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EX.10.2
LICENSING AGREEMENT
This LICENSING AGREEMENT is dated January 21, 2000 and made effective
as of October 1, 1999, between World Wide Technology, Inc., a Missouri
corporation ("WWT"), and xxxxxxxx.xxx LLC, a Delaware limited liability company
("TCB", each of WWT and TCB being a "PARTY" and together the "PARTIES").
RECITALS
A. TCB has been a division of WWT and is now a separate, majority-owned
subsidiary of WWT. TCB provides an Internet source of material and
information to telecommunications companies through the use of software
and related technology licensed to or developed by WWT, and combined by
WWT into the Global Portal Platform.
B. Because WWT's ownership of TCB may be reduced, the Parties wish to
state formally the terms on which the Global Portal Platform will
continue to be provided to TCB.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Parties agree as
follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
Various terms used in this Agreement are defined in the Definitional
Appendix; the defined terms used in this Agreement begin with a capital letter.
Various interpretative matters for this Agreement are also set forth in the
Definitional Appendix. The Definitional Appendix is an integral part of this
Agreement.
ARTICLE 2. TERM
This Agreement commences on the Effective Date and will continue in
effect unless terminated by the agreement of the Parties or in accordance with
Article 13.
ARTICLE 3. GRANT OF LICENSE
3.1. GRANT OF LICENSE. Subject to the terms and limitations of this
Agreement and the payment of the License Fee, WWT hereby grants to TCB,
and TCB hereby accepts from WWT, a non-exclusive, world-wide, perpetual
license to use, modify, develop applications for, market, distribute
and sublicense the Global Portal Platform and the WWT Background
Technology.
3.2. REPRESENTATION AND WARRANTY. WWT represents and warrants that the
license granted to TCB under Section 3.1 includes the rights to all
software and other technology that are required for TCB to use the
Global Portal Platform in the same manner and to the same extent as
used by WWT and TCB prior to the Effective Date, including without
limitation
*Certain material has been omitted from this exhibit pursuant to a
request for confidential treatment and filed separately with the
Securities and Exchange Commission.
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the WWT Background Technology and, subject to Section 6.5, all
third-party software products incorporated or integrated with or used
in connection with the Global Portal Platform or provided by WWT as
part of the Global Portal Platform.
ARTICLE 4. LICENSE FEE
In consideration of the license granted herein, TCB agrees to pay WWT
the License Fee not later than the first to occur of (i) September 30, 2001, or
(ii) 10 days after the closing of any public offering of equity interests in TCB
or its successors, or (iii) 10 days after the closing of the sale or other
transfer of the beneficial ownership of any equity interests in TCB or its
successor if immediately after such sale or transfer persons who held the
beneficial ownership of 100% of the combined voting power all of the equity
interests in TCB immediately prior to such sale or transfer do not, immediately
thereafter, own more than 50% of the combined voting power of all equity
interests in TCB.
ARTICLE 5. ENHANCEMENTS
5.1. INCORPORATION OF ENHANCEMENTS. So long as the Global Portal Platform
used by TCB is resident on the hardware maintained at the facilities of
WWT, WWT shall have the right to incorporate any and all Enhancements
to the Global Portal Platform made by WWT as part of the Global Portal
Platform, without the payment of additional amounts to or by TCB,
whether or not such Enhancements were made as the result of Consulting
Services provided by WWT to TCB under the Management Services
Agreement. Such Enhancements shall be subject to the provisions of this
Agreement, including without limitation the confidentiality provisions
and the provisions regarding the sole and exclusive ownership thereof
by WWT.
5.2. WWT RIGHT TO LICENSE ENHANCEMENTS. In the event that TCB requests that
WWT make Enhancements to the Global Portal Platform, WWT and TCB shall
mutually agree upon the terms upon which WWT shall perform such
services, and TCB shall have the right to incorporate such Enhancements
in the Global Portal Platform and to license or sub-license such
Enhancements to third parties, consistent with the terms of this
Agreement.
ARTICLE 6. TRANSFER TO TCB FACILITIES
6.1. INSTALLATION AT TCB FACILITIES. The Global Portal Platform shall
initially be resident and operated on hardware installed and maintained
at the facilities of WWT. On not less than 90 days advance written
Notice to WWT, TCB may elect to install a copy of the Global Portal
Platform to hardware installed and maintained at the facilities of TCB.
6.2. DELIVERY OF SOURCE CODE. At the time of such installation of the Global
Portal Platform at the facilities of TCB, WWT shall provide TCB with a
copy of the source code for the portions of the Global Portal Platform
for which WWT has the legal right to do so (the "WWT SOURCE CODE"). The
use of the WWT Source Code by TCB shall be subject to the limitations
set forth in Article 7 of this Agreement. WWT and TCB shall jointly
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select an escrow agent (the "ESCROW AGENT") and shall enter into a
source code escrow agreement with such Escrow Agent on terms mutually
agreeable to the parties thereto (the "ESCROW AGREEMENT"). WWT shall
place one copy of the WWT Source Code in escrow with the Escrow Agent,
to be held by such Escrow Agent pursuant to the terms of the Escrow
Agreement. The Escrow Agreement shall provide, among other things, for
release of the WWT Source Code to TCB upon the written Notice from TCB
that WWT has failed to provide TCB with a copy of the WWT Source Code
as required under this Agreement, or upon the occurrence of any of the
Events of Default by WWT described in paragraphs (a), (b), (c) or (d)
of Section 13 of this Agreement. WWT shall update the WWT Source Code
held by the Escrow Agent from time to time as required to keep a
current copy of the WWT Source Code on deposit with the Escrow Agent.
The costs and expenses of establishing and maintaining the WWT Source
Code escrow and of updating the WWT Source Code deposit shall be shared
equally by WWT and TCB.
6.3. PROPRIETARY NOTICES. TCB shall not remove or alter any trademark,
copyright, or other proprietary notice contained on or in the Global
Portal Platform. WWT's copyright notice and other proprietary legends
and labels affixed on the Global Portal Platform as delivered by WWT
must also be affixed on and in all copies. The inclusion of a copyright
notice on any software product or documentation shall not cause, or be
construed to cause, it to be a published work.
6.4. TRAINING AND MAINTENANCE. Upon WWT's receipt of written Notice from TCB
under Section 6.1, WWT agrees to negotiate with TCB in good faith to
reach agreement on the terms and conditions under which WWT will
provide: (a) such training as may be reasonably required for TCB to
operate and maintain the Global Portal Platform at its own facilities,
and (b) future maintenance and support of the Global Portal Platform
resident at the facilities of TCB.
6.5. THIRD-PARTY LICENSES. TCB acknowledges and agrees that at the time of
such installation of the Global Portal Platform at the facilities of
TCB, TCB may be required to obtain its own licenses to third-party
software products incorporated or integrated with or used in connection
with the Global Portal Platform or provided by WWT as part of the
Global Portal Platform, and that the procurement of such licenses shall
be the sole responsibility and expense of TCB.
ARTICLE 7. INTELLECTUAL PROPERTY RIGHTS
7.1. OWNERSHIP BY WWT. All of the Global Portal Platform and the media on
which it may be delivered to TCB remain the sole and exclusive property
and trade secret of WWT, except to the extent that the Global Portal
Platform may contain or be derived from portions of materials provided
by third party suppliers under license to WWT. Notwithstanding anything
in this Agreement to the contrary, the parties acknowledge and agree
that, except for such rights as are expressly granted to TCB hereunder
and such rights of third parties described above, WWT has and shall
have all right, title and interest, including all copyrights and
property rights, in and to the Global Portal Platform, and all
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Enhancements thereto, whether developed by or on behalf of WWT or TCB,
and all Intellectual Property Rights related thereto and all economic
benefits resulting therefrom. Nothing in this Agreement, nor any other
act or omission of WWT, shall be construed as a grant, transfer,
conveyance, assignment or concession by WWT, or the consent by WWT to
any such grant, transfer, conveyance, assignment or concession, to TCB
of any copyright, property right, ownership or other proprietary right
in the Global Portal Platform, any Enhancements thereto developed by or
on behalf of WWT or TCB, the Intellectual Property Rights related
thereto, or the economic benefits resulting therefrom.
