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EXHIBIT 10.1
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
ALLIANCE AND MARKETING AGREEMENT
This Alliance and Marketing Agreement ("Agreement") is executed as of
the 12th day of October, 1999 by and among The viaLink Company, an Oklahoma
corporation ("viaLink") and i2 Technologies, Inc., a Delaware corporation
("i2").
WHEREAS, viaLink provides certain services via the Internet known as
viaLink's Item Catalog Services (as hereinafter defined) and Chain Pricing
Services (as hereinafter defined) to customers in the Consumer Packaged Goods
and/or Food Service Industries; and
WHEREAS, viaLink and i2 have executed a Securities Purchase Agreement,
a Common Stock Purchase Warrant, and other documents related thereto in
conjunction with this Agreement.
WHEREAS, viaLink desires to utilize the sales, marketing and
technology resources of i2 to market its viaLink Services (as hereinafter
defined) to viaLink's Market (as hereinafter defined) and to other industries;
and
WHEREAS, viaLink and i2 desire to provide connectivity between their
respective products and services; and
WHEREAS, i2, subject to the terms, covenants and conditions of this
Agreement, desires to offer the viaLink Services to its existing and future
customers and Potential Customers (as hereinafter defined); and
WHEREAS, viaLink, subject to the terms and conditions of this
Agreement, desires to allow i2 to offer such viaLink Services to i2's existing
and future customers and Potential Customers; and
WHEREAS, i2, subject to the terms, covenants and conditions of this
Agreement, agrees to market such viaLink Services to its existing and future
customers and Potential Customers; and
WHEREAS, i2 and viaLink desire to execute and enter into certain other
agreements to set forth their mutual agreements regarding the marketing and use
of certain products and services of the parties to accomplish the above
premises, all as more fully described herein and the attachments hereto.
NOW THEREFORE, in consideration of the above premises and the mutual
covenants, agreements, representations and warranties hereinafter set forth,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
1. DEFINITIONS. The following capitalized terms shall have the meanings
given to them below when used in this Agreement:
1.1. "AGREEMENT" means this Alliance and Marketing Agreement, the
License, all Exhibits and Schedules attached hereto, and any
further documents expressly incorporated herein by reference
1.2. "AFFILIATE" shall mean i2 Midwest,Inc., i2 North, Inc., i2
Northwest, LLC, i2 Southwest, Inc. i2 Logistics, and i2 Great
Lakes, Inc., i2 Mid-Market, LLC., i2 New England, Inc., i2
Solutions, Inc., i2 Mid Atlantic, LLC, i2 Southeast, Inc.,
and any Person who is controlled by, or is under common
control with, a Party hereto. The term "control" (including,
with correlative meaning, the terms "controlled by" and
"under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
1.3. "EFFECTIVE DATE" shall be the date upon which the Closing
occurs under the Securities Purchase Agreement executed by
and between the parties hereto as of the Execution Date and
execution by viaLink of the Warrant Agreement to purchase
common stock of viaLink and delivery of such warrant to i2.
1.4. "EXECUTION DATE" shall be the date first shown above.
1.5. "LICENSE" shall be the License to be signed by i2 and
viaLink, which shall be in the form set forth in Exhibit A
hereto.
1.6. "PROPRIETARY INFORMATION" means:
1.6.1. with respect to viaLink, the viaLink Services and
all confidential information and trade secrets
disclosed in connection with the negotiation,
execution, and/or performance of this Agreement,
including, without limitation, information related
to the viaLink Services, all code and writings and
documents relating to the viaLink Services, results,
prices, product information or other data of
viaLink, database formats of viaLink and any other
information of viaLink's licensors, customers or
subscribers, product designs and specifications of
viaLink, release management and version control
standards of viaLink, viaLink's localization support
requirements and technical reference manuals,
customer lists and marketing plans of viaLink,
information disclosed by viaLink in writing that is
marked as confidential at the time of disclosure,
and the terms of this Agreement.
1.6.2. with respect to i2, any information of i2 which i2
identifies in writing as confidential or which, by
its nature, is generally understood to be
confidential information.
1.6.3. Notwithstanding the foregoing however, information
is not Proprietary Information to the extent that
it:
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
1.6.3.1. is or becomes publicly available through no
fault of the receiving party; or
1.6.3.2. was previously known to the receiving
party, not by improper means, as of the
time of its disclosure by the disclosing
party;
1.6.3.3. is rightfully acquired from a third party
which, to the receiving party's knowledge,
is not obligated to keep that information
confidential; or
1.6.3.4. is independently developed by the receiving
party without use of or reference to any
Proprietary Information of the disclosing
party.
1.7. "INITIAL TERM" is defined in Section 9.1 below.
1.8. "viaLINK'S ITEM CATALOG SERVICES" means the subscription
catalog and item information data services offered by
viaLink, excluding Item Movement and Scan Based Trading.
1.9. "viaLINK'S CHAIN PRICING SERVICES" means the subscription
service offered by viaLink that reports aggregated supply
chain pricing.
1.10. "viaLINK'S SERVICES" means, unless otherwise stated,
viaLink's Item Catalog Services and viaLink's Chain Pricing
Services.
1.11. "POTENTIAL CUSTOMER" means a potential user of viaLink
Services with whom i2 and/or viaLink may engage in marketing
activities according to this Agreement.
1.12. "SUBSCRIPTION SERVICE REVENUE" means only those gross
subscription revenues paid directly to viaLink by a customer
of viaLink in the viaLink Market for the access to and/or use
of the viaLink Services, as such viaLink Services are
provided from time to time to customers in the viaLink
Market.
1.12.1. Notwithstanding the foregoing, Subscription Service
Revenue shall not include (a) any fees or other
revenues received by viaLink from customization,
implementation, set-up, licenses, outsourcing, data
management, custom data or support services,
hosting, consulting and other similar and/or related
services; (b) any revenues from other services which
viaLink currently, or may in the future, offer to
its customers other than the viaLink Services; and
(c) any revenues from business ventures, marketing
alliances or other relationships with any third
parties in which viaLink is currently engaged or may
engage in at any time in the future.
1.12.2. Furthermore, and notwithstanding anything to the
contrary in this Agreement, any sums received by i2
pursuant to Section 5.1 and/or any sums paid by i2
to viaLink pursuant to Sections 5.2, 5.3 and/or 5.4
shall not be included in or otherwise be considered
in or affect the calculation of Subscription Service
Revenue.
1.13. "OVERRIDE PAYMENT REVENUE" means only those gross
subscription revenues paid directly to viaLink for the access
to and/or use of the viaLink Services, as such viaLink
Services are provided from time to time to customers in the
viaLink Market, inclusive of the amounts paid to viaLink
pursuant to 5.2 and/or 5.3 of this Alliance Agreement, but
less
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
and except any refunds, credits, or similar discounts or
reimbursements provided or allowed by viaLink to its
customers, and
1.13.1. Notwithstanding the foregoing, Override Payment
Revenue shall not include (a) any fees or other
revenues received by viaLink from customization,
implementation, set-up, licenses, outsourcing, data
management, custom data or support services,
hosting, consulting and other similar and/or related
services; (b) any revenues from other services which
viaLink currently, or may in the future, offer to
its Customers other than the viaLink Services; and
(c) any revenues from business ventures, marketing
alliances or other relationships with any third
parties in which viaLink is currently engaged or may
engage in at any time in the future. .
1.13.2. Furthermore, any sums paid by i2 to viaLink pursuant
to section 5.4 shall not be included in or otherwise
be considered in or affect the calculation of
Override Payment Revenue.
1.14. "viaLINK'S SUBSCRIPTION SERVICES AGREEMENT" shall mean such
Service Agreement(s) regarding the viaLink Services as
viaLink may use or amend, in its sole discretion, from time
to time in connection with the sale of viaLink Services to
viaLink's customers.
1.15. "TERM" shall mean both the Initial Term and any and all
Renewal Terms.
1.16. "RENEWAL TERM" is defined in Section 9.1 of this Agreement
1.17. "PUBLIC EXCHANGE" means service offered via the Internet or
other online computer network whereby multiple companies have
the opportunity to establish electronic connectivity for the
purpose of exchanging information with multiple trading
partners.
1.18. "PRIVATE EXCHANGE" means service offered via the Internet or
other online computer network whereby one single company
establishes electronic connectivity for the purpose of
exchanging information with its trading partners.
1.19. "FOREIGN ENTITY" means a Person which desires to utilize
viaLink Services in its operations outside of the United
States.
1.20. "viaLINK'S MARKET" means the manufacturers, wholesalers,
distributors, brokers, and retailers of consumer packaged
goods and/or food and beverage products for: the food service
industry; grocery, drug, convenience and mass merchandisers;
commissaries; and other specific customers that are agreed to
by i2 and viaLink.
1.20.1. Customers in the mass merchandisers channel shall be
specifically agreed to during the business planning
process set forth in Section 4.7. In the event the
parties fail to reach agreement as to whether such a
customer in the mass merchandiser channel is within
the viaLink Market, the parties shall resolve such
issue pursuant to Section 5.10, with the factor for
such determination being the business attributable
to fast-moving consumer goods.
