1
EXHIBIT 10.22
MASTER SERVICES AGREEMENT
between
ELECTRONIC DATA SYSTEMS CORPORATION
and
BUILDNET, INC.
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
2
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (the "Agreement"), dated as of December 18, 1998,
documents the business relationship between BuildNet, Inc., a North Carolina
corporation ("BuildNet"), and Electronic Data SYSTEMS CORPORATION, a Delaware
corporation ("EDS"), and describes the terms and conditions under which EDS will
perform for BuildNet the information technology services described below.
1. TERM. The term of this Agreement will begin on December 1, 1998 (the
"Effective Date"), and, unless earlier terminated as provided in this
Agreement, will continue through December 30, 2003. Such original term
may be extended by mutual written agreement of the parties.
2. EDS SERVICES. BuildNet agrees to afford EDS the opportunity to make a
proposal on all information technology projects for which BuildNet
contemplates using third party resources during the term of this
Agreement. During the term of this Agreement, the parties may agree
upon Work Orders, which Work Orders shall be generally in the format
specified in ATTACHMENT A hereto, and shall consist of an Exhibit A
which shall describe the services EDS will perform and the deliverables
EDS will produce (the "EDS Services"); an Exhibit B describing the
obligations of BuildNet; an Exhibit C describing the payments due to
EDS for the EDS Services; and, if required, an Exhibit D specifying any
terms and conditions unique to that Work Order. In the event a conflict
between a Work Order and the body of this Agreement should arise, the
body of this Agreement will take precedence. Work Orders shall be
numbered sequentially beginning with the number one (1) and when
executed shall be attached hereto and made a part hereof.
3. REPRESENTATIVES. During the term of this Agreement, EDS and BuildNet
will each maintain a representative who will be its primary point of
contact in dealing with the other under this Agreement and will have
the authority and power to make decisions with respect to actions to be
taken by it under this Agreement. Either party may change its
representative by giving notice to the other of the new representative
and the date upon which such change will become effective. In
performing its obligations under this Agreement, EDS will be entitled
to rely upon any routine instructions, authorizations, approvals or
other information provided to EDS by BuildNet's representative or, as
to areas of competency specifically identified by such representative,
by any other BuildNet personnel identified by BuildNet's
representative, from time to time, as having authority to provide the
same on behalf of BuildNet in such person's area of competency.
BuildNet will inform EDS in writing of areas where BuildNet intends to
rely on EDS as the subject matter experts, and in those areas EDS will
incur the responsibility under this agreement for that ensuring proper
decisions are made, subject to revision based on changes initiated by
BuildNet. Unless EDS knew of any error, incorrectness or inaccuracy in
such instructions, authorizations, approvals or other information, EDS
will incur no liability or responsibility of any kind in relying on or
complying with any such instructions, authorizations, approvals or
other information.
2
3
4. BUILDNET'S ROLE. During the term of this Agreement and in addition to
the other obligations of BuildNet described herein, BuildNet will, at
its own cost and expense, have the obligations to EDS described in any
Work Orders agreed to by the parties.
5. PAYMENT. In consideration for the performance of the EDS Services,
BuildNet will pay to EDS the charges set forth in any Work Orders
agreed to by the parties as such charges may be adjusted from time to
time as provided in such Work Order. In addition, BuildNet will pay or
reimburse EDS for (a) all reasonable out-of-pocket expenses (not to
exceed $5,000 without BuildNet's prior written consent) incurred by EDS
in the performance of the EDS Services specified in any Work Orders
agreed to by the parties, and (b) all taxes, assessments, duties,
permits and fees, however designated, that are levied upon this
Agreement, the EDS Services or the software, equipment, materials or
other property, or their use, provided hereunder, excluding taxes based
on the income of EDS. EDS will submit a written invoice to BuildNet
monthly in arrears reflecting the amount owed to EDS by BuildNet for
the previous month, with such supporting documentation as BuildNet
reasonably requests, and BuildNet will pay the invoiced amount by the
15th day following receipt by BuildNet of the invoice, unless otherwise
agreed on a particular Work Order. Any past due amounts will bear
interest until paid at a rate of interest equal to the lesser of (i)
the prime rate established from time to time by Citibank of New York
plus two percent (2%), or (ii) eighteen percent (18%).
6. EMPLOYEES. The EDS personnel performing the EDS Services will be and
remain the employees of EDS, and EDS will provide for and pay the
compensation and other benefits of such employees, including salary,
health, accident and workers' compensation benefits and all taxes and
contributions which an employer is required to pay relating to the
employment of employees. During the term of this Agreement and for a
period of twelve (12) months thereafter, neither party will solicit,
directly or indirectly, for employment or employ any employee of the
other who is or was involved in the performance of the EDS Services
without the prior written consent of the employing party.