7.2. DERIVATIVE WORKS. Following the delivery of the source code to TCB
pursuant to Section 6.2 hereof, TCB may create derivative works of the
Global Portal Platform and will own all right, title and interest in
and to such derivative works and the intellectual property rights
thereto, and may use such derivative works to the same extent that TCB
is entitled to use the Global Portal Platform.
ARTICLE 8. RESTRICTIVE COVENANTS
8.1. COVENANT BY WWT. For so long as TCB has the right to use the Global
Portal Platform under this Agreement, WWT agrees that it shall not,
directly or indirectly, use, or authorize or allow others to use, the
Global Portal Platform to provide products or services by any vendor or
to any customer if such vendor or customer either (a) derives more than
25% of its revenue from the provision of telecommunications products or
services, or (b) generates annual gross revenue from the provision of
telecommunications products or services in excess of $100,000,000 for
the immediately preceeding calendar year.
8.2. THIRD-PARTY OPPORTUNITIES.
(a) TCB shall have the right, at any time and from time to time,
to pursue opportunities to license the Global Portal Platform
to any third party in any field of use (a "THIRD-PARTY
OPPORTUNITY"). In the event that TCB is unable to conclude a
definitive agreement within a reasonable time with respect to
the Third-Party Opportunity, then TCB shall Notify WWT in
writing, describing in reasonable detail such Third-Party
Opportunity. Thereafter, WWT shall have the right to seek to
obtain a definitive agreement with respect to the Third-Party
Opportunity.
(b) In the event that WWT becomes aware of any Third-Party
Opportunity, WWT shall Notify TCB in writing of such
Third-Party Opportunity, describing in reasonable detail such
Third-Party Opportunity. WWT shall not pursue such Third-Party
Opportunity unless TCB does not conclude a definitive
agreement with respect to such Third-Party Opportunity within
a reasonable time after having received Notice thereof from
WWT.
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ARTICLE 9. WARRANTY
9.1. WARRANTY OF PERFORMANCE. Provided that TCB supplies the hardware and
ancillary software required and approved by WWT and obtains from WWT
maintenance and support of the Global Portal Platform resident at the
facilities of TCB, WWT warrants that, for the Warranty Period, the
Global Portal Platform will be free from material reproducible
programming errors and defects in workmanship and materials, and will
substantially conform to WWT's user documentation, when maintained and
operated in accordance with WWT's instructions. If material
reproducible programming errors are discovered during the Warranty
Period, WWT shall promptly remedy them at no additional expense to TCB.
This warranty to TCB shall be null and void if TCB is in default under
this Agreement or if the nonconformance is due to: (a) hardware
failures due to defects, power problems, environmental problems or any
cause other than the Global Portal Platform itself; (b) modification of
the Global Portal Platform by any party other than WWT; or (c) misuse,
errors or negligence of TCB, its employees or agents in operating the
Global Portal Platform.
9.2. REIMBURSEMENT OF WWT EXPENSES. If WWT reasonably determines that the
Global Portal Platform for which TCB's requested warranty service is
not eligible for warranty service, TCB shall pay or reimburse WWT for
all reasonable costs of investigating and responding to such request at
WWT's then prevailing time and materials rates.
9.3. LIMITATIONS. THE WARRANTIES OF WWT CONTAINED IN THIS AGREEMENT ARE
EXCLUSIVE. THEY ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR
NON-INFRINGEMENT, OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A
COURSE OF DEALING OR USAGE OF TRADE. WWT'S SOLE OBLIGATION AND TCB'S
EXCLUSIVE REMEDY FOR ANY WARRANTY FAILURE IS THE CORRECTION OR
REPLACEMENT, AT WWT'S OPTION, OF THE NONCONFORMING PORTION OF THE
GLOBAL PORTAL PLATFORM. NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, AND IRRESPECTIVE OF ANY FAULT OR NEGLIGENCE, WWT SHALL NOT
BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO
BUSINESS, LOST REVENUES, LOST SALES, LOST SAVINGS, LOST PROFITS
(ANTICIPATED OR ACTUAL), LOSS OF USE, DOWNTIME AND CLAIMS OF THIRD
PARTIES), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,
WARRANTY, STRICT LIABILITY OR TORT (INCLUDING WITHOUT LIMITATION
NEGLIGENCE OF ANY KIND, WHETHER ACTIVE OR PASSIVE), OR ANY OTHER LEGAL
OR EQUITABLE THEORY, ALL WHETHER OR NOT WWT HAS BEEN APPRISED OR
NOTIFIED THAT ANY SUCH DAMAGES OR LOSSES ARE POSSIBLE OR LIKELY, AND
WHETHER OR NOT ANY PERMITTED REMEDY HAS FAILED ITS ESSENTIAL PURPOSE.
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ARTICLE 10. CONFIDENTIAL INFORMATION
10.1. CONFIDENTIAL INFORMATION. Each Party shall keep confidential the
following information which is "Confidential Information" whether
acquired by it under or in connection with this Agreement or obtained
in connection with the relationship of WWT and TCB or its predecessors
regarding the Global Portal Platform before the Effective Date:
(a) information relating to the other Party's business, financial
condition or performance, or operations that the other Party
treats as confidential or proprietary;
(b) the terms and performance of, any breach under, or any Dispute
regarding this Agreement;
(c) the Parties' conduct, decisions, documents, and negotiations
as part of, and the status of, any Dispute resolution
proceedings under the Dispute Resolution Procedure;
(d) any information, business plan, concept, idea, know-how,
process, technique, program, design, formula, algorithm or
work-in-process, any engineering, manufacturing, marketing,
technical, financial, data, or sales information, or any
information regarding suppliers, customers, employees,
investors, or business operations, and any other information
or materials, whether in written, or graphic, or any other
form or that is disclosed orally, or electronically, or
otherwise which is learned or disclosed in the course of
discussions, studies, or other work undertaken between the
parties; and
(e) any other information, whether in a tangible medium or oral
and whether proprietary to the other Party or not, that is
marked or clearly identified by the other Party as
confidential or proprietary.
(f) Without limiting the generality of the foregoing, Confidential
Information shall include all information and materials
disclosed orally or in any other form, regarding WWT's
software products or software product development, including,
but not limited to, the configuration techniques, data
classification techniques, user interface, applications
programming interfaces, data modeling and management
techniques, data structures, and other information of or
relating to WWT's software products or derived from testing or
other use thereof.
Neither Party may use any of the other Party's Confidential Information
other than as required to perform its obligations or exercise its
rights and remedies, including as part of the resolution of any
Dispute, under this Agreement.
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10.2. EXCLUDED INFORMATION. A Party has no obligation under this Article 10
regarding any information, including information that would otherwise
by Confidential Information, to the extent that the information:
(a) is or becomes publicly available or available in the industry
other than as a result of any breach of this Agreement or any
other duty of that Party;
(b) is or becomes available to that Party from a source that, to
that Party's knowledge, is lawfully in possession of that
information and is not subject to a duty of confidentiality,
whether to the other Party or another Person, violated by that
disclosure; or
(c) is independently developed by employees of the receiving Party
who did not have access to the disclosing Party's Confidential
Information.
