Exhibit 10.8
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
BT AGREEMENT NO. 658270
DATED 1999
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COMMERCE ONE, INC.
and
BRITISH TELECOMMUNICATIONS PLC
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GOVERNANCE AGREEMENT
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Nabarro Xxxxxxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Tel: 0000 000 0000
CONFIDENTIAL
CONTENTS
Clause Subject Matter Page
DATE............................................................................................1
PARTIES.........................................................................................1
RECITALS........................................................................................1
1. GENERAL.........................................................................................1
2. ADVISORY COMMITTEE..............................................................................2
3. AUDIT...........................................................................................2
4. PRODUCT EVOLUTION...............................................................................3
5. BRANDING........................................................................................3
6. CONTENT MANAGEMENT..............................................................................3
7. OVERARCHING CRITERIA............................................................................3
8. CONTRACT REVIEWS................................................................................4
9. ESCALATION OF DISPUTES..........................................................................4
10. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.................................................4
C1 Representations and Warranties...............................................................4
C1 Indemnification Obligations..................................................................5
BT Representations and Warranties...............................................................5
BT Indemnification Obligations..................................................................5
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11. TERM AND TERMINATION............................................................................6
Term............................................................................................6
Termination.....................................................................................6
12. GENERAL PROVISIONS..............................................................................6
Notices.........................................................................................6
Entire Agreement................................................................................7
Amendments......................................................................................7
Waivers.........................................................................................7
No Third Party Beneficiaries....................................................................7
Assignment......................................................................................8
Headings........................................................................................8
Severance.......................................................................................8
Severability....................................................................................8
Governing Law...................................................................................8
THE SCHEDULE INFORMATION TO BE SUPPLIED QUARTERLY TO THE ADVISORY
COMMITTEE.......................................................................................9
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GOVERNANCE AGREEMENT
("THIS AGREEMENT")
DATE 1999 (the "EFFECTIVE TIME")
PARTIES
(1) COMMERCE ONE, INC., a California corporation whose principal place of
business is at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx
("C1"); and
(2) BRITISH TELECOMMUNICATIONS plc whose registered office is at 00 Xxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX and whose registered number is 1800000 ("BT").
RECITALS
(A) Pursuant to the terms and conditions of an Amended and Restated Trading
Agreement dated the same date as this Agreement by and between C1 and BT
(the "TRADING AGREEMENT"), C1 has granted to BT a MarketSite Software
licence and may grant other licences to BT pursuant to that Agreement or
pursuant to reseller arrangements proposed to be put in place between the
parties in relation to C1's BuySite product.
(B) In connection with the various trading arrangements existing and proposed
between C1 and BT, the parties wish to enter into this Agreement,
effective as of the Effective Time, with respect to the governance of
their relationships and certain other matters in relation to the products
covered by their trading arrangements.
IT IS AGREED AS FOLLOWS:
1. GENERAL
The parties agree that this Agreement, and the rights and obligations of
the parties hereunder shall become effective on the Effective Time.
Capitalised terms not defined herein shall have the meanings set forth in
the Trading Agreement.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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2. ADVISORY COMMITTEE
2.1 THE PARTIES SHALL AS FROM THE EFFECTIVE TIME ESTABLISH AN ADVISORY COMMITTEE
(THE "ADVISORY COMMITTEE") CONSISTING OF TWO SENIOR REPRESENTATIVES NOMINATED BY
EACH PARTY, ONE OF WHOM SHALL BE ON THE TECHNICAL SIDE AND THE OTHER ON THE
OPERATIONAL SIDE. THE FIRST MEMBERS SHALL BE XXXX XXXXX-XXXXX AND XXXXXX
SANMOGEN AS THE NOMINEES OF C1 AND [*] AND [*] AS THE NOMINEES OF BT.
2.2 EACH OF C1 AND BT WILL HAVE THE RIGHT TO REPLACE EITHER OR BOTH OF ITS
NOMINEES ON THE ADVISORY COMMITTEE, PROVIDED THAT C1 AND BT AGREE TO CONSULT
WITH EACH OTHER PRIOR TO ANY SUCH REPLACEMENT AND NOT TO APPOINT A PERSON TO
WHOM THE OTHER PARTY REASONABLY OBJECTS.
