1
Exhibit 10.36
[i2 LOGO]
CONFIDENTIAL TREATMENT REQUESTED
SERVICES AGREEMENT
Agreement # _______________________
(to be completed by i2)
This Services Agreement (the "Agreement"), effective as of the later date of
execution by the parties hereto (the "Effective Date"), is entered into by and
between i2 Technologies, Inc., a Delaware corporation with an office at 00000
Xxxx Xxxx, Xxxxxx, Xxxxx 00000 ("i2") and Xxxxxxxx.xxx, Inc. ("Company"), a
Delaware corporation with a principal place of business at 0000 Xxxxxx Xxxx, Xxx
Xxxx, Xxxxxxxxxx 00000, (collectively i2 and Company shall be referred to as the
"Parties," and individually as a "Party").
1. DEFINITIONS
The following terms when used in this Agreement shall have the following
meanings:
1.1. "COMPANY OWNED MATERIAL" means any programs, systems, data, and materials
owned or developed by, or licensed to, Company prior to the Effective Date of
this Agreement.
1.2. "DELIVERABLES" means any programs, systems, data, and materials set forth
in a Statement of Work and developed by i2, alone or jointly with Company,
pursuant to the performance of Services, but excluding Company Owned Material
and i2 Owned Material.
1.3. "DERIVATIVE WORK" means a work that is based upon the Deliverables or
related documentation, such as a revision, upgrade, improvement, modification,
translation (including compilation or recapitulation by computer), abridgment,
condensation, expansion or any other form in which the Deliverables may be
recast, transformed, or adapted, or that, if prepared without authorization by
the owner of the Deliverables, would constitute an infringement of intellectual
property rights.
1.4. "DEVELOPMENT MATERIAL" means development tools and libraries and other
software, documentation and information to be provided by a Party as necessary
to permit each Party to perform its obligations and responsibilities set forth
in a Statement of Work.
1.5. "i2 OWNED MATERIAL" means any programs, systems, data, or materials owned
or developed by, or licensed to, i2 prior to the Effective Date of this
Agreement.
1.6. "INTELLECTUAL PROPERTY" means any and all intellectual property rights
throughout the world including, but not limited to, rights in respect of or in
connection with: (1) any Confidential Information; (2) all trademarks, service
marks, trade names, designs, logos, slogans and general intangibles of like
nature, together with any goodwill, registrations and applications relating to
the foregoing; (3) issued patents and pending patent applications; (4)
copyrights (including registrations and applications for any of the foregoing);
(5) inventions (whether patentable or not); (6) computer programs, including any
and all software implementations of algorithms, models and methodologies whether
in source code or object code form, all documentation, including user manuals
and training materials, related to any of the foregoing; and (7) any other
technology, know-how, processes, formulae, algorithms, models and methodologies
relating thereto.
1.7 "LICENSED SOFTWARE" has the meaning given to it in the Public Marketplace
License Agreement.
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1.8. "MARKETPLACE(S)" means Internet-based exchange and information marketplaces
for the healthcare market owned by Company andoperated by Company, alone or
jointly with another entity.
1.9. "OBJECT CODE" means software in machine-readable, compiled binary form.
1.10. "PUBLIC MARKETPLACE LICENSE AGREEMENT" means the Public Marketplace
License Agreement between the parties dated on or about the Effective Date, as
such agreement may be amended or replaced between the parties.
1.11. "SERVICES", in respect of a party, means all services to be provided by
such party hereunder, including under any Statement of Work, including
Consulting Services and JDP Services,.
1.12. "STATEMENT OF WORK" means any written terms mutually agreed between the
Parties and executed by each Party for the performance of Services hereunder,
including the following terms and conditions as applicable: (i) the scope of
Services to be performed by each party, (ii) the deliverables to be provided
("Deliverable"); (iii) functional, technical, performance and acceptance
specifications and criteria for each Deliverable, if any ("Specifications"),
(iv) the milestone due dates and delivery schedule for each Deliverable, and
(iv) any applicable fee payment structure, and (v) any allocation of
Intellectual Property rights in each Deliverable.