10.3. STANDARD OF CARE. Each Party shall use the same degree of care in
maintaining the confidentiality and restricting the use of the other
Party's Confidential Information as that Party uses with respect to its
own proprietary or confidential information, and in no event less than
reasonable care.
10.4. PERMITTED DISCLOSURES. A Party may disclose Confidential Information to
its officers, directors, agents, or employees as necessary to give
effect to this Agreement. Each Party shall inform each of these Persons
to whom any Confidential Information is communicated of the obligations
regarding that information under this Article 10 and impose on that
Person the obligation to comply with this Article 10 regarding the
Confidential Information. Each Party shall be responsible for any
breach of that Party's obligations under this Article 10 by its
officers, directors, agents, or employees.
10.5. REQUIRED DISCLOSURES. Each Party may disclose Confidential Information
in response to a request for disclosure by a court or another
Governmental Authority, including a subpoena, court order, or
audit-related request by a taxing authority, if that Party:
(a) promptly Notifies the other Party of the terms and the
circumstances of that request;
(b) consults with the other Party, and cooperates with the other
Party's reasonable requests, to resist or narrow that request;
(c) furnishes only information that, according to written advice
(which need not be a legal opinion) of its legal counsel, that
Party is legally compelled to disclose; and
(d) uses its Reasonable Efforts to obtain an order or other
reliable assurance that confidential treatment will be
accorded the information disclosed.
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A Party need not comply with these conditions to disclosure, however,
to the extent that the request or order of the Governmental Authority
in effect prohibits that compliance. A Party may also disclose
Confidential Information without complying with these conditions to the
extent that the Party is otherwise legally obligated to do so (for
example, to comply with applicable securities laws), as confirmed by
advice of competent and knowledgeable counsel. Further, a Party may
also disclose Confidential Information, without complying with these
conditions, in connection with a tax audit if the disclosure is to
representatives of a taxing authority, or in connection with a tax
contest if that Party uses its Reasonable Efforts to assure that
confidential treatment will be accorded the information disclosed.
10.6. TITLE TO INFORMATION. The Confidential Information of a Party disclosed
by it to the other Party under this Agreement shall remain the property
of the disclosing Party; nothing in this Agreement grants or conveys to
the other Party any ownership or other proprietary rights in any of
that Confidential Information.
10.7. SURVIVAL; RETURN. The obligations under this Article 10 shall continue
on and after Expiration or the termination of this Agreement. Upon
request of the disclosing Party upon or after Expiration or the
termination of this Agreement, the other Party shall return or, if
requested by the disclosing Party, destroy the Confidential Information
of the disclosing Party that it holds. The requested return or
destruction shall include removal or deletion of Confidential
Information from all data bases and magnetic media of the other Party.
ARTICLE 11. PARTIES' RELATIONSHIP
11.1. INDEPENDENT. The Parties are independent; each has sole authority and
control of the manner of, and is responsible for, its performance of
this Agreement. This Agreement does not create or evidence a
partnership or joint venture between the Parties. Neither Party may
create or incur any liability or obligation for or on behalf of the
other Party, except as described in this Agreement. This Agreement does
not restrict WWT from providing or rendering any services or products,
including services or products like the Global Portal Platform, to any
other Person; nothing in this Agreement, however, gives WWT the right
to provide or render any services or product in violation of any other
agreement entered into by the Parties.
11.2. EMPLOYEES. Except as described in Section 14.4(b) or Section 14.4(c)
or, for the purposes of this Agreement:
(a) each Party is solely responsible for its own employees or
agents, including the actions or omissions and the
compensation of those employees and agents, and
(b) neither Party has any authority with respect to any of the
other Party's employees or agents.
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11.3. AUTHORITY AND ENFORCEABILITY. Each Party warrants to the other Party
that:
(a) it has the requisite corporate authority to enter into and
perform this Agreement;
(b) its execution, delivery, and performance of this Agreement
have been duly authorized by all requisite corporate action on
its behalf;
(c) this Agreement is enforceable against it; and
(d) it has obtained all consents or approvals of Governmental
Authorities and other Persons that are conditions to its
entering this Agreement.
11.4. THIRD-PARTY LICENSES AND CONSENTS. Each Party shall be responsible for
obtaining and maintaining any licenses, permits, consents, or approvals
of Governmental Authorities and other Persons necessary or appropriate
for it to perform its obligations under this Agreement.
11.5. FURTHER ASSURANCES. Each Party shall take such actions, upon request of
the other Party and in addition to the actions specified in this
Agreement, as may be necessary or reasonably appropriate to implement
or give effect to this Agreement.
ARTICLE 12. PARTIES' REPRESENTATIVES
12.1. REPRESENTATIVES' AUTHORITY. Each Party has authorized its
Representative to conduct discussions and negotiations, make and
communicate decisions, frame and pose questions or issues, and resolve
Disputes on behalf of that Party relating to this Agreement. Though one
Party's employees or agents other than its Representative may also take
actions of the kinds described in the preceding sentence with the other
Party's employees or agents other than its Representative, matters that
require more formal discussions or negotiations between Parties shall
be addressed through and by the Representatives. Each Party and its
Representative are entitled to rely on the actions and decisions of the
other Party's Representative relating to this Agreement.
12.2. DESIGNATION. WWT designates its Vice President and General Manager as
WWT's Representative, and TCB designates its Chief Technology Officer
as TCB's Representative, upon and after the Effective Date until
changed by the designating Party. A Party may change its Representative
by Notice to the other Party. A Party may rely on and deal with the
Person who is designated as the other Party's Representative until any
Notice of change is given by the other Party.
ARTICLE 13. EVENTS OF DEFAULT
13.1. EVENTS OF DEFAULT. The following shall constitute "EVENTS OF DEFAULT"
by a Party under this Agreement:
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(a) such Party makes a general assignment of all or substantially
all of its assets for the benefit of its creditors;
(b) such Party applies for, consents to, or acquiesces in the
appointment of a receiver, trustee, custodian, or liquidator
for its business or all or substantially all of its assets;
(c) such Party files, or consents to or acquiesces in, a petition
seeking relief or reorganization under any bankruptcy or
insolvency laws; or
(d) a petition seeking relief or reorganization under any
bankruptcy or insolvency laws is filed against such Party and
is not dismissed within 90 days after it was filed;
(e) such Party's material breach of this Agreement which continues
uncured or uncorrected for 30 days after such Party's receives
Notice of such breach from the other Party, but if the
breaching Party (A) reasonably requires longer than 30 days to
cure or correct, and (B) Notifies the non-breaching Party of
the circumstances, then the cure period shall be extended for
the reasonable time so required, so long as during that time
the breaching Party diligently acts to effect that cure or
correction. Unless otherwise agreed in writing by the Parties,
no cure period extension shall exceed 90 days; and
(f) failure by TCB to pay any amount due to WWT under this
Agreement by the tenth Business Day after Notice of such
nonpayment has been given to TCB by WWT.
13.2. CONSEQUENCES OF AN EVENT OF DEFAULT.
(a) Notwithstanding the occurrence of an Event of Default
hereunder or other breach by TCB of any legal duty or
obligation imposed by any contract (including this Agreement),
by the law of torts (including simple or gross negligence,
strict liability or willful misconduct), or by federal or
state laws, rules, regulations, orders, standards or
ordinances, WWT shall have no right to revoke or terminate,
through injunctive relief or otherwise, the license granted to
TCB under Article 3, it being understood and agreed that each
such breach shall be compensable, if at all, by a remedy at
law.
(b) Upon the occurrence of an Event of Default by WWT, TCB may
elect to terminate this Agreement, upon Notice to WWT
specifying the Termination Date.
