Exhibit 10.7
CONFIDENTIAL
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
This Master Software License and Services Agreement (the "Agreement") is
entered into as of this 16th day of April, 1999 (the "Effective Date"), by and
between Commerce One, Inc. a California corporation with offices located at 0000
Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Commerce One") and Nippon
Telegraph and Telephone Corporation, a Japanese corporation with offices located
at 0-00-0, Xxxxx-Xxxxxxxx, Xxxxxxxx, Xxxxx 000-0000, Xxxxx ("NTT").
BACKGROUND
WHEREAS, Commerce One is developing or has the rights to the software and
documentation described in Section 1 below and desires to license NTT to use
such software on the terms and conditions stated herein; and
WHEREAS, NTT is interested in receiving a license from Commerce One to such
software and documentation on the terms and conditions stated herein, and
further desires to retain Commerce One to perform certain services specific to
Commerce One's software products as set forth herein; and
WHEREAS, Commerce One desires to perform such services for NTT; and
WHEREAS, NTT is interested in establishing an electronic commerce service
in Japan enabling businesses to buy and sell products over the Internet; and
WHEREAS, NTT and Commerce One intend to enter into an initial agreement
covering a pilot project and subsequently enter into a partnership agreement
with the intent to bring to market an internet based open trading community
connecting trading partners across Japan; and
WHEREAS, Commerce One and NTT wish to discuss the possibility of the
marketing of a localized version of the Software in Japan and the provision of
certain electronic commerce services using the localized Software in Japan.
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions stated herein, the parties agree as follows:
1. DEFINITIONS.
1.1 "COMMERCE ONE TECHNOLOGY" shall mean (i) the Deliverables and any
and all technology, information, data, know-how, ideas, designs, software,
inventions, documentation, resources and all other tangible and intangible items
made, conceived or reduced to practice by Commerce One alone or jointly with
others hereunder, and (ii) all Intellectual Property rights in (i).
1.2 "DELIVERABLE" shall mean an item identified as a deliverable in
the Statement of Work.
1.3 "DOCUMENTATION" shall mean any instructions, manuals or other
materials provided to NTT by Commerce One in connection with the Software.
1.4 "INTELLECTUAL PROPERTY" means any and all (by whatever name or
term known or designated) tangible and intangible and now known or hereafter
existing: copyrights (including derivative works, as defined by the United
States Copyright Act, thereof), trademarks, trade names, trade secrets, mask
work rights, know-how, patents and any other intellectual and industrial
property and proprietary rights, of every kind and nature throughout the
universe and however designated, and including all registrations, applications,
renewals and extensions thereof.
1.5 "PHASE II" shall have the meaning set forth in the Statement of
Work.
1.6 "SOFTWARE" shall mean the computer program(s) set forth in
EXHIBIT A in machine executable object code format and the Documentation,
together with Updates thereto and Deliverables provided to NTT in accordance
with the terms and conditions hereof.
1.7 "Specifications" means the technical specifications for the
Deliverables which will be developed in conjunction with the Statement of Work
in accordance with Section 4.5.
1.8 "STATEMENT OF WORK" shall mean a document setting forth in detail
the services and Deliverables to be performed and delivered by Commerce One
under this Agreement and an estimated schedule therefor. A preliminary version
of the Statement of Work is attached as EXHIBIT B. The Statement of Work may be
amended by the parties from time to time in accordance with this Agreement. Each
separate Statement of Work shall be sequentially numbered as EXHIBIT B
(e.g., EXHIBIT X-0, X-0, etc.).
1.9 "UPDATES" shall mean new versions of the Software that Commerce
One makes available generally to customers of the Software as part of the
support described in Section 3 below.
2. SCOPE.
2.1 RIGHT TO USE. Subject to the terms and conditions of this
Agreement, Commerce One grants NTT [*], without right of sublicense, to
install the Software at the Designated Sites (as defined below) and to use
the Software for internal business purposes only. Additionally, NTT can
provide access to MarketSite services to up to five (5) external business
partners during Phase II of this project. Further, it is understood and
agreed that beta versions of the Software provided hereunder to NTT are still
under development and are provided for
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[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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experimental, evaluation purposes only. Accordingly beta versions of the
Software shall not be used in a production or commercial environment. Unless
otherwise specified herein, NTT shall install the double byte enabled version
of the Software, if any, solely at the locations in Japan set forth in
EXHIBIT D (collectively, the "Designated Sites"). Commerce One will use
reasonable efforts to timely complete the development of the double byte
enabled version of the Software. NTT agrees that it will not itself, or
through any third party, modify the Software or reverse engineer,
disassemble, decompile or otherwise attempt to derive source code from the
Software; use the Software to provide services to third parties, whether in
commercial timesharing, rental or sharing arrangements, or otherwise use the
Software on a "service bureau" basis.
