EXHIBIT 10.40
AMENDMENT TO AGREEMENT
This AMENDMENT TO AGREEMENT (the "Amendment") is effective as of 8/31/99
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("Effective Date") by and between AvantGo, Inc., with an office at 0000 X.
Xxxxxxxx Xxxx., Xxxxx 000, Xxx Xxxxx, XX 00000 ("AvantGo"), and McKessonHBOC
Corporation ("Licensee"), with an office at Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, XX
00000 ("Licensee").
Background
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AvantGo and Licensee entered into a License Agreement dated October 1, 1998 (the
"License Agreement") in which AvantGo licensed certain software to Licensee for
Licensee to distribute internally. The parties now wish to amend the License
Agreement.
Agreement
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1. Exhibit B of the License Agreement is hereby replaced by the following:
Exhibit B
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# of Licenses Price / Discount Maint / Purchase Comments
License Level Support Date
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[******] $[******] [******]% [******]% Aug 30, 1999 Option for [******] unit pricing
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[******] $[******] [******]% [******]% Dec 31, 1999 Option for future pricing as
described
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[******] $[******] [******]% [******]% Within 3 years
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[******] $[******] [******]% [******]% Within 5 years If purchase [******] within 3
years, pricing extends to 5
years
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[******] $[******] [******]% [******]% Within 5 years Maintenance/Support capped at
$[******]/year
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. Maintenance and Support cost is based upon current devices pricing tier
multiplied by all previously purchased devices.
. Includes as many AvantGo servers as reasonably necessary.
. Includes all current and future AvantGo client and server releases.
. For purposes of audit, number of units will be defined as those which have
synced within the 3 months preceding the audit. Any users not counted under
this provision will be removed from the system.
. McKessonHBOC OEM customers will not pay additional license fee to access
McKessonHBOC enterprise solutions.
. Pricing terms are for up to 5 years from the Effective Date of this
Amendment.
. McKessonHBOC reserves the right to renegotiate.
. Discount tier applies to other future AvantGo products.
2. If McKessonHBOC decides to resell AvantGo to its customers, McKessonHBOC and
AvantGo agree to amend the License Agreement to allow for resale. The resale
prices would be subject to this Amendment.
3. Except as so amended, the License Agreement shall remain in full force and
effect.
4. Capitalized terms used without definition herein shall have the meaning
given them in the License Agreement.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
1
IN WITNESS WHEREOF, the parties have executed this Amendment by their
qualified representatives effective as of the date first above written.
AvantGo, Inc. McKessonHBOC Corporation
Signature: /s/Xxxxx Xxx Signature: /s/Xxxxxx X. Xxxxxx
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Name: Xxxxx Xxx Name: Xxxxxx X. Xxxxx
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Title: CEO Title: VP Logistics Technologies
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Date: 8/31/99 Date: 8/30/99
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2
ATTACHMENT A
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AMEX AGREEMENT
This AMEX Agreement ("Content Agreement") with an effective date of
February 16, 2000 ("Effective Date") is entered into between AvantGo, Inc
("AvantGo"), and American Express ("AMEX").
1. Definitions.
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"AMEX Channel" means a web page on the AMEX WWW Site that is delivered via the
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Service to an End User's Handheld Device when the Handheld Device is connected
wirelessly, connected through synchronization with such End User's desktop
computer or through any other means.
"AMEX Content" means those portions of the trademarks, service marks, other
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indicia of origin, domain names, URL, copyrighted material and art work owned or
licensed by AMEX and any additional information which is developed by or on
behalf of AMEX for delivery through the AMEX Channel.
"AMEX WWW Site" means the WWW site operated by or on behalf of AMEX or an AMEX
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affiliate, which may have links to mirror sites, or contain co-branded sites and
successor sites to the foregoing.
"AvantGo Style Guide" means the AvantGo guide which specifies guidelines and
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procedures for developing WWW content which is optimized for the small graphics
display of Handheld Devices, a copy of which is located at
xxxx://xxxx.xxxxxxx.xxx/XxxXxxxxx/XxxxxXxxxx/ and is incorporated herein by
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reference.
"AvantGo WWW Site" means the WWW site operated by AvantGo at
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xxxx://xxxxxxx.xxx/xxxxxxxx/ and any successor site thereto.
"AMEX End Users" means any party that uses a Handheld Device to access the AMEX
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Content.
"Confidential Information" of a party means any information, including
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information about technologies, business strategies, distribution activities,
product features, methodologies, demographics, and usage patterns, disclosed by
that party to the other party pursuant to this Content Agreement, subject to
the exceptions in Section 6.2 below."