13.3. CONSEQUENCES OF TERMINATION BY TCB. Upon termination of this Agreement
by TCB under Section 13.2(b), then during the Transition Period WWT
shall comply, at WWT's expense, with TCB's reasonable requests for
assistance in TCB's obtaining another solution having functionality
substantially equivalent to the functionality of the Global
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Portal Platform in effect immediately preceding the Termination Date.
Articles 8 and 17 shall apply in this situation as though this
Agreement had not been terminated. If the records or other information
provided by WWT are Confidential Information, Article 10 shall also
apply as though this Agreement had not been terminated.
13.4. SURVIVAL OF RIGHTS AND OBLIGATIONS. No rights or obligations of either
Party that expressly or by implication are to remain in effect in order
to give effect to this Agreement shall be impaired by the termination
of this Agreement, and those rights and obligations shall remain in
effect.
ARTICLE 14. LIABILITY AND REMEDIES
14.1. WARRANTIES. Each Party's warranties in this Agreement are made solely
to and for the benefit of the other Party. No Person other than a Party
may make a claim based on the other Party's warranties under this
Agreement.
14.2. DEFICIENCIES. TCB shall promptly Notify WWT of any Deficiency in the
Global Portal Platform. To the extent WWT agrees, or it is otherwise
determined by the Dispute Resolution procedure, that any material
portion of the Global Portal Platform was or is Nonconforming, WWT
shall use its Reasonable Efforts promptly to cure or correct the
Deficiency to the extent it may then be cured or corrected.
14.3. ACTUAL DAMAGES. Neither Party shall be liable under or relating in any
manner to this Agreement for any losses or damages other than Damages,
even if a Party has been advised of the possibility of losses or
damages of that kind and regardless of the form of the Proceedings or
the theory of liability, whether based on contract, warranty, tort
(including negligence and strict liability), infringement, or
misappropriation.
14.4. INDEMNITIES FOR CERTAIN BREACHES AND OTHER MATTERS. The following shall
apply to any breach of, and certain other Damages relating to, this
Agreement, other than a nonpayment by TCB of any amount relating to an
invoice:
(a) each Party shall indemnify the other Party against all Damages
of the Indemnified Party, or any of its Indemnified Agents,
resulting from or relating to:
(i) any breach of this Agreement, including breach of any
warranty in this Agreement, by the Indemnifying
Party;
(ii) any Proceedings relating to a breach of this
Agreement by the Indemnifying Party; and
(iii) the actions or omissions of the Indemnifying Party's
employees or agents under or in connection with this
Agreement.
(b) TCB shall also indemnify WWT against all Damages of WWT or any
of its Indemnified Agents resulting from or relating to any
sales, use, or similar taxes
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(however described) applicable to TCB's use of the Global
Portal Platform, in whole or in part, that are assessed or
levied against or paid by WWT.
(d) The indemnification obligations in Sections 14.4(a) and
14.4(b) shall be extinguished to the extent that the Damages
of the other Party, or any of its Indemnified Agents for whom
or which the other Party is seeking indemnification, were
caused by the gross negligence (including recklessness) or
willful misconduct of the Person for whom or which
indemnification is sought. THE ORDINARY NEGLIGENCE OF A PERSON
OR THE JOINT OR CONCURRENT ORDINARY NEGLIGENCE OF PERSONS
SHALL NOT PRECLUDE THAT PERSON OR ANY OF THOSE PERSONS FROM
RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER THIS
AGREEMENT.
(e) If an Indemnification Claim is not based on a Third-Party
Claim, the Indemnified Party shall give an Indemnification
Claim Notice promptly after the event constituting the basis
for the Indemnification Claim; its failure to do so, however,
shall relieve the Indemnifying Party of its indemnification
obligations only to the extent the Indemnifying Party is
actually prejudiced by that failure. If the Indemnified Party
gives an Indemnification Claim Notice regarding an
Indemnification Claim not based on a Third-Party Claim, the
Indemnifying Party shall Notify the Indemnified Party within
the Indemnification Response Period whether the Indemnifying
Party disputes all or any portion of the Indemnification
Claim. If the Indemnifying Party does not give that dispute
Notice or agrees to accept liability for all or a portion of
the Indemnification Claim, the Indemnification Claim, or the
agreed portion of that Indemnification Claim, shall be the
Indemnifying Party's liability. Otherwise, the Indemnification
Claim shall be deemed a Dispute to be resolved by the Dispute
Resolution Procedure.
(f) If an Indemnification Claim is based on a Third-party Claim:
(i) The Indemnified Party shall give an Indemnification
Claim Notice promptly after it receives the
Third-Party Claim.
(ii) The Indemnifying Party shall be entitled to defend
the Third-Party Claim, with its chosen counsel and at
its own expense, if (A) the Third-Party Claim seeks
only monetary relief against the Indemnified Party,
and (B) the Indemnifying Party elects to assume, and
diligently conducts, that defense. The Indemnifying
Party's election to defend shall be given by Notice
to the Indemnified Party within the Indemnification
Response Period. If the Indemnifying Party conducts
the defense, the Indemnified Party may participate in
that defense with its own counsel and at its own
expense.
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(iii) If the Indemnifying Party does not elect to defend
the Third-Party Claim by Notice within the
Indemnification Response Period, or if the
Indemnifying Party does not diligently conduct the
defense, the Indemnified Party shall be entitled,
upon further Notice to the Indemnifying Party, to
defend the Third-Party Claim on behalf of, and for
the account and risk of, the Indemnifying Party (if
it is determined that the Indemnifying Party has an
indemnification obligation regarding that
Indemnification Claim). In this circumstance, the
Indemnifying Party may participate in the defense
with its own counsel and at its own expense.
(iv) If there is a conflict of interest that makes it
inappropriate for the same counsel to represent the
Indemnifying Party and the Indemnified Party in
defending the Third-Party Claim, the Indemnifying
Party shall pay for separate counsel for the
Indemnified Party.
(v) The Indemnifying Party defending a Third-Party Claim
may compromise, settle, or resolve that Third-Party
Claim without the Indemnified Party's consent if the
compromise, settlement, or resolution involves only
the payment of money by the Indemnifying Party
(whether on its own behalf or behalf of the
Indemnified Party) and the third-party claimant
provides the Indemnified Party a release from all
liability regarding the Third-Party Claim. Otherwise,
the Indemnifying Party may not compromise, settle, or
resolve the Third-Party Claim without the Indemnified
Party's Reasonable Consent.
(vi) The Indemnifying Party and the Indemnified Party
shall cooperate with all reasonable requests of the
other in defending any Third-Party Claim.
14.5. TIME FOR CLAIMS. A Party may make an Indemnification Claim:
(a) not based on a Third-Party Claim, only within two years after
the breach or other event constituting the basis for that
Indemnification Claim occurred, even if not discovered until
after that second anniversary, or
(b) based on a Third-Party Claim, at any time.
14.6. OFFSET. A Party entitled to any payment due from the other Party under
this Agreement may offset all or any portion of the amount of that
payment against any payment that is due from it to the other Party
under this Agreement.
14.7. EXCLUSIVE REMEDIES. Except for the warranty provisions of Article 9,
the termination right stated in Article 13 and the relief described in
Sections 15.4 and 17.2(b) and in the Dispute Resolution Procedure, the
remedies described in this Article 14 are the exclusive rights and
remedies of a Party regarding any breach of this Agreement or any other
matter that may be the subject of an Indemnification Claim.