2.2 COPIES. NTT shall not copy the Software, in whole or in part,
except for one (1) copy as necessary to archive such Software.
2.3 INSTALLATION. NTT shall install or, where applicable, shall allow
Commerce One to install, the Software at the Designated Sites for use in
accordance with Section 2.1 above.
2.4 INFORMATION. NTT shall provide information, including NTT
Confidential Information, as reasonably requested by Commerce One to ensure
compliance by NTT with the terms of this Agreement. In addition, and as a
condition of the grant of the license set forth in Section 2.1 above, NTT shall
permit Commerce One to operate "polling software" which monitors transactions
associated with the Software, and NTT shall at all times cooperate with Commerce
One to ensure that Commerce One has remote access to NTT's computers for such
purpose and that Commerce One's polling software operates correctly on NTT's
computers.
2.5 EVALUATION. NTT will participate in a pilot program for the
Software in accordance with the criteria set forth in EXHIBIT D ("Pilot
Program"). NTT shall designate a test coordinator (the "Coordinator" as the
primary contact for Commerce One during the term of this Agreement with respect
to the Pilot Program). NTT will cooperate and consult with Commerce One in the
evaluation of the Software based on NTT's operation, use, and testing of the
Software pursuant to the Pilot Program Criteria set forth in EXHIBIT D. During
the term of the Pilot Program, if NTT discovers errors or bugs in the Software,
the Coordinator will promptly call Commerce One to report such problems.
Commerce One shall, at any time and in its sole discretion replace, modify,
alter, improve, enhance or change the Software and in such event the replaced
version shall be deemed part of the Software. If Commerce One provides NTT with
a corrected or updated Software, NTT shall promptly install such Software solely
as a version replacement and erase from memory any and all copies of the
previous Software. It is understood that any corrected or updated versions of
the Software shall be used solely as version replacements and shall not expand
the number or scope of licenses granted herein.
2.6 EXCLUSIVITY. [*] "Indirect Materials" means materials used in
the day-to-day operation of a buyer entity's business and which are more
commonly referred to as maintenance, repair and operations materials or "MRO"
(e.g., desks, paper, pencils, chairs) and specifically excluding materials
that are directly incorporated into the ultimate product or service
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[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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sold by such buyer entity to its customers. For the avoidance of doubt, it is
further understood and agreed that nothing in this Agreement or any of the
attachments hereto shall restrict Commerce One's ability to license the
Software to third parties for their own internal use in procuring goods or
services electronically on their own behalf for fulfillment of their own
internal business needs. [*] If the parties do not reach an agreement within
ten (10) business days of notice of such transaction by Commerce One, [*].
Upon the expiration of the Exclusivity Period, Commerce One shall have the
right to negotiate with any third parties regarding licensing the Software,
provided that Commerce One grants NTT the first right of negotiation. Such
first right of negotiation shall not preclude Commerce One from negotiating
with other third parties. This first right of negotiation period shall expire
three months from the date of the expiration of the Exclusivity Period.
3. SUPPORT. During Phase II, Commerce One will make available to NTT, [*]
such Software support including on-site and off-site support as Commerce One
makes available generally to its customers of the Software located in Japan.
4. CONSULTING SERVICES.
4.1 SERVICES. Commerce One shall use reasonable best efforts to
provide those services and/or deliver any Deliverables to NTT as set forth in
the applicable Statement of Work and NTT shall use reasonable efforts to
provide, or make available to Commerce One, free of charge, any information,
hardware or software resources or other materials of NTT, and assistance
reasonably required for the performance of such services and reasonable access
to NTT's facilities. Without limiting the foregoing, NTT shall use reasonable
efforts to perform those tasks and assume those responsibilities set forth in
the Statement of Work. The Statement of Work may also set forth certain
assumptions related to the services, and to the extent such assumptions are not
met or are inaccurate, the cost and schedule of the services may be affected.
NTT acknowledges and agrees that Commerce One's performance is dependent on
NTT's timely and effective satisfaction of all of NTT's responsibilities
hereunder and timely decisions and approvals by NTT. Commerce One is entitled to
rely on all decisions and approvals of NTT in connection with the services
provided hereunder. The information NTT has provided to Commerce One is true,
accurate and complete.
4.2 PERFORMANCE. Commerce One warrants that the Services shall be
performed in a professional and workmanlike manner using persons with skills and
experience appropriate to their function.
