Exhibit 10.11
STRATEGIC ALLIANCE AGREEMENT
THIS STRATEGIC ALLIANCE AGREEMENT is made as of April 12, 1999, by and
between Open Solutions Inc. ("OSI"), a Delaware corporation with its principal
place of business at 000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxx 00000,
and HNC SOFTWARE INC. ("HNC"), a Delaware corporation with its principal place
of business at 0000 Xxxxxxxxxxx Xxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000.
RECITALS
A. OSI is a software development company specializing in application
software for transaction processing in financial institutions. HNC is a software
development company specializing in the application of neural network technology
and other techniques of computational intelligence to advanced decision software
solutions.
B. The Parties desire to establish a worldwide strategic alliance for the
cooperative development, marketing and exploitation of products and services
uti1izing the technological capabilities of OSI and HNC.
NOW, THEREFORE, in consideration of the premises and intended to be
legally bound hereby, the Parties agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement will have the following
meanings:
"Affiliate" means, with respect to OSI or HNC, any other Person which, whether
directly or indirectly, is controlled by or is under common control with OSI or
HNC, as the case may be.
"Agreement" means this Strategic Alliance Agreement.
"Control" means the ownership, directly or indirectly, of more than fifty
percent (50%) of the voting shares of an entity, or otherwise the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity.
"Disclosing Party" means either Party, when disclosing information to the other
Party.
"Effective Date" means April 12, 1999.
"Joint Project" means any Project that is jointly conceived by the Parties, as
evidenced by a written agreement signed by both of the parties.
"Parties" means OSI and HNC.
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Confidential and Proprietary Information
"Party" means either of OSI or HNC.
"Person" means an individual, partnership, joint venture, association,
corporation, limited liability company, trust or any other legal entity.
"Project" means each joint development, joint marketing, joint licensing or
other joint undertaking of the Parties (including Joint Projects) with respect
to a discrete product or service, or group of related products or services,
during the term of this Agreement, evidenced by a writing signed by both Parties
and specifically providing that it is to be covered by this Agreement.
"Project Agreement" means a written agreement or a project addendum to this
Agreement, executed by an authorized representative of each Party, and which
specifies the relative obligations of the Parties as to the planning,
development, marketing and implementation tasks required to commercially exploit
a Project, as well as the respective rights of each Party in and to the
underlying intellectual property and resulting proceeds.
"HNC Software" means the HNC Software identified in any Project Addendum
attached hereto, and includes all updates, documentation, enhancements and new
versions of the HNC Software released during the term of the Project Addendum.
"OSI Software" means the OSI Software identified in any Project Addendum
attached hereto, and includes all updates, documentation, enhancements and new
versions of the OSI Software released during the term of the Project Addendum.
"Receiving Party" means either Party, when receiving information from the other
Party.
2. SCOPE AND PURPOSE OF AGREEMENT. The purpose of this Agreement is to establish
a non-exclusive, worldwide strategic alliance in which the Parties will
cooperate in the development, marketing and exploitation of products utilizing
HNC's software and technological expertise and OSI's software and technological
expertise. Because the Parties acknowledge that it would be impractical to
specify in advance the precise terms and conditions applicable to any or all of
the particular products or services to be developed and marketed over the course
of this alliance, the Parties have instead established the following general
terms, which will serve as the legal and procedural foundation for discussing
and reaching agreement on the projects to be undertaken by them. Accordingly,
during the term of this Agreement, each Project will be subject to the terms and
conditions of this Agreement, except to the extent that a written agreement
regarding that Project, signed by an authorized representative of each Party,
specifically identifies and expressly supersedes any given term of this
Agreement.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS.
3.1 All information disclosed by a Disclosing Party to a Receiving Party
during the term of this Agreement will be deemed to be confidential unless
specifically designated as nonconfidential at the time of disclosure.
Notwithstanding the foregoing, information will not be
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Confidential and Proprietary Information
deemed confidential if it (i) was known to the Receiving Party, and such
information was acquired through proper methods, prior to its receipt from the
Disclosing Party, as evidenced by written records of the Receiving Party; (ii)
is now or (through no act or failure on the part of the Receiving Party) later
becomes generally known in the information services industry through no breach
of this Agreement by the Receiving Party; (iii) is supplied to the Receiving
Party by a third party that the Receiving Party in good faith believes is free
to make that disclosure without restriction on disclosure; (iv) is disclosed by
the Disclosing Party to a third party generally, without restriction on
disclosure; or (v) is independently developed by the Receiving Party without use
of any confidential information provided by the Disclosing Party.