"Download AvantGo Icon" means the link on the AMEX WWW Site to the AvantGo WWW
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Site where users of such site may successfully download AvantGo software for use
in connection with AvantGo Service.
"End User" means any party that uses a Handheld Device and accesses the Service.
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"Handheld Device" means any device that is able to receive or store information
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including, but not limited to, Palm OS devices, Windows CE devices, cell phones,
pagers, smartphones and other devices, whether wireless, wireline or requiring
cradle synchronization.
"Licensed Materials" means the AvantGo trademarks and Icons (as defined in
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Section 2.2(ii) below).
"Promotion" shall have the meaning ascribed to it in Section 3.3 herein.
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"Service" means the service provided by AvantGo to users of Handheld Devices
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facilitating the delivery of content to users.
"Subscribe to Channel" means a web page on the AMEX WWW Site where users of that
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page can subscribe to the Service.
"URL" means Universal Resource Locator.
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"WWW" means the part of the Internet commonly known as the World Wide Web.
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2. License Grants.
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2.1. Content License. Subject to the terms and conditions of this Content
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Agreement, AMEX hereby grants AvantGo a nonexclusive, non-transferable,
revocable, worldwide license to use, copy (including, without limitation,
caching for performance purposes), perform, display and redistribute the AMEX
Content solely for purposes of providing the Service and AMEX Content to an
unlimited number of End Users. AvantGo may, with prior written consent from
AMEX, display the AMEX Channels through the Service under the brand of a third
party or co-branded with such third party.
2.2 Trademark License.
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(i) By AMEX. Subject to the terms and conditions of this Content
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Agreement, AMEX hereby grants AvantGo a nonexclusive, non-transferable,
revocable, worldwide license to use AMEX's trademarks, trade names and logos set
forth on Exhibit A (the "AMEX Trademarks") solely in connection with the display
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of AMEX Channels through the Service and the marketing of the AMEX Content and
AMEX Channels. Notwithstanding any other provision of this Content Agreement to
the contrary, AvantGo shall not have the right to use AMEX Trademarks or to
refer to AMEX directly or indirectly, in connection with any product, promotion
or publication without the prior written approval of AMEX. Any prior consent of
use or reference may be revoked by AMEX at any time with immediate effect.
AvantGo shall comply with any usage guidelines which may be provided to AvantGo
by AMEX from time to time. AvantGo shall not challenge AMEX's ownership of AMEX
Trademarks or use or adopt any trademarks which might be confusingly similar to
such AMEX Trademarks.
(ii) By AvantGo. Subject to the terms and conditions of this Content
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Agreement, AvantGo hereby grants to AMEX a nonexclusive, non-transferable,
revocable, worldwide license to (i) display the "Download AvantGo" icon on the
AMEX WWW Site for the purpose of linking AMEX WWW Site users to that portion of
the AvantGo WWW Site where such users may download AvantGo software for use in
connection with the Service and (ii) display the "Subscribe to Channel" icon on
the AMEX WWW Site to enable End Users to subscribe to the AMEX WWW Site as an
AMEX Channel (collectively the "AvantGo Icons"). AMEX shall comply with any
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usage guidelines which may be provided to AMEX by AvantGo from time to time, and
upon request by AvantGo, shall furnish AvantGo with samples of AMEX's usage of
such AvantGo Icons. Notwithstanding any other provision of this Content
Agreement to the contrary, AMEX shall not have the right to use AvantGo Icons or
to refer to AvantGo directly or indirectly, in connection with any product,
promotion or publication without the prior written approval of AvantGo. Any
prior consent of use or reference may be revoked by AvantGo at any time with
immediate effect. AMEX shall not challenge AvantGo's ownership of such AvantGo
Icons or use or adopt any trademarks which might be confusingly similar to such
AvantGo Icons.
2.3 Restrictions. Neither party shall have the right to sublicense any of
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the rights granted to such party in this Section 2; provided, however, that AMEX
End Users shall have the right to copy and use the AMEX Content on such AMEX End
User's Handheld Device solely for personal use. AMEX shall not rent, lease,
reproduce, modify, translate, or create derivative works of the Licensed
Materials. AvantGo reserves all rights in the Licensed Materials which are not
expressly granted to AMEX in this Content Agreement.
2.4. Proprietary Notices. The parties agree they will not remove any
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copyright or other proprietary rights notices from the other party's trademarks
or the Licensed Materials.
