ALLIANCE AGREEMENT
This Alliance Agreement (the "Agreement") is entered into as of January 28,
2000 (the "Effective Date"), by and between Microsoft Corporation, a Washington
corporation, located at Xxx Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx 00000
("Microsoft"), divine interVentures, Inc., a Delaware corporation, with a
business address at 0000 Xxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx 00000 ("divine
interVentures"), and Host Divine, Inc., a Delaware corporation, with a business
address at 0000 Xxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx 00000 ("Host Divine"). divine
interVentures and Host Divine are collectively referred to herein as "Divine."
Microsoft and Divine are sometimes referred to individually as a "Party", and
collectively as the "Parties".
Recitals
Divine desires to establish a relationship with Microsoft pursuant to which
Divine will develop and incorporate Microsoft products into Divine's hosting,
messaging and collaboration services, and to develop its hosting competency on
the Microsoft platform into a scaleable business model. Divine and its partner
companies wish to differentiate themselves from their competition through, among
other things, recognition as preferred providers of outsourced Microsoft
software solutions.
Microsoft desires to establish a relationship with Divine pursuant to which
the Microsoft platform will become the preferred platform for Divine and its
affiliated companies, including a commitment by Divine to encourage its
affiliated companies to use the Microsoft platform and technologies for online
products and services, wherever commercially practicable. In addition, Microsoft
wishes to become the preferred platform upon which Divine will develop and
market a broad array of hosting, messaging and collaboration services.
The parties wish to enhance communications between their respective
organizations regarding the marketplace, application hosting services, Microsoft
software, new product development, customer satisfaction and other issues of
mutual interest through the creation of a Digital Feedback Loop as set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises as stated herein
and for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows.
Agreement
1. Definitions
-----------
1.1 "Digital Feedback Loop" is defined as the process pursuant to which
the Parties will exchange information as detailed in Section 2.1.
1.2 "Divine Affiliates" is defined as that set of third party partner
companies in whom Divine has invested and owns more than a two percent (2%)
equity share, as identified at
xxx.xxxxxxxxxxxxxxxxxxx.xxx/xxxxxxx.xxx?Xxxxxxxxxx and as shall be
identified by Divine at each quarterly meeting of the Joint Board.
1.3 "Incubator Habitat" is defined as an office facility that is leased or
developed by Divine for Internet start-up companies, and where services
such as facilities management, technology infrastructure, and 24x7
operations are provided by Divine for such companies.
Microsoft Confidential Page 1
1.4 "Joint Board" is defined as the group of designated Divine
representatives and Microsoft representatives responsible for the strategic
direction of the Relationship as set out in Section 2.2, facilitating the
Digital Feedback Loop, escalation of issues and opportunities, and other
mutually identified tasks.
1.5 "Microsoft platform" is defined is defined as Microsoft Windows
NT/2000 Server, Exchange Server, SQL Server, SMS Server and Internet
Information Server (as separate products and collectively as Microsoft
BackOffice); complementary BackOffice products: Microsoft SNA Server and
Microsoft Proxy Server; Microsoft Site Server, Microsoft Windows Media
Technologies; 32-bit Windows and Microsoft Office; Windows CE; Internet
Explorer; Microsoft Transaction Server; Microsoft Message Queue Server;
Microsoft clustering technology; Microsoft's visual development tools:
Visual Basic, Visual C++, Visual J++ and Visual Interdev (as separate
products and collectively as Microsoft Visual Studio); BizTalk; Windows
Distributed interNet Applications (DNA) and Component Object Model (COM,
DCOM and COM+) architectures; and, as mutually agreed, successor products
and technology.
1.6 "Relationship" means the combination of the various components
contemplated by this Agreement.
1.7 "Term" is defined as the four year period of time commencing on the
Effective Date and ending on the fourth anniversary of the Effective Date,
unless terminated earlier in accordance with Section 10.
2. Joint Obligations
-----------------
2.1 Digital Feedback Loop. Divine and Microsoft will cooperate to create a
Digital Feedback Loop between the companies to create joint intelligence
about the marketplace, Microsoft software, new product development, and
customer satisfaction. To facilitate feedback regarding product marketing,
sales and customer satisfaction, Divine and Microsoft will, subject to
applicable confidentiality restrictions, share metrics and qualitative
information about Microsoft-related customer wins and leads. Divine will
provide reports, as such are mutually agreed between the Parties, regarding
new sales data for the Microsoft platform for the purpose of helping
Microsoft improve its products, marketing, sales and support as they relate
to the hosted application environment. The Parties will meet quarterly,
through the Joint Board, to review the Digital Feedback Loop process and
suggest improvements or changes that may increase the effectiveness and
efficiency of the information exchange.
2.2 Joint Board. The Joint Board will be composed of an individual
representing each of the following roles and/or positions, as such may be
updated by the Parties from time to time: (a) from Microsoft: the Divine
account executive, the Divine managing consultant, the Divine NSG
representative; and (b) from Divine: the President of its host operation,
the business development manager, the President of its web development
group, and a public relations/marketing representative. The Joint Board
shall meet at least quarterly during the Term to evaluate the Parties'
progress against the obligations of this Agreement, and discuss appropriate
methods to increase the overall value and performance of the Relationship,
including cooperating in areas in addition to those identified in this
Agreement, as well as other mutually agreed upon topics.
3. Microsoft Obligations
---------------------
3.1 Divine Training Roadmap. Within 60 days of the Effective Date,
Microsoft will provide Divine with a training roadmap to assist Divine with
service readiness for upcoming Microsoft product releases and solutions,
including Windows 2000 and future versions of Microsoft BackOffice, as
appropriate at the time. The roadmap shall contain information on the
categories of Divine personnel that shall receive training on the Microsoft
platform, including the number of personnel in each category; the
curriculum targeted for each such category, during each of the respective 6
month periods to be identified therein. The roadmap will be reviewed every
6
Microsoft Confidential Page 2
months by the Parties to ensure proper focus and to update it according to
latest product release schedules.
4. Divine Obligations
------------------
4.1 Product Development. Divine will engage in new and existing product
development efforts for web and application hosting products based on the
Microsoft platform, wherever practicable. The Microsoft platform will be
the preferred platform on which Divine will conduct such development
efforts. Microsoft recognizes that the adoption of Microsoft technology
need not be on an exclusive basis, and the Divine Affiliates will be free
to offer their products on other platforms.
4.2 Software for Customer-Oriented Activities. Divine agrees that it shall
develop and maintain its existing and future data center infrastructure
based on the Microsoft platform, wherever commercially reasonable.
4.3 Process to Review Potential Barriers: In the event Divine determines
that commercial or technical issues will prevent deployment of a product or
service on the Microsoft platform, prior to making a final decision, Divine
will provide Microsoft with an opportunity for consultation with Divine to
evaluate the potential barriers and how they may be resolved in a timely
and mutually satisfactory manner.