4.3 DELAYS. If NTT, or any third party acting on NTT's behalf, does
not provide any required item or service to Commerce One on a timely basis in
accordance with the applicable Statement of Work, then the dates set forth in
such Statement of Work which have been directly or indirectly affected by such
delay, shall be extended as reasonably necessary to account for such delay.
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[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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4.4 PROGRESS REPORTS; REVIEW MEETINGS. Commerce One will provide
to NTT progress reports regarding its work progress during development as set
forth in a Statement of Work or otherwise by mutual agreement. In addition,
the Project Managers (as defined below) shall participate in project review
meetings as set forth in a Statement of Work or otherwise by mutual
agreement. Any agreement reached among the parties at such meeting to modify
a Statement of Work shall be prepared in writing and duly signed by the
Project Manager of each party, and such revised Statement of Work shall be
binding upon the parties with respect to the subject matter thereof.
4.5 SPECIFICATIONS. The parties will work in good faith to
complete the Specifications for each Deliverable within thirty (30) days
prior to the delivery date for such Deliverable specified in the Statement of
Work. Upon written approval of both parties to the final version of the
Specifications for a Deliverable, such final version shall be deemed the
"Specifications" for such Deliverable for purposes of this Agreement. If
after such good faith discussions, the parties do not agree upon the
Specifications for a Deliverable within such thirty (30) day period, either
may terminate this Agreement with respect to such Deliverable by forty-five
(45) days prior written notice to the other party within thirty (30) days
after the expiration of such time period.
4.6 PROJECT MANAGERS. NTT and Commerce One shall each designate a
project manager who will be responsible for, and authorized to: (i) make
decisions regarding the Statement of Work; (ii) give any necessary approvals
in conjunction with the Statement of Work; and (iii) provide Commerce One
personnel with information and support for performance of the Statement of
Work.
4.7 MODIFICATIONS TO STATEMENT OF WORK. Should NTT desire to
change the services specified in the Statement of Work, or request additional
services not included in the Statement of Work, NTT shall submit the proposed
modification in writing to Commerce One. Commerce One may, as determined by
Commerce One, elect to perform such modification or additional services, and
if Commerce One elects to perform such modifications or additional services,
Commerce One will provide NTT with a cost estimate and schedule impact for
performing the modifications and/or additional services in a revised
Statement of Work. Upon NTT's written acceptance of the revised Statement of
Work, Commerce One will proceed to perform the modifications mutually agreed
to by the parties.
4.8 COMMENCEMENT CONDITION OF PHASE II: It is hereby understood
and agreed that Phase II shall be (i) commenced on or after NTT shall enter
into a certain letter of intent with its potential customer who desires to
receive an electronic procurement services from NTT by utilizing the
localized Japanese language version of the Software, and (ii) pursued by
taking the needs and requirements of the potential customer into due
consideration. [*]
4.9 PREFERRED STATUS. NTT will have the right to participate in
Commerce One's program for third party participation in periodic design
review meetings with Commerce
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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One's collaboration partners for the Software. In addition, Commerce One will
provide a dedicated Commerce One liaison to be located in Japan during Phase
II.
4.10 All members of Commerce One Resource (as set forth on EXHIBIT
F) shall, while working at the Designated Sites, observe and abide by the
laws and regulations of the country having jurisdiction over such location,
and all rules and regulations applicable at the Designated Sites, as well as
any and all instructions given by NTT, provided that such instructions are
reasonable. Commerce One shall at its sole discretion provide all members of
Commerce One Resource with appropriate guidance and otherwise cause them to
observe the provisions of this Agreement including the preceding paragraph.
NTT shall not be liable to Commerce One for any act or
omission of any member of Commerce One or for any accident while they are
staying at the Designated Sites or on the way to and from the Designated
Sites or to such personnel's home country. Commerce One, at its own cost,
shall subscribe to and maintain an insurance policy or policies covering any
accident referred to above, and any other appropriate property and liability
insurance for all members of Commerce One during their stay in the Designated
Sites.
Nothing contained herein shall be construed as creating or
requiring any employment or labor relationship between NTT and any member of
Commerce One .
When the services in each week are furnished, Commerce One
shall present a compiled weekly work sheet to NTT specifying works and dates
worked by each member of Commerce One Resource. Within seven (7) days after
receipt of the weekly work sheet, NTT shall verify the work sheet and issue
the accepted weekly work sheet to Commerce One. Should NTT fail to verify a
weekly work sheet, the services provided by Commerce One during the week in
question shall be deemed to have been accepted by NTT on the passage of said
seven (7) days. Should any defect or incorrectness be found in the work sheet
presented and so is pointed out by NTT, and agreed to as a defect or
incorrectness by Commerce One, Commerce One shall revise such defect or
incorrectness immediately and NTT shall verify and accept the revised work
sheet in the same way. It is hereby understood and agreed that NTT will not
accept any time stated in the work sheet as spent by a particular member of
Commerce One, if such work is not performed in accordance with this Agreement.