2.5 AMEX shall be allowed to deliver an unlimited amount of AMEX Content
via the AMEX Channel to an unlimited number of users during the period in which
AMEX has paid the XxxxxXx.xxx Network Access and Maintenance Fee identified in
the Agreement.
3. Obligations of AMEX.
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3.1 Contacts. AMEX shall designate one person who shall be the exclusive
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point of contact with AvantGo with respect to all technical issues hereunder
("Technical Contact"), and one person who shall be the exclusive point of
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contact with AvantGo with respect to all marketing issues hereunder ("Marketing
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Contact"). The Technical Contact and Marketing Contact are set forth on Exhibit
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A. AMEX will have the right to change the Technical Contact or the Marketing
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Contact upon prior notice to AvantGo.
3.2 Content Development and Change. AMEX shall use its commercially
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reasonable efforts to develop and make AMEX Content available to End Users. AMEX
will ensure that the URL links developed for the Service to access the AMEX
Content are only accessible via the AvantGo browser and by no other third party
browser. The procedure for ensuring compliance with this requirement is
described in the Style Guide. AMEX shall provide AvantGo with reasonable advance
notice of any changes in the AMEX Content. AMEX will be solely responsible for
developing and formatting the AMEX Content.
3.3 Promotions AMEX shall promote the AMEX Channel and the Service
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through various promotional programs and channels as the parties shall mutually
agree ("Promotions"). All marketing and other promotional materials (including
without limitation, solicitation, fulfillment, customer service and retention
materials) developed hereunder in connection with any Promotion shall be
referred to as "Promotional Material." In the event of a disagreement, AMEX
shall have the final controlling rights on all marketing and promotion of the
AMEX Content or AMEX Channels (including but not limited to presentation, copy,
format, design, script development (etc.) so long as such marketing and
promotion do not violate any contracts, laws or regulations. The timing and
scope (i.e. size and frequency) of all Promotions will be mutually approved by
both parties, which approval shall not unreasonably be withheld. AMEX may, at
its option, promote the AMEX Channel or Service through one or more Programs
described in Exhibit B to "Attachment A" herein.
3.4. Press Release: AMEX shall issue a press release, mutually agreeable to
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the parties, within 30 days following the date on which AMEX Channels are
generally made available commercially.
3.5. AMEX Warranties: AMEX represents and warrants to AvantGo that (i) the
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AMEX Content shall not contain libelous, defamatory obscene, pornographic or
profane material or any instructions that may cause harm to any individuals;
(ii) the AMEX Content may be reproduced, used, converted into digital or other
electronic media, displayed, and distributed as contemplated by this Content
Agreement without violating or infringing the rights of any other person or
entity, including, without limitation, infringing any copyright, trademark or
right of privacy, or any other intellectual or industrial property right, title
or interest of any party, and without obligating AMEX to pay any fees to third
parties; (iii) it will obtain all rights, permissions and approvals from any
third party (including but not limited to electronic reproduction rights
necessary for use of the AMEX Content in connection with the AMEX Channel); and
(iv) the AMEX Content provided to AvantGo is accurate to the best of AMEX's
knowledge and may be relied upon as such by any third party; and (v) it will pay
or cause to be paid royalties, fees or other compensation due to third parties
in connection with the exploitation of the AMEX Content in the manner
contemplated by this Content Agreement. EXCEPT AS SET FORTH IN THIS CONTENT
AGREEMENT, AMEX MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
4. Obligations of AvantGo.
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4.1 Joint Marketing. AMEX and AvantGo will use commercially reasonable
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efforts to participate in Promotions with respect to the promotion of the AMEX
Channel and the Service.
4.2. User Reporting. At AMEX's request, at each calendar month-end, AvantGo
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will provide AMEX with the total number of unique End Users who have subscribed
to AMEX Channel. Upon mutual agreement of the parties, AvantGo shall provide
AMEX with such other reports and at such times and in such formats as AMEX may
reasonably request from time to time.
4.3 Linking. AvantGo will enable End Users to subscribe to the AMEX
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Channel from the AvantGo WWW Site. AvantGo will have no obligation to list, and
will have the right to remove from such list, in AvantGo's sole discretion, AMEX
Channels that do not conform to the AvantGo Style Guide; provided, however, that
prior to such removal, AvantGo will notify AMEX in writing, and AMEX will have
thirty (30) days to conform the AMEX Channel to the AvantGo Style Guide. AvantGo
may restrict or prevent access to the AMEX Content, the AMEX WWW Site and/or the
AMEX Channel (and, at AvantGo's option, immediately terminate this Content
Agreement), if any portion thereof (i) involves the transmission of "junk mail",
"spam", "chain letters", or unsolicited mass distribution of email; (ii)
distributes or allows access to corporate or Intranet information that is not
generally made available for free to users of the WWW, unless access to such
information is available to subscribers to or enrollees in a service provided by
AMEX; or (iii) is otherwise inappropriate for inclusion in the Service in the
reasonable judgement of AvantGo.