4.4 Internal Use. Divine agrees that it shall develop and maintain its
existing and future internal IT infrastructure based on the Microsoft
platform, wherever commercially reasonable. Divine will complete the
migration of its internal messaging service to Microsoft Exchange no later
than February 15, 2000, and will implement SAP's ERP system to operate on
the Microsoft Windows NT and SQL Server environment no later than March 31,
2000. Divine shall ensure that the Microsoft software it uses for its
internal IT infrastructure is never more than one version behind the then-
current version of each Microsoft software product, and that it shall
exercise commercially reasonable efforts to keep all computers (desktops,
servers, laptops, etc.) within its control in compliance with the foregoing
requirement. In addition, Divine will use commercially reasonable efforts
to encourage the Divine Affiliates to deploy the Microsoft platform in
their operations and as the technology platform on which their services
and/or products are based, and will encourage the Divine Affiliates to use
the most recent version of such Microsoft products. Divine agrees to
acquire at least $9,595,167 in desktop and server Microsoft software
products during the Term. Pursuant to and subject to compliance with the
terms of the applicable software license agreement, the Divine Affiliates
shall have the right to utilize such software products. In the event that
Divine fails, by the end of the Term, to acquire software valued at least
at $9,595,167, Divine agrees to pay to Microsoft, within 30 days of the end
of the Term, the difference between $9,595,167 and the amount of Microsoft
software products actually purchased by Divine during the Term.
4.5 Microsoft Consulting Services and Dedicated Technical Account Manager.
During the Term, Divine will purchase a minimum of $4,660,174 Microsoft
professional services in the form of Microsoft Consulting Services ("MCS")
resources and a minimum of $1,067,430 in Microsoft Product Support Services
in the form of a partial or Dedicated Technical Account Manager ("DTAM") to
support Divine's product development, testing, implementation, and client
support activities. The current breakdown of such amount is further
detailed in Exhibit A. Divine shall purchase such services pursuant to the
terms of the Microsoft Master Services Agreement with an effective date of
November 1, 1999, executed between the Parties (the "MSA"). Divine shall
execute a Microsoft Consulting Services Work Order, pursuant to which it
will purchase MCS services, and Premier Support Services Description
pursuant to which it will purchase support services. The initial MCS Work
Order and Premier Support Services Description that Divine will purchase
are attached hereto as Exhibit C and Exhibit D, respectively. Subsequent
Work Orders and Services Descriptions shall be executed between the Parties
to meet the purchase
Microsoft Confidential Page 3
commitments of Divine as set forth in this Section and the attached Exhibit
A. In the event that Divine fails, by the end of the Term, to purchase MCS
services and PSS services valued at least at $4,660,174 and $1,067,430,
respectively, Divine agrees to pay to Microsoft, within 30 days of the end
of the Term, the difference between $4,660,174 and $1,067,430, and the
amount of Microsoft MCS services or PSS services, as applicable, actually
purchased by Divine during the Term. Divine shall have the right, as set
forth in the MSA, to provide access to MCS and/or PSS Services to the
Divine Affiliates, subject to Divine's compliance with all obligations and
requirements of the MSA, including any applicable Work Order. In the event
that Divine wishes to acquire MCS and/or PSS services in addition to those
provided for herein, such purchases shall be according to the terms and
conditions of the MSA and Exhibit A, as applicable.
4.6 Training and Certification. No later than September 30, 2000, Divine
agrees to have a minimum of 4 professional staff certified as Microsoft
Certified Systems Engineers ("MCSEs"), and will increase such number by an
additional 2 MCSEs for each Divine Incubator Habitat implemented by Divine
during the Term. In addition, Divine agrees to have a minimum of 2
professional staff certified as Microsoft Certified Solution Developers
("MCSDs") no later than September 30, 2000.
4.7 Incubators. Divine shall exercise commercially reasonable efforts to
develop a Seattle-based Incubator Habitat within 15 months immediately
following the Effective Date, consistent with Divine's current business
model.
5. No Trademark License.
--------------------
Nothing in this Agreement or its performance shall grant either party any right,
title, interest, or license in or to the other's names, logos, logotypes, trade
dress, designs, or other trademarks. Divine shall only use the Microsoft xxxx
depicted on Exhibit B hereto during the Term of this Agreement according to the
specifications set forth in Exhibit B.
6. Ownership; Proprietary Rights.
-----------------------------
Each Party shall own all products and services developed by that Party and
nothing herein is intended to, nor shall it be construed as, transferring any
ownership rights or granting any licenses under the other Party's intellectual
property except as may be specifically set forth in writing in any separate
documentation accompanying such intellectual property. In the event that any
development work is provided to Divine by MCS in connection with the
Relationship, the ownership terms of any work performed by MCS shall be as set
forth in the Work Order pursuant to which the services are procured.
7. Non-Disclosure Agreement.
------------------------
7.1 The Parties acknowledge and agree that the terms and conditions of the
Microsoft Corporation Reciprocal Non-Disclosure Agreement entered into by
and between the parties and dated November 3, 1999 (the "NDA"), attached
hereto as Exhibit E and incorporated into this Agreement. The terms of this
Agreement and all discussions and negotiations related thereto and all
information exchanged pursuant hereto are considered Confidential
Information as defined in the NDA.
7.2 The Parties acknowledge that this Agreement, or portions thereof, may
be required under applicable law to be disclosed, as part of or an exhibit
to a Party's required public disclosure documents. If any Party is advised
by its legal counsel that such disclosure is required, it will notify the
others in writing and the Parties will jointly seek confidential treatment
of this Agreement to the maximum extent reasonably possible, in documents
approved by all Parties and filed with the applicable governmental or
regulatory authorities.
8. Representations and Warranties.
------------------------------
Microsoft Confidential Page 4
8.1 By Divine
(a) Divine warrants and represents that it has full and exclusive
right and power to enter into and perform according to the terms of
this Agreement.
(b) Divine warrants and represents that its performance of activities
pursuant to this Agreement will not violate any agreement or
obligation between it and a third party.
(c) Divine warrants and represents that it shall comply with all
applicable local, state and federal laws, statutes and regulations,
including specifically all laws prohibiting harassment of any kind in
the workplace and shall comply with Microsoft's rules for its own
employees while on Microsoft's premises. Divine assumes all
responsibility for providing to its employees and subcontractors any
training that may be required to ensure compliance with such laws and
rules.
(d) Divine shall have no right to make any other warranties or
promises with respect to any products or property owned or provided to
it by Microsoft pursuant to this Agreement which are not contained in
written statements or documents accompanying that item, or the written
warranty document accompanying the Microsoft products.
8.2 By Microsoft
(a) Microsoft warrants and represents that it has full and exclusive
right and power to enter into and perform according to the terms of
this Agreement.
(b) Microsoft warrants and represents that its performance of
activities pursuant to this Agreement will not violate any agreement
or obligation between it and a third party.
(c) Microsoft warrants and represents that it shall comply with all
applicable local, state and federal laws, statutes and regulations,
including specifically all laws prohibiting harassment of any kind in
the workplace and shall comply with Divine's rules for its own
employees while on Divine's premises. Microsoft assumes all
responsibility for providing to its employees and subcontractors any
training that may be required to ensure compliance with such laws and
rules.
8.3 Disclaimer of Warranty. The warranties set forth in this Section 8 are
the only warranties made by the Parties and are in lieu of all other
warranties, express, implied or statutory, including but not limited to
implied warranties of merchantability and/or fitness for a particular
purpose. There is no warranty of title or non-infringement with respect to
any Microsoft products.