1.21. "INTELLECTUAL PROPERTY RIGHTS" is defined in Section 11.1.
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
1.22. "SECURITIES PURCHASE AGREEMENT" means that Securities and
Purchase Agreement by and between the parties hereto executed
of even date herewith.
1.23. "LICENSED TRADEMARKS" shall means the respective trademarks
of the parties hereto which are licensed to the other party
pursuant to the terms and conditions of Section 7 of this
Agreement.
1.24. "i2" shall mean i2 Technologies, Inc., and its Affiliates.
1.25. "viaLINK" shall mean The viaLink Company and its Affiliates.
1.26. "PERSON" shall mean any person or entity, whether an
individual, trustee, corporation, general partnership,
limited partnership, limited liability company, trust,
unincorporated organization, business association, firm,
joint venture, governmental agency or authority.
2. RESPONSIBILITIES OF viaLINK During the Term of this Agreement:
2.1. viaLink will form a team to support the relationship
established with i2 pursuant to this Agreement. viaLink will
assign to such team a minimum of five viaLink employees, each
of whom will spend such time as is reasonably necessary to
carry out viaLink's obligations set forth in this Agreement.
One of such persons shall have appropriate authority to
coordinate viaLink's activities with i2 pursuant to this
Agreement.
2.2. viaLink will provide i2 with such marketing and related
information as i2 reasonably needs to perform its duties
under this Agreement, and, as reasonably necessary, shall
update the same.
2.3. viaLink at no charge to i2 will provide such training as the
parties mutually determine is reasonably necessary to train
i2's team, as established pursuant to Section 3.1, with
respect to the nature and use of viaLink's Services, at such
times and places as the parties mutually agree.
Notwithstanding the foregoing, i2 shall be responsible for
any of its costs incurred in attending the training or the
reasonable travel costs of viaLink employees to travel to an
i2 location to conduct the training.
2.4. viaLink will provide i2 with a current reference copy of
viaLink's Subscription Services Agreement, as the same may be
amended from time to time.
2.5. viaLink shall provide i2 with ninety (90) days advance notice
regarding any price changes relating to the viaLink Services.
2.6. viaLink shall allow i2 to establish and maintain an Internet
link to viaLink's website so as to allow its customers to
view the viaLink website.
2.7. viaLink shall participate as a member of the Alliance Program
in and, if reasonably requested by i2, assist in the
organization and implementation of jointly sponsored
marketing events, conferences, executive conferences and
committee meetings related to the subject matter of this
Agreement.
2.8. If i2 establishes a Private or Public Exchange with a
customer who is within the viaLink Market, viaLink shall make
the viaLink Services available to i2 for the purpose of
servicing such Private or Public Exchange.
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
2.9. viaLink shall not be required to host and/or sell any
services or products of i2 unless the parties by mutual
agreement enter into a separate, mutually satisfactory
written agreement relating to the terms and conditions of the
hosting and the amount of compensation to be paid by i2 to
viaLink for the same.
2.10. viaLink will name i2 as the exclusive supply chain planning
member of the viaLink Alliance and will include i2 as a
member of viaLink's industry advisory council.
2.11. Subject to the terms of this Agreement and of the License,
viaLink agrees that i2 may market the viaLink Services
outside of the viaLink Market, as an i2 branded product, any
Public or Private Exchange which is owned, operated or
participated in by i2 in which the Software (as defined in
the License) is utilized by i2.
2.12. viaLink agrees that, during the term of this Agreement if (a)
i2 meets the Goal Basis Revenue targets set forth in Sections
3.12.1, 3.12.2 and 3.12.3, or exercises its right to avoid
termination pursuant to 3.12.5 in reference to said target,
(b) continues to pay all sums due to viaLink pursuant to
Section 5.4, and (c) the License remains in effect and is
extended pursuant to its terms, then, subject to the terms of
this Agreement and of the License, i2 will have exclusive
rights to offer the viaLink Services to customers outside of
the viaLink Market. Provided however, i2 agrees that this
shall not in any manner prevent or prohibit viaLink from
linking or otherwise connecting to or otherwise offering
viaLink Services in the viaLink Market to or through other
Public or Private Exchanges, which Exchanges may or may not
be in competition with similar exchanges, owned, operated or
participated in by i2 ("i2 Exchanges") which may or may not
also offer services similar to those offered by such i2
Exchanges to customers outside of the viaLink Market, or
prevent or prohibit such Public or Private Exchanges from
connecting or linking to or otherwise accessing the viaLink
Services in order to allow both viaLink and or such Public or
Private Exchanges from providing viaLink Services to
customers within the viaLink Market.
3. RESPONSIBILITIES OF i2. During the Term of this Agreement:
3.1. i2 will form a team to support the relationship established
with viaLink pursuant to this Agreement. i2 will assign to
such team a minimum of five i2 employees, each of whom will
spend such time as is reasonably necessary to carry out i2's
obligations set forth in this Agreement. One of such persons
shall have appropriate authority to coordinate i2's
activities with viaLink pursuant to this Agreement.
3.2. i2 shall send its employees who are to provide technical
and/or marketing training with respect to said viaLink
Services to other i2 employees or representatives and/or to
the customers of i2 to such training programs, seminars
and/or meetings as may be mutually determined by the parties
to be reasonably necessary, at such times and places as the
parties mutually agree.
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
3.3. i2 shall use its best efforts to: market, promote, advertise
and publicize the viaLink Services in both the viaLink Market
and other industries and provide Potential Customers with the
marketing, technical and/or training materials relating to
the viaLink Services and any such other relevant,
non-confidential information provided to i2 by viaLink, and
any such Proprietary Information of viaLink as is reasonably
necessary to further said activities; provided, however, that
such Proprietary Information shall, prior to any disclosure
to any third party, be made subject to a written
confidentiality agreement acceptable to viaLink, and binding
on said third party.
3.4. i2 shall not make any warranties, representations, assurances
or statements to any third parties, including, without
limitation, customers and/or Potential Customers of i2,
concerning the features and/or functionality of the viaLink
Services, that are misleading or materially different from
the descriptive literature supplied by viaLink or which
alters, amends or conflicts with the warranties, limitations,
terms and/or conditions of viaLink's then current
Subscription Service Agreement; provided i2 and viaLink agree
that if subsequent to execution of this Agreement, i2 or
viaLink determines that market conditions require i2 to offer
warranties or limitations different from those in the current
Subscription Service Agreement, viaLink and i2 shall
negotiate in good faith to change the warranties or
limitations which i2 may agree to with a customer based on
such market conditions.
3.5. i2 shall assist viaLink in facilitating viaLink's access to
international markets by providing advice and assistance in
determining market requirements and viaLink's capabilities.
3.6. i2 shall participate in and, if reasonably requested by
viaLink, assist in the organization and implementation of
jointly sponsored marketing events, conferences, executive
conferences and committee meetings related to the subject
matter of this Agreement.
3.7. i2 shall use its commercially reasonable efforts to increase
the visibility of both viaLink and the viaLink Services in
the viaLink Market and shall use commercially reasonable
efforts to promote the use of the viaLink Services.
3.8. During the term of this Agreement, viaLink shall be deemed to
have met all the requirements for being a complimentary gold
sponsorship Global Alliance Partner pursuant to i2's
Complementary Software Provider Program ("Alliance Program").
At no additional cost to viaLink, viaLink shall be entitled
to a complimentary gold level sponsorship at all i2 functions
and to all of the Global Alliance Partner benefits under such
Alliance Program, as such benefits are described and
explained on i2's Internet website or other i2 publications,
as the same may be amended from time to time, which
publications are incorporated herein by reference. It is
understood there may be fees charged to i2 Global Alliance
Partners to participate in certain marketing and sales
activities
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
from time to time. Such fees will be charged to viaLink on
the same basis as other i2 Global Alliance Partners.
3.9. During the Term of this Agreement, i2 shall use viaLink
Licensed Trademarks and/or such other designations as are
reasonably required by viaLink in connection with all
advertising, marketing, promotion and/or participation by i2
in any Private Exchanges and/or Public Exchanges relating to
viaLink and to identify viaLink as the provider of viaLink
Services and/or the use of the software functionality
relating thereto.
3.10. If, during the Term of this Agreement, i2 establishes any
Private and/or Public Exchange(s) involving customers in the
viaLink Market, i2 shall exclusively utilize the viaLink
Services for and/in relation thereto.
3.11. i2 shall cause its Affiliates and any permitted
subcontractors to execute such agreements as reasonably
required by viaLink in order to protect confidentiality and
otherwise obtain full compliance by such Affiliates and/or
permitted subcontractors with, to the extent applicable, this
Agreement and the License.