7. CONFIDENTIALITY AND ANNOUNCEMENTS. EDS and BuildNet will have the
confidentiality obligations set forth in ATTACHMENT B. Neither party
will make any media release or other public announcement relating to or
referring to this Agreement without the other's prior written consent,
such consent not to be unreasonably withheld.
8. WARRANTIES AND ADDITIONAL COVENANTS. EDS and BuildNet will have the
obligations relating to warranties and additional covenants set forth
in ATTACHMENT C.
9. OWNERSHIP. Each party will retain all rights it possessed prior -,o the
date of this Agreement in any software, ideas, concepts, know-how,
development tools, techniques or any other proprietary material or
information that may be used by such party in connection with its role
relating to the performance of the EDS Services. Should EDS acquire
third party owned software on BuildNet's behalf and subsequently
deliver such software to BuildNet either as a standalone product, or as
part of a Deliverable hereunder,
3
4
such software will be and remain the property of such vendor and
BuildNet agrees to comply with such third party software owners'
license terms and conditions. Subject to such third party rights or
restrictions and the other provisions of this SECTION 9, [*] the
deliverables developed hereunder, (including source code, development
and user documentation, test plans, build scripts and installation
processes required for BuildNet to continue to maintain and develop the
deliverables in the event of termination of this agreement) that (a)
are described in an Exhibit A to a Work Order hereto, (b) are developed
and delivered by EDS under this Agreement, and (c) are paid for by
BuildNet (the "Deliverables"). Notwithstanding anything to the contrary
in this Agreement, EDS (i) will retain all right, title and interest in
and to all development tools, know-how, methodologies, processes,
technologies or algorithms used in performing the EDS Services which
are based on trade secrets or proprietary information of EDS or are
otherwise owned or licensed by EDS, (ii) will be free to use the ideas,
concepts and know-how which are developed in the course of performing
the EDS Services and may be retained by EDS' employees in intangible
form, and (iii) will retain ownership of any EDS-owned software or
development tools that are used in producing any work product and
become embedded therein. EDS hereby grants to BuildNet a perpetual
(subject to compliance with this sentence), royalty-free, nonexclusive
license to use, sell, copy or distribute such embedded software and
tools (if any) solely in connection with BuildNet's use and
exploitation of the Deliverables and only so long as such software and
tools (if any) remain embedded in the Deliverables or any improvements
thereto or derivative works thereof and are not separated therefrom. No
licenses will be deemed to have been granted by either party to any of
its patents, trade secrets, trademarks or copyrights, except as
otherwise expressly provided in this Agreement.
10. TERMINATION. If either party materially or repeatedly defaults in the
performance of any of its obligations under this Agreement, which
default (a) if of a non-monetary nature, is not substantially cured
within thirty (30) days after notice is given to the defaulting party
specifying the default or, with respect to those defaults that cannot
reasonably be cured within thirty (30) days, should the defaulting
party fail to proceed within thirty (30) days to commence during the
default and thereafter to proceed with all reasonable diligence to
substantially cure the default, or (b) if of a monetary nature, is not
cured within 10 days after notice is given to the defaulting party
specifying the default, the party not in default may, by giving notice
thereof to the defaulting party, terminate this Agreement as of a date
specified in such notice of termination. Upon expiration or termination
of this Agreement for any reason, EDS will cease to perform the EDS
Services for BuildNet, and BuildNet will pay to EDS all sums due to EDS
as a result of the EDS Services performed and expenses incurred through
the effective date of such expiration or termination (prorated as
appropriate). Expiration or termination of this Agreement for any
reason will not release either party from any liabilities or
obligations set forth in this Agreement which (a) the par-ties have
expressly agreed will survive any such expiration or termination or (b)
remain to be performed or by their nature would be intended to be
applicable following any such expiration or termination.
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
4
5
11. INDEMNITIES. EDS and BuildNet will have the indemnity obligations set
forth in ATTACHMENT D.
12. LIABILITY. Each party's liability to the other for any damages arising
out-of or related to this Agreement, regardless of the form of action
that imposes liability, whether in contract, equity, negligence,
intended conduct, tort or otherwise, will be limited to and will not
exceed. in the aggregate for all claims, actions and causes of action
of every kind and nature, the lesser of (a) the aggregate amount which
BuildNet has paid EDS for the nine (9) month period directly preceding
the first event, act or omission on which such liability is based, or
(b) two million dollars ($2,000,000) in no event will the measure of
damages payable by EDS include, nor will EDS be liable for, any amounts
for loss of income, profit or savings or indirect, incidental,
consequential, exemplary, punitive or special damages of any party,
including third parties, even if such party has been advised of the
possibility of such damages in advance, and all such damages are
expressly disclaimed. No claim. demand for mediation or arbitration or
cause of action which arose out of an event or events which occurred
more than three (3) years prior to the filing of a demand for mediation
or arbitration or suit alleging a claim or cause of action may be
asserted by either party against the other. The provisions of this
SECTION 12 will survive the expiration or termination of this Agreement
for any reason.