3.2 Except as provided in this subsection 3.2, the Receiving Party agrees
that it will (i) treat all confidential information received from the Disclosing
Party with at least the same degree of care which it applies to its own
proprietary information, (ii) not divulge any confidential information, directly
or indirectly, to any other Person, for any purpose whatsoever, and (iii) not
make use of or copy such confidential information, except for the purposes
permitted under this Agreement or an applicable Project Agreement. Such
confidential information may be disclosed only to those employees, consultants,
and permitted subcontractors of the Receiving Party who require access to such
information for the purpose for which it was disclosed and who have
nondisclosure obligations to the Receiving Party. In each case of permitted
disclosure, each employee, consultant, or permitted subcontractor will be given
only that limited portion of the confidential information that is necessary for
the fulfillment of that Person's responsibilities consistent with this Agreement
or the applicable Project Agreement. The Receiving Parry shall promptly report
to the Disclosing Party any actual or suspect violation of this subsection and
shall take further steps as may reasonably be requested by the Disclosing Party
to prevent or remedy any such violation.
3.3 Each Party agrees that the injury from any disclosure or unauthorized
use of the other's confidential information will be of such a character that it
cannot be adequately compensated by monetary damages. Accordingly, if a
Receiving Party breaches this Agreement, the Disclosing Party may, in addition
to pursuing its other remedies under the law, seek to obtain from any court
having jurisdiction over the subject matter and the Parties an injunction
restraining any violation, without (i) having to prove the inadequacy of
monetary damages or (ii) posting bond or other security.
3.4 If the Receiving Parry becomes legally compelled (by interrogatories,
requests for information or documents, subpoena, civil investigative demand or
similar process) to disclose any confidential information, the Receiving Party
will provide the Disclosing Party with prompt notice of that request(s) so that
it may seek an appropriate protective order or other appropriate remedy and/or
waive the Receiving Party's compliance with the provisions of this Agreement. If
the Disclosing Party waives compliance with the applicable provisions of this
Agreement or fails to obtain a protective order or other remedy, the Receiving
Party agrees to furnish only that portion of the confidential information that
it is legally required to furnish in the reasonable opinion of its counsel.
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3.5 As soon as any item of confidential information ceases to be necessary
or useful to the Receiving Parry for the purpose for which it was disclosed, the
Disclosing Party may, subject to any rights that the Receiving Party may have
acquired in or to that information pursuant to a Project Agreement, request its
return or destruction, and the Receiving Party will promptly return to the
Disclosing Party or destroy all documents or other media consisting of that
confidential information, without retaining any copies, and will confirm in
writing that it has done so.
3.6 Notwithstanding any provision to the contrary contained in this
Agreement, it is understood and agreed by the parties that:
any HNC products and technology existing as of the Effective Date or as of
the date of the applicable Project Agreement Effective Date and used in
connection with HNC's provision of services and performance hereunder
and/or incorporated into any items developed with respect to any Project
undertaken hereunder (the "HNC Technology") is, and will remain, the sole
and exclusive property of HNC, and, except as otherwise specifically
provided in this Agreement and/or any Project Agreement, no license,
right, title, interest in and/or to such HNC Technology is granted to OSI
by virtue of this Agreement and/or any Project Agreement and/or HNC's
performance hereunder. As such, HNC will continue to have the unfettered
right to utilize the HNC Technology (and any portion or portions thereof)
in any manner as determined by HNC in its sole and absolute discretion.
any OSI products and technology existing as of the Effective Date or as of
the date of the applicable Project Agreement Effective Date and used in
connection with OSI's provision of services and performance hereunder
and/or incorporated into any items developed with respect to any Project
undertaken hereunder (the "OSI Technology") is, and will remain, the sole
and exclusive property of OSI, and, except as otherwise specifically
provided in this Agreement and/or any Project Agreement, no license,
right, title, interest in and/or to such OSI Technology is granted to HNC
by virtue of this Agreement and/or any Project Agreement and/or OSI's
performance hereunder. As such, OSI will continue to have the unfettered
right to utilize the OSI Technology (and any portion or portions thereof)
in any manner as determined by OSI in its sole and absolute discretion.
Unless otherwise specifically provided in a Project Agreement attached to this
Agreement:
HNC will retain all right, title and interest to any modifications made to
the HNC Technology, derivative works derived from the HNC Technology,
and/or incorporating the HNC Technology pursuant to this Agreement and/or
any Project Agreement (including, without limitation, any source code for
said modifications and the right to own all patents and copyrights
relating thereto) including, but not limited to, modifications to enable
the HNC Technology to function on a different operating system.