9. Limitations of Liability.
------------------------
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL
NOT APPLY TO EITHER PARTY'S (A) ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE
RELIEF, AND/OR (B) CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7.
Microsoft Confidential Page 5
10. Term and Termination.
--------------------
10.1 The Term of this Agreement shall begin on the Effective Date and
shall continue in full force and effect until January 27, 2004, unless
earlier terminated pursuant to Sections 10.2 or 10.3.
10.2 Either Party may terminate this Agreement immediately for cause upon
30 days' prior written notice in the event the other party is in material
breach of this Agreement and fails to cure the default within the 30 day
period following written notice except that no "cure" period shall apply to
breaches of the NDA or Section 7 of this Agreement. In the event of a
breach of Section 7 or the NDA, the non-breaching party shall have the
right to terminate this Agreement immediately upon notice to the other
Party.
10.3 This Agreement may be terminated immediately upon written notice by
either Party in the event the other Party becomes insolvent or admits in
writing its inability to pay its debts as they become due or makes an
assignment for the benefit of creditors or if a petition under any
bankruptcy act, receivership statute or the like, as they now exist or as
they may be amended, is filed by the other Party or by any third party or
an application for a receiver is made by anyone and such application is not
resolved favorably to the other Party within ninety (90) days.
10.4 Sections 4.4, 4.5, 6, 7, 8, 9, 10.4 and 11 shall survive termination
or expiration of this Agreement for any reason.
11. General
-------
11.1 Notices. All notices, authorizations, and requests required or
desired to be given or made in connection with this Agreement will be in
writing, given by certified or registered mail (return receipt requested),
express air courier (charges prepaid) or facsimile, and addressed as
follows (or to such other address as the party to receive the notice or
request so designates by notice to the other):
To Divine: To Microsoft:
divine interVentures, Inc. Microsoft Corporation
0000 Xxxxxxxxxx Xxxx Xxx Xxxxxxxxx Xxx
Xxxxx #000
Xxxxx, XX 00000 Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxx Attn: Xxxxxx Xxxx
Title: Vice President Title: Vice President, NSG
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Copy to: Xxxxx Xxxxxxxx, General Counsel Copy to: Law & Corporate Affairs
Fax: (000) 000-0000 Fax: (000) 000-0000
If a notice is given by either party by certified or registered mail, it
will be deemed received by the other party on the third business day
following the date on which it is deposited for mailing. If a notice is
given by either party by air express courier, it will be deemed received by
the other party on the next business day following the date on which it is
provided to the air express courier. If a notice is given by facsimile, it
will be deemed received by the other party upon confirmation of receipt.
11.2 Relationship of Parties. Nothing in this Agreement shall be construed
as creating an employer-employee relationship, a partnership, agency,
franchise or a joint venture between Microsoft and Divine and neither Party
shall have the right, power or authority to obligate or bind the other in
any manner whatsoever without its prior written consent. The non-employing
Party will not be responsible for any of the below-referenced payments,
obligations, taxes or benefits.
Microsoft Confidential Page 6
Each Party shall be responsible with respect to its own employees and/or
subcontractors, including, without limitation, for (a) withholding and
payment of FICA, FUTA and all other payroll and employment related taxes
and amounts relating to services performed by staff under this Agreement;
(b) providing all insurance or other employment related benefits to staff;
(c) proper payment of wages to staff, including overtime when due, in
accordance with the Fair Labor Standards Act, the Contract Work Hours and
Safety Standards Act, where applicable, and corresponding state law and
regulations; (d) providing any accommodation required under the Americans
with Disabilities Act or corresponding state law and regulations; (e)
verifying that all staff possess valid work authorization in accordance
with the Immigration Reform and Control Act.
11.3 Governing Law; Attorneys' Fees. This Agreement shall be governed by
the laws of the State of Washington as though entered into between
Washington residents and to be performed entirely within the State of
Washington. Divine further consents to jurisdiction by the state and
federal courts sitting in the State of Washington. Process may be served on
either party by regular mail, postage prepaid, certified or registered,
return receipt requested. In any action or suit to enforce any right or
remedy under this Agreement or to interpret any provision of this
Agreement, the prevailing Party shall be entitled to recover its costs,
including reasonable attorneys' fees.
11.4 Assignment. This Agreement shall be binding upon and inure to the
benefit of each Party's respective successors and lawful permitted assigns.
Notwithstanding the foregoing, Divine may not assign this Agreement, or any
rights or obligations hereunder, whether by contract or by operation of
law, except with the express written consent of Microsoft, which consent
shall be granted or withheld in Microsoft's sole discretion. Any attempted
assignment in violation of this Section shall be void. For purposes of this
Agreement, an "assignment" under this Section shall be deemed to include,
without limitation, the following: (a) a merger of Divine where Divine is
not the surviving entity; (b) any transaction or series of transactions
whereby a third party acquires the power to control the management and
material policies of Divine, whether through the acquisition of voting
securities, by contract, or otherwise; or (c) the sale of more than 50% of
Divine's assets (whether in a single transaction or series of related
transactions). In the event of such assignment or attempted assignment,
Microsoft shall have the right to immediately terminate this Agreement upon
written notice.
11.5 Construction. In the event that any provision of this Agreement
conflicts with governing law or if any provision is held to be null, void
or otherwise ineffective or invalid by a court of competent jurisdiction,
(i) such provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
Failure by either Party to enforce any provision of this Agreement will not
be deemed a waiver of future enforcement of that or any other provision.
This Agreement has been negotiated by the Parties and their respective
counsel and will be interpreted fairly in accordance with its terms and
without any strict construction in favor of or against either Party. The
section headings used in this Agreement are intended for convenience only
and shall not be deemed to affect in any manner the meaning or intent of
this Agreement or any provision hereof.
11.6 Conflict. In the event of any conflict between the terms of this
Agreement and the Reciprocal Non-Disclosure Agreement, the Microsoft Master
Services Agreement, and the software license agreement, the terms of the
agreement in question shall govern, but only with respect to the services,
rights, and obligations set forth therein.
11.7 Entire Agreement. This Agreement does not constitute an offer by
either Party and it shall not be effective until signed by both Parties.
This Agreement and the attached Exhibits A - E constitute the entire
agreement between the Parties with respect to the subject matter hereof and
merges all prior and contemporaneous oral and written communications. It
shall not be modified except by a written agreement dated subsequent to the
date of this Agreement and signed on behalf of Microsoft and Divine by
their respective duly authorized representatives. Except as otherwise
Microsoft Confidential Page 7
provided herein, the Reciprocal Non-Disclosure Agreement, the Microsoft
Master Services Agreement and the software license agreement are governed
by their own terms.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the
Effective Date written above.
MICROSOFT CORPORATION DIVINE INTERVENTURES, INC.
By (sign): /s/ Xxxxxx Xxxx By (sign): /s/ Xxxx X. Xxxxxx
---------------------------------- -------------------------------
Name (print) Xxxxxx Xxxx Name (print) Xxxx X. Xxxxxx
-------------------------------- -----------------------------
Title Vice President Network Solutions Group Title E.V.P. & CIO
--------------------------------------- ----------------------------
Date January 28, 2000 Date January 28, 2000
---------------------------------------- -----------------------------
HOST DIVINE, INC.