13. MEDIATION ARBITRATION. Any dispute, controversy or claim arising under,
out of, in connection with or in relation to this Agreement, or the
breach, termination, validity or enforceability of any provision hereof
(a "Dispute"), if not resolved informally through negotiation between
the parties, will be submitted to non-binding mediation. The parties
will mutually determine who the mediator will be from a list of
mediators obtained from the American Arbitration Association office
located in the city determined as set forth below in this SECTION 13
(the "AAA"). If the parties are unable to agree on the mediator. The
mediator will be selected by the AAA. If any Dispute is not resolved
through mediation, it will be resolved by final and binding arbitration
conducted in accordance with and subject to the Commercial Arbitration
Rules of the AAA then applicable. One arbitrator will be selected in
accordance with such rules, and the arbitrators will allow such
discovery as is appropriate, consistent with the purposes of
arbitration in accomplishing fair, speedy and cost effective resolution
of disputes. The arbitrator will reference the rules of evidence of the
Federal Rules of Civil Procedure then in effect in setting the scope of
discovery. Judgment upon the award rendered in any such arbitration may
be entered in any court having jurisdiction thereof, or application may
be made to such court for a judicial acceptance of the award and an
enforcement, as the law of such jurisdiction may require or allow. Any
negotiation, mediation or arbitration conducted pursuant to this
SECTION 13 will take place in Plano, Texas, if initiated by BuildNet,
and in Research Triangle Park, North Carolina, if initiated by EDS.
Other than those matters involving injunctive relief or any action
necessary to enforce the award of the arbitrator, the parties agree
that the provisions of this SECTION 13 are a complete defense to any
suit, action or other proceeding instituted in any court or before any
administrative tribunal with respect to any Dispute or the performance
of the EDS Services by EDS. Nothing in
5
6
this SECTION 13 prevents the parties from exercising their right to
terminate this Agreement in accordance with Section 10.
14. EXCUSED PERFORMANCE. Neither party will be deemed to be in default
hereunder, or will be liable to the other, for failure to perform any
of its non-monetary obligations under this Agreement for any period and
to the extent that such failure results from acts or omissions of the
other party, natural disasters, riots, war, civil disorder, or any
other causes beyond that party's reasonable control (including failures
or fluctuations in electrical power, heat, light, air conditioning or
telecommunications equipment or lines) and which it could not have
prevented by reasonable precautions or could not have remedied by the
exercise of reasonable efforts.
15. EXPORT REGULATIONS. This Agreement is expressly made subject to any
United States government laws, regulations, orders or other
restrictions regarding export from the United States of computer
hardware, software, technical data or derivatives of such hardware,
software or technical data. Notwithstanding anything to the contrary in
this Agreement, BuildNet will not directly or indirectly export (or
reexport) any computer hardware, software, technical data or
derivatives of such hardware, software or technical data or permit the
shipment of same: (a) into (or to a national or resident of) Cuba,
North Korea, Iran, Iraq, Libya, Syria or any other country to which the
United States has embargoed goods; (b) to anyone on the U.S. Treasury
Department's List of Specially Designated Nationals, List of Specially
Designated Terrorists or List of Specially Designated Narcotics
Traffickers, or the U.S. Commerce Department's Denied Parties List; or
(c) to any country or destination for which the United States
government or a United States governmental agency requires an export
license or other approval for export without first having obtained such
license or other approval. The provisions of this SECTION 15 will
survive the expiration or termination of this Agreement for any reason.
16. RIGHT TO ENGAGE IN OTHER ACTIVITIES. BuildNet acknowledges and agrees
that, EDS may provide data processing and other information technology
services for third parties at any EDS facility that EDS may utilize
from time to time for performing the EDS Services. Nothing in this
Agreement will impair EDS' right, subject to the provisions of
ATTACHMENT B, to acquire, license, market. distribute, develop for
itself or others or have others develop for EMS similar technology
performing the same or similar functions as the technology and EDS
Services contemplated by this Agreement.