5. DELIVERY AND ACCEPTANCE.
5.1 DELIVERABLES. Upon completion of each Deliverable, Commerce
One shall deliver such Deliverable to NTT.
5.2 ACCEPTANCE PROCEDURE. Within twenty (20) days after receipt of
each Deliverable, NTT shall review, test and evaluate the Deliverable for
conformity with the Specifications and shall provide Commerce One with a
written acceptance of the Deliverable, or a written statement of defects to
be corrected. Commerce One shall promptly correct such defects, if any, and
return the Deliverable to NTT for retesting, review and reevaluation, and NTT
shall, within twenty (20) days of such redelivery, again provide Commerce One
with a list of defects which need to be corrected, if any. Failure of NTT to
provide Commerce One with a statement of acceptance or defects within the
applicable acceptance period shall be deemed
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acceptance by NTT of the Deliverable. The foregoing procedure shall be
repeated until acceptance of each Deliverable by NTT; provided that if a
Deliverable is rejected five or more times by NTT and Commerce One has used
all reasonable efforts to correct the rejected Deliverable to bring it into
conformity with the Specifications, NTT will accept the Deliverables.
Notwithstanding the foregoing, Commerce One agrees to discuss with NTT the
possibility of redefining the specifications for the Deliverable.
5.3 FINAL ACCEPTANCE. Upon NTT's acceptance of each Deliverable,
Commerce One shall promptly provide NTT with one (1) master copy of the
Deliverable for use in accordance with the terms of this Agreement. NTT shall
not remove any copyright, trademark or other Intellectual Property rights notice
placed by Commerce One on the master copies.
6. MARKETING. The parties agree to negotiate in good faith a definitive
agreement describing the commercial relationship between the parties for
establishment of an electronic procurement service utilizing the Software for
use within the Field of Use (as defined above) on pricing terms as favorable as
those pricing terms offered by Commerce One to any similarly situated third
party under a Comparable Marketing Agreement. For purposes of this Section,
"Comparable Marketing Agreement" means a marketing agreement that (i) exists as
of the effective date of the definitive agreement between NTT and Commerce One,
(ii) is for the same products and services and (iii) has substantially the same
scope, terms and conditions as the definitive agreement entered into between NTT
and Commerce One. It is understood that such definitive agreement will contain
an exclusivity provision as broad as that set forth in Section 2.6 above,
subject to the parties' agreement on the scope of NTT's performance obligations,
as well as other terms and conditions to be negotiated in good faith by the
parties. [*]
7. OWNERSHIP OF PROPRIETARY RIGHTS.
7.1 SOFTWARE. The Software is protected by both United States
copyright law and international copyright treaty provisions. NTT agrees to
reproduce the Commerce One Intellectual Property rights notices and all other
legal notices, including but not limited to other proprietary notices and
notices mandated by governmental entities, on all complete or partial copies or
transmissions, if any, of the Software. As between Commerce One and NTT,
Commerce One or its licensors, as applicable, retain sole and exclusive
ownership of all right, title and interest in and to the Software and all
Intellectual Property rights relating thereto. In addition, Commerce One shall
own all rights in any copy, translation, modification, adaptation or derivative
work of the Software, and NTT hereby assigns all rights in them to Commerce One.
Without limiting the foregoing, NTT shall own all Intellectual Property rights
directly related to any additional features to the Software that NTT develops
independently and without input from Commerce Once, provided that the software
developed by NTT has a substantial use that does not infringe any Commerce One
patent rights. Without limiting the obligations set forth in Section 2.6 above,
if NTT files any patents or patent applications whose claims read on the
manufacture, sale or use of the Software, then NTT shall promptly give notice to
Commerce One in writing of such application or filing, and negotiate in good
faith a license grant to Commerce
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[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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One related to such claims made by NTT, including the right for Commerce One
to grant sublicenses to its customers and distributors, on reasonable and
customary terms and conditions to be negotiated in good faith between NTT and
Commerce One. NTT further agrees to assign all other modifications and
customizations to Commerce One that NTT develops in the exercise of all other
rights granted by Commerce One to NTT under this Agreement. NTT shall
physically identify the Software and any related materials as owned by
Commerce One. All rights not expressly granted hereuner are reserved by
Commerce One and its licensors. NTT shall physically identify the Software
and any related materials as owned by Commerce One. All rights not expressly
granted hereunder are reserved by Commerce One and its licensors.