2. SERVICES
2.1. Subject to the terms and conditions of this Agreement, i2 and Company may
agree on implementation and configuration projects for Licensed Software to be
performed by i2 ("Consulting Services") which will be more fully described in
one or more Statements of Work mutually agreed to by the parties.
2.2. Subject to the terms and conditions of this Agreement, i2 and Company may
enter into joint development project(s) for any new software, or modifications
to Licensed Software, specifically targeted for the healthcare market to be
deployed into a Marketplace ("Joint Development Project" or "JDP") which will be
more fully described in one or more Statements of Work mutually agreed to by the
parties. In each JDP, Company shall have primary responsibility for the
development of the Specification targeted for the healthcare market.
2.3. Each individual Statement of Work shall be executed by both parties and
upon such execution shall be governed by and subject to the terms and conditions
of this Agreement and incorporated into this Agreement. Both parties agree to
perform their respective responsibilities and obligations described in any
Statement of Work according to the schedule set forth therein. Both parties
agree to make available the necessary Development Materials, physical
facilities, computer systems, and other resources in order to fully comply with
the Parties responsibilities and obligations set forth in any Statement of Work.
2.4. Unless otherwise agreed in writing in a Statement of Work, the Parties
shall jointly conduct tests on each Deliverable promptly after delivery to test
whether the Deliverable substantially conforms with the applicable
Specification. If a Deliverable does not substantially conform with the
applicable Specification then the Party responsible under the applicable
Statement of Work for development of the Deliverable shall use all reasonable
efforts to promptly correct such non-conformance at its own cost and expense and
redeliver the corrected Deliverable. The Parties shall then jointly re-test the
rectified Deliverable. If a Deliverable for which a Party is responsible fails
to substantially conform with its applicable Specifications on two (2) or more
rounds of testing then the other Party may terminate the applicable Statement of
Work by written notice to the Party responsible for the non-conforming
Deliverable in which case such Party shall refund any and all fees paid for the
non-conforming Deliverable under that Statement of Work.
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2.5. The Parties agree to meet as required, but no less frequently than monthly,
to (i) discuss and agree on new projects to be performed, (ii) review progress
of on-going projects; and (ii) prioritize the project activities of the Parties.
2.6. The Parties shall negotiate, in good faith, to agree on and execute within
twenty-eight (28) days after the Effective Date a plan for implementation and
integration of the Licensed Software into the Marketplaces, including the
Consulting Services to be performed by each Party and associated due dates for
completion of such Consulting Services. When agreed and executed by both
Parties, the implementation plan shall be deemed a Statement of Work and
incorporated into this Agreement.
3. CHANGES IN THE WORK
Company may, at any time, by written notice to i2 request changes in the
Services or Deliverables set forth in a particular Statement of Work. Upon
receipt of such request, i2 shall notify Company of its acceptance or rejection
of the requested change. Company agrees to bear any extra expense and pay for
any additional work required by such change.
4. PROPRIETARY RIGHTS
4.1. All right, title and interest and all Intellectual Property in and to any
Company Owned Material is and shall remain the property of Company. All right,
title and interest and all Intellectual Property in and to any i2 Owned Material
is and shall remain the property of i2.
4.2. Unless otherwise agreed in writing in a Statement of Work, i2 shall have
all right, title and interest and all Intellectual Property in and to any
Consulting Services Deliverable and each Consulting Services Deliverable shall
be subject to the license rights granted by i2 to Company under the Public
Marketplace License Agreement.
4.3. The allocation of Intellectual Property rights in each JDP Deliverable
shall be mutually agreed to by the Parties and set forth in the applicable JDP
Statement of Work including whether and to what extent either Party's rights
with respect to licensing the JDP Deliverable may be limited in any way. If the
Parties fail to designate the Intellectual Property rights in each JDP
Deliverable in any Statement of Work, the Parties acknowledge and agree that i2
shall have all right, title and interest and all Intellectual Property in and to
any JDP Deliverable and i2 shall grant to Company a non-exclusive, perpetual,
irrevocable license to use, copy, display, publish and modify such JDP
Deliverable, including the Development Material to the extent such Development
Material is incorporated into or required for Company to effectuate its rights
in the JDP Deliverable, for the Marketplaces.