By (sign): /s/ Xxxx X. Xxxxxx
--------------------------
Name (print) Xxxx X. Xxxxxx
------------------------
Title President
-------------------------------
Date January 28, 2000
--------------------------------
Microsoft Confidential Page 8
EXHIBIT A
SERVICES PURCHASE REQUIREMENTS
Divine will purchase a minimum of $4,660,174 of consulting services over the
term of the agreement. The current minimum usage of those services is shown in
the following table:
Consulting
2000 2001 2002 2003 Total
$826,201 $1,158,300 $1,274,130 $1,401,543 $4,660,174
A rate of $225 per hour will be used for all consulting services provided by MCS
in the first year of the Term. This rate will increase by 10% in each of the
subsequent three years of the Term (to $247.50 in 2001, $272.25 in 2002, and
$299.48 in 2003). To recognize our long-term Relationship, MCS will provide a
10% discount off of these rates.
Divine must engage at least two full-time MCS resources at any given time
throughout the Term.
Divine shall purchase a minimum of $1,067,430 of PSS services during the term of
the agreement, and a minimum of $80,000 of services during the first year of
such term.
Microsoft Confidential Page 9
EXHIBIT B
The Xxxx:
[Microsoft/R/ LOGO]
Specifications:
1. Divine may only use the Xxxx in connection with services when promoting,
distributing, or selling Microsoft products. Divine may use the Xxxx solely
in white papers, advertising, collateral, and other marketing materials for
the Relationship, and may not use the Xxxx on any of Divine's products or
other services.
2. Divine's company name or logo must appear on any materials where the Xxxx
is used and must be at least as prominent as the Xxxx.
3. Divine may use the Xxxx only as provided by Microsoft electronically and in
hard copy form. Divine may not alter the Xxxx in any manner.
4. The Xxxx xxx not be used in any manner that expresses or might imply
Microsoft's affiliation, sponsorship, endorsement, certification, or
approval, other than as contemplated by the Agreement.
5. Divine may not combine the Xxxx with any other object, including, but not
limited to, other logos, words, graphics, photos, slogans, numbers, design
features, or symbols. The Xxxx must appear by itself, with a minimum
spacing (the height of the Xxxx) between each side of the Xxxx and other
graphic or textual elements.
6. Minimum size for the Xxxx is 3/4" or 2 cm in width.
7. Divine may not use the Xxxx, in whole or in part, as part of its company
name, domain name, product or service name, logo, trade dress, design,
slogan, or other trademarks.
8. The Xxxx xxx not be used as a design feature on any materials.
9. The Xxxx xxx not be imitated in any manner in any materials.
10. The Xxxx shall include the appropriate (R) symbol as shown in this Exhibit.
11. The Xxxx shall be attributed to Microsoft Corporation in all materials
where it is used, with the attribution clause: "Microsoft is a registered
trademark of Microsoft Corporation in the United States and other countries
and is used by Divine under license."
Microsoft Confidential Page 10
EXHIBIT C
MCS WORK ORDERS
Microsoft Confidential Page 11
MICROSOFT CONSULTING SERVICES
MASTER SERVICE AGREEMENT
WORK ORDER NO. 020- MCS Midwest
This Work Order is made pursuant to the Microsoft Master Consulting Services
Agreement (the "Agreement") effective on 01 NOVEMBER, 1999, by and between
divine interVentures ("Customer") and Microsoft Corporation ("Microsoft") and
is incorporated therein by reference. Capitalized terms not otherwise defined
have the meanings provided in the Agreement.
1. Services. MCS shall perform the services identified below for Customer.
Dates provided herein are estimates only.
MCS will provide consulting services to divine interVentures' IT staff
related to designing and implementing divine interVentures' network and
messaging infrastructure.
2. Rates. The hourly rates shown below shall be applicable to this Work Order.
Any total fee stated herein is an estimate only.
An MCS Associate Consultant at $202.50 per hour for an estimated 1,040
hours.
An MCS Senior Consultant at $202.50 per hour for an estimated 520 hours.
An MCS Senior Consultant at $202.50 per hour for an estimated 520 hours.
Total Estimated Fee: $421,200.00
Local travel will be waived for this work order.
Microsoft shall invoice Customer monthly for services performed and
expenses incurred during the previous period. Microsoft invoices for
payment should be directed to Customer's representative for payment at
the address shown below (Customer to provide).
Contact: Mailstop (if any):
Address: Telephone:
City: Fax:
State: Zip: Email:
Purchase Order No. (if any):
3. Commencement Date. Services under this Work Order will begin on November
01, 1999. The Expiration Date of this Work Order is June 30, 2000, or such
later date as the Work contemplated by this Work Order has been completed.
4. Ownership and License.
a. Any commercial off-the-shelf product of Microsoft or a third party
("Commercial Product") which is provided pursuant to this Work Order
shall be licensed to Customer according to the terms of the end user
license agreement packaged with such product.
b. All rights in any computer code or materials developed by or for
Microsoft or Customer independently of this Agreement that are
provided pursuant to this Work Order ("Pre-Existing Work") shall
remain the sole property of the party providing the Pre-Existing Work.
Microsoft hereby grants Customer a non exclusive, perpetual, fully
paid-up license to use, reproduce and modify the source code version
of the Microsoft Pre-Existing Work, and to distribute the Pre-Existing
Work, and derivatives thereof, to end
users. Such distribution shall be pursuant to a license agreement that
shall include (i) a license grant with a statement of ownership
consistent with the terms of this Work Order; (ii) a prohibition
against reverse engineering, decompiling and disassembly of code;
(iii) a disclaimer of warranties and consequential damages on behalf
of Customer suppliers; and (iv) the U.S. Government restricted rights
clause as provided in Section 6 below. Customer hereby grants
Microsoft a non-exclusive license to use, reproduce and modify any
Pre-Existing Work of Customer for the sole purpose of rendering
services under this Work Order.
c. All rights in any computer code or materials (other than a Commercial
Product or Pre-Existing Work) developed by MCS and provided to
Customer in the course of performance of this Work Order
("Developments") shall be jointly owned by Customer and Microsoft.
Each party shall be free to use, reproduce, modify and distribute
pursuant to a license the Developments, without any obligation of
accounting or payment of royalties. In addition, Customer may extend
joint ownership of the Developments to its customer(s) on terms
equivalent to this Work Order. Each party shall be the sole owner of
any modifications that it makes based upon Developments.
d. Any contract or other agreement between Customer and its customer(s)
or distributee(s) regarding the Pre-Existing Work and the Developments
shall allocate ownership thereof in accordance with the terms and
conditions of this Section 4.
e. Customer may sublicense the rights granted hereunder to its
Affiliates. All rights not expressly granted are reserved.