2.3 THE ADVISORY COMMITTEE SHALL MEET QUARTERLY IN LONDON OR WALNUT CREEK,
CALIFORNIA AT THE MUTUAL AGREEMENT OF THE PARTIES. IT SHALL REGULATE ITS OWN
PROCEEDINGS, PROVIDED THAT WHERE DECISIONS ARE MADE THEY SHALL BE MADE BY
UNANIMOUS VOTE OF ALL FOUR MEMBERS OF THE ADVISORY COMMITTEE. IN THE EVENT THAT
THE ADVISORY COMMITTEE IS UNABLE TO REACH AGREEMENT THE PROVISIONS OF CLAUSE 9
WILL APPLY.
2.4 THE ROLE OF THE ADVISORY COMMITTEE SHALL BE TO RECEIVE AND REVIEW RELEVANT
INFORMATION (AS REFERRED TO IN CLAUSE 2.5), PROVIDE A FORUM FOR THE SHARING OF
VIEWS, WISHES AND CONCERNS AND, WHERE EXPRESSLY STATED BELOW, TO REACH WRITTEN
AGREEMENTS WHICH SHALL BE BINDING ON C1 AND BT.
2.5 THE INFORMATION TO BE PRESENTED TO THE ADVISORY COMMITTEE FOR REVIEW AT ITS
QUARTERLY MEETINGS SHALL COVER THE MATTERS LISTED IN THE SCHEDULE AND SUCH OTHER
MATTERS AS THE ADVISORY COMMITTEE MAY FROM TIME TO TIME DECIDE. THE ADVISORY
COMMITTEE SHALL DETERMINE WHICH STATISTICS ARE REQUIRED IN RESPECT OF EACH
MATTER LISTED AND THE RESPONSIBILITY AS BETWEEN C1 AND BT TO MAKE THEM
AVAILABLE. FOR THE AVOIDANCE OF DOUBT, NO PERSONAL DATA (AS DEFINED FOR THE
PURPOSES OF THE DATA PROTECTION ACT 1998) SHALL BE DISCLOSED TO THE ADVISORY
COMMITTEE.
2.6 EACH PARTY SHALL SUPPLY THE ADVISORY COMMITTEE FOR EACH MEETING WITH ITS
BEST ESTIMATE, BASED ON REASONABLE ASSUMPTIONS, OF ITS FUTURE SUPPLIER ADOPTION
RATES AND A REVIEW OF PAST ACTUAL RATES AGAINST FORECAST IN SO FAR AS THIS IS
NECESSARY TO ASSIST THE OTHER PARTY IN PLANNING ITS OWN OPERATIONS AND
RESOURCES.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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3. AUDIT
Each party shall allow an independent third party reasonably acceptable
to it from time to time access at all reasonable times to inspect its
books and records for the purpose of verifying any sales, costs or other
information supplied by that other to it for the purpose of any agreement
between the parties and to obtain copies of extracts from such books and
records subject to paying reasonable copying charges for them.
4. PRODUCT EVOLUTION
4.1 C1 IS ESTABLISHING A TECHNICAL ADVISORY COUNCIL AND BT SHALL BE ENTITLED TO
DESIGNATE A SENIOR TECHNICAL REPRESENTATIVE TO BE A MEMBER OF THAT COUNCIL WITH
AN EQUAL VOICE ON THAT COUNCIL TO EACH OF THE OTHER FRANCHISE MARKETSITE
OPERATORS OF C1 MARKETSITE.
4.2 BT SHALL HAVE A FIRST OPTION TO TEST NEW SOFTWARE IN THE UK FOR NEW
MARKETSITE VALUE ADDED SERVICES BUT SHALL NOT BE OBLIGED TO CARRY OUT BETA
TESTING.
4.3 WHERE NEW VALUE ADDED SERVICES ARE READY FOR LICENSING IN THE UK, C1 WILL
GIVE BT FIRST OPPORTUNITY TO ACQUIRE A NON-EXCLUSIVE LICENCE FOR THE UK PROVIDED
THAT THIS SHALL NOT PREVENT C1 OFFERING THE SAME RIGHT TO ANY BETA TESTER OF
THAT SERVICE.