4.4. In the event Development Materials are identified in a Statement of Work as
necessary to perform JDP Services, each Party hereby grants solely to the other
Party a non-exclusive, non-transferable license to use and copy the Development
Material but only as may reasonably be required by either Party to perform its
obligations under a JDP Statement of Work.
4.5. i2 in its sole discretion shall determine whether Deliverables are
incorporated into Licensed Software.
4.6. All rights in respect of the Deliverables and Licensed Software not
expressly granted hereby are expressly reserved. The license granted by this
Section 4 is personal to Company for the Marketplace and does not extend to any
other entity or entities, including any entity or entities holding any equity
position in Company.
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5. PAYMENT
5.1. CONSULTING SERVICES FEES. Company shall pay i2 the fees as set forth in the
applicable Statement of Work which shall be at the rates set forth in Exhibit 1
for Consulting Services. In addition, Company shall reimburse i2 for all
reasonable travel, living and delivery expenses incurred by i2 in rendering
Consulting Services. Company shall make all payments in US dollars. All payments
shall be due within thirty (30) days after receipt by Company of an invoice or
as otherwise specified within this Agreement. All costs of collection, including
reasonable attorney's and expert's fees and costs of court, shall be paid by
Company.
5.2. JDP RESOURCES. Specific investments and fees by each Party associated with
any JDP Statement of Work shall be mutually agreed upon by the Parties prior to
the commencement of the Joint Development Project and set forth in the
applicable JDP Statement of Work. The fees, if any, to be charged by i2 for a
JDP shall be [*] of i2's list price for Consulting Services set
forth in Exhibit 1.
5.3. TAXES. Fees and all other amounts mentioned in this Agreement do not
include any sales, property, use, value added or ad valorem taxes, or any other
taxes, levies, duties or other charges based upon this Agreement, all of which
shall be paid by Company. In the event i2 is required to pay such taxes, Company
shall reimburse i2. Company shall withhold foreign withholding taxes only as
required by relevant local country tax law. Company shall provide i2 with notice
of withholding of any such tax payment. Company shall not pay for taxes on i2's
net income or for sales and use taxes for which Company has provided a valid tax
exemption certificate within sixty (60) days of the Effective Date.
5.4. EXPORT OF SYSTEM. Company acknowledges and agrees that the Confidential
Information, the System and the other property of i2 and/or i2's suppliers, in
whole and/or in part, may be subject to export controls imposed by the United
States Export Administration Act of 1979, as amended, the regulations
promulgated thereunder, as well as any future U.S. export control legislation
(collectively the "Act") and/or other regulation by agencies of the U.S.
Government or other applicable country(ies), which prohibit export or diversion
of certain products and technology to certain countries (collectively, the
"Export Regulations"). Company will not allow the information and other property
disclosed to it, in whole or in part, to be exported or re-exported, or
otherwise be distributed outside of the United States, in any manner or by any
means, without in each instance complying in full with the Act and any other
Export Regulations, obtaining the prior approval of i2 and, to the extent
required, (a) the prior approval of the appropriate government authorities of
the United States, (b) a validated export license from the Office of Export
Administration within the U.S. Department of Commerce and (c) the prior approval
of and/or license(s) from the appropriate governmental authorities of any and
all other applicable countries. Company will comply with all applicable laws and
regulations of the United States of America and any other applicable country in
performing its duties under this Agreement. Notwithstanding any other provision
of this Agreement to the contrary, i2 may, from time to time, in its sole
reasonable discretion, by providing written notice to Company, restrict Company
from exporting or re-exporting or otherwise distributing any of the information
or other property provided by i2 to specific specified countries. Company will
defend, hold harmless and indemnify i2, i2's suppliers and its and their
officers, directors employees and/or agents, from and against any damages
resulting to such party from a breach by Company under this section to the
extent caused by Company. Refer to xxx.xxx.xxx.xxx.
