EXHIBIT 10.18
AMENDED AND RESTATED
SUBSCRIPTION LICENSE AGREEMENT
This Amended and Restated Subscription License Agreement (this
"Agreement") is entered into on this 9th day of October, 2001 and is deemed
effective as of October 1, 2001 ("Effective Date") by and between VerticalNet,
Inc. ("VNI") and VerticalNet Enterprises LLC, formerly known as Tradeum, Inc.
which d/b/a VerticalNet Solutions ("VNS"), on the one hand, and Converge, Inc.,
a Delaware corporation ("Converge"), on the other hand.
RECITALS
WHEREAS, VNI, VNS and Converge entered into a Subscription License
Agreement dated December 19, 2001, and amended same pursuant to a First
Amendment to Subscription License Agreement dated as of January 31, 2001 (the
"Original SLA"); and
WHEREAS, as a financial accommodation in favor of Converge, VNI, VNS and
Converge desire to enter into this Agreement which, as of the Effective Date,
will supersede the Original SLA in its entirety, except as specified herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth below, and intending to be legally bound, the parties agree as
follows:
1. Amendment and Restatement of Original SLA; Definitions.
1.1 Amendment and Restatement of Original SLA. This Agreement amends
and restates the Original SLA in its entirety, except as specified herein. The
provisions of this Agreement including, without limitation, the provisions of
Section 3.1.1, reflect a financial accommodation in favor of Converge.
1.2 Definitions. As used in this Agreement, the following terms
shall have the respective meanings assigned to them below:
1.2.1 "Affiliate" means, when used with reference to a party,
any individual or entity directly or indirectly Controlling, Controlled by or
under common Control with such party.
1.2.2 "API Documentation" means documentation for a Trade
Secret Module that describes its input and output formats and content, and that
is sufficient for a person of ordinary skill in the industry to enhance, update
and maintain the Products with respect to which the Trade Secret Module's
application program interface(s) interact.
1.2.3 "Business Day" means a day other than a Saturday, Sunday
or federal holiday.
1.2.4 "Control" (including all derivations thereof) means,
with respect to a party, the direct or indirect ownership of at least 50% of the
outstanding voting securities of a party, or the right to control the policy
decisions of such party.
1.2.5 "Converge Marketplace" means a Public Marketplace
operated by or for Converge or any Converge Subsidiary, which Public Marketplace
serves (other than through incidental use) only the High Technology Industry,
including, without limitation, the Converge Web Site.
1.2.6 "Converge Non-Renewal Election" has the meaning ascribed
to such term in Section 9.6 of the Maintenance and Support Agreement.
1.2.7 "Converge Remedy Election Date" means the date on which
a Converge Remedy Election (as such term is defined in Section 10.3.2) occurs.
1.2.8 "Converge-Requested Enhancement" has the meaning
ascribed to such term in the Maintenance and Support Agreement.
1.2.9 "Converge Subsidiary" means any corporation or other
entity that is wholly-owned, directly or indirectly, by Converge.
1.2.10 "Converge Web Site" means a web site owned and operated
by or for Converge or any Converge Subsidiary, such as the web site at
xxx.xxxxxxxx.xxx, or any successor(s) to such web site, which web site or
successor(s) shall be designed to serve primarily the High Technology Industry.
1.2.11 "Deliverables" shall mean the "Deliverables" provided
by VNS to Converge under the PSA.
1.2.12 "Deployed Products" means Products that have been
implemented and are being utilized by Converge, or that are the subject of a
statement of work or other similar document executed by Vert and Converge as of
the relevant date in question and pursuant to which such Products will be
implemented for utilization by Converge, on an ongoing basis in conjunction with
the maintenance, enhancement and operation of any Converge Marketplace,
including any Enhancements and Maintenance Updates to such Products that have
been released as of such date.
1.2.13 "Derivative Works" means works that are based on
underlying works and that would be copyright infringements if prepared without
the authorization of the copyright owners of the underlying works.
1.2.14 "Documentation" means the documentation for the
Products that is made generally available by Vert to users or licensees of such
Products and, with respect to Products that have been customized for Converge,
any supplemental documentation for such Products that is provided by VNS to
Converge pursuant to the Maintenance and Support Agreement.
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1.2.15 "Enhancement" means a Vert-General Release Enhancement
or a Converge-Requested Enhancement.
1.2.16 "Escrow Agreement" means the Software Escrow Agreement
among VNI, VNS, Converge and the Escrow Agent entered into pursuant to the
Original SLA.
1.2.17 "Escrow Agent" means Fort Xxxx Escrow Services, Inc.
1.2.18 "Future Products" means any Products of the type
described in clause (a) of Section 1.2.30 that are released by Vert after the
Effective Date.
1.2.19 "High Technology Industry" means entities doing
business in the computing, electronic components, telecommunications (including
cellular) equipment, networking equipment and/or consumer electronics markets.
1.2.20 "Initial Deployed Products" means the Deployed Products
as of the Effective Date.
1.2.21 "Intellectual Property" shall mean any and all trade
secrets, patents, copyrights, trademarks, service marks, trade names, domain
names, trade dress, URLs, brand features, know-how and similar rights of any
type under the laws of any applicable governmental authority, including, without
limitation, all applications and registrations relating to any of the foregoing.
1.2.22 "Intellectual Property Rights" shall mean all rights in
and to Intellectual Property.
1.2.23 "Maintenance and Support Agreement" means the
Maintenance and Support Agreement dated as of the Effective Date among VNS, VNI
and Converge.
1.2.24 "Maintenance and Support Services" has the meaning
ascribed to such term in the Maintenance and Support Agreement.
1.2.25 "Maintenance Updates" has the meaning ascribed to such
term in the Maintenance and Support Agreement.
1.2.26 "Object Code" means computer programming code in
compiled, machine readable format, running, to the extent available, on each of
Unix (at least Tru64 and HP-UX) and Windows NT (or their successor operating
systems), together with all related end-user or installation manuals and other
similar Documentation.
1.2.27 "Party" or "party" means Vert, VNI and/or VNS, as
applicable, on the one hand, and Converge on the other hand.
1.2.28 "Personnel" means agents, employees, independent
contractors, temporary employees or subcontractors engaged or appointed by
Converge, VNI or VNS, respectively.
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1.2.29 "Product Term" means the period that commenced on the
"Effective Date" under the Original SLA and shall end on the soonest of (a)
Xxxxx 00, 0000, (x) the Converge Remedy Election Date, or (c) the Vert Remedy
Election Date.
1.2.30 "Products" means (a) all present and future software
products and tools, including separately identified modules contained therein,
that are owned by VNI or any VNI Subsidiary or licensed by Vert with the right
to grant the necessary sublicense right to Converge, except where such
sublicense right has been granted to Vert solely for the purpose of reselling
the third party software on a stand-alone basis and for which Vert customarily
separately charges a substantial additional license fee to its sublicensees, and
that are made generally available by VNI or any VNI Subsidiary, on either a
stand-alone basis or as part or component of a service or another Product
provided by or for VNI or any VNI Subsidiary, during the Product Term (whether
or not generally available, in development or planned as of the Effective Date),
including, without limitation, the products, tools and separately identified
modules on Exhibit A hereto; and (b) all Vert-General Release Enhancements to
such software products and tools that are released by Vert during the Product
Term, and (c) all Maintenance Updates provided by Vert to Converge under the
Maintenance and Support Agreement; and (d) all Converge-Requested Enhancements
provided by Vert to Converge under the Maintenance and Support Agreement; and
(e) all Vert-Owned Deliverables.
1.2.31 "Professional Services Agreement" means the
Professional Services Agreement, dated as of December 19, 2000, between VNS and
Converge, which was terminated as of the Effective Date pursuant to the PSA
Termination Agreement.
1.2.32 "Prohibited Change in Control of Converge" means the
occurrence of (a) a tender offer, stock purchase, other stock acquisition,
merger, consolidation, recapitalization, reverse split or other transaction, as
a result of which any person or entity that is a competitor of Vert at the time
of such occurrence (i) becomes the beneficial owner (as defined in Rule 13-d
under the Securities Exchange Act of 1934, as amended), directly or indirectly,
of securities of Converge (or any of its successors or permitted assigns)
representing more than 50% of the voting stock of Converge (or of any of its
successors or permitted assigns) or representing more than 50% of the combined
voting power with respect to the election of directors of Converge's then
outstanding securities (or those any of Converge's successors or permitted
assigns), (ii) obtains the ability to appoint a majority of the Board of
Directors of Converge (or of the Board of Directors or equivalent governing body
of any of Converge's successors or permitted assigns), or (iii) obtains the
ability to direct the operations or management of Converge (or of any of its
successors or permitted assigns), or (b) the sale or other transfer by Converge
(or any of its successors or permitted assigns) of all or substantially all of
its assets to a competitor of Vert at the time of such sale or transfer or a
liquidation or dissolution of Converge (or any of its successors or permitted
assigns) where all or substantially all of its assets are distributed to a
competitor of Vert at the time of such distribution or transfer.
1.2.33 "Prohibited Change in Control Remedy Election Date"
means the date on which a Prohibited Change in Control Remedy Election (as such
term is defined in Section 12) occurs.
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1.2.34 "PSA Termination Agreement" means the Termination
Agreement dated as of the Effective Date between VNS and Converge, pursuant to
which the Professional Services Agreement was terminated as of the Effective
Date.