7.2 COMMERCE ONE TECHNOLOGY. As between NTT and Commerce One,
Commerce One shall own all right, title and interest in and to the Commerce
One Technology. NTT hereby irrevocably assigns, and agrees to assign, to
Commerce One all of its right, title and interest in and to the Commerce One
Technology. NTT agrees to, and to cause its employees, agents and consultants
to, execute such documents and perform such acts, as may be reasonably
necessary to perfect Commerce One's rights as set forth in this Section 7 and
to obtain, enforce and defend Intellectual Property rights in and to the
Commerce One Technology.
7.3 DELIVERABLES INCLUDING NTT CONFIDENTIAL INFORMATION. If NTT
provides Commerce One with any NTT Confidential Information as defined in
Section 11 below, Commerce One and NTT agree to discuss in good faith the
ownership of any Deliverables containing such NTT Confidential Information:
Provided however, NTT shall have no obligation to provide any NTT
Confidential Information if the parties cannot resolve such ownership to the
mutual satisfaction of both parties.
7.4 RIGHT TO DEVELOP INDEPENDENTLY. Without limiting the intent of
Section 2.6 above, NTT understands and acknowledges that Commerce One is in
the business of developing products and providing consulting services similar
to those provided for NTT for other parties based upon the same tools and
knowledge base, and NTT agrees that nothing in this Agreement will impair
Commerce One's right to provide the same services or develop for itself or
others deliverables substantially similar to, or performing the same or
similar functions as, the Deliverables under this Agreement.
7.5 USER GROUP. During the term of this Agreement, NTT will have
the right to participate in any "user group" forums which Commerce One may
establish from time to time for the purpose of exchanging information and
ideas regarding the establishment of similar electronic procurement services.
8. COMPENSATION.
8.1 LICENSE FEE. NTT shall pay Commerce One the nonrefundable,
noncreditable license fees ("License Fees") set forth in EXHIBIT F.
8.2 SERVICE FEES. In consideration for performing the services
listed in the Statement of Work, NTT shall pay Commerce One the
nonrefundable, noncreditable service fees
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("Service Fees") set forth on EXHIBIT F. All fees quoted and payments made
shall be in U.S. Dollars. Invoices shall be due and payable within [*] days
of the receipt date of invoice. NTT shall reimburse Commerce One for any
out-of-pocket expenses, if accompanied by the payment evidence, that are
actually incurred by Commerce One in performing under each Statement of Work.
8.3 LATE PAYMENT AND TAXES.
(a) Any amounts due hereunder and not paid within [*] of the
receipt date of invoice shall accrue interest at the rate of one and one-half
percent (1.5%) per month or the maximum rate permitted by applicable law,
whichever is less, determined and compounded on a daily basis from the date due
until the date paid. NTT shall be responsible for all sales taxes, use taxes and
similar taxes and charges of any kind imposed by any federal, state or local
governmental entity for products and/or services provided under this Agreement,
excluding only taxes based solely upon Commerce One's net income.
(b) All payments by NTT specified hereunder are expressed as net
amounts and shall be made free and clear of, and without reduction for, any
withholding taxes. Any such taxes which are otherwise imposed on payments to
Commerce One shall be the sole responsibility of NTT. NTT shall provide Commerce
One with official receipts issued by the appropriate taxing authority or such
other evidence as is reasonably requested by Commerce One to establish that such
taxes have been paid. If Commerce One uses a foreign tax credit received by
Commerce One as a result of the payment of withholding taxes by NTT and thereby
reduces the amount of U.S. income tax that Commerce One otherwise would have
paid, Commerce One shall refund to NTT the amount of such reduction with respect
to such foreign tax credit.
9. INDEMNIFICATION.
9.1 COMMERCE ONE INDEMNIFICATION. If an action is brought against NTT
claiming that the Software infringes any United States patent, or any copyright
or trade secret rights of a third party, Commerce One shall defend NTT and shall
pay the damages and costs finally awarded against NTT, or settlements entered
into by Commerce One on NTT's behalf, in the action, but only if (a) NTT
notifies Commerce One promptly and in writing upon learning that the claim might
be asserted, (b) Commerce One has sole control over the defense of the claim and
any negotiation for its settlement or compromise, and (c) NTT cooperates and
assists in the defense or settlement of the claim, as reasonably requested by
Commerce One. The indemnity set forth herein will not apply if and to the extent
that the infringement claim results from (a) a correction, modification or
unauthorized merged portion of the Software not provided by Commerce One, (b)
the failure to promptly install an update, (c) the combination of the Software
with items not provided by Commerce One, or (d) the performance of services or
development of customizations to the Software by Commerce One pursuant to a
specific design submitted by NTT.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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If NTT's use of the Software is enjoined by a court of competent
jurisdiction, or if Commerce One wishes to minimize its liability hereunder,
Commerce One may, at its option and expense, either (a) substitute a
substantially equivalent non-infringing item, (b) modify the infringing item
so that it no longer infringes but remains functionally equivalent, (c)
obtain for NTT the right to continue using such item, or (d) terminate the
licenses set forth herein with respect to the allegedly infringing Software
and refund the portion of the License Fees attributable to such Software.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, THE FOREGOING
STATES THE ENTIRE LIABILITY AND OBLIGATION OF COMMERCE ONE AND ITS LICENSORS
WITH RESPECT TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY PATENT,
COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE,
OR OTHERWISE ARISING OUT OF THIS AGREEMENT.