5. BRANDING
5.1 THE PARTIES HAVE JOINTLY AGREED THE FOLLOWING BRANDING DESCRIPTION FOR BT'S
SERVICE USING MARKETSITE, NAMELY "BT MARKETSITE POWERED BY COMMERCE ONE" AND
AGREE THAT THIS SHALL BE USED AS THE SOLE BRAND FOR THAT SERVICE. EXCEPT AS
STATED ABOVE, NEITHER PARTY HAS ANY RIGHT TO USE ANY TRADE OR SERVICE XXXX OF
THE OTHER EXCEPT WITH THE WRITTEN AGREEMENT OF THE OTHER. THE PROVISIONS OF THIS
CLAUSE 5.1 SHALL SURVIVE AND CONTINUE IN FORCE AFTER ANY TERMINATION OF THIS
AGREEMENT.
5.2 THE BRANDING SHALL BE KEPT UNDER REVIEW BY THE ADVISORY COMMITTEE, BUT ANY
CHANGE TO THE BRANDING DESCRIPTION AS SET OUT IN THE SAID MARKETING AGREEMENT
WHICH IS RECOMMENDED BY IT SHALL REQUIRE THE WRITTEN CONSENT OF BOTH BT AND C1
BEFORE IT IS IMPLEMENTED.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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6. CONTENT MANAGEMENT
BT agrees that it will comply with standards for supplier content on
MarketSite agreed between C1 and BT from time to time.
7. OVERARCHING CRITERIA
In acknowledgement of C1's interest in a successful take up of the
Market Site service, BT will discuss with C1, in the context of the
Advisory Committee, its proposed overarching criteria for its
MarketSite and will take account of these criteria, as amended from
time to time.
8. CONTRACT REVIEWS
8.1 IF EITHER C1 OR BT CONSIDER THAT THE FINANCIAL ARRANGEMENTS BETWEEN THEM CAN
NO LONGER PRODUCE THE RESULTS ANTICIPATED IN THE ORIGINAL FINANCIAL MODEL, THEN
IT SHALL REFER THE MATTER TO THE ADVISORY COMMITTEE AND C1 AND BT SHALL PROCURE
THAT THEIR RESPECTIVE APPOINTEES ON THE ADVISORY COMMITTEE SHALL NEGOTIATE IN
GOOD FAITH TO ENDEAVOUR TO AGREE AN AMENDMENT TO THE FINANCIAL ARRANGEMENTS
WHICH IS FAIR TO BOTH PARTIES.
8.2 IF THEY ARE UNABLE TO REACH AN AGREEMENT, THE MATTER SHALL BE ESCALATED IN
ACCORDANCE WITH CLAUSE 9 AND IF THAT FAILS TO ACHIEVE AN AGREEMENT NO CHANGE
SHALL BE MADE TO THE FINANCIAL ARRANGEMENTS. IF AN AGREEMENT IS REACHED WITHIN
THE ADVISORY COMMITTEE OR IN ACCORDANCE WITH THE ESCALATION PROCEDURE, THE
PARTIES SHALL AGREE THE APPROPRIATE CHANGES TO THE AGREEMENTS BETWEEN THEM.
9. ESCALATION OF DISPUTES
9.1 WHERE ANY MATTER REQUIRES TO BE AGREED OR DETERMINED, BY THE ADVISORY
COMMITTEE UNDER THIS AGREEMENT BUT THE NECESSARY UNANIMOUS AGREEMENT OF THE
MEMBERS CANNOT BE OBTAINED, THE MATTER SHALL BE REFERRED TO THE CHIEF EXECUTIVE
OFFICER OF C1 AND GENERAL MANAGER OF THE BT E-BUSINESS UNIT FOR THEIR AGREEMENT.
IF THEY REACH AGREEMENT, IT SHALL BE DEEMED TO BE THE AGREEMENT OF THE ADVISORY
COMMITTEE FOR THE PURPOSES OF THIS AGREEMENT. IF AGREEMENT CANNOT BE REACHED AND
IN THE REASONABLE OPINION OF EITHER PARTY THE INABILITY TO AGREE MAKES IT
IMPOSSIBLE TO GOVERN THEIR RELATIONSHIP IN THE MANNER REASONABLY ANTICIPATED AT
THE OUTSET THEN EITHER PARTY MAY BY NOTICE TO THE OTHER TERMINATE THIS AGREEMENT
AND THE AMENDED TRADING AGREEMENT BUT, FOR THE AVOIDANCE OF DOUBT, SUCH
TERMINATION SHALL NOT AFFECT ANY ORDER.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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9.2 THE PARTIES AGREE THAT ANY DISPUTE ARISING UNDER ANY OF THE AGREEMENTS
BETWEEN THEM SHALL, BEFORE EITHER PARTY RESORTS TO OTHER LEGAL REMEDIES
(INCLUDING THE EXERCISE OF A RIGHT TO TERMINATE), BE REFERRED TO THE ADVISORY
COMMITTEE FOR DISCUSSION AND, IF POSSIBLE, RESOLUTION AND, FAILING THAT, SHALL
BE ESCALATED IN ACCORDANCE WITH CLAUSE 9.1, PROVIDED THAT THIS SHALL NOT APPLY
WHERE ACTION NEEDS TO BE TAKEN URGENTLY BY EITHER PARTY TO PROTECT ITS
LEGITIMATE INTERESTS.
10. REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
10.1 C1 REPRESENTATIONS AND WARRANTIES
C1 represents and warrants to BT that:
10.1.1 it has the right, power and authority to enter into this Agreement
and fully to perform its obligations under this Agreement;
10.1.2 the making of this Agreement by it does not violate any agreement
existing between it and any other person or entity;
10.1.3 it complies, and at all times shall comply, with all applicable
laws, rules and regulations in effect at the time services are
performed pursuant to this Agreement pertaining to the subject
matter hereof; and
10.1.4 it shall not exercise any of the rights granted to it under or
pursuant to this Agreement in a manner that shall violate any
applicable law, rule or regulation.
10.2 C1 INDEMNIFICATION OBLIGATIONS
C1 agrees to, and shall, indemnify, defend and hold harmless BT and
its Affiliates and their respective directors, shareholders,
officers, agents, employees, successors and assigns from and against
any and all claims, demands, suits, judgments, damages, costs,
losses, expenses (including reasonable attorneys' fees and expenses)
and other liabilities arising from actions brought by third parties
in connection with or related to, directly or indirectly, any breach
or alleged breach of any of the representations or warranties made by
it under Clause 10.1, provided that BT gives C1 full control over the
defence (including any settlements) of any such claim; and BT
provides C1 with full information and reasonable assistance, at C1's
expense. C1 shall keep BT informed of, and consult with BT in
connection with, the progress of such litigation or settlement and
(i) C1 shall not have any right, without BT's written consent, to
settle any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a stipulation to
or admission or acknowledgement of any liability or wrongdoing
(whether in contract, tort or otherwise) on
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
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the part of any BT Affiliate, and (ii) BT shall promptly notify C1 of
any such claim. For the purposes of this Clause "Affiliate" has the
meaning in the Amended and Restated Trading Agreement between the
parties.
10.3 BT REPRESENTATIONS AND WARRANTIES
BT represents and warrants that:
10.3.1 it has the right, power and authority to enter into this Agreement
and fully to perform its obligations under this Agreement;
10.3.2 the making of this Agreement by it does not violate any agreement
existing between it and any other person or entity;
10.3.3 it complies, and at all times shall comply, with all applicable
laws, rules and regulations in effect at the time services are
performed pursuant to this Agreement pertaining to the subject
matter hereof; and
10.3.4 it shall not exercise any of the rights granted to it under or
pursuant to this Agreement in a manner that shall violate any
applicable law, rule or regulation.
10.4 BT INDEMNIFICATION OBLIGATIONS
BT agrees to, and shall, indemnify, defend and hold harmless C1 and
its Affiliates, and its directors, shareholders, officers, agents,
employees, successors and assigns from and against any and all
claims, demands, suits, judgments, damages, costs, losses, expenses
(including reasonable attorneys' fees and expenses) and other
liabilities arising from actions brought by third parties in
connection with or related to, directly or indirectly, any breach or
alleged breach of the representations or warranties made by it under
Clause 10.3. C1 shall promptly notify BT of any such claim; C1 gives
BT full control over the defence (including any settlements) of such
claim; and C1 provides BT with full information and reasonable
assistance, at BT's expense; provided, however, that (i) BT shall
keep C1 informed of and consult with C1 in connection with the
progress of such litigation or settlement; and (ii) BT shall not have
any right, without C1's written consent, to settle any such claim if
such settlement arises from or is part of any criminal action, suit
or proceeding or contains a stipulation to, or admission or
acknowledgement of, any liability or wrongdoing (whether in contract,
tort or otherwise) on the part of C1.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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11. TERM AND TERMINATION
11.1 TERM
The term of this Agreement shall commence as of the Effective Time
and shall continue until termination of the Trading Agreement unless
terminated earlier in accordance with Clause 11.2.