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14.8. EQUITABLE RELIEF. Subject to the limitation set forth in Section
13.2(a), to the extent that monetary relief is not a sufficient remedy
for any breach of this Agreement, or upon any breach or impending
breach of Article 10, the non-breaching Party shall be entitled to
injunctive relief as a remedy for that breach or impending breach by
the other Party, in addition to any other remedies granted to the
non-breaching Party in this Agreement. That injunctive relief shall be
sought through arbitration in accordance with the Dispute Resolution
Procedure, except as permitted by Section B.4(b) of the Dispute
Resolution Appendix.
14.9. WAIVER OF REMEDIES. No forbearance, delay, or indulgence by either
Party in enforcing this Agreement, within the applicable time limits
stated in this Agreement, shall prejudice the rights or remedies of
that Party. No waiver of a Party's rights or remedies regarding a
particular breach of this Agreement constitutes a waiver of those
rights or remedies, or any other rights or remedies, regarding any
other or any subsequent breach of this Agreement.
14.10. SURVIVAL. The rights, remedies, and obligations under this Article 14
shall continue on and after Expiration or the termination of this
Agreement.
ARTICLE 15. FORCE MAJEURE
15.1. NO BREACH OR LIABILITY. No delay or failure of a Party to perform any
of its obligations, other than payment obligations, under this
Agreement due to causes beyond its reasonable control shall constitute
a breach of this Agreement or render that Party liable for that delay
or failure. Causes beyond a Party's reasonable control include:
(a) events or circumstances that the Party, using its Reasonable
Efforts, is unable to prevent or overcome; and
(b) labor disputes, strikes, or other similar disturbances; acts
of God; utilities or communications failures; acts of the
public enemy; and riots, insurrections, sabotage, or
vandalism.
15.2. NOTICE OF EXCUSABLE DELAY OR FAILURE. If a Party anticipates any
excusable delay or failure under Section 15.1, it shall promptly Notify
the other Party of the anticipated delay or failure, the anticipated
effect of that delay or failure, and any actions that are being or are
to be taken to alleviate or overcome the cause of the delay or failure.
15.3. EFFORTS TO OVERCOME. If a Party is claiming an excusable delay or
failure under Section 15.1, it shall use its Reasonable Efforts to
alleviate or overcome the cause of the delay or failure as soon as
practicable.
15.4. EXTENDED DELAY OR FAILURE. If an excusable delay or failure continues
for more than 10 consecutive days, the Party entitled to the benefit of
the affected obligation may, at its own expense, perform itself or
obtain from any other Person the obligation to which that Party is
entitled (and that Party shall Notify the other Party of this
election).
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ARTICLE 16. DISPUTE RESOLUTION MATTERS
16.1. GENERAL PROCEDURES. Except as otherwise stated in this Agreement, the
Parties shall resolve all Disputes in accordance with the Dispute
Resolution Procedure. Nevertheless, if any Person other than the
Parties:
(a) has initiated a lawsuit or other Proceedings against or
involving either or both of the Parties in which a Dispute
will be resolved, or
(b) is a necessary participant in any Proceedings to resolve a
Dispute and cannot be joined by either or both of the Parties
in an arbitration of that Dispute under Section B.3 of the
Dispute Resolution Appendix,
so that (in either case) the Dispute Resolution Procedure is or will be
ineffective, then the Parties need not use or follow the Dispute
Resolution Procedure to resolve that Dispute, though the submission to
jurisdiction in Section B.5 of the Dispute Resolution Appendix shall
apply if necessary.
16.2. CONTINUED PERFORMANCE. The Parties shall continue performing their
respective obligations under this Agreement while a Dispute is being
resolved.
16.3. PARTIES' AGREEMENT. Nothing in this Article 16 or the Dispute
Resolution Procedure prevents the Parties from resolving any Dispute by
mutual agreement at any time.
ARTICLE 17. EXPENSES AND TAXES
17.1. EXPENSES. Each Party shall be solely responsible for its costs and
expenses incurred in performing its obligations and exercising its
rights and remedies under this Agreement, except as otherwise provided
in this Agreement.
17.2. TAXES. The Parties shall be responsible for tax payments or liabilities
relating to this Agreement as follows:
(a) Each Party shall be responsible for its income and franchise
taxes and for all other taxes (however described) based on its
own income or earnings.
(b) TCB shall be responsible for all sales, use, and similar taxes
(however described) applicable to the use by TCB of the Global
Portal Platform, in whole or in part. This obligation includes
TCB's paying the sales taxes identified in WWT's invoices
submitted to TCB.
(i) If TCB claims an exemption or exclusion from taxes of
this kind, it shall deliver to WWT a certificate or
letter stating TCB's good-faith belief that its use
of the Global Portal Platform is not, in whole or in
part, subject to those taxes. Whether or nor TCB
delivers that certificate or letter, however, it
shall indemnify WWT, in accordance with Section
14.4(c)(iv),
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against any taxes of this kind assessed or levied
against, or paid by, WWT and any other related
Damages of WWT.
(ii) If WWT receives an assessment from a taxing authority
covering taxes for which TCB is responsible under
this Section 17.2(b), WWT shall Notify TCB of the
assessment and, at TCB's request, timely contest the
assessment. If payment to the taxing authority is
required by law as a condition to protest, TCB shall
timely furnish WWT the required amount for that
payment.
(iii) If TCB believes it has overpaid taxes to WWT for any
of its use of the Global Portal Platform(in whole or
in part), TCB may require WWT to file a claim for a
refund at TCB's expense. If permitted by law, WWT may
assign any right to a refund directly to TCB instead
of filing a refund claim. Any refund of taxes
(including any interest) received by WWT under this
Section 17.2(b)(iii) shall be promptly forwarded to
TCB.
(iv) Before WWT is required to pursue any action requested
by TCB under this Section 17.2(b), WWT may at any
time require TCB to deliver a letter of advice from
outside counsel (selected by TCB) stating that TCB's
tax position is reasonable.
(v) Except as stated in the next sentence, any Dispute
between the Parties regarding the application of any
taxes of this kind to any use of the Global Portal
Platform by TCB (in whole or in part) shall be
resolved by the Dispute Resolution Procedure. Any
Dispute as to the amount of tax (if any) owed to a
taxing authority, including a Dispute between a Party
and the taxing authority, need not be resolved by the
Dispute Resolution Procedure, but may be resolved by
any appropriate administrative or legal procedure
available to a Party or the Parties under this
Agreement apart from the Dispute Resolution
Procedure.
(c) Each Party shall be responsible for all real property,
personal property, and other taxes (however described) based
on its owned or leased property, whether real or personal.
(d) Each Party shall be responsible for all employment-related
taxes (however described) regarding its own employees.
Each Party shall cooperate with any reasonable request of the other
Party to take any reasonable action to avoid or minimize any duplicate
taxes that might be imposed; the requesting Party shall bear in the
expenses of the other Party's compliance.
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ARTICLE 18. COMMUNICATIONS
18.1. FORM. Each Notice (including an Indemnification Claim Notice), request,
response, demand, claim, and other communication required or permitted
under this Agreement shall be in writing and shall be transmitted,
delivered, or sent by: (a) personal delivery, (b) courier or messenger
service, whether overnight or same-day, or (c) certified United States
mail, with postage prepaid and return receipt requested, in each case
addressed to the other Party at the address or number for that Party
set forth in Section 18.2, or at such other address or number as the
recipient has designated by Notice to the other Party in accordance
with this Article 18.
18.2. ADDRESSES. The Parties shall transmit, deliver, or send communications
as follows.
(a) If to WWT: World Wide Technology, Inc.