3.12. i2 warrants and represents as follows:
3.12.1. that for the calendar year ended December 31, 2000,
i2 will generate gross revenue which forms the basis
for sums due to viaLink and/or i2 pursuant to
Sections 5.1 through 5.4 inclusive of this Agreement
("Goal Basis Revenue") in an amount of at least
$5,000,000; and
3.12.2. that for the calendar year ended December 31, 2001,
i2 will generate at least $25,000,000 in Goal Basis
Revenue.
3.12.3. that for the calendar year ended December 31, 2002,
i2 will generate at least $50,000,000 in Goal Basis
Revenue.
3.12.4. Within thirty (30) days after the end of each
calendar year covered by this Section 3.12, i2 shall
deliver to viaLink a detailed accounting of all such
gross revenues which relate to a determination of
whether or not i2 has met its obligations under this
Section 3.12. i2 shall also make available to
viaLink all records and documents relating to such
accounting.
3.12.5. If i2 breaches any of its obligations under this
Section 3.12, viaLink's sole remedy for such breach
shall be limited to the following:
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
3.12.5.1. Within thirty (30) days after viaLink
receives all of the information required by
Section 3.12.4 and all additional documents
that viaLink reasonably requests in
conjunction therewith, viaLink may provide
a thirty (30) day prior written notice of
termination. If within the period of said
thirty (30) notice i2 pays to viaLink
seventy percent (70%) of the difference
between the actual Goal Basis Revenue and
the required Goal Basis Revenue for the
relevant year as set forth in section
3.12.1, 3.12.2, or 3.12.3, respectively. If
i2 does not pay such additional amount,
this Agreement shall terminate as set forth
in viaLink's termination notice under this
Section.
3.12.5.2. viaLink's exercise of such right shall not
however affect the obligations of either
party to pay to the other such sums as may
due to the party for transactions with
customers occurring before the effective
date of such termination or such other
rights or obligations which survive the
termination of this Agreement.
3.13. i2, at no cost to viaLink, shall provide training to viaLink
on its products and services to viaLink employees at such
times and places as the parties mutually agree.
Notwithstanding the foregoing, viaLink shall be responsible
for any of its costs incurred in attending the training or
the reasonable travel costs of i2 employees to travel to a
viaLink location to conduct the training.
3.14. Unless otherwise agreed, i2 shall only use viaLink to host
viaLink Services for any customers in the viaLink Market.
3.15. Unless otherwise agreed, in addition to other sums due under
this Agreement, i2 agrees that in the event that viaLink
hosts viaLink Services for customers outside of the viaLink
Market, viaLink shall be reimbursed for all of its costs of
implementing, developing, operating and/or hosting such
viaLink Services plus ten percent (10%) thereof; provided i2
shall have no obligation to use viaLink to host viaLink
Services for customers outside of the viaLink Market.
3.16. i2 shall be solely responsible for, and shall indemnify,
reimburse, defend, protect and hold viaLink harmless from,
any and all taxes on all transactions permitted pursuant to
the License and this Agreement.
4. JOINT RESPONSIBILITIES OF THE PARTIES
4.1. Each party shall regularly inform the other party about
general market developments and factors relating to the
viaLink Services in the marketplace and the possibility of
incorporating viaLink Services into projects and customer
implementations in which they are involved. This information
shall be treated as Proprietary Information of the party
providing the information.
4.2. Each party shall inform the appropriate personnel in its
organization of the existence of this Agreement and its
material obligations under this Agreement.
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
4.3. Each party shall endeavor to keep the other party apprised of
new products and services relating to the viaLink Services.
4.4. The parties shall exchange such other information and conduct
such other activities as the parties mutually agree.
4.5. The parties through their respective project coordinators
will meet monthly to review each party's respective sales
efforts, contacts and plans relating to the marketing of the
viaLink Services and the parties' respective compliance with
the terms and conditions of this Agreement.
4.6. The parties shall meet at least quarterly to perform a
detailed review of the status of the relationship established
pursuant to this Agreement and the compliance of the parties
with their respective obligations under this Agreement.
4.7. The parties will create a mutually agreed business and
marketing communication plan within ninety (90) days from the
Effective Date that will outline the targeted business
objectives and sales/marketing activities of the parties
pursuant to the relationship created by this Agreement. Each
of the parties agrees to use reasonable commercial efforts to
perform its obligations delineated in such business plan.
4.8. Subject to the terms and conditions set forth in the License,
the parties will cooperate to jointly develop interfaces as
necessary between i2 and viaLink products and services
relevant to this Agreement. Ownership of any jointly
developed interfaces shall be as set forth in the License.
4.9. During the Term of this Agreement, each party shall comply
with all applicable laws.
5. COMMISSIONS AND PAYMENTS.
5.1. During the term of this Agreement, viaLink shall pay i2
[****] percent ([****]%) of the Subscription Service Revenue
with respect to which i2 had Significant Involvement (as
hereinafter defined) ("i2 Commission Fee"). Notwithstanding
the foregoing, such amount otherwise due to i2 with respect
to such a customer shall be increased to [****] percent
([****]%) if such customer is a Foreign Entity; provided,
however, that before viaLink is obligated to provide any
viaLink Services to any Foreign Entity, viaLink and i2 first
must have reached a mutually acceptable agreement pursuant to
which i2 agrees to reimburse viaLink for any additional costs
or expenses incurred by viaLink as a result of providing
viaLink Services to such Foreign Entity. If this Agreement
expires or is terminated for other than breach by i2, i2
shall, for a period of two years thereafter, continue to
receive the i2 Commission Fee based upon the service levels
during the last full month of the Term of the Agreement,
subject however to adjustment thereon for any changes in
viaLink's standard subscription prices, but less any amount
attributable to any viaLink customer which terminates its
Subscription Services Agreement with viaLink to the extent
any part of said final month's i2 Commission Fee was
attributable to the Subscription Services Agreement of such
customer.
5.1.1. "Significant Involvement" shall be determined by the
following factors:
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The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
5.1.1.1. the extent to which i2 participated in the
introduction of the viaLink Services to an
individual whose position with a Potential
Customer entitles such person to either
make or substantially influence the
decision of the Potential Customer to enter
into a Subscription Services Agreement for
viaLink Services;
5.1.1.2. the extent to which i2 participated in the
selling process, including, but not limited
to, determining Potential Customer
requirements and suitability of viaLink
Services, identification of the appropriate
final decision makers, cost-benefit
analysis, proposal development and
presentation, technology and/or
interoperability assessment and
closing/contracting;
5.1.1.3. the extent to which i2 participates in
and/or undertakes responsibility with
regard to account management of the viaLink
customer, including, but not limited to,
relationship management and additional
business development activity; and
5.1.1.4. such other factors as may be relevant to a
particular customer of the viaLink
Services.
5.2. During the Term of this Agreement, if i2 establishes,
operates, participates in or otherwise operates a Private
Exchange for any customer which is involved in any commercial
activity within the viaLink Market, i2 shall pay to viaLink a
fee equal to [****] percent ([****]%) of the subscription
fees that viaLink would charge such customer and its trading
partners with which such customer is connected or otherwise
linked on such i2 Private Exchange (based on viaLink's then
current listed standard subscription prices without discount)
if such customer and/or trading partners had instead elected
to use viaLink's Services ("Private Exchange Service Fee").
Notwithstanding the foregoing, the Private Exchange Service
Fee payable to viaLink with respect to such customer shall be
reduced to [****] percent ([****]%) if such customer is a
Foreign Entity provided, however, that before viaLink is
obligated to provide any viaLink Services to any Foreign
Entity, viaLink and i2 first must have reached a mutually
acceptable agreement pursuant to which i2 agrees to reimburse
viaLink for any additional costs or expenses incurred by
viaLink as a result of providing viaLink Services to such
Foreign Entity. Nothing in this Section shall be construed as
in any way changing any restrictions otherwise placed on i2
pursuant to the License or elsewhere in this Agreement.
5.2.1. Upon termination of this Agreement, if i2 elects to
extend the License pursuant to its terms, i2 shall
continue to pay such Private Exchange Service Fees
to viaLink for the duration of the License.
5.3. During the Term of this Agreement, for any viaLink Services
provided to any customer within the viaLink Market through a
Public Exchange which is owned, marketed, operated or
participated in by i2, i2 shall pay viaLink [****] percent
([****]%) of the subscription fees that viaLink would charge
such customer and its trading partners, as the case may be,
with which such customer is connected or otherwise linked on
such Public Exchange
11
12
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
(based on viaLink's then current listed standard subscription
prices without discount) if such customer had instead elected
to use viaLink's Services ("Public Exchange Service Fee").
Nothing in this Section shall be construed as in any way
changing any restrictions otherwise placed on i2 pursuant to
the License or elsewhere in this Agreement.
5.3.1. Upon termination of this Agreement, if i2 elects to
extend the License pursuant to its terms, i2 shall
continue to pay such Public Exchange Service Fees to
viaLink for the duration of the License.