6. LIMITED WARRANTY
i2 represents and warrants that all Services rendered by i2 in connection with
this Agreement shall be provided in accordance with applicable professional
standards and practices, and i2's personnel shall have the requisite skills,
expertise, training and ability to perform the tasks assigned them.
* Confidential treatment requested.
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7. REPRESENTATIONS AND WARRANTIES
GENERAL. Each Party hereby represents and warrants to the other that: (i) such
Party has the right, corporate power and authority to enter into this Agreement
and to fully perform all its obligations, including the right to grant all
licenses to the full extent and scope granted by such Party herein; (ii) the
execution, delivery and performance of this Agreement by such Party requires no
action by or in respect of, or filing with, any governmental body, agency,
official or authority; (iii) the execution, delivery and performance of this
Agreement by such Party does not and will not (a) contravene or conflict with
the corporate charter or bylaws of such Party or (b) contravene or conflict with
any provision of any law, regulation, judgment, injunction, order or decree
binding upon such Party or (c) violate any agreement existing between such Party
and any third party; and (iv) it will perform all services hereunder with due
care and skill in a professional manner, using only appropriately skilled and
qualified personnel.
8. CONFIDENTIALITY
8.1. GENERAL DEFINITION. "Confidential Information" shall be deemed to include
all information and materials furnished by either Party which: (a) if in written
format is marked as confidential, or (b) if disclosed verbally is noted as
confidential at time of disclosure, or (c) in the absence of either (a) or (b)
is information which a reasonable person would deem to be non-public information
and confidential. i2's Confidential Information shall include, but not be
limited to, the Deliverables.
8.2. EXCLUSIONS. Notwithstanding paragraph 8.1 hereof, Confidential Information
shall exclude information that the receiving Party can demonstrate: (i) was
independently developed by the receiving Party without any use of the disclosing
Party's Confidential Information or by the receiving Party's employees or other
agents (or independent contractors hired by the receiving Party) who have not
been exposed to the disclosing Party's Confidential Information; (ii) becomes
known to the receiving Party, without restriction, from a source other than the
disclosing Party without breach of this Agreement and that had a right to
disclose it; (iii) was in the public domain at the time it was disclosed or
becomes in the public domain through no act or omission of the receiving Party;
or (iv) was rightfully known to the receiving Party, without restriction, at the
time of disclosure.
8.3. COMPELLED DISCLOSURE. If the Confidential Information of a disclosing Party
must be disclosed by the receiving Party pursuant to the order or requirement of
a court, administrative agency, or other governmental body, the receiving Party
shall (i) provide prompt notice thereof to the disclosing Party and (ii) use
commercially reasonable efforts without the payment of money to obtain a
protective order or otherwise prevent public disclosure of such information.
8.4. CONFIDENTIALITY OBLIGATION. The receiving Party shall treat as confidential
all of the disclosing Party's Confidential Information and shall not use or
disclose or otherwise permit the disclosure of such Confidential Information
except as expressly permitted under this Agreement. Without limiting the
foregoing, the receiving Party shall use at least the same degree of care which
it uses to prevent the disclosure of its own Confidential Information of like
importance, but in no event with less than reasonable care, to prevent the
disclosure of the disclosing Party's Confidential Information.
8.5. CONFIDENTIALITY OF AGREEMENT. Each Party agrees that the terms and
conditions, but not the existence, of this Agreement shall be treated as the
other's Confidential Information and that no reference to the terms and
conditions of this Agreement or to activities pertaining thereto can be made in
any form of public or commercial advertising without the prior written consent
of the other Party; provided, however, that each Party may disclose the terms
and conditions of this Agreement; (i) as required by any court or other
governmental body; (ii) as otherwise required by law; (iii) to legal counsel of
the Parties; (iv) in connection with the requirements of an initial public
offering or securities filing; (v) in confidence, to accountants, banks, and
financing sources and their advisors; (vi) in confidence, in connection with the
enforcement of this Agreement or rights under this Agreement; or (vii) in
confidence, in connection with a merger or acquisition or proposed merger or
acquisition, or the like.