1.2.35 "Public Marketplace" means (a) an electronic
marketplace or exchange through which products or services are offered or sold,
which marketplace or exchange may be accessed concurrently by more than one
buyer and more than one seller ("many-to-many"), including, without limitation,
the public marketplaces or exchanges of the following entities: e2Open, Inc.,
eChip, Inc. and eConnections, Inc., and (b) virtually private views or
instantiations operating within or as a subset of a Public Marketplace
("one-to-many"). Public Marketplace does not include (a) instantiations of an
electronic marketplace designed to facilitate purchase and sale transactions
solely between only one unique and constant buyer buying from one or many
sellers in that marketplace or (b) instantiations of an electronic marketplace
designed to facilitate purchase and sale transactions solely between only one
unique and constant seller selling to one or many buyers in that marketplace. To
the extent a single entity uses any Trade Product to buy and sell using the same
instantiation of such Trade Product, it shall be considered a Public
Marketplace. For the purposes of this definition, when determining whether one
or more buyers or sellers has access to an electronic marketplace or exchange,
the following rules shall apply: (i) if one or more Affiliates of a person or
entity that has access to an electronic marketplace or exchange have access to
the marketplace or exchange, such person or entity and its Affiliate(s) that
have access to the marketplace or exchange shall be counted as one buyer or
seller, as the case may be, (ii) if one or more divisions or operating units of
an entity have access to an electronic marketplace or exchange, such divisions
and/or operating units and the entity shall be counted as one buyer or seller,
as the case may be, and (iii) if one or more divisions or operating units of
Affiliates have access to an electronic marketplace or exchange, such divisions
and/or operating units and the Affiliates shall be counted as one buyer or
seller, as the case may be.
1.2.36 "Source Code" means computer programming code in human
readable, high-level language format, together with all related Documentation
(including programmers' notes and annotations, logic flows, etc.).
1.2.37 "Structured Negotiations Product" means the Product
that is Structured Negotiation 3.0.6 with Converge customization, as delivered
by Vert to Converge for production on August 4, 2001 pursuant to the Original
SLA and the Professional Services Agreement.
1.2.38 "Trade Product" means the following Products: (a)
VerticalNet Auction; (b) Structured Negotiations Product; (c) VerticalNet
RFP/RFQ; (d) VerticalNet Exchange; (e) VerticalNet Catalogs; and (f) all other
generally-available Products that enable buyers and sellers to transact through
an electronic marketplace or exchange. Separately identified modules will only
be considered Trade Products when used in conjunction with Trade Products.
1.2.39 "Trade Secret Module" means any functionally discrete,
separately compilable component of a Product, the design of which is not
generally known or easily discovered by observation or examination, and with
respect to which the Source Code is treated
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by Vert with a degree of care significantly above and beyond the level with
which it normally treats other Source Code, provided that such component
includes application program interface(s) sufficient to allow Converge to enjoy
benefits substantially similar to those that Converge would have enjoyed if it
had obtained Source Code for such component. As of the Effective Date, such
Trade Secret Modules include: the Parametric Matching Engine, C2SF engine,
C2Hub, Business Publisher and Business Publisher Agent. Trade Secret Modules
also shall include functionally discrete components of Future Products that meet
the requirements set forth in the first sentence of this paragraph.
1.2.40 "Vert" means VNI, acting through one or more of the VNI
Subsidiaries, including, without limitation, VNS.
1.2.41 "Vert-General Release Enhancement" means any
modification, improvement or enhancement to a Product that adds program features
or functions not previously included therein, including, without limitation, any
new version or new release of such Product, but excluding any Converge-Requested
Enhancement and/or any Maintenance Update. 1.2.42 "Vert Non-Renewal Election"
has the meaning ascribed to such term in Section 9.5 of the Maintenance and
Support Agreement.
1.2.43 "Vert-Owned Deliverables" means any "Deliverable" under
the Professional Services Agreement that is owned by VNS in accordance with the
terms of that Agreement.
1.2.44 "Vert Remedy Election Date" means the date on which a
Vert Remedy Election (as such term is defined in Section 10.3.1) occurs.
1.2.45 "VNI Subsidiary" means any corporation or other entity
that is wholly-owned, directly or indirectly, by VNI, including, without
limitation, VNS.
1.2.46 "Year" means a twelve-month period commencing on the
Effective Date or an anniversary of the Effective Date.
2. Products Licenses and Usage.
2.1 License Grant: Converge Marketplace Usage. Vert grants to
Converge and the Converge Subsidiaries, on the terms of this Agreement, an
irrevocable, perpetual and worldwide (subject to qualification as set forth in
Section 2.5), non-exclusive, non-transferable (except in the event of a
permitted transfer of this Agreement under Section 14.11), and non-sublicensable
(except as expressly permitted under Section 2.3) right and license:
2.1.1 to use, load, store, transmit, execute, copy, distribute
internally and as otherwise permitted under this Section 2.1, in any medium or
distribution technology whatsoever, known or unknown, display and perform the
Products, in Object Code format only, in connection with the creation,
maintenance, enhancement and operation of any Converge Marketplace, including
unlimited instantiations of the Products in connection therewith;
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2.1.2 to use the Products in connection with other software
products, tools and services that are part of any Converge Marketplace or that
are offered on any Converge Marketplace;
2.1.3 to allow third parties to access and use the Products,
in Object Code format only, at any Converge Marketplace using browser or other
access technology contemplated by the designs of the Products; and
2.1.4 to market, provide and sell to third parties any
Converge products and services based on, using, enabled, facilitated and/or
implemented by the Products, which products and services are provided by
Converge through or via any Converge Marketplace.
2.2 Additional Terms: Converge Marketplace Usage.
2.2.1 No Restrictions on Number of Users. There shall be no
restriction on the number of subscribers to or registered users of, or numbers
of transactions conducted on or through, any Converge Marketplace.
2.2.2 No Additional Fees. Except as otherwise expressly stated
herein, neither Converge nor any Converge Subsidiary shall be obligated to pay
any fees to Vert based upon the number of subscribers to or registered users of,
or numbers of transactions conducted on or through, any Converge Marketplace.
Except as otherwise expressly stated herein, Vert shall not directly charge, or
attempt to assess or collect fees from, third-party users for any use of
Products through or via use of any Converge Marketplace.
2.2.3 Third Party Licenses. When considering whether to
implement any new instantiations of Products, Converge shall consult with Vert
and Vert shall inform Converge whether such new instantiations would require
Vert to pay any significant third-party license fees in connection therewith. In
determining whether to implement such instantiations, Converge shall, in good
faith, consider the financial impact on Vert of multiple or additional
instantiations and will take that factor, as well as Converge's legitimate, good
faith business, financial and technical reasons, into account in making its
determination as to the number of instantiations.
2.2.4 Terms of Use. The Converge Marketplace shall include
terms and conditions of use with substantially similar legal effect to those
included in Exhibit D hereto (the "Terms of Use"). The Terms of Use shall be
displayed on the Converge Marketplace in a manner consistent with customary
industry practice and users of the Converge Marketplace shall be required to
assent to the Terms of Use via click-through, in writing or in some other
reasonable manner. Converge shall permit Vert to enforce, and, to the extent
reasonably requested, assist Vert in enforcing its respective rights under the
Terms of Use against persons and entities acting in violation thereof, to the
extent Converge is permitted to do so by law.
2.3 Sublicenses.
2.3.1 Sublicenses to End Users. Converge and the Converge
Subsidiaries may grant to third parties ("End Users") non-sublicensable,
non-transferable sublicenses to install and use components of the Products
required to be installed within such
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third parties' computing environments (i.e., within their firewalls) for the
sole and limited purpose of permitting such End Users to interact, integrate
and/or interact with any Converge Marketplace, to include the use of services
and products offered at any Converge Marketplace (each, an "End User License").
Converge shall cause all members of the Converge Marketplace to accept
membership agreements that are (a) at least as protective of Vert's Intellectual
Property Rights as this Agreement and (b) are otherwise consistent with
customary and usual agreements of that type in the industry. Converge or the
applicable Converge Subsidiary shall provide VNS with the total number of
instantiations of each Product component being deployed by End Users each
quarter; provided, however, that during any quarter after the first Year in
which the number of instantiations of a Product component is less than ten,
Converge shall not have to report the number of instantiations of such Product
component during such quarter.
2.3.2 Other Sublicenses. Should Converge or the Converge
Subsidiaries desire to grant any other sublicenses with respect to the Products,
the parties shall in good faith discuss and consider whether and under what
conditions Converge and the Converge Subsidiaries would be permitted to grant
such other sublicenses, and any license fees and/or revenue share payments with
respect thereto.
2.3.3 No Additional Sublicenses. Except as expressly set forth
in this Agreement, Converge and the Converge Subsidiaries shall have no rights
to sublicense the license rights granted to them hereunder.
2.4 Source Code Delivery and License Rights.
2.4.1 License to Source Code. Subject to the other terms of
this Agreement, Vert grants to Converge and the Converge Subsidiaries an
irrevocable and perpetual (subject to termination as permitted under Section
2.4.5), worldwide (subject to qualification as set forth in Section 2.5),
non-exclusive, non-transferable (except in the event of a permitted transfer of
this Agreement under Section 14.11), and non-sublicensable right and license to
internally use, load, store, transmit, test, execute, distribute, in any medium
or distribution technology whatsoever, known or unknown, display, modify and
have modified, and make and have made Derivative Works of, any Source Code
furnished to Converge under this Agreement and of the Object Code forms thereof,
solely in connection with use of the Products by Converge and the Converge
Subsidiaries as permitted under this Agreement. All such modifications and
Derivative Works to the Source Code, together with all Object Code forms
thereof, shall be owned by Converge without divesting Vert or its licensor's
ownership of the underlying Source Code and the Object Code forms thereof, and
(b) Converge shall remain permitted to use the underlying Object Code only as
part of the Products licensed to Converge hereunder. Converge shall have the
right to engage third-party consultants that are Converge-certified system
integrators to perform such activities on behalf of Converge; provided, however,
that each such third-party consultant shall agree in advance and in writing to
be bound by obligations of nondisclosure and nonuse no less stringent than those
set forth in this Section 2.4 and in Section 9. Subject to the foregoing
sentence, Converge and the Converge Subsidiaries shall not provide any other
persons or entities with access to any of the Source Code furnished to Converge
under this Agreement.