17. NOTICES. All notices under this Agreement will be in writing and will
be deemed to have been duly given if delivered personally or by a
nationally recognized courier service, faxed or mailed by registered or
certified mail, return receipt requested, postage prepaid, to the
parties at the addresses set forth herein. All notices under this
Agreement that are addressed as provided in this SECTION 17, (a) if
delivered personally or by a nationally recognized courier service,
will be deemed given upon delivery, (b) if delivered by facsimile, will
be deemed given when confirmed and (c) if delivered by mail in the
manner described above, will be deemed given on the fifth (5th)
business day after the day it is deposited in a regular depository of
the United States mail. Either party may
6
7
change its address or designee for notification purposes by giving
notice to the other of the new address or designee and the date upon
which such change will become effective.
18. MARKETING AND PROMOTIONAL ACTIVITIES. EDS will use commercially
reasonable efforts to promote and market BuildNet and BuildNet Products
as The electronic commerce standard for the building industry. If
applicable, any such promotional or marketing services of BuildNet and
BuildNet Products shall include displays of promotional material
substantially comparable to displays for other electronic commerce
products and services. Examples of such services would include trade
shows, EDS web site. EDS customer literature, advertisements, event
sponsorships, and sales agent training.
7
8
A. PROMOTIONAL MATERIAL. BuildNet shall, at its own expense, provide
EDS with marketing material that BuildNet deems necessary in order for
EDS to fulfill its obligations pursuant to this Agreement. Any
promotional, sample or demonstration material, including without
limitation software on CDs or diskettes, brochures, and other printed
material provided by BuildNet to EDS shall remain the sole property of
BuildNet. EDS shall have full responsibility for keeping such material
in proper condition during the entire time that the material is in its
possession. Any reproductions made by EDS are strictly for marketing
promotions and are not intended to be a source of revenue for EDS.
B. RIGHT TO USE TRADEMARKS, TRADENAMES AND LOGOS OF BUILDNET. BuildNet
hereby grants to EDS the nonexclusive right and license to use the
BuildNet name, trade names, trademarks, logo and service marks
(collectively referred to as the "Company Marks") solely in connection
with the promotion and marketing of BuildNet and BuildNet Products.
Either separately or in conjunction with any BuildNet trademark or
tradename, EDS agrees to include any notices that BuildNet may
reasonably request when using the Company Marks. In ' using the Company
Marks, EDS agrees to abide by BuildNet's Trademark Usage Guidelines,
separately provided by BuildNet to EDS, as they may be amended from
time to time.
C. COMMERCIALLY REASONABLE EFFORTS. EDS agrees to use commercially
reasonable efforts to promote and market BuildNet and BuildNet Products
to its customers, as appropriate.
19. OTHER. Where agreement, approval, acceptance or consent of either party
is required by this Agreement, such action will not be unreasonably
withheld or delayed. If any provision (other than a provision relating
to any payment obligation) of THIS Agreement or the application thereof
to any persons or circumstances is, to any extent, held invalid or
unenforceable, the remainder of this Agreement or the application of
such provision to persons or circumstances other than those as to which
it is invalid or unenforceable will not be affected thereby, and each
provision of this Agreement will be valid and enforceable to the extent
permitted by law. Nothing in this Agreement may be relied upon or will
benefit any party other than EDS and BuildNet. This Agreement (a) will
be governed by the substantive laws of the State of Texas (without
giving effect to any choice-of-law rules that may require the
application of the laws of another jurisdiction), (b) may not be
assigned by either party without the prior written consent of the other
(except that EDS will have the right to subcontract portions of the EDS
Services to be performed by it so long as EDS remains responsible for
such performance), and (c) together with the attachments hereto (each
of which are incorporated into this Agreement by this reference),
constitutes the entire agreement of the parties with respect to the
subject matter hereof, superseding all previous representations,
understandings or agreements with respect thereto.
In Witness Whereof, the parties have duly executed and delivered this Agreement
as of Effective Date.
8
9
BUILDNET, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------------------------------
Typed Name: Xxxxx X. Xxxxx
--------------------------------------------------------------
Title: President/CEO
------------------------------------------------------------------
Date: 12/31/98
-------------------------------------------------------------------
Address: 0000 Xxxxxxx Xxxx. - Xxxxx 000 in Xxxxxx. Xxxxx Xxxxxxxx 00000
ELECTRONIC DATA SYSTEMS CORPORATION
By: /s/ Xxxxx Xxxxx
----------------------------------------------------------------------
Typed Name: Xxxxx Xxxxx
--------------------------------------------------------------
Title: Vice President - Electronic Commerce
------------------------------------------------------------------
Date: 12/31/98
--------------------------------------------------------------------
Address: 0000 Xxxxxx Xxxxx Xxxxx, Xxxxx 00000
9
10
[Date]
BuildNet, Inc.
0000 Xxxxxxx Xxxx. - Xxxxx 000
Xxxxxx, XX 00000
Attention:
----------------------
Re: Work Order No.