9.2 NTT INDEMNIFICATION. NTT shall indemnify and hold harmless
Commerce One from and against any damages and costs finally awarded against
Commerce One, or settlements entered into by NTT on Commerce One's behalf, in
connection with any claims, actions, suits or proceedings brought by third
parties arising out of or relating to the use by NTT of the Software, but
only if (a) Commerce One notifies NTT promptly and in writing upon learning
that the claim might be asserted, (b) NTT has sole control over the defense
of the claim and any negotiation for its settlement or compromise, and (c)
Commerce One cooperates and assists in the defense or settlement of the
claim, as reasonably requested by NTT. The indemnity set forth herein will
not apply if and to the extent that: (i) the claim, action, suit or
proceeding results from the negligence or willful misconduct of Commerce One
or any officer, director, employee, affiliate, agent, consultant or
representative of Commerce One, or breach of the Agreement by Commerce One or
any officer, director, employee, affiliate, agent, consultant or
representative of Commerce One; or (ii) it would be inconsistent with
Commerce One's indemnification obligations to NTT under Section 9.1.
10. LIMITATION OF LIABILITY.
If either party shall sustain any damage due to any willful
misconduct or negligence by the other party or breach by the other party of
its obligations under this Agreement, the damage-sustained party shall be
entitled to claim, against the other party, recovery of actually proven
damage but only to the extent of damage which shall arise as direct
consequences thereof and to such limit not exceeding the total amount of fees
set forth in Section 8.1 and 8.2 above.
IN NO EVENT WILL COMMERCE ONE OR ANY OF ITS LICENSORS BE LIABLE FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER
(INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE,
BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION
WITH OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR THE USE
OR INABILITY TO USE THE SOFTWARE, OR THE FURNISHING, PERFORMANCE OR USE OF
THE DELIVERABLES OR SERVICES PERFORMED HEREUNDER, WHETHER BASED UPON
CONTRACT, TORT OR ANY OTHER LEGAL THEORY, INCLUDING NEGLIGENCE,
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EVEN IF COMMERCE ONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS LIMITATION SHALL APPLY NOT WITHSTANDING ANY FAILURE OF THE ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
IN NO EVENT WILL NTT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL,
INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION,
LOSS OF DATA OR OTHER PECUNIARY LOSS), IN CONNECTION WITH OR ARISING OUT OF
OR RELATED TO THIS AGREEMENT, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER
LEGAL THEORY, INCLUDING NEGLIGENCE, EVEN IF NTT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
11. CONFIDENTIALITY.
"Confidential Information" of Commerce One means the Software, this
Agreement, including the Statements of Work, the Deliverables, any trade
secrets, data, documentation or other information relating to or used in the
Software or Deliverables, or any other information relating to the work
performed under the Statement of Work or Commerce One's business or product
plans, marketing information, finances, or other similar information of a
proprietary or confidential nature. "Confidential Information" of NTT means this
Agreement, including the Statement of Work information of a nontechnical nature
concerning NTT's business plans, finances, marketing information, or other
similar information of a proprietary or confidential nature. NTT will not
provide Commerce One with any NTT Confidential Information, including the
information which will be acquired through the remote access to NTT's computers
pursuant to Section 2.4 without Commerce One's prior written approval. In the
event Commerce One shall require access to technical information considered
confidential to NTT, Commerce One agrees to enter into a mutually acceptable
confidentiality agreement with NTT for the limited purpose of the required
disclosure. Confidential Information that is in written, graphic, machine
readable or other tangible form shall be marked "Confidential," "Proprietary" or
in some other manner to indicate its confidential nature. If Confidential
Information is disclosed orally, it shall be confirmed at the time of disclosure
as confidential and be reduced to written summary and delivered to the receiving
party within forty-five (45) days after disclosure and marked "Confidential,"
"Proprietary" or in some other manner to indicate its confidential nature. Each
party shall not use Confidential Information of the other party except as
authorized herein or otherwise authorized in writing, shall implement reasonable
procedures to prohibit the disclosure, unauthorized duplication, misuse or
removal of the other party's Confidential Information, shall not disclose such
Confidential Information to any third party, and shall only disclose the
Confidential Information to those of its directors, employees, subsidiaries and
advisors who need access to such information to exercise the rights and fulfill
the obligations set forth herein. Without limiting the foregoing, each of the
parties shall protect the Confidential Information using at least the same
procedures and degree of care that it uses to prevent the disclosure of its own
confidential information of like importance, but in no event less than
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reasonable care. Should any portion of the Confidential Information be
disclosed or used, the receiving party shall cooperate fully with the
disclosing party to enforce its proprietary rights.