4.4. Technical Support. AvantGo will provide the following technical
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support to AMEX: electronic mail support to the Technical Contact with respect
to the development of AMEX Content during normal business hours within twenty-
four hours of such request.
4.5 Audit by AMEX. AMEX shall have the right, during normal business hours
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and upon reasonable notice to visit AvantGo's premises and operation center for
the purpose of evaluating AvantGo's performance of its obligations under this
Agreement. Furthermore, AMEX shall have the right to perform data security
review of AvantGo's security controls as they relate to the physical security
and protection of AMEX Confidential data/system access.
4.6 Channel Inaccessibility. From the time that AvantGo becomes aware that
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AMEX End Users are not able to access the AMEX Channel, AvantGo will use
reasonable efforts to notify AMEX of such condition within 1 hour. Furthermore,
to the extent the problem is caused by a failure with the Service, AvantGo will
undertake reasonable efforts to promptly restore the Service to full operation.
5. Ownership:
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5.1. By AMEX.
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5.1.1. AMEX shall have all rights and interest to personally identifiable
information provided by AMEX End Users (including without limitation such
information of Cardmembers and AMEX customers) during such user's use of or
access to the AMEX Content or the AMEX Channel or resulting from such user's use
of or access to the AMEX Content or the AMEX Channel ("AMEX User Data").
("Cardmembers" means a holder of a charge, credit, debit, bank, stored value,
procurement, travel or smart card issued by AMEX, its affiliates or its
licensees). AvantGo (i) shall not solicit AMEX End
Users (including without limitation AMEX customers or Cardmembers) based upon
their status as an AMEX End User or otherwise based upon their status as an AMEX
customer or Cardmember. Notwithstanding the foregoing, nothing in this Content
Agreement shall prevent AvantGo from using any and all data and information
provided by users during such user's use of or access to those portions of the
Service unrelated to the AMEX Channel or the AMEX Content, and AvantGo may
market product and services to its own customers and potential customers
provided that (A) in any such marketing, such customer is not identified in any
manner as an AMEX Customer or Cardmember and (B) the source of the information
used by AvantGo to target such customer or potential customer is not the AMEX
User Data. Nothing in this Content Agreement shall grant to any other party any
right, title or interest therein, except the license granted to AvantGo to use,
or authorize others to use the AMEX Content in connection with the AMEX Channel,
and in accordance with the terms of this Content Agreement.
5.1.2. AvantGo acknowledges that AMEX shall be the sole and exclusive
owner of the AMEX Content and the AMEX WWW Site, including, but not limited to,
all associated trademarks and copyrights thereto. Except as expressly provided
herein, nothing in this Content Agreement shall confer in AvantGo any right of
ownership in, or license to, the AMEX Content or AMEX WWW Site, nor other
intellectual property rights pertaining thereto. AvantGo shall not challenge
AMEX's ownership of such trademarks or related intellectual property rights.
AvantGo shall keep the AMEX Content and the AMEX Trademarks free and clear of
all claims, liens and encumbrances.
5.2. By AvantGo. AvantGo shall own all right, title and interest in and to
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the Licensed Materials, and all intellectual property rights pertaining thereto.
Except as expressly provided herein, nothing in this Content Agreement shall
confer in AMEX any right of ownership in, or license to, the Licensed Materials
nor other intellectual property rights pertaining thereto. AMEX shall not
challenge AdvantGo's ownership of such Licensed Materials or related
intellectual property rights. AMEX shall keep the Licensed Materials free and
clear of all claims, liens and encumbrances.
5.3. Survival. The terms of Section 5 shall survive the termination or
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expiration of this Content Agreement.
6. Proprietary Rights and Confidential Information.
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6.1 Nondisclosure. Each party shall treat as confidential all
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Confidential Information of the other party, shall not use such Confidential
Information except as set forth herein, and shall use reasonable efforts not to
disclose such Confidential Information to any third party. Without limiting the
foregoing, each of the parties shall use at least the same degree of care which
it uses to prevent the disclosure of its own confidential information of like
importance to prevent the disclosure of Confidential Information disclosed to it
by the other party under this Content Agreement. Each party shall promptly
notify the other party of any actual or suspected misuse or unauthorized
disclosure of the other party's Confidential Information.