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2.4.2 Delivery of Source Code for Structured Negotiations
Product. In consideration of the fact that Vert is not obligated to provide
Converge with Maintenance and Support Services for the Structured Negotiations
Product under the Maintenance and Support Agreement or any other agreement, Vert
shall deliver to Converge, within 30 days following the Effective Date, the
Source Code for the Structured Negotiations Product (including, with respect to
Trade Secret Modules, either the Source Code for such Trade Secret Modules or
their corresponding API Documentation) to the extent such Source Code is owned
by VNI or any of the VNI Subsidiaries. Except as otherwise expressly stated in
Section 2.4.3 below, Vert shall have no obligation to deliver to Converge the
Source Code for any Vert-General Release Enhancements or Maintenance Updates to
the Structured Negotiations Product.
2.4.3 Delivery of Source Code on Non-Renewal Election. In the
event of a Vert Non-Renewal Election under the Maintenance and Support
Agreement, Vert shall deliver to Converge, within 30 days following the end of
the then-current term of the Maintenance and Support Agreement, the Source Code
for all Products that are Deployed Products as of the end of such term
(including, with respect to Trade Secret Modules, either the Source Code for
such Trade Secret Modules or their corresponding API Documentation), to the
extent such Source Code is owned by VNI or any of the VNI Subsidiaries. In the
event of a Converge Non-Renewal Election under the Maintenance and Support
Agreement, Vert shall deliver to Converge, within 30 days following the end of
the then-current term of the Maintenance and Support Agreement, the Source Code
for all Initial Deployed Products (including, with respect to Trade Secret
Modules, either the Source Code for such Trade Secret Modules or their
corresponding API Documentation), to the extent such Source Code is owned by VNI
or any of the VNI Subsidiaries.
2.4.4 Source Code for Third-Party Products. With respect to
Products that are licensed to VNI or the VNI Subsidiaries by third parties, Vert
will reasonably cooperate with Converge to arrange for delivery of the Source
Code for such Products to Converge in accordance with the provisions of Section
2.4.2 and Section 2.4.3.
2.4.5 Loss of Rights to Source Code. In the event of a Vert
Remedy Election all rights of Converge under Section 2.4.1 to use, load, store,
transmit, execute, distribute internally, display, modify and have modified, and
make and have made Derivative Works of, any Source Code delivered to Converge
under Section 2.4.2 or Section 2.4.3, and to receive further Source Code for any
Deployed Products or Initial Deployed Products under Section 2.4.3, shall
automatically cease. Furthermore, in the event of a Vert Remedy Election,
Converge shall erase, destroy or return to Vert all Source Code delivered to
Converge under Section 2.4.2 or Section 2.4.3, together with all copies,
modifications and Derivative Works thereof, and, upon Vert's written request,
shall certify its compliance with this Section 2.4.5 to Vert in writing.
2.5 Limitation on Worldwide Rights. Notwithstanding any provision to
the contrary in this Agreement or in the provisions of the Professional Services
Agreement that survive the termination thereof (as set forth in the PSA
Termination Agreement), no right or license is granted by Vert to Converge or
any of the Converge Subsidiaries to: (a) use, copy, display, perform or transmit
the Products listed in Exhibit C as "Japan-Restricted Community Products" or
"Japan-Restricted Content Products" (the "Japan-Restricted Community and
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Content Products") in Japan in connection with the development, marketing,
implementation, operation or provision of any Internet-based
business-to-business vertical trade community that is based on an industry
segment and combines content, community interaction and the ability to conduct
business transactions on-line, including sales of products and services to
businesses, and that has a URL that ends in the top level domain
"________________.xx.xx" (a "Japanese Site"); (b) adapt or translate the
Japan-Restricted Community and Content Products into Japanese in connection with
the development, marketing, implementation, operation or provision of a Japanese
Site; or (c) use a Japanese translation of the software code enabling the
Japan-Restricted Community and Content Products in Japan. Notwithstanding the
foregoing, neither Converge nor any Converge Subsidiary shall be deemed to be
using, reproducing, displaying, performing or transmitting the software code
enabling the Japan-Restricted Community and Content Products, or a Japanese
translation thereof, in Japan if a Converge Web Site containing software code
enabling the Japan-Restricted Community and Content Products, or a Japanese
translation thereof, is hosted outside Japan and is accessed by a third party
inside Japan.
2.6 Use of Documentation. Subject to the other terms of this
Agreement, Converge and the Converge Subsidiaries may access and use the
Documentation, including by private-labeling said Documentation and by
excerpting and/or modifying portions thereof in a manner that is not confusing
or misleading, solely in connection with their use (including ancillary uses,
such as training, marketing and promotion, etc.) of the Products as permitted
under this Agreement.
2.7 Copies. Converge and the Converge Subsidiaries shall be
permitted to make a reasonable number of copies of the Products and the
Documentation for the purposes allowed by this Agreement, which copies shall be
stored at locations under the control of Converge or at the facilities of
Converge's third party hosting and disaster recovery service provider(s).
Converge agrees to maintain, and shall require the Converge Subsidiaries to
maintain, accurate and complete written or electronic records of the number and
location of all copies or partial copies of the Products in their possession or
control, including all back-up and archival copies.
2.8 Third-Party Hosting. Converge and the Converge Subsidiaries
shall have the right to sublicense one or more third-party hosting entities to
reproduce, install, publicly perform, publicly display and host any of the
Products, in Object Code form, on such third party's servers, subject to the
terms of this Agreement. Such sublicenses shall be granted pursuant to written
agreements that authorize such third-party hosting entities to host, operate
and/or maintain such Products solely on behalf of Converge and the Converge
Subsidiaries as permitted hereunder.
2.9 Audit Rights. Each party (the "Auditing Party") shall have the
right reasonably to audit, at its expense, the compliance with this Agreement by
the other party (the "Audited Party") and its Subsidiaries (together with the
Audited Party, the "Auditees"), provided that such audit(s) shall be conducted
during normal business hours and in such a manner as not to unreasonably
interfere with the operations of the Auditees. Any such audit will be conducted
by accountants from a nationally recognized public accounting firm chosen and
engaged by the Auditing Party. If any such audit discloses substantial
unlicensed use of the Products, the Audited Party shall reimburse the Auditing
Party for the reasonable fees and other amounts
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payable by the Auditing Party to the public accounting firm that conducts the
audit. The Auditing Party shall use the information obtained or observed in the
audit solely for the purposes of (a) determining whether the Auditees have
sufficient license rights for their use of the Products and are otherwise
complying with the terms and conditions of this Agreement respecting such use,
and (b) enforcing its rights under this Agreement and any applicable laws. All
such information shall be treated as Confidential Information of the Audited
Party for purposes of this Agreement; provided, however, that the Auditing Party
may use such information as permitted under clause (b) of the foregoing
sentence. Each party shall require each of its Subsidiaries to permit the other
party to conduct the audits authorized hereunder.
2.10 Notice to Users. Converge shall, and shall require the Converge
Subsidiaries to, use reasonable efforts to make all users of the Products
hereunder (including, without limitation, users of any Converge Marketplace that
are permitted to access or use the Products) aware that the Products (a) may
only be used subject to the terms and conditions contained in this Agreement and
the corresponding Documentation for such Products and (b) may not be copied,
transferred or otherwise used in violation of such terms and conditions.
2.11 No Implied Licenses. No license or other rights to the Products
or the Documentation are granted, by implication or otherwise, except as
expressly set forth in this Agreement.
2.12 Delivery. During the Product Term, subject to the provisions of
Section 12, Vert shall offer to deliver to Converge all Future Products and any
Vert-General Release Enhancements promptly following the date on which Vert
makes the same generally available to its other customers, or, if Vert makes
such items available as beta or other early release versions, promptly following
the date on which Vert makes the same available in such format to any of its
other customers; provided, however, that Vert shall not be obligated to provide
Maintenance and Support Services under the Maintenance and Support Agreement for
such pre-release versions, and such pre-release versions shall not be used in a
production environment without Vert's consent). If Converge elects to implement
and deploy any such Future Product or Vert-General Release Enhancement, Vert
shall deliver same to Converge pursuant to Section 2.13. As set forth in Section
12 and notwithstanding any other provision in this Agreement to the contrary,
the Product Term shall not end upon the occurrence of a Prohibited Change in
Control Remedy Election, but Converge's right to receive Future Products
released by Vert after the Prohibited Change in Control Remedy Election Date, as
well as any Vert-General Release Enhancements to such Future Products, shall
automatically terminate. From and after the Prohibited Change in Control Remedy
Election Date, until the end of the Product Term, Vert shall only be obligated
to deliver to Converge Vert-General Release Enhancements to Products that are
Deployed Products as of the occurrence of the Prohibited Change in Control.
2.13 Method of Delivery and Acceptance. Vert will transfer Products
and any associated Documentation by remote telecommunications from the Vert
place of business, to a Converge computer at a Converge place of business
located in the Commonwealth of Massachusetts. If any such Product and/or
associated Documentation cannot be delivered via remote telecommunications to a
Converge computer located at a Converge place of business in the Commonwealth of
Massachusetts, such Product and/or Documentation will be installed by Vert on a
Converge computer located at a Converge place of business in the Commonwealth of
11
Massachusetts, if any. Converge will not obtain title or possession of any
tangible personal property, including any storage media, as a result of the
delivery of any Product or associated Documentation under this Agreement. Each
Product delivered by Vert to Converge will be deemed accepted by Converge upon
Converge's receipt of the complete delivery to a Converge computer located at a
Converge place of business.
2.14 Product List. Vert represents that Exhibit A, in the form
initially attached to this Agreement, is a reasonably complete and correct list
of all Products existing as of the Effective Date.
3. Fees and Payments.
3.1 Fees for Products.
3.1.1 General.
(A) The fees for the license rights granted to the
Products and for Maintenance and Support Services to be provided during the
Product Term are set forth in Part I of Exhibit B hereto. Converge shall pay
such fees to VNS in accordance with the provisions of Part I of Exhibit B. In
addition, Converge's payment obligations under Section 3.1 and Exhibit B of the
Original SLA (described in Part II of Exhibit B hereto) shall survive the
amendment and restatement of the Original SLA pursuant to this Agreement on a
deferred basis (i.e., not be due and payable as long as the payments described
in the first two sentences of this Section 3.1 and in Part I of Exhibit B hereto
are made), and such surviving payment obligations are subject to being released
in full in accordance with the following provisions of this Section 3.1.1.
