OneSoft Corporation Customer Compaq
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OneSoft Corporation has omitted from this Exhibit 10.27 portions of this
Agreement for which OneSoft Corporation has requested confidential treatment
from the Securities and Exchange Commission. The portions of the Agreement for
which confidential treatment have been requested have been filed separately with
the Securities and Exchange Commission. Such omitted portions have been marked
with an asterisk.
EXHIBIT 10.27
ONESOFT COMMERCE PARTNER
JUMPSTART TRAINING PROGRAM AGREEMENT
THIS JUMPSTART TRAINING PROGRAM AGREEMENT (including any attachments
incorporated herein by reference, this "Agreement") is entered into as of the
25th day of August, 1999, between ONESOFT CORPORATION ("ONESOFT"), a Delaware
corporation, having an office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, and Compaq Computer Corporation("CUSTOMER"), having an office at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
A. PURPOSE.
--------
This Agreement is intended, among other things, to outline the JumpStart
Training Program for OneSoft Commerce Partners, conducted for the purpose of
certifying CUSTOMER to be a OneSoft Commerce Partner (a "OCP").
B. RELATIONSHIP OF ONESOFT TO CUSTOMER.
------------------------------------
It is expressly agreed that the parties, for the sole purpose of this Agreement,
are not, and shall not be, considered as joint venturers, partners, servants,
employees or fiduciaries of each other, and neither shall have the power to bind
or obligate the other except as expressly set forth in this Agreement.
C. SCOPE OF SERVICES.
------------------
ONESOFT shall provide CUSTOMER with certification training as set forth on
Schedule 1 attached hereto and made a part hereof. OCP designation is
contingent upon successful completion of the training requirements as set forth
in Schedule 1 for three full-time employed individuals from the CUSTOMER
(pursuant to Section D.2 of the OCP Master Agreement), and contingent upon the
successful execution of the OCP Master Agreement.
D. TERMS.
------
1. ONESOFT shall *********** for the JumpStart Training Program as set forth
in the attached Schedule 2 for **************** the JumpStart Training
Program *********** and ********** . ONESOFT shall charge a fee of
$********** for each additional personnel of CUSTOMER that attend or
complete the JumpStart Training Program *********** .
2. The training tracks are identified as Sales Track and Technical Track.
CUSTOMER is required to certify at least ******** through the Sales
Training track and at least ********** through the Technical Training Track
in order to qualify for the OCP designation. Training of these ********* is
included in the *************** of the OCP JumpStart Training Program as
shown in Schedule 2. Additional personnel may be included in the JumpStart
Training Program ************** as specified in Schedule 2 CUSTOMER shall
provide ONESOFT with the names and titles of individuals participating in
the JumpStart Training Program as set forth on Schedule 3.
3. The CUSTOMER must complete the OCP JumpStart training program to become an
OCP.
4. Upon execution of an OCP Master Agreement and successful completion of the
OCP JumpStart Training Program, CUSTOMER will receive the OCP designation
and the OCP materials.
5. By entering into this Agreement, CUSTOMER hereby agrees to complete the
JumpStart Training Program within 12 months. Until such time, the CUSTOMER
is proscribed from using the OCP designation. If the CUSTOMER does not
complete the required OCP training ************ , they will forfeit any and
all fees to OneSoft, and will need to re-qualify for consideration into the
OCP program.
E. DURATION.
---------
The provisions of this Agreement shall become effective immediately upon its
execution and shall remain in full force and effect for a period of ONE YEAR
from the date hereof.