The parties understand, however, that any of the following information is
not subject to this confidentiality requirement:
(1) information which at the time of disclosure was or thereafter becomes
in the public domain through no act or omission of the recipient;
(2) information which prior to disclosure was already in the recipient's
possession either without limitation on disclosure to others or
subsequently becoming free of such limitation;
(3) information obtained by the recipient from a third party having an
independent right to disclose the information;
(4) information which is independently developed by the recipient without
using the Confidential Information; or
(5) information that the receiving party is required to disclose by any
court order or government action; provided that the receiving party
gives the disclosing party at least 30 days' advance written notice to
seek a protective order relating to any such disclosure and, provided,
further, that the receiving party will only furnish the portion of the
Confidential Information that it is required to disclose.
12. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
12.1 LIMITED WARRANTY. Commerce One warrants to NTT that for a
period of [*] from the date of acceptance (the "Warranty Period"), the
Software and/or Deliverable, as applicable, will perform substantially in
accordance with the applicable Specifications when operated on a system which
meets the requirements specified by Commerce One in such Specifications.
In case where the Software and/or Deliverable does not function as
warranted due to any cause not attributable to NTT, Commerce One shall use
commercially reasonable efforts to repair or replace such malfunction without
any charge to NTT, and in case where said repair or replacement is not completed
by Commerce One within a reasonable period of time, the License Fees or Service
Fees set forth in Sections 8.1 and 8.2, respectively, shall be refunded by
Commerce One as applicable. In case of the License Fees, such refund shall be in
full during the first [*] of the Warranty Period. During the final six months of
the Warranty Period, Commerce One will refund the portion of License Fees
attributable to such Software less a reasonable amount for use based on straight
line depreciation over a [*] period. In case of the Service Fees, such refund
shall be as determined by the parties in good faith.
_____________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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12.2 DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS SECTION 12, COMMERCE ONE AND ITS LICENSORS MAKE NO WARRANTIES EXCEPT AS
SPECIFICALLY PROVIDED IN THIS SECTION 12, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, THE SERVICES PERFORMED
UNDER THIS AGREEMENT OR THE STATEMENT OF WORK, OR THE DELIVERABLES, AND
COMMERCE ONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
13. TERM AND TERMINATION.
13.1 TERM. This Agreement shall commence on the Effective Date and
shall be terminated on the end of the Pilot Period or the day otherwise
agreed to by both parties hereto, unless earlier terminated as follows: (a)
if NTT fails to make any payment due within [*] after receiving written
notice from Commerce One that such payment is delinquent, Commerce One may
terminate this Agreement on written notice to NTT at any time following the
end of such [*] period; or (b) if either party materially breaches any term
or condition of this Agreement and fails to cure that breach within [*] after
receiving written notice of the breach stating the notifying party's intent
to terminate, the nonbreaching party may terminate this Agreement on written
notice at any time following the end of such [*] day period.
13.2 EFFECT OF TERMINATION. Upon the expiration or termination of this
Agreement for any reason NTT shall immediately pay to Commerce One all amounts
due and outstanding as of the date of such termination or expiration, and the
parties shall return or destroy, at the other parties discretion, all originals
and all copies of such Confidential Information, including all copies of the
Software or portions thereof and any related materials, and if destroyed,
provide written certification of destruction. The following sections shall
survive the expiration or termination, for any reason, of this Agreement: 7.1,
7.2, 8, 9, 10, 11, 12, 13.2 and 14.
14. MISCELLANEOUS.
14.1 FORCE MAJEURE. Neither party will incur any liability to the
other party on account of any loss or damage resulting from any delay or failure
to perform all or any part of this Agreement, except for the failure to meet any
financial obligation, if such delay or failure is caused, in whole or in part,
by events, occurrences, or causes beyond the control and without negligence of
the parties; provided that NTT shall be excused from payment for monies due and
owing by NTT to Commerce One for a period not to exceed 10 days during the
period of such impossibility, which period may be extended by mutual agreement.