(B) Subject to the conditions (which may be waived by
VNS pursuant to a written waiver signed by an authorized officer of VNS) that
(i) Converge pays when due each of the payments required to be made by it under
the Part I of Exhibit B hereto and the Maintenance and Support Agreement (and
VerticalNet receives good funds in the amount of each such payment) for the
period from and including the Effective Date to and including May 1, 2002, (ii)
no such payment made by Converge is recovered, recaptured or avoided including,
without limitation, by or on behalf of Converge or any bankruptcy trustee or
creditor of Converge, on or before the Release Date (defined below), and (iii)
Converge does not file for bankruptcy on or before the Release Date, is not
subjected to involuntary bankruptcy proceedings that are not dismissed within 60
days or if earlier, the Release Date, and Converge does not make a general
assignment for the benefit of its creditors on or before the Release Date, then:
(a) upon the receipt by VNS of each payment by Converge under Part I of Exhibit
B hereto, Converge's surviving and deferred payment obligations under the
Original SLA (set forth in Part II of Exhibit B hereto) shall be reduced by an
amount equal to the payment made by Converge (50% of each payment made shall be
applied to reduce Converge's surviving payment obligations under the Original
SLA next becoming due at the time of application; and 50% of each payment made
shall be applied to reduce Converge's surviving payment obligations under the
Original SLA last becoming due at the time of application); and (b) effective on
the later date (the "Release Date") to occur of August 1, 2002 or the 91st day
after Converge has made the payments required to be made by it on May 1, 2002
under Part I of Exhibit B hereto and the
12
Maintenance Agreement, Converge's surviving and deferred payment obligations
under the Original SLA (set forth in Part II of Exhibit B hereto) shall be
forgiven in full and Converge shall be released from all such surviving and
deferred payment obligations in full.
(C) If (1) Converge fails to pay when due any of the
payments required to be made by it under the Part I of Exhibit B hereto or the
Maintenance and Support Agreement (or if VerticalNet does not receive good funds
in the amount of any such payment) for the period from and including the
Effective Date to and including May 1, 2002 and fails to cure such breach within
the applicable cure period specified in this Agreement or in the Maintenance
Agreement, as applicable (and Vert does not waive such default and Vert's right
to receive such payment pursuant to a written waiver signed by an authorized
officer of Vert), or (2) any such payment made by Converge is recovered,
recaptured or avoided, or (3) if Converge files for bankruptcy on or before the
Release Date, is subjected to involuntary bankruptcy proceedings that are not
dismissed within 60 days or if earlier, the Release Date, or if Converge makes a
general assignment for the benefit of its creditors on or before the Release
Date, and Vert does not waive such failure, recovery, recapture, avoidance,
filing or occurrence pursuant to a written waiver signed by an authorized
officer of Vert, then the conditional reduction of, and agreement to forgive
Converge's surviving and deferred payment obligations under the Original SLA
(set forth in Part II of Exhibit B hereto) pursuant to the preceding sentence
shall automatically be terminated, null and void without any further action by
Vert. In such event, any reduction of Converge's surviving and deferred payment
obligations under the Original SLA (set forth in Part II of Exhibit B hereto)
shall be reversed and all such amounts shall be due and owing by Converge, but
such amounts shall be reduced by the amount of any payments that were made by
Converge to Vert under Part I of Exhibit B and were not recovered, recaptured or
avoided after payment was made.
(D) The provisions of this Agreement including, without
limitation, the provisions of this Section 3.1, reflect a financial
accommodation in favor of Converge.
3.1.2 Converge Remedy Election. Subject to the provisions of
Section 3.1.1 relating to the deferral, reduction and release of Converge's
payment obligations under Section 3.1 and Exhibit B of the Original SLA
(described in Part II of Exhibit B hereto), the only event that shall relieve
Converge of its obligation to pay the fees pursuant to Exhibit B shall be a
Converge Remedy Election, which event shall relieve Converge of its obligation
to pay those fees set forth in Exhibit B that first become due and payable after
the Converge Remedy Election Date. For the sake of clarity, subject to the
provisions of Section 3.1.1 relating to the deferral, reduction and release of
Converge's payment obligations under Section 3.1 and Exhibit B of the Original
SLA (described in Part II of Exhibit B hereto), Converge shall remain obligated
to pay all fees set forth in Exhibit B that become due on or before the Converge
Remedy Election Date, but that have not been paid by Converge on or before the
Converge Remedy Election Date.
3.1.3 Vert Remedy Election or Prohibited Change in Control
Remedy Election. Notwithstanding the occurrence of a Vert Remedy Election or a
Prohibited Change in Control Remedy Election, subject to the provisions of
Section 3.1.1 relating to the deferral, reduction and release of Converge's
payment obligations under Section 3.1 and Exhibit B of the Original SLA
(described in Part II of Exhibit B hereto), Converge shall remain obligated to
pay
13
the full amount of all fees set forth in Exhibit B, whether such fees become due
before, on or after the Vert Remedy Election Date or the Prohibited Change in
Control Remedy Election Date.
3.2 Payments. All payments will be made by Converge in U.S. dollars,
without setoff, recoupment or deduction. Amount payable hereunder (other than
fees payable under Section 3.1) will be invoiced to Converge by VNS. Payment of
such invoiced amounts shall be due within 30 days of Converge's receipt of
invoice. All fees and other payments not paid when due shall be subject to late
charges of the lesser of (a) 1.5% per month of the overdue amount or (b) the
maximum permitted under applicable law.
3.3 Taxes. The fees and other payments specified in this Agreement
are exclusive of any sales, use and other taxes on consumption of goods and
services ("Sales Taxes"), however designated or levied, based on this Agreement,
the delivery of the Products or services under this Agreement, or Converge's or
the Converge Subsidiaries' use thereof. In those jurisdictions in which VNS
determines it is required to register, collect and remit Sales Taxes, VNS will
separately invoice Converge for such Sales Taxes (which invoices shall be
payable by Converge as set forth in Section 3.2), collect such Sales Taxes from
Converge and remit such Sales Taxes to the proper taxing authority. In those
jurisdictions in which VNS has determined that it does not have a collection
responsibility, Converge will be required to self-assess and remit any Sales
Taxes due on the purchase of taxable property and services acquired under this
Agreement. Converge will retain ultimate responsibility and liability for
remitting any Sales Taxes due on the purchase of any property and/or services
acquired under this Agreement, including, without limitation, any interest,
penalties or additions attributable to or imposed on or with respect to any such
assessment excluding any taxes imposed upon the net income of either party).
Subject to the express provisions of this Agreement, the parties will cooperate
and use their commercially reasonable efforts to minimize or avoid, to the
maximum extent allowed by law, the obligation to pay any Sales Taxes that may be
levied on payments made under this Agreement or otherwise are chargeable by any
applicable government authority with respect to the Products or services under
this Agreement.
3.4 Tax Withholding. If laws, rules or regulations require
withholding of any taxes imposed upon amounts payable to a party hereunder, the
other party shall make such withholding payments as required and subtract such
withholding payments from the amounts payable to such party. The other party
shall submit reasonable proof of payment of the withholding taxes to such party
within 30 days after obtaining such proof. The parties agree to fully cooperate
with each other, including, without limitation, in the filing of appropriate
certificates of tax exemption, to ensure that any withholding payments required
to be made by the other party are reduced or avoided to the fullest extent
permitted by law. Converge shall be deemed to be the sole payor of payments owed
to VNS under this Agreement and shall not have the right to substitute any
domestic or foreign affiliate for that purpose, and if Converge reincorporates
or otherwise reorganizes as a foreign person that would thereupon cause payments
hereunder to VNS to become subject to withholding, then Converge shall comply
with applicable laws to the extent required and shall gross up the payments
otherwise owed to VNS so that VNS receives, net of withholding taxes, the
amounts VNS would have received if Converge had not substituted a foreign person
or had remained a domestic person.
14
4. Disclaimer of Warranties. WITH THE EXCEPTION OF THE INDEMNITY PROVIDED
IN SECTION 8, VNI AND ALL AFFILIATES OF VNI SPECIFICALLY DISCLAIM ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, QUIET
ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS RELATING TO THE PRODUCTS
AND ANY SERVICES FURNISHED OR OTHERWISE PROVIDED OR TO BE PROVIDED HEREUNDER.
5. Proprietary Rights. The Products and the Documentation are protected by
applicable copyright and other intellectual property laws and international
treaty provisions. As between Vert and Converge, but subject to any contrary
surviving provisions of the Professional Services Agreement (specified in the
PSA Termination Agreement) with respect to Deliverables provided thereunder, and
to the rights and licenses granted to Converge hereunder, Vert and its licensors
own all right, title and interest (including but not limited to all copyrights,
patents, trademarks, trade names and trade secrets and other proprietary rights)
in and to the Products and the Documentation. Converge agrees to reproduce all
copyright, trademark and other proprietary notices contained on or in the
Products or the Documentation, as delivered to Converge, on all copies thereof,
and Converge further agrees not to remove or obscure any such notices. Except as
expressly set forth in this Agreement, Converge acknowledges and agrees that
Vert has no obligation to deliver Source Code under the terms of this Agreement,
or to grant Converge any license to use the Source Code form of the Products.