F. CONFIDENTIALITY.
----------------
1. CUSTOMER agrees that in connection with the parties' performance under this
Agreement, CUSTOMER may have access to confidential, proprietary or trade
secret information owned and/or provided by ONESOFT relating to software
computer programs, object
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OneSoft Corporation Customer Compaq
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code, source code, database schemes, marketing plans, business plans,
financial information, specifications, flow charts, other disclosed
documents and other information as described in Schedule 1 of this
Agreement ("Confidential Information"). All Confidential Information
supplied by ONESOFT to CUSTOMER shall remain the exclusive property of
ONESOFT. While ONESOFT agrees to make reasonable efforts to identify
Confidential Information to CUSTOMER, CUSTOMER acknowledges that common
business practices will also apply to the recognition and definition of
such Confidential Information. CUSTOMER shall use such Confidential
Information only for the purposes permitted under this Agreement and shall
not copy, disclose, convey or transfer any such Confidential Information or
any part thereof to any third party.
2. Information is not Confidential Information under this Agreement if it:
. Was already known by the party to which the information was disclosed
before the time of its disclosure by the disclosing party, as
evidenced by written records prepared prior to such disclosure;
. Is or becomes publicly known through no wrongful act of the party to
which the information was disclosed;
. Is rightfully received by the party to which the information was
disclosed from a third person having no obligation to refrain from
disclosing such information to such party; or
. Is required by law to be disclosed.
3. In the event that the CUSTOMER fails to complete the training requirements
within one (1) year from the date of this Agreement, the CUSTOMER shall
cease all use, licensing or distribution, whatsoever of the OCP Starter Kit
materials and any other Confidential Information provided to CUSTOMER by
ONESOFT pursuant to this Agreement, all related documentation and ONESOFT's
names and marks, including the OCP designation, and shall return to ONESOFT
all copies of the OCP Starter Kit, related documentation, specifications,
training materials and all other materials provided by ONESOFT to CUSTOMER
and materials incorporating any of ONESOFT's products or ONESOFT's names or
marks, in CUSTOMER's possession or under its control.
G. DISCLAIMER.
-----------
ONESOFT MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE TRAINING
SERVICES RENDERED OR THE RESULTS OBTAINED FROM THE TRAINING, INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL ONESOFT (OR ITS EMPLOYEES, AGENTS OR SUPPLIERS) BE
LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(INCLUDING WITHOUT LIMITATION LOST PROFIT), EVEN IF ADVISED OF THE POSSIBILITY
THEREOF, AND REGARDLESS OF WHETHER ANY CLAIM IS BASED UPON ANY AGREEMENT,
NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY.
ONESOFT'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF
THE AGGREGATE FEES RECEIVED BY ONESOFT FROM CUSTOMER HEREUNDER, NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
H. OWNERSHIP; PROPRIETARY RIGHTS
-----------------------------
1. Except as otherwise expressly provided in Subparagraph H(10), all
"Software," all "Tools," and all "Objects" (as such terms are defined), in
any form, are and shall remain the sole and exclusive property of ONESOFT
and shall be deemed its Confidential Information.
2. Except as expressly provided in this Agreement, CUSTOMER does not acquire
any right or license in ONESOFT's Software, Tools, and/or Objects.
3. "Tools" means ONESOFT's proprietary information and know-how and used at
any time by ONESOFT in the conduct of its business. This includes, by way
of illustration but not limitation, technical information, designs,
templates, software modules, processes, methodologies, systems used to
create computer programs and/or software, procedures, code books, computer
programs, plans, and/or any other similar information including
improvements, modifications or developments thereto.
4. "Objects" mean any and all of ONESOFT's proprietary reusable software code.
5. "Software" means any and all of ONESOFT's proprietary software code.
6. In the event that either party is required by judicial or administrative
process to disclose any or all of the materials or information to treated
as Confidential Information in this Agreement, such party shall promptly
notify the disclosing party and allow the disclosing party a reasonable
period of time, subject to the requirements to disclose such materials or
information, to oppose such process before making disclosure.
7. Each party understands and agrees that any use or dissemination of any
information or materials in violation of this Agreement will cause the
other party irreparable harm, will leave such party with no adequate remedy
at law, and thus will entitle such party to injunctive relief in addition
to all other remedies available under law. A party that violates its
obligations concerning Confidential Information, shall reimburse the other
party for reasonable costs and expenses (including reasonable attorneys'
fees) incurred in enforcing its rights with respect to such violation.