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
(b) If to TCB: xxxxxxxx.xxx LLC
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx, Xxx Xxxxxx and Xxx Xxxxxxxxx
18.3. EFFECTIVENESS. Each communication transmitted, delivered, or sent: in
person, by courier or messenger service, or by certified United States
mail, postage prepaid and return receipt requested, shall be deemed
given, received, and effective on the date delivered to or refused by
the intended recipient (with the return receipt or the equivalent
record of the courier or messenger being deemed conclusive evidence of
delivery or refusal)
ARTICLE 19. ASSIGNMENT
Neither Party may assign any of its rights or delegate any of its
duties or obligations under this Agreement without the other Party's Consent;
this prohibition of assignment and delegation shall include any assignment and
delegation by operation of law (such as merger or consolidation). Any attempted
assignment or delegation without the other Party's Consent shall be void and
without effect. Notwithstanding the foregoing, a Party shall have the right,
without the consent of the other Party, to assign this Agreement to a transferee
of all or substantially all of the business of such Party to which this
Agreement relates.
ARTICLE 20. AMENDMENT AND WAIVER
This Agreement may be amended or modified, and any provision of this
Agreement may be discharged or waived, only by a document signed by the Party
against which the amendment, modification, discharge, or waiver is sought to be
enforced.
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ARTICLE 21. INTEGRATION
This Agreement constitutes the Parties' entire agreement on this
subject; it replaces and supersedes any prior agreement or understanding of the
Parties, whether written o oral, on this subject not expressed or referred to in
this Agreement.
ARTICLE 22. SEVERABILITY
If any part of this Agreement is for any reason found to be
unenforceable, all other parts of this Agreement nevertheless remain
enforceable.
ARTICLE 23. SUCCESSORS
This Agreement binds and inures to the benefit of the Parties and their
respective legal representatives, permitted successors, and permitted assigns.
ARTICLE 24. GOVERNING LAW
This Agreement shall be interpreted or construed under Missouri law.
Likewise, the validity and performance of this Agreement shall be enforced, and
all issues relating to this Agreement shall be resolved, under Missouri law.
Each Party consents to the exclusive personal jurisdiction and venue of the
courts, state and federal, located in St. Louis County, Missouri.
ARTICLE 25. COUNTERPARTS
This Agreement may be signed in any number of counterparts, with the
same effect as if all signatories had signed the same document. All counterparts
shall be construed together to constitute one, and the same, document.
IN WITNESS WHEREOF, the Parties hereto have executed this Licensing
Agreement effective as of the date first above written.
WORLD WIDE TECHNOLOGY, INC.
By /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
----------------------------------------
Title: Chief Executive Officer
---------------------------------------
XXXXXXXX.XXX LLC
By /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
----------------------------------------
Title: Chief Executive Officer
---------------------------------------
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DEFINITIONAL APPENDIX
TO LICENSING AGREEMENT
A. DEFINED TERMS. In the Agreement, the following terms have the corresponding
meanings:
"AGREEMENT": This Licensing Agreement between WWT and TCB (including the
Definitional Appendix, the Dispute Resolution Appendix, and the Schedules), as
amended or supplemented from time to time in accordance with its terms.
"ARBITRATION RULES": The Rules for Commercial Arbitration of the American
Arbitration Association in effect at the time of an arbitration in accordance
with the Dispute Resolution Procedure.
"BUSINESS DAY": Any Monday through Friday, excluding the holidays observed by
WWT.
"CONFIDENTIAL INFORMATION": Information subject to a duty of confidence and a
restriction on use imposed on one or both Parties under Article 10.
"CONSENT": The prior written consent of a Party (in any capacity) in its sole
discretion.
"CONSULTING SERVICES": As defined in the Management Services Agreement.
"DAMAGES": Losses, claims, obligations, demands, assessments, fines and
penalties (whether civil or criminal), liabilities, expenses and costs
(including reasonable fees and disbursements of legal counsel and accountants),
bodily and other personal injuries, damage to tangible property, and other
damages, of any kind or nature, actually suffered or incurred by a Person.
"Damages":
1. consists only of actual damages;
2. excludes any lost profits, lost income, or lost savings and
any punitive, exemplary, consequential, indirect, special, or
incidental damages (however described), even if the
possibility of those losses or damages was known; and
3. includes (except as may be reduced in accordance with the next
sentence) all fines, penalties, and interest paid or payable
to any Governmental Authority.
If TCB has Damages, for which WWT is liable, consisting of fines, penalties, and
interest paid or payable to a Governmental Authority corresponding to any tax
not timely paid, then those "Damages" shall be reduced by an amount equal to
interest, at the annual rate of 5%, accrued on that tax from the due date until
that tax is paid; for the avoidance of doubt, in this situation "Damages" shall
not include any tax for which TCB would otherwise be liable to the Governmental
Authority. Also for the avoidance of doubt, the "Damages" of a Person shall not
include any lost profits, lost income, or lost savings and any punitive,
exemplary, consequential, indirect, special, or incidental damages (however
described) awarded against that Person in favor or another Person asserting a
Third- Party Claim against that Person.
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"DEFICIENCY": The failure of the Global Portal Platform to satisfy the
applicable warranty of performance stated in Article 9 of the Agreement.
("DEFICIENT" has the correlative meaning).
"DEFINITIONAL APPENDIX": This Definitional Appendix to LICENSING AGREEMENT,
containing definitions and interpretive matters for, as an integral part of, the
Agreement.
"DISPUTE": Any dispute, disagreement, claim, or controversy arising in
connection with or relating to the Agreement, or the validity, interpretation,
performance, breach, or termination of the Agreement, including any claim of
breach of representation or warranty or of nonperformance and any claim
regarding bodily or other personal injury damage to tangible property.
"DISPUTE RESOLUTION APPENDIX": The Dispute Resolution Appendix to Licensing
Agreement, containing the Dispute Resolution Procedure for, as an integral party
of, the Agreement.
"DISPUTE RESOLUTION PROCEDURE": The procedure or process by which a Dispute
shall be resolved in the Dispute Resolution Appendix.
"EFFECTIVE DATE": October 1, 1999, the date on which the Agreement becomes
effective.
"ESCROW AGENT": As defined in Section 6.2 of this Agreement.
"ESCROW AGREEMENT": As defined in Section 6.2 of this Agreement.
"EVENTS OF DEFAULT": As defined in Section 13.1 of this Agreement.
"ENHANCEMENTS": Updates, upgrades, bug fixes, problem corrections, releases,
modifications, enhancements and improvements to the Global Portal Platform made
by WWT.
"GLOBAL PORTAL PLATFORM": the software and related technology [*Confidential
treatment will be requested], together with such Enhancements as are
incorporated therein in accordance with the terms of this Agreement.
"GOVERNMENTAL AUTHORITY": Any federal, state, local, or foreign government or
governmental, quasi-governmental, administrative, or regulatory authority,
agency, body, or entity, including any court of other tribunal.
"INDEMNIFICATION CLAIM": A claim or demand of a Party, on its behalf or on
behalf of one or more of its Indemnified Agents, for Indemnification under
Section 14.4.
"INDEMNIFICATION CLAIM NOTICE": A Notice from the Indemnified Party describing
an Indemnification Claim and the amount or the estimated amount of that
Indemnification Claim to the extent then feasible (though that estimate shall
not be determinative of the final amount of that Indemnification Claim).
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"INDEMNIFICATION RESPONSE PERIOD": The 30 days after an Indemnification Claim
Notice is given during which the Indemnifying Party may investigate and
determine its responsibility or liability for an Indemnification Claim and, if
relating to a Third-Party Claim, Notify the Indemnified Party of the
Indemnifying party's election to defend that Third-Party Claim.
"INDEMNIFIED AGENTS": Collectively, the officers, directors, employees, and
agents of a Party.
"INDEMNIFIED PARTY": A Party entitled to or seeking indemnification, on its own
behalf or on behalf of one or more of its Indemnified Agents, under Section
14.4.