6.2. Exceptions. Notwithstanding the above, neither party shall have
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liability to the other with regard to any Confidential Information of the other
which the receiving party can prove: (a) was in the public domain at the time it
was disclosed or has entered the public domain through no fault of the receiving
party; (b) was known to the receiving party, without restriction, at the time of
disclosure; (c) is disclosed with the prior written approval of the disclosing
party; (d) was independently developed by the receiving party without any use of
the Confidential Information; (e) became known to the receiving party, without
restriction, from a source other than the disclosing party, without breach of
this Content Agreement by the receiving party and otherwise not in violation of
the disclosing party's rights; (f) is disclosed generally to third parties by
the disclosing party without restrictions similar to those contained in this
Content Agreement; or (g) is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body; provided, however,
that the receiving party shall provide prompt notice thereof to the disclosing
party to enable the disclosing party to seek a protective order or otherwise
prevent or restrict such disclosure.
6.3. Return of Confidential Information. Upon expiration or termination
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of this Content Agreement, each party shall return all Confidential Information
received from the other party within 30 days of receipt of a request requesting
the return of such Confidential Information
6.4. Remedies. Any breach of the provisions in this Section 6 is a breach
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of this Content Agreement which may cause irreparable harm to the non-breaching
party. Any such breach shall entitle the non-breaching party to injunctive
relief in addition to all legal remedies.
6.5. Survival. The terms of Section 6 shall survive the termination or
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expiration of this Content Agreement.
7. Representations and Warranties: The parties represent and warrant that:
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7.1 each has the full corporate right, power and authority to enter into
this Content Agreement and to perform the acts required of it hereunder;
7.2 their trademarks described herein do not infringe any third party
trademark rights;
7.3 they have not granted any rights with respect to the trademarks to any
third party which grant is inconsistent with the rights granted under this
Amendment.
8. Indemnity.
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8.1. By AMEX: AMEX agrees to defend and/or handle at its own expense, any
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claims or actions against AvantGo, its parent company, subsidiaries and
affiliates for actual or alleged (i) infringement of any intellectual or
industrial property right, including, without limitation, trademarks, service
marks, patents, copyrights, misappropriation of trade secrets or any similar
proprietary rights, based upon the AMEX Content furnished hereunder by AMEX or
based on AvantGo's use thereof. AMEX further agrees to indemnify and hold
AvantGo harmless from and against any and all liabilities, losses, costs,
damages and expenses (including reasonable attorneys' fees) associated with any
such claims or actions. AMEX shall have the right to conduct the defense of any
such claims or actions and all negotiations for its settlement or compromise;
provided, however, that AMEX may participate in such defense or settlement
negotiations and pay its own costs associated therewith.
8.2. By AvantGo: AvantGo agrees to defend and/or handle at its own
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expense, any claims or actions against AMEX, its parent company, subsidiaries
and affiliates for actual or alleged (i) infringement of any intellectual or
industrial property right, including, without limitation, trademarks, service
marks, patents, copyrights, misappropriation of trade secrets or any similar
proprietary rights, based upon Licensed Material furnished hereunder by AvantGo
or based on AMEX's use thereof. AvantGo further agrees to indemnify and hold
AMEX harmless from and against any and all liabilities, losses, costs, damages
and expenses (including reasonable attorneys' fees) associated with any such
claims or actions. AvantGo shall have the right to conduct the defense of any
such claims or actions and all negotiations for its settlement or compromise;
provided, however, that AMEX may participate in such defense or settlement
negotiations and pay its own costs associated therewith.
8.3. Disclaimer of Warranties. EXCEPT WITH RESPECT TO THE INDEMNITY
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OBLIGATIONS HEREIN, AVANTGO PROVIDES THE LICENSED MATERIALS "AS IS." THE
PARTIES MAKE NO PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS CONTENT AGREEMENT, AND THE PARTIES
SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS.
8.4. Survival. The terms of this Section 8 shall survive the termination
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or expiration of this Content Agreement.
9. Limitation of Liability.
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9.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST
PROFITS, LOSS OF BUSINESS, INTERRUPTION OF BUSINESS, LOSS OF USE, OR LOSS OF
DATA, OR FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER CONTRACT, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, UNDER OR ARISING OUT OF THIS CONTENT
AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
9.2. NEITHER PARTY HERETO (THE "LIABLE PARTY") SHALL HAVE AN AGGREGATE
LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES ARISING IN CONNECTION WITH THIS
CONTENT AGREEMENT, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH
LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), THAT SHALL EXCEED 80% OF THE
TOTAL ANNUAL XXXXXXX.XXX NETWORK ACCESS AND MAINTENANCE FEE FOR THE YEAR IN
WHICH THE EVENT TRIGGERING DISPUTE FIRST OCCURS. By way of example, during the
first year of this Content Agreement, the liability cap shall $520,000
calculated as follows: ($650,000) x (0.8).