5. Indemnification.
----------------
a. Microsoft agrees to defend Customer against, and pay the amount of any
adverse final judgment (or settlement to which Microsoft consents)
resulting from third party claim(s) that the Developments as provided
by Microsoft infringe any United States copyright; provided that
Microsoft is notified promptly in writing of the claim has the
opportunity to assume sole control over its defense or settlement, and
Customer provides reasonable assistance in the defense of the same.
b. In the event Microsoft or Customer receives information concerning a
copyright infringement claim related to the Developments, Microsoft
may at its expense, either (i) procure for Customer the right to
continue to distribute the alleged infringing Developments, or (ii)
replace or modify the Developments to make them non-infringing, in
which case, Customer shall thereupon cease distribution of the alleged
infringing Developments.
c. Microsoft shall have no liability for any infringement claim based on
Customer's (i) specifications provided to Microsoft for such
Developments; (ii) manufacture, marketing, distribution, or use of any
Developments after written notice that Customer should cease such
activity due to such a claim; (iii) combination of any Developments
with a software or hardware product, program or data not supplied by
Microsoft; or (iv) adaptation or modification of any Developments not
performed by Microsoft.
d. Customer agrees to defend Microsoft against, and pay the amount of any
adverse final judgment (or settlement to which Customer consents) in
connection with any claims arising under Section 5(c) above, or claims
arising out of the distribution, marketing or use of the Developments;
provided that Customer is notified promptly in writing of any such
claim, and has the opportunity to assume sole control over its defense
or settlement, and Microsoft provides reasonable assistance in the
defense of the same.
e. This Section 5 shall survive any termination of this Work Order or the
Agreement.
6. U.S. Government Restricted Rights. Any Developments which Customer
licenses or acquires under this Work Order provided to the U.S. Government
pursuant to solicitations issued on or after December 1, 1995 are provided
with the commercial license rights and restrictions described elsewhere
herein. All Developments that may be provided to the U.S. Government
pursuant to solicitations issued prior to December 1, 1995 are
provided with "Restricted Rights" as provided for in FAR, 48 CFR 52.227-14
(JUNE 1987) or XXXX, 00 XXX 252.227-7013 (OCT 1988), as applicable.
Customer is responsible for ensuring that the Developments are marked with
the "Restricted Rights Notice" or "Restricted Rights Legend," as required.
THEREFORE, the parties have executed this Work Order in duplicate originals.
MICROSOFT CORPORATION divine interVentures
One Microsoft Way 0000 Xxxxxxxxxx Xx., Xxxxx 000
Xxxxxxx, XX 00000-0000 Xxxxx, XX 00000
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------
Signature Signature
Xxxxxxx Xxxx Xxxx Xxxxxx
---------------------------------- -------------------------------------
Name (Print) Name (Print)
Practice Manager - MCS Executive Vice President & CIO
---------------------------------- -------------------------------------
Title Title
01 NOVEMBER 1999 01 NOVEMBER 1999
---------------------------------- -------------------------------------
Effective Date Date
EXHIBIT D
SERVICES DESCRIPTION
Microsoft Confidential Page 12
Premier Support Contract Number: ________
MICROSOFT PREMIER SUPPORT SERVICES DESCRIPTION
This Premier Support Services Description ("Services Description") is entered
into as of 28 January 2000 ("Effective Date") between Microsoft Corporation
("Microsoft") and Divine Interventures ("Customer"). This Services Description
is an attachment to the Microsoft Master Services Agreement (Agreement),
number_____, and is subject to all of the terms and conditions of that
Agreement. The term of this Services Description is 12 months from the Effective
Date.
1. OVERVIEW. This Services Description describes the specific areas of
service, responsibilities, fees, and terms associated with Premier Support.
Prerequisites and assumptions associated with providing these services are also
included. Premier Support focuses on the following key areas of service:
. Account Management from an assigned Technical Account Manager ("TAM") to
build and maintain technical relationships with Customer's key management
and support staff and ensure each element of Premier Support meets
Customer's business requirements.
. Proactive Services to help prevent problems and increase system
availability.
. Information Services to equip Customer's staff with the
latest knowledge on Microsoft products to enhance Customer's in-house
support capabilities.
. Technical Support providing Customer staff round-the-clock access to
Microsoft support professionals for rapid resolution of complex problems.
2. PREREQUISITES AND ASSUMPTIONS. This Services Description is based upon the
following Prerequisites and Assumptions:
. Except where specifically noted, all services will be provided remotely
from Microsoft to customer locations in the United States and Canada. Where
onsite visits are mutually agreed, Customer will be billed for reasonable
travel and living expenses. In addition, all services will be provided in
the English language unless otherwise agreed to by Customer and Microsoft
in writing.
. The Supported Products under this Services Description encompass United
States and French Canadian versions of released Microsoft products except
those listed at xxxx://xxxxxxx.xxxxxxxxx.xxx/xxxxxxx/xxxxxxxxxx/
suppobsolescence.asp in the Discontinued Products List. Overall incident
resolution time for non-United States products may be longer to enable
escalation to Microsoft subsidiaries outside of North America.
. A list of specific products eligible for pre-release support will be posted
on the Premier Online Support website. The availability of support services
for those pre-release products may vary, including limits on the hours or
days of the week during which support is available.
. All services, including any additional services purchased shall be
forfeited if not utilized during the term of this Services Description.
3. MICROSOFT RESPONSIBILITIES. Microsoft will provide the following Premier
Support services:
3.1 Account Management. Account Management services are delivered by the TAM
and are intended to help coordinate and streamline the support relationship. The
TAM is Customer's advocate within Microsoft and facilitates a team that provides
proactive services, technical support, and information services. The TAM also
serves as the point of information delivery and customer feedback to the product
groups, quality and testing labs, research and development, and other Microsoft
groups. Customer should plan for the utilization of Account Management time to
ensure sufficient TAM availability for Proactive Services.
a. Orientation and Planning Session. At the commencement of this Services
Description, an Orientation and Planning session will be conducted with
Customer management and staff to discuss the services available, gather
input, and jointly develop a Service Delivery Plan. This meeting will be
held via teleconference unless an onsite visit has been purchased.
b. Escalation Management. Incidents that require escalation to Microsoft
technical and management resources will be closely managed to expedite
resolution. It is important that Customer also provide an internal
escalation process to facilitate communication between management levels in
Microsoft and Customer as appropriate.
c. Service Delivery Plan. The Service Delivery Plan will represent a road map
for using Premier Support services during the year. Components of the plan
may include high-level objectives, overview of major projects, key
satisfaction drivers, resource requirements, and a schedule of planned
activities.
d. Status Meetings and Reporting. On a regular basis, a status report will be
prepared which will summarize services delivered during the previous period
and assess progress against the Service Delivery Plan. Status meetings will
be conducted to discuss service activities, review and/or modify the
service delivery plan, monitor Customer satisfaction levels, and discuss
actions required. These meetings will be held via teleconference unless
otherwise agreed.
3.2 Proactive Services. Proactive Services help Customer in planning and
preparing for effective systems management and operations. Customer should plan
for the utilization of Proactive Services to ensure sufficient TAM availability
for Account Management activities. Proactive Services can include the following:
a. Support Consulting. Microsoft can provide support consulting to identify
and help prevent common support issues to decrease the likelihood of
system outages and reduce total costs.
b. Supportability Reviews. Microsoft can conduct supportability reviews
to provide a systems assurance review of a plan for a specific system
implementation, migration, or upgrade and may provide recommendations
for a more stable and supportable environment. Each review is
individually scoped and estimated prior to scheduling resources, and a
written report is produced to document the review results. In order
for Microsoft to complete a review during the term of this Services
Description, applicable data must be submitted to Microsoft no later
than 60 days prior to expiration.