Except as expressly permitted hereunder, the Products are not to be licensed,
sold, rented, leased or otherwise transferred by Converge. Converge agrees not
to (a) decompile, reverse engineer or disassemble or otherwise attempt to
reconstruct or discover any Source Code or underlying algorithms of the Products
that are provided solely in Object Code form or (b) separate or disassociate any
component parts of the Products (it being understood that this restriction shall
not restrict Converge from separating or disassociating separately identified
modules from Products containing them). Except as expressly set forth in this
Agreement and in the surviving provisions of the Professional Services Agreement
(set forth in the PSA Termination Agreement), Converge shall not modify or
change the Products or the Documentation (except to configure the Products by
means of their user-enabled features) in any manner, nor may Converge create any
Derivative Works of the Products or the Documentation. The provisions of this
Section 5 shall apply equally to the Converge Subsidiaries and Converge shall
ensure that any Converge Subsidiaries provided with access to or use of the
Products are bound thereby.
6. Source Code Escrow.
6.1 Escrow Materials. Vert has delivered to the Escrow Agent, to be
held in escrow pursuant to the Escrow Agreement, true and complete copies of the
Source Code for the Initial Deployed Products (including, with respect to Trade
Secret Modules, either the Source Code for such Trade Secret Modules or their
corresponding API Documentation, with the understanding that Vert may remove the
Source Code for any Trade Secret Module from escrow at the time it places its
corresponding API Documentation into escrow, but excluding the Source Code for
the Structured Negotiations Product) owned by VNI or any of the VNI Subsidiaries
and existing as of the Effective Date. Promptly following the date on which any
other Product owned by VNI or any the VNI Subsidiaries becomes a Deployed
Product under this Agreement,
15
or an Enhancement or Maintenance Update for a Deployed Product becomes generally
available, but in any event at least once per calendar quarter, Vert shall
deliver to the Escrow Agent the Source Code for such other Deployed Products,
Enhancements and Maintenance Updates (including, with respect to Trade Secret
Modules, either the Source Code for such Trade Secret Modules or their
corresponding API Documentation, with the understanding that Vert may remove the
Source Code for any Trade Secret Module from escrow at the time it places its
corresponding API Documentation into escrow) to be held in escrow pursuant to
the provisions of the Escrow Agreement. All of the foregoing materials delivered
by Vert to the Escrow Agent are referred to herein as the "Escrow Materials."
6.2 Release Events. For purposes of this Agreement, the following
shall be deemed "Release Events": (a) VNI becomes insolvent, files for
bankruptcy or is subjected to involuntary bankruptcy proceedings that are not
dismissed within 60 days, or makes a general assignment for the benefit of its
creditors; (b) Vert ceases to offer any Maintenance and Support Services for a
Deployed Product other than as a result of the expiration or termination of the
Maintenance and Support Agreement in accordance with its terms; (c) a Vert
Non-Renewal Election occurs and Vert fails to deliver to Converge the Source
Code for all Deployed Products within the time period specified in Section 2.4.3
above; or (d) a Converge Non-Renewal Election occurs and Vert fails to deliver
to Converge the Source Code for all Initial Deployed Products within the time
period specified in Section 2.4.3 above. Notwithstanding anything to the
contrary herein, (i) if the claimed Release Event is under clause (b) above,
only the Escrow Materials for the Product that is the subject of the Release
Event, together with all associated Maintenance Updates and Enhancements, shall
be subject to release to Converge hereunder; (ii) if the claimed Release Event
is under clause (c) above, only the Escrow Materials for the Deployed Products,
together with all associated Maintenance Updates and Enhancements, shall be
subject to release to Converge hereunder; and (iii) if the claimed Release Event
is under clause (d) above, only the Escrow Materials for the Initial Deployed
Products, together with all associated Maintenance Updates and Enhancements,
shall be subject to release to Converge hereunder.
6.3 Delivery of Escrow Materials. Should Converge desire to obtain
any Escrow Materials due to the occurrence of a Release Event, Converge shall
provide Vert and the Escrow Agent with written notice thereof. The Escrow Agent
shall be instructed to promptly provide a copy of such notice to Vert. Unless
the Escrow Agent receives written notice from Vert contesting the occurrence of
such Release Event within 15 days after Vert receives such copy of Converge's
notice, the Escrow Agent shall be instructed to deliver the relevant Escrow
Materials to Converge forthwith. In the event Vert contests the occurrence of
the Release Event, the matter shall be resolved as expeditiously as possible in
accordance with the dispute resolution provisions of the Escrow Agreement and
the Escrow Materials shall remain in escrow until such time as the matter is
resolved.
6.4 Fees of Escrow Agent. Converge shall pay all fees and other
amounts payable to the Escrow Agent under the Escrow Agreement.
6.5 Escrow of Third-Party Products. With respect to Products that
are licensed to VNI or the VNI Subsidiaries by third parties, Vert will
reasonably cooperate with Converge to arrange for true and complete copies of
the Source Code for such Products to be
16
deposited with the Escrow Agent and to be held in escrow in accordance with the
provisions of this Section 6 and the Escrow Agreement.
7. Limitation of Liability.
7.1 Disclaimer of Certain Damages.
7.1.1 Consequential and Similar Damages. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED IN ANY
MANNER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY
KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED
TO, LOST PROFITS, REVENUES OR BUSINESS OPPORTUNITIES) HOWEVER CAUSED AND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT
PRODUCT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN INFORMED OF THE
POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. The foregoing limitation is
independent of any exclusive remedies available to either party under this
Agreement including any failure of such remedies.
7.1.2 Loss of Data, Usage, Etc. VERT DOES NOT GUARANTEE THAT
THE PRODUCTS WILL OPERATE WITHOUT ERROR OR INTERRUPTION AND VERT SHALL NOT BE
RESPONSIBLE FOR ANY DAMAGES ASSOCIATED WITH LOSS OF DATA OR INTERRUPTION OR LOSS
OF USE OF PRODUCTS RESULTING THEREFROM.
7.2 Sole Remedy. IF A CLAIM OR CAUSE OF ACTION IS ATTRIBUTABLE TO A
PRODUCT OR ANY SERVICES PROVIDED OR TO BE PROVIDED UNDER THIS AGREEMENT, THE
REMEDIES SET FORTH IN THIS AGREEMENT, TO THE EXCLUSION OF THE REMEDIES SET FORTH
IN THE MAINTENANCE AND SUPPORT AGREEMENT, SHALL CONSTITUTE THE SOLE AND
EXCLUSIVE REMEDIES AVAILABLE TO A PARTY FOR SUCH CLAIM OR CAUSE OF ACTION. IF A
CLAIM OR CAUSE OF ACTION IS ATTRIBUTABLE TO A MAINTENANCE UPDATE, ENHANCEMENT OR
ANY SERVICES PROVIDED UNDER THE MAINTENANCE AND SUPPORT AGREEMENT, THE REMEDIES
SET FORTH IN THE MAINTENANCE AND SUPPORT AGREEMENT, TO THE EXCLUSION OF THE
REMEDIES SET FORTH IN THIS AGREEMENT, SHALL CONSTITUTE THE SOLE AND EXCLUSIVE
REMEDIES AVAILABLE TO A PARTY FOR SUCH CLAIM OR CAUSE OF ACTION. For the sake of
clarity, the parties acknowledge that claims concerning Vert's ownership of and
Converge's license rights to any Maintenance Updates, Enhancements or associated
Documentation shall be deemed to have arisen under this Agreement, that claims
with respect to Vert's delivery of any Vert-General Release Enhancements or
associated Documentation, or the performance or non-performance of any
Vert-General Release Enhancements, shall be deemed to have arisen under this
Agreement, and that claims with respect to Vert's delivery of any Maintenance
Updates, Converge-Requested Enhancements or associated Documentation, or the
performance or non-performance of any Maintenance Updates or Converge-Requested
Enhancements, shall be deemed to have arisen under the Maintenance and Support
Agreement. NO LIABILITY SHALL EXTEND UNDER THIS AGREEMENT TO
17
ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, ANY AFFILIATES OF VNI OTHER THAN
VNS, OR THEIR LICENSORS) IF NOT INVOLVED IN THE DEVELOPMENT, LICENSING OR
DELIVERY OF THE PRODUCTS OR ANY SERVICES HEREUNDER.
7.3 Maximum Aggregate Liability. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, THE MAXIMUM LIABILITY OF EACH PARTY TO THE OTHER OR TO ANY THIRD PARTY FOR
CLAIMS FOR DAMAGES, OR CLAIMS FOR INDEMNIFICATION UNDER SECTION 8, IF ANY,
RELATING TO THIS AGREEMENT OR THE PRODUCTS OR SERVICES PROVIDED OR TO BE
PROVIDED HEREUNDER, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT
LIABILITY, NEGLIGENCE OR OTHER TORT, STRICT PRODUCT LIABILITY, THE FAILURE OF
ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE, SHALL NOT
EXCEED: (I) FOR ALL CLAIMS IN THE AGGREGATE, $3,000,000, AND (II) FOR ANY
INDIVIDUAL CLAIM, THE GREATER OF $1,000,000 PER PRODUCT OR THE LIST PRICE OF
SUCH PRODUCT AS OF THE DATE ON WHICH THE CLAIM OR CAUSE OF ACTION FIRST AROSE.
THE FOREGOING LIMITATIONS ON EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER SHALL
BE IN ADDITION TO ANY FEES AND OTHER AMOUNTS DUE AND OWING UNDER SECTION 3. FOR
PURPOSES OF THIS SECTION 7.3, THE TERM "PARTY" MEANS CONVERGE ON THE ONE HAND,
AND VNI AND VNS COLLECTIVELY ON THE OTHER HAND, SO THAT AS TO VNI AND VNS THE
LIMITATIONS IN THIS SECTION 7.3 ARE COLLECTIVE LIMITATIONS AND NOT SEPARATE
LIMITATIONS FOR EACH OF VNI AND VNS.
7.4 Exceptions. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS
SECTION 7 SHALL NOT APPLY WITH RESPECT TO (A) ANY CLAIMS OF BODILY INJURY OR
DAMAGE TO TANGIBLE PERSONAL PROPERTY RESULTING FROM WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE, (B) ANY BREACH OF THE PROVISIONS GOVERNING LICENSE RIGHTS AND
RESTRICTIONS IN SECTION 2, (C) ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS IN
SECTION 9, OR (D) LIABILITY FOR PAYMENT OF INTEREST ADDED BY A COURT OF LAW OR
AN ARBITRATION PANEL TO A JUDGMENT ENTERED IN ANY ACTION OR PROCEEDING UNDER
THIS AGREEMENT.