9.3. THE LIMITATION SET FORTH IN SECTION 9.2. ABOVE SHALL NOT APPLY TO
DAMAGES ARISING DIRECTLY FROM (i) BREACH OF THE LIABLE PARTY OF OBLIGATIONS
UNDER SECTIONS 6 AND 8 HEREOF, (ii) A NON-AFFILIATED THIRD PARTY CLAIM OR (iii)
THE INTENTIONAL MISCONDUCT OR GROSSLY NEGLIGENT ACT OR OMISSION OF THE LIABLE
PARTY IN THE COURSE OF THE PERFORMANCE OF ITS DUTIES OR OBLIGATIONS UNDER THIS
CONTENT AGREEMENT.
9.4. Survival: The terms of this Section 9 shall survive termination or
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expiration of this Content Agreement.
10. Term and Termination.
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10.1. Term. Unless earlier terminated in accordance with the terms
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hereof, the term of this Content Agreement and the licenses granted hereunder
shall commence on the Effective Date and shall have an initial term of one year
and, thereafter, shall continue for additional successive one (1) year renewal
periods unless and until either party provides the other party written notice of
its intention to terminate at least thirty (30) days prior to the expiration of
initial term or the then-current renewal period.
10.2. Early Termination.
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10.2.1 Either Party shall have the right to terminate this Content
Agreement (i) in the event the other party is in default of one or more material
obligations under this Content Agreement and has not cured the default within
thirty (30) days of receipt of written notice from the non-breaching party or
such longer period as expressly provided herein; or (ii) with immediate effect:
(a) upon the institution by the other party of proceedings to be adjudicated a
bankrupt, insolvent, or the consent by the other party to institution of
bankruptcy or insolvency proceedings against it or the filing by the other party
of a petition or answer or consent seeking reorganization or release under the
Federal Bankruptcy Code, or any other applicable Federal or state law, or the
consent by the other party to the filing of any such petition or the appointment
of a receiver, liquidator, assignee, trustee, or similar official of the other
party or of any substantial part of its property, or the making by the other
party of an assignment for the benefit of creditors, or the admission in writing
by the other party of an assignment for the benefit of creditors, or the
admission in writing by the other party of its inability to pay its debts
generally as they become due or the taking of corporate action by the other
party in furtherance of any such actions; (b) if, within 60 days after the
commencement of an action against the other party seeking any bankruptcy,
insolvency, reorganization, liquidation, dissolution or similar relief under any
present or future law or regulation, such action shall not have been dismissed
or all orders or proceedings thereunder affecting the operations or the business
of the other party stayed, or if the stay of any such order or proceeding shall
thereafter be set aside; or if, within 60 days after the appointment without the
consent or acquiescence of the other party of any trustee, receiver or
liquidator or similar official of the other party, or of all or any substantial
part of the property of the other party, such appointment shall not have been
vacated.
10.2.2. In the event (a) of a sale or distribution of all of substantially
all of the assets of AvantGo or a sale or distribution of sufficient stock
(other than pursuant to a public offering) of AvantGo to effect a change in
control or (b) that AvantGo or its affiliate enters into the business of
providing financial services or provides financial product or service
substantially similar to any of the AMEX' financial products or services, AMEX
may, in its sole discretion, terminate this Content Agreement immediately. In
the event that AMEX terminates this Content Agreement pursuant to the preceding
sentence of this Section, AvantGo shall reimburse AMEX for reasonable out-of
pocket expenses incurred in transferring the AMEX Channel to another vendor of
AMEX or to AMEX itself. With AMEX's approval, which shall not be unreasonably
withheld, AvantGo may negotiate transfer expenses on behalf of AMEX with another
vendor to ensure the reasonableness of the expenses. With AMEX' approval,
AvantGo may provide components of the transfer.
EXHIBIT A (to ATTACHMENT A)
1. AMEX Trademarks.
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2. Technical Contact (please include email, phone, fax and mailing address).
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3. Marketing Contact. (please include email, phone, fax and mailing address).
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4. Description of Channel(s)
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5. AMEX WWW Site.