--------------
This letter ("Work Order No. _____") will confirm the mutual understanding and
agreement of BuildNet, Inc. ("BuildNet") and Electronic Data Systems Corporation
("EDS") as to the terms on which EDS will provide to BuildNet the Services
described in this Work Order No. ____, which terms are as follows:
1. This Work Order No. _____ is entered into by the parties under the
provisions of that certain Master Services Agreement, dated as of
____, ________ , between BuildNet and EDS (the "Agreement"), and,
except as otherwise provided in this Work Order No._____, all
applicable provisions of the Agreement are incorporated into this
Work Order No.____ by this reference.
2. The term of this Work Order No. _____ will commence ___________ ,
_____ on ______ and, unless earlier terminated as provided in the
Agreement or this Work Order No._____ will expire on _________. The
term of this Work Order No._____ may be extended by the mutual
written agreement of the Parties.
3. During the term of this Work Order No. __________ , EDS will provide to
BuildNet the Services described in the attached Exhibit A.
4. In connection with the Services provided by EDS under this Work Order
No. _____ , BuildNet will provide to EDS the support and resources
described in the attached Exhibit B.
5. For the Services provided by EDS under this Work Order No. _______ ,
BuildNet will pay to EDS the amounts specified in the attached Exhibit
C, as such amounts are adjusted from time to time as provided in
Exhibit C.
6. The Services provided by EDS under this Work Order No. _______ will be
subject to the additional provisions (if any) set forth in the attached
Exhibit D.
Please indicate your agreement to the foregoing by signing both copies of this
Work Order No.______ and returning one fully executed copy to EDS.
ELECTRONIC DATA SYSTEMS CORPORATION
10
11
---------------------------------------
Xxxxx Xxxxx
Vice President - Electronic Commerce
Accepted and Agreed:
BUILDNET, INC.
By:
------------------------------------
Typed Name:
Title:
Date:
11
12
EXHIBIT A
EDS SERVICES
12
13
EXHIBIT B
BUILDNET OBLIGATIONS
1. FACILITIES. BuildNet will provide to EDS at Research Triangle Park, NC
(the "BuildNet Facilities") the following items, which will be used by
EDS only to provide the EDS Services: space, parking, office
furnishings, janitorial service, computer hardware, computer software,
voice communication services, data communication services, utilities
(including heat and air conditioning), office-related equipment (such
as telephones, file cabinets and desks), supplies, duplicating and
facsimile equipment and services and premises security services, in
each case as are required for EDS to perform the EDS Services. BuildNet
will give EDS access to such facilities twenty-four (24) hours a day,
seven (7) days a week, subject to any constraints imposed under
applicable leases. BuildNet will provide the BuildNet Facilities and
the items described in this SECTION 1 in a manner such that they (a)
are kept free of health and safety hazards, (b) comply with and are
maintained in compliance with all applicable local, state and federal
laws, including the Americans with Disabilities Act, and (c) meet such
operational, environmental and safety requirements as are required for
EDS to perform the EDS Services.
2. HARDWARE. BuildNet will provide to EDS access to such items of BuildNet
hardware and related equipment (including personal computers,
terminals, printers, remote job entry workstations and similar
equipment), as well as telecommunications lines and equipment, at the
BuildNet Facilities as EDS reasonably requests in connection with the
performance by EDS of the EDS Services. Further, with respect to any
leased hardware and related equipment, BuildNet will obtain any
consents from its vendors as are necessary for EDS to use such hardware
and equipment in performing the EDS Services. BuildNet will be
responsible for obtaining any such consents and for finding an
alternative solution in the event a vendor refuses consent. For
purposes of this Agreement, "access" means the enjoyment of physical
and legal use and operation of a specified item of property as required
for EDS to perform its obligations under this Agreement.
3. SOFTWARE. BuildNet will provide, or cause to be provided, to EDS the
right to access BuildNet-owned software and software licensed to
BuildNet or a customer of BuildNet by a vendor if such is required for
EDS to perform the EDS Services, but for no other purpose. BuildNet
will be responsible for obtaining any such consents, licenses or other
rights and for finding an alternative solution in the event a vendor
refuses consent.
4. PERSONNEL RESOURCES. BuildNet will provide and make available to EDS
appropriate management and technical personnel of BuildNet who ,&U work
with EDS and will perform or ensure the performance of, on a timely
basis, those activities referenced in Exhibit B of any Work Order, the
responsibility for which is required therein to be assumed by BuildNet.
In addition. BuildNet will cooperate with EDS through making available
such -personnel, management decisions, information, authorizations,
business
13
14
plans, approvals and acceptances in order that EDS' performance of the
EDS Services may be properly, timely and efficiently accomplished.