7.5 Duty to Mitigate. Each party will have a duty to take reasonable
steps to mitigate damages for which the other party is responsible.
7.6 Acknowledgement. Each of the parties acknowledge that the
disclaimers and limitations set forth in this Section 7 are an essential element
of this Agreement between the parties and that the parties would not have
entered into this Agreement without such disclaimers and limitations.
18
8. Indemnification.
8.1 By Vert.
8.1.1 Vert Indemnity. Vert agrees to defend and hold Converge
and its officers, directors, employees and agents harmless from and against any
suit, claim or action by any unaffiliated third party (a "Converge Claim")
alleging that any of the Products, when used within the scope of this Agreement
and its corresponding Documentation, infringe upon or misappropriate any U.S.
patent, European Union Office patent, patent of a country in the European Union,
copyright or trade secret of a third party. Vert further agrees to indemnify
Converge and its officers, directors, employees and agents for any damages,
costs, liabilities, expenses (including, without limitation, attorneys fees) and
settlement amounts payable to unaffiliated third parties in connection with such
Converge Claims. The foregoing obligations shall not extend to any Converge
Claims arising out of or related to (a) a modification of the Products by or at
the direction of anyone other than Vert, to the extent that such modification is
the cause of such infringement; (b) a combination of the Products with any third
party software or equipment neither recommended, approved or authorized by Vert
in writing, whether in any Documentation for the Product or otherwise, to the
extent that such combination is the cause of such infringement; (c) portions of
the Products that are developed based on unique specifications or requirements
provided or selected by Converge, to the extent that such portion is the cause
of such infringement; (d) with respect to any Initial Deployed Product, any
infringement claims concerning any U.S. patent, European Union Office patent or
patent of a country in the European Union issued after the Effective Date; and
(e) with respect to any other Product, any infringement claims concerning any
U.S. patent, European Union Office patent or patent of a country in the European
Union issued after the date such Product becomes a Deployed Product. For the
purposes of this Section 8.1, the term "Products" shall exclude the Vert-Owned
Deliverables and Converge-Requested Enhancements.
8.1.2 Converge Obligation. Vert's obligations to defend,
indemnify and hold Converge harmless are subject to Converge (a) giving Vert
prompt written notice of any such Converge Claim; (b) giving Vert sole control
over the defense and settlement of any such Converge Claim; (c) providing full
cooperation for the defense of any such Converge Claim, at Vert's expense; and
(d) not entering into any settlement or compromise of any such Converge Claim
without Vert's prior written approval.
8.1.3 Mitigation. If Converge is enjoined or is reasonably
likely to be enjoined from using any Products as permitted hereunder by reason
of any actual or threatened Converge Claim for which Vert is required to
indemnify Converge under Section 8.1.1, Vert will, at its own expense, exercise
the first of the following remedies that is practicable: (i) obtain for Converge
the right to continue to use, sell and license the Products as permitted under
this Agreement; (ii) modify Products so they are non-infringing and functionally
equivalent in all material respects to the infringing Products; or (iii) replace
the Products, or other affected Products, with non-infringing ones that are
functionally equivalent in all material respects to the infringing Products;
provided, however, that Vert may seek to provide the remedies in (ii) or (iii)
above prior to seeking to provide the remedy in (i) above only if such decision
would not have a significant adverse impact on Converge's ability to provide
uninterrupted products or services to its customers; provided, however, that
with respect to infringement claims concerning U.S.
19
patents, European Union Office patents or patents of a country in the European
Union, Vert shall in no event be required to incur costs or expenses in excess
of $1,000,000, in the aggregate and regardless of the number of claims involved,
in performing its obligations under this Section 8.1.3. If all of the remedies
set forth in the preceding sentence are neither technically feasible nor
available on commercially reasonable terms, then Vert may, or if the following
remedy is requested by Converge, then Vert shall, require the return of the
affected Products and pay to Converge the list price charged by Vert for such
Products and, with respect to Converge-Requested Enhancements, the amount paid
by Converge for such Enhancements.
8.1.4 Sole Remedy. IF A CLAIM OR CAUSE OF ACTION RELATING TO
THE INFRINGEMENT OR MISAPPROPRIATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR
OTHER INTELLECTUAL PROPERTY RIGHT IS ATTRIBUTABLE TO A PRODUCT (BUT EXCLUDING
ANY VERT-OWNED DELIVERABLES), THE REMEDIES SET FORTH IN THIS SECTION 8, TO THE
EXCLUSION OF THE REMEDIES SET FORTH IN THE PROFESSIONAL SERVICES AGREEMENT THAT
SURVIVE IN ACCORDANCE WITH THE PSA TERMINATION AGREEMENT, SHALL CONSTITUTE THE
SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO CONVERGE FOR SUCH CLAIM OR CAUSE OF
ACTION. IF A CLAIM OR CAUSE OF ACTION RELATING TO THE INFRINGEMENT OR
MISAPPROPRIATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL
PROPERTY RIGHT IS ATTRIBUTABLE TO A DELIVERABLE OR ANY SERVICES PROVIDED UNDER
THE PROFESSIONAL SERVICE AGREEMENT (EXCLUDING ANY UNDERLYING PRODUCTS (OTHER
THAN VERT-OWNED DELIVERABLES) INCLUDED IN SUCH DELIVERABLES), THE REMEDIES SET
FORTH IN THE PROFESSIONAL SERVICES AGREEMENT THAT SURVIVE IN ACCORDANCE WITH THE
PSA TERMINATION AGREEMENT, TO THE EXCLUSION OF THE REMEDIES SET FORTH IN THIS
AGREEMENT, SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO
CONVERGE FOR SUCH CLAIM OR CAUSE OF ACTION.
8.2 By Converge.
8.2.1 Converge Indemnity. Converge agrees to defend and hold
Vert and its officers, directors, employees and agents harmless from and against
any suit, claim or action by any unaffiliated third party (a "Vert Claim")
relating to (a) the operation of and/or business conducted on or through any
Converge Marketplace, except to the extent that the occurrence giving rise to
such Vert Claim is a suit, claim or action by any unaffiliated third party
alleging that any Product, when used within the scope of the rights granted to
Converge under this Agreement, infringes upon or misappropriates any U.S. or
foreign patent copyright, trade secret or other intellectual property rights of
a third party, but such exception shall not apply to the extent that the alleged
infringement or misappropriation (1) arises out of or relates to (A) a
modification of the Product by Converge or at the direction of Converge by
anyone other than Vert, to the extent that such modification is the cause of
such infringement; (B) a combination of the Product with any third party
software or equipment neither recommended, approved or authorized by Vert in
writing, whether in any Documentation for the Product or otherwise, to the
extent that such combination is the cause of such infringement; or (C) portions
of the Product that are developed based on unique specifications or requirements
provided or selected by Converge, to the extent that such portion is the cause
of such infringement; and (2) concerns any
20
U.S. patent, European Union Office patent or patent of a country in the European
Union issued on or before the date on which such modified, combined or developed
Product is first implemented or utilized by Converge on an ongoing basis in
conjunction with the maintenance, enhancement and operation of the Converge
Marketplace (such date, a "Converge Modification Deployment Date"); (b) the use
of any Product outside the scope the rights granted to Converge under this
Agreement; or (c) any claim associated with any Converge product or service to
the extent not based on Products or service provided by Vert hereunder. Converge
further agrees to indemnify Vert and its officers, directors, employees and
agents for any damages, costs, liabilities, expenses (including, without
limitation, attorneys fees) and settlement amounts payable to unaffiliated third
parties in connection with such Vert Claims.
8.2.2 Vert Obligation. Converge's obligations to defend,
indemnify and hold harmless Vert are subject to Vert (a) giving Converge prompt
written notice of any such Vert Claim; (b) giving Converge sole control over the
defense and settlement of any such Vert Claim; (c) providing full cooperation
for the defense of any such Vert Claim, at Converge's expense; and (d) not
entering into any settlement or compromise of any such Vert Claim without
Converge's prior written approval.
8.3 Expiration of Obligations. The rights and obligations of each
party under this Section 8 shall automatically terminate with respect to any
Converge Claims not identified by Converge to Vert in writing, and any Vert
Claims not identified by Vert to Converge in writing, as of the second
anniversary of (a) with respect to Converge Claims concerning any Initial
Deployed Product, the Effective Date; (b) with respect to Converge Claims
concerning any other Product, the date on which such Product becomes a Deployed
Product; and (c) with respect to Vert Claims, the sooner of the applicable
Converge Modification Deployment Date or the date the Product Term ends.
9. Confidential Information.
9.1 Definition of Confidential Information. "Confidential
Information" as used in this Agreement shall mean any and all proprietary or
non-public information of a party (including, without limitation, any Source
Code furnished by or to Converge hereunder) whether in oral, written or other
tangible form that the party disclosing the information (the "Discloser")
designates as being confidential or which, under the circumstances surrounding
disclosure, the receiving party (the "Recipient") knows or has reason to know
should be treated as confidential.
9.2 Nondisclosure and Nonuse Obligations. Each of the parties, as
Recipient, agrees that such Recipient will not use, disseminate, or in any way
disclose any Confidential Information of the other party, as Discloser, to any
person, firm or business, except to the extent necessary for the performance of
such party's obligations or the enjoyment of such party's rights and benefits
hereunder, and for any other purpose such Discloser may hereafter authorize in
writing. Each of the parties, as Recipient, agrees that such Recipient shall
treat all Confidential Information of the other party, as Discloser, with the
same degree of care as such Recipient accords to such Recipient's own
Confidential Information, but in no case less than reasonable care. Each of the
parties, as Recipient, agrees that such Recipient shall disclose Confidential
Information of the other party, as Discloser, only to those of such Recipient's
employees who need to know such information, and such Recipient certifies that
such Recipient employees have
21
previously agreed, either as a condition to employment or in order to obtain the
Confidential Information of the Discloser, to be bound by terms and conditions
substantially similar to those terms and conditions applicable to such Recipient
under this Agreement. Each of the parties, as Recipient, shall immediately give
notice to the other party, as Discloser, of any unauthorized use or disclosure
of Discloser's Confidential Information. Each of the parties, as Recipient,
agrees to assist the other party, as Discloser, in remedying any such
unauthorized use or disclosure of Discloser's Confidential Information.