5.4. During the Term of this Agreement, if i2 provides viaLink
Services or other services that, when considered in the
aggregate, are the same or substantially similar to the
viaLink Services to any customer not within the viaLink
Market on either a Private Exchange or on a Public Exchange
not hosted by viaLink, i2 shall pay to viaLink a fee equal to
[****] percent ([****]%) of the subscription fees that
viaLink would charge such customer and/or its trading
partners with which such customer is connected or otherwise
linked on such Private or Public Exchange (based on viaLink's
then current listed standard subscription prices without
discount) if such customer had elected to use viaLink's
Services. ("Undifferentiated Service Fee"). Nothing in this
Section shall be construed as in any way changing any
restrictions otherwise placed on i2 pursuant to the License
or elsewhere in this Agreement. If i2 and viaLink disagree as
to whether i2 is providing other services that, when
considered in the aggregate, are the same or substantially
similar to the viaLink Services to any customer not within
the viaLink Market, i2 and viaLink agree to submit the matter
to arbitration in accordance with Section 5.10 of this
Agreement.
5.4.1. Upon termination of this Agreement, if i2 elects to
extend the License pursuant to its terms, i2 shall
continue to pay such Undifferentiated Service Fees
to viaLink for the duration of the License. If i2
elects not to extend such License after the
termination of this Agreement, i2 shall, for a
period of two years thereafter, continue to pay to
viaLink an amount equal to the sum which it received
for the last full month of the Term of the Agreement
less the amount attributable to any customer of i2
(upon which such sum is based) who terminates its
services agreement with i2.
5.5. Notwithstanding anything to the contrary in this Agreement,
if, on or before January 31, 2000, viaLink enters into
subscription and/or services agreements of any kind with
[**********], [**********], [**********], [**********],
[**********], or [**********], unless the parties mutually
agree otherwise, viaLink shall not, at any time, be obligated
to pay i2 any sums which would otherwise be due to i2
pursuant to Section 5 of this Agreement or any of its
subsections based on any revenue from such companies or their
affiliated companies, divisions or subsidiaries.
5.6. During the Term of this Agreement, viaLink shall pay to i2
five percent (5%) of all Override Payment Revenue collected
by viaLink in each month of this Agreement.
12
13
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
5.7. Any sums payable by a party pursuant to Sections 5.1 through
5.5 inclusive shall be paid by the last day of the month
following the month of collection.
5.8. Any sums payable by viaLink pursuant to Section 5.6 shall be
paid to i2 by the last day of the month following the month
in which such amounts were received by viaLink.
5.9. Any sums which are not reasonably disputed due by a party
pursuant to this Agreement and which are not paid when due
shall bear interest at the rate of (i) one percent (1%) per
month or (ii) the maximum amount allowed by law, whichever is
less.
5.10. The parties agree and acknowledge that determination of
whether i2 is entitled to the i2 Commission Fee set forth in
Section 5.1 and/or the determination of whether a customer or
trading partner is within the viaLink Market may not always
be clear. As such, if the respective coordinators of the
parties cannot agree on a resolution of either such issue,
then within ten (10) days after either party notifies the
other party that they cannot so agree, one senior management
employee of each party will meet in person or by
teleconference to attempt to resolve the issue. If at such
meeting, such senior management employees cannot agree on the
resolution of said issue, then the only further method of
resolving said issue shall be for either party to submit the
matter to binding arbitration. If the parties cannot agree on
an arbitrator, the American Arbitration Association ("AAA")
shall be used to choose the arbitrator to arbitrate the issue
pursuant to the AAA's then current commercial arbitration
rules. The arbitrator shall be a person who is familiar with
the issue(s) involved in the arbitration. The arbitration
shall be held in the Dallas, Texas offices of the AAA, or, if
the parties agree, may be handled by teleconference. The
arbitration shall be completed within forty-five (45) days of
the date that the arbitration demand is made. Prior to such
arbitration each party shall make available to the other
party such documents as are reasonably relevant to the issues
which are the subject of the arbitration. All such documents
produced pursuant to this Section shall be deemed to be
Proprietary Information. Each party shall bear its own costs
incurred in or as a result of the arbitration; provided
however the costs or expenses incurred by the arbitrator
shall be split equally by the parties. All information
relating to the arbitration process shall be Proprietary
Information of each party; and provided, however, such
information may be revealed if it becomes relevant to any
litigation between the parties or if such disclosure is
required by law. The decision of the Arbitrator in regards to
the issues before him shall be final and binding upon the
parties
6. CONFIDENTIALITY/NONDISCLOSURE:
6.1. It is expected that the parties may disclose to each other
certain Proprietary Information
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14
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
6.2. RIGHTS AND OBLIGATIONS. All Proprietary Information owned
solely by one party and disclosed to the other party shall
remain solely the property of the disclosing party. The
parties agree to hold each other's Proprietary Information in
confidence. The receiving party will limit disclosure of the
disclosing party's Proprietary Information to the receiving
party's employees who have a need to know and who have signed
written agreements enabling the receiving party to fully
comply with its obligations hereunder. The receiving party
shall not make the disclosing party's Proprietary Information
available in any form to any third party, except to
contractors with a need to know and with which the receiving
party has written agreements in place enabling the receiving
party to fully comply with its obligations hereunder. Each
party agrees not to use the other party's Proprietary
Information for any purpose other than the implementation of
this Agreement. This Section shall survive termination or
expiration of this Agreement. Each party will be liable for
any unauthorized disclosure or uses by its employees, agents
and/or contractors of the other party's Proprietary
Information. Without prejudice to the rights and remedies
otherwise available to a party hereto, each of the parties
shall be entitled to equitable relief by way of injunction or
otherwise if the other party hereto or any of its employees,
agents or contractors breach or threaten to breach any of the
provisions of this Section.
7. TRADEMARK USAGE:
7.1. For the Term of this Agreement, and subject to the terms of
this Agreement, i2 grants to viaLink a nonexclusive,
worldwide, royalty free, fully paid-up license to use in
connection with advertising and marketing the relationship
created by this Agreement, i2's product names, service marks
and trademarks ("i2 Licensed TradeMarks"). viaLink shall use
such i2 Licensed Trademarks as designated by i2 when
marketing or promoting i2 products or services. viaLink shall
not have any right to sublicensee such rights granted
pursuant to this Section 7.1.
7.2. For the Term of this Agreement, and subject to the terms of
this Agreement, viaLink grants to i2 a nonexclusive,
worldwide, royalty free, fully paid-up license to use in
connection with advertising and marketing viaLink's Services
in the viaLink's Market, viaLink's service and or product
names relating to the viaLink Services, including, without
limitation, viaLink(R) Item Catalog and viaLink(R) Chain
Pricing ("viaLink Licensed TradeMarks"). i2 shall use such
viaLink Licensed Trademarks as designated by viaLink when
marketing or promoting viaLink products or services. i2 shall
not have any right to sublicense such rights granted pursuant
to this Section 7.2.
7.3. RIGHTS AND OBLIGATIONS REGARDING TRADEMARK LICENSES:
7.3.1. PARTIES. For purposes of this Agreement the party
granting the license in the Licensed TradeMarks
shall be referred to as the "Trademark Licensor" and
the party receiving the rights to use the
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15
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
Licensed TradeMarks of the other party hereto shall
be referred to as the "Trademark Licensee".
7.3.2. MAINTENANCE OF QUALITY. In the course of producing
and distributing the products or services authorized
by this Agreement under the Licensed TradeMarks, the
Trademark Licensee shall maintain and adhere to
standards of quality and technical specifications
("Standards and Specifications") as reasonably
required from time to time by the Trademark
Licensor. The Standards and Specifications are
and/or shall be designed to ensure that the quality
of any of the services or products produced,
packaged, and licensed under the Licensed TradeMarks
are consistent with the quality of the products
distributed under the Licensed TradeMarks by the
Trademark Licensor or with the reputation enjoyed by
the Licensed TradeMarks.
7.3.3. To ensure that the Standards and Specifications
hereinabove described are maintained, the Trademark
Licensor and its authorized agents and
representatives shall have the right at all
reasonable times, with prior notice to the Trademark
Licensee, to inspect reasonable samples of the
products and to inspect the books and records of a
party, all as they relate to such party's compliance
with the Standards and Specifications.
7.3.4. The Trademark Licensee shall, from time to time,
upon the request of the Trademark Licensor, furnish
without cost to Trademark Licensor a reasonable
number of samples of the Products, which samples may
be selected at random by Trademark Licensor.
7.3.5. Trademark Licensee acknowledges Trademark Licensor's
exclusive right, title, and interest in Trademark
Licensor's Licensed Trademarks and acknowledges that
nothing herein shall be construed to accord to
Trademark Licensee any rights in any of the Licensed
TradeMarks except as otherwise expressly so provided
in this Agreement. Trademark Licensee acknowledges
that its use of the Licensed TradeMarks hereunder
will not create in it any right, title or interest
in the Trademark Licensor's Licensed TradeMarks and
that all such use of the Licensed Marks and the
goodwill generated thereby will inure to the benefit
of Trademark Licensor. Trademark Licensee warrants
and represents with respect thereto as follows:
15
16
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
7.3.5.1. Trademark Licensee will not at any time
challenge Trademark Licensor's right,
title, or interest in the Licensed
TradeMarks or the validity of any of the
Licensed Marks or any registration thereof;
7.3.5.2. Trademark Licensee will not do or cause to
be done or omit to do anything, the doing,
causing, or omitting of which would contest
or in any way impair or tend to impair the
rights of Trademark Licensor in the
Licensed TradeMarks;
7.3.5.3. Trademark Licensee will not represent that
it has any ownership in or rights with
respect to the Licensed TradeMarks other
than rights conferred by this Agreement;
and
7.3.5.4. Trademark Licensee will not, either during
or subsequent to the term of this
Agreement, use any trademark, service xxxx,
trade name, insignia or logo that is
confusingly similar to or a colorable
imitation of any of the Licensed
TradeMarks.