OSI will retain all right, title and interest to any modifications made to
the OSI Technology, derivative works derived from the OSI Technology,
and/or incorporating the OSI Technology pursuant to this Agreement and/or
any Project Agreement (including,
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without limitation, any source code for said modifications and the right
to own all patents and copyrights relating thereto) including, but not
limited to, modifications to enable the OSI Technology to function on a
different operating system.
4. NONSOLICITATION. Neither Party will, during the term of this Agreement and
for six (6) months after its termination or expiration, without the prior
written consent of the other Party, for its own account or jointly with another,
directly or indirectly, for or on behalf of any Person, as principal, agent or
otherwise, solicit or induce, or in any manner attempt to solicit or induce, any
Person employed or engaged by the other Party (including, without limitation, as
an employee or independent contractor or agent known to be exclusively engaged
by the other party), to leave that Person's employment or engagement.
Notwithstanding the foregoing, this Section 4 shall not preclude either Party
from hiring any Person employed by the other Party where such Person
independently responds to an employment opportunity broadcast by the Party to
the general public (e.g., via newspaper, magazine, broadcast, Internet, etc.)
and has not otherwise been in direct contact with the Party as a key person
during the course of performance of this Agreement.
5. PROJECT AGREEMENTS.
5.1 Joint Projects.
(A) Each time the Parties conceive of a Joint Project, they will
work in good faith to negotiate, prepare and execute a Project Agreement as soon
as reasonably practicable.
(B) If the Parties are unable to agree upon the terms of a Project
Agreement governing a Joint Project, each Party may proceed to develop and
market the underlying products and services independently, provided no
proprietary and/or Confidential Information of the other party is used with
respect to such independent undertaking.
5.2 Preservation of Intellectual Property Rights. Nothing in subsection
0.xX permitting the independent development and marketing of information, goods
or services that would otherwise be subject to this Agreement is intended to
permit either Party to violate the provisions of this Agreement, including
without limitation subsections 3.1 and 3.2.
5.3 Standard Clauses for Project Agreements. The confidentiality
provisions of subsections 3.1 through 3.6 and the standard clauses in Exhibit A
attached hereto will be included in each Project Agreement, with only those
changes that are necessary to reflect the form of the underlying transaction
while preserving the intent of such terms. Every Project Agreement that involves
the licensing of software by one Party to the other will include, as an
ancillary agreement, a source code escrow agreement, the terms and conditions of
which will be negotiated in good faith by the Parties on a case-by-case basis.
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6. GRANT OF MARKETING LICENSE
6.1 OSI grants to HNC a non-exclusive, non-transferable, worldwide,
paid-up, unlimited, royalty free, right and license without the right to
sub-license, to use, reproduce and distribute (internally) copies of the OSI
Software for use in internal and customer non-billable external training,
proof-of-concept activities, presentations, prototyping, benchmarking, OSI
Software evaluations, demonstrations and other marketing and services
activities.
6.2 HNC grants to OSI a non-exclusive, non-transferable, worldwide,
paid-up, unlimited, royalty free, right and license, without the right to
sub-license, to use, reproduce and distribute (internally) copies of the HNC
Software for use in internal and customer non-billable external training,
proof-of-concept activities, presentations, prototyping, benchmarking, HNC
Software evaluations, demonstrations and other marketing and services
activities.
6.3 The Receiving Party shall not alter or remove any patent, copyright,
trademark and/or other notices contained on or in copies of the software
received under this Agreement and/or any Project Agreement. The existence of any
such copyright notice shall not be construed as an admission or deemed to create
a presumption, that publishing of such material has occurred.
7. END-USER LICENSES/RESPONSIBILITY FOR PRODUCTS
7.1 Except as otherwise agreed, HNC or its agents will be responsible for
providing and executing end-user license agreements for the HNC Software with
the end users; and OSI or its agents will be responsible for providing and
executing end-user license agreement for the OSI Software with the end-users.
7.2 Except as otherwise set forth in a Project Agreement, HNC is responsible for
the promotion, sale, installation and maintenance of the HNC Software, and OSI
is responsible for the promotion, sale, installation and maintenance of the OSI
Software.
7.3 If a third party complains or brings a complaint against HNC in relation to
the OSI Software, or against OSI in relation to the HNC Software, OSI and HNC,
respectively, will (i) resolve the complaint; and (ii) defend the claim at its
expense and pay any damages awarded, provided it is given prompt notice and full
control of the defense.