9.3 Exclusions from Nondisclosure and Nonuse Obligations. The
obligations under this Section 9 of each of the parties, as Recipient, with
respect to any portion of the Confidential Information of the other party, as
Discloser, shall not apply to such portion that Recipient can document: (a) was
in the public domain at or subsequent to the time such portion was communicated
to Recipient by Discloser through no fault of Recipient; (b) was rightfully in
Recipient's possession free of any obligation of confidence at or subsequent to
the time such portion was communicated to Recipient by Discloser; (c) was
developed by employees or agents of Recipient independently of and without
reference to any information communicated to Recipient by Discloser; or (d) was
communicated by Discloser to an unaffiliated third party free of any obligation
of confidence. A disclosure by either of the parties, as Recipient, of
Confidential Information of the other party, as Discloser, either (i) in
response to a valid order by a court or other governmental body; (ii) as
otherwise required by law; or (iii) as necessary to establish the rights of
either party under this Agreement, shall not be considered to be a breach of
this Agreement by Recipient or a waiver of confidentiality for other purposes;
provided, however, that Recipient shall provide prompt prior written notice
thereof to Discloser to enable Discloser to seek a protective order or otherwise
prevent such disclosure.
9.4 Confidentiality of this Agreement. The parties hereto agree to
keep the terms of this Agreement confidential and not to divulge any part
thereof to any third party except: (a) with the prior written consent of the
other party; (b) to any governmental body having jurisdiction to request and to
read the same; (c) as otherwise may be required by law or legal process; or (d)
to legal counsel representing either party. Notwithstanding the foregoing, no
disclosure of this Agreement shall be made pursuant to clauses (b) or (c) of the
foregoing sentence without the disclosing party first giving the other party
reasonable notice prior to the intended disclosure so as to allow the other
party sufficient time to seek a protective order or otherwise assure the
confidentiality of this Agreement as that other party shall deem appropriate.
Each party agrees not to file this Agreement as an exhibit to its SEC filings
without first redacting and requesting confidential treatment for any
information reasonably considered by the other party to be confidential. Such
other party shall inform the first party of any such information it wishes to
redact and request confidential treatment for within five Business Days
following the date such other party is requested to do so in writing. Nothing
herein shall prohibit either party from complying with applicable securities or
other laws, rules or regulations.
10. Term; Events of Default; and Remedies.
10.1 Term. The term of this Agreement shall commence upon the
Effective Date and continue in perpetuity unless terminated by parties in
accordance with the provisions of Section 14.1.
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10.2 Events of Default. The occurrence of any one or more of the
following acts, events or occurrences shall constitute an "Event of Default"
under this Agreement: (a) either party becomes insolvent, files for bankruptcy
or is subjected to involuntary bankruptcy proceedings that are not dismissed
within 60 days, or makes a general assignment for the benefit of its creditors;
(b) either party breaches any material provision of this Agreement (excluding a
payment breach by Converge of the type described in clause (c) below, which is
covered by such clause (c)) and the result is the non-breaching party
experiencing a substantial deprivation of the benefits to which the
non-breaching party is entitled under this Agreement, or of the value of the
non-breaching party's Intellectual Property Rights, which material breach is not
cured by the breaching party within 45 days after the breaching party's receipt
of the non-breaching party's written notice specifying the breach in detail;
provided, however, that if the breach is of such a nature that it may be cured,
but it may not reasonably be cured within such 45-day period, the non-breaching
party may not terminate this Agreement unless such breach is not cured by the
breaching party on or before the 90th day after the breaching party's receipt of
the non-breaching party's notice of breach if breaching party has commenced
substantial efforts to cure the breach within the initial 45-day period and has
continued in good faith to work to cure the breach as soon as reasonably
practicable thereafter, or (c) Converge fails to pay when due any amounts
payable under Section 3.1 and Exhibit B hereto and fails to cure such breach
within three (3) Business Days after Vert gives Converge written notice
specifying the breach.
10.3 Remedies.
10.3.1 Remedies of Vert. Immediately upon the occurrence of an
Event of Default by Converge under Section 10.2(a), (b) or (c), Vert shall have
the right, but not the obligation, to make a "Vert Remedy Election," exercisable
by delivering written notice thereof to Converge within 10 Business Days after
the occurrence of such Event of Default by Converge. Vert shall not have the
right to terminate this Agreement upon the occurrence of an Event of Default by
Converge under Section 10.2(a), (b) or (c) or any other breach by Converge under
this Agreement.
10.3.2 Remedies of Converge. Immediately upon the occurrence
of an Event of Default by Vert under Section 10.2, Converge shall have the
right, but not the obligation, to make a "Converge Remedy Election," exercisable
by delivering written notice thereof to Vert within 10 Business Days after the
occurrence of such Event of Default by Vert. Converge shall not have the right
to terminate this Agreement upon the occurrence of an Event of Default by Vert
under Section 10.2 or any other breach by Vert under this Agreement.
11. Effect of Remedy Election. Upon the occurrence of a Vert Remedy
Election or a Converge Remedy Election, the Product Term shall end effective on
the Vert Remedy Election Date or the Converge Remedy Election Date, as
applicable, and each party shall erase, destroy or return to the other party all
copies of the Confidential Information of or provided by such party, and, upon
such other party's written request, shall certify its compliance with this
Section 11 to the other party in writing. Effective as of the Vert Remedy
Election Date or the Converge Remedy Election Date, as applicable, Converge's
right to receive Future Products released by Vert thereafter, as well as any
Vert-General Release Enhancements to such Future Products, shall automatically
terminate. Notwithstanding the foregoing provisions of this Section 11, (a) with
respect to and for so long as any licenses granted to Converge respecting
Products survive a
23
Vert Remedy Election or a Converge Remedy Election, as applicable, Converge
shall not be required to erase, destroy or return such Products or any
Confidential Information of VNI or any of the VNI Subsidiaries respecting such
Products, and (b) with respect to and for so long as any licenses granted to
Converge respecting Source Code survive a Converge Remedy Election, Converge
shall not be required to erase, destroy or return such Source Code or any
Confidential Information of VNI or any of the VNI Subsidiaries respecting such
Source Code. With respect to the payment obligations of Converge relating to the
effect or lack of effect of a Converge Remedy Election or Vert Remedy Election,
respectively, the provisions of Section 3.1.2 and/or Section 3.1.3 shall apply.
12. Prohibited Change in Control of Converge. If a Prohibited Change in
Control of Converge shall occur at any time during the term of this Agreement,
Vert shall have the right, but not the obligation, to make a "Prohibited Change
in Control Remedy Election," exercisable by delivering written notice thereof to
Converge within 10 Business Days after Vert receives written notice of the
occurrence of the Prohibited Change in Control of Converge, or the Prohibited
Change in Control of Converge is publicly announced. Upon the occurrence of a
Prohibited Change in Control Remedy Election, the Product Term shall not end but
Converge's right to receive Future Products released by Vert after the
Prohibited Change in Control Remedy Election Date, as well as any Vert-General
Release Enhancements to such Future Products, shall automatically terminate.
From and after the Prohibited Change in Control Remedy Election Date, until the
end of the Product Term, Vert shall only be obligated to deliver to Converge
Vert-General Release Enhancements to Products that are Deployed Products as of
the occurrence of the Prohibited Change in Control. With respect to the payment
obligations of Converge relating to the lack of effect of a Prohibited Change in
Control Remedy Election the provisions of Section 3.1.3 shall apply.
13. Compliance with U.S. Export Laws. Converge acknowledges that the laws
and regulations of the United States may restrict the export and re-export of
commodities and technical data of United States origin, including the Products
and the Documentation in any medium. Each party agrees that it will not export
or re-export the Products or the Documentation in any form without the
appropriate United States and foreign government licenses.
14. General.
14.1 Termination and Survival. This Agreement and all rights and
licenses granted herein may be terminated only upon written agreement of the
parties. Upon any such termination, Section 1, Section 2.9, Section 4, Section
5, Section 7, Section 8, Section 9, Section 13 and Section 14 shall survive.
14.2 Notices. All notices permitted or required under this Agreement
("Notices") shall be in writing and shall be delivered as follows with notice
deemed given as indicated (a) by personal delivery when delivered personally;
(b) by overnight courier upon written verification of receipt; or (c) by
certified or registered mail, return receipt requested, five days after deposit
in the mail. All Notices shall be properly addressed as follows, or to such
other addresses as may be specified in a Notice given hereunder:
24
If to VNI or VNS: with a copy to:
Attn: General Counsel Attn: Xxxxxxx X. Xxxxxxx
VerticalNet, Inc. Xxxxxx, Xxxxx & Bockius, LLP
000 Xxxxxxxxxx Xxxx 0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000 Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
If to Converge:
Attn: General Counsel
Converge, Inc.
Four Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
14.3 Force Majeure. Except for the obligation to pay monies due,
neither party shall be liable hereunder by reason of any failure or delay in the
performance of its obligations hereunder (except for the payment of money) on
account of strikes, riots, insurrection, fires, flood, storm, explosions, acts
of God, war, governmental action, labor conditions, earthquakes, or any other
cause which is beyond the control of such party.
14.4 Waiver. An effective waiver under this Agreement must be in
writing signed by the party waiving its right. The failure of either party to
require performance by the other party of any provision hereof shall not affect
the full right to require such performance at any time thereafter; nor shall the
waiver by either party of a breach of any provision hereof be taken or held to
be a waiver of subsequent breaches of that or any other provision hereof.