7.3.5.5. Trademark Licensee will comply with all
laws governing production, distribution,
licensing, and marketing of the Products.
7.3.5.6. Trademark Licensee shall display, in a
manner consistent with Trademark Licensor's
Standards and Specifications, the Licensed
TradeMarks on packaging for each of the
products and services, visual displays on
initial computer screens, and in marketing
activities respecting the products and
services.
7.3.5.7. Trademark Licensee shall not use the
Licensed TradeMarks on or in connection
with any screen display, packaging, or
marketing material to which Trademark
Licensor at any time reasonably objects.
7.3.5.8. Trademark Licensee shall (1) cause the
appropriate designation "TM" "SM" or the
registration symbol "(R)" to be placed
adjacent to the Licensed TradeMarks in
connection with each use or display thereof
and to indicate such additional information
as Trademark Licensor shall reasonably
specify from time to time concerning the
license rights under which Trademark
Licensee uses the Licensed Marks; and (2)
comply with all laws pertaining to
trademarks in force.
7.3.6. CHANGES AND MODIFICATIONS TO THE LICENSED MARKS.
Trademark Licensor expressly reserves the right from
time to time to modify and change the Licensed
TradeMarks. The Licensed TradeMarks, as so modified
or changed, shall for all purposes be deemed to be
the Licensed TradeMarks referred to in this
Agreement. Any and all such modifications or changes
in said Licensed TradeMarks developed or adopted by
Trademark Licensor shall be the sole and absolute
property of Trademark Licensor, and Trademark
Licensor may incorporate the same in the Licensed
TradeMarks and shall have the exclusive right to
register such modified or changed marks as
trademarks and/or service marks.
7.3.7. INFRINGEMENT:
16
17
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
7.3.7.1. Trademark Licensee and Trademark Licensor
shall each provide the other with prompt
notice of any actual or apparent
infringement of the Licensed TradeMarks,
any petition to cancel any registration of
any of the Licensed TradeMarks, or any
attempted use of or any application to
register any xxxx confusingly similar to,
or a colorable imitation of, any of the
Licensed TradeMarks of which it becomes
aware. Trademark Licensor shall have
primary responsibility to:
7.3.7.1.1. Institute and prosecute any
actions for such infringement of
the Licensed Marks;
7.3.7.1.2. Defend any petition to cancel
any registration of any of the
Licensed TradeMarks; and
7.3.7.1.3. Oppose any attempted use of or
any application to register any
xxxx confusingly similar to, or a
colorable imitation of, any of
the Licensed TradeMarks.
7.3.7.2. Any damages and costs recovered through
such proceedings shall belong exclusively
to Trademark Licensor, and Trademark
Licensor shall be solely responsible for
all costs and expenses (including
attorney's fees) of prosecuting such
actions. Trademark Licensee shall provide
Trademark Licensor with reasonably
requested assistance in connection with
such proceedings, and Trademark Licensor
shall reimburse Trademark Licensee's
reasonable out-of-pocket costs of providing
such assistance. Trademark Licensor shall
keep Trademark Licensee informed of the
status of any such proceeding and supply
Trademark Licensee with any reasonably
requested documents regarding such
proceeding.
7.3.8. Trademark Licensee shall defend, indemnify and save
harmless Trademark Licensor, its subsidiaries and
affiliates, and their respective successors and
assigns from all losses, costs, liabilities,
damages, claims, and expenses of every kind and
description, including reasonable attorney's fees,
arising out of or resulting from any act or omission
of Trademark Licensee or any permitted sublicensee
relating to the production, distribution, licensing,
or marketing of any of the products or services in
connection with which the Licensed TradeMarks are
used, including, but not limited to (1) unfair or
fraudulent advertising claims, warranty claims, and
product defect or liability claims pertaining to the
products or services; and (2) claims for
unauthorized use or misuse of any patent, trademark,
copyright, or other proprietary right owned, used or
controlled by any third party pertaining to the
production, distribution, licensing, or marketing of
the products or services.
7.3.8.1. In addition to any other rights or remedies
granted under this Agreement, but subject
to the Trademark Licensee's right to cure
as hereinafter set forth, Trademark
Licensor may, at its option, upon written
notice to Trademark Licensee, without
prejudice to
17
18
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
any other remedies it may have, terminate
the rights granted to the Trademark
Licensee in the Licensed Trademarks
pursuant to this Agreement if the Trademark
Licensee violates any of its obligations
under this Section 7; provided however
Trademark Licensee shall have ten (10) days
after receipt of such notice to cure any
alleged breach.
7.3.8.2. Trademark Licensee agrees that the remedy
at law of Trademark Licensor for any act or
event that constitutes an event of
termination under Section 7 of this
Agreement, Trademark Licensor shall be
entitled to seek and/or obtain injunctive
relief, specific performance or other such
equitable relief.
7.3.9. Upon the termination of this Agreement for any
reason, all rights of Trademark Licensee to use the
Licensed TradeMarks in the Territory shall
immediately thereafter cease. Trademark Licensee
shall not thereafter operate or conduct business
under any name or in any manner that might tend to
give the general public the impression that this
Agreement is still in force, or that Trademark
Licensee any right to use any of the Licensed
TradeMarks.
7.3.10. The indemnification obligations and set forth in
this Section 7 shall survive the termination and/or
expiration of this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES:
8.1. Representations and Warranties of viaLink:
8.1.1. viaLink is a corporation duly organized, validly
existing and in good standing under the laws of the
State of Oklahoma and has full corporate power and
authority to enter into this Agreement.
8.1.2. The execution, delivery and performance by viaLink
of this Agreement and the agreements, instruments
and documents contemplated by this Agreement do not
breach any term or provision of or constitute a
default under any material indenture, mortgage, deed
of trust, contract, agreement, lease or other
commitment or instrument to which viaLink is a party
or by which viaLink or its assets or properties are
bound, do not conflict with any provision of the
certificate of incorporation or bylaws of viaLink
and do not constitute an event which, with the lapse
of time or action by a third party, could result in
any default under any of the foregoing.
8.1.3. The execution, delivery and performance by viaLink
of this Agreement and the agreements, instruments
and documents contemplated by this Agreement do not
violate any provision of, or constitute default
under, any law, rule or regulation, or any court
order, writ, injunction or decree, of any court or
other governmental agency or instrumentality
applicable to or binding upon viaLink. viaLink has
full power, authority and legal right to enter into
this Agreement and the agreements, instruments and
documents
18
19
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
contemplated by this Agreement and to consummate the
contemplated transactions.
8.1.4. This Agreement and the agreements, instruments and
documents contemplated by this Agreement have been
duly authorized by all requisite action of the
directors and shareholders of viaLink. Upon
execution and delivery by viaLink of this Agreement
and the agreements, instruments and documents
contemplated by this Agreement, they will each be a
valid and binding obligation of viaLink, enforceable
in accordance with its terms, except as enforcement
may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights
of creditors generally. Notwithstanding the
foregoing, no representation or warranty is made
regarding the availability of equitable remedies.
8.1.5. There is no agent's, broker's or finder's fee or
commission payable in connection with this Agreement
by virtue of or resulting from any action or
agreement of viaLink or its affiliates or
associates.
8.1.6. REPRESENTATIONS AND WARRANTIES OF i2.
8.1.6.1. i2 is a corporation duly organized, validly
existing and in good standing under the
laws of the State of Delaware and has full
corporate power and authority to enter into
this Agreement.
8.1.6.2. The execution, delivery and performance by
i2 of this Agreement and the agreements,
instruments and documents contemplated by
this Agreement by do not breach any term or
provision of or constitute a default under
any material indenture, mortgage, deed of
trust, contract, agreement, lease or other
commitment or instrument to which i2 is a
party or by which i2 or its assets or
properties are bound, do not conflict with
any provision of the certificate of
incorporation or bylaws of i2 and do not
constitute an event which, with the lapse
of time or action by a third party, would
result in any default under any of the
foregoing.
8.1.6.3. The execution, delivery and performance by
i2 of this Agreement and the agreements,
instruments and documents contemplated by
this Agreement do not violate any provision
of, or constitute default under, any law,
rule or regulation, or any court order,
writ, injunction or decree, of any court or
other governmental agency or
instrumentality applicable to or binding
upon i2. i2 has full power, authority and
legal right to enter into this Agreement
and the agreements, instruments and
documents contemplated by this Agreement
and to consummate the contemplated
transactions.