11.2 TERMINATION
Without prejudice to any other rights or remedies available to the
parties, BT and C1 shall each have the right, in its sole discretion,
to terminate this Agreement upon written notice to the other in the
event of the occurrence of one or more of the following:
11.2.1 In the event that the other party shall become insolvent or cease
to trade or compound with its creditors, or a receiver or an
administrative receiver is appointed in respect of any of the
other party's assets or a petition for an administration order is
presented or such an order is made in relation to the other party
or a resolution or petition or order to wind up the other party is
passed or presented or made or a liquidator is appointed in
respect of it (otherwise than for reconstruction or amalgamation).
11.2.2 The other party breaches any material term or provision of this
Agreement and fails to cure such breach within sixty (60) days
after the non-breaching party delivers written notice thereof to
the other party stating what actions are required to cure such
breach or indicating that such breach is incapable of being cured;
provided that the alleged breaching party shall use its reasonable
efforts to timely cure such breach.
11.2.3 The management ownership or control of the other is changed to the
detriment of BT or Commerce One as applicable.
12. GENERAL PROVISIONS
12.1 NOTICES
12.1.1 All notices which either party is required or may desire to serve
upon another party shall be in writing and addressed as follows:
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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(a) if to BT:
British Telecommunications plc
Xxxxxxx Xxxxxxx
BT Business Services
XXX000
Xxxxx Xxxx Xxxxx
Xxxxx Xxxx Xxxxxx
Xxxxxxx XX0 0XX
(b) if to C1:
Commerce One, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx
Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
12.1.2 Any such notice may be served personally or by mail (postage
prepaid), facsimile (provided oral confirmation of receipt is
immediately obtained and a hard copy is concurrently sent by
internationally commercially recognised overnight delivery
service), internationally commercially recognised overnight
delivery service (such as Federal Express or DHL) or courier.
Notice shall be deemed served upon personal delivery or upon
actual receipt. Any party may change the address to which notices
are to be delivered by written notice to the other parties served
as provided in this Clause 12.1.
12.2 ENTIRE AGREEMENT
This Agreement, together with its Schedules constitutes the complete,
final and exclusive understanding and agreement between the parties
with respect to the transactions contemplated, and supersedes any and
all prior or contemporaneous oral or written representations,
understanding, agreement or communication between the parties
concerning the subject matter hereof.
12.3 AMENDMENTS
All amendments or modifications of this Agreement shall be binding
upon the parties so long as the same shall be in writing and executed
by each of the parties hereto.
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
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12.4 WAIVERS
No waiver of any provision of this Agreement or any rights or
obligations of any party hereunder shall be effective, except
pursuant to a written instrument signed by the party waiving
compliance, and any such waiver shall be effective only in the
specific instance and for the specific purpose stated in such
writing.
12.5 NO THIRD PARTY BENEFICIARIES
Nothing in this Agreement is intended or shall be construed to give
any person, other than the parties hereto, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
12.6 ASSIGNMENT
No party shall, directly or indirectly, assign this Agreement to any
third party, except that either party may assign this Agreement to
its parent corporation or any entity of which its parent owns at
least 80% of the voting equity.
12.7 HEADINGS
The section and sub-section headings and captions appearing in this
Agreement are inserted only as a matter of convenience and shall not
be given any legal effect.
12.8 SEVERANCE
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and
enforced as if it did not contain such provision. The Parties shall
negotiate in good faith to modify and, or replace such provision with
one that is valid and legally enforceable.
12.9 SEVERABILITY
If any aspect of this Agreement is found to be invalid, illegal or
unenforceable this shall not affect the validity of any part of this
Agreement. In such case this Agreement shall be construed and
enforced as if it did not contain such provision. The Parties shall
negotiate in good faith to modify and, or replace such provision with
one that is valid and legally enforceable. If the Parties cannot
reach agreement on a new provision which places the Parties in a
position similar to the commercial position which would have
prevailed prior to
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
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the modification or replacement being required, either Party may, in
its sole discretion, withdraw from the Agreement.
12.10 GOVERNING LAW
This Agreement is governed by English law and each party submits to
the non-exclusive jurisdiction of the English Courts.
IN WITNESS WHEREOF the duly authorised representatives of each party have
executed this Agreement as of the day and year first written above.
BRITISH TELECOMMUNICATIONS plc COMMERCE ONE, INC.
By: By:
Name: Name:
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
MITTED PORTIONS.