8. Subject to the limitations set forth herein, ONESOFT grants, without
charge, and CUSTOMER accepts, a limited, non-exclusive, non-transferable,
royalty free, revocable license to use ONESOFT's Evaluation Edition
OneCommerce(TM) suite of internet commerce software, and/or any application
provided in the Starter Kit under this Agreement (the "Software" or
"ONESOFT Product"). ONESOFT shall provide CUSTOMER with one copy of the
Software (as defined), in object-code form, to be used solely for purposes
authorized in this Subparagraph H.10. CUSTOMER shall not copy the Software,
except as provided in this Agreement. CUSTOMER shall not modify, decompile,
reverse engineer, recreate, disassemble, or otherwise attempt to determine
the makeup of the Software. CUSTOMER shall not use the Software except as
expressly provided in this Agreement. CUSTOMER shall not permit employees
of CUSTOMER (or any other persons) to use the Software except for those
employees with a need to use the Software to effect the
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OneSoft Corporation Customer Compaq
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purposes of this Agreement, and, in any event, CUSTOMER may use the
Software only for the purpose of sales and marketing and internal training
necessary to effect the purposes of this Agreement. It is expressly agreed,
without limiting the generality of the foregoing, that CUSTOMER shall not:
(i) use the Software for the purpose of engaging in electronic commerce or
other commercial purposes; (ii) lend the Software to potential or current
clients, use the Software on hardware not owned by CUSTOMER; (iii) or
provide access to anyone who is not an employee or contract worker of
CUSTOMER; (iv) use the Software to develop applications for the purpose of
supporting internal or commercial CUSTOMER activities; (v) except as
provided for herein, copy any part of the Software for any reason other
than for archival or emergency restart purposes or program error
verification; (vi) sublicense, rent or otherwise make the Software
available outside of CUSTOMER's legal business entity or to any third party
for a fee (in a service bureau environment or otherwise) or otherwise
transfer or grant any rights or access to third parties; (vii) modify,
decompile, reverse engineer, recreate, disassemble, or otherwise attempt to
determine the makeup of the Software. Except as expressly set forth herein,
this Paragraph H does not constitute a license to use Software, Software
Products, Tools, or Objects, which CUSTOMER must separately license from
ONESOFT as necessary.
9. Nothing in this Agreement shall be deemed to limit CUSTOMER's rights to
develop and market functionally comparable products to the ONESOFT Product,
or to provide e-commerce solutions, provided CUSTOMER does not violate the
terms and conditions of Sections F and H herein.
10. Unless otherwise agreed in writing, nothing herein shall be deemed to
authorize the CUSTOMER to use any pending and/or existing trademark or
service ▇▇▇▇ of ONESOFT. The CUSTOMER shall not remove or alter any pending
and/or existing copyright and/or trade secret notice affixed to any
software or documentation provided by or through ONESOFT, without the
express written consent of ONESOFT.
I. GENERAL PROVISIONS
------------------
1. Rights under this Agreement shall not be assigned, sublicensed, encumbered
by security interest or otherwise transferred or resold by CUSTOMER
(whether by operation of law or otherwise) without the prior written
consent of ONESOFT, and any purported assignment, sublicense, encumbrance
or other transfer of such rights, in violation of this Agreement, shall be
void. An , acquisition, or merger of CUSTOMER by or with any person or
entity who is not a party to this Agreement shall be treated as an
assignment of this Agreement that is subject to the provisions of the
foregoing sentence. ONESOFT may assign its rights and obligations under
this Agreement to any party acquiring all or substantially all of its
business, regardless of the form of the transaction.
2. This Agreement may only be amended by instrument in writing signed by both
parties. Schedules attached hereto are to be considered such a writing, and
are hereby incorporated herein, once they are signed by both parties.