8. IP INDEMNIFICATION
8.1 HNC will defend and indemnify OSI against any third-party claim alleging
that the HNC Software infringes any patent, or copyright, trade secret or other
proprietary right, provided that HNC is given prompt notice of the claim and
full control of the defense. HNC will not be
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obligated to defend or indemnify OSI if such claim is based on a modification of
the HNC Software by OSI, or a combination of the HNC Software with other
products not supplied by HNC nor authorized by HNC to be combined with its
software, if the HNC Software would not have infringed absent such modification
or combination.
8.2 OSI will defend and indemnify HNC against any third-party claim alleging
that the OSI Software infringes any patent, or copyright, trade secret or other
proprietary right, provided that OSI is given prompt notice of the claim and
full control of the defense. OSI will not be obligated to defend or indemnify
HNC if such claim is based on a modification of the OSI Software by HNC, or a
combination of the OSI Software with other products not supplied by OSI nor
authorized by OSI to be combined with its software, if the OSI Software would
not have infringed absent such modification or combination.
9. MEDIA RELEASES
Except for any announcement intended solely for internal distribution or any
disclosure required by legal, accounting, or regulatory requirements beyond the
reasonable control of the parties, all media releases, public announcements, or
public disclosure for general distribution (including, but not limited to,
promotional or marketing material) by either party, or by their employees or
agents, relating to this Agreement and/or any Project Agreement or its subject
matter, other than general statements that a contractual relationship exists
between the parties, will be coordinated with and approved in writing by the
other party prior to its release.
10. TERM AND TERMINATION.
10.1 Termination Without Cause. Unless earlier terminated by either Party
pursuant to Section 10.2 below, this Agreement will be in effect for an initial
term of one (1) year from the Effective Date, at which time this Agreement will
automatically renew for one or more subsequent renewal terms of one (1) year
each on each anniversary of the Effective Date unless either Party sends thirty
(30) days written notice to the other Party of its intent not to renew this
Agreement prior to the end of (i) the initial term or (ii) any subsequent
renewal term.
10.2 Termination for Cause. Either Party may terminate this Agreement upon
the occurrence of any of the following events:
(A) Breach by the other Party of any of the material terms,
obligations, covenants, representations or warranties under this Agreement
(including, but not limited to, those contained in Section 3 of this Agreement)
and the failure of the breaching Party to cure that breach within thirty (30)
days from receipt of written notice from the non-breaching Party identifying the
breach; provided that if the breach is not reasonably capable of cure within a
thirty (30) day period, the breaching party may avoid termination under this
subsection 10.2 by promptly commencing efforts to cure the breach and diligently
prosecuting the cure to completion as soon as practicable, but not later than
one hundred and twenty (120) days from the receipt of notice from the
non-breaching Party; or
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(B) The other Party is declared insolvent or bankrupt, or makes an
assignment of substantially all of its assets for the benefit of creditors, or a
receiver is appointed or any proceeding is demanded by, for or against the other
Party under any provision of the federal Bankruptcy Act or any amendment to that
Act (provided, however, that termination will not be permitted if such a
proceeding is brought against a Party and is terminated by that Party within
thirty (30) days); or
(C) The other Party attempts to assign this Agreement within the
meaning of subsection 12.1 without obtaining the prior written consent of the
terminating Party.
10.3 Continuing Validity of Project Agreements. Notwithstanding anything
in this Agreement that may be construed to the contrary, the termination or
expiration of this Agreement will not rescind or otherwise terminate any Project
Agreement then in effect, unless a Project Agreement specifically provides that
it will terminate upon termination or expiration of this Agreement.
10.4 Survival. The obligations of subsections 3.1 through 3.6, and 7.3,
and Section 4, 5, 8 and 11 will continue in effect after termination of this
Agreement.
10.5 Return of Licensed Materials. Upon any termination of the license
granted under this Agreement and/or any Project Agreement, each Party shall
return to the other Party (or at the option of the other Party, destroy and
certify in writing that it has destroyed) the original and all copies of the OSI
Software or HNC Software, as the case may be, including partial copies, if any.
11. LIMITATION OF LIABILITY.
NEITHER HNC NOR OSI SHALL BE LIABLE TO THE OTHER FOR INDIRECT, CONSEQUENTIAL,
SPECIAL OR ECONOMIC DAMAGES OF ANY TYPE, INCLUDING LOST PROFITS. NEITHER PARTY
SHALL BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THE REMEDIES SET FORTH IN
THIS AGREEMENT ARE EXCLUSIVE.