3.3 Information Services. Information Services provide technical information
about Microsoft products and support tools that enable Customer to implement and
operate Microsoft products in an efficient and effective manner.
a. Premier Online Support website./1/ The Premier Online Support website
provides secured access to the following information resources:
. Regularly updated Product Newsflashes documenting the key support and
operational information about Microsoft products.
. Critical Problem Alerts notifying Customer in advance of potentially
high-impact problems.
. Web Response tool for submitting and checking status on support incidents.
. Microsoft KnowledgeBase of technical articles and troubleshooting tools and
guides used by Microsoft support professionals.
b. Participation in Expert Roundtables. Expert Roundtables are regularly
scheduled teleconference discussions led by Microsoft program managers,
developers and support professionals covering key areas of Microsoft
technology.
c. Microsoft TechNet Plus Subscription. A single server license of TechNet
Plus provides a comprehensive information resource distributed on CD-ROM
that includes 300,000 pages of technical documentation, Resource Kits, and
Service Packs.
d. Microsoft Developer Network Subscription. A Universal Edition - single user
license of the Microsoft Developer Network provides an extensive collection
of programming information, development toolkits, and sample code library
delivered on CDROM.
3.4 Technical Support. Premier Support includes problem resolution services for
technical issues involving Microsoft products.
a. Incident Submission and Resolution. An "incident" is defined as a
single support issue and the reasonable effort(s) needed to resolve
it. A single support issue is a problem that cannot be broken down
into subordinate problems. If a problem consists of subordinate
problems, each subordinate problem shall be considered a separate
incident. Before Microsoft provides support for an incident, Customer
and Microsoft's support professional(s) must agree on what the problem
is and the parameters for an acceptable solution. An incident may
require multiple telephone calls and off-line research to achieve
final resolution.
Customer will have preferred access to Microsoft support professionals
24 hours a day, 7 days a week. Incidents my be submitted via
telephone or electronically through the Premier Online Support website
by the Customer Support Manager ("CSM") and designated Customer
Contacts. The incident severity will determine the response levels
within Microsoft and the estimated response times are defined in the
following table:
-----------------------------------------------------------------------------------------------------------------------------
Severity Definition Estimated Initial
Response Time
-----------------------------------------------------------------------------------------------------------------------------
A . System, Network, Server, or Critical Application down situation Immediate
severely impacting customer production and/or profitability
. High-impact problem in which production, operations, or development are
proceeding but impacted to the extent that production and/or profitability will be
severely impacted within several days
-----------------------------------------------------------------------------------------------------------------------------
B . High-impact problem where production is proceeding, but in a significantly Immediate - 2 hours
impaired fashion
. Time sensitive issue important to long-term productivity that is not
causing an immediate work stoppage
-----------------------------------------------------------------------------------------------------------------------------
C . Important issue which does not have significant current productivity Immediate - 4 hours
impact for the customer
-----------------------------------------------------------------------------------------------------------------------------
D . Issue requires no further action beyond monitoring for follow-up if needed N/A
-----------------------------------------------------------------------------------------------------------------------------
/1/ The current minimum requirements for accessing the Premier Online Support
website include Internet Explorer 3.x or later (or Netscape Communicator
3.x or later), enabling the SSL port (443) if connecting from behind a
firewall, SSL2.0 or 3.0, and enabling cookies. These requirements are
subject to change at any time.
b. Hotfix Support. In situations where Microsoft cannot provide a satisfactory
resolution to Customer's critical problem through normal support methods,
Microsoft may engage its product development team to create a hotfix to the
Microsoft product. Hotfixes are designed to address a specific Customer
situation and may not be distributed outside the Customer organization
without written consent from Microsoft. Hotfixes are not regression tested,
although collections of hotfixes are periodically made available through
rigorously tested Service Packs.
c. Remote Dial-In. At Customer's request, Microsoft will access Customer's
system via remote dial-in to analyze problems. This is done with Customer's
permission only, and Microsoft personnel will access only those systems
authorized by Customer. Microsoft may provide Customer with software to
assist with problem diagnosis and/or resolution. Such software is the
property of Microsoft and will be returned to Microsoft promptly upon
request.
d. Multivendor Coordination. Microsoft will work with your other key vendors
to resolve problems in a heterogeneous environment. When problems reported
on Microsoft products involve interactions with other vendors' products and
Customer has a support agreement with that vendor, Microsoft will share
diagnostic information and collaborate to provide a solution.
e. Onsite Emergency Support. In critical situations, Customer may request
onsite emergency support as a separate and distinct billable service.
Onsite emergency support is subject to Microsoft resource availability, and
the tasks performed will vary based on the situation, environment, and
business impact of the problem.
4. CUSTOMER RESPONSIBILITIES. This section describes the roles and
responsibilities required by Customer. Microsoft's performance is predicated
upon the following responsibilities being fulfilled by Customer in accordance
with this Services Description.
. Customer will designate a Customer Support Manager (based in the United
States or Canada) who will be responsible for leading the Customer team and
will manage all Customer activities, tasks, and responsibilities associated
with this Services Description.
. Customer will work with Microsoft to plan for the utilization of Account
Management and Proactive Services based upon the service level purchased
and will provide feedback to the TAM on a regular basis.
. Customer can designate four Named Contacts (including CSM) and each will be
supplied with an individual account number.
. Customer may identify two types of Group Contacts as follows:
. One type with shared account IDs that provide access to the Premier
Online Support website for information content and the ability to
submit incidents via web or telephone.
. One type with shared account IDs that provide access to the Premier
Online Support website for information content only.
. The CSM will manage Customer's process for submitting incidents to
Microsoft and is responsible for establishing a process within Customer's
organization for controlling the submission of incidents. Customer is
responsible for setting the initial severity (A through C for new issues)
and can request a change in severity at any time. The table below
identifies severities that may be assigned to an incident and Customer
responsibilities at each level:
--------------------------------------------------------------------------------
Severity Customer should be prepared to:
--------------------------------------------------------------------------------
Severity A . Commit appropriate resources to be available to provide
additional information within one day of Microsoft's request
. Make reasonable efforts to apply suggested solutions within a
half day of receipt
--------------------------------------------------------------------------------
Severity B . Begin the process required to provide additional information
to resolve the problem within one day of Microsoft's request
. Make reasonable efforts to apply the solution provided by
Microsoft within one day of receipt
--------------------------------------------------------------------------------
Severity C . Monitor and respond as necessary
--------------------------------------------------------------------------------
Severity D . Monitor as necessary
--------------------------------------------------------------------------------
. Customer may be asked to perform problem determination activities as
suggested by Microsoft. Problem determination activities may include
performing network traces, capturing error messages, and collecting
configuration information. Customer may also be requested to perform
problem resolution activities including changing product configurations,
installing new versions of software or new components, or modifying
processes.
. Customer is responsible for implementing procedures necessary to safeguard
the integrity and security of software and data from unauthorized access
and to reconstruct lost or altered files resulting from catastrophic
failures. Microsoft may be able to assist in reconstructing data files in
the absence of sound backup procedures, but results cannot be guaranteed
and these activities will be considered a separate and distinct billable
service.