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8.6. REMEDIES. Unauthorized use by a Party of the other Party's Confidential
Information will diminish the value of such information. Therefore, if a Party
breaches any of its obligations with respect to confidentiality or use of
Confidential Information hereunder, the other Party shall be entitled to
equitable relief to protect its interest therein, including but not limited to
injunctive relief, as well as money damages.
9. LIMITATION OF LIABILITY
9.1. EXCEPT FOR BREACHES OF SECTION 8 HEREOF AND/OR LIABILITY UNDER SECTION 10,
EACH PARTY'S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF
THE FEES PAID BY COMPANY TO i2.
9.2. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR BREACHES OF
SECTION 8 HEREOF AND/OR LIABILITY UNDER SECTION 10, NEITHER PARTY HERETO (NOR
ANY LICENSOR OF THIRD PARTY SOFTWARE) SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, MULTIPLE, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST DATA OR LOST
RECORDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE
OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, INCLUDING WITHOUT LIMITATION
BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT.
10. INDEMNITY
10.1. i2 INDEMNIFICATION.
i2 shall indemnify, hold harmless and defend, at its expense, Company from and
against any third party claims alleging that the Deliverables, or use of the
Deliverables, infringes any patent, trademark, trade secret, copyright
(including moral rights) or other Intellectual Property right of a third party.
The indemnity against infringement is solely in connection with the use by
Company of the Deliverables for the Marketplaces as set forth in this Agreement.
The indemnification obligation of this Section 10.1 shall not apply to any claim
arising out of (I) the combination of the Deliverables with other products or
data not claimed to be owned or developed by or on behalf of i2, or approved by
i2 in writing, to the extent that the alleged infringement would have been
avoided absent such combination, (II) any Derivative Work of the Deliverables
prepared by anyone other than i2 or a party acting on i2's behalf, or approved
by i2 in writing, to the extent that alleged infringement would have been
avoided absent such modification, (III) use of the Deliverables in breach of the
instructions in the Deliverables documentation, or (V) use of other than a
current release of the Deliverables if such infringement would have been avoided
by use of a current release that has been made available to Company.
If a third party's claims substantially interfere with Company's use of the
Deliverables or if i2 believes that a third party claim may substantially
interfere with Company's use of the Deliverables, i2, at its sole discretion,
may (a) replace the Deliverables, without additional charge, with a functionally
equivalent and non-infringing product; (b) modify the Deliverables to be
functionally equivalent and avoid the infringement; (c) obtain a license for
Company to continue use of the Deliverables and pay any additional fee required
for such license: or (d) if none of the foregoing alternatives are commercially
reasonable, i2 may terminate the license for the infringing Deliverable and
refund the service fees paid for those infringing Deliverables. This Section 10
shall constitute i2's entire liability and Company's exclusive remedy for a
claim of infringement.
10.2. COMPANY INDEMNIFICATION. Company shall hold harmless and defend, at its
expense, i2 from and against any third party claims alleging (i) that any JDP
Deliverable delivered solely by Company to i2 hereunder, or use of such JDP
Deliverables, infringes any patent, trademark, trade secret, copyright
(including moral rights) or other Intellectual Property right of a third party,
(ii) use of the JDP Deliverables
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delivered solely by Company in a manner other than as authorized by this
Agreement, or (iii) arising out of or in connection with the business operations
and services offered by Company to the extent that the third party claim is not
directly related to the failure of the JDP Deliverables delivered solely by
Company to operate substantially in accordance with the Specifications.
The indemnity against infringement is solely in connection with the use as set
forth in this Agreement by i2 of the JDP Deliverables delivered solely by
Company to i2 hereunder. The indemnification obligation of this Section 10.2
shall not apply to any claim arising out of (I) the combination of such JDP
Deliverables with other products or data not claimed to be owned or developed by
or on behalf of Company, or approved by Company in writing, to the extent that
the alleged infringement would have been avoided absent such combination, (II)
any Derivative Work of such JDP Deliverables prepared by anyone other than
Company or a party acting on Company's behalf, or approved by Company in
writing, to the extent that alleged infringement would have been avoided absent
such modification, (III) use of such JDP Deliverables in breach of the
instructions in the JDP Deliverables documentation, or (V) use of other than a
current release of such JDP Deliverables if such infringement would have been
avoided by use of a current release that has been made available to i2.
