as follows:
MEB i-Cube
MEB management i-Cube management
SOP/skills management director Director of Europe
Center of Competence director R&D director
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4.6 Procedural Model
This Agreement establishes a framework for a cooperation by both parties. The
CoC director together with the director of Europe shall prepare a detailed
procedural model on how the cooperation shall be carried out in practice. This
procedural model shall be prepared and approved mutually by both parties within
20 days after the signing of the Agreement and shall then form an integral
component of this Agreement.
4.7 Regular Communication
Both parties hereby stipulate that the CoC directorship shall hold regular
meetings with the director of i-Cube Europe at least once a month, in order to
discusses [sic] the then current status of projects and plans.
The results shall be made known to the management teams of both parties.
5 Services of MEB
The following services shall essentially be provided by MEB:
- marketing measures, acquisition and sales of projects based on the
i-structure
- installation of the Center of Competence
- training of employees
- participation in or implementation of projects
- provision of tools of debis Systemhaus
- coordination of activities within debis Systemhaus
The individual services shall be defined jointly by i-Cube and MEB in the
procedural model.
6 Services of i-Cube
The following activities shall essentially be provided by i-Cube:
- provision of informational materials
- training of CoC employees
- support of the sales process
- implementation of projects
- provision of i-structure
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The individual services shall be defined jointly by i-Cube and MEB in the
procedural model.
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7 Reciprocal Obligations
7.1 Joint Obligations
Both parties undertake in conjunction with the other party to implement together
appropriate measures to gain new interested parties.
Both parties undertake to inform the other party immediately of new
acquisition projects and to make a decision about joint processing.
The cases of joint processing shall be documented in a prospect list which is
updated monthly and which is expressly a part of this Agreement. The authorities
responsible for this are defined in Point 4.7.
Both parties are concerned to process the cases in this list jointly according
to the rules of this Agreement. If this should be impossible, then both parties
shall mutually define a corresponding procedure.
For plans that were not generated from the CoC, both parties shall make an
agreement as to how decisions shall be made in this case.
The agreement regarding the case-specific procedure shall be done on the
operational level between the sales employees responsible for the particular
interested party/customer.
Both partners undertake to inform the other partner regularly in written form on
a monthly basis about the status of the particular cases being processed and
immediately about case-related activities and the results thereof.
7.2 Obligations of i-Cube
i-Cube hereby undertakes within the framework of the cooperation:
a) to provide the required sales services
in the scope adequate for the particular case of acquisition.
This shall be applicable in particular for the part of the preparation and
formulation of bids, the implementation of acquisition measures, etc. which is
specific to i-Cube.
b) to provide without charge the required system-technical and corresponding
i-Cube product-related technical support, to the extent that this is required
for the joint success and invoicing to the interested party/customer not
possible.
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7.3 Obligations of
MEB MEB undertakes within the framework of the cooperation:
a) in the scope adequate for the particular case of acquisition
to provide the required sales support. This applies in particular to the
development of new interested parties, the industry-specific technical part of
the preparation and working out of bids, the implementation of acquisition
measures, etc.
to provide without charge the required i-structure-related support, to the
extent that this is required for the joint success and invoicing to the
interested party/customer not possible.
b) to assume the general contractorship for joint projects related to the
i-structure, if this is requested by the end user.
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8 Compensation
In general, the following applies:
The earnings achieved within the framework of cooperation shall belong to each
partner for the deliveries, services, and license grants provided by it.
The costs incurred by the partners within the framework of cooperation, for
example sales, travel, and presale costs, shall be home by each partner by
itself.
A written agreement regarding the distribution of costs for measures to be
implemented jointly, for example presentations and trade fairs, shall be made in
each individual case prior to implementation of the measures.
8.1 Compensation for Projects
i-Cube and MEB shall jointly prepare a case-specific calculation of the
joint projects.
8.2 Brokering of Orders
The goal of this agreement is to process orders jointly through the CoC. If for
any reason processing is not possible, and the plan was acquired by MEB, then
MEB shall receive from i-Cube a commission in the amount of 1.5% of the order
value.
8.3 Goal Agreement for MEB Sales
The compensation of the sales department or the sales employees of MEB shall
occur directly and exclusively through MEB.
MEB will establish a corresponding goal agreement with the sales employees
responsible for the marketing of migration and rearchitecting and customized
application projects.
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9 Reciprocal Liability of Parties
The partners shall be liable to one another for personal, property and
asset damages only up to the level of the bid value or the prospective order
value, but no more than an amount of DM 500,000. This shall also apply for the
personal liability of their employees and vicarious agents - for any legal xxxxx
whatsoever.