Such events, occurrences, or causes will include, without limitation, acts of
God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions.
_______________________________
[*]= CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT
TO THE OMITTED PORTIONS.
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14.2 INDEPENDENT CONTRACTORS. The relationship between NTT and
Commerce One hereunder is that of independent contractors and nothing herein
will be deemed to create a joint venture, partnership or agency relationship
between the parties for any purpose.
14.3 SUBCONTRACTORS. Commerce One may use subcontractors in
connection with the performance of services hereunder, subject to NTT's prior
written consent which consent shall not be unreasonably withheld.
14.4 NO SOLICITATION. During the term of this Agreement and for one
(1) year thereafter, NTT agrees not to solicit the employment of any employee
or consultant of Commerce One.
14.5 WAIVER. Any waiver of the provisions of this Agreement or of a
party's rights or remedies under this Agreement must be in writing to be
effective. Failure, neglect, or delay by a party to enforce the provisions of
this Agreement or its rights or remedies at any time will not be construed
and will not be deemed to be a waiver of such party's rights under this
Agreement and will not in any way affect the validity of the whole or any
part of this Agreement or prejudice such party's right to take subsequent
action.
14.6 SEVERABILITY. If any term, condition, or provision in this
Agreement is found to be invalid, unlawful or unenforceable to any extent,
the parties shall endeavor in good faith to agree to such amendments that
will preserve, as far as possible, the intentions expressed in this
Agreement. If the parties fail to agree on such an amendment, such invalid
term, condition or provision will be severed from the remaining terms,
conditions and provisions, which will continue to be valid and enforceable to
the fullest extent permitted by law.
14.7 AMENDMENT. This Agreement may not be amended, except by a
writing signed by both parties.
14.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which will be deemed to be an original and such counterparts together
will constitute one and the same agreement.
14.9 GOVERNING LAW. This Agreement will be interpreted and
construed in accordance with the laws of the State of California, without
regard to conflict of law principles or the 1980 UN Convention on Contracts
for the International Sale of Goods.
14.10 ARBITRATION.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, including whether either or both of the parties
have satisfied their obligation to negotiate in good faith under Section 6 or
Section 12 of this Agreement, shall be determined by final and binding
arbitration: (i) in Santa Clara, California, in accordance with the
commercial rules of the American Arbitration Association ("AAA"), in case NTT
requests an arbitration; and (ii) in Tokyo, in accordance with the commercial
arbitration rules of the Japan Commercial Arbitration Association ("JCAA"),
in case Commerce One requests an arbitration. The arbitration
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shall be conducted in the English language and by three arbitrators appointed
in accordance with said rules. Each party shall bear its own expenses in
connection with such arbitration.
(b) Notification of any claim that a party has not fulfilled its
obligation under Section 6 or Section 12 of this Agreement ("Notice") must be
delivered within thirty (30) calendar days after the expiration of the Marketing
Date or the conclusion of the Warranty Period as applicable. Each party shall
prepare a written report setting forth its position within thirty (30) calendar
days of receipt of the Notice.
14.11 NONASSIGNMENT/BINDING AGREEMENT. Neither this Agreement nor
any rights under this Agreement may be assigned or otherwise transferred by NTT,
in whole or in part, whether voluntary or by operation of law, including by way
of sale of assets, merger or consolidation, without the prior written consent of
Commerce One, which consent will not be unreasonably withheld. Notwithstanding
the foregoing, at the time of NTT's reorganization (the "Reorganization") as
prescribed in the Supplementary Provisions to the Law Concerning Partial
Amendment to the Nippon Telegraph and Telephone Corporation Law (Law Xx. 00 xx
0000 xx Xxxxx), XXX may assign this Agreement to one of the entities (the
"Replacing Entity") to be established pursuant to such Reorganization. Upon
prior written notice to Commerce One, the Replacing Entity shall replace NTT as
a party to this Agreement and assume all of NTT's rights and obligations
hereunder in writing, and in such event, Commerce One agrees to release and
discharge NTT from any further obligations under this Agreement. Subject to the
foregoing, this Agreement will be binding upon and will inure to the benefit of
the parties and their respective successors and assigns.
14.12 ENTIRE AGREEMENT. This Agreement (including the Exhibit(s)
and any addenda hereto signed by both parties) contains the entire agreement of
the parties with respect to the subject matter of this Agreement and supersedes
all previous communications, representations, understandings and agreements,
whether oral or written, between the parties with respect to said subject
matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMMERCE ONE, INC. NTT
By:__________________________________ By:_______________________________
Name:________________________________ Name:_____________________________
Title:_______________________________ Title:____________________________