14
15
EXHIBIT C
PAYMENTS DUE EDS
15
16
EXHIBIT D
ADDITIONAL PROVISIONS
16
17
ATTACHMENT B
CONFIDENTIALITY
1. SCOPE OF OBLIGATION. Except as otherwise expressively provided in
this Agreement, EDS and BuildNet each agree that (a) all information
communicated to it by the other and identified in writing as confidential, or
disclosed orally or visually if identified as confidential at the time of
disclosure and if summarized in writing and provided to the other party promptly
after such oral or visual disclosure whether before or after The date hereof,
(b) all information constituting part of the Deliverables in connection with the
EDS Services, whether before or after the date hereof, and (c) this Agreement
and the parties' rights and obligations hereunder, will be and will be deemed to
have been received in confidence and will be used only for purposes of this
Agreement, and each of E-EDS and BuildNet agrees to use the same means as it
uses to protect its own confidential information, but in no event less than
reasonable means, to prevent the disclosure and to protect the confidentiality
thereof. No such information will be disclosed by the recipient party without
the prior written consent of the other party; provided, however, that each party
may disclose this Agreement and the other party s confidential information to
those of the recipient party's attorneys, auditors, insurers (if applicable),
subcontractors and full time employees who have a need to have access to such
information in connection with their employment (or engagement, if applicable)
by the recipient party. Compliance by each of the persons referenced in the
preceding sentence with the confidentiality obligations set forth in this
ATTACHMENT B will remain the responsibility of the party employing or engaging
such persons.
2. EXCEPTIONS. The foregoing will not prevent either party from disclosing
information that belongs to such party or (i) is already known by the
recipient party without an obligation of confidentiality other than
under this Agreement, (ii) is publicly known or becomes publicly known
through no unauthorized act of the recipient party, or (iii) is
rightfully received from a third party. If confidential information is
required to be disclosed pursuant to a requirement of a governmental
authority, such confidential information may be disclosed pursuant to
such requirement so long as the party required to disclose the
confidential information, to the extent possible, provides the other
party with timely prior notice of such requirement and coordinates with
such other party in an effort to limit the nature and scope of such
required disclosure. if confidential information is required to be
disclosed in connection with the conduct of any mediation or
arbitration proceeding carried out pursuant to SECTION 13 of this
Agreement, such confidential information may be disclosed pursuant to
and in accordance with the approval and at the direction of the
mediator or arbitrator, as the case may be, conducting such proceeding.
Upon written request at the expiration or termination of this Agreement
for any reason, all documented confidential information land all copies
thereof) owned by the requesting party will be returned to the
requesting party or will be destroyed, with written certification
Thereof being given to the requesting party. The provisions of this
ATTACHMENT B will survive the expiration or termination of this
Agreement for any reason.
17
18
3. Notwithstanding the foregoing, EDS acknowledges and agrees that
BuildNet is engaged principally m the business of offering electronic
commerce products and services to the building industries and that
nothing disclosed to BuildNet by EDS hereunder shall in any way
preclude BuildNet from engaging in such business in the ordinary,
course consistent with BuildNet's business plans.
18
19
ATTACHMENT C
WARRANTIES AND ADDITIONAL COVENANTS
1. PERFORMANCE. EDS represents and warrants that ail EDS Services will be
performed in a professional and workmanlike manner in accordance with
industry standards.
2. BUILDNET INFORMATION. BuildNet represents and warrants that the
information furnished by BuildNet to EDS on which EDS based the
description of the EDS Services and the charges to be paid by BuildNet
therefor, in each case as set forth in this Agreement, is accurate and
complete in all material respects.
3. VIRUSES. Each party will use commercially reasonable measures to screen
any software provided or made available by it to the or-her party
hereunder for the purpose of avoiding the introduction of any "virus"
or other computer software routine or hardware components which are
designed (i) to permit access or use by third parties to the software
of the other party not authorized by this Agreement, (ii) to disable or
damage hardware or damage, erase or delay access to software or data of
the or-her party or (iii) to perform any other similar actions.
4. DISABLING CODES. EDS will not, without informing BuildNet's
Representative in writing, knowingly insert into the software used by
it hereunder any code or other device which would have the effect of
disabling, damaging, erasing, delaying or otherwise shutting down all
or any portion of the EDS Services or the hardware, software or data
used in performing the EDS Services. EDS will not invoke such code or
other device at any time, including upon expiration or termination of
this Agreement for any reason.