12. PROVISIONS OF GENERAL APPLICABILITY.
12.1 Assignment. Neither Party may assign or subcontract its rights or
obligations under this Agreement without the prior written consent of the other
Party. Such consent will not be unreasonably withheld.
12.2 Non-Waiver. Neither Party will, by the lapse of time, and without
giving written notice, be deemed to have waived any of its rights under this
Agreement. No waiver of a breach of this Agreement will constitute a waiver of
any prior or subsequent breach of this Agreement or of any similar or related
provision in any Project Agreement.
12.3 Entire Agreement: Amendment. This Agreement and the exhibits attached
hereto constitute the entire understanding of the Parties with respect to the
overall strategic alliance and
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the individual cooperative ventures to be carried out by the Parties and
supersedes all prior communications regarding its subject matter, although the
Parties understand and agree that subsequent Project Agreements will provide
further terms and conditions applicable to particular Projects. This Agreement
will not be more strongly construed against either Party, regardless of who is
more responsible for its preparation. This Agreement may not be amended except
by a written agreement that acknowledges modification of this Agreement and
which is signed by authorized representatives of OSI and HNC. No Project
Agreement will be construed as an amendment of this Agreement unless the
Parties' intent to amend this Agreement is clearly stated in such Project
Agreement.
12.4 Notices. Notices given under this Agreement must be in writing and
must be (i) served personally, or (ii) delivered by first class U.S. mail,
certified or registered, postage prepaid and addressed to the addressees set
forth below, or (iii) delivered by overnight courier service, addressed to the
addressees as set forth below. Notices will be deemed received at the earlier of
actual receipt in the case of personal service, overnight courier, or U.S. Mail
delivery. The Parties may change their addresses by giving notice of such change
to the other Party as provided in this subsection 12.4.
If to OSI:
Xx. Xxxxxxx X. Xxxxxxxx
Vice President
Open Solutions Inc.
000-000-0000
000-000-0000 (FAX)
If to HNC: Xx. Xxxxxxx X. Xxxxxx, Vice President, Finance and
Administration; Chief Financial Officer
HNC Software Inc.
0000 Xxxxxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Telephone: 000-000-0000
Facsimile: (000) 000-0000
12.5 Severability. If any part of this Agreement and/or any Project
Agreement are found to be illegal or unenforceable, then that part will be
curtailed only to the extent necessary to make it, and the remainder of the
Agreement and/or any Project Agreement, legal and enforceable.
12.6 Applicable Law. This Agreement and or any Project Agreement will be
governed solely by the internal laws of the State of Connecticut, without regard
to principles of conflicts of law.
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12.7 Independent Contracting Parties. Nothing in this Agreement creates a
joint venture, partnership, principal-agent or mutual agency relationship
between the Parties. No Party has any right or power under this Agreement to
create any obligation, expressed or implied, on behalf of the other Party. No
employee of a Party will be deemed to be an employee of the other Party by
virtue of this Agreement.
12.8 Headings. The titles or captions used in this Agreement are for
convenience only and will not be used to construe or interpret any provision
hereof.
12.9 Authority. Each person signing below represents and warrants that he
or she has the necessary authority to bind the principal set forth below. OSI
and HNC represent and warrant that they have the authority to bind each of their
subsidiaries to this Agreement to the same extent as if such subsidiaries had
executed this Agreement.
12.10 Counterparts. This Agreement may be signed in any number of
counterparts, each of which will be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the Effective Date.
OPEN SOLUTIONS INC., HNC SOFTWARE INC.,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By:
------------------------- ----------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx Xxxxxxxx
Chairman & CEO President, HNC Financial Solutions
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behalf of the other Party. No employee of a Party will be deemed to be an
employee of the other Party by virtue of this Agreement.
12.8 Headings. The titles or captions used in this Agreement are for
convenience only and will not be used to construe or interpret any provision
hereof.
12.9 Authority. Each person signing below represents and warrants that he
or she has the necessary authority to bind the principal set forth below. OSI
and HNC represent and warrant that they have the authority to bind each of their
subsidiaries to this Agreement to the same extent as if such subsidiaries had
executed this Agreement.
12.10 Counterparts. This Agreement may be signed in any number of
counterparts, each of which will be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the Effective Date.
OPEN SOLUTIONS INC., HNC SOFTWARE INC.,
a Delaware corporation a Delaware corporation
By: By: /s/ Xxxxxxx Xxxxxxxx
------------------------- ----------------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx Xxxxxxxx
Chairman & CEO President, HNC Financial Solutions
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