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EXHIBIT B (TO ATTACHMENT A)
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ATTACHMENT B
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PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("PSA") with an effective date of
February 16, 2000 ("Effective Date"), is entered into between AvantGo, Inc
("AvantGo"), and American Express ("Client").
1. PROJECTS; STATEMENTS OF WORK
a. Services will be provided to Client upon written request by Client for
such services, as the parties may agree upon from time to time in a Statement of
Work (as defined below) (the "Services") in accordance with Schedule A hereto.
b. Each project to be performed by AvantGo will be described in a
statement of work ("Statement of Work") that must be signed by both parties to
be effective. Each Statement of Work will be subject to the terms of this PSA.
In the event of any conflict or inconsistency between the terms of this PSA and
any Statement of Work, the terms of the Statement of Work will prevail.
c. Each Statement of Work will include: (i) the start date and estimated
duration of the project; (ii) a description of the project and the Services to
be performed by AvantGo; (iii) the daily rates or project rate for the project;
and (iv) such other information as may be agreed to by the parties as well as
those items identified in Schedule B hereto.
d. Client may, at any time, by written notice to AvantGo, request changes
to a Statement of Work. AvantGo will provide Client with an estimate of the
impact, if any, of such requested change on the payment terms, completion
schedule and any other applicable provision of the Statement of Work. If the
parties mutually agree to such changes, upon the request of Client, a written
description of the agreed change (a "Change Authorization") will be prepared
which both parties must sign. In the event of any conflicts or inconsistency,
the terms of a Change Authorization prevail over those of the Statement of Work.
2. PAYMENT FOR SERVICES AND REIMBURSABLE EXPENSES
Client shall pay AvantGo as specified in the applicable Statement of Work.
In addition to the rates described in the applicable Statement of Work, Client
shall reimburse AvantGo for:
a. In the event that any travel is required in connection with any
Services, Client agrees to pay all costs reasonably incurred by AvantGo's
personnel in connection with such Services (including, but not limited to, costs
of travel, ground transportation, lodging, and meals) associated with such
training or consulting. AvantGo shall maintain records of its expenses and
reimbursable items pertaining to Services on a generally recognized accounting
basis; these records shall be made available to Client upon request.
b. Charges for all long distance telephone calls incurred in providing
Services hereunder while travelling in connection with this PSA.
c. The actual cost of all written document reproduction.
d. Subject to the prior written approval of Client, purchase costs or
license fees for any third party software tools required to provide Services
hereunder. Such purchases and licenses shall become the property of Client upon
completion of Services rendered pursuant to the applicable Statement of Work.
For each Statement of Work, and as such expenses are identified, AvantGo shall
submit to Client an estimate of all expected third party costs.
Unless otherwise provided in the Master Agreement between the parties, all
fees and reimbursable expenses shall be invoiced by AvantGo to Client on a
monthly basis and Client will pay such invoices within thirty (30) days after
date of invoice.
3. TERM
The initial term of this PSA shall be for the balance of the calendar year
in which it was executed, and shall thereafter be automatically renewed for
successive terms of one calendar year each unless earlier terminated as
hereinafter provided or unless either party gives the other written notice of
non-renewal at least 30 days prior to the end of the initial term or any renewal
term.
4. CONFIDENTIALITY; OWNERSHIP OF DEVELOPMENTS
a. AvantGo will treat the terms of this PSA as Confidential Information,
as further described in Exhibit B hereto.
b. AvantGo (i) shall use Confidential Information only in connection with
AvantGo's performance of its obligations under a Statement of Work, and (ii)
will not disclose Confidential Information except to AvantGo's employees,
agents, and contractors who have first agreed to be bound by the terms and
conditions of this Section and who have a need to know such Confidential
Information in connection with the performance of AvantGo's obligations under
this PSA or any Statement of Work and then only to the extent they need to know
AvantGo shall be responsible and liable for any unauthorized disclosure,
publication or dissemination by any of AvantGo's employees, agents or
contractors of any Confidential Information. This Section does not apply to any
information that (a) AvantGo can demonstrate that it possessed prior to the date
of this PSA without obligation of confidentiality, (b) AvantGo develops
independently without use of any confidential information, (c) AvantGo
rightfully receives from a third party without any obligation of confidentiality
to such third party, (d) is or becomes publicly available without breach of this
PSA, or (e) must be disclosed as required under applicable law or regulation;
provided however, that AvantGo must give Client reasonable notice prior to such
disclosure and shall reasonably cooperate, at Client's expense, with any efforts
requested by Client to limit the nature or scope of the disclosure.