"INDEMNIFYING PARTY": A Party that has or is alleged to have an obligation to
indemnify the other Party in response to an Indemnification Claim.
"INTELLECTUAL PROPERTY RIGHTS": Any and all statutory, common law, treaty,
convention and other non-statutory rights that protect, or are available to
protect, the Global Portal Platform and all intellectual property embodied
therein against unauthorized use or copying in the United State or other
countries, including all rights to recover for damages and profits for past,
present and future infringements thereof, and all rights under licenses,
sub-licenses, assignments, agreements or similar arrangements to use any
intellectual property of third parties.
"LICENSE FEE": The amount of seventy-five thousand dollars ($75,000.00).
"MANAGEMENT SERVICES AGREEMENT": The Management Services Agreement between WWT
and TCB dated as of the Effective Date (including the Definitional Appendix, the
Dispute Resolution Appendix, and the Schedules thereto), as amended or
supplemented from time to time in accordance with its terms.
"NONCONFORMING:" As agreed by the Parties or otherwise determined by the Dispute
Resolution Procedure, that the Global Portal Platform was or is Deficient.
"NOTICE": A written communication complying with Article 18. ("NOTIFY" has the
correlative meaning.)
"PARTIES": Collectively, WWT and TCB. ("PARTY" means either WWT or TCB.)
"PERSON": An individual; a corporation, partnership, limited liability company,
trust, association, or entity of any kind or nature; or a Governmental
Authority.
"PROCEEDINGS": Any action, suit, claim, investigation, demand, audit, or other
proceedings by or before any Governmental Authority or any arbitration
proceedings.
"REASONABLE CONSENT": The prior written consent of a Party (in any capacity),
which may not be unreasonably withheld or delayed.
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"REASONABLE EFFORTS": The efforts of a Party that are commercially reasonable
under the circumstances, which do not require a Party to institute or prosecute
any Proceedings or to pay any Person other than that Party's representatives or
agents.
"REPRESENTATIVES": Collectively, WWT's Representative and TCB's Representative.
[*Confidential treatment will be requested].
"TCB": xxxxxxxx.xxx LLC, a Delaware limited liability company.
"TCB'S REPRESENTATIVE": The individual agent or representative designated by TCB
to be TCB's formal liaison with or representative to WWT for matters relating to
the Agreement, having the (non-exclusive) authority and responsibility described
in the Agreement.
"TERMINATION DATE": The date on which the Agreement is terminated in accordance
with the terms hereof, without regard to any Transition Period.
"THIRD-PARTY CLAIM": A claim of liability asserted against either Party by a
Person other than the other Party or either Party's Indemnified Agents.
"TRANSITION PERIOD": The maximum 180-day period after the Termination Date
during which WWT shall, as TCB reasonably requests, provide transition
assistance in accordance with Section 13.3.
"WARRANTY PERIOD": A period of 60 days following the completion of the
installation of the Global Portal Platform at the facilities of TCB pursuant to
Article 6.
"WWT": World Wide Technology, Inc., a Missouri corporation.
"WWT BACKGROUND TECHNOLOGY": means any and all business and technical
information and know-how used by WWT in designing, developing, installing and
operating the Global Portal Platform, including, without limitation,
pre-existing development tools, routines, subroutines and other programs, data
and materials included by WWT in the Global Portal Platform, all user manuals
and technical information relating to the Global Portal Platform, including
codes (object and source), program notes, drawings and reproducible copies of
each of the foregoing, magnetic tapes and machine readable codes or other media
reasonably necessary to generate the foregoing; as well as all requirements
stored in any requirements database, test plans, test suites, any existing
documentation detailing software configuration management processes and tools,
existing documentation on customer support procedures and existing documentation
on consulting procedures.
"WWT'S REPRESENTATIVE": The individual agent or representative designated by WWT
to be WWT's formal liaison with or representative to TCB for matters relating to
the Agreement, having the (non-exclusive) authority and responsibility described
in the Agreement.
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"WWT SOURCE CODE": As defined in Section 6.2 of this Agreement.
B. INTERPRETATIVE MATTERS. The Agreement is the result of the Parties'
negotiations, and no provision of the Agreement shall be construed for or
against either Party because of the authorship of that provision. In the
interpretation of the Agreement, except where the context otherwise requires:
1. "including" or "include" does not denote or apply any
limitation;
2. "or" has the inclusive meaning "and/or";
3. "$" refers to United States dollars;
4. the singular includes the plural, and vice versa, and each
gender includes each of the others;
5. captions or headings are only for reference and are not to be
considered in interpreting the Agreement;
6. "Article" and "Section" refer to an Article and Section,
respectively, or the Agreement, unless otherwise stated in the
Agreement; and
7. each reference to a time of day in the Agreement is to local
time in St. Louis, Missouri, and "midnight" begins a day.
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DISPUTE RESOLUTION APPENDIX
TO LICENSING AGREEMENT
A. DEFINED TERMS. Various terms used in this Dispute Resolution Appendix, which
begin with a capital letter, are defined in the Definitional Appendix to
Licensing Agreement. In addition, the following terms used only in this Dispute
Resolution Appendix have the corresponding meanings:
"COMPLEX DISPUTE LIST": The "Complex Dispute List," or if that list is not then
maintained by the American Arbitration Association, another list of individuals
having similar qualifications maintained by the American Arbitration
Association.
"INITIAL EXECUTIVE REVIEW COMMITTEE": A committee consisting of the Vice
President and General Manager of WWT and the Chief Technology Officer of TCB.
"SECOND EXECUTIVE REVIEW COMMITTEE": A committee consisting of the Chief
Executive Officer of WWT and the Chief Financial Officer of TCB.
"QUALIFICATIONS": Inclusion in the Complex Dispute List of having extensive
knowledge or experience, or both, regarding technology similar to the Global
Portal Platform.
The interpretative matters set forth in the Definitional Appendix also apply to
this Dispute Resolution Appendix.
B. DISPUTE RESOLUTION PROCEDURE.
1. GENERAL PROCEDURE. Except as otherwise stated in the Agreement, the Parties
shall resolve all Disputes in accordance with this procedure:
(a) Each Party shall instruct its Representative to promptly
negotiate in good faith with the other Party's Representative
to resolve the Dispute.
(b) If the Representatives do not resolve the Dispute within ten
Business Days (or such longer period as the Representatives
may agree) after the date of referral of the Dispute to them,
the Dispute shall be referred (by either or both of the
Representatives) to the Initial Executive Review Committee for
resolution.
(c) If the Initial Executive Review Committee does not resolve the
Dispute within ten Business Days (or such longer period as
that Committee may agree) from the date of referral to it, the
Dispute shall be referred (by that Committee or any of its
members) to the Second Executive Review Committee for
resolution.
(d) If the Second Executive Review Committee does not resolve the
Dispute within ten Business Days (or such longer period as
that Committee may agree) after the date of referral to it,
either Party may submit the Dispute for resolution by the
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Parties' Presidents, who may submit the Dispute to non-binding
mediation in accordance with Section B.2 of this Dispute
Resolution Appendix.
(e) If the Dispute is not resolved by the parties' Presidents (if
submitted to them) and is not submitted to or resolved by
mediation, then either Party may submit the Dispute to binding
arbitration in accordance with Section B.3 of this Dispute
Resolution Appendix.
A referral under any of Sections B.1(a), B.1(b), and B.1(c) of this
Dispute Resolution Appendix shall be made by written Notice to the
Persons designated in the applicable Section or Sections. That Notice
shall be in a form described in the Agreement or an electronic mail
message and addressed to each Person at his office address or
electronic mail address; each Notice shall be given and effective as
described in the Agreement or, in the case of electronic mail, upon
actual receipt. The date of referral is the last date that Notice is
given to all of the Persons to whom the Dispute must have been
referred.