5. YEAR 2000.
(a) Deliverables hereunder which are developed by EDS for BuildNet will
be Year 2000 Compliant, as that term is defined herein). The parties
acknowledge and agree that the EDS Services do not include, and EDS
will not be responsible for, any changes, modifications, updates or
enhancements to any existing software, systems, hardware and related
equipment, data, interfaces or processes (collectively, "Items") which
may be necessary so that such Items, either alone or in conjunction
with or-her Items will be Year 2000 Compliant. For purposes of this
Agreement, the term "Year 2000 Compliant" means that such Items (i)
will operate and produce data before, on or after January 1, 2000
(including taking into effect that such year is a leap year),
accurately and without delay, interruption or error relating to the
fact that the time at which and the date on which such software is
operating is on or after 12:00 a.m. on January 1, 2000, or (iii) will
accept, calculate, process, maintain, store and out-out, accurately and
without delay, interruption or error, any function referencing a time
or date on or after 12:00 a.m. on January 1, 2000, or both, whether
before, on or after 12:00 a.m. on January 1, 2000, and any time period
determined or to be determined based on any such times or dates, or
both. EDS will not be responsible or penalized for any adverse impact
on BuildNet, the EDS
19
20
Services or any performance standards therefor resulting from any Items
of BuildNet or any third party not being Year 2000 Compliant or from
any inaccuracies, delays, interruptions or errors as a result of
receiving data in two digit year date or other formats that are not
Year 2000 Compliant from other software, systems, hardware and related
equipment or third parties or as a result of any changes made by
BuildNet or any third party to the software, being operated by EDS as
part of the EDS Services.
(b) Except for third party owned software that EDS acquires on BuildNet's
behalf and subsequently delivers to BuildNet as either a standalone
product or as part of a Deliverable hereunder, EDS covenants that
Deliverables hereunder will maintain the functionality existing as of
the date of acceptance of such Deliverables by BuildNet taking into
account any processing, accepting, calculating, writing and outputting
of times or dates, or both, whether before, on or after 12:00 a.m.
January 1, 2000, and any time periods determined or to be determined
based on any such times or dates. or both, and BuildNet acknowledges
and agrees that EDS will not be responsible for:
(i) changes, modifications, updates or enhancements to, and any
inaccuracies, delays, interruptions or errors caused by, interfaces
between the Deliverables hereunder and any software or systems which
are not provided by EDS under this Agreement, and
(ii) any inaccuracies, delays, interruptions or errors occurring as
a result of incorrect data or data from other systems, software,
hardware, processes or third parties provided in a format that is
inconsistent with the format and protocols established for the
Deliverables including date data in two digit format, even if such data
is required for the operation of the Deliverables; and
(iii) any inaccuracies, delays, interruptions or errors occurring as
a result of data from telecommunications systems.
6. DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS ATTACHMENT
C, EDS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY,
ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE
DERIVED FROM THE USE, OF ANY INFORMATION TECHNOLOGY SERVICE, SOFTWARE,
HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS ATTACHMENT C, EDS DOES NOT
REPRESENT OR WARRANT THAT THE OPERATION OF ANY SOFTWARE WILL BE
UNINTERRUPTED, ERROR-FREE OR YEAR 2000 COMPLIANT.
20
21
ATTACHMENT D
INDEMNITIES
D-1. CLAIMS RELATING TO PERSONAL INJURY AND PROPERTY DAMAGE.
(a) GENERAL. EDS and BuildNet each will be responsible for any and all
claims, actions, damages, liabilities, costs and expenses, including
reasonable attorneys' fees and expenses (collectively, "Losses"), to
their respective tangible personal or real property (whether owned or
leased), and each party agrees to look only to its own insuring
arrangements (if any) with respect to such Losses. EDS and BuildNet
each will be responsible for Losses for the death of or personal injury
to any person (including any employee of either party) and Losses for
damages to any third party's tangible personal or real property
(whether owned or leased), in accordance with the law of the
jurisdiction in which such Loss is alleged to have occurred. Subject to
SECTION 12 of this Agreement and the procedures set forth below in
SECTION D-4, each party will indemnify and defend the other party and
hold the other party harmless from any and all Losses arising out of,
under or in connection with claims for which the indemnitor is
responsible under the preceding sentence.
(B) Waiver of Subrogation. EDS and BuildNet waive all rights to recover
against each other for any Loss to their respective tangible personal
property (whether owned or leased) from any cause covered by insurance
maintained by each of them, including their respective deductibles or
self insured retentions. EDS and BuildNet will use reasonable efforts
to cause their respective insurers to issue appropriate waivers of
subrogation rights endorsements to all property insurance policies
maintained by each Party. Each Party will give the other written notice
if a waiver of subrogation is unobtainable or obtainable only at
additional expense. If the Party receiving such notice agrees to
reimburse the or-her Xxx, for such additional expense, the other Party
will obtain such waiver of subrogation. If a waiver is unobtainable or
if a Party elects not to pay the additional expense of a waiver, then
neither Party nor their insurers will waive such subrogation rights.
D-2. INFRINGEMENT CLAIMS.