14.5 Severability. In the event that any provision of this Agreement
shall be unenforceable or invalid under any applicable law or be so held by
applicable court decision, such unenforceability or invalidity shall not render
this Agreement unenforceable or invalid as a whole, and, in such event, such
provision shall be changed and interpreted so as to best accomplish the
objectives of such provisions within the limits of applicable law or applicable
court decisions.
14.6 Headings. The section headings appearing in this Agreement are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or extent of such section or in any way affect such
section.
14.7 No Solicitation. During the Product Term and for a period of
one year thereafter, Converge and Vert each agree not to directly or indirectly
solicit, encourage or cause others to solicit or encourage any employees or
individual independent contractors of the other party to terminate their
employment or independent contracting relationship with the other party and
become an employee or independent contractor of the soliciting party or its
Affiliate. This provision does not prohibit a party's responding to unsolicited
employment inquiries and/or any indirect solicitations and other employment
activities (e.g., job postings, advertising of positions) that are not
specifically targeted at any particular individual. In the event of a
Vert-Non-Renewal Election, the provisions of this Section 14.7 shall cease to
apply with respect to Converge's solicitation or encouragement of any of the VNE
Service Personnel (as such term is
25
defined in the Maintenance and Support Agreement) to terminate their employment
or independent contracting relationship with Vert and become an employee or
independent contractor of Converge or its Affiliate.
14.8 Choice of Law; Waiver of Jury Trial; Limitation of Action. This
Agreement and performance under this Agreement shall be governed by the laws of
the United States of America and of the Commonwealth of Pennsylvania as applied
to agreements entered into and to be performed entirely within Pennsylvania
between Pennsylvania residents, excluding its conflicts of law provisions. The
United Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to this Agreement. The parties expressly
waive any right to a jury trial regarding disputes related to this Agreement.
Unless otherwise provided by local law without the possibility of contractual
waiver or limitation, any legal or other action related to this Agreement must
be commenced no later than two years from the date on which the cause of action
arose.
14.9 No Agency. Nothing contained herein shall be construed as
creating any agency, partnership or other form of joint enterprise between the
parties or to allow either party to bind the other or incur any obligation on
its behalf.
14.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument. This Agreement shall
become binding when any one or more counterparts hereof, individually or taken
together, bear the signatures of both parties hereto. For the purposes hereof, a
facsimile copy of this Agreement, including the signature pages hereto, shall be
deemed an original.
14.11 Assignment. A party may assign this Agreement to any
Affiliate. Otherwise, neither party may assign this Agreement without the other
party's prior written consent (not to be unreasonably withheld). No transfer of
this Agreement by operation of law or change in Control of a party, including,
without limitation, by merger, consolidation or sale or other transfer of equity
interests, shall be considered an assignment for purposes of this Section 14.11.
However, if a Prohibited Change in Control of Converge occurs, Vert shall have
the right to make a Prohibited Change in Control Remedy Election under Section
12. This Agreement will bind and inure to the benefit of the parties and their
respective successors and permitted assigns.
14.12 No Third-Party Beneficiaries. Except as expressly stated in
Section 8, nothing in this Agreement is intended to confer benefits, rights or
remedies unto any person or entity other than the parties and their successors
and permitted assigns.
14.13 Non-Exclusive Agreement. Except as expressly stated herein,
this Agreement is not exclusive as to either party, and, subject to the express
provisions of this Agreement, each party will have the right to conduct any
other business in which it may now or hereafter be engaged.
14.14 Entire Agreement. This Agreement, together with the PSA
Termination Agreement, the Maintenance and Support Agreement and the Escrow
Agreement, are the entire
26
agreement between Vert and Converge relating to the subject matter of this
Agreement. This Agreement shall supersede any prior agreement or understanding,
whether written or oral, and any other communications between Vert and Converge
relating to the subject matter of this Agreement. This Agreement may only be
amended by a writing specifically referencing this Agreement, which has been
signed by authorized representatives of each party.
27
IN WITNESS WHEREOF, the undersigned do hereby execute this parties have
caused this Agreement to be signed by their duly authorized representatives as
of the date first written above in this Agreement.
VerticalNet, Inc. Converge, Inc.
By:__________________________________ By:________________________________
_____________________________________ ___________________________________
(Print Name) (Print Name)
Title:_______________________________ Title:_____________________________
VerticalNet Enterprises LLC
By:__________________________________
_____________________________________
(Print Name)
Title:_______________________________
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Exhibit A
Current Products
VERTICALNET(TM) APPLICATIONS:
Auction/Reverse Auction
Exchange
Aggregated Catalog
Distributed Catalog
RFQ
Structured Negotiations
Spend Analysis
VERTICALNET(TM) TOOLS (FOR INTERNAL DEVELOPMENT USE ONLY):
Ontology Builder
XEM Visibility Portal
Content Publisher
Intelligent Publishing Agent
VERTICALNET(TM) PLATFORM:
XEM Platform
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Exhibit B
Fees
Part I
The fees due and owing from Converge under Section 3.1 of the Agreement to which
this Exhibit is Attached are as follows:
$4,500,000 payable on the Effective Date
$4,500,000 payable on November 1, 2001
$4,000,000 payable on December 1, 2001
$4,500,000 payable on February 1, 2002
$4,500,000 payable on May 1, 2002
Part II
Converge's payment obligations under the Original SLA that survive the amendment
and restatement of the Original SLA but are to be deferred and reduced pursuant
to Section 3.1 of the Agreement to which this Exhibit is Attached, subject to
the conditions set forth in such Section 3.1, are as follows:
$12,500,000 payable on January 31, 2002
$12,500,000 payable on July 31, 2002
$12,500,000 payable on January 31, 2003
$7,500,000 payable on July 31, 2003
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Exhibit C
Japan-Restricted Community and Content Products
VERTICALNET CONTENT REPOSITORY VIRTUAL PRODUCTS
- Article Editor - Virtual Workplace
- Download Editor - Virtual Office
- Storefront Editor - Virtual Eckfield
- E-commerce Center Editor
- Storefront Migration Q/A
- Document Editor
- Document Bucket Editor
- Link Bucket Editor
- Query Editor
- Author Editor
- Source Editor
- Tag Creator
- Tag Editor
- External Tag Treeview
- External Editor Tools
VERTICALNET ONLINE TOOLS
- New Online Creation Management
- Existing Online Management Tools
VERTICALNET EDITOR TOOLS
- Online Management
- Ad Manager
- Newsletter Management
- Association Creation/Management
- Buyer's Guide Database Management
- Career Center Creation/Management
- Chat Management
- RFP/RFQ management
- Admin User Management
- Events Calendar Management
- Industry Deals Interface
- Editor's Biography Management
- Discussion Forum Interface
- Survey Management
- User Registration Management
- Bookstore Market Place Management
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Exhibit D
Terms of Use
LIMITED LICENSE
The Converge Marketplace contains technology, information and other materials,
such as text, graphics, logos, button icons, images, audio clips, features and
functionality that we have licensed from third parties (collectively
"Third-Party Content"). You may use, access and display the Third-Party Content
solely in connection with your use of the Converge Marketplace and any services
we provide through the Converge Marketplace, and only for so long as you comply
with these terms and conditions of use. Any other use, reproduction,
modification, distribution or republication of the Third-Party Content without
the prior written consent of our third-party licensors is strictly prohibited.
COPYRIGHT AND PROPRIETARY RIGHTS
The Third-Party Content is the property of our third-party licensors or their
licensors and is protected by United States and international copyright law,
trademark law and/or patent law, as well as other state, federal and
international laws and regulations. Except as expressly stated above, neither we
nor our third-party licensors grant any rights to you under any copyrights,
trademarks, patents or other laws and regulations respecting the Third-Party
Content.
DISCLAIMERS
NEITHER WE NOR OUR THIRD-PARTY LICENSORS REPRESENT OR WARRANT THAT THE
THIRD-PARTY CONTENT IS ERROR-FREE, OR THAT ANY ERRORS IN THE THIRD-PARTY CONTENT
CAN OR WILL BE CORRECTED. NOR DO WE OR OUR THIRD PARTY LICENSORS MAKE ANY
REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, CURRENCY,
QUALITY, PERFORMANCE OR SUITABILITY OF ANY THIRD-PARTY CONTENT. TO THE FULLEST
EXTENT PERMISSIBLE BY LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES OF ANY
KIND RESPECTING THE THIRD-PARTY CONTENT, EITHER EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATIONS OF LIABILITY
IN THE EVENT OF ANY PROBLEM WITH THE THIRD-PARTY CONTENT, YOU AGREE THAT YOUR
SOLE REMEDY IS TO CEASE USING SUCH CONTENT. UNDER NO CIRCUMSTANCES SHALL WE OR
OUR THIRD-PARTY LICENSORS, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS OR REPRESENTATIVES, BE LIABLE FOR ANY
DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING FROM OR IN CONNECTION WITH
THE THIRD-PARTY CONTENT OR YOUR USE OF SUCH CONTENT, WHETHER UNDER A THEORY OF
BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN WE OR OUR
THIRD-PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
32
DAMAGES. THESE LIMITATIONS OF LIABILITY SHALL NOT APPLY TO THE EXTENT PROHIBITED
BY LAW.
INDEMNIFICATION
You agree to defend, indemnify and hold harmless us and our third-party
licensors, and our and their respective officers, directors, shareholders,
employees, agents and representatives, from and against any and all claims,
actions, demands, liabilities, losses or damages (including reasonable legal and
accounting fees) arising out of or related to your use of the Third-Party
Content or any violation of these terms and conditions of use.
THIRD-PARTY BENEFICIARY
Our licensors of the Third-Party Content shall be third-party beneficiaries of
these terms and conditions of use, and shall be entitled to separately enforce
such terms and conditions of use against you.
33