2. MEDIATION. The mediation of an unresolved Dispute shall be conducted in this
manner:
(a) Either Party may submit the Dispute to mediation by giving
Notice of mediation to the other Party. The Parties shall
attempt to agree upon and appoint a sole mediator who has the
Qualifications promptly after that Notice is given.
(b) If the Parties are unable to agree upon a mediator within ten
days after the date the Dispute is submitted to mediation,
either Party may request the St. Louis office of the American
Arbitration Association to appoint a mediator who has the
Qualifications. The mediator so appointed shall be deemed to
have the Qualifications and to be accepted by the Parties.
(c) The mediation shall be conducted in the St. Louis metropolitan
area at a place and a time agreed by the Parties with the
mediator, or if the Parties cannot agree, as designated by the
mediator. The mediation shall be held within 20 days after the
mediator is appointed.
(d) If either Party has substantial need for information from the
other Party in order to prepare for the mediation, the Parties
shall attempt to agree on procedures for the formal exchange
of information; if the Parties cannot agree, the mediator's
determination shall be effective.
(e) Each Party shall be represented in the mediation by at least
its Representative or another natural Person with authority to
settle the Dispute on behalf of that Party and, if desired by
that Party, by counsel for that Party. The parties'
representatives in the mediation shall continue with the
mediation as long as the mediator requests.
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(f) Unless otherwise agreed by the parties, each Party shall pay
one-half of the mediator's fees and expenses and shall bear
all of its own expenses in connection with the mediation.
Neither Party may employ or use the mediator as a witness,
consultant, expert, or counsel regarding the Dispute or any
related matters.
3. ARBITRATION. The arbitration of an unresolved Dispute shall be conducted in
this manner:
(a) Either Party may begin arbitration by filing a demand for
arbitration in accordance with the Arbitration Rules. The
Parties shall attempt to agree upon and appoint a panel of
three arbitrators promptly after that demand is filed. Each of
those arbitrators must have the Qualifications, and at least
one of those arbitrators must be included in the Complex
Dispute List (unless no list of that kind is then maintained).
(b) If the parties are unable to agree upon any or all of the
arbitrators within ten days after the demand for arbitration
was filed (and do not agree to an extension of that ten-day
period), either Party may request the St. Louis office of the
American Arbitration Association to appoint the arbitrator or
arbitrators, who have the Qualifications (and at least one of
whom must be included in the Complex Dispute List, unless no
list of that kind is then maintained), necessary to complete
the panel in accordance with the Arbitration Rules. Each
arbitrator so appointed shall be deemed to have the
Qualifications and to be accepted by the Parties as part of
the panel.
(c) The arbitration shall be conducted in the St. Louis
metropolitan area at a place and a time agreed by the Parties
with the panel, or if the Parties cannot agree, as designated
by the panel. The panel may, however, call and conduct
hearings and meetings at such other places as the Parties may
agree or as the panel may, on the motion of one Party,
determine to be necessary to obtain significant testimony or
evidence.
(d) The Parties shall attempt to agree upon the scope and nature
of any discovery for the arbitration. If the Parties do not
agree, the panel may authorize any and all forms of discovery,
including depositions, interrogatories, and document
production, upon a showing of particularized need that the
requested discovery is likely to lead to material evidence
needed to resolve the Dispute and is not excessive in scope,
timing, or cost.
(e) The arbitration shall be subject to the Federal Arbitration
Act and conducted in accordance with the Arbitration Rules to
the extent they do not conflict with this Section B.3 of this
Dispute Resolution Appendix. The Parties and the panel may,
however, agree to vary the provisions of this Section B.3 of
this Dispute Resolution Appendix or the matters otherwise
governed by the Arbitration Rules.
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(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or
continuance of the Agreement;
(ii) award remedies or relief either expressly prohibited
by the Agreement or under circumstances not permitted
by the Agreement; or
(iii) grant provisional or temporary injunctive relief
before rendering the final decision or award.
(g) Unless the Parties otherwise agree, all Disputes regarding or
related to the same topic or event that are subject to
arbitration at one time shall be consolidated in a single
arbitration proceeding.
(h) A Party or other Person involved in an arbitration under this
Section B.3 may join in that arbitration any Person other than
a Party if:
(i) the Person to be joined agrees to resolve the
particular dispute or controversy in accordance with
this Section B.3 and the other provisions of this
Dispute Resolution Appendix applicable to
arbitration; and
(ii) the panel determines, upon application of the Person
seeking joinder, that the joinder of that other
person will promote the efficiency, expedition, and
consistency of the result of the arbitration and will
not unfairly prejudice any other party to the
arbitration.
(i) The arbitration hearing shall be held within 30 days after the
appointment of the panel. Upon request of either Party, the
panel shall arrange for a transcribed record of the
arbitration hearing, to be made available to both Parties.
(j) The panel's final decision or award shall be made within 30
days after the hearing. That final decision or award shall be
made by unanimous or majority vote or consent of the
arbitrators constituting the panel, and shall be deemed issued
at the place of arbitration. The panel shall issue a reasoned
written final decision or award based on the Agreement and
Missouri law; the panel may not act according to equity and
conscience or as an amicable compounder or apply the law
merchant.
(k) The panel's final decision or award may include:
(i) recovery of Damages to the extent permitted by the
Agreement; or
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(ii) injunctive relief in response to any actual or
threatened breach of the Agreement or any other actual
or threatened action or omission of a Party under or in
connection with the Agreement.
(l) The panel's final decision or award shall be final and binding
upon the Parties, and judgment upon that decision or award may
be entered in any court having jurisdiction over either or
both of the Parties or their respective assets. The Parties
specifically waive any right they may have to apply or appeal
to any court for relief from the preceding sentence or from
any decision of the panel made, or any question of law
arising, before the final decision or award. If any decision
by the panel is vacated for any reason, the Parties shall
submit that Dispute to a new arbitration in accordance with
this Section B.3.
(m) Each Party shall pay one-half of the arbitrators' fees and
expenses, and shall bear all of its own expenses in connection
with the arbitration. The panel has the authority, however, to
award recovery of all costs and fees (including attorneys'
fees, administrative fees and the panel's fees and expenses)
to the prevailing Party in the arbitration.
4. RECOURSE TO COURTS. Nothing in the Dispute Resolution Procedure limits the
right of either Party to apply to a court or other tribunal having jurisdiction
to:
(a) enforce the Dispute Resolution Procedure, including the
agreement to arbitrate in this Dispute Resolution Appendix;
(b) seek provisional or temporary injunctive relief, in response
to an actual or impending breach of Article 10 of the
Agreement or otherwise so as to avoid irreparable damage or
maintain the status quo, until a final arbitration decision or
award is rendered or the Dispute is otherwise resolved; or
(c) challenge or vacate any final arbitration decision or award
that does not comport with Section B.3 of this Dispute
Resolution Appendix.
5. SUBMISSION TO JURISDICTION. Each Party irrevocably submits to the
jurisdiction of the federal courts of the United States and the state courts of
Missouri located in St. Louis County, Missouri. Each Party waives any defense or
challenge to that jurisdiction based on lack of personal jurisdiction, improper
venue, or inconvenience of forum.
6. CONFIDENTIALITY. The proceedings of all negotiations, mediations, and
arbitrations as part of the Dispute Resolution Procedure shall be privately
conducted. The Parties shall keep confidential all conduct, negotiations,
documents, decisions, and awards in connection with those proceedings under the
Dispute Resolution Procedure.
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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*Confidential treatment requested
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