8.1.6.4. This Agreement and the agreements,
instruments and documents contemplated by
this Agreement have been duly authorized by
all requisite action of the directors and
shareholders of i2. Upon execution and
delivery by i2 of this Agreement and the
agreements, instruments and documents
19
20
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
contemplated by this Agreement, they will
each be a valid and binding obligation of
i2, enforceable in accordance with its
terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization
or similar laws affecting the rights of
creditors generally. Notwithstanding the
foregoing, no representation or warranty is
made regarding the availability of
equitable remedies. There is no agent's,
broker's or finder's fee or commission
payable in connection with this Agreement
by virtue of or resulting from any action
or agreement of i2 or its affiliates or
associates.
9. TERM AND TERMINATION
9.1. The Initial Term of this Agreement shall commence on the
Effective Date and, unless sooner terminated in accordance
with its terms, shall end on December 31, 2003. It will
thereafter automatically renew on a year to year basis
("Renewal Term") unless a party, upon at least three (3)
months written notice prior to end of the Initial Term or the
then current Renewal Term, as the case may be, notifies the
other party that it will terminate the Agreement as of the
end of such Term or Renewal Term.
9.1.1. Notwithstanding anything to the contrary in this
Agreement, the parties agree and understand that if
the Closing of the Securities Purchase Agreement
does not occur, this Agreement is null and void and
of no further force and effect.
9.2. In addition to such rights of termination as may be expressly
provided to one or both parties elsewhere in this Agreement,
a party may terminate this Agreement:
9.2.1. If the other party fails to pay any sums due
hereunder to that party and fails to cure the same
within ten (10) days after receipt of written notice
of such default;
9.2.2. If the other party materially fails to fulfill any
of its material obligations under this Agreement or
under the License (a "breach"), if such breach does
not otherwise permit the non-breaching party to
terminate pursuant to any other term of this
Agreement or the License, and the breaching party
fails to cure such breach within thirty (30) days
after receiving written notice from the
non-breaching party of such breach and the intention
of such non-breaching party to terminate this
Agreement; provided however that with respect to
those breaches which are curable but which cannot be
reasonably cured within such thirty (30) day period,
the breaching party shall have such period of time
to cure such breach as would be required by a party,
in the exercise of good faith and commercially
reasonable efforts, to cure such breach; provided
further, that such breaching party shall in fact
exercise such good faith and such commercially
reasonable efforts to attempt to cure such breach.
The failure to cure such breach as stated in the
preceding sentence will result in the termination of
this Agreement as of the end of such period without
prejudice to any other rights the parties may have;
or
20
21
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
9.2.3. Immediately, and notwithstanding the foregoing, upon
written notice if
9.2.3.1. The other party is adjudged insolvent or
bankrupt, or upon the institution of any
proceeding against the other party seeking
relief, reorganization, or arrangement
under any laws relating to insolvency, or
for the making of any assignment for the
benefit of creditors, or upon the
appointment of a receiver, liquidator or
trustee of any of the other party's
property or assets, or upon liquidation,
dissolution or winding up of the other
party's business; or
9.2.3.2. The other party breaches the
confidentiality provisions set forth in
Section 6; or
9.2.3.3. The other party breaches the License.
9.3. Within thirty (30) days after the termination or expiration
of this Agreement, except to the extent otherwise allowed
under the License, each party shall return to the other party
all Proprietary Information and shall return or dispose of
(as mutually agreed) all advertising materials and other
property, including all Proprietary Information, furnished to
it by the other party pursuant to this Agreement. Each party
shall certify in writing to the other that it has done so.
10. INDEMNIFICATION.
10.1. Subject to the provisions of this Section 10 and all of its
subsections, viaLink will indemnify in respect of, and hold
i2 and its affiliates and their respective officers,
directors, employees and agents harmless against, any and all
damages, claims, deficiencies, losses, including taxes, and
all expenses (including interest, penalties, and attorneys'
and accountants' fees and disbursements but reduced by any
tax savings, benefits or offsets to which any party shall be
entitled directly or indirectly by reason thereof)
(collectively "Damages") resulting from any
misrepresentation, breach of warranty or nonfulfillment or
failure to perform any covenant or agreement on the part of
viaLink under this Agreement.
10.2. Subject to the provisions of this Section 10 and all of its
subsections, i2 agrees to indemnify in respect of, and hold
viaLink and its affiliates and their respective officers,
directors, employees and agents harmless against, any and all
Damages resulting from any misrepresentation, breach of
warranty, or nonfulfillment or failure to perform any
covenant or agreement on the part of i2 or any of its
Affiliates under this Agreement or the License.
10.3. METHOD OF ASSERTING CLAIMS, ETC. The party or parties
claiming indemnification under the Agreement (whether one or
more) are hereinafter collectively referred to as the
"Indemnified Party" and the party against whom such claims
are asserted hereunder is hereinafter referred to as the
"Indemnifying Party." All claims for indemnification by any
21
22
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
Indemnified Party under this Agreement will be asserted and
resolved as follows:
10.3.1. (a) In the event that any claim or demand for which
an Indemnifying Party would be liable to an
Indemnified Party hereunder is asserted against or
sought to be collected from such Indemnified Party
by a third party (a "Third Party Claim"), such
Indemnified Party will with reasonable promptness
notify the Indemnifying Party of such claim or
demand, specifying the nature of and specific basis
for such claim or demand and the amount or the
estimated amount thereof to the extent then feasible
(which estimate will not be conclusive of the final
amount of such claim and demand (the "Claim
Notice"). The Indemnifying Party will not be
obligated to indemnify such Indemnified Party with
respect to any such claim or demand to the extent
the failure of such Indemnified Party to promptly
notify the Indemnifying Party of such a claim or
demand materially prejudices the Indemnifying
Party's ability to defend against the claim or
demand. The Indemnifying Party will have thirty (30)
days from the personal delivery or mailing of the
Claim Notice (the "Notice Period") to notify such
Indemnified Party (i) whether or not it disputes the
liability of the Indemnifying Party to such
Indemnified Party hereunder with respect to such
claim or demand and (ii) whether or not it desires
at the sole cost and expense of the Indemnifying
Party, to defend such Indemnified Party against such
claim or demand; provided, however, that such
Indemnified Party is hereby authorized prior to and
during the Notice Period to file any motion, answer
or other pleading which it deems necessary or
appropriate to protect its interests or those of the
Indemnifying Party and not materially prejudicial to
the Indemnifying Party; provided, further, nothing
contained in the immediately preceding proviso will
be deemed to authorize the Indemnified Party to make
any filings referenced therein after the
Indemnifying Party has given notice of the
Indemnifying Party's intent to assume the defense of
the applicable Third Party Claim. In the event that
the Indemnifying Party notifies such Indemnified
Party within the Notice Period that it desires to
defend such Indemnified Party against such claim or
demand, except as hereinafter provided, the
Indemnifying Party will have the exclusive right to
defend by all appropriate proceedings. If such
Indemnified Party desires to participate in, but not
control, any such defense or settlement it may do so
at its sole cost and expense. If requested by the
Indemnifying Party, such Indemnified Party agrees to
cooperate with the Indemnifying Party and its
counsel in contesting any claim or demand which the
Indemnifying Party elects to contest, and, if
appropriate and related to the claim in question, in
making any counterclaim against the person asserting
the third party claim or demand, or any
cross-complaint against any person. No claim may be
settled by the Indemnifying Party without the
consent of such Indemnified Party, which consent
22
23
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
will not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, in
connection with a Third Party Claim asserted against
both such Indemnified Party and the Indemnifying
Party, if (i) such Indemnified Party has available
to it defenses which are in addition to those
available to the Indemnifying Party, (ii) such
Indemnified Party has available to it defenses which
are inconsistent with the defenses available to the
Indemnifying Party or (iii) a conflict exists or may
reasonably be expected to exist in connection with
the representation of both such Indemnified Party
and the Indemnifying Party by the legal counsel
chosen by the Indemnifying Party, such Indemnified
Party will have the right to select its own legal
counsel subject to the approval of such legal
counsel by the Indemnifying Party, such approval not
to be unreasonably withheld, conditioned or delayed.
If such Indemnified Party selects its own legal
counsel pursuant to the immediately preceding
sentence and the underlying Third Party Claim is
otherwise subject to the scope of the
indemnification obligations of the Indemnifying
Party pursuant to this Agreement, the reasonable
fees and expenses of such legal counsel will be
included within the indemnification obligations of
the Indemnifying Party; provided that under no
circumstances will the Indemnifying Party be
obligated to indemnify such Indemnified Party
against the fees and expenses of more than one law
firm selected by such Indemnified Party in
connection with a single claim (notwithstanding the
number persons against whom the Third Party Claim
may be asserted).