3. The failure of either party to require the strict performance of any
provisions of this Agreement in any one or more instances, or to exercise
its rights hereunder or at law or equity, shall not constitute a waiver of
any provisions or rights under this Agreement, and such provisions and
rights shall continue in full force and effect.
4. Neither party shall directly or indirectly solicit or offer employment to
an employee or subcontractor of the other party during the term of this
Agreement, and for *************** thereafter, unless otherwise agreed to
by the respective party. For purposes of this Agreement, use of general
advertising and independent employment agencies, if not directed at
CUSTOMER's or ONESOFT employees, shall not constitute solicitation.
5. If any provision of this Agreement is held to be invalid, the remaining
provisions will continue to be valid and enforceable.
6. ONESOFT shall be excused from performance hereunder to the extent that
performance is prevented or delayed by causes beyond ONESOFT's reasonable
control, including without limitation, Acts of God (fire, storm, floods,
earthquakes, etc.), civil disturbances or disruption of telecommunications
or other essential services.
7. CUSTOMER shall not directly or indirectly export or re-export any services,
software, equipment, technology or data supplied by ONESOFT under this
Agreement to Afghanistan, the People's Republic of China or any Group Q, S,
W, Y or Z country specified in Supplement 1 to Part 770 of the U.S. Export
Administration Regulations. This provision and the assurances made herein
shall survive termination of this Agreement whether in part or whole.
8. Each party agrees to inform the other of any information made available to
the other party that is classified or restricted data, agrees to comply
with the security requirements imposed by any state or local government, or
by the United States Government, and shall return all such material upon
request. Each party warrants that its participation in this Agreement does
not conflict with any contractual or other obligation of the party or
create any conflict of interest prohibited by the U.S. Government or any
other governmental authority, and shall promptly notify the other party if
any such conflict arises during the term of this Agreement.
9. Each party shall maintain commercially reasonable and adequate insurance
protection covering its respective activities hereunder, including coverage
for statutory worker's compensation, comprehensive general liability for
bodily injury and tangible property damage, as well as adequate coverage
for vehicles. Each party shall indemnify and hold the other harmless from
liability for bodily injury, death and tangible property damage to the
extent of the acts or omissions of such party, its officers, agents,
employees or representatives acting within the scope of their work.
10. The parties acknowledge that violation by a party of the provisions of
Section H would cause irreparable harm to the other party that could not be
adequately compensated for by monetary damages. In addition to other
relief, it is agreed that temporary and permanent injunctive relief shall
be available without necessity of posting bond to prevent any actual or
threatened violation of such provisions or to enforce such provisions
according to their terms.
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OneSoft Corporation Customer Compaq
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11. THIS AGREEMENT, AND SCHEDULES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE COMMONWEALTH OF VIRGINIA,
EXCLUDING ITS CHOICE OF LAW RULES. ANY PROCEEDING OR DISPUTE RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE INITIATED
AND MAINTAINED IN COURTS LOCATED IN SUCH COMMONWEALTH.
12. The headings of this Agreement are for reference purposes only and do not
affect the meaning or construction of the provisions of this Agreement.
13. This Agreement constitutes the entire agreement of the parties with respect
to the subject matter hereof and the parties agree that there are no other
representations, warranties or oral agreements relating to the subject
matter of this agreement.
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OneSoft Corporation Customer Compaq
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NOTICES
All notices, requests, consents and other communications hereunder shall be in
writing, shall be addressed to the receiving party's address set forth below, or
to other addresses as a party may designate by notice hereunder, and shall be
either (i) delivered by hand, (ii) made by telex or facsimile transmission,
(iii) sent by overnight courier or, (iv) sent by registered or certified mail,
return receipt requested, postage prepaid.
If to ONESOFT:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Title: Corporate Counsel
OneSoft Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to CUSTOMER:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: E-Commerce Marketing Manager
Compaq Computer Corporation
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement on
the date stated above.