5. PREMIER SUPPORT FEES. Premier Support is a prepaid service and all fees and
any applicable taxes are due upon acceptance of this Services Description and
payable within 30 days. Prior to initiating service, Microsoft must be in
receipt of a purchase order, check, or other acceptable form of payment.
-----------------------------------------------------------------------------------------------------------------------
Option Selected Description of Services Price (US$)
-----------------------------------------------------------------------------------------------------------------------
. Up to 25% of TAM for Account Management and Proactive Services
. 1 Microsoft TechNet Plus (single server) subscriptions
[X] Quarter - . 1 Microsoft Developer Network (Universal edition - single user) subscriptions
Dedicated TAM . Unlimited user access to the Premier Online Support website $80,000
. Up to 100 support incidents
. 1 onsite TAM visits (up to 4 days for the visit)
-----------------------------------------------------------------------------------------------------------------------
Customer may request changes or additions to this Services Description at any
time. Additional services will be invoiced at the prevailing price at the time
services are rendered or upon acceptance of an addendum to this Services
Description. The following additional Premier Support services are available:
. Incidents
. On-Site Visits (such as Orientation and Planning Session and status
meetings)
. Proactive Services
IN WITNESS WHEREOF, the parties have agreed to the terms and conditions of this
Services Description as indicated below.
----------------------------------------------------------------------------
MICROSOFT CORPORATION DIVINE INTERVENTURES
By: By: /s/ Xxxx Xxxxxx
--------------------------- ---------------------------
Signature Signature
Xxxx Xxxxxx
------------------------------ ------------------------------
Name (Print) Name (Print)
Executive Vice President & CIO
------------------------------ ------------------------------
Title Title
28 January 2000 28 January 2000
------------------------------ ------------------------------
Date Date
----------------------------------------------------------------------------
Microsoft and Customer Contacts:
------------------------------------------------------------------------------
Customer Name:
Divine Interventures
------------------------------------------------------------------------------
Contacts for questions and notices about this Service Description:
--------------------------------------------------------------------------------
Microsoft Customer
--------------------------------------------------------------------------------
Name: Xxxx Xxxx Name:
--------------------------------------------------------------------------------
Address: Address:
0000 Xxxxx Xxxxx Xxxxxxx 000
Xxxxxx, XX 00000 ---------------------------------------
---------------------------------------
---------------------------------------
--------------------------------------------------------------------------------
Phone: (000) 000-0000 Phone: ( )
--------------------------------------------------------------------------------
Email: xxxxxxxx@xxxxxxxxx.xxx Email:
--------------------------------------------------------------------------------
Facsimile: (000) 000-0000 Facsimile: ( )
--------------------------------------------------------------------------------
Customer Named Contacts:
Please provide full details for the CSM and each Named Contact. Any subsequent
changes to the Named Contacts should be submitted to the TAM by the CSM.
--------------------------------------------------------------------------------
CSM Name: Named Contact Name:
--------------------------------------------------------------------------------
Address: Address:
----------------------------- ------------------------------
----------------------------- ------------------------------
----------------------------- ------------------------------
--------------------------------------------------------------------------------
Phone:( ) Phone:( )
--------------------------------------------------------------------------------
Email: Email:
--------------------------------------------------------------------------------
Facsimile:( ) Facsimile:( )
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Named Contact Name: Named Contact Name:
--------------------------------------------------------------------------------
Address: Address:
----------------------------- ------------------------------
----------------------------- ------------------------------
----------------------------- ------------------------------
--------------------------------------------------------------------------------
Phone:( ) Phone:( )
--------------------------------------------------------------------------------
Email: Email:
--------------------------------------------------------------------------------
Facsimile:( ) Facsimile:( )
--------------------------------------------------------------------------------
EXHIBIT E
MICROSOFT RECIPROCAL NON-DISCLOSURE AGREEMENT
Microsoft Confidential Page 13
MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
(RECIPROCAL)
THIS AGREEMENT (the "Agreement") is made between MICROSOFT CORPORATION, a
Washington, U.S.A. corporation ("MS"), and divine interVentures, inc.
("COMPANY") and entered into to be effective as of the 3rd day of November,
1999.
In consideration of the mutual promises and covenants contained in this
Agreement, the mutual disclosure of confidential information and confidential
materials to each other, the parties hereto agree as follows:
1. Definitions
(a) "Discloser" shall mean the party to this Agreement as well as any
Subsidiaries or agents of such party who disclose information of a confidential
or proprietary nature to the other party to this Agreement or any of its
Subsidiaries, in accordance with the terms and conditions of this Agreement.
(b) "Recipient" shall mean the party to this Agreement as well as any
Subsidiaries of such party who receive information of a confidential or
proprietary nature from the other party to this Agreement and any of its
Subsidiaries, in accordance with the terms and conditions of this Agreement.
(c) "Confidential Information" means nonpublic information that Discloser
designates as being confidential or which, under the circumstances surrounding
disclosure ought to be treated as confidential. "Confidential Information"
includes, without limitation, any and all Discloser product pricing information,
the terms and conditions of any proposed (or actual) license agreement or other
agreement concerning Discloser products, license negotiations, as well as any
information or correspondence relating to released or unreleased Discloser
software or hardware products, the marketing or promotion of any Discloser
product, Discloser's business policies or practices, and information received
from others that Discloser is obligated to treat as confidential. Confidential
Information and/or Confidential Materials disclosed to Recipient by any
Discloser Subsidiary and/or agents is covered by this Agreement.
(d) Confidential Information shall not include any information that: (i) is
or subsequently becomes generally publicly available without Recipient's breach
of any obligation owed Discloser; (ii) became rightfully known to Recipient
prior to Discloser's disclosure of such information to Recipient; or (iii) is
independently developed by Recipient without use or access to the Confidential
Information or Confidential Materials of the Discloser.
(e) "Confidential Materials" shall mean any pre-release software and all
tangible materials containing Confidential Information, including without
limitation written or printed documents and computer disks or tapes, whether
machine or user readable.
(f) "Subsidiary" shall mean a company in which, on a class by class basis,
more than fifty percent (50%) of the stock entitled to vote for the election
of directors is owned or controlled by MS or COMPANY, as applicable, but only so
long as such ownership or control exists. The cessation of such ownership or
control shall not release Subsidiary of its obligation to comply with the terms
and conditions of this Agreement for the period of time stated herein.
2. Restrictions
(a) Recipient shall not disclose any Confidential Information or
Confidential Materials to third parties for five (5) years following the date of
its disclosure by Discloser to Recipient, except to Recipient's Subsidiaries or
consultants as provided below. However, Recipient may disclose Confidential
Information or Confidential Materials in accordance with judicial or other
governmental order, provided Recipient shall give Discloser reasonable notice
prior to such disclosure and an opportunity to contest such order, and
MS Contract Number: 507NSG-9336A
------------
Recipient shall comply with any applicable protective order or equivalent
imposed as a condition of such disclosure.