10.3.2. In the event any Indemnified Party should have a
claim against any Indemnifying Party hereunder which
does not involve a claim or demand being asserted
against or sought to be collected from it by a third
party, such Indemnified Party will send a Claim
Notice with respect to such claim to such
Indemnifying Party. If such Indemnifying Party does
not notify such Indemnified Party within the Notice
Period that such Indemnifying Party disputes such
claim, the amount of such claim will be conclusively
deemed a liability of such Indemnifying Party
hereunder.
10.4. Except to the extent such right of indemnification arises
under Section 9.1 of the License, viaLink will, at its own
expense, indemnify and hold harmless (except with respect to
the value of the time of an employee of i2 and/or any
Affiliate of i2) i2 and its Affiliates against any suits,
claims, actions, losses, damages, expenses (including
attorney's fees and costs) or liabilities that may result
from any allegations that any products or services provided
by viaLink pursuant to this Agreement constitute an
infringement, misappropriation or misuse of any patent,
copyright, trademark or trade name or trade secret or other
intellectual property right protected by the laws of the any
state thereof ("viaLink Challenged Products/Services");
provided i2 gives viaLink prompt notice, in writing, of the
institution of such suit or the assertion of such claim and
23
24
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
permits viaLink through its counsel to defend the same and
gives viaLink all reasonably available information and
assistance and authority to enable viaLink to do so. viaLink
will have control of the defense of any such suit including
appeals, and of all negotiations with respect thereto,
including the right to effect settlement or compromise. If,
at any time, in viaLink's opinion any products or services
provided by viaLink pursuant to this Agreement are likely to
become the subject of such an infringement, misappropriation
or misuse claim or suit, viaLink will have the following
options: (a) procure for i2, at viaLink's expense, the right
to continue using such products or services; (b) replace or
modify such products or services, at viaLink's expense, so
that such products or services become non-infringing but
without substantially and adversely changing their original
functionality; (c) permit i2 to procure, at viaLink's
expense, substitute products or services of comparable
quality and function to replace the viaLink Challenged
Products/Services; or (d) if none of (a), (b) nor (c) is
commercially reasonable, discontinue providing the viaLink
Challenged Product/Service, and release i2 from any further
obligations with respect to such viaLink Challenged
Product/Service. viaLink will have no liability under any
provision of this Section 10 with respect to any claim if (a)
the infringement, misappropriation or misuse is based upon
(and would not have occurred without) (i) the use of the
viaLink Challenged Products/Services with any equipment or
software not made, provided or contracted for by viaLink
(unless such use is authorized by viaLink or is mutually
agreed to by the parties), (ii) any modification of such
viaLink Challenged Products/Services by i2 (unless such
modification is authorized by viaLink or is mutually agreed
to by the parties), or (iii) compliance by viaLink with i2's
unique written specifications or instructions (excluding
general product/services functionality requirements of i2) or
(b) a demand for indemnification arises, directly or
indirectly out of an allegation of infringement,
misappropriation or misuse asserted by the parents,
subsidiaries or other Affiliates of i2. The foregoing states
the entire liability of viaLink with respect to infringement
of patents, copyrights, trade secrets, trade marks or other
third party intellectual property rights by the viaLink
Challenged Products/Services, and any resulting
unavailability of the viaLink Challenged Products/Services.
viaLink agrees that the limitations set forth in Section
10.6, including, without limitation, the limitation on
viaLink's maximum aggregate liability, will not apply to
viaLink's liability under the provisions of this Section
10.4.
10.5. Except to the extent such right of indemnification arises
under Section 9.1 of the License, i2 will, at its own
expense, indemnify and hold harmless (except with respect to
the value of the time of an employee of viaLink and/or any
Affiliate of viaLink) viaLink and its Affiliates against any
suits, claims, actions, losses, damages, expenses (including
attorney's fees and costs) or liabilities that may result
from any allegations that any products or services provided
by i2 pursuant to this Agreement constitute
24
25
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
an infringement, misappropriation or misuse of any United
States patent, copyright, trademark or trade name or trade
secret or other intellectual property right protected by the
laws of the United States or any state thereof ("i2
Challenged Products/Services"); provided viaLink gives i2
prompt notice, in writing, of the institution of such suit or
the assertion of such claim and permits i2 through its
counsel to defend the same and gives i2 all reasonably
available information and assistance and authority to enable
i2 to do so. i2 will have control of the defense of any such
suit including appeals, and of all negotiations with respect
thereto, including the right to effect settlement or
compromise. If, at any time, in i2's opinion any products or
services provided by i2 pursuant to this Agreement are likely
to become the subject of such an infringement,
misappropriation or misuse claim or suit, i2 will have the
following options: (a) procure for viaLink, at i2's expense,
the right to continue using such products or services; (b)
replace or modify such products or services, at i2's expense,
so that such products or services become non-infringing but
without substantially and adversely changing their original
functionality; (c) permit viaLink to procure, at i2's
expense, substitute products or services of comparable
quality and function to replace the i2 Challenged
Products/Services; or (d) if none of (a), (b) nor (c) is
commercially reasonable, discontinue providing the i2
Challenged Product/Service, and release viaLink from any
further obligations with respect to such i2 Challenged
Product/Service. i2 will have no liability under any
provision of this Section 10.5 with respect to any claim if
(a) the infringement, misappropriation or misuse is based
upon (and would not have occurred without) (i) the use of the
i2 Challenged Products/Services with any equipment or
software not made, provided or contracted for by i2 (unless
such use is authorized by i2 or is mutually agreed to by the
parties), (ii) any modification of such i2 Challenged
Products/Services by viaLink (unless such modification is
authorized by i2 or is mutually agreed to by the parties), or
(iii) compliance by i2 with viaLink's unique written
specifications or instructions (excluding general
product/services functionality requirements of viaLink) or
(b) a demand for indemnification arises, directly or
indirectly out of an allegation of infringement,
misappropriation or misuse asserted by the parents,
subsidiaries or other Affiliates of viaLink. The foregoing
states the entire liability of i2 with respect to
infringement of patents, copyrights, trade secrets, trade
marks or other third party intellectual property rights by
the i2 Challenged Products/Services, and any resulting
unavailability of the i2 Challenged Products/Services. i2
agrees that the limitations set forth in Section 10.6,
including, without limitation, the limitation on i2's maximum
aggregate liability, will not apply to i2's liability under
the provisions of this Section 10.5.
10.6. EACH PARTY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, THE OTHER PARTY HAS NOT MADE ANY
REPRESENTATION OR WARRANTY
25
26
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
REGARDING THE PRODUCTS AND/OR SERVICES TO BE PROVIDED BY SUCH
OTHER PARTY PURSUANT TO THIS AGREEMENT. EACH PARTY DISCLAIMS
ANY IMPLIED WARRANTY WITH RESPECT TO THE MERCHANTABILITY,
DESIGN, CONDITION, DURABILITY, PERFORMANCE, QUALITY,
CAPACITY, TECHNICAL COMPATIBILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PRODUCTS AND SERVICES PROVIDED BY IT. Each
party agrees that the other party will not be liable for
exemplary, special, incidental, consequential or punitive
damages or "costs of cover" (including, without limitation,
costs of procuring substitute products or services) which
arise directly or indirectly out of the purchase, sale and/or
use of the products and/or services to be provided by such
other party pursuant to this Agreement whether such damages
are asserted in an action brought in contract, in tort or
pursuant to some other theory and whether the possibility of
such damages was made known or was foreseeable. Each party
further acknowledges that, except as set forth in Sections 6,
10.4 and/or 10.5, or as such liability may arise under the
License, each party's maximum aggregate liability to the
other party under any legal theory (including its own
negligence) for damages arising directly or indirectly out of
the purchase, sale and/or use of the products and/or services
to be provided pursuant to this Agreement will not in any
event exceed the lesser of (i) the actual damages suffered or
(ii) $500,000. Accordingly, each party agrees to assume the
responsibility for insuring against or otherwise bearing the
risk of greater damages. Each party acknowledges that the
pricing of the products and/or services to be provided
pursuant to this Agreement reflects the intent of the parties
to limit each party's liability as provided herein. The
limitations of liability set forth in this Section 10.6 are
intended to limit each party's liability and will apply
notwithstanding the failure of the essential purpose of any
limited remedy.
11. OWNERSHIP OF INTELLECTUAL PROPERTY
11.1. Other than as set forth in the License, viaLink shall retain
all right, title and interest in and to all patent,
copyright, trade secret, trademark and other intellectual
property rights ("Intellectual Property Rights") in the
viaLink software and technology and any modifications,
extensions or derivative works of or relating thereto
regardless of whether made by i2 or viaLink. i2 agrees to
execute and deliver (upon request of viaLink) and any and all
deeds, assignments, conveyances, applications or other
documents or instruments necessary to vest title thereto in
viaLink or to protect or perfect viaLink's rights with
respect thereto. Other than as set forth in the License, i2
shall retain all right, title and interest in and to all
patent, copyright, trade secret, trademark and other
intellectual property rights ("Intellectual Property Rights")
in the i2 software and technology and any modifications,
extensions or derivative works of or relating thereto
regardless of whether made by i2 or viaLink. viaLink agrees
to execute and deliver (upon request of i2) and any and all
deeds, assignments, conveyances, applications or other
documents or
26
27
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
instruments necessary to vest title thereto in i2 or to
protect i2's rights with respect thereto. Ownership of any
Interface Software developed shall be as set forth in the
License.