Liability is limited to malicious intent and gross negligence. Damage
compensation claims extending beyond that, for any legal-xxxxx whatsoever, shall
be excluded as far as possible by law.
10 Separability Clause
The complete or partial ineffectiveness or unenforceability of individual
provisions of this Agreement shall not result in its ineffectiveness as a whole.
The ineffective or unenforceable provision shall be replaced by one that comes
as close as possible to the economic effect of the ineffective or unenforceable
provision. The same applies for the case of a gap in the stipulations.
11 Term
The cooperation agreement is concluded for a period of 5 years and is extended
by up to 3 additional years.
The Agreement may be terminated by each partner in written form with a notice
period of 12 months as of the end of the year without stating masons.
Termination without notice for good cause shall remain unaffected hereby.
In case of termination, an agreement shall be made on a case-specific basis
about the further treatment of the acquisition and installation cases being
handled jointly.
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12 Confidentiality
12.1 Confidential Information
Confidential information encompasses all confidential information which one
party has given over to the other, verbally or in written form, including but
not limited to the software of one party (regardless of whether in object code
or source code), documentation, business secrets, or other confidential
information, including information disclosed prior to the date of this
Agreement, which relates to the business or business activity of one party
(including the business activity of dependent companies ("confidential
information")).
12.2 Exceptions
Confidential information does not encompass information (i) which is generally
known to companies working in the business sector of the disclosing party; (ii)
which were acquired by one party honestly without restrictions regarding the
disclosure; (iii) which were conveyed to the party receiving the information
prior to the receipt from the disclosing party without restrictions of
confidentiality; or (iv) which were developed independently by the party
receiving the information without information from the disclosing party.
12.3 Disclosure Based on Law
If a party or one of its vicarious agents is required by law to disclose
confidential information, then this party shall immediately inform the other
party of such necessity prior to the disclosure. The parties shall join forces
and sincerely attempt to agree on an agreement [sic] about the form and
conditions of a disclosure which is acceptable to both parties within the
framework of the circumstances under which the disclosure is to be made. If
after such a notification and consultation the parties are unable to agree on a
mutually acceptable form and conditions for the disclosure, then the party
required by law to disclose the information shall not be subject to liability
with respect to the other party, as long as the disclosing party undertakes
reasonable efforts to obtain a protective declaration or other reliable
declaration which guarantees that the confidential information will be treated
confidentially by the agency demanding the disclosure.
12.4 General Protection of Confidential Information
The parties are in agreement (i) that they will not make the confidential
information of the other party available to any third party except as set forth
in this Section 1.4 and (ii) that they will use the confidential information of
the other only for the purpose of concluding a project or in such a way as is
set forth elsewhere in the provisions of this Agreement, including any license
agreement
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I-Cube/MEB Agreement 07/09/97
referred to in this Agreement. Each party may [word missing] confidential
information to its organizational bodies, directors, and employees participating
in or supervising the project, to its auditors, tax consultants, and other
vicarious agents having a bona fide interest in the information (together "the
agents"),provided that, prior to disclosing the confidential information to an
agent, the party informs this agent of the requirements of this Agreement and
receives an agreement from this agent according to which the agent undertakes to
observe the confidentiality provision of this Agreement. Each party shall inform
the other party immediately after it hears of an unauthorized disclosure or use
of the confidential Information of the other party, and shall take all measures
demanded by the other party to remedy such disclosure or use. Each party shall
reproduce on all copies of confidential information all indications of
confidentiality and ownership which are affixed to the originals. Each party
undertakes not to pass on any confidential information of the other party
outside of Germany without written permission from the other party.
12.5 Protection of Software of the Parties and of Ownership Rights
Debis software is the sole and exclusive property of debis, and i-Cube software
is the sole and exclusive property of i-Cube. The i-structures developed by
i-Cube are proprietary. They are the property of i-Cube, and neither the signing
of an agreement nor the completion of a joint project shall transfer the
ownership rights or license rights. If the tools are used in order to carry out
a migration, the rights to the resulting application shall remain with the
customer and i-Cube. i-Cube or debis, depending, shall retain all copyrights and
other rights to their software documentation. The parties hereby agree (i) to
protect and uphold the confidentiality of the software and documentation of the
other party, (ii) not to alter or rework or to attempt to alter or rework the
software of the other party, unless expressly allowed under the terms and
conditions of this Agreement, and (iii) not to copy the software of
documentation of the other participants, except as expressly allowed under the
terms and conditions of this Agreement.
12.6 Effectiveness of No. 12.1
The rights and obligations of the parties under this No, 1 shall remain in
effect beginning on the date of signing of this Agreement and ending 5 years
after the dissolution or termination of this Agreement. The limitations on
disclosure regulated in No. 1.5 shall continue indefinitely.
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