If a third party's claims substantially interfere with i2's use of the JDP
Deliverables delivered solely by Company to i2 hereunder or if Company believes
that a third party claim may substantially interfere with i2's use of the JDP
Deliverables, Company, at its sole discretion, may (a) replace such JDP
Deliverables, without additional charge, with a functionally equivalent and
non-infringing product; (b) modify such JDP Deliverables to be functionally
equivalent and avoid the infringement; (c) obtain a license for i2 to continue
use of such JDP Deliverables and pay any additional fee required for such
license: or (d) if none of the foregoing alternatives are commercially
reasonable, Company may terminate the license or revoke the assignment of the
infringing JDP Deliverable and refund the service fees paid for those infringing
JDP Deliverables. This Section 10 shall constitute Company 's entire liability
and i2's exclusive remedy for a claim of infringement.
10.3. NOTICE OF INDEMNIFICATION. A Party seeking indemnification pursuant to
this Section 10 (an "Indemnified Party") from or against the assertion of any
claim by a third person (a "Third Person Assertion") shall give prompt notice to
the Party from whom indemnification is sought (the "Indemnifying Party");
provided, however, that failure to give prompt notice shall not relieve the
Indemnifying Party of any liability hereunder (except to the extent the
Indemnifying Party has suffered actual material prejudice by such failure).
10.4. ASSUMPTION OF DEFENSE. Within ten (10) business days of receipt of notice
from the Indemnified Party pursuant to Section 10.3 hereof, the Indemnifying
Party shall have the right exercisable by written notice to the Indemnified
Party, to assume the defense of a Third Person Assertion. If the Indemnifying
Party assumes such defense, the Indemnifying Party may select counsel, which
shall be reasonably acceptable to the Indemnified Party.
10.5. FAILURE TO DEFEND. If the Indemnifying Party (a) does not assume the
defense of any Third Person Assertion in accordance with Section 10.4 hereof; or
(b) having so assumed such defense, unreasonably fails to defend against such
Third Person Assertion, then, upon ten (10) days' written notice to the
Indemnifying Party, the Indemnified Party may assume the defense of such Third
Person Assertion. In such event, the Indemnified Party shall be entitled under
this Section 10 as part of its damages to indemnification for the costs of such
defense.
10.6. CONFLICTS OF INTEREST. If the Indemnifying Party has been advised by the
written opinion of counsel to the Indemnified Party that the use of the same
counsel to represent both the Indemnified Party and the Indemnifying Party would
present a conflict of interest, then the Indemnified Party may select its own
counsel to represent the Indemnified Party in the defense of the matter and the
costs of such defense shall be borne by the Indemnifying Party. The Indemnifying
Party shall be entitled to continue to handle its own representation in such
matter through its own counsel.
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10.7. SETTLEMENT. The Party controlling the defense of a Third Person Assertion
shall have the right to consent to the entry of judgment with respect to, or
otherwise settle, such Third Person Assertion.
10.8. PARTICIPATION. The Indemnifying Party and the Indemnified Party shall
cooperate, in the defense or prosecution of any Third Person Assertion. The
Indemnified Party shall have the right to participate, at its own expense, in
the defense or settlement of any Third Person Assertion.
10.9. EXCLUSIVE REMEDY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, EXCEPT FOR A CLAIM UNDER SECTION 8 HEREOF, THE FOREGOING STATES EACH
PARTY'S ENTIRE LIABILITY, AND EACH OTHER PARTY'S EXCLUSIVE REMEDY FOR
INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
11. TERM AND TERMINATION
11.1. TERM. This Agreement shall take effect on the Effective Date and shall
continue in full force and effect until terminated earlier in accordance with
the terms of this Agreement. Upon the termination or expiration of this
Agreement, both Parties agree to promptly cease using all Confidential
Information of the other Party and such Confidential Information shall be
immediately destroyed or returned to the other Party.