(b) Recipient shall take reasonable security precautions, at least as
great as the precautions it takes to protect its own confidential information
and confidential materials, to keep confidential the Confidential Information
and Confidential Materials. Recipient may disclose Confidential Information or
Confidential Materials only to Recipient's employees, Subsidiaries or
consultants on a need-to-know basis. Recipient will have executed or shall
execute appropriate written agreements with its employees, Subsidiaries and
consultants sufficient to enable it to comply with all the provisions of this
Agreement.
(c) Recipient agrees to use the Confidential Information and Confidential
Materials for the sole purpose of internal review in connection with
Recipient's business relationship with Discloser. Confidential Information and
Confidential Materials may not be otherwise used, disclosed, reproduced,
summarized or distributed. Recipient agrees to segregate all Confidential
Information and Confidential Materials from the confidential information and
materials of Recipient and others in order to prevent commingling.
(d) Recipient may not reverse engineer, decompile or disassemble any
software disclosed to Recipient.
3. Rights and Remedies
(a) Recipient shall notify Discloser immediately upon discovery of any
unauthorized use or disclosure of Confidential Information and/or Confidential
Materials, or any other breach of this Agreement by Recipient, and will
cooperate with Discloser in every reasonable way to help Discloser regain
possession of the Confidential Information and/or Confidential Materials and
prevent its further unauthorized use.
(b) Recipient shall return all originals, copies, reproductions and
summaries of Confidential Information or Confidential Materials at Discloser's
request, or at Discloser's option, certify destruction of the same.
(c) Recipient acknowledges that monetary damages may not be a sufficient
remedy for unauthorized disclosure of Confidential Information or Confidential
Materials and that Discloser shall be entitled, without waiving any other rights
or remedies, to such injunctive or equitable relief as may be deemed proper by a
court of competent jurisdiction.
(d) Discloser may visit Recipient's premises, with reasonable prior notice
and during normal business hours, to review Recipient's compliance with the
terms of this Agreement.
4. Miscellaneous
(a) All Confidential Information and Confidential Materials are and shall
remain the property of Discloser. By disclosing information to Recipient,
Discloser does not grant any express or implied right to Recipient to or under
Discloser's patents, copyrights, trademarks, trade secret information, or other
intellectual property.
(b) Any pre-release software provided by Discloser under this Agreement is
provided "as is" without warranty of any kind. Recipient agrees that neither
Discloser, its Subsidiaries nor its suppliers shall be liable for any damages
whatsoever relating to Recipient's use of such pre-release software.
(c) Any software and documentation provided under the Agreement is provided
with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is
subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c)(1) and (2) of the Commercial Computer Software--Restricted
Rights at 48 CFR 52.227-19, as applicable. For software and documentation
provided by Microsoft Corporation under this Agreement, the "manufacturer" for
purposes of these regulations is Microsoft Corporation/One Microsoft
Xxx/Xxxxxxx, XX 00000-0000.
Page 2
(d) Recipient agrees that it will not export or re-export (i) any
Confidential Information or Confidential Materials, or (ii) any product (or any
part thereof), process or service that is the direct product of the Confidential
Information or Materials to any country, person, entity or end user that is
subject to U.S. export restrictions. Recipient specifically agrees not to export
or re-export products to: (A) any country to which the U.S. has embargoed or
restricted the export of goods or services, which as of December 31, 1996
include, but are not necessarily limited to, Cuba, Iran, Iraq, Libya, North
Korea, Sudan, and Syria, or to any national of any such country who Recipient
knows intends to transmit or transport the products back to such country; (B)
any end-user who Recipient knows will utilize the products in the design,
development or production of nuclear, chemical or biological weapons; or (C) to
any end-user who has been prohibited from participating in U.S. export
transactions by any federal agency of the U.S. government.
(e) The terms of confidentiality under this Agreement shall not be
construed to limit either party's right to independently develop or acquire
products without use of the other party's Confidential Information. Further,
either party shall be free to use for any purpose the residuals resulting from
access to or work with such Confidential Information, provided that such party
shall maintain the confidentiality of the Confidential Information as provided
herein. The term "residuals" means information in nontangible form, which may be
retained by persons who have had access to the Confidential Information,
including ideas, concepts, know-how or techniques contained therein. Neither
party shall have any obligation to limit or restrict the assignment of such
persons or to pay royalties for any work resulting from the use of residuals.
However, the foregoing shall not be deemed to grant to either party a license
under the other party's copyrights or patents.
(f) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof. It shall not be modified except by a
written agreement dated subsequent to the date of this Agreement and signed by
both parties. None of the provisions of this Agreement shall be deemed to have
been waived by any act or acquiescence on the part of Discloser, its
Subsidiaries, agents, or employees, but only by an instrument in writing signed
by an authorized officer of Discloser. No waiver of any provision of this
Agreement shall constitute a waiver of any other provision(s) or of the same
provision on another occasion.
(g) If either party employs attorneys to enforce any rights arising out of
or relating to this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees. This Agreement shall be construed and controlled by
the laws of the State of Washington, U.S.A., and both parties further consent to
jurisdiction by the state and federal courts sitting in the State of Washington.
Process may be served on either party by U.S.A. Mail, postage prepaid, certified
or registered, return receipt requested, or by such other method as is
authorized by the laws of the State of Washington, U.S.A.
(h) Subject to the limitations set forth in this Agreement, this Agreement
will inure to the benefit of and be binding upon the parties, their successors
and assigns.
(i) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
(j) All obligations created by this Agreement shall survive change or
termination of the parties' business relationship.
Page 3
5. Suggestions and Feedback
Either party may from time to time provide suggestions, comments or other
feedback to the other party with respect to Confidential Information and
Confidential Materials provided originally by the other party pursuant to the
Digital Feedback Loop described in the November 22, 1999 Memorandum of
Understanding (hereinafter "Feedback"). Both parties agree that all Feedback is
and shall be entirely voluntary and shall not, absent separate agreement, create
any confidentiality obligation for the party receiving the Feedback. However,
the party receiving the Feedback shall not disclose the source of any feedback
without the providing party's consent. Feedback shall be clearly designated as
such and, except as otherwise provided herein, each party shall be free to
disclose and use such Feedback as it sees fit, entirely without obligation of
any kind to the other party. The foregoing shall not, however, affect either
party's obligations hereunder with respect to Confidential Information or
Confidential Materials of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
COMPANY: divine interVentures, inc. MICROSOFT CORPORATION
--------------------------
Address: 0000 XXXXXXXXXX XXXX Xxx Xxxxxxxxx Xxx
--------------------------
XXXXX 000 Xxxxxxx, XX 00000-0000 X.X.X.
-----------------------------------
XXXXX, XX 00000 By: /s/ Xxxxxx Xxxx
----------------------------------- ----------------------------
By: /s/ Xxxxxxxxx Xxxxxxx Name: XXXXXX XXXX
------------------------------- --------------------------
Name: XXXXXXXXX XXXXXXX Title: VICE PRESIDENT NETWORK
------------------------------ SOLUTIONS GROUP
-------------------------
Title: VP & DEPUTY GEN. COUNSEL
------------------------------ Date: 2 Dec 99
--------------------------
Date: 23 Nov 99
------------------------------ MS Account Manager: Xxxxx Xxxxx
------------
Page 4