ONESOFT CORPORATION COMPAQ COMPUTER CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------- --------------------------
Title: Corporate Counsel Title: 3rd Party Contracts Mgr.
-------------------- -------------------------
Date: 8-25-99 Date: August 24, 1999
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OneSoft Commerce Partner (OCP) Program
================================================================================
JUMPSTART AGREEMENT SCHEDULE 1
PROGRAM DETAILS
The OCP JumpStart program is designed specifically to provide MCSPs with
the knowledge, skills, tools, and products required for successfully
selling and rapidly deploying Internet commerce solutions.
PROGRAM LOGISTICS
All Training will be conducted at OneSoft's Corporate Headquarters, located
at:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PROGRAM AGENDAS
Sales Professional Certification course will cover:
. **************
Deployment Professional Certification: This course will cover:
OneStrategy consulting engagements
********
PROGRAM TOOLS/SOFTWARE
At the end of training, OCPs will receive the following materials:
SOFTWARE
. One (1) *********** of ***********
. One (1) ********** of *********
**********
SALES TOOLS
. One (1) ********** of ********** , designed specifically to **********
the ability to ************
. One (1) ********** of ********** that enables ********* to **********
for their customers.
. Sales and marketing collateral
IMPLEMENTATION TOOLS
. **************** Detailing all **********
SUPPORT
. ***** FREE ********* Calls
--------------------------------------------------------------------------------
Confidential Information 01/26/0001/26/00
OneSoft Commerce Partner (OCP) Program
================================================================================
JUMPSTART AGREEMENT SCHEDULE 2
PROGRAM FEES
OCP JumpStart fee ******************** for all of CUSTOMER's personnel that
complete the JumpStart Training Program ************ and ************ . ONESOFT
shall **************** additional personnel of CUSTOMER that attend or complete
the JumpStart Training Program ***********.
All MCSPs participating in the program are required to enroll one (1) Sales
Professional and two (2) Deployment Professionals in OCP training.
--------------------------------------------------------------------------------
Confidential Information 01/26/0001/26/00
OneSoft Commerce Partner (OCP) Program
================================================================================
JUMPSTART AGREEMENT SCHEDULE 3
LIST OF JUMPSTART TRAINING ATTENDEES
***************
--------------------------------------------------------------------------------
Confidential Information 01/26/0001/26/00
ADDENDUM #1 TO ONESOFT COMMERCE PARTNER
JUMPSTART TRAINING PROGRAM AGREEMENT
This Addendum to OneSoft Commerce Partner Jumpstart Training Program
Agreement is dated this 13/th/ day of September 1999 by and between OneSoft
Corporation ("OneSoft") and Compaq Computer Corporation ("Compaq"). This
Addendum shall amend the OneSoft Commerce Partner Jumpstart Training Program
entered between the parties dated August 25, 1999 ("Agreement") as follows:
1. Compaq, at its expense, shall ship to OneSoft a server on which OneSoft
will install OneSoft's OneCommerce/TM/ 2.1 software ("Software"). Once
the Software is installed, the server shall be returned to Compaq at
OneSoft's expense.
2. Compaq shall be authorized to use the Software as specified in
paragraph H.8 of the Agreement solely for evaluation purposes for ****
days commencing on the date that Compaq is in receipt of the server on
which the Software has been installed. Compaq is expressly prohibited
from using the Software to develop websites for clients until the
parties have entered into an agreement in which OneSoft extends Compaq
a license to use the Software for additional purposes. Compaq's use of
the Software for non-evaluation purposes shall constitute a material
breach of the Jumpstart Training Program Agreement and its right to use
the Software shall automatically be rescinded without further notice.
3. It is further stipulated and agreed that all other terms and conditions
of said Agreement shall remain the same.
COMPAQ COMPUTER CORPORATION ONESOFT CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- --------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------- ----------------------------
Title: 3/rd/ party Contracts Mgr. Title: Corporate Counsel
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