11.2. TERMINATION. This Agreement shall automatically terminate on termination
or expiration of the Public Marketplace License Agreement. Should a Party
("Defaulting Party") materially breach its obligations under this Agreement, the
other Party may notify the Defaulting Party of such breach and give the
Defaulting Party no less than thirty (30) days prior written notice in which to
correct the breach. Should the Defaulting Party not correct the breach within
that time then the other Party shall, in its sole discretion, have the right (in
addition to all other rights at law and in equity) to terminate this Agreement
and the license granted to Company hereunder by sending written notice of such
termination to the Defaulting Party and such termination shall be effective upon
the receipt of the termination notice. Termination of this Agreement for breach
by the Defaulting Party shall not relieve the Defaulting Party of any obligation
incurred hereunder prior to the date of termination.
This Agreement may be immediately terminated by a Party if (i) the other Party,
through merger, acquisition, consolidation, other reorganization, becomes a
controlling entity of, is controlled by, or in common control with, a Competitor
of the first Party, (ii) any dissolution or liquidation proceedings of the other
Party are initiated, (iii) the other Party ceases its business operations, or
(iv) any bankruptcy, insolvency, or similar proceedings be instituted by or
against the other Party, or if the other Party should make a general assignment
for the benefit of creditors.
11.3. SURVIVAL OF CERTAIN TERMS. The following provisions of this Agreement
shall survive any expiration or termination hereof: 4, 6, 7, 8, 9, 10 (but only
with respect to events occurring prior to such expiration or termination), 11
and 12.
12. MISCELLANEOUS PROVISIONS
12.1. ENTIRE AGREEMENT. This Agreement, including Exhibits 1 and any and all
Statements of Work attached hereto and made a part hereof, may be modified or
amended only by a written instrument signed by duly authorized representatives
of both Company and i2. The pre-printed terms and conditions of any purchase
order, invoice or other document issued by a Party in connection with this
Agreement which are in addition to or inconsistent with the terms and conditions
of this Agreement shall not be binding on the other Party and shall not be
deemed to modify this Agreement. No term or provision contained herein shall be
deemed waived and no breach excused unless such waiver or consent shall be in
writing and signed by the waiving Party.
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12.2. GOVERNING LAW AND JURISDICTION. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, IRRESPECTIVE OF
ITS CHOICE OF LAW PRINCIPLES.
12.3. NO LIENS. Company shall not impose or incur, and shall not permit the
imposition or placement of, any liens, security interests or other encumbrances
on, with respect to, or relating to the System.
12.4. BINDING UPON SUCCESSORS AND ASSIGNS. Neither Party shall assign or
delegate this Agreement or any right or obligation hereunder, by operation of
law or otherwise, without the prior written consent of the other Party, and any
purported assignment or delegation shall be void and without force or effect.
Notwithstanding the foregoing: (i) i2 may assign the receivables under this
Agreement and (ii) a Party may assign this Agreement in connection with a change
of control of that Party to an entity that is not a Competitor of the other
Party; provided that (a) any permitted successor to the assigning Party shall be
bound by each and every obligation and restriction to which the assigning Party
is bound hereunder and (b) the assigning Party shall provide the other Party
with prompt notice of the relevant assignment of this Agreement. For purposes of
this paragraph, "change of control" shall mean the direct or indirect
acquisition of either (I) the majority of the assigning Party's voting stock or
(II) all or substantially all of the assets of the assigning Party to which this
Agreement relates in a single transaction or a series of related transactions.
12.5. SEVERABILITY. If any provision of this Agreement is found to be invalid or
unenforceable, such provision shall be severed from the Agreement and the
remainder of this Agreement shall be interpreted so as best to reasonably effect
the intent of the parties.
12.6. AMENDMENT AND WAIVERS. Any terms or provisions of this Agreement may be
amended, and the observance of any term of this Agreement may be waived, only by
a writing signed by a duly authorized representative of the Party to be bound.