(a) GENERAL. Subject to SECTION 12 of this Agreement, the limitations set
forth below in this SECTION D-2 and the procedures set forth below in
SECTION D-4, EDS and BuildNet each agree to defend the other party
against any action to the extent that such action is based upon a claim
that the software (other than third party software) or confidential
information provided by the indemnitor, or any part thereof, (i)
infringes a copyright perfected under United States statute, (ii)
infringes a patent granted under United States law or (iii) constitutes
an unlawful disclosure, use or
21
22
misappropriation of another party's trade secret. The indemnitor will
bear the expense of such defense and pay any damages and attorneys'
fees that are attributable to such claim finally awarded by a court of
competent jurisdiction.
(b) Exclusions. Neither EDS nor BuildNet will be liable to the other for
claims of indirect or contributory infringement. In particular, the
indemnitor will have no liability to the indemnitee, hereunder if any
claim of infringement is based upon the use of software provided by the
indemnitor hereunder used in a manner for which the software was not
designed. Also, the indemnitor will have no liability if the indemnitee
modifies any software provided by the indemnitor hereunder and such
infringement would not have occurred but for such modification, or uses
the software in the practice of a patented process and there would be
no infringement in the absence of such practice, or such claim arises
out of the indemnitor's compliance with specifications provided by the
indemnitee and such infringement would not have occurred but for such
compliance.
(C) Additional REMEDY. If software or confidential information becomes the
subject of an infringement claim under this SECTION D-2, or in the
indemnitor's opinion is likely to become the subject of such a claim,
then. in addition to defending the claim and paying any damages and
attorneys' fees as required above in this SECTION D-2, the indemnitor
will either (A) replace or modify the software or confidential
information to make it noninfringing or cure any claimed misuse of
another's trade secret or (B) procure for the indemnitee the right to
continue using the software or confidential information pursuant to
this Agreement. Any costs associated with implementing either of the
above alternatives will be borne by the indemnitor but will be subject
to SECTION 12 of this Agreement. If neither option is available to the
indemnitor through the use of reasonable, diligent efforts, (x) The
indemnitee will return such software or confidential information to the
indemnitor and (y) if requested by the indemnitee in good faith, the
parties will negotiate, pursuant to SECTION 13 of this Agreement but
subject to SECTION 12 of this Agreement. to reach a written agreement
on what, if any, monetary damages (in addition to the indemnitor's
obligation to defend the claim and pay any damages and attorneys' fees
as required above in this SECTION D-2) are reasonably, owed by the
indemnitor to the indemnitee as a result of the indemnitee no longer
having use of such software or confidential information.
D-3. CLAIMS RELATING TO INTERNET USAGE. Subject to SECTION 12 of this
Agreement and the procedures set forth below in SECTION D-4, BuildNet
will indemnify and defend EDS and hold EDS harmless from any and all
Losses, including those associated with claims for indirect or
contributory infringement, arising out of. under or in connection with
any claims relating to (i) content (other than that provided by EDS, if
any), whether of an editorial, advertising or other nature. (ii) the
provision, use, alteration or distribution thereof, the accessibility
thereto or the exchange of information over the Internet in connection
therewith, including copyright infringement, libel, indecency, false
light, misrepresentation. invasion of privacy or image or personality
rights, (iii) statements or other materials made or made available by
readers of the content or by persons to whom the content is linked at
the request of BuildNet or (iv) the conduct of BuildNet's business.
22
23
D-4. Procedures. The indemnification obligations set forth in this
ATTACHMENT D will not apply unless the party claiming indemnification:
(a) notifies the other promptly in writing of any matters in respect of
which the indemnity may apply and of which the notifying party has
knowledge. in order to allow the indemnitor the opportunity to
investigate and defend the matter; provided, however, that the failure
to so notify will only relieve the indemnitor of its obligations under
this ATTACHMENT D if and to the extent that the indemnitor is
prejudiced thereby; and (b) gives the other party full opportunity to
control the response thereto and the defense thereof, including any
agreement relating to the settlement :hereof; provided, however, that
the indemnitee will have the right to participate in any legal
proceeding to contest and defend a claim for indemnification involving
a third party and to be represented by legal counsel of its choosing,
all at the indemnitee's cost and expense. However, if the indemnitor
fails to promptly assume the defense of the claim, the party entitled
to indemnification may assume the defense at the indemnitor's cost and
expense.
The indemnitor will not be responsible for any settlement or compromise
made without its consent, unless the indemnitee has tendered notice and
the indemnitor has then refused to assume and defend the claim and it
is later determined that the indemnitor was liable to assume and defend
the claim. The indemnitee agrees to cooperate in good faith with the
indemnitor at the request and expense of the indemnitor.
23