12. MISCELLANEOUS
12.1. RELATIONSHIP OF PARTIES. i2 and viaLink are independent
contractors acting for their own account, and neither party
is authorized to make any representation or commitment on
behalf of the other party. Nothing contained herein will be
deemed to create any agency, partnership, joint venture or
similar relationship between the parties.
12.2. FORCE MAJEURE. Neither party shall be liable to the other for
failure or delay in the performance of a required obligation
if such failure or delay is caused by riot, fire, flood,
explosion, earthquake or other natural disaster, government
regulation, or other similar cause beyond such party's
control, provided that such party gives prompt written notice
of such condition and resumes its performance as soon as
possible, and provided further that the other party may
terminate this Agreement if such condition continues for a
period of one hundred eighty (180) days or more.
12.3. NON-SOLICITATION. For a period of twelve (12) months
following the date a party's employee ceases to perform
services pursuant to this Agreement, neither party (without
the prior written consent of the other party) shall solicit
or hire or independently contract with that employee or for
any of the other party's employees performing such service.
This provision shall not restrict the right of either party
to solicit or recruit generally in the media.
12.4. NOTICES. All notices, reports, requests, acceptances and
other communications required or permitted under this
Agreement will be in writing and shall be sufficient only if
personally delivered, delivered by a major commercial
overnight delivery courier service (such as Federal Express),
sent via facsimile, or mailed, postage or charges prepaid, by
certified or registered mail, return receipt requested to a
party at its address/telephone number, as applicable, as set
forth below or to such other address/telephone number as
applicable that the receiving party may have provided for
purposes of receiving notices as provided in this Section.
Notices will be deemed given when actually received, except
that if not received sooner, notice by mail shall be deemed
received five (5) days after deposit in the U.S. mail:
12.4.1. IF TO i2, TO:
i2 Technologies, Inc.
000 X. Xxx Xxxxxxx Xxxx., 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: 0-000-000-0000
27
28
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
with a copy (which shall not constitute notice) to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: 000-000-0000
12.4.2. If to viaLink, to:
The viaLink Company
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, CEO
Fax: 000-000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx X. Xxxxxx and Associates, P.C.
000 Xxxx Xxxxxxxx Xxxx, Xxxxx X-0
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, General Counsel
Fax: 000-000-0000
12.5. ENTIRE AGREEMENT. This Agreement, all Exhibits hereto, and
any work orders hereunder constitute the entire agreement
between the parties with respect to the subject matter hereof
and supersede all agreements and understanding between
viaLink and i2 with respect to the subject matter hereof made
prior to the date hereof; provided, however, the
Nondisclosure Agreement dated the 23rd day of August, 1999
("Nondisclosure Agreement") shall remain in full force and
effect according to its terms.
12.6. CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas,
without reference to its choice of law rules.
12.7. ATTORNEY'S FEES. In any action to enforce this Agreement,
other than an arbitration pursuant to section 5.10 of this
Agreement, the prevailing party will be entitled to its costs
and reasonable attorneys' fees.
12.8. SEVERABILITY. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent
be determined by a court of competent jurisdiction to be
invalid or unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect.
12.9. WAIVER. Unless otherwise agreed in writing by the parties, no
waiver or failure to exercise any option, right or privilege
under the terms of this Agreement by either of the parties
hereto on any occasion or occasions shall be construed to be
a waiver of the same on any other occasion or of any other
option, right or privilege and no extension of time granted
by any party for the performance of any obligation or act by
any other party shall be deemed to be an extension of time
for the performance of any other obligation or act hereunder.
28
29
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
12.10. HEADINGS. The headings of the Sections and Articles of this
Agreement are inserted for convenience only and shall not
constitute a part hereof or affect in any way the meaning or
interpretation of this Agreement
12.11. NEGOTIATION. This Agreement has been negotiated by the
parties and their respective counsel and will be interpreted
fairly and in accordance with its terms and without strict
construction in favor of or against either party
12.12. COUNTERPARTS This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument. A facsimile signature shall be binding as an
original signature.
12.13. ASSIGNMENT. Neither party may assign any rights, duties,
obligations or privileges under this Agreement without the
prior written consent of the other party, which consent shall
not be unreasonably withheld; provided however and
notwithstanding anything to the contrary herein, a party may
assign or delegate, without the other party's consent, any of
its rights, duties, obligations and/or privileges under this
Agreement to any person or entity (i) to which all or
substantially all of its assets are sold, (ii) into which it
is merged or (iii) which as a result of a merger or
acquisition becomes the surviving company, except the
non-assigning party may terminate this Agreement on this
assignment on 180 days prior written notice to the assignee,
which notice cannot be given until the effective date of the
assignment.
12.14. AUDIT. Each party shall keep accurate books of account and
records pertaining to its all of its activities and
obligations in regards to this Agreement and revenues billed
and received in relation thereto. No more than once per
calendar quarter, the other party at its sole expense, may
itself and/or by employing an independent Certified Public
Accountant who is not compensated based on the results of the
audit, and who is reasonably acceptable to the other party,
inspect such books of account and records upon reasonable
notice to such party, and at a reasonable time during normal
business hours for the purpose of verifying such other
party's compliance with all of the terms, covenants,
warranties, representations and conditions of this Agreement,
including without limiting the generality of the foregoing,
all fees, royalties and other payments due under this
Agreement. All information obtained pursuant to the audit
shall be Proprietary Information of the audited party.
12.15. PUBLICITY: Neither party shall issue any press release,
public announcement or publicity concerning this Agreement or
any matters arising under this Agreement without the prior
written approval of the other party, except to the extent
required by law or judicial order or decree, or the rules of
any securities exchange or interdealer quotation system on
which its securities are listed or qualified for inclusion.
29
30
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
12.16. WAIVER OF CONSUMER RIGHTS UNDER DTPA. EACH OF i2 AND viaLink
HEREBY WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE
PRACTICES-CONSUMER PROTECTION ACT, SECTIONS 17.41 THROUGH
17.63 INCLUSIVE, OF THE TEXAS BUSINESS AND COMMERCE CODE, A
LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS.
AFTER CONSULTATION WITH LEGAL COUNSEL OF THEIR OWN SELECTION,
EACH OF i2 AND viaLink VOLUNTARILY CONSENTS TO THIS WAIVER.
It is the intent of i2 and viaLink that the rights and
remedies with respect to this transaction shall be governed
by legal principles other than the Texas Deceptive Trade
Practices-Consumer Protection Act. The waiver set forth
herein shall expressly survive the termination of this
Agreement and the transactions contemplated herein. Each of
i2 and viaLink represents and warrants that (i) it is a
business consumer, (ii) it has knowledge and experience in
financial and business matters that enables it to evaluate
the merits and risks of the subject transaction, (iii) it is
not in a significantly disparate bargaining position with
respect to the subject transaction, (iv) it has been
represented by legal counsel of its own selection in
connection with the subject transaction and, (v) its legal
counsel was not directly or indirectly identified, suggested
or selected by any other party, or any agent of any other
party, to this Agreement. Each of i2 and viaLink has waived
its rights pursuant to the Deceptive Trade Practices-Consumer
Protection Act without duress or coercion and fully
acknowledges and understands the effect of the waiver.
12.17. Except as specifically limited by the terms of the Agreement,
the parties agree that the rights and remedies set forth
herein are in addition to and not in lieu of other rights and
remedies which may be available at law or in equity.
12.18. NO SUBCONTRACTORS. Neither party shall use or hire any
subcontractor or other third party to carry out its
obligations or perform any of the terms of this Agreement or
the License, without the prior written consent of viaLink,
which shall not be unreasonably withheld.
12.19. BENEFIT. This Agreement shall be binding upon and shall inure
to the benefit of i2 and viaLink and their respective
successors and permitted assigns.
12.20. AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed by both Parties.
12.21. SURVIVAL. The following provisions of this Agreement shall in
all events survive its termination or expiration: Sections 5
(to the extent and for the length of time any amounts are
amount thereunder), 6, 7, 8, 10, 11 and 12
30
31
The viaLink Company has requested a grant of confidential treatment from the
Securities and Exchange Commission for certain provisions in this agreement.
Such provisions are marked by asterisks enclosed by brackets ("[****]").
IN WITNESS WHEREOF, the parties hereto have caused this Alliance and Marketing
Agreement to be duly executed and delivered by their respective officers
thereto duly authorized, all as of the day and year first above written.
i2 TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: Corporate Counsel
-----------------------------------
THE viaLINK COMPANY,
an Oklahoma corporation
By: /s/ J. XXXXXX XXXXXX
--------------------------------------
Name: J. Xxxxxx Xxxxxx
------------------------------------
Title: Chief Financial Officer
-----------------------------------
31