The failure of either Party to enforce, at any time, any of the provisions of
this Agreement or the failure to require, at any time, performance by the other
Party of any of the provisions of this Agreement, shall in no way be construed
to be a present or future waiver of such provisions, nor shall it in any way
affect the ability of either Party to enforce each and every such provision
thereafter. The express waiver by either Party of any provision, condition or
requirement of this Agreement shall not constitute a waiver of any future
obligation to comply with such provision, condition or requirement.
12.7. NOTICES. Any notice, demand, or request with respect to this Agreement
shall be in writing and shall be effective only if it is delivered by hand or
overnight courier or mailed, certified or registered mail, postage prepaid,
return receipt requested, addressed to the appropriate Party as set forth below.
Such communications shall be effective when they are received by the addressee;
but if sent by certified or registered mail in the manner set forth above, they
shall be effective not later than three (3) days after being deposited in the
mail. Any Party may change its address for such communications by giving notice
to the other Party in conformity with this paragraph.
To i2:
i2 Technologies, Inc.
Attn: Corporate Counsel
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000
To Company:
Xxxxxxxx.xxx, Inc.
Attn: Corporate Counsel
0000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000
12.8. REMEDIES NON-EXCLUSIVE. Except as otherwise expressly provided, any remedy
provided for in this Agreement is deemed cumulative with, and not exclusive of,
any other remedy provided for in this Agreement or otherwise available at law or
in equity. The exercise by a Party of any remedy shall not preclude the exercise
by such Party of any other remedy.
CONFIDENTIAL
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12.9. INDEPENDENT CONTRACTORS. The parties are independent contractors. Nothing
contained herein or done pursuant to this Agreement shall constitute either
Party the agent of the other Party for any purpose or in any sense whatsoever,
or constitute the parties as partners or joint ventures.
12.10. TITLES AND SUBTITLES. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.
12.11. COUNTERPARTS. This Agreement may be executed in counterparts or duplicate
originals, both of which shall be regarded as one and the same instrument, and
which shall be the official and governing version in the interpretation of this
Agreement.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT AND UNDERSTANDING WITH RESPECT
TO THE SUBJECT MATTER HERETO, BETWEEN COMPANY AND i2 WITH RESPECT TO THE
SERVICES TO BE FURNISHED HEREIN. THIS AGREEMENT SUPERSEDES ALL PRIOR
COMMUNICATIONS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of
the last signature below.
XXXXXXXX.XXX, INC. i2 TECHNOLOGIES, INC.
By: _____________________________ By: _____________________________
(Authorized Signature) (Authorized Signature)
Printed Name:_____________________ Printed Name: ____________________
Title: ____________________________ Title: ___________________________
Date: ____________________________ Date: ___________________________
CONFIDENTIAL
Neoforma Services v122900 Page 100)
11
SERVICES AGREEMENT
EXHIBIT 1 - CONSULTING SERVICE RATES
Company Name: XXXXXXXX.XXX, INC.
0000 XXXXXX XXXX
XXX XXXX, XXXXXXXXXX 00000
ATTACHED TO AND MADE PART OF THE SERVICES AGREEMENT BETWEEN i2 AND COMPANY.
Consulting Service rates:
SIA Analysts [*] p/wk
Director, Engagement Manager, Company Service Unit Manager [*] p/h
Program Manager [*] p/h
Sr. Solutions Architect, Sr. Modeling Specialist, Sr. Integration Specialist [*] p/h
Solutions Architect, Modeling Specialist, Integration Specialist [*] p/h
Project Leader [*] p/h
Senior Consultant [*] p/h
Consultant [*] p/h
These Consulting Service rates are [*] during the [*], but in any renewal term
shall be i2's then-current standard rates.
All Service rates do not include travel, living, or other incidental expenses.
These expenses shall be reimbursed by Company. All Services are provided on a
time and material basis and are charged portal to portal. Sales tax and import
fees to be borne by Company.
i2 will use commercially reasonable efforts to utilize local resources in San
Jose, California.
During the term of this Agreement and any renewal term, Company shall receive a
[*] discount off the above prices for Consulting Services.
* Confidential treatment requested.
CONFIDENTIAL
Neoforma Services v122900 Page 110)