c. AvantGo shall not remove from Client's premises the original or any
reproduction of any notes, memoranda, files, records, writings or other
documents, whether on tangible or electronic media, containing any Confidential
Information or any document prepared by or on behalf of AvantGo which contains
or is based on any Confidential Information ("Documents"), without the prior
written consent of an authorized representative of Client, and any such
Documents in AvantGo's possession or under its custody or control shall be
immediately turned over to Client or certify as having been destroyed upon the
request of Client or the termination of this PSA.
d. As used herein "Developed Materials" shall mean, hereunder, all
inventions, methods, techniques, works of authorship, computer software,
computer upgrades, computer programs, service providers, vendors information,
training materials, telemarketing scripts, computer screens reports, data, any
proprietary or confidential information made, created, developed or written in
accordance with the activities contemplated hereunder. In the event any
Developed Material (i) is fully paid for, or created by Client, or on behalf of
Client, and AvantGo has not provided material creative or developmental input
therein (including without limitation provision of proprietary or confidential
information), then such Developed Material shall be deemed the sole property of
Client and any use thereof by AvantGo shall required consent thereto by Client;
(ii) is substantially paid by, or substantially created by or on behalf of
Client and AvantGo has had a material creative or developmental input therein
(including without limitation provisions of proprietary or confidential
information), then such Developed Material shall be deemed the property of
Client with AvantGo having an non-exclusive, nontransferable and royalty-free
right of use thereof; (iii) is substantially paid by, or substantially created
by or on behalf of AvantGo and Client has had material creative or developmental
input therein (including without limitation provision of proprietary or
confidential information), then such Developed Material shall be deemed the
property of AvantGo with Client having a non-exclusive, nontransferable and
royalty-free right of use thereof; and (iv) is fully paid for, or created by
AvantGo, or on behalf of AvantGo, and Client has not provided material creative
or developmental input therein (including without limitation provision of
proprietary or confidential information), then such Developed Material shall be
deemed the sole property of AvantGo and any use thereof by Client shall require
consent thereto by AvantGo.
e Notwithstanding anything to the contrary in this PSA, Client shall own
the specifications and all interface modules created by Client or any of its
third party contractors.
f. All Developed Material shall be deemed Confidential Information as
defined in this PSA.
g Nothing herein shall be construed to restrict, impair or deprive
AvantGo or Client of any of their respective rights or proprietary interests in
technology, software, or products that existed prior to and independent of the
performance of their respective obligations hereunder.
6. INSURANCE AvantGo shall, at its own expense, obtain and maintain the
following insurance:
a. Commercial General Liability, with coverage including but not limited
to, premises/operations, contractual, personal and advertising injury, and
products/completed operations liabilities, with limits of not less than
$1,000,000 per occurrence for bodily injury and property damage combined. Limits
of liability requirements may be satisfied by a combination of Commercial
General Liability and Umbrella Excess Liability policies.
b. Workers' Compensation insurance for statutory limits.
c. AMEX will be named as an additional insured for the coverage
components identified in this Section 6.
7. TERMINATION
a. Either party may terminate Services under any Statement of Work, but
only for the causes and in the manner set forth therein and, in the case of
termination by Client, upon payment of the amount set forth in the Statement of
Work for work completed.
b. Either party may terminate this entire PSA prior to its expiration
date, without cause, without penalty and without liability for damages as a
result of such termination by giving the other party at least thirty (30) days
prior written notice of termination; provided, that this PSA shall continue in
force as to any outstanding Statements of Work unless and until the Services
contemplated by the same are completed or the same are terminated in accordance
with their terms.
c. Upon termination of a Statement of Work then in process, Client shall
only be liable for payment of fees earned as a result of Services actually
performed under such Statement of Work prior to the date of termination.
8. WARRANTIES
8.1. AvantGo warrants that all Services shall be performed in a workmanlike
manner and according to the applicable description and requirements for such
Services as set forth in the applicable Statement of Work, and without
infringing any law, rule, regulation, United States or foreign copyright,
patent, trade secret or other proprietary rights of any third party.
8.2. THE ABOVE WARRANTY IS IN LIEU OF ALL OTHER EXPRESS OR IMPLIED
WARRANTIES, INCLUDING THE WARRANTIES OF, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE,
DEALING, USAGE OR TRADE, RELATED TO THIS PSA, THE TRANSACTIONS CONTEMPLATED
HEREBY, THE SERVICES AND THE DEVELOPMENTS.
8.3. Survival. The terms of this Section 8 shall survive the termination
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or expiration of this PSA.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR
